Changing Minds, One at a Time

A grown man sat in my office last week and cried like a baby. He had buried his wife and their first child less than a month earlier, both the victims of medical negligence. He came to us for help, wanting answers to why his young, healthy wife and his unborn son are now gone. He struggled to simply breathe. I thought of my wife and my two girls and I cried, too.

What do you say to a fellow like this? I confess that I was at a loss. Once we plaintiff lawyers could at least offer some comfort, inadequate as it was, that the civil justice system might provide answers and maybe, just maybe, some attempt at compensation. Now I had to explain that politicians in Austin have already decided what his loss is worth. I had to tell him that because his beautiful wife and the son that was to bear his name were the victims of medical negligence, the courthouse doors had been closed by the very people who represent his family in the Capitol.

Do you know what was most frustrating about this scenario? This man had not voted on Proposition 12 and had no idea of the damage that it did to the Texas Constitution. Before this tragedy befell him, he was one of the thousands of uninformed, misinformed or indifferent Texans who did not understand what HB 4 and Proposition 12 really did to their rights. He knows the truth now, unfortunately.

So what can we trial lawyers do about this ? Speak up. Educate others. Make sure your families, friends and clients are registered to vote and that they do vote. Get involved with your elected representatives. Let them know that we will hold them accountable for the promises made when they stripped away our rights. When you turn down cases that are no longer economical due to "tort reform," make sure the potential clients know how to contact their senators and representatives in Austin, because odds are they voted in favor of HB 4.

And above all, keep fighting. Fight for victims. Fight for justice. Fight the negative stereotypes about trial lawyers and the "tort reform" propaganda. Fight for what is right and never, ever give up.

Arkansas Bus Wreck Injures 40, Kills 3

Terrible tragedy on I40 in Arkansas.

(CNN) -- A bus hopped a highway median and crashed into a pickup truck before being broadsided by an 18-wheeler, Arkansas police said, killing the pickup driver and two bus riders.

Forty people were hurt in Sunday night's crash, which shut down a 13-mile stretch of Interstate-40 east of Forrest City, Arkansas, said state police spokesman Bill Sadler.

The bus was westbound en route from Chicago, Illinois, to Dallas, Texas.

Truck Wreck in Bedford

As if 183 weren't bad enough already.

For those of you stuck on it yesterday, here's why.

Gas Well Explosion in Alvarado

Story here.

With all the wells around these parts, it's a wonder there haven't been more tragedies. Fortunately for these three workers, it sounds like they'll be okay.

Texas House District 97 Voters, Dan Barrett's Your Man

Okay, folks...shameless plug for a friend of mine.

Dan Barrett is in the run-off for District 97 (SW Fort Worth, Benbrook, Edgecliff Village, Crowley) to replace former Rep. Anna Mowery.

I know Dan. He is a man of integrity, intelligence and determination. He will show thoughtful independence and principled leadership in Austin.

His opponent has pledged blind support to Der Speaker Craddick (he of "absolute power") and unwavering support of school vouchers.

Folks in District 97, if you want a representative who will speak up for your community, your neighbors, your schools and this fair city, vote for Dan Barrett on Saturday, December 18th.

Check out Dan's website here.

Professor Laird's Playbook - Using Video Depositions at Trial

More and more these days, witnesses are presented at trial through video deposition excerpts, either by necessity because they are unavailable at trial (out-of-state witnesses, treating physicians, etc.) or by choice (to streamline the case or in situations where an adverse witness’s testimony will never get better than it was at deposition).

Some tips:

• Keep the video edits as short as possible, 15 minutes or less if possible. Don’t just pop the entire video in and hit “play.”
• Hire a good video editor. Get the edits on VHS and DVD formats.
• Have a copy of the edits and a written page/line designation to give to the court reporter for the record. It will save him or her from having to record the testimony at trial.
• Ask the judge in pretrial to instruct the jury that they will see and hear video deposition testimony, which is meant to speed the trial and which is to be given the same weight as if the witness was live at trial.
• Ask the judge to point out that the lawyers have edited the videos with the judge’s approval (here in Tarrant County, at least, the parties have to exchange designate portions of the depos they wish to use at trial and the court rules on objections to those designations prior to trial). Often the editing causes the image on the screen to jump around a bit or cut off a word or two. I had one juror tell me after trial that this made her suspicious that the attorneys were trying to pull a fast one on the jury by splicing the testimony. Get the judge to explain this before your jurors draw that conclusion in their minds!
• Think about the timing of showing your video depos. Consider interspersing them in between live witnesses. Be careful about showing them right after lunch or at the end of the day.
• As much as possible, coordinate your video edits with those to be shown by the other side. Jurors don’t like hearing the same testimony again when the defense offers their tender right after the plaintiff shows his.
• When taking the deposition, keep in mind that the jury may later see the video and they may compare your dress and demeanor during deposition with that at trial. For example, if you tone down your usual jewelry when you’re in trial, don’t forget to take off that flashy watch during the depo. Don’t be a jerk in deposition and then a choirboy in trial.
• In a lengthy trial, take a still shot of the witness’s face from the video depo and blow it up or show it on an ELMO during closing argument to remind the jurors of the witness.

