The Nelson Law Firm Blog

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. 

 

Lawyers advertising while they are still pulling bodies out of the rubble or before the funerals in bad taste

Waco Tribune-Herald by Tommy Witherspoon 

Alan Nelson is quoted in today's story on the law suits that have been filed and lawyer marketing related to the West fertilizer plant explosion.  

Disaster marketing

“It is called disaster marketing or cause marketing. Even if lawyers are not breaking any rules, some of the advertising while they are still pulling bodies out of the rubble or before the funerals certainly is in bad taste,” Nelson said. “It turns my stomach.”

* * *

[A]ttorneys are running newspaper, television and radio advertisements and have sent teams to West in an effort to “help the victims recover,” according to one ad from a Houston law firm that ran in Sunday’s Tribune-Herald. The ads have become so pervasive that the State Bar of Texas issued an advisory, informing the public that solicitation of a potential legal case is a crime unless the lawyer has a past or present relationship with the client.

The state bar urges those who have been illegally contacted by lawyers or their representatives to contact police or the bar.

“We are monitoring that situation as much as we can to make sure that people are not being taken advantage of,” state bar spokeswoman Kim Bueno said. “We want to make sure the advertising rules are followed carefully because we are expected to protect the public and we want to make sure lawyers are held to the highest ethical standards in Texas.”

 

 

Hoping our friends and clients from West are okay.

Waco Tribune-Herald

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

Local attorney, Susan I. Nelson, discusses current immigration issues

Here is a copy of the Q&A  article with Susan that ran in Tiempo this week: 

Tiempo: Tell us about your experience with clients and immigration issues.

Nelson:  My first encounter with immigration law was when my husband and I adopted our daughter from Russia. Although we are both lawyers, we needed help to navigate the complex immigration process. After our experience with the adoption, I started receiving calls from other attorneys and individuals who knew of my experience. I began practicing immigration law beyond pro bono cases in 2003, and it is now where I spend the majority of my time. 

I like immigration law because it allows me to help people keep their families together. Many lawyers help pick up the pieces when families fall apart, but I work to help families who want to be together stay together. I am often frustrated by the current state of the law when I see deserving people whose families are being torn apart without remedy or recourse.

Tiempo:  What is the difference between the Texas DREAM Act and the one that is being discussed in Washington?

Nelson: The Texas DREAM Act was signed into law by Governor Rick Perry in 2001 and provides that all students, regardless of immigration status, may qualify for in-state tuition at Texas colleges or universities provided they have lived in Texas the three years leading up to high school graduation and resided in Texas the year prior to their enrollment in higher education.

The Texas Dream Act has succeeded by providing access to higher education for students who otherwise are unable to afford the increasing cost of attending college and by providing needed money to Texas colleges and universities. In the present legislature a bill has been filed that would repeal the Texas DREAM Act. Governor Perry hinted that he would veto such an attempt to repeal in-state tuition for undocumented students, but I hope that this bill will never reach his desk.

The federal DREAM Act (The Development, Relief, and Education for Alien Minors Act) was first introduced in Congress in 2001 with bipartisan support but never became the law. If enacted, it would provide a path to permanent residence for undocumented immigrants who were brought to the U.S. as children, who graduated from high school or obtained a G.E.D. in the U.S. and who have good moral character if they complete two (2) years of college or in the military.

Tiempo:  What can be expected with the political climate on immigration now that President Obama has been re-elected?

Nelson:  In recent years, attempts to fix our nation’s broken immigration laws have been hijacked by the anti-immigrant, anti-“amnesty” movement. I am hopeful there will be a change in the dynamics and an opportunity for Congress to make changes in our laws that will place the 12 million undocumented immigrants who are in the U.S. on a path to earning legal permanent residence.

Tiempo:  Could you explain in a few words the Deferred Action decision from last year?

Nelson: In June of 2012, the Obama administration announced that it would accept requests for Deferred Action for Childhood Arrivals (DACA). This initiative is designed to temporarily suspend the deportation of young people residing unlawfully in the U.S who were brought to the United States as children, are attending or have graduated from U.S. schools and who have good moral character. Young people who are approved for DACA receive an Employment Authorization for 2 years that can be renewed as long as the DACA program continues, but it does not provide a path to permanent residence for these young people.

Tiempo:   What cases have you dealt with recently regarding Deferred Action?

Nelson:  I represent a number of clients with DACA cases. In addition, I provide direction to the Baylor Law School Immigration Clinic. We assisted 120 young people to complete applications in the Fall, and plan to have another DACA Clinic this Spring. Most DACA applicants receive approvals in about 3 months.

Tiempo: What is the current status of applications for immigrants who have been victims of a crime in McLennan County?

Nelson:  In 2000, Congress created the U-Visa for victims of certain crimes in order to encourage undocumented victims to report crimes and cooperate with law enforcement agencies.

In order to apply for the U-Visa, a crime victim must first obtain a certification from a law enforcement agency, prosecutor or judge stating that they were the victim of a qualifying crime and that they cooperated with law enforcement.

There has been a problem in McLennan County in recent years. The Waco Police Department does not sign the required certifications but refers all requests to the District Attorney’s office.

District Attorney Abel Reyna has declined to sign all of the requests for certification that I submitted on behalf of crime victims, including one for a minor sexual abuse victim whose abuser is serving 35 years in prison because she and her mother came forward.

