Houston Litigation Blog : Houston Insurance Defense Lawyer & Attorney : McCormick Hancock Newton Law Firm : Defense Counsel and Civil Trial Lawyers : Serving Harris County, South Texas, Gulf Coast

I recently read a speech given by Federal Judge William Young on the importance of our country's jury system.  No where in the world does the citizenry  have the right to play such a vital role in government.  Unfortunately, our jury system is under attack from many different directions.  It is often widely criticized by those who have no experience or familiarity with it.  Even worse it is attacked by those special interests who seek to take advantage of those who most need the protections of it.  The jury has always been the protector of the weak from being overrun by the strong.   Judge Young's speech should be a must read for every adult and high school student in this country.  Here is an excerpt from his speech:

Yet the American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than that on the criminal side, but it is dying. It will never go entirely, but it is already marginalized. It is not at the center of our political discourse. How is this possible, with our Constitution and every one of the 50 state constitutions guaranteeing the right to trial by jury? The general answer is that we do not care.  

The entire speech can be downloaded here.  Download file

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

I was recently asked by a business acquaintance what he should do in the event he is sued.  I gave him a copy of our firm's pamphlet called The Legal Survival Guide which answers a number of basic legal questions  If you would like a copy of this pamphlet send me an e-mail with your name and address and I will drop one into the mail for you.

Here is what I told him about the steps that should be taken in the event he was sued:

1.     Don’t ignore the suit! Once you have been served there is a specific time period in which the suit must be answered. In some cases it is as short as 10 days. If a timely answer is not filed, you may lose by default.

2.     Don’t call the other lawyer or person who has sued you without consulting your own attorney.  Statements you make to the lawyer or other party can be used against you.

3.     If the suit is covered by insurance, call your insurance agent or carrier immediately. Most auto accidents are covered under automobile insurance.  Other personal injury suits may be covered by your homeowner’s policy. If covered, your insurance company will hire a lawyer for you.

4.     If the suit is not covered by insurance, consult with an attorney immediately. In choosing your attorney, you should consult with one experienced in the handling of civil lawsuits.  Ask the attorney about his/her experience.

5.     Turn over all of the papers served on you to your insurance carrier or attorney.

6.     Follow up with your insurance carrier or attorney to make sure that a timely answer has been filed.

7.     Cooperate fully with your attorney or insurance carrier in the defense of the suit.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The tort reform war is over and business has won. Here is a link to an article from Business Week on-line declaring victory in the tort reform movement.  www.businessweek.com/magazine/content/07_02/b4016001.htm The article is an interesting read.  It is consistent with my post from September about  a jury climate that greatly favors Defendants. www.houstonlitigationblog.com/2006/09/articles/jury-trials/for-defendants-now-is-the-time-to-go-to-trial-in-texas/ Jurors have become so inundated with lawsuit phobia that it is next to impossible for a Plaintiff to get a favorable jury verdict.   

In the 20 years that I have practiced law, I have seen the judicial makeup of Texas change from virtually all Democrat judge to virtually all Republican judges. During this same time period, I have seen juror attitudes change from favoring the Plaintiff to now favoring the Defendant.  As a result, those companies and individuals who find themselves being sued should take advantage of this trend. Ultimately, I tend to think the current trend will eventually shift back, the only question is when...........

• Email This
• Print
• Comments
• Trackbacks
• Share Link

I continue to be amazed at the number of lawyers who fail to properly prepare their witnesses to give a deposition.  Over the last 20 years, I have frequently seen large settlements generated in otherwise defensible cases because a lawyer failed to properly prepare his corporate witness to give a deposition.  No other aspect of the defense of a lawsuit is as important as preparing the witness to face the opposing lawyer during the discovery phase of the case.  

While it is common for lawyers to spend days preparing themselves to take an effective deposition, these same lawyers mistakenly think they can spend an hour or so immediately prior to the deposition preparing their own witness to be deposed.  This can have disastrous results on the defense of a case.   A number of years ago, I was involved in the defense of a very complex multi-party explosion that resulted in a number of burn deaths. The deposition testimony of our co-defendant’s employee witnesses was some of the most damaging I have ever seen in a personal injury case.  As it turns out, co-defendant’s counsel spent only a very short time on the day before the deposition preparing the witness. The witnesses were grossly under prepared for the subsequent examinations. Because of the poor showing by its witnesses, the co-defendant was forced to enter into settlements that exceed $100,000,000.00.  In contrast, our trial team approached witness preparation in a much more strategic manner.  We put serious thought into which witnesses we wanted to produce and in what order.  We began preparing our witnesses to be deposed weeks before their deposition dates.  We assigned one member of the trial team to be primarily responsible for the preparation of all of our witnesses. We also made sure that the witnesses were thoroughly familiar with not only the facts, but also the questioning style and expected strategy of the lawyers that would be deposing them.  As a direct result of our witness preparation, the case developed in such a way that we were able to successfully defend the case that no one else thought could be defended.  

