The Nelson Law Firm Blog

Kilgore ISD settles case of gay teenager "outed" by coaches

KYTX by Kevin Boyce

Excellent pro bono representation by attorneys Paula Hinton (Houston), Jennifer Doan (Texarkana) and the Texas Civil Rights Project (TRCP). 

Royal Furgeson: Federal court vacancies imperil Texas justice

Austin American-Statesman Opinion by Royal Furgeson

Retired Federal Judge and Dean of the University of North Texas-Dallas School of Law compares the current vacancies in the Texas Federal courts to the Mavericks or Spurs playing games with only 4 players on the court. 

Road to the courthouse could prove challenging for West residents

The Waco Tribune-Herald by Tommy Witherspoon 

About 200 plaintiffs, including the city of West, various businesses and homeowners, have filed lawsuits in the wake of the explosion. Because West Fertilizer Co. owners Donald and Wanda Adair carried only $1 million in liability insurance on the plant, plaintiffs also have listed ammonium nitrate manufacturers as defendants.

The Courthouse Drive: worth getting on I-35 to see

McLennan County Courthouse - worth getting on I-35 to see. 

Texas Monthly -- Miles and Miles of Texas

The 
Courthouse 
Drive

For more than a century, county courthouses have defined their communities—and created a sense of rivalry between nearby cities. And few architects have been as closely associated with the buildings as James Riely Gordon, who designed at least fifteen across the state, primarily in the Romanesque Revival style. Though we typically avoid I-35, the interstate makes it easy to see examples of his legacy in Waxahachie, Waco, New Braunfels, and San Antonio before heading east to Victoria.
START: Waxahachie
END: Victoria
DIRECTIONS: From Waxahachie, take I-35 south through Waco, New Braunfels, and San Antonio. Then proceed east on U.S. 87 to Victoria.
DISTANCE: 357 miles

Federal jury awards $2.25 million to widow of inmate who died at Brooks County Detention Center

Not an immigration case, but a successful wrongful death case against a for-profit prison in Texas.

Corpus Christi Caller by Steve Alford

FALFURRIAS — A Corpus Christi jury returned a verdict Wednesday siding with the widow of a man who died in January 2009 at the Brooks County Detention Center in Falfurrias.

via sinelson.typepad.com

Statesman Editorial Board Commentary: Tort reform's slight impact no shock

Statesman.com

It shouldn't have surprised anyone that a new study found that tort reform didn't lower health care costs in Texas, at least health care costs associated with Medicare. To a large degree, tort reform is an article of political faith empirically averse to contrary facts.

As the American-Statesman's Mary Ann Roser reported this week, a study by University of Texas law professor Charles Silver and colleagues from Northwestern University and the University of Illinois looked at Medicare spending in Texas between 2002 and 2009 and found no evidence that capping medical malpractice payouts led to lower health care costs.

In 2003, Texas voters narrowly amended the state Constitution — 51.1 percent to 48.9 percent — to limit payouts in medical malpractice lawsuits. The vote was held on a Saturday in mid-September rather than the usual Tuesday in November because tort reform's supporters wanted to guarantee a low turnout. It was a shameful but smart political move: Low turnout favored tort reform's passage.

Proposition 12, as the proposed amendment was known, put a $750,000 total cap on the noneconomic damages, such as pain and suffering, a jury can award a victim of medical negligence: $250,000 maximum from a doctor and $500,000 from a hospital or other medical institution. It did not limit actual damages — payments to cover lost wages, medical bills, disability and so on.

We tepidly supported the proposition. After all, voters were being asked to limit their rights should they fall victim to medical error. Still, reservations noted, we crossed our fingers in the hopes the amendment would reduce medical malpractice insurance premiums.

Supporters of the amendment claimed that limiting jury awards in medical malpractice lawsuits would reduce the number of suits, cut the cost of medical malpractice insurance for doctors, increase the number of doctors practicing in Texas and lower costs for patients.

The number of malpractice suits and payouts did decrease — with a $750,000 cap making litigation cost-prohibitive, how could it not? Supporters also say tort reform helped bring more doctors to Texas.

