Every year there’s an effort by politicians and groups like MADD (Mothers Against Drunk Driving) to make sobriety checkpoints legal in Texas. It’s no surprise that with nearly 1,300 alcohol related driving fatalities in 2010 alone that concerned citizens want the Texas government to take a more proactive stand on preventing drunk driving. This past week San Antonio Police Deputy Chief Anthony Trevino asked the Texas House Criminal Jurisprudence Committee to once again try to legalize sobriety checkpoints.

Despite having the highest number of fatalities, Texas only institutes 4 of the 11 recommendations put together by the National Transport Safety Board to stop drunk drivers. Sobriety checkpoints are one of the eleven recommendations and it’s a policy that’s been instituted in all but eleven states. Advocates have worked tirelessly since the mid-90’s on this issue, and it’s only natural to wonder – Why are sobriety checkpoints so controversial in Texas? It’s a controversy based on the very nature of government and how we interpret the U. S. constitution at Texans.

Sobriety Checkpoints – Understanding the Process

If you’ve lived most of your life in Texas like I have then you’ve never even seen a sobriety checkpoint. It’s basically a road block set up by law enforcement officers who check drivers for signs of impairment. A sign is put up near the checkpoint letting drivers know what is up ahead. Vehicles are stopped in a specific sequence like every fourth or sixth vehicle. If the officer believes a driver may have been drinking, that driver will take a breathalyzer. For most law-abiding folk, the whole things takes up about as much time as a stop light would.

Sobriety checkpoints are often placed in “hot spots” where statistics indicate DWI accidents are more common. By allowing police officers to get a good look at each driver, the chances that a drunk driver will slip by law enforcement undetected are much smaller. Sobriety checkpoints also act as a deterrent.  If a driver thinks they may have to be stopped and looked over by a cop on the way home, he or she may be a lot less likely to get behind the wheel drunk.

Certain states set up checkpoints during holidays or special events like the Superbowl where many people might be out drinking. The frequency of checkpoints can range among different states from weekly to monthly. Each state has a slightly different program, but the general procedure is the same: stop traffic and check drivers. It’s those same founding principles that cause division among Texan lawmakers.

The Constitutional Argument – Search, Seizure & Sobriety

In Texas the argument is that sobriety checkpoints are illegal under the U. S. Constitution. Despite the current Texan view, it’s important to note that the U. S. Supreme Court itself found properly conducted sobriety checkpoints to be constitutional in Michigan v. Sitz. The constitutional conflict centers on the question, Can the police stop me if I haven’t done anything wrong? The U. S. bill of rights generally prohibits law enforcement from searching or targeting someone who has not given the police any reason to be suspicious as a part of the fourth amendment against illegal search and seizures.

Our civil rights are essential, but many state courts along with the national Supreme Court feel drunk driving is an exception. Part of the exception is the high number of deaths that result from drunk driving and how those deaths can be prevented.

Like many constitutional arguments, the devil’s in the details. In this case it’s the idea of “I haven’t done anything to give the police probable cause.” Driving while under the influence or driving while intoxicated is a crime that happens the minute you turn your car on if your blood alcohol level is past a certain limit. How well you drive is actually irrelevant in terms of the law. Technically, you don’t really have to “do” anything to become a suspect. This makes probable cause very hairy.

Stopping someone who is behind the wheel while intoxicated is actually stopping them “in the act” even if they are not behaving strangely. The idea of I haven’t “done” anything wrong is tricky because if you are intoxicated behind the wheel your state of being is in itself illegal. How do you check someone for a crime that is based only on blood alcohol limit and not on specific behaviors? This legal interpretation means that anyone could be a drunk driving suspect, in which case the fourth amendment is not relevant.

Checkpoints – Personal Inconvenience vs. Public Good

Beyond the legal details, the heart of the argument in favor of sobriety checkpoints is about protecting the public. There are many lives at risk and while a sobriety checkpoint is far from ideal, it is necessary.

In many ways a sobriety checkpoint and a security checkpoint are similar. Most people find security checkpoints at the airport or at a courthouse to be somewhat annoying. We’re used to moving through places quickly and we’re used to being trusted. Having to stop and open a bag or a briefcase in front of someone else is no one’s idea of fun. We grumble, but we do it anyway and not simply because it is required. We do it because we realize that ultimately a minor inconvenience is a small price to pay for safety.

In a way we are making a trade. We are trading this little piece of our personal space and time for the well-being of the community as a whole. We have to balance our individual civil rights with the needs of others. Most times in the United States, particularly in the great state of Texas, we lean towards the side of personal freedom – which is something to be proud of. However, there are times where we must make an exception. This is one of those times.

