Posted on Fri, Feb 17, 2012 @ 12:30 PM
We’ve outlined in previous blogs several ways you can strengthen your disability case in preparation for the appeals process. One of the most important ways is work with your lawyer and doctors to ensure your medical records on file are detailed and complete, and clearly document your disability. This record becomes extremely important in the event your appeal has to go to trial.
But there is a second way to help your case that might surprise you—your vote for Governor. According to a recently issued report by Court Watch called “Thumbs on the Scale: A Retrospective of the Texas Supreme Court, 2000-2010,” the Texas Supreme Court of the past decade (which has had many members appointed by our current governor) has consistently ruled against Texas consumers on the side of corporate interests. Court Watch found that consumers lost 79% of the cases brought before the Texas Supreme Court between 2000 and 2010. Click here for the full article. Sadly, a large number of Texans with legitimate cases fought their battles and won at trial—only to see their judgment taken away by the Texas Supreme Court.
If you are facing the possibility of an appeal of your long term disability denial, contact Bemis, Roach & Reed for a free consultation. We will give you a frank assessment of your case.
Court Watch is a project of the Texas Watch Foundation, a non-partisan 501(c)(3) public education nonprofit organization. Texas Watch Foundation is dedicated to fair and open access to the civil justice system for all Texans. Court Watch has been monitoring and reporting on the Texas Supreme Court and the impact its decisions have on Texas families since 1996.
Posted on Fri, Mar 11, 2011 @ 09:31 AM
I met an interesting young man the other day who told me he was involved in a personal injury lawsuit. He had been in a collision with a commercial truck, injured and required surgery. The accident happened in Austin. Just out of curiosity, I asked who his attorney was because I probably know him/her. He told me he was represented by a Dallas lawyer, who referred the case to another Dallas lawyer. I asked him how he wound up with a Dallas lawyer for an Austin case and he told me he was unaware the lawyer was from Dallas until after he had already signed a contract. I asked how he didn’t realize the lawyer was from Dallas when he went to his office and the young man told me he never went to an attorney’s office. The lawyer came to him.
At this point, I became very uneasy because I knew there was a good chance this young man was a victim of a case runner. If so, he was likely being represented by an attorney with very little knowledge of the local legal environment, unproven skills, and questionable ethics.
Case runners are people who search out possible victims of negligence, such as car wreck victims, and try to steer them to a particular attorney. If you want to find one, all you have to do is let an 18-wheeler slam into you. As soon as the police report comes out (and sometimes before that) case runners crawl out from under their rocks to try to get your business. These people, and the lawyers who use them, do as much damage to victim’s rights as any tort reform bill, no matter how ill-conceived.
Barratry, or case running, is illegal in Texas. It is rarely prosecuted, however because, unless a victim complains, it goes unnoticed. The fact that it is not prosecuted however does not diminish the damage it does—both to the profession, and to the client. Clients who are represented by case runners are, unknowingly, victimized twice; first, by the tortfeasor, and second, by the unethical lawyer who must resort to illegal methods to get cases. Don’t expect these attorneys to treat their clients fairly, when their very first professional act, singing up the case, is done illegally.
So, if you’ve been involved in a serious accident, how do you avoid being the victim of a case runner? Read on:
1. Don’t sign with a personal injury attorney until you’ve been to his office (and verified he has one);
2. If anyone contacts you after an accident, other than a representative of an involved insurance company, there’s a good chance they work for a case runner. Don’t patronize any doctor, chiropractor, adjuster or attorney who contacts you directly;
3. Hire a local attorney for a local case, such as a car-wreck case;
4. Ask any attorney you interview whether he will work your case personally, or whether he will refer it to another attorney. If he’s going to refer your case out, keep looking;
5. If you want a referral, ask your friends or legitimate services, such as the Travis County Lawyer Referral Service, (512) 472-8303, for a referral.
If you have been in an accident and want a professional and ethical attorney, make sure you are the one who contacts the attorney first.
