Houston Litigation Blog

The Use of Facebook as a Discovery Tool

Dwayne Newton — Sun, 31 Oct 2010 21:01:25 -0600

Professor Greg Duhl of William Mitchell College of Law and Jaclyn Millner of Fitch, Johnson, Larson & Held, P.A. have recently published a good article on the phenomena of social network sites and the impact such sites can have on discovery in personal injury and worker's compensation cases. The article can be downloaded here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1675026 . Sites such as Facebook, My Space and LinkedIn are becoming significant sources of both investigative and discovery information in litigation. In my own experience, I have used Facebook to gather information on the opposing party in several cases. In addition, I have had at least one occasion in which my opponent has used infomration from a client's Facebook page in the discovery process. This is a trend that is on the increase.

Professor Duhl's article is well written and discusses many timely issues concerning this new discovery medium, including the ethics of "friending" for purposes of obtaining access to a claimant's Facebook page.

Haygood v. Escabedo

Dwayne Newton — Thu, 14 Oct 2010 17:59:46 -0600

Oral Argument was heard in the Texas Supreme Court on September 16, 2010 in the case of Aaron Glenn Haywood v. Margarita Garza de Escabedo from Angelina County and the 12^th District Court of Appeals. The significance of this case to personal injury practice in Texas is huge. This is the first case to finally make its way to the Texas Supreme Court regarding the application of Section 41.0105 of the Texas Civil Practice and Remedies Code. This is commonly known as the “paid or incurred” rule that limits the recovery of medical expenses to the amounts actually paid or incurred by the Plaintiff. Since being passed in 2003 as a part of a larger tort reform bill, this provision has caused quite a controversy in the bench and bar. Although the statute is relatively clear in its limitation on medical expenses, the application of the rule has been a source of significant debate amount trial lawyers and judges. This debate continues to rage to this day over what evidence is to be admitted at trial on this issue.

The debate concerns whether the full amount of the medical expenses charged is submitted to the jury or whether only the reduced amount that was paid by health insurance, Medicare or Medicaid should be submitted. The position of the Plaintiff’s bar is that the full amount of the medical expenses charged should be submitted with the amount awarded by the jury being reduced by the trial court at the time a judgment is entered to the amount paid or incurred. Plaintiff’s counsel argues that to do otherwise, would abrogate the collateral source rule. The position of the Defense bar is that only the amounts actually paid should be submitted to the jury. How a trial court rules on this issue is important not so much for the medical expense issue, but for how the amount of medical expenses affects the other damages awarded by a jury. It is widely believed by both sides of the bar that the amount of medical expenses considered by the jury has a significant impact on the more intangible damages awarded by a jury for elements such as mental anguish, pain and suffering or physical impairment.

Often the swing between the amounts charged and the amounts paid can be considerable. We are currently preparing for a trial in which the amount charged was almost $500,000.00 while the amount actually paid by Medicare and the group health carrier was slightly over $200,000.00. In Haywood, the difference was $95,000.00. There has been no consistency in the application of this provision by trial courts. In Harris County, Texas, for example, one judge might limit the admission of evidence to the amount actually paid, while the judge in the court next door might allow the admission of the entire amount charged. The intermediate appellate decisions have been similarly inconsistent.

The Texas Supreme Court is now finally looking at this issue and will likely provide some guidance on how these damages are to be submitted. In Haywood, the trial court submitted the entire amount of the medical expenses charged. On appeal, the 12^th Court of Appeals in Tyler held that the failure of the Plaintiff to offer evidence of the amount actually paid meant there was no evidence of past medical expenses and as a result, Plaintiff could not recover medical expenses at all.

The oral argument conducted by the Supreme Court on this issue is available on line at www.supreme.courts.state.tx.us. The case number is 09-0377. Watching the interaction by the Court with appellate counsel is insightful in predicting how the Court will rule on this issue. Based on the arguments of counsel and the questions by the Court, I would predict the Court will be issuing an opinion that will make the Plaintiff’s bar very unhappy. Look for an opinion that limits the admission of evidence on medical expenses to the amounts actually paid. Regardless of the opinion actually issued, as a trial lawyer, it will be nice to finally have some consistency in this area. For questions regarding this article or the paid or incurred rule and its application contact H. Dwayne Newton at (713) 493-7621.

The Importance of Trial by Jury

Dwayne Newton — Thu, 13 Sep 2007 21:21:26 -0600

I recently read a speech given by Federal Judge William Young on the importance of our country's jury system. No where in the world does the citizenry have the right to play such a vital role in government. Unfortunately, our jury system is under attack from many different directions. It is often widely criticized by those who have no experience or familiarity with it. Even worse it is attacked by those special interests who seek to take advantage of those who most need the protections of it. The jury has always been the protector of the weak from being overrun by the strong. Judge Young's speech should be a must read for every adult and high school student in this country. Here is an excerpt from his speech:

Yet the American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than that on the criminal side, but it is dying. It will never go entirely, but it is already marginalized. It is not at the center of our political discourse. How is this possible, with our Constitution and every one of the 50 state constitutions guaranteeing the right to trial by jury? The general answer is that we do not care.