Fortunately, judges can also sign the certifications. Judge Ralph Strother recently signed the certification so that this brave young girl can apply for a U-Visa.

However, our judges cannot shoulder the entire burden. There is a need for the DA’s office and police departments to also sign the certifications, and I hope that they will reconsider their policies.

Tiempo:  What can the community do to support the DREAM Act Alliance locally?

Nelson: The Waco DREAM Act Alliance is a grassroots advocacy organization dedicated to promoting the DREAM act and immigrant rights. They meet regularly and support local DREAMers and their families. You can find them on Facebook athttp://www.facebook.com/groups/WacoDREAM/ or on-line atwww.wacodream.org.

You can also express your support for the DREAM Act and comprehensive immigration reform by contacting your congressional representatives and Senators. You can find your representative’s contact information athttp://www.house.gov/representatives/find/. Your Senators’ contact information can  be found at http://www.senate.gov/.

The Waco DREAM Act Alliance and national organization United We Dream are working to stop the deportations of family members of DACA eligible young people and U.S. Citizens. If you know of someone in deportation proceedings who fits into this category, they should complete a Case Questionnaire athttp://unitedwedream.org/end/ and contact the Waco DREAM Act Alliance. 

Tiempo:  What is the new rule that effects the way that spouses of U.S. Citizens obtain their permanent residence?

Nelson: The Obama Administration is attempting to lift the burden of our broken immigration laws by making rules that change the process but not the law.

Under current law, many immigrants who enter the country without inspection cannot apply for permanent residence (a “green card”) in the U.S., and instead must finish the immigration process abroad.  Unfortunately, for most people, just leaving the country—even to pick up a visa sponsored by a family member—automatically makes the intending immigrant subject to a penalty for their “unlawful presence,” potentially separating them from their family for up to ten years.

For some, but not all, the penalty can be waived. To be successful, applicants must show that denying the case would be an extreme hardship to their qualifying relative(s); the impact on the immigrant doesn’t count.  Hardship factors can include family separation, economic hardship, medical issues, country conditions abroad, and any other difficulty or harm faced by the qualifying relative(s), if the waiver isn’t granted.

Under the old rule (which will continue to be the process for spouses of permanent residents), the applicant can not apply for the waiver until after they leave the U.S. and have their consular interview. They are required to wait in their home country while the waiver application is decided. 

Immigrants can be stranded outside the U.S. for months or even years while waiting for a decision on whether they can return to their family. Many families endure the emotional strain, financial hardship and dangerous conditions of this waiver process. Others simply are unwilling to take the risk.

The new rule allows spouses of U.S. Citizens to apply for a provisional waiver of unlawful presence before they leave the U.S. for their consular interview. If they receive the provisional waiver, they will leave the U.S. to apply for their immigrant visa knowing in advance that their case will probably be approved, and they could be back with their families—as a legal resident—in a matter of weeks.

The new rule takes effect on March 4, 2013.

Susan I. Nelson is a Waco attorney and practices with her husband, Alan Nelson, in The Nelson Law Firm, P.C. She represents individuals and businesses in immigration cases and writes the Texas Immigration Lawyer Blog (www.centeximmigration.com) in which she provides news and opinions on immigration law and policy.  Susan came to Waco in 1976 to attend Baylor University, and has been here since that time. She has practiced law in Waco since she graduated from Baylor Law School in 1990.

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

Baylor University Law School Launches Clinic to Help Young Immigrants

Baylor University

WACO, Texas (Sept. 12, 2012) - Baylor University's Law School will begin operating a clinic to assist those who may be eligible for the Deferred Action for Childhood Arrivals (DACA) program. An estimated 150,000 young unauthorized immigrants in Texas are eligible for relief from immediate deportation.

The clinic is in response to President Obama's executive order which allows those who entered the United States as children to remain in the country and work without fear of deportation for a period of two years. It will operate from 6:30 to 10 p.m., Sept. 18, 20, 25 and 27 and Oct. 2 and 4 at the Baylor Law School campus, 1114 S. University Parks Drive.

The Baylor Law School DACA Immigration Clinic is stepping up to help with cumbersome and sometimes confusing paperwork.

Under the direction of Laura A. Hernandez, associate professor of law, and Waco attorney and Baylor Law alumna Susan Nelson, second- and third-year law students will assist applicants in filling out the paperwork needed to take advantage of the program.

"The DACA program is aimed at those immigrants who are between the ages of 15 and 31," Hernandez said. "They are commonly referred to as 'Dreamers' after the Dream Act, which has not yet become law. These young people came to this country before they were 16, were educated in the American school system and for all intents and purposes are American. While the DACA program is not a path to citizenship, it is an opportunity for these immigrants to become lawful, tax-paying residents."

This the second clinic launched this month by Baylor Law to help members of the community with little or no access to legal services. Through a grant from the Texas Access to Justice Foundation, Baylor Law also is providing assistance to military veterans. The Baylor Law School Veterans' Clinic begins Sept. 14 at the Mission Waco Meyer Center, 1226 Washington Ave.

"At Baylor Law, we pride ourselves on developing both great lawyers and great citizens," said Baylor Law School Dean Brad Toben. "The immigration and the veterans' clinics are not only a way for our students to gain valuable experience, but perhaps more importantly, to also discover and understand the positive impact their knowledge and skills can make in the lives of people whose voices might not otherwise be heard."

 

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.