Jon Opelt, executive director of Texas Alliance for Patient Access, told Roser that tort reform can be credited for bringing nearly 5,000 more doctors to Texas than can be accounted for by population growth. Another study by Silver's group, as yet unpublished, challenges those claims, Roser reported. The number of doctors who treat patients — Opelt's figure, Silver says, includes administrators, teachers and physicians who don't directly deal with patients — grew more slowly after tort reform than it did before.

Tort reform may have increased the number of doctors in two high-risk areas: obstetrics and emergency room medicine. The lack of obstetricians in South Texas, allegedly driven out by generous jury awards that caused astronomical insurance rates in that part of the state, was a major argument used to win tort reform, though the number of obstetricians in other parts of the state appeared unrelated to insurance rates.

Silver's study was limited to looking at Medicare spending. It's narrow time frame also only includes reform's first few years.

The study fails to surprise because in the years and months leading up to 2003's constitutional vote, there were numerous reports contradicting claims of an out-of-control civil justice system. A 2002 survey by the State Board of Medical Examiners, which licenses Texas' physicians, showed that malpractice claims in Texas had reached a four-year low.

A summer 2003 report by the General Accounting Office, the investigative arm of Congress, found claims that patients in other states were losing access to health care because high malpractice premiums were forcing doctors to leave their practices to be either exaggerated or outright false.

There were other reports showing that many malpractice claims resulted in no compensation paid, that malpractice litigation wasn't a significant factor in overall health care costs, and that malpractice claims and awards had little to do with the rise in medical malpractice insurance rates. Supporters of tort reform never were inclined toward investigating the insurance industry to see what responsibility changes in the market bore for higher rates.

Supporters of tort reform often answered these studies with anecdotal evidence and appeals to "common sense." It was hard for critics of tort reform to counter an innate dislike of so-called trial lawyers, the politically charged semantics of "frivolous lawsuits" and the political exploitation of ridiculously high jury awards — though rare, such awards always drew widespread media attention and resonated with voters.

Silver told Roser he was "very pessimistic" policymakers will heed the study. His pessimism is justified. The Texas Legislature will not revisit tort reform anytime soon, and Gov. Rick Perry's office brushed off Silver's study by calling tort reform "a huge success."

The idea of national limits on malpractice damages percolates in Congress. If the issue rises above a simmer, don't expect Silver's study and others like it — past, present or future — to change the convictions of tort reformers one bit; if anything, such studies might just deepen them.

 

Investigation: Tort reforms limit options for some Texans

KDFW by Becky Oliver

"Proposition 12 protects your family," said Anita Perry in a television commercial.

But did it? The reform put caps of $250,000 on non-economic damages like pain and suffering. That means people who don't work, like the elderly, babies and stay-at-home parents are limited even if they win a malpractice lawsuit.

Perry called it a win for Texans and during his presidential run he claimed much-needed doctors were coming to Texas.

"This last year, 21,000 more physicians [are] practicing medicine in Texas because they know they can come there and do what they love and not be sued frivolously," Perry said.

But within days Politifact, a government fact checking project run by the Tampa Bay Times, reported Perry was "flat out wrong." It said his numbers were off by almost 8,000.

With the courthouse doors being closed off to so many, Fox 4 questioned who are the winners and the losers.

* * *

"Someone needs to stand up and say this has got to stop," said Bill Putnam.

Every Sunday for the past three years, Bill and Kelly Putnam of Frisco take to the streets in front of the Signature Point Nursing Home.

They say a nurse forced medicine into Kelly's dad's feeding tube using a syringe. The liquid went into his lungs. The state licensing authority found "no deficiencies" and the home says, "No evidence to substantiate the Putnam's claim."

But the Texas Board of Nursing found the nurse involved committed numerous medical errors and the home directed the nurse to change her medical records which may have been intended to "deceive or mislead." The home disagrees with the nursing board's findings.

"The people we were supposed to be protecting are the ones we've thrown under the bus," said Bill Putnam.

The Putnams don't believe the value of a human life should be based on a paycheck.

"We threw legitimate lawsuits out the door," Bill Putnam continued.

"It is holding a person accountable for their actions," said Kelly Putnam. "We never had a clue that tort reform would have an impact on our life like this. It can happen to anybody." 

The Bernals struggle to get the best care for their daughter Kaylee. After complications at birth, she cannot walk or talk. Now they have to depend on Medicaid so taxpayers foot the bill.

