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Articles Posted in Trials

I am proud to have successfully resolved a difficult truck collision case Friday at a mediation for a substantial amount. I wanted to thank Michael Carnahan for his excellent work.

You might not know what a mediation is or how it can help you if you have a dispute with an insurance company, so here is information that can help you understand this critical process.

What is mediation?

Mediation is a voluntary procedure where the parties to a lawsuit agree to hire a neutral third party, who is a retired judge or an experienced trial attorney, to help them resolve their impasse.

After a lawsuit is filed and the discovery of evidence has been made (and on rare occasions before suit is filed), the attorneys for the opposite parties can agree that it is time to see if they can reach an out of court settlement.

In the personal injury world, the injured persons, insurance company representatives, and their attorneys meet at a neutral site, usually the mediator’s office. He or she attempts find a number to compensate the plaintiffs for their damages that the parties believe is equitable.

The plaintiffs have already or will make an initial demand, either in a written demand or a joint meeting (rarely used now). All sides will have provided the mediator with their position papers, with key exhibits and briefing of relevant cases, weeks prior to the mediation date.

Usually the plaintiffs and defendants are far apart on what they estimate the case is worth after a jury reaches its verdict. And of course no one knows what that number will be in advance. I analyze 62 variables to help evaluate how much a jury might award in damages.

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Insurance companies are notorious for denying and minimizing payments to people injured in car accidents, especially to those with pre-existing injuries. That is not fair. This is another reason you need a good injury lawyer fighting for your rights if you have been crashed into.

After all, hardly any Americans are in perfect health. So how can an insurance company refuse to pay fair compensation to someone who

  • has been in a previous wreck or hurt his body after falling down, lifting a heavy object, or playing sports — often many years ago?
  • has a previous injury that had totally healed?
  • has had surgery to a different part of his body, say his neck, and has now only injured his back?
  • has a medical condition that results in much worse damage than the defendant could have expected?

The defendant in court must pay for these damages. This important legal concept is referred to as the eggshell skull rule.

What is the rule?

Tort law has always held that the defendant takes the plaintiff as he finds him, including all hidden symptoms, fragile conditions, and unforeseeable medical problems. You should not be punished for being injured or weak before the crash, unless the damages you are claiming were not caused by it.

Imagine that a fictional plaintiff has a skull that is as thin as an eggshell. What if the injured person is elderly or frail? A fender-bender that might cause a mere bruise to a normal person’s head could potentially crack open the plaintiff’s extremely fragile skull. The defendant can’t possibly know this of course. However the defendant is liable for killing the plaintiff even though he could not have foreseen that the minor accident would be deadly.

The eggshell skull rule illustrates the most extreme example. But in real life, this doctrine applies to such medical conditions as previous herniated disks, osteoporosis, torn rotator cuffs, concussions, or use of blood-thinning medications to treat blood clots. Continue reading

Judicial nominee Matthew Petersen had to withdraw today from consideration for the U.S. District Court after muddling through a dismal interview before the Senate Judiciary Committee. Thank goodness.

Peterson squirmed when Senator John Kennedy, a Republican from Louisiana, asked him to define such basic legal terms as motions in limine. They are submitted just before a trial begins and limit what evidence can be considered. Senator Kennedy also asked Petersen about the well-known Daubert test and the abstention doctrine and again the potential federal judge had no clue.

Peterson admitted that he had never tried any cases in court. Instead, he had held desk jobs working for the Republican National Committee and the Federal Energy Commission. Of all possible trial lawyers who already know the complicated litigation process, how did he ever get nominated?

As Senator Kennedy said, “You can’t just walk into a federal courthouse for the very first time and say “Here I am, I think I wanna be a judge.” It just doesn’t work that way.”

What’s worse is that federal judges are given life tenure to the bench. Firing an incompetent or unethical judge is nearly impossible.

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A Dallas jury just awarded a catastrophically injured couple a jaw-dropping $42 million.

Matthew and Marcia Seebachan were driving to visit her grandmother near Austin a few days before Christmas in 2013. Suddenly a truck hydroplaned in a rain storm and collided into their small car. But a routine collision became a catastrophe when the roof of their Honda Fit collapsed and crushed them. Then shards of metal punctured their gas tank and the car burst into flames. The doors would not open and they were locked in an inferno.

Fortunately a passing motorist broke the glass and rescued the couple, but not before Matthew suffered horrifying third degree burns and he and Marcia sustained shattering injuries and extreme mental trauma. Medical bills were over one million dollars and lost wages were enormous.

How could this nightmare happen?

