Another storm is brewing in the Legislature, and this one may affect you this year.  A bill to change the rules for TWIA, the Texas Windstorm Insurance Association, is pending before the Special Session of the Texas Legislature. If a hurricane visits the Gulf Coast (as so many have in prior “El Nino” years), you might find yourself with a claim.

Many Hurricane Ike lawsuits have been filed against TWIA.  Why? TWIA has done a miserable job paying claims.  The Texas Insurance Code provides “double victims” of hurricanes (those who suffer storm damage and then have legitimate claims delayed or denied) remedies with teeth, including recovery of interest and attorney’s fees. TWIA has been held accountable under the law.  TWIA’s problems are self-inflicted.  Had TWIA dealt fairly and promptly with Texans’ hurricane claims, lawsuits would have been avoided.  Now, after TWIA has created its own mess, it seeks a legislative “solution.”

TWIA’s proposed solutions?
Change the law!
Eliminate claimants’ rights!
Limit attorneys’ fees (but only for claimants)!
Pull the teeth out of the Insurance Code!

Changes to laws seldom motivate people who are not affected.  None of us wants to think, “This could happen to me.”  If you need convincing otherwise, check out The Weather Channel’s 2011 Hurricane Forecast.  If Arlene, Bret, Cindy, Don, Emily, Franklin, Gert, Harvey, and Irene do not concern you now, one of them may, and soon.

Call the Capitol Switchboard at 512-463-4630.  Ask to be connected to your state senator (the operator will do this for you).

Tell your senator to protect your rights against TWIA! Consider it hurricane preparation!

I am a trial lawyer.  I represent people who have lost their health, their loved one, or their small business due to someone else’s fault.  When people are victimized by crime, they call the police.  When people are victimized by drunk drivers, dangerous product manufacturers, unsafe premises owners, or any other bad actors who have caused them harm, they call a trial lawyer.

That, by the way, is also true for the people behind “tort reform.”  I have never met a tort reformer who hesitated to call a lawyer when the need arose.  Even BP “lawyered up” when it sued Transocean and others.  The basis of BP’s claim?  Negligence.  The same thing a trial lawyer will allege on your behalf if you are injured due to someone else’s fault.

Trial lawyers are not bogeymen.  A bogeyman is “an amorphous imaginary being used by adults to frighten children into behaving.”  That is a perfect description of the bill of goods being sold to the public by tort reformers.  Paint trial lawyers as bad guys to frighten citizens into going along with the destruction of their civil rights.

Trial lawyers are not your enemy.  We are your last line of defense against big corporations and insurance companies who want to add insult to the injury you just suffered.  Blaming us for lawsuits is like blaming doctors for disease.

There is no lawsuit crisis.  In Harris County, with a population of over four million people, district court juries decided 119 personal injury cases in 2010.  Governor Perry says tort reform is an emergency.  The only emergency is that the Texas Senate is holding hearings on HB 274, a bill that will destroy the civil rights of individuals and small businesses! Who benefits if the bill becomes law? Large corporations and insurance companies. Who loses?  You, if you are an individual or small business owner.

If you don’t speak out against HB 274, who will speak out for you?

Call the Capitol Switchboard at 512-463-4630. Ask to be connected to your state senator (the operator will do this for you).

Tell your senator to vote against HB 274!

CALL NOW!

The “Loser Pays” bill (HB 274) that was just ramrodded through the Texas House without debate should really be called “Winner Pays.” If this bill becomes law, the winner of a lawsuit may have to pay the loser’s attorney’s fees.  There is no cap on the amount the winner has to pay, so a plaintiff – and this includes a small business – can win a lawsuit and go bankrupt.  The following scenario can actually happen:

1. Joe’s Lawn Service (“Mom and Pop” small business) buys 10 Hodna (company name changed to protect…) tractors at a cost of $100,000.
2. The tractors do not work, costing Joe to lose most of his landscape business.
3. Joe sues Hodna for the $100,000 cost of the tractors plus $50,000 in lost profits.
4. Early in the litigation, Hodna offers Joe $80,000 to settle.  Joe turns it down because he has lost $150,000.
5. Joe goes to trial and wins $60,000.  The jury finds Joe had 40% of the use of the tractors, and the judge disallows Joe’s lost profits claim on a technicality (lost profits claims are difficult to prove, even when they are legitimate).
6. Because Joe won less than 80% of Hodna’s offer, he has to pay Hodna’s attorney’s fees and litigation expenses after declining its offer of settlement.
7. Hodna’s lawfirm has assigned several lawyers and paralegals to defend the case, and runs up $350,000 in legal fees and litigation costs.
8. Joe is awarded $60,000, less Hodna’s $350,000 in legal fees.  In other words, Joe has won his lawsuit but owes Hodna $290,000!
9. Joe files for bankruptcy.

