After killing 15 people, injuring at least 170 more, and reportedly paying out a total of more than $1.6 billion in compensation to victims and their families for its negligence in causing the 2005 Texas City refinery explosion, BP is being slapped with a fine of $50 million by OSHA.  Well, it started with a somewhat larger fine for its numerous safety violations that led to the fatal blast, but $50 million is what BP agreed to in a federal court settlement.

They must be celebrating in London.

For a company that, due to continued disregard for safety, went on to cause an oil spill that is the greatest environmental catastrophe on record, has cost the company $33 billion to date, caused damage to others that may eclipse that number, and contaminated the Gulf of Mexico for generations, $50 million is chump change.

But, BP and other safety-mindless companies have even more reason to celebrate.  In April of 2009, in what can only be called a dazzling dance of judicial activism, the Supreme Court of Texas held, in a case called Entergy v. Summers, that the Texas Worker’s Compensation law does not say what our courts have held it says for over 100 years.

Worker’s compensation is a system that shield employers from lawsuits for on-the-job injuries by their employees, if the employer carries worker’s compensation insurance or is an approved “subscriber” to the worker’s compensation system.  If the employer does not offer worker’s compensation benefits to its employees, the employer becomes liable for lawsuits for damages by injured employees and the families of employees killed on the job due to the employer’s negligence.

That protection from lawsuits has never extended to “third parties,” meaning companies other than employers.  For example, the reported $1.6 billion BP paid in compensation to victims of the 2005 BP Texas City explosion was, for the most part, paid to employees of third parties and their families.

Entergy changed all that.  In that decision, the Supreme Court of Texas provided companies like BP with a loophole, and a road map to steer through that loophole, which enables them to avoid third party liability to all employees of contractors (like most of those injured or killed in the Texas City incident) forever and ever.

So, the next time BP or some other company blows up a refinery and kills or maims the employees of contractors, it will skate away with only OSHA to answer to.  Compared to $1.7 billion, a $50 million fine looks pretty good.

The Texas Legislature is currently debating a bill that will overturn Entergy and restore the worker’s compensation law to the way it was written.  BP and its brethren are working very hard to make sure that legislation fails.  Certainly, the BPs of the world and their cronies will blame lawyers for wanting to kill jobs by overturning Entergy, as if Texas was never a good place to do business before the decision.  YOU CAN DO SOMETHING ABOUT THIS.  Anyone who works in a dangerous job, or cares about those who work in dangerous jobs, or values the work done by the men and women, mothers and fathers, sons and daughters, who go into harm’s way to make sure we can drive cars, have plastic water bottles and all the other products and benefits of the petrochemical industry, should call, write or email his or her state representative and senator and tell them to vote for the bill that will unplug Entergy.

This is not a partisan issue.  This is an issue of putting Texas workers ahead of multinational corporate greed, which as we have learned, was the reason behind all of BP’s bad behavior.

With 16 year-olds climbing Mount Everest and sailing alone around the world, there seems to be no limit to what dangers children will encounter, although for most kids, those dangers are no more exotic than riding in a car.  When minors are injured and receive monetary settlements, certain procedures are required by law. These steps have nothing to do with the personal circumstances of the child or parents.  Every minor is treated the same way.

First, the Court (judge) must approve any settlement and all disbursements (payments) out of the settlement, including attorney’s fees, expenses, outstanding medical bills or liens, and the disposition of the child’s “net” recovery.  Usually, a parent testifies that he or she approves of the settlement.  However, the court will appoint a “Guardian ad Litem,” an attorney who represents the child’s individual interests and provides an unbiased view of the settlement.  The Guardian ad Litem advises the judge whether the settlement and all disbursements are fair and in the minor’s best interests.

When I represent a minor, I am hired by the parents.  Because the Guardian ad Litem’s is “hired” by the Court, that attorney serves as a buffer between the minor, his parents and me.  The Guardian ad Litem has a duty to act in the best interests of the minor, even if those interests conflict with the parents and/or me.  I work to avoid such conflicts, but the Guardian ad Litem serves as a safety valve.