"All we are trying to do is make the best of a bad situation with our daughter," said Robert Bernal. "We should leave it up to a jury to make these decisions."

And the memory of baby Ava and the pain of losing her will live with the Dickersons forever. The Texas Board of Medical Examiners found their doctor, who is a specialist, "failed to recognize and diagnose" their baby's congenital diaphragmatic hernia during an ultrasound.

That failure "left the [mother] with no opportunity to seek treatment for the fetus." The board fined him and ordered him to get more training. For the Dickersons, it felt like a slap on the wrist.

"We feel like it is going to be overlooked," said Jennifer Dickerson. "It has completely changed our lives."

The Dickersons didn't just lose their daughter; they feel like the court house doors were shut in their face.

"Like the insurance companies rule the world," said Todd Dickerson. "They won, and they don't care," added Jennifer Dickerson.

Kelly and Bill Putnam are not just speaking out, they are organizing. They are building a website and say they will continue to picket every Sunday, the day Kelly's dad died.  

 

 

BP settlement agreements review

Some of our friends are reviewing the BP settlement agreements due to the catastrophic oil spill last year.  The class settlement agreements between BP and the Plaintiff's Steering Committee (PSC) for economic/property loss and personal injury claims were submitted to the court for preliminary approval on April 25. It is not too late to submit claims that fall in or out of the class settlement. We expect the class settlement claims center to open approximately May 25 and claims can be made under the settlement through at least April 22, 2014. 

If you have a claim, we’d be happy to send you to one of our friends. Examples of claims include:

• Tourism Industry; hotels, restaurants, retail stores and others.
• Seafood Industry; any company or individual involved in any Gulf seafood --shrimp, oyster, crab and fin fish.
• Commercial fishermen.
• Charter fishermen.
• Businesses that failed due to the spill.
• Start up businesses that suffered during the spill.
• Persons who catch and/or barter Gulf seafood to eat (subsistence).
• Any business that supplied or was dependent on the Gulf forincome.
• Wage earners.
• Property owners along the coastline.
• Personal injury claims.
• Claims will also be reviewed involving Banks and Developers, although they are not specifically included in this settlement agreement.

Time to rethink widely abused civil asset forfeiture laws

Houston Chronicle by Larry Salzman

A U.S. District Court judge this month issued a stunning rebuke to Homeland Security agents in Houston. According to the opinion by Judge Lynn Hughes, the agents manipulated the confusion of an innocent family so they could wrongfully take "all their money" - more than $35,000 - in order to "earn credit with their agency" and supervisors. The judge ordered the money returned to the family, concluding that federal officials "played agency games, abused the people they are to serve, and violated their oaths to support the Constitution."

How were the agents able to take this money in the first place? Through a process called civil asset forfeiture, where law enforcement agencies can take and sell property without so much as charging the owner with a crime - and then profit from the proceeds. And the problem isn't limited to federal officials; Texas has some of the worst civil forfeiture laws in the entire country.

* * *

Consider the facts of the case decided in Houston. Kyle and Berekti Jones were headed to Ethiopia with their infant daughter to visit Berekti Jones' homeland and family for a two-month stay. The Ethiopian economy runs largely on cash, so they brought all they would need - approximately $35,000.

However, it is illegal to carry more than $10,000 in cash overseas without informing authorities in the United States. So when they arrived at the airport they told Homeland Security officers they had a lot of cash and cooperated with officers searching their baggage. When one officer asked how much, Jones said he wasn't sure but would "guess" it was about $20,000. The officer wrote it down on the form and insisted Jones sign it immediately, which he did.

The family was moved to another room, detained and searched further, causing them to miss their flight. A little more than $15,000 in cash was found, along with another $20,000, not in cash but travelers' checks, spread out among their pieces of luggage. The family hid none of this. They cooperated fully, pointing out where the money was located. But the officers used Jones' admitted guess to accuse the family of a deliberate failure to report, and the officers demanded the entire amount be forfeited.

Getting their money back took an expensive federal lawsuit - the family has requested reimbursement of $37,000 in attorney fees and costs. The government would not return the stolen property until forced to by Judge Hughes.

* * *

Simply put, civil forfeiture laws undermine fair and impartial law enforcement.

