COVID-19 UPDATE: What We Are Doing to Protect Our Clients

An injured person must prove their case at trial. They must introduce pertinent evidence including proof of medical bills that are reasonably priced. The defendant can attack this evidence. The judge rules on the admissibility of the medical bills and other damages and the jury decides how much compensation the injured party receives. To make trials more efficient and fair, Texas law has allowed the parties to prove and disprove medical bills and records with affidavits since 1979.

The New In Re Allstate opinion

The Texas Supreme Court issued an opinion on Friday that will dramatically curb the use of these affidavits and require doctors to testify in person. The justices directed a Corpus Christi trial court to vacate its order that struck a counter-affidavit filed by the plaintiff's car insurance company.

The Texas Supreme Court issued its 36th Emergency Order since the pandemic began one year ago. It permitted live Texas jury trials to proceed if safeguards are in place. Governor Abbott is fully reopening Texas businesses and withdrawing the mask mandate tomorrow.

Trying to achieve a happy medium

The Supreme Court is apparently seeking a balance between a return to normalcy and the safety of judges, attorneys, jurors, parties, and witnesses participating in Texas jury trials. Inoculations are being quickly administered, many people are still wearing masks and socially distancing, and the coronavirus is fortunately moderating. That is great news. However, with contagious variants spreading and Spring Break happening, a surge has been predicted. The Court implied that live proceedings should wait until June 1st.

Requirements to conduct Texas jury trials

The required protocols include
  • approval from the local administrative district judge;
  • ruling on objections made to live jury proceedings within seven days of the commencement of trial;
  • assurance that no participants have tested positive or exhibited any symptoms for COVID-19 within the previous 10 days or been exposed to the coronavirus within the last 14 days;
  • notification of potential jurors of the precautions that are being taken to protect their health and safety;
  • receipt of questionnaires to prospective jurors asking about their health and possible recent exposure; and
  • removal of jurors who confirm their infection or exposure.

Which courts can and cannot hold live trials and appellate hearings

The Court continued to allow district and county courts to modify their procedures and deadlines and procedures through June 1st. Further, the Supreme Court will not allow in-person arguments through the duration of its 2020-21 docket. Three justices dissented to the new order.

Texas courts valiantly pivot to remote proceedings

The commitment of Texas judges and attorneys to continue to work during this crisis has been remarkable. Texas reported its first COVID-19 case on March 5, 2020. Within one week the courts had immediately implemented virtual hearings by telephone or videoconference. Some courts even set up YouTube channels enabling the public to watch their proceedings. An estimated one million virtual hearings have been conducted in the past year. Pre-trial hearings, appeals, depositions, mediations, and appeals have continued. There have been several notable trial results, including last week's stunning $2.1 billion verdict against Intel last week in a patent infringement trial in federal court in Waco.

Growing backlog

With few Texas jury trials during past year, the growing dockets will take a long time to resolve. According to the Office of Court Administration's statistics, there are about 600,000 active cases just in the district courts across the state. A tiny fraction were disposed of last year by non-jury (852) or jury trials (130). The stoppage has especially a problem in the criminal courts due to their speedy trial requirements. The additional deaths and infections from the more crowded jails have been called an urgent threat. Effectively trying a case to a jury has also prevented civil cases from being fairly resolved. Virtual trials have problems. Litigants have had to choose between remote trials or waiting for the courts to reopen. Cases sometimes are not resolved until the juries are being empaneled or testimony begins.