The entire speech can be downloaded here. Download file

Victory for the Construction Industry

Dwayne Newton — Mon, 03 Sep 2007 23:08:42 -0600

Pending for almost two years, the Texas Supreme Court has finally issued an opinion in Lamar Homes v. Mid-Continent Insurance. A copy of the opinion can be found here. This case involves two important questions to the construction and insurance industries. The first is whether a construction defect can be an “occurrence” within the terms of a CGL policy when the only damage is to the building itself. The second question is whether a claim for a defense under an insurance policy is a “first party” claim sufficient to trigger the prompt payment provisions under former Article 21.55 (now codified as sections 542.051-.061) of the Texas Insurance Code.

In a somewhat surprising opinion, the Court answered “yes” to both questions. As it relates to construction defects, the Court held these can be an “occurrence” or “accident” under the terms of the policy. This is quite a victory for the construction industry and a significant blow to the insurance industry. The trend in the insurance industry had been to resist defend many construction defect cases on the basis that there was no occurrence. With this opinion, insurers will find it difficult to deny defense obligations in most construction defect cases.

The second question answered by the Court will have even broader implications than the first. In finding that the duty to defend an insured is a first party claim, the Court held that the prompt payment provisions of sections 542.051-.06 apply to a failure or delay in defending an insured. As a result, an insurer that fails to timely defend its insured is liable for the costs incurred in the defense, 18% interest per year and attorneys fees. An insurer who guesses wrong on the duty to defend will now face a significant penalty. An insurer can avoid this risk by defending the questionable claims under a reservation of rights and simultaneously filing a declaratory judgment action.

Even though the Court ruled against the insurer in this case, don’t think that the Court is becoming more consumer oriented. This is still a very conservative, pro-insurer Court. However, in this instance, the Court was torn between the construction industry and the insurance industry. Historically, it has treated both very well and can be expected to do the same in the future.

Are Doctors Really Mistreated by Juries?

Dwayne Newton — Thu, 26 Jul 2007 22:13:43 -0600

Here is a link to an interesting article published by the Michigan Law Review. www.michiganlawreview.org/archive/105/7/peters.pdf This article explores the widely held public view that jury verdicts in medical malpractice cases are unfair to doctors. Interestingly, research conducted over the last three decades indicates that just the opposite is true, juries tend to side with doctors even when the Plaintiff should win.

This article discusses in depth research conducted over the last 30 years in malpractice litigation. What is interesting is that even when a panel of medical experts agrees that malpractice has been committed and that the Plaintiff should prevail, juries tend to find in favor of the doctors about 50% of the time. In those cases that the panel of medical experts determines that no malpractice was committed, the research show the jury virtually always finds in favor of the doctor.

This article confirms what trial lawyers have known intuitively for years, ie. that juries in medical malpractice cases tend to bend over backwards to find in favor of the doctor. The popular idea that doctors are somehow being mistreated by runaway juries is not supported by the research.

Dwayne Newton is Elected to Membership in ABOTA

Dwayne Newton — Wed, 25 Jul 2007 19:33:14 -0600

We are pleased and proud to announce that Dwayne Newton has been elected to membership in the American Board of Trial Advocates. Membership in ABOTA is extended by invitation only in recognition of an individuals high personal character, honorable reputation and proficiency as a trial lawyer. After meeting stringent practice requirements, an invitation to membership requires a nomination from an ABOTA member along with an affirmative vote of 75% of the membership of the local chapter.

The mission of ABOTA is the preservation of the 7th Amendment right to trial by jury and to foster improvement in the ethical and technical standards of practice in the field of advocacy to the end that individual litigants may receive more effective representation and the general public be benefited by more efficient administration of justice consistent with time-tested and traditional principles of litigation. For more information on the purpose and missions of ABOTA go to www.abota.org.

Congratulations, Dwayne

Witness Preparation from Another Perspective

Dwayne Newton — Thu, 14 Jun 2007 00:07:23 -0600

The importance of witness preparation applies whether you are the Defendant in the litigation or the Plaintiff. Here is a link to a good article on witness preparation from the perspective of the Plaintiff. www.tlrcblog.com/2007/06/articles/-case-work-up/tips-on-defending-personal-injury-depositions/ In his post, Tips on Defending Personal Injury Deposition, Ron Miller provides 6 tips on how to prepare a Plaintiff for his deposition. From my experience, his advice for Plaintiffs is right on target. When I take a Plaintiff's deposition, the main piece of information I am looking for is what type of impression this individual will have on a jury. To me, this is even more important than what the Plaintiff says about the accident or his injuries. As a defense lawyer, I can always deal with his testimony regarding the facts. What can be much more difficult to deal with is how he will present as a witness. A Plaintiff that makes a good witness in his deposition will enhance the value of his case and make it more likely to settle. The converse is also true. A Plaintiff who makes a poor witness will decrease the chances that his case will settle. Fortunately, for me, most lawyers do not spend much time preparing their clients to be good witnesses. This is a universal problem on both sides of the docket.

