So you are a party to a new civil litigation case, which means you have either sued someone or just been sued.  Your lawyer sends you an email that the Court has just set your case for a non-jury trial for a date in the future.  In the same email, your lawyer asks if you want to pay the jury fee, which usually is nominal, and have the matter set for jury trial, or whether you prefer to have the case remain as a non-jury trial.  It is, after all, the client’s decision on whether to have a jury trial or a non-jury trial.  What do you do?

Both types of trials – jury and non-jury – have advantages and disadvantages.  A non-jury trial, also known as a bench trial or a trial before the Judge, generally is more informal than a jury trial,  shorter than a jury trial, and less expensive to prepare for and conduct.   For example, in a non-jury trial, the lawyers do not have to draft a jury charge (the questions the jury will answer, such as who was responsible for the accident, and the percentage of responsibility each party), or have a “charge conference” with the Judge where each side argues that its proposed jury questions should be included in the jury charge.  The charge conference is conducted outside of the presence of the jury, and can last from several hours to an entire day or more, depending on the case.  After the jury charge is finalized, the Judge will read the jury charge to the jury, the lawyers will make closing arguments, and then the jury will retire to the jury room to deliberate.

None of these time-consuming jury charge issues are present in a bench trial.  However, one of the disadvantages of a non-jury trial is that one person – the Judge – hears all the evidence, weighs the credibility of the witnesses, decides which facts are true and not true, rules on evidentiary issues and objections, applies the law to the facts, decides who should win, and the amount of damages awarded, if any.  In a jury trial, the jury hears the evidence, weighs the credibility of the witnesses, decides which facts are true and which are not, decides who should win, and whether any damages should be awarded.  In a jury trial, the Judge’s role is to preside over the trial, rule on evidentiary objections, and apply the law to the facts after the jury has answered the questions on a jury charge – but in most cases, the Judge does get to decide by his-or-herself which party should win.

There are lots of other issues to be considered in deciding whether to have a jury trial or a non-jury trial.  Additionally, a litigant does not always have a choice regarding which type of trial.  We will discuss the additional factors in upcoming posts in this series.

 

Texas has long been one of the best locations to start a business, and a big reason for this is the liability protection afforded by the business-friendly Texas courts. Most business owners seek to limit their personal liability if something goes wrong with the business. This leads to one of the questions I get most often: Which business structure provides more liability protection to the business owner? The short answer is it depends on what happened.

I believe most owners are concerned with what is known as piercing the corporate veil.   “Piercing the corporate veil” is a legal term that means that the owners/members of a corporation or LLC lose the limited liability protection the business entity provided, thus the piercing of the veil of protection. When this happens, personal assets can be used to satisfy business debts and liabilities, not just corporate assets.  The result is that individuals start getting named in lawsuits, in addition to the LLC or corporation they own.

When we look at the Texas Business Organizations Code (TBOC) we see that the two most popular business structures, corporations and limited liability companies, have similar protections for owners. Both organization structures limit liability on contract issues, and absent actual fraud or unless some extraordinary circumstances exist, the veil will not be pierced on a contract action.

But it is a little easier to pierce the corporate veil when it comes to tort liability. Businesses get sued for all kinds of torts, like slip and falls, job site accidents, etc… The two prevailing theories used to pierce the veil in a tort action are the alter ego theory and the single business enterprise theory.

The alter ego theory boils down to looking at how the owners managed internal matters, how the financial interests were kept separated from personal interests and the degree of control the individual had over the company. Basically, was the LLC put in place as a shield to liability or were business formalities observed? The courts will look at everything from the existence of a corporate book to the payment of taxes in order to determine the degree the alter ego was employed.

The other theory used to pierce the veil is the single business enterprise theory. This is used to impute liability to companies that share resources and operate as if they were one entity. This is rarely used, but when it is it can considerably open up the pool of damages available to the plaintiff.

There are a number of other things to consider when analyzing business and personal liability when starting a business. For example, when starting a new business, an owner may need to personally guarantee a business loan. No piercing of the veil is necessary to hold the owner personally liability for the guaranteed debt. Oh, and it goes without saying, no business entity will insulate an owner from criminal liability or protect them if their personal actions cause an injury to someone.

 

 

 

The Texas Supreme Court has rejected the theory of defamation by compelled self-publication.  Say what? you ask?  Compelled self-publication occurs most often in the employment context, where a terminated employee is compelled to inform subsequent potential employers why the employee was terminated from the employee’s last job.  As the theory goes, if an employer gives untrue defamatory reasons for terminating an employee, it should recognize that such conduct creates an unreasonable risk that the defamatory matter will be communicated to prospective employers.  By rejecting the theory, the Texas Supreme Court was concerned about creating an actionable tort any time an employee disagrees with the employer’s reason for firing the employee.   By refusing to recognize a tort based on compelled self-publication, the Texas Supreme Court reemphasized Texas’s long-standing tradition of employment at-will.