Solutions At Work – No Refusal Campaigns Set the Stage for Checkpoints

When thinking about the balance between civil rights and drunk driving, keep in mind that in certain counties there are already holidays where the police institute “no refusal campaigns.” A no refusal campaign is where the officer can require you to give a blood sample that is tested for blood alcohol level. You don’t have the usual right to say “no” to the test, and if the blood test shows that you are over the limit, the evidence can be damning in court.

A no refusal policy touches on the same civil rights arguments as a sobriety checkpoint. Yet, it has become more accepted in North Texas counties and is not held to be unconstitutional in the state. Like a checkpoint, the campaign is equal parts catching violators and deterring potential violators. These campaigns have been largely successful and grants have raised money to expand the local program in Fort Worth.

Now that we know that North Texan law enforcement is capable of handling anti-drunk driving campaigns like these with overall efficiency, why not give the police a chance to institute sobriety checkpoints? The public has been able to accept the first step forward, isn’t it time we took the next step towards rooting out drunk driving?

In states where sobriety checkpoints are already in place, some studies measured the public approval rating as 90%. If the Texas state government takes the imitative, public support is statistically likely to follow.

A Matter of Life & Death

Sobriety checkpoints save lives, and that’s more important than anything else. If there comes a time where we have more effective means of preventing drunk driving, and lives are no longer at stake than we can revisit the issue of personal freedom. Right now, we can’t afford to take that chance. Texas continues to have a higher than national rate of drunk driving accidents and fatalities. We have to do more to combat this problem. A sobriety checkpoint system is one more tool that we could be using to improve the safety of Texans.

Instead of looking at sobriety checkpoint as Why are they stopping me? I’m innocent? Start thinking of it like, If they hadn’t have stopped him. He would have hit my car and injured my family. Those who have lost loved ones to drunk drivers in the past know that the hindrance of a checkpoint is a small price to pay.

Keep our neighborhoods and families safer during this holiday season by encouraging your State representative to support sobriety checkpoints. In 2010 a law made it past the House and nearly through the Senate. As the new year begins it’s time to make drunk driving prevention a priority once more. Let’s finally make sobriety checkpoints legal in 2013.

As a personal injury attorney, I file wrongful death lawsuits, and I like to stay informed about major wrongful death cases throughout the state. Recently, wrongful death lawsuits have been filed in Austin against state prisons over the prisoners who died from heat related causes last summer. What’s happening in Austin courtrooms today could set precedents for cases across the state and even the nation.

The McCollum Story

The Texas Civil Rights Project and Austin attorney Jeff Edwards are suing the Texas Department of Criminal Justice for the wrongful death of Larry Gene McCollum who died of hyperthermia last summer in a Dallas jail. McCollum entered Hutchins State Jail in July when he was convicted of forgery and sentenced to eleven months. The 58-year-old father was overweight but in reasonably good health when he arrived at Hutchins. The temperature inside the jail was only slightly cooler than outside. Prison employees are supposed to give out additional water and fans to inmates under these conditions. McCollum was new to the prison and did not yet have the identification card that he needed to receive water or a fan. After three days of heat and dehydration, McCollum collapsed. His body temperature was over 109 degrees when he was taken to the hospital. He was unable to recover and died on July 28, 2011.

McCollum’s son Stephen McCollum expressed his shock and grief at the harsh conditions that caused his father’s death at a press conference in Austin. He said, “For this to happen to any human being is beyond my belief. There’s pets in pounds that have better conditions.” Sadly, Stephen McCollum is not the only one to lose a loved one from prison heat conditions. There have been many deaths and debilitating injuries as a result of a lack of air conditioning. The Texas Civil Rights Project believes that there were at least nine deaths last summer alone including inmates Togonidze, Martone and James. The non-profit has filed lawsuits like these in the past including a 2008 case where a prisoner became ill in what expert’s determined was a cell with a heat index of 134 degrees.

Texas Adheres to a Lower Standard

Last summer’s deaths are indicative of an on-going health risk within Texas prisons. Of the 111 prisons owned by the Texas Department of Criminal Justice, only 21 are fully air conditioned. Many of the partially air-conditioned facilities do not have air conditioning in the cells where inmates spend most of their time. According to state law, county jails must have a temperature no higher than 85 degrees, but state prisons don’t have to conform to county jail standards. The Texas Department of Criminal Justice has also chosen to ignore the national standard set by the American Correctional Association which recommends that temperature and humidity be mechanically lowered to an acceptable level. As temperatures rise this summer, reports of more incidents are expected to come through. There have been sixteen heat-related illness reported in 2012 alone, and that number will only go up.