Here are my thoughts on successfully producing witnesses to be deposed in a catastrophic case.

Control the order and timing of when your witnesses are deposed.  

If at all possible, your best witness should be offered for deposition first.  This is not always your most knowledgeable witness. Instead, your best witness is the one you have determined to be best equipped to handle questions under pressure, particularly ones that you may not have thought of prior to the deposition.   By the time this deposition is finished, you as the lawyer should know 95% of your opponent’s case and be in a good position to prepare the rest of your witnesses.

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link

Last week the First Court of Appeals in Houston issued a writ of mandamus directing the judge in the BP case to withdraw her order allowing for the live broadcast of the BP trial.   www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp  Here is a link to the opinion.   Although the issue is moot at this point because of the settlement of the entire case, the current rules make it difficult for a civil trial in Texas to be televised. Photographing and broadcasting of court proceedings is governed by Rule of Civil Procedure 18c, which provides:

A trial court may permit broadcasting, televising, recording, or photographing of proceedings in the courtroom only in the following circumstances:

(a) in accordance with guidelines promulgated by the Supreme Court for civil cases, or

(b) when broadcasting, televising, recording, or photographing will not unduly distract participants or impair the dignity of the proceedings and the parties have consented, and consent to being depicted or recorded is obtained from each witness whose testimony will be broadcast, televised, or photographed, or

(c) the broadcasting, televising, recording, or photographing of investiture, or ceremonial proceedings.

Because there are currently no guidelines provided by the Supreme Court for the broadcasting of civil trials, section (b) provides the only basis under which a trial may be broadcast.  This provision requires the consent of both parties.  In addition, it requires that each witness who is to be photographed or broadcast must also give consent.   Under these rules, it is virtually impossible to broadcast civil cases unless local rules have been adopted and approved by the Supreme Court that change these conditions.  In Harris County, such local rules have been adopted and approved. These rules allow the trial judge broad discretion to allow the broadast of a civil trial.  A link to the Electronic Media Local Rules of Harris County can be found here.  www.justex.net/courts/civil/ElectronicMediaRules.aspx

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Over the last several months, most lawyers, clients and insurance adjusters I have talked to have indicated that in their opinion there are fewer cases being filed today in the Texas courts.  This is what would be expected since (1) we have had sweeping tort reform legislation in this State; (2) our Supreme Court is the most conservative it has been at any time in the last 20 years; and (3) juries in Harris County, Texas have become so defense oriented that it is often difficult to empanel a jury that will award medical expenses to the Plaintiff, much less in tangible damages. 

However, in spite of this, case filings have remained fairly constant.  Below is a table of personal injury case filings for Harris County, Texas since 2001.   This information was obtained from theTexas Office on Court Administration.  While there are some variations, new case filings since tort reform in both the motor vehicle category and non-motor vehicle category are as high, if not higher than they were in 2001 prior to the tort reform legislation of 2003.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Historically, risk managers and general counsel shudder at the thought of being sued in a State Court in Texas.  Images of huge verdicts and punitive damages have caused more than one general counsel to develop an ulcer over Texas litigation.   However, the current litigation climate in Texas is more favorable for defendants than it has ever been in the last twenty years. The 2005 Vioxx trial and the more recent litigation over the BP plant explosion notwithstanding, here is our countdown of the five reasons that now is the best time to try a case in Texas if you are a defendant in one of the major metropolitan areas:

5.         Comprehensive tort reform legislation that greatly limits the ability to make a big strike, including:

• Restrictions on joint and several liability;
• Ability to name responsible third parties including immune employers and governmental entities;
• Restrictive standards and a higher burden of proof for punitive damages;
• Punitive damage caps;
• Limits on the recovery of medical expenses to the amounts paid or incurred;
• Earning capacity recoveries limited to after tax amounts.

• Email This
• Print
• Comments
• Trackbacks
• Share Link