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!”

When I became a lawyer 29 years ago, worker’s compensation was part of my practice.  Worker’s compensation provides injured workers with medical and disability benefits.  In return for having insurance coverage, an employer is immune from lawsuits by employees injured on the job (or the heirs of employees killed on the job).  There was abuse of the system by some lawyers, doctors and insurers, as there can be whenever people are involved in any system.  However, both employees and insurers had access to counsel, so everyone’s rights were protected.

In 1990, the Texas Legislature, in the first salvo of the “Tort Reform” revolution, completely changed worker’s compensation.  Twenty years later, I am here to tell you that if the Legislature’s goal was to rid the system of lawyers who represent injured workers, “Mission Accomplished.”

Most lawyers are paid by the hour regardless of the outcome.  Lawyers who represent personal injury and wrongful death plaintiffs work on a contingent percentage basis, where fees and expenses are only charged if the case is successful.  This contingent fee arrangement allows everyone to afford a lawyer, and lawyers have an economic incentive to only pursue valid cases.

Prior to the 1990 changes, lawyers worked for 25% of worker’s comp lump sum settlement.  The new laws prohibited lump sum settlements, and only permitted attorneys for workers to be paid a limited fee out of the claimant’s weekly check.  Not many lawyers were able to survive working on a “contingent hourly” basis.  By eliminating settlements and the percentage fee, the Legislature insured that few injured workers would be able to find a lawyer to represent them.

There were other changes to the system.  Workers received a slightly larger weekly benefit.  For insurance companies, the new laws were far more generous.  A series of procedures and rules were adopted that are so complex, a Byzantine would blush.  Traps in the system are numerous, and insurers can deny claims, including medical procedures, and force virtually every issue into a contested hearing or jury trial.  Disability Guidelines were adopted that provide very limited benefits, even in cases of total and permanent disability.

Some lawyers still handle worker’s comp cases, but they mostly fall into two categories – the solo practitioners who operate on a low overhead, and the firms who have adjusters handle everything other than hearings.  There are very few of either, and the number of claimants without counsel is staggering.

The absence of lawyers tilts the playing field so far toward the insurance companies, abuse of injured employees is rampant.  The state agency that oversees worker’s comp claims is underfunded and provides few checks or balances.  Insurance companies have staffs and attorneys (whose fees are unregulated) well versed in the laws and procedures, ready to chop off a claimant’s benefits, often without justification.  An entire industry of “reviewing doctors,” many of whom do not actually practice medicine on patients, has arisen to do the insurers’ bidding.  Talk to someone “in the system,” particularly one with a significant disability, and you will hear a story that will scare you.  Believe this: you never want to be a worker’s compensation claimant.

Ask doctors about worker’s comp.  Those excellent doctors still accepting worker’s comp patients deserve our respect.  They sure are not getting it from insurance companies.  Many of the best doctors want nothing to do with the paperwork, denials and second-guessing by “reviewing” (non-treating) doctors.  Too many good doctors refuse to see anyone with an on-the-job injury.

Fortunately, many employers have become so emboldened by the success of the “Tort Reform” movement, they have dropped worker’s comp coverage in favor of “Non-Subscriber” coverage.  This means they can be sued by an injured employee for damages, although many have injury medical plans that are as complex as the worker’s comp system.  Most lawyers (myself included) accept Non-Subscriber cases involving significant injuries caused by a negligent employer.  We can afford to take those cases for one reason:  attorney’s fees are not regulated.

People buy into “Tort Reform” because they have never been victimized by the changes to the law that have taken away your right to be protected in court.  Talk to people who have been injured on the job and ask how “Tort Reform” is working for them.

Toyota’s current recall fiasco is not its first tangle with vehicle safety, and it is not the first time the Japanese car giant resisted a fix that would save American lives.  Several years ago, the Prius had a side airbag problem that resulted in a partial recall. Cars excluded from the recall malfunctioned, and people died. Toyota fought every claim in much the same manner we have seen with the “unintended acceleration” issue. They dodged and denied.