When a minor’s case is settled, the judge has the following options to place funds awarded to the minor:

1.  Money may be placed into the Registry of the Court.  This is an account maintained by the District Clerk.  It earns a very small amount of interest.  Funds may only be withdrawn prior to the minor’s 18th birthday by order of the Court.  Once the minor turns 18, he may withdraw the money (all of it) by filing a form with the District Clerk.  Judges are hesitant to place large sums in the Registry, most young people cannot manage a large lump sum of money.  Most judges will only place funds into the registry if there is an immediate need for cash on or before the time the minor turns 18.

2.  Money may be deposited into a federally insured bank account.  This account will have the same restrictions as funds in the Registry of the Court, and there is no benefit to using a bank instead of the Registry of the Court.  The interests rates are probably better with the Registry because the District Clerk negotiates a better interest rate with its bank than an individual would receive, and FDIC protections still apply.  Placing the money in a bank account is no safer than keeping it with the District Clerk.

3.  The Court may create a Trust.  A Trust is a legal entity, like a corporation.  Trusts have restrictions on investment and expenditure of funds and are managed by a Trustee, typically a bank’s trust department or bonded trust company.  A family member of the minor cannot serve as Trustee for a trust funded by a settlement.  Trusts are expensive to set up and maintain, so they are only used in large settlements ($300,000.00 or more), or when there is a need for ongoing expenditures for support, medical or educational expenses.

4.  The funds may be placed into a “structured settlement.” This is an annuity contract written by a life insurance company.  In exchange for a lump sum payment (premium), the life insurance company makes payments to the the minor after he reaches adulthood, on a schedule the Court approves.  Many structured settlements are designed to help the minor pay for college.  The payments the minor receives are part principal (the premium) and part interest.  Most payments are not taxable, and they are guaranteed, which means the money will be paid regardless of whether the minor uses the funds for a specific use (such as college).  If the minor dies before the payments are due, they are paid to the minor’s estate. Only very strong, large life insurance companies are allowed to write annuities for minors’ settlements.   Most judges place all minors’ funds into annuities.

For most parents, the most important concern regarding their child’s settlement is that the funds are not wasted.  Courts cannot tell an adult how to spend his money, and since annuity payments are usually made after the child reaches age 18, there is only so much that can be done to protect the young person from himself.  However, most courts try their best to do exactly that.

BP is giving a bad name to both the British and petroleum, and as the horror in the Gulf of Mexico unfolds on TV every night, I keep hoping Ryan Seacrest will appear and say it is all a big reality show engineered by media goofballs to boost ratings.  Alas, there are numerous goofballs to be found, media and otherwise, but this is no ratings ploy.  We may be witnessing the undoing of the petroleum-based culture we have so merrily depended upon since gasoline was 25 cents a gallon, by an ecological catastrophe with no visible end in sight.

We need to understand that BP, the Bad Person (our Supreme Court recently ruled that a corporation is a “person”) of the moment, is far from being alone in its disregard of the dangers of drilling.  I had what might be called a “BP moment” nearly a decade ago, and it taught me what all of us are learning now – big oil companies invest mightily in production of oil and meagerly in protection of workers and our environment.

On September 11, 2001 (yes, that day), my client Clint (not his real name) was working aboard a drill ship operating in well over 5,000 feet of water in the Gulf of Mexico.  He was part of the “ROV” (remote operated vehicle, an unmanned submarine similar to what is being used in the efforts to fix what BP has broken) crew.  The drill ship was operated by a company other than Transocean for an oil company other than BP.  ROVs were launched from a platform extended from the deck with a hand crank.  Clint was extending the platform, and it went off track.  Clint had built up a lot of momentum, and when the platform went off the track, it took Clint’s shoulder with it.  He suffered an injury that will plague him for the rest of his life.

Here are the underlying facts.  The drill ship had state of the art technology. It was kept in position by thrusters fore and aft.  On the bridge, a scope featured an icon of the ship inside a box that represented the drilling zone.  If the ship icon went outside the box, a connector on the riser (pipe) running from the rig to the floor of the Gulf would break, preventing a disruption in production.  Once the ship was back in position, two ROVs would mate the two sections of the riser, and drilling would resume.  It was amazing, futuristic, like something out of Star Trek.