Don’t Get Too Comfortable

One argument against air-conditioning is that it will make prisoners too comfortable. Comfort is not something that prisoners should enjoy, but scorching heat isn’t just a discomfort; it’s a threat to your health. The perception that air condition is a luxury in jails where the heat index has been measured at 134 degrees is simply false. It’s not a luxury if the alternative is at least nine deaths in a single summer. The state of Texas has the death penalty for certain crimes that are judged with due process to deserve that extreme sentence, but the sentence for small-time crook and father McCollum was supposed to be less than a year in Dallas’ Hutchins Sate Jail, not death by hyperthermia. Once is an accident, but multiple deaths each summer in Texas’ prisons isn’t an accident – it’s a choice.

Cruel and Unusual: One Basis for the Suit

One of the core principles in this suit is the idea of “cruel and unusual punishment.” The Constitution outlaws cruel and unusual punishment but doesn’t elaborate on the many different kinds of punishments and environments that can be defined as cruel or unusual. Some practices are obviously barbaric like the electric chair or burning someone alive. In today’s modern world, a non-air-conditioned jail during a Texas’ summer could be considered cruel and unusual. With body temperatures of over 109 degrees, the inmates listed in these suits literally burned to death on the inside with autopsies that indicated heat stroke and hyperthermia. While it may not be as dramatic as medieval-style punishments, the results are still fatal. A prison with an indoor heat index that is rated as dangerous or even extremely dangerous is a serious hazard. One of the aspects in these lawsuits, and of any wrongful death case, is that death could have been avoided. There is no reason in civilized nation like the United States that someone should die because it was too hot outside. The Department of Justice could have prevented these deaths, the question is, why didn’t they?

Government Response

The Texas government has not responded well to the allegations and has replied in a way The New York Times referred to as “not sympathetic” after conducting interviews with state leaders. Chairman of the State Senate Criminal Justice Committee, Democratic State Senator John Whitmire told The New York Times, “Texans are not motivated to air-condition inmates. These people are sex offenders, rapists, murderers. And we’re going to pay for their air-conditioning when I can’t go down the street and provide air-conditioning to hard-working taxpaying citizens?”

Are Texans really unmotivated to improve the system? There are more than 170,000 people incarcerated in Texas and more than 55,000 are from right here in Dallas. Burglary of habitation (habitation is a legal word for home) is the most common crime resulting in incarceration in Texas. As for the crimes that Senator Whitmore mentions – sexual assault, rape and murder – none of those three even make the top five most common crimes that prisoners are serving time for. So let’s start our analysis of Whitmore’s statement by understanding that the majority of prisoners are not those offenders.

Additionally, no one expects to treat prisoners like our own law-abiding neighbors, but even in their condition they have certain rights and needs. As a taxpayer I already pay for inmates’ food, water, electricity, plumbing, healthcare and recreation – just as I pay the taxes that fund the judicial system which takes criminals off my friendly neighborhood street and incarcerates them in the first place. Like most people, I can’t say that I really enjoy paying taxes, but it is my responsibility as a citizen and it is my responsibility as an American to want the prisoners in our state to survive the summer heat. There are numerous expenses associated with the Texas prison system and there is no reason why air conditioning shouldn’t be one of the essential needs like food and water that is met.

What’s The Cost?

Discussions about the massive Texas prison system often come down to dollars and cents. For all our complaints, it’s not always easy to calculate how much our decisions cost. Adding air conditioning units would be expensive, but the need is great and will only grow over time. At the end of the day no matter how the numbers shake out, the monetary cost was never meant to out weight the human cost. The pending lawsuits will serve as a reminder to the government of the emotional and monetary price of neglect.

Lawyers Step In

Over the Fourth of July holiday, we all spent time appreciating our freedom and independence. We watched fireworks and listened to the national anthem. It’s easy to be patriotic when faced with potato chips and sparklers, but it’s more difficult to stand up for the constitution when it involves moral issues we’d rather ignore or government legislators we’d prefer not to offend. The eighth amendment against cruel and unusual punishment is as essential as any of our other freedoms, and it’s important for lawyers and citizens alike to step in to remind the Texas Department of Criminal Justice that human rights are important no matter what you’ve done. So turn up the AC Texas, it’s going to be a hot summer.

Every industry has its negative stereotypes whether it’s a doctor who’s a quack or a politician who’s a hack. In the field of personal injury, we call them “ambulance chasers.” What most people don’t realize is that ambulance chasing isn’t just shady; it’s illegal. You may not see the words “ambulance chaser” in the legal code but you will see the more antiquated word “barratry.” Barratry occurs when an attorney offers legal services to someone within 31 days after an accident.