What happens next

It is not known which counties and courts can achieve the safety requirements and proceed with in-person proceedings. The major counties have spent hundreds of thousands of dollars retrofitting their courtrooms with plastic barriers and other distancing devices. It is also not clear whether jurors will appear for jury duty. Appearance rates were already low. For now, courts will continue to recalibrate so they can return to relative normalcy. Hopefully, the pandemic will be subdued more quickly than expected and Texas jury trials can safely resume. For more on this subject: Will coronavirus affect Texas car accidents? - March 10, 2020 blog post

The Texas Supreme Court issued new rules that took effect for petitions filed on or after January 1st. The 2021 Texas lawsuit changes affect service of process, discovery, and trials. The revised Texas Rules of Civil Procedure are a belated Christmas present to many litigators. In an attempt to extend the holiday cheer, this was the festive scene at the Tarrant County Courthouse in Fort Worth. Which rules did the court change?
1. New service methods are provided
  • Under the new substituted service Rule 106(b)(2), the citation may be posted on social media, email, or other technology.
  • There is also a new Public Information Internet Website for this purpose.
2. New discovery rules apply, beginning with required disclosures
  • Under Rule 194.1, all parties must provide information about all current and potential parties, factual bases of claims, legal theories, and provide a computation of each category of damages.
  • Parties must disclose information about witnesses and exhibits, separating those it expects to call or use at trial and those it may use if the need arises. Rule 194.4.
  • Each party must produce all documents supporting the damage computation and all documents it may use at trial unless they are solely for impeachment purposes.
  • All parties must answer the initial disclosures within 30 days from the day the first answer is filed/the date that a party is joined unless modified.
  • Until the disclosures are due, no other discovery can be filed.
  • Parties must produce copies of all responsive documents or state a time and method for their production.
  • Under Rule 195.5, parties must produce a revised list of information and documents regarding experts including a statement detailing their compensation.
  • This information must be provided at least 90 days before the end of the discovery period for the plaintiff and 60 days before then for other parties.
  • Parties are not permitted to refuse to answer on the grounds that their investigations are incomplete.
3. Faster pre-trial procedures are guaranteed for many cases
  • Expedited actions under Rule 169 will be invoked if damages claimed under Rule 47 are less than $250,000 (not counting attorney's fees, costs, interest and penalties), a much higher number than the former limit of $50,000.
  • This will trigger discovery level 1, so this will accelerate the time it takes for cases to get to trial. After the first initial disclosures are due, the discovery period begins and continues for 180 days, different times for each period.
  • The time for depositions for each party increases to 20 hours from six hours.
  • The beginning and ending dates for Level 2 discovery are revised.
  • Cases must be set for trial in a faster 90 days after the date discovery closes.
  • There can only be two continuances granted, and they can not exceed total of 60 days.
The stated goal of these 2021 lawsuit changes is to provide for the “prompt, efficient, and cost-effective resolution of civil actions.” ‎They will hopefully accomplish these badly needed objectives. For many years, it has been widely agreed that the litigation process has to be revised. It is extremely expensive, slow, and unwieldy, even in routine cases. This deprives individuals and businesses of their rights to effective and speedy trials and also unnecessarily increases the costs for defendants. Lawsuits that grind on for years are common. Requiring and increasing mandatory disclosures is an excellent idea. Important information from the parties can be exchanged without the immediate need for additional interrogatories, requests for production of documents, requests for admission of facts, depositions, and the court hearings to adjudicate the inevitable disputes. However, the new rule regarding service of process has due process problems. Although it requires that some evidence is required to show that alternative methods of service are reasonably effective to give a defendant notice of the lawsuit, that is vague. There will now be default judgments rendered where the defendant never knew they had been sued and it is impossible for the plaintiff to prove that the defendant saw the post or email. Finally, the timing is problematic. Just as jury trials have ground to a halt, lawsuits are being hurried to trial. But there is already almost a one year backlog with no way to know when jury trials can proceed. In its latest emergency order, the Supreme Court extended the date until February 1. It was estimated that, at the current delivery of the coronavirus vaccine, it may take up to 10 years to immunize enough Americans to make it safe to conduct business in person. For those who advocate jury trials via Zoom, they raise serious questions about representative fairness and have their own set of technological and logistic issues.
The Supreme Court will presumably review the efficacy of these 2021 lawsuit changes and continue to revise them to insure "and justice for all."
Related posts: How a Texas personal injury case is affected by COVID-19

    Almost every Texas personal injury case has been altered by the pandemic. Going to court is far different now. For example, it is impossible to imagine the Texas Supreme Court (pictured above) holding a hearing on Zoom earlier this year. What does the future look like for legal proceedings?