Clearly, there is no substitute for a live witness. However, when done right, video depos can be effective and time-saving, so long as they are not too long and are not overused.

Unfrozen Caveman Lawyer Revisited

A buddy reminded me of another great closing argument delivered by Unfrozen Caveman Lawyer. Pure gold.

"Ladies and gentlemen of the jury, I'm just a caveman. I fell on some ice and was later thawed by some of your scientists. Your world frightens and confuses me! . . . When I see my image on the security camera at the country club, I wonder, are they stealing my soul? I get so upset, I hop out of my Range Rover, and run across the fairway to the clubhouse, where I get Carlos to make me one of those martinis he's so famous for, to soothe my primitive caveman brain. But whatever world you're from, I do know one thing--in the 20 years from March 22, 1972, when he first ordered that extra nicotine be put into his product, until February 25, 1992, when he issued an interoffice memorandum stopping the addition of that nicotine, my client was legally insane."

Heard Gets Life in Prison

Jurors just returned a sentence of life in prison rather than the death penalty for Lance Heard, who was convicted earlier this week of capital murder in the shooting death of Fort Worth police officer Hank Nava.

I don't practice criminal law and I don't weigh in with opinions on most criminal trials because their courtrooms are not mine. But I've followed this murder trial pretty closely because I have friends on all sides of that case, including the police officer who eulogized Nava at his funeral and the lead defense attorney. Talk about being at opposite ends of the spectrum.

Regardless of one's views on criminal defense lawyers, or the death penalty, or the justice system, or the police, or whatever, this was a fascinating, hard-fought trial. My hat goes off to the attorneys, the judge, and especially the jurors.

Unfrozen Caveman Lawyer

Man, I loved Phil Hartman.

"Ladies and gentlemen of the jury, I'm just a caveman. I fell on some ice and later got thawed out by some of your scientists. Your world frightens and confuses me! Sometimes the honking horns of your traffic make me want to get out of my BMW.. and run off into the hills, or wherever.. Sometimes when I get a message on my fax machine, I wonder: 'Did little demons get inside and type it?' I don't know! My primitive mind can't grasp these concepts. But there is one thing I do know - when a man like my client slips and falls on a sidewalk in front of a public library, then he is entitled to no less than two million in compensatory damages, and two million in punitive damages. Thank you."

Another child disembowled by a pool drain

This sort of story scares me to death.

MINNEAPOLIS — The family of a 6-year-old girl who lost part of her intestinal tract after sitting on an open drain in a wading pool is suing the pool manufacturer and the country club where the accident happened.

Abigail Taylor faces a small intestine transplant that will keep her hospitalized for six months, said family attorney Robert Bennett. Her lifetime medical expenses could total $30 million and the country club carries only $6 million in liability insurance, he said.

Edit. This poor child's intestines were sucked out of her rectum by an uncovered pool drain, a danger known within the industry for years (Sen. John Edwards, in his previous life as a trial lawyer, handled a similar case in North Carolina some time ago). To the "tort deformers" out there, I say look that little girl and her parents in their eyes and tell them her case is frivolous.

Each Year, 30,000 Truckers Test Positive for Drugs/Alcohol

And those are just the ones who get caught.

I've said it before and I'll say it again: Good truck drivers are among the safest, most-professional, most-skilled drivers on the roads today, and my hat is off to them for doing a tough job well. But the bad apples among them are getting away with murder, thanks to lax oversight, over-burdened enforcement personnel, carrier indifference, and economic pressure.

DFW is one of the largest inland ports of commerce in America, with thousands of trucks plying our roads every hour. A meth-head driving a 40-ton tractor/trailer can really ruin your day, my friends.

HOW ARBITRATION STEALS YOUR DAY IN COURT

From Bob Sullivan's "Red Tape Chronicles."

If I told you there was a courtroom in America where consumers lose lawsuits to businesses 94 percent of the time, and there is no chance to appeal, you'd probably never want to go there.
But here's the problem: You don't have a choice, thanks to small print.

While you may have never heard of binding mandatory arbitration, it is part of nearly every significant transaction you engage in now. It's also become a controversial battleground over consumer protection in America, and on Thursday Congress held hearings debating legislation that would largely nullify many arbitration agreements. The hearing came on the heels of a new report that claims to offer a first-ever glimpse into a world that some say has turned Americans’ Constitutional rights on their head.

Story here.