This can really happen.  In the current Offer of Settlement rule, Civil Practice Code Section 42.004, subsections (d) and (g) limit the shifting of fees to a reduction of the plaintiff’s damage award.  Subsections (d) and (g) are repealed by HB 274, making the amount of fees the winner has to pay the loser unlimited.  Under HB 274, a plaintiff can win his lawsuit and end up financially destroyed.

The “tort reformers” seek to limit lawsuits for personal injuries and wrongful death.  How do they explain this result to small business owners?

The moral of the story being told by the advocates of this bill is this:   If you have a claim against a big corporation, take whatever it offers, because if you dare to take them to a jury, you risk your economic life.

There are many things Texans should fear about this round of “tort reform.”  The proposed changes do not “level the playing field.”  They are designed to discourage people with valid personal injury, wrongful death and breach of contract cases from exercising their rights in court.  The rules are explicitly skewed to favor defendants and punish plaintiffs, particularly in the shifting of legal fees.  But of all the proposed changes, repealing CPRC 42.004 (d) and (g) is the worst.  It turns “loser pays” into “winner pays.”  That is morally wrong and unfair to Texans.

Texas Watch, a nonprofit consumer advocacy organization, issued the following email this morning.  I am passing it on for your consideration.  It is lengthy, but worth reading if you are concerned about your civil rights.

Here we go again.  Lobbyists in Austin are once again trying to shield their corporate clients by socializing the cost when they cause needless death, injury, or financial devastation.  This time they are pushing HB 274, an un-American scheme that threatens families and small businesses with having to pay the bloated legal costs of big insurance companies and multi-national corporations.  Act Now to stop this dangerous legislation.

After 20+ years of pro-defendant legal changes, passing legislation that will make it even more difficult for Texans with valid claims to access the legal system is at best detrimental to public accountability and at worst unconstitutional.The bottom line is that their proposals are designed to intimidate families and small business owners into foregoing the legal accountability process, immunizing polluters, insurance companies, and other big corporate defendants from responsibility.

These schemes most acutely impact middle class families who could be financially devastated not only if they lose a valid lawsuit, but even if they just don’t win big enough.  And, the proposal before lawmakers puts small businesses at a particular disadvantage when facing a big corporation in court.

If this bill passes, defendants will be in complete control, leaving the family or business owner at the whim of the accused wrongdoer.  Also, under their gerry-rigged formula, even if you win a verdict, you could still be forced to pay the defendant’s legal costs.  In other words, you can win and still lose.

Despite the lobbyists’ rhetorical misdirections, this issue has nothing to do with penalizing people who file meritless lawsuits.  We already have stiff penalties on the books for that, including the payment of attorneys’ fees.  Their real goal is to erase the notion of corporate responsibility.  They want to erect so many obstacles to justice that we just throw up our hands and let corporate criminals like BP off the hook.

HB 274 would allow insurance companies even more latitude to deny and underpay valid claims.  For instance, a family injured in an auto accident would face an impossible choice if the at-fault driver’s insurance company denied a valid claim.  The family would face the threat of paying the bloated legal costs of the insurance company’s legions of lawyers or accepting whatever low-ball offer the insurer makes.

Florida’s experience with a scheme similar to the one being debated by our legislature was so bad that lawmakers there repealed it just five years later.  As the Duke Law Journal notes, proponents are “diplomatically silent about Florida’s unsuccessful experience.”  A former president of the nation’s oldest association of civil defense lawyers put it bluntly: “They tried it in Florida, and it was a disaster.”

Known as the “British Rule,” this concept was roundly rejected by our nation’s founders more than two centuries ago because it guts individual liberty.  In recent years, however, Britain and other countries have begun to rethink the wisdom of this system.  In fact, the British Ministry of Justice recently commissioned a report that recommends that Britain scrap its current system in favor of the “American Rule” in which both parties are responsible for their own legal costs.  The Economist magazine proclaimed that “every citizen in the land would, at last, have a fair opportunity to have a case heard in the nation’s courts.”

The bottom line is that Texas families already face significant barriers to accessing the constitutional promise of a right to Trial by Jury.  Adopting a scheme that has a dubious history and is designed to force families and small businesses with valid claims to weigh the possibility of paying the legal costs of multi-national corporations is not in the best interests of public safety, public justice, or public policy.