What Is the Difference Between Barratry and Marketing?

Here’s the deal – all the legal marketing that firms do is to help those following an accident make an independent, informed decision on representation. A law firm should never contact you directly regarding an accident. You may see an ad on TV, check out their website or even drive past a billboard, but you should never get a call out of the blue from an attorney that you did not make contact with first.

What Are We Doing About it?

The Texas legislature is finally cracking-down on this immoral and illegal practice after a reported increase in the number of incidents and a recent public scandal. The idea is to smoke out ambulance chasers and then formally charge them rather than turning a blind eye to the practice, as they have done too often in the past. The charges are serious – for an attorney, barratry can mean disbarment and up to 10 years in prison.

This may seem harsh to some, but keep in mind the number of clients that ambulance chasers cheat on a daily basis. These types of lawyers often partner with medical professionals like chiropractors or unethical marketers in order to misrepresent themselves to potential clients. Their deals can include other types of illegality like insurance fraud.

Put yourselves in the shoes of the victim – you’ve just been in a terrible accident, or worse, you’ve just lost a family member and right-off-the-bat a suit-wearing stranger saunters up and hands you a business card.  It’s a disrespectful practice that at best angers victims, and at worst prays on people’s emotional and physical weakness in order to make a quick buck. Now you can see why Texas is stepping up their enforcement of barratry laws.

Why Now?

Rep. Reynolds, Ron District 27, Photo from Texas House

Ambulance chasing has been on the rise. No one is exactly sure why, it could be the economy or the law has changed. One attorney’s actions caught the entire state’s attention. The public shock came when Texas State Representative Ron Reynolds of Missouri City was charged for barratry along with a chiropractor and marketer. The allegations are that a Houston attorney who was in an accident was contact immediately afterwards by the marketer. The attorney, who knew the practice of barratry was illegal, decided to use this as an opportunity to catch the wrong-doer red handed. The marketer set up an appointment with the chiropractor. After arriving at the clinic she was presented with an attorney-client contract for Reynolds to represent her. When the she told the chiropractor that she wasn’t injured, he worked on her until she was in pain to simulate a real injury.

Representative Reynolds stated that he was completely innocent. He has served as an adjunct professor at Texas Southern University and has voted in favor of barratry penalties in the past. He said the allegations were brought forward for political reasons which is a claim I won’t dispute, since I’m not familiar with all the legal details of the case. However, I am sure that whatever the catalyst, any measure the state takes to prosecute ambulance chasers is one that will improve the overall reputation and service of personal injury attorneys across Texas.

More than Just Disbarment or a Fine…

To prove they are serious about ending barratry in Texas, the Texas House passed a law that empowers victims to sue a lawyer or someone who is working with that lawyer for damages. If the victim signed a contract he or she can sue for the money paid to the lawyer plus additional damages. Even more empowering, anyone who is approached by an ambulance chaser but does not sign a contract can still sue for up to $10,000.

Since the law’s enactment and after the Representative Reynolds scandal, prosecutions for barratry have gone up. By this time last month Houston had already convicted two ambulance chasers for barratry including Corpus Christi attorney Benito Garza. These changes may have begun in Houston, but it’s only a matter of time before Dallas begins to prosecute these cases. The sooner the better – it’s time to reassure the public that they will not be cheated by unethical attorneys, and to give the honest personal injury lawyers in town an opportunity to shine.

The summer is a time when many of us pause while on vacation or at a slow day in the office and wonder about our future. What will our business be like this time next year? This time ten years from now? What are the big-picture changes facing us? As the economy shifts and elections heat-up, a lot of Americans are wondering about our futures and the future of our industries.

One invention, in particular, has really got me thinking. As a personal injury lawyer who helps clients who have been injured in car wrecks, I try to keep an eye on major changes in the auto industry including April’s New York City auto show.  At this past April’s show the world’s first legitimate flying car was revealed. That’s right, a flying car.

The Massachusetts company Terrafugia has been working on flying cars since 2006, and their latest model called “Transition” is the real deal. It has all the specs you’d expect for a car like rear-wheel drive and all the auto crash-safety features. From airbags to parachutes this car is a marvel of engineering. I only wish they had painted it a different color.  (If you’re going to drive a flying car, wouldn’t you want it to be red?)