The “$100 million memo” that surfaced during the Congressional investigation of Toyota, in which a company official suggested that fixing the acceleration problem would be too costly, was newsworthy.  However, it did not surprise lawyers who lock horns with big companies in product liability lawsuits.  What is notable about the Toyotathon of Trouble is that Congress is actually paying attention to how little the National Highway Traffic Safety Administration (NHTSA) has done to promote safety.  Had it not been for a horrific incident, when an off-duty police officer and three of his family members died after a Lexus ES350 raced out of control and crashed, this problem might have been swept under the corporate rug along with safety hazards of other companies that have kept lawyers busy for years.

Many of us are old enough remember the Ford Pinto and its exploding gas tank.  Ford was caught with its own “$20 million memo” that declared it would be cheaper to deal with the lawsuits than recall and fix the cars that ultimately caused 27 people to suffer fiery deaths.  Lawyers, not Congress, discovered that memo.

The truth is that our government has neither the time nor the resources to chase down every corporate wrongdoer.  When it comes to policing Big Auto, NHTSA is undermanned and underfunded.  That is why lawyers, and a vigorous civil justice system,  serve such an important purpose.  We have been called “private attorney generals,” as we enforce society’s demands for a safer world and punish those who act as recklessly as Toyota.  The “litigation tax” you hear big business complain about is the cost of making products, industry, buildings and other aspects of life safer.  Those in a position to make our lives safer can either act now or pay later.

Toyota chairman Akido Toyoda appeared at a news conference to apologize for his company’s miscues, and then in a scene out of a bad movie, drove off in an Audi.  In the 1980s, Audi had its own problem with runaway cars.  Is it odd how these events fit into a pattern?

Just when you think things in Texas courts cannot get more absurd, the Supreme Court of Texas issued an opinion today (February 19, 2010) on a case pending before the Court since 2005, reversing both the trial court and the court of appeals.  What is amazing is not just how long it took for the Court to decide the case (this was the Court’s oldest case), or even that they reversed both lower courts (the Court is never skittish about reversing cases).  The best part of the story is that the Houston lawyer for the plaintiffs (the party that won before the trial court and the court of appeals) SUED the nine justices of the Supreme Court of Texas in federal court, to force them to make a decision.

Well, they made a decision eight days after being sued.  And the decision the Court gave that Houston lawyer was this: “You lose!”

I had a similar case many years ago.  I represented a truck driver in a dispute with an insurance company pending in Galveston federal court.  Both sides had filed motions that would decide the case.  After waiting several months for a decision, the Dallas lawyer representing the insurance company wrote the judge a letter and asked when he was going to rule on the motions.  Moments after I received that letter, a fax came in from the judge, and guess what he told that Dallas lawyer.  That’s right – “You lose.”

I suppose the lawyers in both cases had darn good reasons for poking their fingers in the eyes of the judges who were going to decide their cases.  Certainly, justice delayed is justice denied.  Still, it is seldom a good idea to push a judge too far.

There are times to talk about the law or make political statements, and then there are times we should stop talking about our differences and help others.

The devastation in Haiti should cause all of us to do the same thing:  Help.

If you know someone who has family or friends in Haiti, perhaps the best way to help is to offer assistance directly to that family.  Otherwise, here are some ways to help in the relief efforts:

Contribute online to the RED CROSS.

Go online to the CENTER FOR INTERNATIONAL DISASTER INFORMATION.

Or, you can donate $10 charged to your cell phone bill by texting “HAITI” to “90999.”

Most religious and charitable organizations also have ways you can help.

Political football season is in full swing, and the health insurance debate is like the BCS Championship, although this contest has a real playoff.  As with so much of our present political discourse, this fray is framed as “Us” vs. “Them.”  The two sides square off, and you are either with “Us” or one of “Them.”

There are times to draw such stark battle lines.  Football games give passionate participants a pick between opponents.  As the clock wound down on the Big 12 title game, “Us” UT fans saw one second on the clock, which “Them” Cornhuskers swore had elapsed.  If only real life were as uncomplicated as football.

Trial lawyers are so accustomed to being cast as “Them,” we sometimes forget we only exist because of You.  Our clients are real people whose lives have been wrecked by the careless conduct of others.  You may not be a plaintiff now, but every person you know – including You – is one reckless driver, one product malfunction, or one medical error away from needing a trial lawyer.  It happens in an instant.  Not a single one of my clients ever expected to be a victim.