Ed. The really crazy thing is that the banks and other institutions who enforce arbitration clauses when consumers sue them are the same banks and other institutions who are clogging our courts with creditors' collection suits. That ain't right. See my previous blog on 8/31/07, "Debt Collection Suits on The Rise."

Tort reform not working? Gosh, who knew?

Good article in the Texas Observer dispels one of the big myths foisted upon Texans by the insurance industry in pushing "tort reform" back in 2003.

Quote: "Proposition 12, and the far-reaching changes in Texas civil law that it dragged behind it, was built on a foundation of mistruths and sketchy assumptions. The number of doctors in the state was not falling, it was steadily rising, according to Texas Medical Board data. There was little statistical evidence showing that frivolous lawsuits were a significant force driving increases in malpractice premiums. Perhaps the most insidious sleight of hand employed by Proposition 12 backers was their repeated insistence that medical malpractice insurance rates were somehow responsible for doctor shortages in rural Texas...The campaign’s promise, that tort reform would cause doctors to begin returning to the state’s sparsely populated regions, has now been tested for four years. It has not proven to be true."

In Texas, this is worth $250,000

Because of a mislabeled tissue sample that led to a misdiagnosis, Darrie Eason of Long Island, New York had both of her breasts removed to save her from a cancer that she never had. Story here.

Thanks to insurance industry "tort deform" that swept through Texas in 2003, non-economic damages in a medical malpractice suit like Ms. Eason's would be capped at $250,000. That's right: All the pain and suffering, all the disfigurement, all the impairment, all the damage to her marriage, everything, is worth $250,000 tops, thanks to the 2003 Texas Legislature.

Think this is a frivolous lawsuit?

'Dead' Man Wakes Up Under Autopsy Knife

A Venezuelan man who had been declared dead woke up in the morgue in excruciating pain after medical examiners began their autopsy.

Carlos Camejo, 33, was declared dead after a highway accident and taken to the morgue, where examiners began an autopsy only to realize something was amiss when he started bleeding. They quickly sought to stitch up the incision on his face.

"I woke up because the pain was unbearable," Camejo said, according to a report on Friday in leading local newspaper El Universal.

His grieving wife turned up at the morgue to identify her husband's body only to find him moved into a corridor -- and alive.

Story here.

OU fan accused of gruesome injury to man clad in UT shirt

Okay, it probably wasn't the greatest idea for this fellow to walk into a bar in Oklahoma City wearing a Longhorn t-shirt, but did he deserve to be "partially castrated" (as described on the radio, but tastefully not elaborated upon in the FWST) by a zealous Sooner fan?

"I've actually heard callers on talk radio say that this guy deserved what he got for wearing a Texas T-shirt into a bar in the middle of Sooner country," said Irven Box, an attorney in this city 20 miles from OU's campus in Norman.

C'mon, people.

Good Hunt Last Saturday

Goooood dove hunting last weekend in Coleman. There's a guide service out there called the Coleman County Bird Hunting Co. and those fellows know how to do it right. Great guys, and their food and lodging is fantastic. Give David a call at 325-625-5352 and plan your next hunt out there.

Quail season promises to be great this year. I have heard and seen more quail while dove hunting around Coleman and Throckmorton than I can recall seeing in many years.

Grilled Dove Rub Recipe from Bob Hood:

2 tablespoons brown sugar
1 tablespoon black pepper
1 tablespoon chili powder
1 tablespoon salt
2 tablespoons paprika
1 teaspoon ground cumin
2 teaspoons granulated onion
2 teaspoons garlic powder
Combine all ingredients in a bowl and mix thoroughly. Makes enough for at least a dozen doves. Rub both sides of each dove with the mixture and refrigerate doves for one hour before grilling.

Note to Self: Don't Fly Nepal Airlines

KATHMANDU - Officials at Nepal's state-run airline have sacrificed two goats to appease Akash Bhairab, the Hindu sky god, following technical problems with one of its Boeing 757 aircraft, the carrier said Tuesday. Nepal Airlines, which has two Boeing aircraft, has had to suspend some services in recent weeks due to the problem. The goats were sacrificed in front of the troublesome aircraft Sunday at Nepal's only international airport in Kathmandu in accordance with Hindu traditions, an official said.

Cheaper than paying a mechanic, I guess.

How do you stand out in a land with a billion people?

Radhakant Bajpai did it by growing his ear hair more than 5 inches long. Yes, that's right. Look closely. Ear hair.

Why I Hunt Birds

Deer hunting could be a dangerous endeavor for men with heart disease or risk factors for it, research findings suggest. In a study of 25 middle-aged male deer hunters, researchers found that the activities inherent to hunting -- like walking over rough terrain, shooting an animal and dragging its carcass -- sent the men's heart rates up significantly.

Fair warning, Bubba.