Imagine Yourself Flying the Transition

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Official Photo of Transition Soaring the Skies

Just think about a day with a flying car. In the morning you can turn to your spouse and say, “honey, traffic on 35 looks bad, I’m going to fly it instead.” First you drive to the gas station to fill it up your eye-catching machine, and then head down the highway going 70 mph towards the airport. Once you get there, the wings of the car fold down until you’re ready to lift off.  The car then flies at a speedy 115 miles per hour and has flown as high as 1,400 feet.

Worried about gas mileage? Don’t be! The Transition gets 35 miles per gallon on the road and 5 gallons per hour in the air. You can fill the whole 23-gallon tank up at a Seven-Eleven near you.  Worried that you won’t be able to fly the car if you can’t pilot a plane? Turns out, that for less time than it took you to get a driver’s license you could be in the air. According to the Terrafugia sales pitch, “Become a Sport Pilot in as little as 20 hours of flight time.”

Too Good to Be True?

The only one hitch in this future wonderland – the current price tag of this dream-come-true. With deposits on models starting at $10,000 (several have bought in already) the car itself is valued at a heart-wrenching $279,000. Still, this is just the beginning.  I better spend my summer vacation cleaning out the garage so one day there’ll be room. Who knows, maybe it won’t be so long from now that the Rasansky Law Firm is blazing the trail in Texas Flying Car Law.

A recent piece by Becky Oliver at Fox 4 revealed how dysfunctional the Texas Board of Medical Examiners is. She uses some alarming statistics and focuses on several Texan families who have experienced first-hand how harmful the institution can be. To understand what makes these heart-wrenching stories so important, you have to understand what the board’s role is in the medical oversight system as a whole.

What You Need to Know About the Board

The Texas Board of Medical Examiners was designed to protect patients from doctors and other medical professionals who are unethical or harmful. The idea was that doctors, who are best equipped to understand when a medical mistake has been made, would police their own. The board would place those who failed to live up to the standard of care under review, and, if necessary, enforce a variety of disciplinary actions. These actions can be anywhere from a small fine to revoking a doctor’s right to practice.

Like many institutions, there’s nothing wrong with the idea of the board. In the abstract, it is an ideal mission where the goal is “to protect and enhance the public’s health, safety and welfare by establishing and maintaining standards of excellence used in regulating the practice of medicine and ensuring quality health care for the citizens of Texas through licensure, discipline and education.”

Where the Board Has Failed

What’s frustrating is the execution of the board’s lofty principles. It’s the Texas Board of Medical Examiners inability to address Texan’s serious health concerns that has turned a noble ideal into a hectic bureaucratic organization that too often over-protects doctors at the expense of patients. The board has failed on three levels: They are ineffectual in conducting timely investigations; they refuse to provide adequate transparency for patients who are involved, and they are unwilling to enact proportional disciplinary responses once a problem has been discovered.

Numbers wise, it breaks down like this:

• In the last 9 years complaints have gone from 4,900 to more than 8,000.
• Despite the increase in complaints, investigations have gone down 25%.
• For the few that are investigated, claims take on average 328 days to resolve.
• Texas is ranked 34^th nationwide in disciplinary actions against medical professionals.
• The public only sees disciplinary action, and even then only when it’s been finalized.

Real Life Examples of Hardship

It can seem very impersonal, until you listen to the stories from patients who are desperate to get the board’s attention.  Many individuals’ voice their concern in the Fox 4 news piece. One of the saddest is the viewpoint of the Dickerson family. Jennifer Dickerson saw a maternal-fetal medicine expert, Dr. Manuel Rivera-Alsina, when she was pregnant.

He failed to diagnose the baby’s congenital diaphragmatic hernia, leaving the family in a difficult position with no opportunity to look for treatment. Their daughter died right after she was born, and the Dickersons looked to the Texas Board of Medical Examiners for answers. After a lengthy process, Dr. Rivera-Alsina walked away with an insignificant $2,000 fine and instructions to get more training. A response that the Dickersons believed was negligible compared to the damage he had done.

It’s not only the measure of the board’s response; it’s also the snail pace of the investigations. In one case mentioned on the news, a woman underwent botched plastic surgery that was more than just cosmetically problematic. She actually had to have 27 follow-up surgeries and has to wear braces to keep her feet in place for the rest of her life. She brought a complaint against the doctor, Dr. Molina, to the medical board.

The board dragged its feet, and during their lengthy tight-lipped investigation one of his newer patients, Monica Moreno, was fighting for her life. Moreno had contracted a severe infection after the surgeon performed what should have been routine procedures.  The Moreno family has commented that of course they would never have gone to the doctor if they knew of the prior complaints. If the board is meant to prevent doctors from continuing to make mistakes, then they need to suspend those under investigation or act faster because during the average 328 days it takes to investigate, other patients are at risk.