The Continuing Saga of Lord Browne's Deposition

Dwayne Newton — Sat, 24 Feb 2007 22:33:11 -0600

This week, the Texas Supreme Court issued a stay order, staying the deposition of Lord Browne, the former CEO of British Petroleum. This was issued in response to the February 9, 2007 order of a lower appellate court that denied BP’s Petition for Writ of Mandamus to Quash the deposition. This is an issue I wrote about when it first arose last fall. See Taking the CEO's Deposition. This has been an on again – off again issue. The Supreme Court has asked for briefing and will likely entertain oral arguments on this issue. I will be surprised if the Supreme Court orders the deposition to go forward. This is a very pro-business Supreme Court. In addition, current authority strongly supports the BP position on this issue.

From my observations, I don’t think the Plaintiffs really care whether they get Lord Browne’s deposition or not. BP has already stipulated to liability for the explosion and any potential punitive damages are subject to a very strict cap. The real strategy here is to make life as uncomfortable as possible for BP and its lawyers to drive a better bargain in settlement. So far this strategy has been very effective. Every time this issue comes up, more cases are settled. The two cases that were set for trial on Monday were just settled. Although the settlements are confidential, I am sure they were very favorable for the Plaintiffs.

I look for some type of agreement to be reached to postpone the deposition of Lord Browne further. This takes the decision out of the Supreme Court’s hands and leaves the potential for a future deposition still available. The last thing the Plaintiffs want is a ruling from the Supreme Court on this issue. A ruling from the Supreme Court would most likely be against the Plaintiffs and once it is handed down, the threat of Lord Browne’s deposition is over.

For more on apex depositions in Texas see In re Daisy Manufacturing, 17 S.W.3d 654 (Tex. 2000).

More on Preparing Witnesses for Depositions

Dwayne Newton — Wed, 21 Feb 2007 22:51:16 -0600

My recent post on Presenting Witnesses for their Deposition has been one of the more popular posts on this blog. From the looks of the hits to this post, there are a lot of people out there looking for information on how to get ready for depositions. Here is a link to a video that I think you will find entertaining if not educational. This clip falls under the category of making sure the witness is ready to answer the hard questions that the other lawyer may ask without losing his cool. www.youtube.com/watch

What Should You Do If You Are Sued?

Dwayne Newton — Sat, 13 Jan 2007 22:06:19 -0600

I was recently asked by a business acquaintance what he should do in the event he is sued. I gave him a copy of our firm's pamphlet called The Legal Survival Guide which answers a number of basic legal questions If you would like a copy of this pamphlet send me an e-mail with your name and address and I will drop one into the mail for you.

Here is what I told him about the steps that should be taken in the event he was sued:

1. Don’t ignore the suit! Once you have been served there is a specific time period in which the suit must be answered. In some cases it is as short as 10 days. If a timely answer is not filed, you may lose by default.

2. Don’t call the other lawyer or person who has sued you without consulting your own attorney. Statements you make to the lawyer or other party can be used against you.

3. If the suit is covered by insurance, call your insurance agent or carrier immediately. Most auto accidents are covered under automobile insurance. Other personal injury suits may be covered by your homeowner’s policy. If covered, your insurance company will hire a lawyer for you.

4. If the suit is not covered by insurance, consult with an attorney immediately. In choosing your attorney, you should consult with one experienced in the handling of civil lawsuits. Ask the attorney about his/her experience.

5. Turn over all of the papers served on you to your insurance carrier or attorney.

6. Follow up with your insurance carrier or attorney to make sure that a timely answer has been filed.

7. Cooperate fully with your attorney or insurance carrier in the defense of the suit.

Victory in the Tort Reform War

Dwayne Newton — Thu, 28 Dec 2006 22:57:57 -0600

The tort reform war is over and business has won. Here is a link to an article from Business Week on-line declaring victory in the tort reform movement. www.businessweek.com/magazine/content/07_02/b4016001.htm The article is an interesting read. It is consistent with my post from September about a jury climate that greatly favors Defendants. www.houstonlitigationblog.com/2006/09/articles/jury-trials/for-defendants-now-is-the-time-to-go-to-trial-in-texas/ Jurors have become so inundated with lawsuit phobia that it is next to impossible for a Plaintiff to get a favorable jury verdict.