A Texas Personal Injury Case During the Pandemic

Back when things were normal, Texas courts conducted about 200 jury trials a week. People that testified had no fear of getting sick and infecting others. Our world changed for the worse this winter. For example, Mr. Berenson ran the Cowtown Marathon on March 1st with no social distancing or masks worn by runners or the crowds of spectators. But on March 12th, courthouses, businesses, and schools closed down. Jury trials ground to a halt. The Supreme Court of Texas monitored this crisis with a number of emergency orders. The most recent one which took effect on October 1st further refined the procedures for trials, hearings, and other proceedings. Now
  • anyone involved in a hearing or deposition can participate remotely;
  • judges can accept testimony given in some sworn statements outside of court; and
  • courts can conduct in-person proceedings after they have been approved by the administrative district judge and local public health officials.
Fortunately, the tens of thousands of car accident claims that could be resolved without a lawsuit mostly proceeded as before.

In-Person Fort Worth Personal Injury Trials

The Supreme Court’s latest emergency order prohibits live trials between October 1st and December 1st for lower courts. But finally, district and county court trials may begin to hold in-person trials. Any judge wishing to conduct them must apply to the local administrative district judge and the regional presiding judge and get their approval that addresses
  • pre-testing for those in attendance;
  • limitation of the numbers in attendance; and
  • social distancing measures
Courthouses across Texas have been retrofitted with plastic shields, barriers, and other ways to separate participants. Thermometers, hand sanitizers, masks, and laptop computers have been purchased in large quantities. Here in Tarrant County (Fort Worth), at least $300,000 has been spent to protect those who will be in courtrooms. In addition, any court holding an in-person jury trial must have a system in place to ensure that no participant has had COVID-19 in the 30 days immediately before the trial date. The judge must  also have a means of confirming that no participant has potential virus symptoms or recent close contact with an infected person. Social distancing and hygiene tools must be employed. Some counties are proceeding with jury trials beginning next week, including ones in Dallas, McKinney, Austin, and San Antonio. But the approval process is exacting and the infection rate reaches new highs every day. We can expect Texas personal injury cases to mostly happen online in the coming months -- and possibly for a long time to come. While there were over 1.6 million cases handled by civil courts in Texas in 2019, they will see only a fraction of that number in 2020. How will courts deliver justice? There are only two ways, in-person and by computer. Each has its pros and cons.

Disadvantages of Virtual Trials

There is no substitute for an in-person jury trial. The parties and witnesses are present and can be scrutinized. Exhibits can be easily displayed and arguments made. Despite technological advancements, there are drawbacks to conducting trials over a computer.

1. Connection and technical issues

This is the most pressing problem with remote court proceedings. When you have twelve jurors in different locations using separate internet connections over an extended period, connectivity issues are practically guaranteed. And some people do not have access to the internet or computers. It has been argued that this will skewer the jury panel to those with more means. There is also the likelihood that some parties might struggle to hear everything others are saying due to sound quality issues. These may not be serious enough to fundamentally impact the trial. However they can cause significant delays and be a source of frustration for everyone involved.

2. Juror engagement

Any teacher will tell you how much more difficult it is to keep students engaged when giving remote lessons. Jurors are not children, but the same principles apply to an extent. It is challenging to keep jury members focused on the legal issue at hand when they have the option of discreetly using their cell phones, watching television, or even leaving the room. That is why the court bailiff collected the smartphones of jury members. 3. Interaction Discussions between large groups of people are more difficult when held remotely. 