Notorious Offenders – Letting the Worst Offender Go

Sketch by Greg Conlin of Dr. Jacques Roy at his federal detention hearing - NBC DFW

The most publicly embarrassing incident for the board that Oliver addressed was related to the now infamous Dr. Jacques Roy. If you haven’t already heard, Roy has been accused of committing the largest act of Medicare fraud ever recorded – stealing $350 Million dollars from the government. Most of the nation had never heard of the Rockwall doctor until he was arrested, but the Texas Board of Medical Examiners had dealt with him before.

He was investigated in 2001 after the death of Deborah Sommers. She died with an elevated level of hydrocodone in her system. A full investigation by the board showed the doctor was having an affair with her and wrote her nearly forty prescriptions for the drug. Her daughter Amber, then 9 years old, talked about how much the doctor’s name has haunted her family. If the investigation showed all this, what was the board’s decision? Five years of probation – a sentence that obviously didn’t do the trick because he’s now being held in Federal prison.

The Big Picture – How This Effects All of Us

Although I do not personally know any of these families, much of what they have experienced rings true for the clients and potential clients that communicate with our office daily. They feel pushed aside or sometimes completely forgotten by the Texas Board of Medical Examiners and the system as a whole. In today’s political climate, the civil justice system is simply not equipped to process the volume and complexity of medical mistakes that occur in Texas. We need the Texas Board of Medical Examiners to do its part.

As Becky Oliver explains in her broadcast, one of the justifications for tort reform was to enlarge the size and powers of the medical board to ensure that the justice that now could not be dealt in the courts could find a home in the medical peer-review system. The board’s inability to efficiently and fairly investigate medical professionals has further unbalanced an already unequal system.

Early this month The Dallas Morning News ran a story called, “Civil Jury Trials Plummet in Texas” that mentions some staggering statistics on the decline of civil juries. While the average person might still think most lawsuits end with compelling arguments before a group of twelve of your fellow citizens, the reality is that juries are quickly disappearing from our trials.

For example, in 1996, 1 in every 48 lawsuits filed ended in a jury verdict. By comparison, last year only 1 in 183 lawsuits went before a jury. These numbers are even more significant because while the number of jury trials has decreased by a third, the number of lawsuits has increased by about 25%. These days only 20% of all civil disputes are resolved by juries.

So why are jury trials disappearing? The article makes several good points. It identifies these major factors: tort reform, Texas Supreme Court rulings, legal costs and lawyers’ willingness to try cases in front of juries.

Caps, Courts, Costs and Cowardice

Now I’ve already written a lot on tort reform, but I don’t think I can stress enough how much it effects civil trials. Tort reform changes have made it much more challenging for the injured parties to win a lawsuit. It has simultaneously ensured that even after presenting a flawless case, awards may not cover all the damages.

In addition to the problems caused by tort reform, the Texas Supreme Court has made changes in how the law itself works in terms of civil trials. What this comes down to is that important decisions that the jury used to be trusted with are now at the judge’s discretion. Here’s another look at the numbers: In 1996 only 3,488 cases were resolved by judges in motions for summary judgments, but by 2010 it shot up to 5,597 cases. Begging the question, how many will be decided that way this year? Will it continue to increase through 2012?

Changes from the Top

The Texas Supreme Court and along with the appellate courts are sending a message – jury verdicts are less valid than decisions made on the bench. Unfortunately, there are many judges who seem to agree with this.

One of my favorite quotes from the article was from Judge Molberg who stands behind an individual’s right for a trial. He told The Dallas Morning News this, “Binding mandatory arbitration has been driving cases out of our court system and toward rent-a-judges and tort reform has discouraged or impeded people’s right to jury trials. Some people may think that is a good thing, but it means that real people are not getting their claims heard — at least not by a jury of their peers.”

Court Fees Out of Control

It’s not only about attitudes and political philosophies; some of this comes down to nickels and dimes. Or in this case, hundreds even thousands of dollars in legal costs. The expensive process of discovery compounded with high court fees can be debilitating for law firms and even small companies. Ultimately, those costs are passed down to the clients, plaintiffs and defendants both, who deserve to have their day in court.

Facing a Jury

This all asks the question – what about lawyers? How do we feel about being in front of a jury in Texas courts? Houston attorney David Beck comments in the article that there are high-ranking lawyers out there in big firms who have never really tried a case before a jury.

Trying a case in front of a jury is still one of the most important experiences an attorney can have. A jury trial should never be something a lawyer shies away from. A decision to take a trial to a jury should be made only with the client’s best interests at heart. Of course you have to factor in legal strategies and costs, but lawyers have a responsibility not to settle solely based on their own fear of a jury verdict.