In the 20 years that I have practiced law, I have seen the judicial makeup of Texas change from virtually all Democrat judge to virtually all Republican judges. During this same time period, I have seen juror attitudes change from favoring the Plaintiff to now favoring the Defendant. As a result, those companies and individuals who find themselves being sued should take advantage of this trend. Ultimately, I tend to think the current trend will eventually shift back, the only question is when...........

Presenting Witnesses for Deposition

Dwayne Newton — Fri, 22 Dec 2006 00:27:15 -0600

I continue to be amazed at the number of lawyers who fail to properly prepare their witnesses to give a deposition. Over the last 20 years, I have frequently seen large settlements generated in otherwise defensible cases because a lawyer failed to properly prepare his corporate witness to give a deposition. No other aspect of the defense of a lawsuit is as important as preparing the witness to face the opposing lawyer during the discovery phase of the case.

While it is common for lawyers to spend days preparing themselves to take an effective deposition, these same lawyers mistakenly think they can spend an hour or so immediately prior to the deposition preparing their own witness to be deposed. This can have disastrous results on the defense of a case. A number of years ago, I was involved in the defense of a very complex multi-party explosion that resulted in a number of burn deaths. The deposition testimony of our co-defendant’s employee witnesses was some of the most damaging I have ever seen in a personal injury case. As it turns out, co-defendant’s counsel spent only a very short time on the day before the deposition preparing the witness. The witnesses were grossly under prepared for the subsequent examinations. Because of the poor showing by its witnesses, the co-defendant was forced to enter into settlements that exceed $100,000,000.00. In contrast, our trial team approached witness preparation in a much more strategic manner. We put serious thought into which witnesses we wanted to produce and in what order. We began preparing our witnesses to be deposed weeks before their deposition dates. We assigned one member of the trial team to be primarily responsible for the preparation of all of our witnesses. We also made sure that the witnesses were thoroughly familiar with not only the facts, but also the questioning style and expected strategy of the lawyers that would be deposing them. As a direct result of our witness preparation, the case developed in such a way that we were able to successfully defend the case that no one else thought could be defended.

Here are my thoughts on successfully producing witnesses to be deposed in a catastrophic case.

Control the order and timing of when your witnesses are deposed.

If at all possible, your best witness should be offered for deposition first. This is not always your most knowledgeable witness. Instead, your best witness is the one you have determined to be best equipped to handle questions under pressure, particularly ones that you may not have thought of prior to the deposition. By the time this deposition is finished, you as the lawyer should know 95% of your opponent’s case and be in a good position to prepare the rest of your witnesses.

Consider the effect of deposition scheduling.

Should the deposition be scheduled to begin in the morning or afternoon, on a Monday or a Friday? These are important considerations and can have a significant effect on how well prepared your opponent is for the deposition and how thorough his deposition is. For example, I once defended a case against a lawyer that was known for enjoying the night life. As a result, we made sure that depositions were schedule for out of town so that he could enjoy the night life as much as possible. Just to be helpful, we also suggested good restaurants and bars in the city for him to visit. In that case, we also tried to start the depositions early in the morning, but made sure to stop in time for happy hour. As a result, the lawyer was often hung over for the start of each deposition.

Prepare the witness early and often

Too little time is spent preparing witnesses to be deposed. Most lawyers think they can tell the witness not to volunteer information, not to guess and to make sure they understand the question and be done with the witness preparation. These are the lawyers who do not understand why their cases frequently seem to take a turn for the worst.

The first step in witness preparation is preparing the witness on the facts. This seems obvious, but it is often overlooked. Your witnesses need to have a very good understanding of the facts of the case and how the particular controversy developed. In preparation for the deposition, they should study the pleadings and the applicable documents. This should not just be left up to the witness to do on his own. The lawyer preparing the witness should go over these with the witness to make sure they completely understand the background of the action. I also like to have the witness read any depositions that have been taken that may relate in any way to his testimony.

Second, the witness should be prepared on the law of the case. The witness should not look, act or sound like a lawyer. However, they need to know about the law applicable to the case and how the facts tie into the law. If it is a negligence case, they need to be familiar with the definition of negligence and the causation standard. In a products case, the witness should have an understanding of the definition of a product defect and what is meant by the term “unreasonably dangerous.” I have often seen witnesses who are not familiar with the legal definitions unwittingly admit liability because they were not prepared on the applicable legal definitions.

Third, the witness should be prepared for the other lawyer. This one is almost universally overlooked. The witness should be prepared for type of questions and the way in which the other lawyer asks questions. The best way to do this is to have the witness watch a video deposition taken by the opposing lawyer. If a video deposition is not available, then reading a deposition the lawyer has taken can be helpful, even if it is not in the same case. The goal of the process is to give the witness a feel for the style of the other lawyer and the types of questions he is likely to ask. It also helps the witness not feel intimidated by the lawyer.

