SMU student creates an App to stop Texting While Driving

All it takes is to look around wherever you’re driving to see that distracted driving is becoming an epidemic.  And it’s getting worse. So many tragic accidents in Dallas and throughout North Texas could be avoided if people would just put their devices down and drive. Neha Husein, a junior at Southern Methodist University, is doing her part to find a solution. After Neha was rear-ended by a distracted driver several years ago, she created the Just Drive app. The incentive-based app senses when the your car is moving and awards points for every 10 minutes of undisrupted driving. Drivers can redeem the points for gift cards or coupons at various outlets. Driving safe and getting free stuff is a great combination!

While most drivers believe that texting while driving is dangerous – just how dangerous is alarming and often not fully appreciated. For example, studies show that reading anything on your phone takes your eyes off the road for a minimum of 5 seconds on average. At 55 mph, that’s like driving the length of an entire football field with your eyes closed.

Distracted driving in Dallas, and throughout Texas, continues to be a serious problem, as data indicate that drivers are not changing their behaviors.  In 2017, according to the Texas Department of Transportation, the total number of reportable motor vehicle traffic crashes on Texas roads was 537,475. Of those, 100,687 or 19% involved distracted driving (driver distraction, inattention or cellphone use).

These crashes resulted in 444 deaths and 2,889 serious injuries.  However, as even the best personal injury attorney or police officer will tell you, these distracted driving accident numbers are based on information contained in local police accident reports and likely are vastly underreported.  Often, police officers can’t determine whether the rear-end collision or the ran the red-light auto accident was because someone was using their smart phone unless someone actually saw it or someone admits to it at the accident scene.  The police officer investigating the collision has no authority to demand to see the driver’s phone.  As such, they often do not list distracted driving as a cause.

According to the Texas Department of Transportation, more than 3,700 people were killed on Texas roadways last year – marking a 10% increase in traffic deaths from the previous year. In fact, traffic fatalities in Texas have continued to rise every year since 2010 -marking a 34% increase in traffic deaths in the past seven years.

Distracted driving, speeding and DWI remain the major factors in the majority of serious or fatal car accidents on our roadways.  And with more people moving to Texas, there are more people on Texas roads and therefore a greater chance of collisions.

In 2017, Texas enacted a law, House Bill 62, in an effort to curb distracted driving. The new law, which took effect September 1, 2017, makes it illegal to text while driving. Forty-six other states also have similar bans on text and driving.

Although Texas law now bans texting while driving, many people are guilty of using their phones while driving – even if they don’t admit it. According to a 2017 study, distracted driving is probably even worse than you think – with drivers looking at their smartphones on 88 out of every 100 trips! The study, conducted by Zendrive, has Texas as the 17th worst state for phone-distracted drivers. The study found that during an hour-long trip, drivers in the U.S. spent an average of 3.5 minutes using their phones.  For the study, Zendrive looked at data from 3.1 million drivers, on trips covering 5.6 billion miles between December 2016 and February 2017.

And, of course, texting is only one thing people are doing with their phones. Many North Texans who have their phones out while on the road say they use the devices to listen to music, check social media, or just stay reachable.

While police departments and safety organizations across Texas are working hard to get the message out about the dangers of distracted driving of any kind, many say they aren’t sure how well the message is getting across. They explain that distracted driving is any activity that diverts attention from driving, including using your phone, eating and drinking, adjusting your car’s stereo, entertainment or navigation system, or anything that takes your attention away from the task of safe driving. And, unfortunately, distracted driving continues to increase, causing more injury and death on Texas roads.

Jason Franklin is founder of the law offices of The Franklin Law FirmJason Franklin is founder of The Franklin Law Firm, a Dallas Personal Injury law firm that specializes in providing Real Help for Real Injuries to North Texas accident victims injured in a car accident, truck accident, motorcycle accidents, or other personal injury cases.  Because of his years of experience and record of success, Jason Franklin is frequently invited to speak to lawyer groups about Texas personal injury law.  Franklin has been repeatedly recognized by Super Lawyers as being one of the best personal injury trial lawyers in the State of Texas.


Texting Drivers Are Making Texas Roads Even More Dangerous

Given the ever-growing numbers of serious personal injuries and wrongful deaths in car accidents caused by distracted driving in Texas, and because of massive education efforts to inform the public about the extreme danger of using smart phones at the wheel, a recent study actually shows that Texans are getting worse about using their mobile-phones for various activities while driving.

More people are using their phones at the wheel, and for longer periods of time, according to a study published this month from Zendrive, a San Francisco-based startup that tracks phone use for auto insurers and ride-hailing fleets. According to Zendrive founder Jonathan Matus, “as you have more young drivers on the road, and as people increasingly become addicted to their smartphones, it will continue being a major health issue—almost an epidemic—in this country.”

From December through February of 2018, Zendrive technology monitored 4.5 million drivers and compared the results with the year-earlier period. It found that two out of three people used a mobile phone at least once. Among those who picked up their phones, they used them for an average of almost four minutes—a 5 percent increase from last year. The study showed that Texans spend on average almost 7% of their driving time on the phone.  And the number of Texans doing this has increased 31.6% over the past year!

Zendrive technology monitored 4.5 million drivers

 

In Texas, car crashes due to distracted driving are continuing to increase. According to Texas Department of Transportation (TXDOT) crash statistics, in 2017 distracted driving (driver distraction, inattention or cellphone use) was involved in almost 20% of all car wrecks in Texas.  This means that in Texas in 2017 there were over 100,000 automobile accidents caused by distracted driving.