Upholding the Right to Have a Jury

A right to a jury of our peers is a core American value. It’s a founding principle in our government and it should be just as highly valued today as it was when Thomas Jefferson included it in the Declaration of Independence. It’s up to all of us to ensure that civil juries aren’t a thing of the past.

This month is National Distracted Driving Awareness Month and the National Safety Council (NSC) in D.C. has made a national wide ban on all cell phone use while driving it’s number one priority. Piggy backing on the report that the National Transportation Safety Board (NTSB) released last December, the NSC has released its own 2012 report which says that phone use was cited in at least 24% of car crashes.

Now both national organizations are asking the States to ban all cell phone use on the road including texting, talking and hands-free devices. If that sounds extreme at first consider some of the other harrowing stats from the National Highway Traffic Safety Administration (NHTSA):

• Using a cell phone while driving – whether it’s hand-held or hands-free delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent.
• Sending or receiving a text takes a driver’s eyes from the road for an average of 4.6 seconds, the equivalent-at 55 mph-of driving the length of an entire football field, blind.
• Headset cell phone use is not substantially safer than hand-held use.
• Driving while using a cell phone reduces the amount of brain activity associated with driving by 37%.

The national ban is a big step, but no more extreme than the facts. Now that these national organizations are calling for change, hopefully we’ll see positive changes right here in Dallas. It won’t be overnight, but we can each do our best to be safer.

Take this month of April to make a change in your routine. Even if you don’t usually answer your cell when you’re driving, take the added precaution of placing it on silent – that way you won’t be tempted to say a quick ‘hello’ and risk being in an accident.

As a native Texan, I’ve seen my fair share of tornadoes. The tornadoes that ripped through the Metroplex this week were the most frightening in years. Together our staff watched the warnings on TV and spoke over the phone with loved ones on Tuesday afternoon, making sure that everyone was as safe as they could be under the circumstances.  My office and home were lucky not to have been damaged by these twisters. Our hearts here at the firm go out to all those were not so lucky.

When weathering tornadoes the most important thing to remember is to be prepared. The more organized your family and friends are, the safer you will all be. Organization and preparation are particularly key for large institutions like schools, hospitals and nursing homes

For instance, the Green Oaks nursing home in Arlington was badly damaged this past Tuesday. Despite the extensive physical damage, there were only two minor injuries.  When the tornado warnings were issued, residents were moved from the residential wings into the reinforced center of the building. The tornado actually tore the roof off the building, but almost all the residents were secure. Green Oaks had a plan, and it worked.

Here are some of my own constructive tips on how other nursing homes can be prepared for tornadoes:

Awareness – Understanding the Risks

Every nursing home operator and manager should know that tornadoes occur most frequently in the United States, east of the Rocky Mountains, during the spring and summer months. In an average year, 800 tornadoes are reported nationwide, resulting in 80 deaths and over 1,500 injuries. In the southern states, such as Texas, peak tornado occurrence is in March through May.

In Touch – Monitoring News Coverage

When conditions are favorable for severe weather to develop, a severe thunderstorm or tornado watch is issued. Weather Service personnel use information from weather radar, spotters, and other sources to issue severe thunderstorm and tornado warnings for areas where severe weather is imminent. If a tornado warning is issued for your area and the sky becomes threatening, nursing home personnel must move their patients to a per-designated place of safety. Organizations should have someone assigned to monitor radio stations so that appropriate measures can be taken.

Shelter – Choosing the Safest Place

Institutions in our area should consider specially-reinforced safe areas and be prepared to move occupants there in the event of a warning. Buildings without these areas should have a pre-designated shelter such as a basement. If an underground shelter is not available, move into interior hallways or small interior rooms on the lowest level. Avoid auditoriums, gymnasiums and other large rooms with long free-span roofs. Corridors with exposed entrances (as opposed to interior hallways) can be dangerous. Avoid glass display cases, glassed-in stairwells and doorways.

Don’t Hesitate – Seek Shelter ASAP

It’s a myth that open windows equalize pressure and minimize damage when a tornado strikes. Opening windows allows damaging winds to enter the structure. Leave the windows alone and immediately go to a safe place. Since weather services can provide some warning about hurricanes and tornadoes it is imperative that a responsible individual monitor such information. Advisories are immediately passed on to the media. If no one is available to constantly monitor radio or TV there are numerous services that send weather alerts to E-mail addresses, pagers and cell phones.