Fourth, the witness should be prepared to give good testimony. This requires practice. Some people naturally make better witnesses than others. However, every witness can be prepared in such a way to be as good a witness as his personality and intellect will allow. This involves helping them understand the way to dress for the deposition, the way to sit, the way to respond, and how to react when they become frustrated or irritated at the other lawyer. Preparing the witness to stay under control is imperative. The witness must also be prepared for dealing with leading or argumentative questions.

This also involves preparing the witness physically for the deposition. The lawyer should make sure the witness gets a good night’s sleep prior to the deposition. He should also make sure that the witness is not distracted by other matters leading up to the deposition. This is difficult when dealing with the president of a multi-national company. However, it is important that the lawyer insist on uninterrupted time to prepare the witness.

Protect the witness during the deposition

The lawyer defending the deposition should also make sure that he protects the witness during the deposition. He should never allow the other lawyer to be condescending or overbearing to the witness. He should make sure that the witness understands that he is not limited to giving a yes or no in answer to any question. He should also insist on frequent breaks. This gives the witness time to relax and gather his thoughts even if it is just for a few minutes. It also provides an opportunity for the lawyer to remind the witness about their overall deposition strategy. The lawyer should also insist on taking a lunch break. In my experience, working through lunch is a mistake. The witness needs that time to get away from the stress of the questioning and clear his mind. It gives you a chance as the defending lawyer to prepare the witness for additional questions or issues that you have identified based upon the questions and documents used by the other lawyer. It also gives you an opportunity to prepare the witness to “clean up” any less than favorable responses he might have given in the earlier stages of the deposition.

Learn from the deposition

The deposition of your witness provides a great opportunity for you to learn about your opponent’s case. If you pay attention to the other lawyer’s questions, you can learn more about his strategy in the case and his ability than he will ever learn from your client’s answers (assuming your client has been properly prepared). In the deposition, he will undoubtedly reveal all of the documents that he believes to be important as well as the issues that he believes are critical to his case.

In addition, because you have produced your best witness first, you will be in a better position to successfully defend this initial deposition. If you are paying attention, you will also get a great deal of intelligence to use in preparing the rest of your witnesses to be deposed, especially those witnesses that you are afraid won’t do so well in their depositions. These are the ones that you try to schedule to be deposed on a Friday afternoon when you think the other lawyer may want to knock off early for the weekend.

Limiting the Duty to Defend Additional Insureds

Dwayne Newton — Wed, 22 Nov 2006 23:17:06 -0600

In the construction and energy business sectors it is common for general contractors and operators to require their subcontractors to name them as an additional insured under the sub’s CGL policy. Often these clauses require the subcontractor’s coverage be primary and non-contributory. In doing so, the general contractor or operator can shift much of its insurance costs onto the subcontractor. However, a recent opinion by the Houston Fourteenth Court of Appeals may have a major impact on general contractors and other parties that are frequently named as additional insureds. In D.R. Horton v. Markel International Insurance Company, the Houston Court of Appeals adopted a construction of the typical additional insurance clause that greatly limits an insurer’s obligation to defend these additional insured. A link to the opinion can be found here. www.14thcoa.courts.state.tx.us/opinions/htmlopinion.asp

The Horton opinion turns on the wording of the additional insurance clause in the CGL policy. The clause in question limited the general contractor’s status as an additional insured to claims arising out of the subcontractor’s work. This is a fairly typical additional insured clause in Texas. In this instance, the petition filed by the Plaintiff did not contain language alleging that the cause of action arose in some respect out of the subcontractor’s work. As a result, under the eight corners rule, the insurer was under no duty to defend the general contractor because the additional insured endorsement limited the general contractor’s status as an additional insured. The Court would not consider extrinsic evidence that indicated the cause of action did, in fact, arise out of that portion of the work performed by the subcontractor. In this instance, the general contractor was completely at the mercy of the pleadings filed by the Plaintiff. Because the petition did not contain the magic language indicating the cause of action arose out of the subcontractor’s work, the additional insured endorsement did not apply and there was no duty to defend.

This is an important opinion because it greatly limits the obligation of an insurance company to defend an additional insured under a CGL policy. It is a rare case in which the plaintiff will make allegations that his cause of action against a general contractor or owner arises out of the work performed by a subcontractor. In the personal injury context, this often arises when an employee of the named insured is injured and sues the general contractor or owner to recover for that injury. Any claims against the employer are barred under the Worker’s Compensation Act. As a result, the plaintiff has no incentive to allege that the cause of action arose of the negligence of his employer. To the contrary, the plaintiff would typically allege that the cause of action arose solely from the general contractor’s acts. Under this opinion, even if the general contractor was named as an additional insured, the insurer would have no obligation to defend it because the express allegations in the petition did not implicate the plaintiff’s employer. General contractors, owners and oilfield operators will need to take a hard look at this case and the implications it has on their contractual provisions. In the same way, insurers will need to look at their duty to defend these cases with much more scrutiny that has generally been applied in the past. More often than not, they may now have a good basis for refusing to defend an additional insured under the typical additional insured endorsement.