Contrast that Space Age technology to the Stone Age hand crank that injured Clint.  It was designed by an “engineer” who had a PhD from an “internet university,” one that did not require any classroom time.  If the drill ship operator or the oil company had any regard for the health and safety of Clint and his coworkers, they would have never allowed that platform, or its designer, anywhere near the ship.  However, because it did not directly relate to drilling, it was not their problem.

What is playing out a mile below the surface of the Gulf, and on the shores of Louisiana, Mississippi, Alabama and Florida, is BP’s disregard for what can happen when things go wrong.  All the money went into production technology; protection technology was ignored.  BP was after profits, so 21st century solutions were employed to drill.  Safety and the environment were no more than afterthoughts, so solutions for a blowout and spill were from the the 1970s.  Now BP is trying to engineer on the fly to bridge a 30-plus year gap in technology, and it is not working.

Clint’s experience shows BP is not alone in its disregard for the safety of workers and the environment.  I expect a number of other oil companies and drillers are extremely lucky they are not in BP’s extremely dirty shoes.

Lawyers and politicians will hold BP accountable for its errors.  However, if we are going to continue to “Drill Baby Drill,” we must make sure that for all oil exploration, protection technology keeps up with production technology.

Memorial Day, like so many other “Monday holidays,” has come to symbolize, at least in the eyes of many, a three day weekend.  All of us should take these days to enjoy the company of friends and family, get some sun, have picnics and relax.  We all need time off from the stress of the work week.

On the other side of the world, however, there are men and women serving our nation who have no respite from the stress of war.  There are no three day weekends in combat zones.  The families of those who serve in our armed forces have no Monday holiday from the worry only they understand.

And, for those who have fallen in the line of duty, their families will never escape from the burden of their loss.  We should remember that Memorial Day is about those who have sacrificed so that we can enjoy freedom.

The following comments were sent to me by Bill Day, a man with whom I regularly disagree on political issues.  Bill, thank you for reminding me that we are all joined in our debt of gratitude to those who have made the sacrifice of military service:

It is  the VETERAN, not the preacher, who has given us freedom of religion.

It  is the VETERAN, not the reporter,  who has given us freedom of the press.

It  is the VETERAN, not the poet, who has given us freedom of speech.

It  is the VETERAN, not the  campus organizer, who has given us freedom to assemble.

It  is the VETERAN, not the  lawyer, who has given us the right to a fair trial.

It  is the VETERAN, not the  politician, who has given us the right to vote.

Thank you to all our veterans, service men and women, and the families of those who serve or have served in the past, for the right and the privilege of living in freedom.

People who know me are aware of my interest in politics.  I usually control myself in polite company, including this space, although when writing on issues that affect my clients, such as our legislature systematically taking away the rights of victims, political issues inevitably come up.  I have avoided taking a stand in this newsletter on local elections.  Working in a diverse county (one with both Republican and Democratic judges) can be tricky for lawyers who go to the courthouse.

However, I cannot help but let you all in on a secret virtually every lawyer in Harris County knows:  We have a terrific District Clerk in Loren Jackson.

In the less than two years since Loren took office, he has brought the way Harris County lawyers do business into the 21st Century.  Go online and check out the District Clerk’s website at http://www.hcdistrictclerk.com.  You will find a vast array of information available at your fingertips.  Even more information is there for lawyers, such as copies of virtually every document on every case.  To get a feel for how revolutionary Loren’s work has been, check out the websites of other district clerks around the state, or even the country.  You will be impressed at how well we measure up.  And Loren’s work is not done.  He is trying to improve the way lawyers electronically file documents, including making it free.

Recently, I had a problem filing something on a Sunday.  Actually, it was my vacation designation, which is, as you can imagine, pretty important.  There was a hitch in the website, and Sunday was the deadline for filing, so I was in a pickle.  I emailed Loren and two of his assistants (I had their email addresses from the last time I had a problem).  Within two hours that Sunday, I received an email from one of the assistants telling me the website had been fixed.