Advantages of Virtual Trials

There are pros to holding Texas personal injury trials remotely. They are better than nothing. They limit the spread of COVID-19. And they can be more efficient. For example, the Texas Supreme Court, Courts of Appeal, and state district and county courts have been conducting hearings and trials remotely for several months. However, those proceeding may have fewer moving parts. Witnesses may not need to be sworn in and testify, exhibits may not have to be admitted and analyzed, and legal issues might be controlled easier. The first fully remote civil jury trial to reach a binding verdict finished in Florida in August. The jury awarded a Jacksonville woman $354,000, but the defendant did not appear to defend himself. (You can safely assume that the verdict would have been much different if he had an attorney arguing his position.) In August, Texas conducted the country's first criminal trial via Zoom. The jury in Travis County (Austin) found the defendant guilty in a simple traffic offense in a Justice of the Peace Court. The trial was an experiment. Again, this was not a simple trial. The lockdown forced the legal world to quickly enhance its technology with positive results. For example, depositions, hearings, and trials that used to require driving to offices or courthouses can now be handled more expeditiously from homes and offices. The legal world of the future could conceivably be more streamlined, effective, and affordable. Despite their drawbacks, virtual personal injury trials can be an effective way of resolving disputes, especially given our current circumstances.

Disclosure of COVID-19 Symptoms

Judges now have the power to compel anyone involved in a case to tell the court if they have had any COVID-19 symptoms in the recent past. They must also tell the court if they have had close contact with anyone who had the virus or exhibited symptoms. The emergency order gives a list of the well-known symptoms.

What the future holds

The Texas Office of Court Administration made a number of recommendations about court proceedings during the health crisis in a report in August. The Supreme Court adopted most of these. The provisions will have a significant impact on trials in Texas in the future.  There are obvious problems conducting live trials. A federal court in Sherman had to postpone a trial today when at least one juror and attorney became ill. And we know that many people are infected but are asymptomatic or have false negative tests. The judge noted that his Eastern District of Texas (which covers North Texas over to Beaumont and up to Texarkana) has conducted 20 total trials in the past five months. In a typical year, that number would probably be at least 200. This most recent Supreme Court order expires on December 1st. With the rapid upswing in COVID-19 cases, it is not clear if the Supreme Court will allow in-person proceedings. It is hard to fathom that people will want to sit in a room downtown, even if distanced and wearing masks, for extended periods of time. Most people don't even want to go into a grocery store or sit on a plane. In-person jury trials should be postponed until the COVID-19 infection rate is drastically cut. Once there has been a huge reduction in the number of people who have been infected, we are likely to see a swift return to the courtroom across the state. Through October, there have only been approximately 100 jury trials across the state. As a result, there is a tremendous backlog of cases awaiting trial. The number continues to grow. We have to allow injured people their constitutional right to a fair and impartial jury trial. This is a serious problem that the legal community must solve. Contact our office if you need any assistance with your Texas personal injury case.

Getting in a car accident can be a living hell. You may have already had a surgery or need one. You won't be able to move without pain.  You can't sleep. You won't have your car. You might not be able to work. You will owe a ton of money to a hospital and doctors. For example, today a client of ours found out she needed a major cervical fusion after she was rear-ended a few weeks ago in Dallas. If this has happened to you, here's a question you need answered: should you settle with or sue the other driver? This photo was taken from the Tarrant County District Courts building of the Tarrant County Courthouse after a hearing. This is a difficult but critical decision. This is why your best course of action is to hire a good personal injury lawyer who will make the right decision and speed you through this complicated process. We at Berenson Injury Law have seen this on a daily basis for almost 40 years and do everything possible to help people get through a horrible period of their lives. Mr. Berenson met with a young man and his parents on Friday to give him his settlement check from his devastating DWI crash -- which only happened two months ago. He had to have a major surgery to his back. He and his family were thrilled with the results. Now we are fighting to get him paid another sizeable insurance payment. Later, after Mr. Berenson had obtained a giant settlement for a nice young woman and saved her over $100,000 in medical bills, her mother very nicely wrote him this email: "Thank you for being such a warrior and making the outcome positive. We would have been lost without you. Thank you always for your and your team's valued support."