Good news middle aged drivers!  Today the Texas Legislature has passed HB 60, making it illegal to text and drive in Texas.  The new legislation is headed to Governor Abbot’s desk, who is expected to sign the bill.  Based on the language of the final bill that passed both houses, it is an affirmative defense to prosecution under the new law if the person is using the wireless device in conjunction with a hands-free device, to navigate using GPS, to report illegal activity, or (and this is really in the law) to activate a function that plays music.

So you cannot text while driving, but you can use Google Maps and Waze, and listen to Spotify.  And no more honking at the car in front of you two milliseconds after the light turns green…

 

 

 

I have been writing on this blog about how Dallas County juries have shifted over the years from pro-defense to pro-plaintiff, or at least to a point where most prospective jurors in Dallas County don’t necessarily consider lawsuits a bad thing.  In the era of tort reform, this attitude among prospective jurors in Dallas County is very interesting.  My previous posts are here, here, and here.

But why do we care about juries anyway?  There are the constitutional reasons, and the traditions in our legal system that are tied inextricably to the jury trial process.  There are the defenders of the jury trial as the last line of defense against oppression.  And these are good reasons to care about the juries.

But my focus on why juries matter is more practical.  In Texas, juries matter because once a jury renders a verdict it is extraordinarily rare for the jury’s verdict to be overturned.  It happens, but not very often.  This is because legal and factual sufficiency challenges to a jury verdict are judged against very high standards.

The Dallas Court of Appeals just released a decision in Adams v. Bellas affirming a jury verdict where the court went through the standards for legal and factual sufficiency challenges to a jury verdict.

To overturn a jury verdict on legal sufficiency grounds, the court must first credit any evidence favoring the jury verdict if reasonable jurors could disregard contrary evidence if reasonable jurors could not.  If more than a scintilla of evidence supports the jury’s verdict, then the court has to uphold the verdict.  There is no weighing of the evidence on one side or the other.  The court simply looks at whether there is some evidence that would “enable reasonable and fair-minded people to reach the verdict under review.”

To overturn a jury verdict on factual sufficiency grounds, the jury’s verdict must be against the great weigh and preponderance of the evidence.  This means that the jury verdict will be set aside “only if it is so contrary to the overwhelming weigh of the evidence as to be clearly wrong and manifestly unjust.”

Taken together, the high standards for legal and factual sufficiency protect the philosophical value that we place on the role of the jury in our legal system. We have assigned the jury the role of weighing the evidence and resolving any conflicts or inconsistencies in the evidence.  We then shield the jury’s verdict from second-guessing by creating high standards for overturning the jury’s verdict.

So why do juries matter?  Because under our system, once the jury delivers its verdict it is procedurally and practically very difficult to overturn the verdict.  Oh, and also for all those constitutional reasons and tightly-held traditions long associated with our legal system.

Previously I posted about Dallas County juries here and hereLast week a federal jury ordered Johnson & Johnson to pay $1.041 billion to six plaintiffs who received defectively-designed hip implants.   Of the total verdict, $32 million was for compensatory damages, and the rest was for punitive damages. The federal jury that ordered Johnson & Johnson to pay a billion dollars was made up of jurors from the Northern District of Texas, which includes more than just Dallas County.  But Dallas County is the largest county in the Northern District of Texas, and I believe that the jury’s verdict is further proof that Dallas County jurors believe that civil lawsuits are an appropriate way to monitor and police large corporations.

When I first started practicing law in Dallas in the early 1990s, the prevailing sense around the campfire was that Dallas County was a pro-defense venue.  Over the years there have been some huge verdicts out of Dallas County in business disputes and commercial matters, but it seemed to most observers that personal injury plaintiffs did not fair as well in Dallas County.  In my earlier posts I gave my two-cent opinion that Dallas County was no longer pro-defense, or even neutral, because of the increasing frequency of eye-popping verdicts in personal injury cases.  In September, Bloom Strategic Consulting published a report of a survey that it conducted of 1000 prospective Dallas County jurors.  I wrote about the survey’s results in my first post about Dallas County jurors, and I believe that this report should be required reading for any lawyer with a case pending in Dallas County.  Based on what I have been seeing lately, I think that Dallas County is pro-plaintiff.

For Johnson & Johnson, I expect that the federal judge will reduce the punitive damages award to confirm with Texas’ cap on punitive damages, especially considering that the award of compensatory damages ($32 million) is approximately three percent of the overall verdict.  However, the fact that Johnson & Johnson may never have to pay a billion dollars to the plaintiffs from last week’s verdict should not be confused with the message that the jury seemed to send to Johnson & Johnson, and what that message says about Dallas County juries.