I was so impressed, I wrote Loren and told him I would vote for him in the coming election, even if he was a Republican.  He wrote back and thanked me, and then reminded me he was a Democrat.  I must admit my attention span wanders when I get down the ballot.  That might happen to you too.  However, when November rolls around, look far enough down the ballot for the District Clerk’s race, and remember what a great public servant we have in Loren Jackson.

The District Clerk serves all the citizens of Harris County.  In a perfect world, he would be elected on a non-partisan basis.  However, whether you are a Republican, Democrat or Independent, we all need to keep Loren on the job.

Texans would be well served to think about BP in the past, present, and especially the future.

BP’s past is littered with tragedies brought on by carelessness that results from putting stock prices before safety.  The 2005 BP Texas City explosion is a recent reminder, and the victims (15 killed, over 170 injured) of the blast bear enduring witness.

BP’s present is playing out before our eyes.  Watching the chaos and calamity unfold in the Gulf of Mexico, most of us feel helpless as the wages of BP’s sins wash onto the shores of Louisiana.  For those whose lives and livelihoods depend upon the health of the waters, wetlands and wildlife devastated in this catastrophe, cleanup and compensation are small consolation.

For the future, BP stands to avoid responsibility should another Texas refinery go up in flames, thanks to a 2007 opinion by the Supreme Court of Texas known as Entergy v. Summers.  In this opinion, the Court reversed one hundred years of precedent and in an amazing feat of judicial activism, wrote a road map for BP and other plant operators to avoid responsibility to victims of their future negligence.

Refineries depend on contract workers for tasks not performed on a regular basis.  If contractors have worker’s compensation coverage, they are immune from lawsuits by their employees.  However, “third parties,” including plant operators like BP, were liable if their negligence caused injury or death.  For the BP employees killed or injured in the blast, worker’s compensation was the only remedy against BP.  However, contractors held BP accountable in court, and millions of dollars were paid by BP to victims and their families.  That cost was a message to BP’s officers and directors in the only language they understand.

Thanks to the Entergy opinion, BP and other contractors may now contract away third party liability.  All BP has to do is provide worker’s compensation coverage for contractors’ employees.  This is not a new cost for BP.  Worker’s compensation coverage has been required in every contract with a company sending workers into a BP facility.  The cost of coverage is one element of the contract.  By simply swapping the responsibility for buying the coverage from the contractor to BP, third party liability is extinguished.  And it does not cost one penny!  BP now has less economic incentive to be safe.

The Texas legislature is considering a “fix” to the Entergy opinion.  A bill being drafted will tell the Supreme Court it cannot redesign Texas worker’s compensation law with the stroke of a pen.  This bill must be passed.

If you are concerned about BP’s past or present, offer help to the victims of the oil spill, or contribute to one of the many relief organizations providing that help.

If you want to prevent BP from getting away with another Texas City explosion, write your state representative and senator and tell them to pass the Entergy bill.

The Chamber of Commerce and other anti-consumer interest groups like to talk about “the litigation tax.”  This is, in their view, the added cost of products caused by lawsuits, chiefly product liability lawsuits.

The fact is, safety costs money. It is cheaper to build a car with a flimsy gas tank, shoddy tires and no air bags than one with state of the art technology to protect the occupants. Whether you see that cost as a “safety premium” or “litigation tax” probably depends upon whether or not you are interested in avoiding or surviving a car accident.

But, one thing is certain. Vehicles became safer, and lives were saved, because auto manufacturers got tired of getting pounded at the courthouse for dragging their feet on safety. For years, only Volvo was in the “safe car” business. Today, all auto manufacturers shout out how safe their vehicles are. Mercedes even has a new model that will stop itself if the driver falls asleep and is about to slam into an object in front of it!

This move from foot-dragging to safety-bragging did not come from a bunch of politicians or bureaucrats in the government. Congress is exercising its muscle against Toyota now, but its record has been horrible over the past forty-five years since Ralph Nader (the good Nader, before he became a perennial candidate) exposed that death-trap called the Chevrolet Corvair.