“Tort reformers” like to talk about the “litigation lottery,” as if people who sue for injuries are contestants for a game show prize.  These “reformers” ignore the suffering of those they portray as “Them” and not “Us.” It helps marginalize people if you dehumanize them.

In the health insurance debate, “medical liability reform” has been bandied about as a panacea.  Cut off the right to sue, “reformers” say, and the healthcare system will heal itself.  Limits on healthcare liability claims have not made medicine cheaper or safer, or increased the number of people with access to healthcare.  Yet, many people buy this line, until they find themselves in the role of victim, suddenly going from being one of “Us” to one of “Them.”

Senator John Ensign (R-Nevada) recently gambled on the public perception of trial lawyers and their clients as “Them” with his proposed amendment to limit attorney’s fees in malpractice cases.  He did not seek to cap fees paid by insurance companies.  Senator Ensign, being the good lieutenant for Big Insurance, thinks defendants deserve their day in court, with as many lawyers as they can afford.  He only scheduled surgery on the fees charged by trial lawyers who represent patients.  Fortunately, his attempt to stack the deck against patients was voted down 66-32.

The rejection of the Ensign Amendment included eleven Republicans who voted “No.”  Unfortunately, both Texas senators (Cornyn and Hutchison) voted for the Amendment and against You.  This is something to remember the next time they ask for your vote.

The contingent percentage fee provides people with limited resources a level playing field against large corporations and insurance companies who can afford to pay lawyers by the hour whether they win or lose. Take away contingent fee contracts, and the result is a legal system with no lawyers willing to take cases for You.  Try to find a lawyer to handle a worker’s compensation case, where fees are severely restricted for claimants’ lawyers (but not for insurers).  Few experienced trial lawyers  handle worker’s compensation claims.  Most of us, myself included, only accept “non-subscriber” or “third party” cases, where contingent percentage fees are allowed.

When the Texas legislature imposed a $250,000 “non-economic damage” cap on medical liability claims, the real purpose was to attack the profit motive for trial lawyers.  Those smart “reformers” realized “Them” lawyers would not risk the time and money necessary to develop these extremely complex cases when the stakes were artificially set so low.  “Us” Texans amended the state Constitution (even proponents of the cap knew it was unconstitutional), and as a result most victims of medical errors cannot find a lawyer to even consider their cases.  This does not prevent “frivolous lawsuits.”  It puts a choke-hold on all medical liability lawsuits – even those involving obvious neglect.  The legislation was passed in 2003, yet it still shocks people to learn how it cuts off their rights, once they go from being one of “Us” to one of “Them.”

When you hear the words “tort reform,” do not be fooled into thinking the only people affected are those “other people.”  The right to take a case to court and sue for damages protects all of us, and that includes You.

Christmas and New Year’s Day fall on Friday, so our offices will be closed Thursday and Friday of each week – December 24, 25, 30 and 31.  Our staff deserves the extra day, and we want to make sure everyone has ample time with their families.

Even though our offices will be closed, our phones will be answered.  If you have an emergency and need to reach us, call our main number, 713.400.4979.

All of us at the Waldman Law Firm wish you and your families a joyful and safe holiday season, and a healthy, happy 2010!

All of us at the Waldman Law Firm wish you and your family a happy, healthy, safe holiday season. We hope all of you have a wonderful 2010!

Please note our new Downtown Houston Office location:

Wedge International Tower,
1415 Louisiana, Suite 1575
Houston, Texas 77002

Finally, the holidays are a time for all of us to express our thanks to others.

We are thankful for our clients, who have placed their trust in us.

Thank you to the doctors, nurses, therapists, medical assistants and other healthcare providers who have helped our clients attempt to recover from their injuries.

Thank you to the judges, court personnel, court reporters, experts, investigators, records service personnel and others who have helped us in our clients’ cases.

Thank you to all of you who have helped make our new firm a success.

And thank you to a wonderful, hard-working, loyal and caring staff, and to all our families for putting up with us!

Friday, December 11, 2009, our downtown Houston office will be closed as we pack up and move to our new space. Fortunately, we are not moving far – just to the 15th floor of the same building!

Effective Monday, December 14, 2009, the new address of the Waldman Law Firm Houston office will be:

The Wedge Tower
1415 Louisiana, Suite 1575
Houston, Texas 77002

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All other contact information will remain the same, except we are adding a local fax number.