Posted on Tue, Feb 22, 2011 @ 01:51 PM
Austin Social Media and Its Effect on Austin Personal Injury Claims
The number of people who use social networking sites, such as Facebook, Twitter, MySpace, LinkedIn and Friendster, or who participate in a variety of forums, is expanding every day. This is particularly true in Austin, Texas, which has a significant number of people who participate in a variety of internet social media sites. Many of these sites, such as Facebook, Twitter and MySpace, act as homepage for the individual and contain not only the posts of the individual subscriber, but the posts of friends and family members who discuss events and activities that involve the individual subscriber. Many individuals also regularly post in forums pertaining to a variety of topics the individual may have an interest in. While some of these forums allow the individual to use an anonymous user name, in many cases it can be a relatively simple task to identify the individual.
It has become common for Austin, Texas personal injury lawyers on both sides of the docket in a general personal injury case or car accident case to search the internet for information concerning the victim and the negligent party. Insurance companies will review social media entries pertaining to the victim to see if the victim’s claimed injuries and damages are consistent with the posts of the victim and their friends on such social media sites. Similarly, counsel for the victim will search for information concerning the defendant. For example, our firm represented an individual who received catastrophic injuries as a result of the gross negligence of a drunk driver in an Austin, Texas drunk driving case. We were able to discover, through an exhaustive investigation of social media posts made by the defendant and his friends and family members, that it was the habit of the drunk driver to drink and get drunk on a regular basis. The defendant's comments concerning his drinking, along with the photos posted by friends and family members of his regular drunkenness at parties, were particularly damning.
We have also found that many drivers in Austin with fast cars like to participate in car forums to discuss how fast their car is and to note their modifications to their car. When they are involved in a car wreck, either they will post about the accident or some of their friends or fellow forum members who witnessed the accident or discussed it with the driver will post their observations. Often these discussions can be very incriminating to the negligent driver.
Social media has become a significant source of information concerning both the victims and the defendants in personal injury cases in Austin, Texas.
Here at Bemis, Roach & Reed we are continually learning all the nuances of the ever-changing media and how it can affect our clients.
Posted on Thu, Jan 13, 2011 @ 10:49 AM
Every winter, many find themselves the victims of carbon monoxide poisoning due to improperly functioning furnaces. Here at Bemis, Roach & Reed, we have represented many Austin, Texas accident victims in personal injury claims arising out of carbon monoxide poisoning.
The combustion process of a gas, oil or wood-fired furnace creates carbon monoxide. If the furnace is not properly maintained and vented, the carbon monoxide will enter the living area. Many people believe that if their furnace is not venting properly, they will smell gas or smoke. This is not correct and this false belief can cost them their life.
Carbon monoxide is a toxic gas, but, being colorless, odorless, tasteless and non-irritating, it is very difficult for people to detect. The other problem with exposure to carbon monoxide is that the initial symptoms, including headaches and vertigo, are often mistakenly associated with cold and flu symptoms. In the personal injury cases we have handled, our clients were often asleep at the time. Fortunately, in one of our cases, one of the family members awoke because of a severe headache and discovered their spouse unconscious as a result of carbon monoxide poisoning. They were able to call 911, obtain assistance and evacuate the home. Without this prompt action, this could have easily turned into a catastrophic brain injury or wrongful death case.
To prevent this from occurring, it is important to have a professional regularly inspect your furnace. While obtaining a carbon monoxide sensor is also a good preventative measure, it should not be relied upon to the exclusion of a regular furnace inspection.
Posted on Mon, Dec 20, 2010 @ 02:11 PM
Greg Reed, an Austin Personal Injury Lawyer, received judement in non-subscriber case.
Final Judgment in Workers Compensation Non-Subscriber Case
Bemis, Roach & Reed obtained a final judgment in excess of $1,100,000.00 on behalf of an injured worker on November 22, 2010. The employee worked for a used car sales lot and was injured when a co-worker accidentally ran over him with one of the vehicles on the lot.
Our client sustained very serious injuries and was hospitalized for several weeks. In addition, he was out of work for nearly two years.
In Texas, employers are not required to subscribe to the Texas Workers Compensation System. Texas is the only state in the nation that allows employers to opt out. If your employer subscribes to the workers compensation system, there are only limited circumstances in which you are allowed to go outside the workers compensation system and make a claim directly against the employer. If, on the other hand, your employer is a non-subscriber, you have the right to bring a negligence claim against your employer.