Lawyers, on the other hand, have much to crow about in terms of lives saved due to changes in vehicle safety. Just in case you do not know how we have made a difference, take a look at this American Association for Justice (formerly the American Trial Lawyers Association) publication: AAJ Report “Driven to Safety” or for a shorter version, this interactive chart: AAJ Car Safety Chart.

The next time someone complains about “the litigation tax,” ask if they would disable their airbags, seat belts and side impact protection.  Then show them the chart.

One of the more complex relationships in a lawyer’s professional life is representing children.  Even defining the word “child” is complicated.  Any person under age 18 is legally a child and cannot sign contracts or hire a lawyer.  Those acts must be done on the child’s behalf by a parent or legal guardian.

When a person achieves the age of majority, everything changes, even if the child has not. Not only may an 18-year-old sign a contract hiring a lawyer; ONLY the 18-year-old can sign such a contract. Parents instantly become powerless to control their child’s legal affairs. At age 18, all the rules of privacy and confidentiality immediately attach to the child to the exclusion of everyone else in the world, including his or her parents. Parents who have accompanied an adult child to the doctor or sent a child to college may have been advised they are “out of the loop” unless their son or daughter gives written permission otherwise.

Lawyers face the same constraints of privacy and confidentiality.

Most newly minted adults are ill-equipped to make “grown up” decisions. How many young adults are prepared to make financial judgments that could affect the rest of their lives? It is difficult for people in their 40s and 50s to manage a large sum of money; imagine an 18 or 19 year old who receives a lump sum settlement. Handled improperly, a positive result in a lawsuit could produce negative consequences in a young person’s life.

If young adults are fortunate enough to have responsible parents (or others) in their lives, they will hopefully seek and accept adult guidance. I encourage my young adult clients to keep their parents involved in the decision-making on their cases. However, many lawyers have had the unpleasant experience of representing an adult child at odds with his or her parents. Trying to keep a young adult from doing something rash or ill-advised is a daunting task for a parent. It is even worse for a lawyer. We are duty-bound to follow our client’s instructions, and when the client is an 18 year old, those instructions may involve bad decisions.

One of the lawyer’s most important functions is educating his client.  That includes informing the client of the factual and legal issues in a lawsuit, and helping the client make decisions regarding settlement.  However, that role does not stop when the case ends.  We also advise clients on how to manage the proceeds of a successful case.  A 1992 study by the Rutter Group showed that 90% of all lump sum payments are dissipated within five years.  People spend money unwisely, make poor investment decisions, or give money away to friends and relatives.  There are measures we can take, such as “structured settlements,” to protect people from themselves.  However, in order to implement these steps, the client must agree.

The keys to a successful attorney-client relationship with an “adult child” are to treat everyone involved with respect and establish the ground rules of the relationship early. In my initial meeting, I welcome the parents to participate, but I direct my comments to the young client. I discuss the issue of confidentiality and parental involvement openly. I explain that the child is fortunate to have his or her parents involved, as I have represented young adults who were all alone in the world and had to make big decisions with no parental help. Finally, I have the young adult state in writing whether or not I am permitted to discuss the case with his or her parents. When that permission is given, I ask that the young adult be included in all discussions whenever possible.

Perhaps having been a father of teenagers helps me relate to “adult children” whom I represent.  Developing trust and rapport with clients is important, particularly with young adults!

Supreme Court of Texas Chief Justice Wallace Jefferson co-wrote an op-ed piece in the April 5, 2010 Houston Chronicle with Vinson & Elkins’ Harry Reasoner titled, “Helping the Poor in Civil Cases.” The piece discusses the plight of those who cannot afford counsel: “Imagine you are poor and your landlord has illegally locked you out of your home, or your spouse is abusive but you do not know how to obtain a protective order, or that your insurer wrongly denies medical coverage for your sick child. Without access to a lawyer or the means to represent yourself, these basic human needs go unaddressed.”