Investigators discovered that John Eagle Collision Center had only glued the roof in place after a previous hail storm — not welded it back in the 104 places required by Honda’s specifications and industry standards.

The couple filed suit.  Pretrial discovery, including the deposition answers of Eagle’s body shop manager admitting fault, were especially damning.

A doctor testified that that they should have only sustained minor injuries, bolstered by the fact that the driver and occupants of the truck were not hurt.

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Requests for admissions of facts (RFAs) are designed to streamline the admission of evidence at trial. They are an effective and cost-effective means to achieve the pretrial discovery. Now parties may stop using RFAs, as a decision issued today dramatically eased their use against noncomplying parties.

In Terry Swanson v. State of Texas and County of Travis, a female process server was horribly mauled by six dogs as she attempted to serve papers and was killed. The owner was sued sos the dogs could be euthanatized, as required by state law. After the defendant filed incomplete responses to the RFAs six days late, the state and county filed a motion for summary judgment based upon his failure to respond by the deadline.

However Swanson claimed that (1) the caretaker of the dogs, the only person who could admit or deny the facts, had been injured and (2) his attorney practiced criminal defense and was not familiar with the civil rules. The trial court rejected these flimsy excuses, ordered that all the RFAs had been admitted, and granted summary judgment.

The appellate court reversed, ruling that the trial court abused its discretion in reaching its conclusion. The court held that even a slight excuse will suffice, especially if delay or prejudice to the opposing party will not result. Otherwise, the court found that honest mistakes could lead to inequitable results.

What is a Request for Admission?

Under the Texas Rules of Civil Procedures, one party may serve the other with up to 15 written questions focused on matters that are not in dispute. The questions allow the parties to establish basic facts without having to present evidence and testimony in a formal court proceeding. Continue reading

Have you received a call from someone who threatens you with going to jail for not showing up for jury service? He says he’s from the U.S. Marshall’s Office, gives his badge number, mentions the name of the judge who told him to call you, and even has the Tarrant or Dallas Courthouse listed on caller ID. The victim is told he must pay a huge fine immediately and some people do. One woman paid the fraudsters $2,000. That’s terrible to hear. But it’s a scam.

I’ve been a personal injury attorney in Texas for 36 years and have tremendous respect for our civil justice system and the jurors who are the backbone of this essential process. This rip-off angers me.

If you do receive one of these calls, report the incident to the U.S. Marshals Service to stop these horrible scammers from victimizing anybody else.

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People who call for an Uber and get into a Honda van are sometimes making a tragic mistake.

A 24-year-old college student from University Park is now a quadriplegic due to a horrific crash in Dallas a year ago.

Sarah Milburn was home from a break from Oklahoma State University. She was about to graduate and start a new job and her future was bright. After celebrating with friends in Uptown, instead of driving, they sensibly called Uber. Sarah buckled her seat belt, even though she sat in the third row of the Honda Odyssey.

She thought that she had done the right thing. But she couldn’t possibly know that Uber had failed to vet its driver. Or that the van she sat in was defectively designed. Or that she would nearly die.

The Uber driver, Anan Yusufzai, sped through a red light at the busy intersection of McKinney and Fitzhugh Avenues and was T-boned by a Ford 150 pickup truck. The van flipped upside down and Sarah dangled precariously upside down. She was cut out and rushed to the ICU at Baylor University Medical Center. Tragically, the crash broke broke her spinal cord.  Continue reading

If you were injured in a car wreck and file a lawsuit against the at-fault driver, his insurance company lawyer will take your deposition.

What is a deposition?

It is an important part of the pretrial discovery process where sworn testimony from potential witnesses is recorded. The intense questioning is designed to find out what you as well as the other driver and others who will testify know and how witnesses will come across to the jury.

As a personal injury lawyer for the past 36 years, I have represented clients during countless depositions and wanted to provide guidance if you are involved in the litigation process or are considering filing a lawsuit.
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About 99% of lawsuits are settled before trial. One of the most effective ways for an injured person to recover the money he wants is through the mediation process.

I’ve been representing victims of automobile and truck accidents for the past 36 years and successfully mediated a major lawsuit several weeks ago. Here are a few things I’ve learned over the years.

What is mediation?

Mediation is a process by which the parties involved in the lawsuit attempt to come to an out of court agreement. It takes place in a neutral site — usually the mediator’s office — and is far less formal than a trial. Every case is required in Texas to go to mediation.

It is usually conducted after all discovery of facts has been completed and within a month or two of the trial date, but in certain cases it can be effectively used before a lawsuit is filed. It can take several hours, all day, and even several days. Continue reading

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