The law in “non-subscriber” cases is very favorable to the injured worker. In order to avoid a liability finding, the employer would have to establish that they were 0% negligent or that the employee’s own negligence was the sole proximate cause of the injury. As you can well imagine, that would be a rare event.
Negligence on the part of the employer can include failure to properly train employees, failure to provide proper equipment, and failure to provide sufficient manpower. Many other employer actions can constitute negligence, as well. If you were injured on the job as a result of a co-worker’s negligence or as a result of the negligence of your employer and your employer does not have workers compensation insurance, contact Bemis, Roach & Reed for a free consultation.
Posted on Thu, Dec 02, 2010 @ 02:55 PM
There are a significant number of people who want to avoid jury duty. Jury duty should not be avoided unless you are not the appropriate juror for the case at hand. We have men and women in the military who are giving their lives to support our freedom and our way of life. At home, jury duty is one of the best ways that each individual can help support our way of life. The only jury duty that a person should avoid is serving is on a jury in a case where they enter the court room with strong feelings or opinions that they will have a difficult time setting aside which favor one side or other on the case.
For example, our firm handles Austin, Texas personal injury cases in Travis County District Court. As Austin is the state capital, there has been a great deal of inaccurate advertising campaigns sponsored by insurance companies and big business about the need for tort reform. They cite a few cases as examples and more often than not leave out key facts that explain the results. The McDonald’s coffee case is one that is often used. They fail to mention that at this location the coffee was unreasonably hot. It was turned up so high that it was hot enough to cause third degree burns requiring skin grafts after only a few seconds contact with the skin. They fail to mention that a major children’s burn hospital had warned McDonald’s of the dangers associated with the coffee served at this temperature. They are quick to blame the victim, but leave out the fact that the coffee was so hot it deformed the coffee cup making it hard to secure.
Nevertheless, this case and others have been held up as examples of a broken system. No mention is made of the cases in which injured parties with valid claims are awarded nothing due to tort reform or jury bias against plaintiffs. Of the thousands of cases a day that are tried by juries it is only the few a year in which the plaintiff gets a high award that make the newspaper. The cases where the victim receives nothing don’t make the newspaper. Therefore, the insurance advertising and news reporting of only cases with high awards naturally leads many to develop a strong opinion against personal injury cases and those who bring them.
As a result, many believe that the plaintiff is greedy and at trial the plaintiff cannot combat this preconceived notion by informing the jury that the reason the plaintiff had to file suit is because the insurance company offered nothing or a nominal amount. We are not allowed to inform the jury of the defendant’s offer or even mention insurance.
There is nothing wrong about having a strong opinion. It is your opinion and no lawyer or judge will tell you that it is unjustified. However, it is important that if you have a strong opinion on any issue relating to the case at hand that you tell the court of your opinion during the jury selection process. You can ask to approach the bench and tell the court that you are concerned that your strong feelings may impact your ability to be fair in this particular case.
Studies have shown that people who enter the court with strong opinions prior to trial tend to listen more to evidence that supports their initial opinion instead of listening equally to all the evidence. If you don’t inform the court of these opinions then you are likely to be selected as a juror in a case to which you might not be the best juror.
Please accept the importance of the jury system and be sure to speak up if you already have strong feelings about an issue that is important to the case in which you might be selected to act as a juror.
Posted on Tue, Nov 30, 2010 @ 02:56 PM
The following post comes from Lloyd Bemis, a partner at Bemis, Roach, & Reed who focuses on Personal Injury law in Austin, Texas:
I have found that most of the clients I meet with in Austin, who have suffered a personal injury, are not aware of the fact that if their case goes to trial that the jury will be kept in dark about a variety of issues. Most people who are involved in an auto accident in Austin, TX believe that when the negligent driver’s insurance company refuses to pay their claim, that the injured party will be able to sue the negligent driver’s insurance company. This is not correct. Not only will they be forced to sue the negligent driver and not the negligent driver’s insurance company, the court will prohibit the plaintiff from even mentioning that the negligent driver has insurance.