The article bemoans the fact that Texas ranks 43rd in funding for legal services to the poor, and cites a nearly 75% decline in lawyers’ IOLTA trust accounts (interest on these accounts funds legal services to the poor).  Chief Justice Jefferson and Mr. Reasoner go on to discuss steps courts can take to make the legal process easier for unrepresented litigants.  The article sums up by saying, “We will continue aspiring toward the ideal that all litigants should be represented by competent counsel. In the meantime, these innovative programs can serve as models for Texas as we strive to address the challenge to give all our citizens the tools to protect their legal rights.”

With all due respect to these fine, honorable men, are they serious?  Do they truly believe the legal system can be tweaked so that pro se (unrepresented) litigants have a chance against the Vinson & Elkins of the world?  Why not address the reasons so many people cannot find a lawyer, and why lawyers’ IOLTA accounts are down 75%?  Those issues are related to a larger problem, one that will not be cured by the kindness of strangers or trying to teach non-lawyers how to represent themselves.

The larger problem is that our legislature and courts have placed barrier after barrier against the rights of individuals to sue corporations and insurance companies.  It has become increasingly difficult for lawyers to make a living representing “the little guy.”  From worker’s compensation (see my last post) to insurance claims, to that giant insurance boondoggle, “medical malpractice reform,” people with claims often find themselves unrepresented because the profit motive for the lawyer has been eliminated.

If Chief Justice Jefferson and Mr. Reasoner want to “fix” the problem, giving tools to unrepresented litigants is not the answer.  Giving them access to lawyers, by allowing more litigants to sue for attorney’s fees and providing adequate rights of recovery against landlords, insurance companies and corporations, is a remedy that will work.

These problems are not going to be resolved until we elect legislators and judges who view protecting the rights of individuals as the paramount duty of the law.  Let’s roll back anti-consumer, anti-employee, anti-patient, anti-tenant, anti-victim laws and reverse court decisions that have served the interests of a few Texans at the expense of the many.  Then, we might see a positive change of the type to which Chief Justice Jefferson and Mr. Reasoner aspire.

Our legal system works when both sides have a legal playing field.  Our legislature and courts have been protecting insurance companies and corporations for too long.  Fortunately, we have a remedy for that…every November.

One of literature’s most misunderstood quotes is from Shakespeare’s Henry VI:

“The first thing we do, let’s kill all the lawyers.”

The world’s oldest lawyer joke, it turns out, is on those who dislike lawyers. “Dick the Butcher” utters these words to fellow anarchist Jack Cade, stating the first step to overthrowing the government.  Shakespeare refers to Cade as “the head of an army of rabble and a demagogue pandering to the ignorant.” Thus, Shakespeare makes the point that lawyers are defenders of liberty.

Liz Cheney, daughter of the former vice president, calls out seven Justice Department lawyers for representing alleged terrorists prior to going to work for the Attorney General.  Her organization, “Keep America Safe,” produced a video entitled, “Who Are the Al Qaeda Seven?” The video demands the Obama administration disclose their names.

The upshot of the Cheney argument is that lawyers are unpatriotic for providing a defense to “enemy combatants.” These attorneys volunteered their time to defend the rule of law, taking the position that even the worst offenders have rights to counsel, court scrutiny of their detention without formal charges, compliance with the Geneva Convention, and other rights found in US and international law.  Never mind these lawyers won several key cases before an extremely conservative Supreme Court of the United States; Cheney wants you to believe they are conspiring with our enemies.  Demanding their “outing” by the Obama administration is not an attempt to discover the names of these lawyers. You can find their identities on a number of websites. What Cheney wants is to brand them as traitors.

This effort to tattoo lawyers with the sins of their clients is an attack on the rule of law. If we are a society ruled by law, everyone – even the most despicable character – is entitled to a lawyer. To say otherwise is to create a special class of persons whose fate is not subject to the rule of law. The alternative to the rule of law is the rule of the mob.

What comes next?  Cheney’s next video may proclaim: “Light your torches!  It’s time to lynch a terrorist…and his lawyer!”