Take action now.  Tell your State Representative to stand up for Texas families and our constitutional liberties by rejecting HB 274.

Thanks to Texas Watch!

The Texas Association of Defense Counsel (TADC) has a problem.  TADC is an advocacy group for civil defense lawyers.  Their tort-reforming clients want to put them out of business.  And with voracity that would make Hannibal Lecter blush, TADC is committing professional cannibalism by advocating new laws that will devour the jobs of its members.

TADC has cowered on the tort reform sideline for years. Defense lawyers justified early reforms as “leveling the playing field.”  Once it became evident tort reform was bad for business, defense lawyers were afraid to bite the hand that fed them.  TADC kept quiet as the rights of injured people, consumers and other litigants, along with the jobs of defense lawyers, were sacrificed on the altar of tort reform.

Medical malpractice defense lawyers knew the proposed 2003 reforms would destroy their jobs along with patients’ rights.  Yet, malpractice insurers gave them a professional Sophie’s Choice:  If they opposed the new laws, they would never be hired again. Once again, TADC fiddled as access to justice and the need for defense lawyers burned.

This year, proposed “Loser Pays” and “Voluntary Compensation Plan” laws seek to kill off the civil justice system once and for all.  TADC finally came to bat for its members and opposed both bills.  Hallelujah!

And then a funny thing happened on the way to the forum.  Changes to the “Loser Pays” law were made in a House committee, and TADC now supports the bill.

The initial “Loser Pays” bill applied only to “abusive civil actions.” However, a jury finding against a plaintiff might also find the lawsuit “an abuse of the civil justice process,” which was all it took to bankrupt both the plaintiff and his lawyer.  Such a law would scare plaintiffs with legitimate claims away from filing lawsuits.  TADC opposed the bill.

Then TADC entered into “negotiations” over the language in the bill.  The new, TADC-supported “Loser Pays” bill is worse than the original.

The new version of “Loser Pays,” which TADC supports, permits defendants to recover their litigation costs in all lawsuits, not just “abusive civil actions.”  It throws small businesses under the bus by including breach of contract cases. The new law also allows for unlimited recovery of costs against winning or losing plaintiffs, meaning a plaintiff can win a lawsuit and owe the defendant money! Any plaintiff – winner or loser – can be forced into bankruptcy!

TADC is doing the bidding of Big Insurance and Big Corporate, even though the bill it supports will hurt its members and many of their clients.  What’s worse, TADC is bragging it made the “Loser Pays” bill better, when it made it worse!

TADC is doing the bidding of Big Insurance and Big Corporate, even though the bill it supports will hurt its members and many of their clients.  What’s worse, TADC is bragging it made the “Loser Pays” bill better, when it made it worse!

A vicious truth:  Tort reformers do not care about “frivolous lawsuits.” Existing rules and the contingent fee system eliminate most of those.  Tort reformers want to keep you from filing valid lawsuits, the ones you should win against them.

The Texas Trial Lawyers Association (TTLA) is dedicated to defending the civil justice system and protecting the rights of citizens to have their day in court.  I am proud to be part of TTLA, and relieved to not be associated with TADC.

Lemmings are Arctic rodents known for throwing themselves off of cliffs in what many have interpreted as mass suicide.  So many references have been made to lemming behavior (including a National Lampoon movie), it is hard to separate truth from fiction.

It turns out lemmings are just victims of “Follow the Leader.” That occasionally involves mass migrations into unfamiliar territory, which can, according to Snopes.com, lead to “being crowded or pushed over dangerous ledges.”  Snopes goes on to say, “In fact, when the competition for food, space, or mates becomes too intense, lemmings are much more likely to kill each other than to kill themselves.”

Isn’t that refreshing?

Humans are more like lemmings than we care to admit.  There are political lemmings (of every stripe), financial lemmings and social lemmings.

Lemming behavior is most dangerous for young people.  “Peer pressure” leads kids into dangerous activities that can be lethal.  How many drug overdoses, alcohol poisonings and car accidents start with a game of Beer Pong, a dare, or just going along with group behavior?  This was actually the point of the movie, which showed young people joining in a frenzy of drug use at a parody of the Woodstock music festival.

As we enter into this season of proms, holiday weekends and summer days and nights when kids have too much time and too little direction, the threat level from lemming behavior is solidly in the red zone.  Without school, homework and athletics keeping children occupied, parents have more responsibility for warning, watching and worrying.  Some ways to prevent your child from becoming a lemming are to know where and with whom your child goes, and tell him or her that rescue from a dangerous situation is only a phone call away.