Broadcasting Civil Trials in Texas

Dwayne Newton — Tue, 14 Nov 2006 16:38:02 -0600

Last week the First Court of Appeals in Houston issued a writ of mandamus directing the judge in the BP case to withdraw her order allowing for the live broadcast of the BP trial. www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp Here is a link to the opinion. Although the issue is moot at this point because of the settlement of the entire case, the current rules make it difficult for a civil trial in Texas to be televised. Photographing and broadcasting of court proceedings is governed by Rule of Civil Procedure 18c, which provides:

A trial court may permit broadcasting, televising, recording, or photographing of proceedings in the courtroom only in the following circumstances:

(a) in accordance with guidelines promulgated by the Supreme Court for civil cases, or

(b) when broadcasting, televising, recording, or photographing will not unduly distract participants or impair the dignity of the proceedings and the parties have consented, and consent to being depicted or recorded is obtained from each witness whose testimony will be broadcast, televised, or photographed, or

(c) the broadcasting, televising, recording, or photographing of investiture, or ceremonial proceedings.

Because there are currently no guidelines provided by the Supreme Court for the broadcasting of civil trials, section (b) provides the only basis under which a trial may be broadcast. This provision requires the consent of both parties. In addition, it requires that each witness who is to be photographed or broadcast must also give consent. Under these rules, it is virtually impossible to broadcast civil cases unless local rules have been adopted and approved by the Supreme Court that change these conditions. In Harris County, such local rules have been adopted and approved. These rules allow the trial judge broad discretion to allow the broadast of a civil trial. A link to the Electronic Media Local Rules of Harris County can be found here. www.justex.net/courts/civil/ElectronicMediaRules.aspx

Post Tort Reform Case Filings are as High as Pre-Tort Reform Levels

Dwayne Newton — Fri, 13 Oct 2006 02:14:53 -0600

Over the last several months, most lawyers, clients and insurance adjusters I have talked to have indicated that in their opinion there are fewer cases being filed today in the Texas courts. This is what would be expected since (1) we have had sweeping tort reform legislation in this State; (2) our Supreme Court is the most conservative it has been at any time in the last 20 years; and (3) juries in Harris County, Texas have become so defense oriented that it is often difficult to empanel a jury that will award medical expenses to the Plaintiff, much less in tangible damages.

However, in spite of this, case filings have remained fairly constant. Below is a table of personal injury case filings for Harris County, Texas since 2001. This information was obtained from theTexas Office on Court Administration. While there are some variations, new case filings since tort reform in both the motor vehicle category and non-motor vehicle category are as high, if not higher than they were in 2001 prior to the tort reform legislation of 2003.

New Personal Injury Case Filings
New Filings	Motor Vehicle Injuries and Damages	Average per month	Non MVA injuries and Damages	Average per month
2006	2158	239.78	3163	351.44
2005	3128	260.67	6044	503.67
2004	2994	249.50	3743	311.92
2003	3434	286.17	3857	321.42
2002	3298	274.83	3448	287.33
2001	2874	239.40	3535	294.58

The slight increase in case filings in 2003 can be explained by the rush to file cases before the tort reform legislation became effective in September of 2003. This can also be used to explain the slight decrease in 2004 from 2003. However, 2004 filings in both categories higher than the 2001 filings. In addition, filings for 2006 through September for non motor vehicle cases is on a pace to be significantly higher than the filings in 2001. For motor vehicle related cases, the 2006 numbers appear to be about on pace to match the 2001 numbers and to be slightly down from 2005.

What is not reflected in these numbers is the change in the number of medical malpractice filings since the tort reform legislation. An article in this month's ABA Journal titled "Tort Reform Texas Style" indicates medical malpractice filings in Harris County, Texas are down 41% since tort reform. If this is true, it means that filings for non-medical malpractice cases have increased to such an extent tht the overall filings is the same or slightly more.

Insurance litigation is alive and well.

Dwayne Newton — Wed, 11 Oct 2006 00:09:49 -0600

Houston mega firm, Fulbright and Jaworski has released its annual survey of litigation trends. The survey identifies the insurance industry as the most common target for lawsuits, averaging over a 1,600 pending suits. The survey dispels the notion that large companies are just targets for litigation. Seventy percent of the companies surveyed

had initiated litigation as a plaintiff in the last year. Almost 25% of the companies surveyed had filed lawsuits for more than $20 million and 15% had commenced arbitrations for more than $20 million. The top five types of legal disputes of most concern cited by survey respondents were, in declining order:

Labor/Employment

Contracts

Regulatory

IP/Patents

Class Actions

The survey results make for interesting reading. It can be downloaded from Fulbright’s site at www.fulbright.com

Taking the CEO's Deposition

Dwayne Newton — Sun, 08 Oct 2006 21:34:52 -0600

Last week a federal judge in Galveston ordered the CEO of British Petroleum, Lord Browne to give his deposition in connection with the case arising out of the explosion at the BP refinery in Texas City. The explosion resulted in 15 deaths and numerous injuries. Lawsuits arising out of the accident are pending in both the State Courts of Galveston County, Texas and the Federal Court in located in Galveston.

