The Nelson Law Firm Blog

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. 

When ‘Liking’ a Brand Online Voids the Right to Sue

NY Times by Stephanie Strom

General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website to alert consumers that they give up their right to sue the company if they download coupons, “join” it in online communities like Facebook, enter a company-sponsored sweepstakes or contest or interact with it in a variety of other ways.

Like Justice for Chocolate

Like Justice for Chocolate was the 2007 YouTube Contest Winner from the State Bar of Texas. 

Powerful. 

Abbott Faces Questions On Turnabout and Fair Play

Texas Tribune by Jay Root

When Greg Abbott’s spine was crushed by a falling oak tree in 1984 he had no health insurance, no paycheck and no feeling in his legs.

But he had a good lawyer and, back then, access to a civil justice system that was generally hospitable toward plaintiffs. So Abbott did what many people would do in his situation: he sued.

Nearly 30 years later, as Texas attorney general and the leading candidate for governor, Abbott is facing new questions about the multimillion-dollar settlement he was awarded and about his advocacy of laws that critics say have tilted the judicial scales toward civil defendants.

Those critics, generally Democrats who oppose the Republican-backed lawsuit curbs, say the policies Abbott has fiercely promoted over his career as a judge and elected official make it virtually impossible for a plaintiff to win the kind of award he got.

“You would think that a young man, at the start of his career, crippled by an injury, would want to make sure that others that may have the misfortune to follow in his footsteps would ensure that those people had the opportunity to be compensated for their injuries in the same way he was,” said Tommy Fibich, a Democratic donor and personal injury lawyer. “He instead closed the door because that would help him get re-elected.”

Read the rest of the article. 

 

David Schleicher, Is legislating from the judicial bench suddenly acceptable?

Waco Tribune-Herald Opinion by David Schleicher

A great opinion column from my law school classmate on judicial activism:

Imagine you are a U.S. Supreme Court justice ruling on a law outlawing homosexual conduct. Do you uphold the law because such matters are better left to the discretion of legislatures? Or find the law an unconstitutional interference with liberty and an invasion of the right to privacy? Justice Antonin Scalia was on the losing side in that 2003 case and displeased with what he saw as the majority’s judicial activism.

Scalia wrote that our system was designed so the people (through their elected officials) made such calls instead of having judgments “imposed by a governing caste that knows best.” In other words, since federal judges are not elected, they should not be legislating from the bench. In a close call, they should trust the judgment of those who are elected, even if the judges might have made a different law had they been serving in a state legislature or in Congress. Chief Justice John Roberts has put it this way: “My job is to call balls and strikes and not to pitch or bat.”

Many were stunned that Chief Justice Roberts — widely regarded as very conservative — stood by this principle even though it meant upholding much of the Obamacare law in a 2012 decision. He wrote for the majority in concluding that the health insurance mandate was constitutional because it was done through a tax on those who opted out: “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

His approach was in line with the 2008 national Republican Party platform describing “judicial activism” as a “grave threat,” with “unaccountable federal judges” “usurping democracy,” “ignoring the Constitution” and “imposing their personal opinions upon the public.”

Different view

Back to 2013. The Supreme Court is again facing a question of whether a law is unconstitutional. This time it’s the pre-clearance provision of the Voting Rights Act of 1965, which requires certain parts of the country to get advance approval from the U.S. Department of Justice for even what may seem to be minor changes in voting practices such as combining polling locations. Great progress has been made from the days when different standards were openly applied to those seeking to vote, based entirely on the color of their skin. The law has continued to be re-enacted, most recently in 2006 under President George W. Bush, set to endure for the next 25 years. Congress held numerous hearings and entered findings that the law was still justified by examples of voting rights being hindered on the basis of race and color.

The law originally passed with roughly 20 percent of Congress against it. This was at a period in history when a Southern senator would not hesitate to publicly condemn the Civil Rights Act from the prior year as something to be resisted “to the bitter end” for encouraging “social equality and the intermingling” of the races. But by the time of the 2006 vote, as Justice Scalia noted in recent oral arguments, “not a single vote in the Senate (was) against it. And the House is pretty much the same.”

However, just a few years later, Shelby County, Alabama, now argues the time for treating Southern states more strictly than Northern ones has passed — that it was an unconstitutional federal infringement on states rights to require that some states undergo pre-clearance when the blatant racism once shown by election officials is a relic of the past.

2 camps

As often happens, the justices split into two camps, one arguing that deference should be shown to Congress in coming up with the (admittedly imperfect) solution it did. The other camp argued that the very fact Congress acted near-unanimously a few years ago was a sign it could not be trusted to have made a reasoned judgment. Right. Imagine the president or Congress disregarding unanimous Supreme Court decisions on the basis that surely the Court hadn’t put much effort into those.

One justice even had the audacity to say that “it’s a concern that this is not the kind of a questions you can leave to Congress.” This justice may have forgotten that the 15th Amendment not only outlawed denying the right to vote based on race or color, it also directed that Congress had the “power to enforce this article by appropriate legislation.” A judge who is a “constitutionalist” and who loathes judicial activism surely would not substitute his or her personal judgments for these 2006 in-depth findings of a near-unanimous Congress.

‘Grave threat’

At this point, if you’re not enough of a political junkie to have listened to the oral arguments on C-SPAN, you may well be thinking that Justice Scalia was surely up on his high horse, leading the charge against a “governing caste that knows best.” Against what Justice Roberts might call a judge who tries to bat or pitch instead of merely calling balls or strikes. Or what the 2008 Republican platform would label as the “grave threat” of “unaccountable federal judges” who “impose their personal opinions.” We might assume that Justice Scalia would be the one to demand the lawyer before the court answer: “But who gets to make that judgment really? Is it you, is it the Court or is it Congress?”

If so, you assumed wrong, forgetting that the Supreme Court is stocked entirely with humans, a species that has a very poor record of applying their principles when they lead to an outcome they want to avoid. Even when Congress almost unanimously agrees on the best means of achieving a goal it is specifically authorized by the Constitution to undertake, that is not enough to keep some judges from assuming they know better than you and your elected officials.

Justice Scalia spoke with disdain of the motives of Congress, implying the name of the legislation (“Voting Rights Act”) would leave them too cowardly to vote against it. But the very next day the Texas congressional delegation cast more “no” votes than any other state’s lawmakers against reauthorization of a law named for preventing “Violence Against Women.”

“Legislating from the bench,” Scalia teaches us, is only offensive when it means overturning something as run of the mill as, say, a law permitting the arrest of someone for being gay.

David R. Schleicher is a local lawyer, political blogger and chairman of the McLennan County Democratic Party.

 

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

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.  

 

 

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

Saving Texas history, one ancient legal document at a time

Texas Monthly by Michael Hall

Houston attorney Bill Kroger and state Supreme Court chief justice Wallace Jefferson are on a mission: to persuade hundreds of counties to prevent thousands of courthouse papers from being lost to neglect. Can they save Texas history, one ancient legal document at a time?

Lack of representation in civil court = legal crisis

New York Times Editorial criticizing the lack of legal representatives for a majority of individuals in deportation proceedings made an interesting observation about the lack of representation in other civil areas:

These problems are but a subset of a much broader legal services crisis that is also forcing a soaring number of Americans to go to court without a lawyer in civil matters like home foreclosures, evictions and child support cases. Perversely, Congress has responded to the growing need for legal help by slashing the budget of the federal Legal Services Corporation. Government-financed legal assistance for people fighting deportation is nowhere on the radar.