One reader recently told me, “Your email almost made me call my state senator to complain about tort reform, but I didn’t.”

With cops and teachers losing their jobs and the government shutting down, you may not have tort reform at the top of your worry list.  But consider this:

If you buy a Toyota, and it malfunctions and causes you or a family member a severe injury, you would want to sue Toyota.  Suppose this lawsuit does not go well for you, and you lose.  Now imagine Toyota sends you a bill for $1,000,000 for its attorney’s fees and litigation costs.  You would have to pay that bill or go into bankruptcy.  THAT is what a “loser pays” law will do.

Toyota and other major manufacturers defend cases against them at any and all costs.  They hire teams of lawyers and expert witnesses.  If they can run you into the ground financially, they will not think twice about doing so.

If you think that sounds fair, don’t do a thing.

If you think that sounds UNFAIR, click on this link to find your state senator and representative.

Call or email then and tell them: THE “LOSER PAYS” LAW IS UNFAIR TO FAMILIES!

Protect your rights!

Suing insurance companies has taught me how they operate. Claims departments are organized like the military – you first talk to an intake clerk (private), and later deal with an adjuster (sergeant) who answers to a supervisor (lieutenant) who answers to a claim manager (captain), and up the chain of command you go. At every level, there is supervision from above, often from many levels above. This makes insurance claims people nervous.

Claims adjusters follow rules established by the insurance company (the State of Texas barely regulates insurance) and often have only a slight relationship to what the law says. If you want something more than their rules say you get, that is where lawyers come in.

And it explains why insurance companies want to put lawyers out of business.

Where insurance companies differ dramatically from the military is the way they compensate their generals. In a recent online article, Theo Francis describes how CIGNA CEO David Cordani earned $15,200,000.00 this past year. This figure, reported in a CIGNA proxy filed with the SEC was “driven by $4.5 million in stock awards, $2.2 million in options and $7.4 million in incentive pay (plus nearly $49,000 to install and maintain security alarms.”

That incentive pay comes from the hard work General Cordani did to make sure CIGNA did not pay one dime more than it owed…and maybe a few dimes less than it owed. No wonder he needs so many security alarms.

They always say, “Follow the money.” When it comes to insurance companies, the money trail leads directly to the top.

It’s good to be the general (of CIGNA)

When did the Bill of Rights lose all its amendments other than the Second and the Tenth?  All I hear the defenders of the Constitution actually defend are the right to bear arms and states’ rights.  What happened to the right of trial by jury?  When did it get cast on the refuse pile?  Are the freedoms of speech and religion next?

Can you imagine the Two Commandments?  I am just as much against graven images and coveting as the next guy, but aren’t the Ten Commandments a packaged deal?  Is the Bill of Rights any different?

In 1995, we had TortReform1, which was supposed to “level the playing field” for plaintiffs and defendants.  People continued to sue bad actors.  Good cases were won and bad cases were lost, which is how it should be.

But that was not enough for Big Insurance and the Medical Lobby.  Their big bucks brought you TortReform2 in 2003.  Now, your right to sue for medical, hospital or nursing home neglect are destroyed.  If you are assaulted (or worse) at someone’s business, with nothing done to improve safety after 100 prior assaults just like yours, the owner can blame the criminal and get off paying you nothing.  If you or your employer bought health insurance that discounts the cost of your treatment, guess who gets the benefit of that bargain in a lawsuit?  The person who caused your injury (and his insurer).

All those gifts to Big Insurance were not enough.  Now we have TortReform3.  This aims to be the kill shot for your right to a day in court.

What is being proposed in Austin right now is a total elimination of jury trials, particularly in cases where companies cause the most harm.

Lawmakers are proposing a When did the Bill of Rights lose all its amendments other than the Second and the Tenth?  All I hear the defenders of the Constitution actually defend are the right to bear arms and states’ rights.  What happened to the right of trial by jury?  When did it get cast on the refuse pile?  Are the freedoms of speech and religion next?

Can you imagine the Two Commandments?  I am just as much against graven images and coveting as the next guy, but aren’t the Ten Commandments a packaged deal?  Is the Bill of Rights any different?

In 1995, we had TortReform1, which was supposed to “level the playing field” for plaintiffs and defendants.  People continued to sue bad actors.  Good cases were won and bad cases were lost, which is how it should be.