Here are all our numbers:
Main Telephone: 713.400.4966
Toll-Free Telephone: 800.925.3626
Toll-Free Fax: 888.899.3985
Local Fax: 713.752.0311 (effective Monday 12/14/09)

If you call us on Friday, our phones will be answered, and we are available if needed. We appreciate your patience, and we are excited to serve you in our new offices!

“We’ve got to protect our phony-baloney jobs, gentlemen! We must do something about this immediately! Immediately! Immediately! Harrumph! Harrumph! Harrumph!”

I sat in a room full of accomplished lawyers recently and listened to a distinguished speaker (the man has a resume the size of a Buick) lament “The Vanishing Jury Trial.” He gave many statistics about the demise of the jury trial and the threat this posed to our way of life. He did not just mean our “phony-baloney jobs,” as memorialized in Mel Brooks’ unforgettable turn as Governor William J. LePetomane in “Blazing Saddles.” He meant the underlying truth that we face the decline and fall of one freedom unique to Americans – the right to be judged by a jury of our peers, rather than autocratic judges imposing an arbitrary set of rules, or worse, government bureaucrats.

This was the second meeting of this group I have attended recently. The last one featured a discussion by another distinguished who also bemoaned the fact that fewer and fewer disputes are being aired out in our courts. All the big firm lawyers are talking about this. At least they are now.

What infuriates me is how late these lawyers have come to the defense of tort law, and how much their work contributed to its increasing irrelevance in the lives of ordinary people. Over the past 20 years, it has become increasingly difficult and expensive to try a lawsuit. Smart defense lawyers figured out myriad ways to block the pathway to judgment in favor of victims with legitimate claims, and to take that judgment away on appeal. Discovery (pre-trial procedures designed to allow the parties to learn about their opponents’ claims and defenses) has become a behemoth that takes months or years, costs thousands (sometimes millions) of dollars, and provides a series of procedural traps for the lawyer trying to represent a client.

These same lawyers sat on their hands as anti-jury-trial judges and appellate court justices were elected, and as an increasingly hostile legislature passed “reform” after “reform” designed to gut our jury system.

And now that the horse is out of the barn, these guys are sitting around wondering how to close the barn door. The “harrumphs” were echoed throughout the room. I fully expected the speaker to point at me (I was too appalled to “harrumph”) and say, “I didn’t get a ‘harrumph’ outta that guy!”

A few of us in the room raised our hands with the hope of pointing out the fact that the plight of lawyers who represent giant corporations that have grown tired of bloated legal spending had everything to do with the problem but nothing to do with the solution. One of my brethren (another plaintiff lawyer) was called on, and he excoriated those in the room (most of whom were defense lawyers) for failing to understand that restoring the ability of the average person to bring a case to court was the key to saving our jury system.

The “great silent majority” goes along with tort reform because they see the courthouse as a place where the rich go to protect their riches or get richer. After spending too much time explaining to people with legitimate yet moderate-sized (from a damages perspective) medical malpractice or product liability claims that the laws make it too difficult or expensive to prosecute their cases, I understand why these people “opt out” of the jury system. They avoid jury service like the plague, and do not care when legislators and judges take away their right to sue in court.

The only solution offered by the distinguished speaker was to find a “spokesperson” for the right of trial by jury. That person should be a non-lawyer, he suggested. The crowd, at least those of us not choking on our dismay, thought it to be an excellent idea. One lawyer suggested that things would change when one of the tort-reformers suffered a personal loss due to negligence. Someone even brought up the “pendulum,” that mythical political force that swings back and forth, which would hopefully move back toward increased access to the courts.

I am sorry, but these lawyers are delusional if they think we can hire someone to speak out for the jury system, await a conversion by anyone in the anti-jury crowd or expect a pendulum to swing back, and that any of these will undo all the damage done to our tort law.

Until we elect legislators and judges – particularly justices of the Supreme Court of Texas – who believe in the jury system and the right of regular people with everyday concerns to have their day in court, we will continue to see our way of life threatened. Our Founding Fathers included a right to a trial by jury in the Bill of Rights for a reason. As Thomas Jefferson explained, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

That is something to “harrumph” about.