I successfully represented my client at a mediation where I resolved a complicated lawsuit several days ago. I have fought for people injured in collisions at numerous mediations over the past 38 years and wanted to share some thoughts about how to make them work. The tractor-trailer pictured here crashed into seven stopped vehicles at 60 miles per hour. Three caught on fire. The tractor ended up on top of the bridge's guardrail. The collision shut down I-35 in Fort Worth for the rest of the day.
Seven people were hurt, one critically. My client seriously injured his low back. It was a miracle no one died. There was a minimum commercial insurance policy of $750,000 available to settle the claims, and only through an endorsement that adds unlisted vehicles like the 18-wheeler here to the existing liability policy. I was able to recover a favorable amount of money for my client (the exact figure is confidential) and substantially reduce his medical bills. I am now working to obtain more money for him from his underinsured motorists (UIM) and another insurance policy. Update on 10-8-18: I was able to recover additional money from the UIM policy. The team at Berenson Injury Law specializes in these car, truck and tractor-trailer crash cases, but this post applies to all mediations.

Seizure of President's lawyer's files sheds light on client protection.

A federal judge will rule on an urgent motion filed by attorney Michael Cohen's attorneys who have challenged the controversial search of his home, office, and hotel room on Monday. They claim that the documents and items seized were protected by the attorney-client privilege and cannot be disclosed to the special counsel or anyone else. Mr. Cohen, of course, is the longtime attorney for President Donald Trump and has been representing him in various lawsuits and legal matters. Whether you are involved the personal injury cases I specialize in or any other legal proceeding, communications between you and your attorney are usually confidential under the attorney-client privilege.

What is a deposition?

It is an intense question and answer session taken under oath. The involved parties and people involved with a lawsuit are interrogated at length about facts and opinions related to the litigation. Plaintiffs, defendants, and other parties and witnesses can be ordered to provide testimony. If a corporation is a defendant, it must designate a person with knowledge of facts. Since our office specializes in car and truck collision cases, this post will concentrate on how they are used in personal injury cases.

Why take a deposition?

Just because there was a car crash and the police report blames one driver and a person is injured doesn't mean the at-fault driver's insurance company is going to be fair about making an offer of settlement. Usually the opposite is true. The injured party must often file a lawsuit and prove his case to get paid his damages.

Our use of Facebook, Twitter, Instagram, and other social media platforms is rampant. We think nothing of exchanging our private thoughts online. But those posts can come back to haunt people who have been injured in car wrecks. Look at what just happened to this woman. A New York appeals court just delivered a decision that will help insurance company lawyers further pry into the social media accounts of people injured in car wrecks. The court held that a woman's "private" Facebook status did not prevent disclosure of photos showing her physical condition before and after an accident. In the discovery phase of lawsuits, one piece of evidence can lead to another. So courts are liberal in what attorneys can obtain if there is justification for its release. While you might assume that your post was not meant to be read by strangers, courts have taken the opposite approach. Social media is a hot topic in the law. As the law and technology are rapidly evolving, questions about privacy versus their use at trial are common.

Does the State of Texas have a duty to warn drivers about a dangerous road condition? Last week’s decision by a Texas appellate court ruling said that it did.The Dallas court affirmed a jury’s verdict in favor of a motorcyclist who crashed when his wheels hit a large crack in the highway. The trial court capped the $1,200,000 verdict at $250,000, the maximum damages allowed under the Texas Tort Claims Act, and the state appealed. Brian Milton was traveling on FM Road 148 in Kaufman in 2012 at night. He couldn't see the deep cracks in the road pictured here until he hit one and crashed his bike into a ditch. Milton had never driven on this road before. He was severely injured. Testimony from state employees and other evidence showed that the TxDOT clearly knew about the problem before the crash. The responding officer noted the “big cracks” in the roadway. A few days later, Milton’s wife took this photo of the severely eroded highway. And just one month earlier, a TxDOT worker had taken pictures of the poor road conditions and ordered signs to warn drivers about the failing road but the signs weren’t placed in the correct location. In addition, the agency had begun roadwork nearby but had not yet made its way to the area of the crash where work orders were in place.
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