But that was not enough for Big Insurance and the Medical Lobby.  Their big bucks brought you TortReform2 in 2003.  Now, your right to sue for medical, hospital or nursing home neglect are destroyed.  If you are assaulted (or worse) at someone’s business, with nothing done to improve safety after 100 prior assaults just like yours, the owner can blame the criminal and get off paying you nothing.  If you or your employer bought health insurance that discounts the cost of your treatment, guess who gets the benefit of that bargain in a lawsuit?  The person who caused your injury (and his insurer).

All those gifts to Big Insurance were not enough.  Now we have TortReform3.  This aims to be the kill shot for your right to a day in court.

What is being proposed in Austin right now is a total elimination of jury trials, particularly in cases where companies cause the most harm.

Lawmakers are proposing a  “Voluntary Compensation Plan,” which allows companies to set up “Plans” 90 days after causing death or injury to two or more people.  BP can blow up half of Texas City and be immune from liability beyond whatever “Plan” it chose to adopt.  The statute has no requirements for what the plan covers and punishes you if you attempt to go outside the plan.  And, to make sure you are unable to find an attorney to help you, attorney’s fees are capped at 5% of what you recover from a Plan.  Have you ever fought with a “Plan” over benefits?

Also being proposed is a British-style “loser pays” law that will make a plaintiff who loses a lawsuit and his or her attorney liable to pay the winner’s attorney’s fees, litigation costs, travel expenses and expert witness fees.  This only applies to plaintiffs.  Defendants are never required to pay the plaintiff’s costs. If this passes, anyone who is injured due to the negligence of someone else will risk financial ruin if he or she files suit.

So what can you do?  You can get involved.  Write your state legislator and state senator and tell them you care about your constitutional rights, including the right to have your day in court.  Stand up for the Constitution!

You can also get involved through Texas Watch, “a non-partisan citizen advocacy organization dedicated to ensuring that corporations and insurance companies are accountable to their customers.”  Alex Winslow, the director of Texas Watch, is a corporate watchdog.  If you are upset that your rights have been taken from you, contact Texas Watch and check out their Take Action and Share Your Story links.

If you have a story to tell, Texas Watch wants to hear it.  You can also
email Texas Watch.

You have been victimized by tort reform if:

• You have been seriously injured by negligence, but no lawyer will take your case.
• You have been a victim of medical or hospital negligence.
• You have suffered an injury from a drug.
• Your valid legal case was lost because of a technical ruling by a court.
• You lost a case on appeal that you won at trial.
• Your legal case was settled for less than your damages.
• You have been abused by the worker’s compensation system.
• Any of the above things has happened to a family member.

And you are a potential tort reform victim if:

• You drive or ride in a motor vehicle.
• You shop at a store or park in a parking lot.
• You see a doctor, go to a hospital or take medicine.
• You have an insurance policy of any kind.
• You buy or rent a house or apartment.
• You have a job that exposes you to any risk of injury.

Preserving the jury system is not just for Democrats, and it is not a liberal idea.  The folks who pay for tort reform have no agenda other than making sure you cannot sue them. They give most of their money to Republicans, but they support Democrats, provided those Democrats agree to vote against the jury system.

There is nothing inherently conservative about giving away your legal rights to serve the interests of corporations and insurance companies.  Texas Watch has formed Texans for Liberty & Justice, a project where Constitutional conservatives can work to support the right to trial by jury.

Stand up for your Constitutional rights!

Ken Hoffman is a Houston treasure, and in the “Today’s Trivia” portion of his March 10 column in the Houston Chronicle, Hoffman reveals that The Star-Spangled Banner was written by a famous lawyer, Francis Scott Key.  After witnessing the British attack on Fort McHenry during the War of 1812, Mr. Key, Esq., penned the poem whose words spread through the young country, sung to “an old British drinking tune called The Anacreontic Song.” Now, we Americans sing Mr. Key’s poem with our hands over our hearts and pride in our chests.

Columnists and bloggers get bogged down in subjects that frustrate and upset us.  Lawyers tire of the jokes on us, which we take to heart though we may act like good sports.  Hoffman allows us all to take a break from the gravity of every waking moment and celebrate what may be our nation’s best legal work to date.  Only a lawyer could take a British drinking ditty and, with the help of bombs bursting in air, compose our nation’s official song. Perhaps it was fitting that Congress adopt The Star-Spangled Banner as our national anthem in 1931.  As the Depression deepened, we needed a lift.

Spring training is underway.  The robins have returned.  Winter has taken its leave of Southeast Texas (those were two bad weeks, weren’t they?).  The next time you rise, remove your hat and sing, “Oh say can you see…” remember the words were written by a lawyer.

Play ball!