Therefore, the jury will be led to believe that it is the driver who will have to pay the verdict. Also, if the negligent driver has had numerous prior driving infractions, such prior offenses are rarely admissible. In addition, due to the heavy marketing by insurance companies and big business interests, most people believe that plaintiffs have likely been offered a significant amount prior to trial, so that the trial is probably necessary because the plaintiff is greedy.
A plaintiff is not allowed to combat this preconceived notion by informing the jury that the only reason the plaintiff was forced to file suit is because the defendant either refused to pay the claim or only offered an insultingly low offer. All settlement negotiations are inadmissible. In questioning jurors after trials most are astonished when they hear how little was offered the plaintiff by the insurance company prior to trial.
Posted on Tue, Nov 23, 2010 @ 12:13 PM
In an interesting and newsworthy Texas personal injury law case, attorneys for TransOcean Ltd., the Defendant in the Deepwater Horizon case, is turning up the heat on workers injured in that incident. The San Francisco Chronicle describes the partciulars of the case, which are highlighted below:
- Transocean offered to pay injured workers six months salary for releasing their claims against the company
- Transocean filed a court document stating that 'in certain circumstances' it would cease paying injured workers full wages and benefits after December 15
- Transocean executed these filings in order to increase pressure on injured workers to return to work
These legal actions, undertaken by a large corporation against workers injured in major accident that triggered the BP oil spill and killed 11 people, can be intimidating to face. What do you do if you've been injured and are faced with pursuing legal action?
Whether you intend to seek counsel from an Austin personal injury attorney or an Austin long term disability attorney, you need qualified, experienced counsel that will pursue your rights to the maximum extent that Texas law permits. We applaud the attorney for the injured workers in the Transocean action, and we stand by our clients in all circumstances.
If you need to speak to an experienced attorney, we are available to help you.
Posted on Tue, Oct 26, 2010 @ 02:08 PM
A significant number of our Austin Personal Injury attorney clients are car accident victims. Those who have the right insurance coverage, have significantly less problems than those who have poor insurance. As the cost of insurance is a significant consideration in buying insurance, you need to know the types of coverage that are available and their relative merits. Bemis, Roach and Reed recommends that our clients obtain the following auto insurance coverage:
- Liability Coverage - This coverage is required in Texas. It pays for damages caused to others as a result of your negligence in causing an accident. The primary determination as to the amount of liability coverage you should obtain is how much protection you want in case you are negligent and injure one or more other persons or their property. The coverage is usually divided up between bodily injury coverage to pay persons who are hurt as a result of your negligence and property damage coverage to pay for any damages to others property resulting from your negligence. A victim’s Medical expenses and lost wages can easily exceed the minimum coverage available in even a modest accident. In addition, cars have become very expensive and there are few cars that are worth less than the minimum coverage. If you don’t have enough liability coverage and you injury someone, then you can be personally responsible for those damages in excess of your liability limits. Also, what is often overlooked in determining the amount of this coverage is that in all likelihood you will not be able to obtain underinsured motorist coverage for an amount that exceeds your liability coverage.
- Uninsured/Underinsured Motorist Coverage - This is where many of our clients have made the biggest mistake in buying insurance. You should maximize this coverage as it is what protects you and your family from damages that exceed the limits of the other driver. Although liability insurance is legally required, many ignore the law and don’t get any insurance and have no ability to pay your damages. In addition, the vast majority of people have low insurance limits. If you or others in your car are significantly injured as a result of the negligence of someone with low insurance limits, it is likely that you will not be able to recover your damages without underinsured/uninsured motorist coverage. Even if you have health insurance, it won’t pay all your expenses and will not cover any of your lost wages or compensate you for what could be a lifetime of pain caused by the negligence of an uninsured or under insured driver.