Asset forfeiture laws should not be used to take property from innocent owners; all individuals should be treated as innocent until proven guilty, and federal agencies should not be able to fund their own budgets by taking property directly from citizens.

 Salzman is an attorney with the Institute for Justice, a legal advocate for private property rights. 

 

 

 

Rise of the Legal Machine: Lawyers are being replaced by algorithms

The justice system works swiftly in the future now that they've abolished all lawyers. --Dr. Emmett Brown, Back to the Future II (year 2015).

Lawyers are being replaced by algorithms.

You shouldn’t be surprised. Juries are being shuttled aside in favor of special masters, arbitrators and judges and experts.

So now lawyers are being replaced by algorithms. That’s because many believe the law itself is an algorithm.

An algorithm is basic math. An algorithm is a step-by-step procedure for calculation. Laws are a system of rules and guidelines. Thus, the math plus law is hurtling toward the world of automated reasoning.

The view held by many is the rule of law is the rule of reason and logic. Logic also is defined as the science of judgment.

Because algorithms is a mathematical formula for taking a finite list of “well-defined” instructions for calculating a function, many believe that taking facts and applying those facts to software programs that execute a legally defined calculation will arrive at the appropriate judgment.

The law itself is the study and practice of algorithms. Statutes are drafted, sometimes inelegantly to apply to certain facts. The common law subsists of elements that facts must apply. Regulations are yet more equations to apply facts to instructions. Patent law and copyright law are merging because many patents these days are merely protecting sets of precisely defined instructions.

Early on, some familiar with programming and computer software saw this similarity. That gave rise to the Pro-Docs and Legal Zooms of the world. Forms used and reviewed and altered by lawyers serve a great purpose. Forms filled out without lawyers for a few specific items make sense, but many times leads to heartache and more expensive legal fees.

Now the Texas Supreme Court wants forms to replace many functions served by family lawyers. That should concern trial lawyers because if successful, don’t think this will be limited to family lawyers. Despite the emotional states of clients, the numerous decades of family law written into statute and created by case law in this state, the Court in its wisdom realizes that who gets the kids, and who gets the plates and who gets the debts and who gets the money all boils down to equations that run to their end.

That is the problem with forms being promulgated as a replacement for lawyers. Forms actually are basic algorithms. Forms, like algorithms, are made from a set of rules that precisely (sometimes imprecisely) define a sequence of operations.

The reasoning is that you don’t need a lawyer to fill out forms. You take the facts, and keyboard those facts into the blanks. These forms, devised by those so much cleverer than us, will then create the legal version of the Scantron, the keypunch card, the legal equation that delivers the appropriate judgment.

I defy that view. I label it the Stone Wall from Dostoevsky’s Notes From The Underground. I defy that human knowledge and human values can be fully expressed with mathematical notation and blanks in a form. I defy that forms can hold the force of the spirit of the law. I defy that forms and software can hold even the letter of the law for long, for the law is made of language within constant linguistic flux.

I defy that facts can be distilled by people unfamiliar with law and emotionally caught up in their own misery and angst can fill out forms. How the facts are defined and inputted will remain the key. Facts twist and turn from perception to perception to perception. My evidence professor tried to hammer this into my slow, thick skull: “Mr. Nelson, I’ll give you the law, and you give me the facts, and I’ll beat you every time.”

My defiance goes further than not being able to hold onto facts. I defy that forms can even hold the law except as a crude, decaying pattern as toxic as radiation from a quake-stricken nuclear plant.

The difference between forms and lawyers is that lawyers originally were human, and most lawyers can, at least dimly, remember when they were human. Devise a mathematical input for discretion. Devise a mathematical input for mercy. Devise a form for that allows for the growth of understanding and doesn’t freeze the status quo in times quickly bygone.

Didn’t we learn anything from the experiment with sentencing guidelines that were not guidelines, but mandatory? To seek absolutes in an environment that constantly changes and with human minds that cannot understand the consequences of absolutes is to give away your humanity to a machine.

First they came for the trial lawyers. Now they’re coming for the family lawyers. Yes, I fear one day your judge will sound like Siri. I fear one day your judge will be Siri.

Originally published in the Lonestar Business Blog - by Alan Nelson