The attempt to take the deposition of a high ranking official of a publicly traded company is not an uncommon strategy. While I cannot comment on the reasons that Lord Browne's deposition is being sought, it can often be utilized for publicity purposes or simply to make life difficult for the defendant and its lawyers. The philosophy being that if the CEO is made to appear and answer questions, he will be more inclined

to simply tell his lawyers to settle the case rather than go through the deposition. Because of this, Texas courts have generally taken a dim view on this strategy.

The most recent case by the Texas Supreme Court on this issue is In re Daisy Manufacturing, 17 S.W.3d 654 (Tex. 2000). In Daisy, the Supreme Court reaffirmed its earlier guidelines for the taking of an apex deposition. Under these guidelines the trial court must first determine whether the high corporate officer has unique or superior knowledge of discoverable material. If the party seeking the deposition cannot show that the apex witness has unique or superior knowledge, then the trial court is required to issue a protective order and first require the party seeking the deposition to obtain it by less-intrusive means. The apex deposition can then go forward only after the party seeking the discovery has demonstrated a good faith effort to obtain the information through less intrusive means and (1) there is a reasonable indication that the official's deposition is calculated to lead to the discovery of admissible evidence, and (2) the less-intrusive methods are unsatisfactory, insufficient or inadequate.

Here it is unlikely that the CEO of British Petroleum based in the United Kingdom has unique or superior knowledge related to the operation of a refinery in Texas City, Texas. As a result, this would seem like a prime opportunity for BP to seek a mandamus ruling. It will be interesting to see if British Petroleum appeals his ruling to the Fifth Circuit Court of Appeals.

For Defendants, now is the time to go to trial in Texas!

Dwayne Newton — Thu, 14 Sep 2006 22:45:27 -0600

Historically, risk managers and general counsel shudder at the thought of being sued in a State Court in Texas. Images of huge verdicts and punitive damages have caused more than one general counsel to develop an ulcer over Texas litigation. However, the current litigation climate in Texas is more favorable for defendants than it has ever been in the last twenty years. The 2005 Vioxx trial and the more recent litigation over the BP plant explosion notwithstanding, here is our countdown of the five reasons that now is the best time to try a case in Texas if you are a defendant in one of the major metropolitan areas:

5. Comprehensive tort reform legislation that greatly limits the ability to make a big strike, including:

Restrictions on joint and several liability;
Ability to name responsible third parties including immune employers and governmental entities;
Restrictive standards and a higher burden of proof for punitive damages;
Punitive damage caps;
Limits on the recovery of medical expenses to the amounts paid or incurred;
Earning capacity recoveries limited to after tax amounts.

4. Conservative trial courts. The majority of trial court judges currently sitting in Texas are Republicans. While individual judges can sometimes be difficult to deal with regardless of party affiliation, more and more of the judges sitting on the trial court bench in this state are young and conservative. They are generally more inclined to grant summary judgment, limit evidence at trial and grant a JNOV in the event of an unfavorable jury verdict.

3. Conservative Intermediate Courts of Appeal. Like the trial court benches, most of the intermediate courts of appeal in this state are populated by Republican judges. These judges tend to favor Defendants more often than Plaintiffs.

2. Texas Supreme Court. The most conservative supreme court in the history of Texas, the current court consists of nine judges all Republican and almost all appointed by a very pro-business governor. This court has shown itself over the last several years to be heavily pro-business and pro-insurance.

1. Texas juries. The main reason for the more favorable litigation climate of this State has been a fundamental change in the attitudes of most jurors. Regardless of the position one takes on tort reform issues, most lawyers in this State agree that the campaigns of the last decade have had a profound affect on jury attitudes. Although they can rarely articulate what a frivolous lawsuit is, most Texans today believe the courts of this State are inundated with them. Rather than sympathize with an injured Plaintiff, jurors tend to view all Plaintiffs with a measure of skepticism. Years ago, it was sometimes difficult to get a jury that could be fair to a large Fortune 500 company. Now, more often than not, it is difficult for trial judges to seat a jury that will commit to be fair to a Plaintiff, much less award damages for intangibles such as pain and suffering or mental anguish.