- Personal Injury Protection Insurance- This is the second most overlooked, but vital insurance coverage. It is often referred to as PIP. It is so important that the state mandates it unless you sign a waiver refusing the coverage. It covers your and your passengers’ medical expenses and 80% of your or your passengers lost wages which result from a car accident regardless of who was at fault. Many think that because they have health insurance they don’t need PIP. They are mistaken. Many healthcare costs may not be paid by health insurance and if you are off work for just three weeks following an accident, how are you going to pay your bills? Some insurance companies like to offer med pay coverage instead of PIP. We do not recommend med pay over PIP. Med pay coverage does not reimburse you for your lost wages and your insurance company will want to be paid back the money they paid in med pay if you make a recovery from the negligent driver. Also what most people don’t realize that if the other person is at fault, their insurance company will rarely reimburse you for your medical expenses as you treat. They will only want to negotiate with you for a full release of your claim. If you require treatment over any period of time and don’t have PIP then you may find yourself unable to pay your medical bills, have no income through no fault of your own and get no assistance from the insurance company of the at fault driver.
- GAP Insurance- If you purchased a new car and it is destroyed within the first year of your ownership, you may find yourself owing more on the car that what it is worth. In Texas the negligent driver only owes you the fair market value of a totaled vehicle. If you owe more than the car is worth, the company who financed the car would get the fair market value money from negligent driver’s insurance company and you would be left owing the financing company the difference with no recourse against the negligent driver who paid all he was legally obligated to pay. Those who owe much more than the fair market value of their vehicle should consider GAP insurance which would cover this deficiency.
Collision Coverage- This covers the damage to your car regardless as to whether an accident was your fault or others.
| If you're in an accident, contact Lloyd Bemis today for a free legal consultation. |
Posted on Sun, Mar 21, 2010 @ 05:54 PM
Negligence, as it relates to the law, is generally defined as conduct which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances, resulting in an unintended injury to another party. For a plaintiff to recover damages, this action or failure must be the “proximate cause” of an injury, and actual loss must occur. It is usually the function of a jury to determine whether negligence occurred, and the obligation of the plaintiff to demonstrate the defendant’s negligence by a preponderance of the evidence. Negligence claims are a leading source of modern civil litigation. Common negligence cases include car accidents, truck accidents, DUI accidents, manslaughter, product liability, and medical malpractice lawsuits.
For example, an individual who drives under the influence of alcohol or drugs is acting negligent. They are aware of the effect of alcohol or drugs on their behavior and yet they still choose to get behind the wheel, intentionally putting others at risk with their impaired driving capacity. For drunk driving victims, a DUI attorney can often prove negligence if the person was under the influence behind the wheel.
The concept of negligence was developed under English law. Although English common law imposed liability for the wrongful acts of others, negligence did not emerge as an independent cause of action until the eighteenth century. Another important concept which emerged at that time: legal liability for a failure to act. The concept of negligence passed from Great Britain to the United States as each state (except Louisiana) adopted the common law of Great Britain (Louisiana adopted the civil law of France). While there have been notable developments in negligence law, the basic concepts have remained the same since the eighteenth century.
The law considers a variety of factors in ascertaining whether an individual or manufacturer has acted as a ‘reasonable person’ would have acted in a similar situation. These factors include the knowledge, experience, and perception of the person, the activity the person is engaging in, the physical characteristics of the person, and the circumstances surrounding the person’s actions.
For instance, if a person engages in an activity requiring special skills, education, or training, such as driving a semi truck, their conduct is measured against the conduct of a reasonably skilled, competent, and experienced person who is a qualified member of the group authorized to engage in that activity. The law also takes a person’s physical characteristics into account in determining whether that person’s conduct is negligent. Children may be negligent, but they are not held to the same standard of conduct as adults. A child’s conduct is measured against the conduct expected of a child of similar age, intelligence, and experience.
Most states have now adopted the concept of comparative negligence in place of pure, contributory negligence. With comparative negligence, also referred to as comparative fault, a plaintiff’s damages are reduced by a percentage his/her own fault. This requires the jury to determine, by percentage, the fault of the plaintiff and the defendant as the cause of the plaintiff’s injury.
Although it might seem obvious whether a defendant’s negligence has caused injury to the plaintiff, issues of causation are often very difficult to establish. Each Texas board certified personal injury attorney at Austin Law Firm Bemis, Roach and Reed understands the laws that can affect the outcome of a personal injury claim relating to negligence. To schedule a free consultation with a qualified Austin attorney, call toll free (866) 433-4979.