Organizational Checklist

Every nursing home must develop a severe weather action plan. You should identify the area of your safest area(s) and have frequent drills. Some specific issues of concern:

• Make sure someone knows how to turn off electricity and gas in the event the building is damaged.
• Keep residents in the building even if scheduled to leave. Seniors are safer inside than in a bus or car. Residents should not be allowed to leave with family members if severe weather is approaching.
• Gatherings in large spaces should be delayed if severe weather is anticipated. Large rooms, cafeterias, and auditoriums offer minimal protection from tornado-strength winds
• Move Residents quickly into   interior rooms or hallways on the lowest floor.
• Practice drills must be carried regularly and routinely.

Around this time, every year, thousands of Americans begin receiving an email for the “Stella Awards.”  Like many of these chain emails, it’s full of sensational and completely bogus information.  And like other email chains of this nature, most people will take it at face value (since it is usually forwarded from a friend) including members of the press.

For those lucky enough to not have received a copy of the Stella Awards, here’s a rundown.  The Stella Awards are supposed to be annual awards for the most frivolous or outlandish lawsuits filed in the U.S. for that year.  They are named for Stella Liebeck, the woman who sued McDonald’s in the hot coffee incident.

The truth is that these so-called awards aren’t actual awards. They aren’t annual.  They aren’t even actual cases!  These same crazy stories of a civil justice system run amuck are circulated every year and are all fabricated.  Do a search on any of these so-called awards and you will find every reputable fact-checking site has debunked these cases.

The icing on the cake is the use of Stella Liebeck’s name for these fictional awards.  Once again, tort reformers, big business (who are surely behind this misleading email chain) and pro-tort reformers have misrepresented the Liebeck case in order to discredit the justice system.  The Liebeck case was anything but frivolous and uncovered an entire culture within McDonald’s that put its patrons at risk.  Liebeck’s burns were so severe, she almost lost her life.  McDonald’s was assuredly aware of the risk associated with brewing their coffee at a temperature above safe human consumption and had even hired a full-time employee just to deal with coffee-burn victims.

So, what you have in the Stella Awards is a blatant piece of propaganda that has been spread from email to email for years.  The worst part of this is those same people who are passing this around are the very people civil justice system is set up to protect.

Unfortunately, the Stella Awards are just another piece in a propaganda machine that has actively sought to protect insurance and big business for more than a decade.  The misinformation that has been spread has lead to horrible, damaging tort reform and I see the effects it has on citizens every day.  The Stella Awards are just another way to condition Americans into believing there is a need for tort reform when it was never an issue to begin with.

The fact is the justice system works.  When a frivolous or pointless lawsuit is filed, it doesn’t make it very far.  It’s thrown out.  By misrepresenting cases and spreading lies, insurance companies and pro-tort reform politicians have been able to warp much of the public’s perception to better line up with their vision of the civil justice system.  And make no mistake, their vision for the civil justice system has nothing to do with protecting your rights.

I encourage you to do your own research.  One way you can do this is to watch the fantastic documentary, Hot Coffee.  It does a masterful job of laying out the REAL facts of the Liebeck case and goes on to show exactly how the public has been mislead in the tort reform debate.

If you receive a copy of the Stella Awards, I hope you will be confident in knowing the cases contained are either fake or gross misrepresentations of the facts.  Hopefully, you will be let your friend know the same and maybe one day, the truth will be as widely known as the lies contained in the Stella Awards.

A recent report conducted by the nonprofit consumer advocacy group, Public Citizen, has found what many of already knew – damage caps only serve to hurt the consumer and protect insurance and big business.

The report, “A Failed Experiment”, discovered that the 2003 Texas law that placed limits on settlement amounts in malpractice cases has done the opposite of what it is said to do.

Since 2003, Medicare spending and consumer healthcare costs have risen in Texas at a higher rate than the rest of the country.  In addition, the number of doctors in Texas hasn’t grown near the rate that was promised. Both of these results are what the law was supposedly enacted to avoid.

As somebody who witnesses the devastating effect this so-called tort reform law has daily, it is always good to see people and organizations that are willing to take the time to uncover the true facts surrounding the tort reform debate.  This is especially important during a time when conservative politicians, such as Rick Perry, are lining up to spread misinformation about these big business endorsed laws, despite the actual facts surrounding them.

Public Citizen’s report comes on the heels of the eye-opening documentary, Hot Coffee.  Hot Coffee does an amazing job of not only showing how tort reform has hurt citizens across the US, but also lays out the manipulative and deceitful tactics that were used to pass tort reform in the first place.  I really can’t recommend it enough.

If you or a loved one has been hurt by tort reform laws, leave comment and tell us about it.  Think tort reform laws are helpful? I would love to hear your reasons.