Coverage for Construction Litigation

Dwayne Newton — Fri, 01 Sep 2006 15:25:30 -0600

Pending before the Texas Supreme Court is an important case that could have serious implications for the construction industry. In Lamar Homes v. Mid-Continent Casualty Company, the Supreme Court has been asked to answer a certified question posed by the 5^th Circuit Court of Appeals. Specifically, the Court has been asked to address whether allegations of construction defects and loss of use of a residence against the general contractor constitute an accident or occurrence and property damage within the context of a CGL policy.

We are watching this case closely as it could have a profound affect on many of our clients in the construction industry. Typically, most construction cases are defended by the contractor’s CGL policy as long as there are allegations that the defective work of the contractor caused damage to “other property.” In addition, the general contractor is usually covered for defective work performed by a subcontractor. However, recently, insurers have begun taking a hard line approach to defending these cases. Many now disclaim coverage outright or file declaratory judgment actions while defending under a reservation of rights. More and more, insurers are challenging whether a construction defect is an “occurrence” under the terms of the policy.

Unfortunately for the construction industry, the current Supreme Court is a very pro-insurance court. If past results are a predictor of future performance, expect the Court to come down on the side of the insurers.

In practice a pro-insurance ruling will make it difficult for a small or medium sized subcontractor to get work. Because claims for defective work by a subcontractor will no longer be covered, most general contractors will be more careful in the selection of subcontractors. The subcontractor’s ability to satisfy construction defect claims or fulfill indemnity obligations may take on an important role in the selection of subcontractors. In the past, a general contractor could expect the subcontractor’s insurance company to fulfill the sub’s indemnity obligations to the general. However, when these claims cease to be covered, the general will only be able to look to the subcontractor for indemnity. Even if a smaller sub has performed good work in the past, most general contractors will not be willing to take a chance on the smaller sub meeting its indemnity obligation in the event of a construction defect.

More on this issue to come after the Supreme Court issues it opinion, expected some time this fall.

Dealing with the Difficult Judge

Dwayne Newton — Wed, 30 Aug 2006 01:37:04 -0600

To follow up on my recent post regarding Judicial Hellholes, one of the criteria for being a judicial hellhole is “strong ties between the judges and plaintiff’s lawyers.” Reading this it occurs to me that at some point in their career every trial lawyer must deal with a difficult judge. In my case, this has occurred many times over the last 20 years. Although, not as prevalent today, I have often had to deal with a judge that had a cozy relationship with opposing counsel. Here are some thoughts on how to handle the judge who always rules against you no matter what.

1. Don’t whine about it. I have often seen lawyers who are having a difficult time with a judge whine about it to anyone who will listen, including the Court and opposing counsel. Don’t do it. It does no good. It hurts your credibility with the other lawyer and Court. It also tends to encourage the disparate treatment.

2. Always dot your “I’s” and cross your “T’s”. This is important. When dealing with a difficult judge, make sure that your work is significantly better than that of the other side. You must also never put yourself or your client in a position where you need a favor from the Court. Instead, be one step ahead of the other lawyer and the Court. It may not make any difference in your treatment in this case, but in the next case it might.

3. Begin preserving error early. Judges hate to be reversed. When dealing with a difficult judge, you should expect to take them up on appeal. Handle your case accordingly. Start preserving error early. Preserve the error in a respectful way, but make it clear to the judge that you are planning on an appeal and fully expect them to be reversed. I have often found that painstakingly preserving error in the early stages of the case will cause a judge to start ruling more even-handedly later on. Don't be afraid to tell the Court point blank, "Judge, I am afraid that your ruling on this issue is going to cause the case to be reversed and we are going to have to do this all over again."

4. Look for an early opportunity to seek an appellate ruling. Similar to number 2, if the opportunity presents itself, get an early appellate ruling on some issue. In Texas, this sometimes results from the seeking of a Writ of Mandamus. If you are clearly in the right, don’t be afraid to mandamus a difficult judge. It is not like they are going to start ruling in your favor anyway. Whether or not the mandamus is successful, this strategy conveys to the Court that you are going to call their “uneven-handedness” at every opportunity.

5. Prepare the jury for the disparate treatment and take advantage of it. Most juries have an innate since of fairness. As a result, if they know you are getting treated unfairly by the judge, they often have a tendency to make it up to you in someway through their verdict. If I expect to be treated unfairly, I precondition the jury for the fact that the judge may be ruling against me frequently in the case and that I will have to do a number of things during the case to preserve the Court’s ruling for another court to look at. Once again, this has to be done in a respectful and professional way. But if it is done properly, the jury will often catch on that the judge and other lawyer are ganging up on you.

6. Push the envelope. If the judge is ruling against me anyway, I like to push the envelope. (Some would argue that I like to push the envelope even when the judge is not always ruling against me. However, that is the subject for another blog another day.) Since the judge is ruling against you anyway and you undoubtedly are going to have to appeal the case, you might as well be an aggressive advocate on behalf of your client. But be careful. It must be done in such a way as to not make an enemy out of the jury.