I recently posted about the recent survey of prospective Dallas County jurors’ opinions and beliefs here.  Based on the survey’s results and my own observations, I felt that Dallas County had changed from neutral to plaintiff-friendly in terms of likely jury panels.  Assuming that blue leans more plaintiff-friendly, the recent election results support my conclusion.  Dallas County voted for Hillary Clinton over Donald Trump by a margin of 61% to 35%. By comparison, Collin County went in favor of Trump, 56% to 39%. Tarrant County went for Trump, 52% to 43%. Also around Texas, Bexar (San Antonio), Travis (Austin), and Harris (Houston) Counties all went blue, as did the counties in the Rio Grande Valley.  But overall, Texas was predictably red, with the exceptions of the larger metropolitan areas and the counties on the border with Mexico.

 

As most people who know me know, I am a registered pharmacist in addition to being a lawyer. After graduating from the University of Rhode Island College of Pharmacy in December 1992, and passing the Rhode Island pharmacist licensure exam in February 1993, I practiced pharmacy in various settings until graduating SMU’s Dedman School of Law in May 2003.

As part of the continuing education for my pharmacist license, I recently went to a continuing education seminar presented by the Institute for Brain Potential in which Martin M. Antony, PhD was the speaker.

During the presentation, Dr. Antony said that numerous studies point to poor communications by health care professionals as the most common factor leading to malpractice claims.

39054530 - portrait of cheerful female pharmacist chemist woman in pharmacy drugstore
Copyright: kadmy / 123RF Stock Photo

According to Dr. Antony, it is not a mistake that generally leads to a lawsuit; rather, it is poor communication after the mistake. The examples Dr. Antony gave were things such as health care providers avoiding his or her patient’s calls after the mistake because they know the patient is angry, failing to admit the mistake, and failing to say “I am sorry.”

The failure to apologize is an interesting point. Many lawyers advise their clients that in any in any situation, whether it is a car accident or a mistake in a health care setting, not to apologize and not to admit to anything, especially not fault.

While this advice certainly is applicable in many situations. The criminal context immediately comes to mind. But if a verifiable mistake is made in a health care setting, then there may be other strategies to consider.

The purpose of this blog post is not to give legal advice, and certainly is not to come up with a strategy for dealing with a pharmacist, physician or hospital mistake in less than 500 words. Rather, it is to suggest that health care providers should have a plan in place for dealing with mistakes prior to the issue getting to litigation, and to highlight that patient communication may be an integral part of that plan.

logo-colorI have been defending pharmacists against a multitude of claims for my entire thirteen years of law practice.  Many at Fox Rothschild have been doing it much longer.  We can help you come up with a plan for dealing with health care liability claims and/or mistakes.

While perhaps fun for kids, unusually heavy rain can cause problems for commercial property landlords, including flooding, mudslides, and mud buildup.

Copyright: chepko / 123RF Stock Photo
Copyright: chepko / 123RF Stock Photo

According to visitdallas.com, October ties with April for the second wettest month in Dallas (not surprisingly, May is first). October averages 3.5 inches of rain for the month, which means that Dallas usually gets more rain in October than Seattle, Washington (3.27 inches according to usclimatedata.com).

Under Texas law, premises operators owe a duty to keep their premises safe for business invitees against conditions on the property that pose an unreasonable risk of harm. This duty owed by premises operators, however, does not render the operator an insurer of the invitee’s safety.  According to the Texas Supreme Court, ordinary mud or dirt in its natural state can and often does form a condition posing a risk of harm, but not an “unreasonable” risk of harm. In other words, mud that accumulates naturally on an outdoor concrete slab, without the assistance or involvement of unnatural contact, is nothing more than dirt in its natural state and is not a condition posing an unreasonable risk of harm.

Copyright: Cole123RF / 123RF Stock Photo
Copyright: Cole123RF / 123RF Stock Photo

Plain dirt which ordinarily becomes soft and muddy when wet, or mud that accumulates due to rain and remains in its natural state, are not dangerous conditions of property for which a landlord may be liable.

One word of caution, however: if a premises operator undertakes to remove the mud, it must do so reasonably, and take care to avoid creating a dangerous condition during the removal.

I look this up every time it comes up.  For once and for all, the beneficiaries under Texas’s Wrongful Death Statute are the surviving spouse, children, and parents of the deceased.    This includes adopted children and common law spouses, but does not include same-sex spouses (yet).  The class of plaintiffs also includes so-called “illegitimate” biological children.

Brothers, sisters, grandparents, grandchildren, aunts, uncles, nieces, nephews, and cousins do not have standing to bring a wrongful death action.

Also, the estate of the deceased does not have standing to bring a wrongful death claim.  The estate’s claims are covered by Texas’ Survival Statute.

The wrongful death plaintiffs can sue to recover the damages that they have incurred as a result of the death of the deceased.  These damages include pecuniary losses, mental anguish, loss of companionship, and loss of inheritance.  Surviving spouses and children can recover exemplary damages, but parents cannot recover exemplary damages in a wrongful death action.