Unfortunately, as any car accident lawyer can tell you, the TXDOT statistics drastically underreport distracted driving.  Often the police officers investigating car wrecks, who then file their motor vehicle accident reports with TXDOT, do not know if distracted driving was involved unless someone admits it or if a witness specifically reported seeing it.  In the absence of one of these two things, the police officer (who cannot order someone to look at their phone without a search warrant) has no way to know if distracted driving was a root cause of the collision.  As a result, the investigating officer will often only put the physical cause of the auto collision, such as “following too closely” or “failed to yield – stop sign.” Unfortunately, this does not address the root cause of the car crash – why the driver didn’t see traffic stopped up ahead or ran the stop sign.

Study after study confirms the extreme dangers of distracted driving.  According to the National Highway Transportation Safety Administration, texting while driving makes you 23 times more likely to crash and you are 6 times more likely to cause an accident than if you were driving while intoxicated.

As of September 1, 2017, a new statewide law in Texas makes it illegal for all drivers to read, write or send a text while driving.   While law enforcement officers are looking for drivers with their heads down distracted by their phones, the same problems arise when police officers are investigating auto crashes in determining whether distracted driving played a role in the accident.

Tips to Avoid Distracted Driving

  • Give driving 100 percent of your attention, 100 percent of the time.
  • It’s safer to pull into a parking lot before diverting your attention to your phone or other activity.
  • Put your phone away – or turn it off – before getting behind the wheel.
  • Tell friends, family, and coworkers you won’t respond to calls or texts when driving.
  • Use a smartphone app that sends auto-reply texts when you’re behind the wheel.

Jason Franklin is founder of the law offices of The Franklin Law FirmJason Franklin is founder of the law offices of The Franklin Law Firm, a Dallas Personal Injury law firm that specializes in providing Real Help for Real Injuries to accident victims injured in a car accident, truck accident, motorcycle accidents, or other personal injury cases. Because of his years of experience and record of success, Jason Franklin is frequently invited to speak to lawyer groups about Texas personal injury law. Franklin has been repeatedly recognized by Super Lawyers as being one of the best personal injury trial lawyers in the State of Texas.


President of the Dallas Trial Lawyers Association for 2017

Jason Franklin was honored to serve as President of the Dallas Trial Lawyers Association for 2017

Jason Franklin, a Board Certified personal injury attorney in Dallas, Texas, was privileged to serve as President of the Dallas Trial Lawyers Association for 2017. DTLA is one of the largest local trial lawyer associations in the state of Texas. Its members represent people in a variety of types of personal injury, including accident victims, medical malpractice, workers compensation and wrongful death.

At the end of his term, Jason Franklin was pleased to report that as an association DTLA has never been stronger. The mission of DTLA is to support and empower trial lawyers to achieve justice for those who have been harmed. In this regard, DTLA is committed to be a diverse and influential group of highly engaged trial lawyers viewed positively by the local judiciary that furthers the trial lawyer profession through mentorship, an effective partnership with Texas Trial Lawyers Association, strong relationships with local bar associations and transparency with, and within, its membership.

Diversity

“Our goal is to make our Association inclusive to all those who do what we do – regardless of one’s age, income, gender, the color of one’s skin, who a person decides to love or who they decide to worship, if you are a trial lawyer who represents people who have suffered harm then you should have a place in our Association where you feel welcomed and supported,” Franklin explains. To support these goals, DTLA implemented a graduated dues structure that makes it less burdensome for younger attorneys to join DTLA while simultaneously increasing overall membership dues revenue. Franklin reported that it accomplished both, increasing overall membership to record numbers while increasing the diversity of new members. In addition, the DTLA Diversity Committee, co-chaired by Pat Montes and Rachel Montes, also made great efforts this year at strengthening the relationships DTLA enjoys with its sister bar associations such as J.L. Turner, Dallas Women Lawyers, Dallas Asian American Bar, Dallas Hispanic Bar and the Dallas LGBT Bar.

Continuing Legal Education / Mentorship

DTLA hosts a monthly lunch that features a speaker and topic that educates lawyers about trends in the law and our practice areas. At the beginning of the year DTLA lowered lunch prices to make them more accessible to our members. As a result, CLE Lunch attendance increased 22% and the lunch crowd was far more diverse. Of course, this depended on having quality CLE speakers who benefits members and the DTLA Membership Committee, chaired by Jerry Andrews, lined up some wonderful Lunch CLE speakers: Dr. Jim Stanley (Common Injuries in Car Wrecks), Mikal Watts (Exoneration after prosecution), Mark Ticer (Real Stowers), Judge Maricella Moore (Judicial Philosophy), Chris Hamilton (Making the Jury Care about Your Case) and Lisa Blue (Modernizing the Jury Trial). Further, the DTLA Mentorship Committee, chaired by Mark Frenkel, rolled out the inaugural mentorship program.

Protecting Dallas Citizens’ Access to Courts

During the 85th Session of the Texas Legislature, a bill was proposed (SB 985) that would close many of our Dallas County Courts. DTLA was at the forefront in opposing this bill and worked hand-in-hand with Dallas-ABOTA and the Dallas Bar Association to present a united front against this bill. As a result, the bill was quickly defeated. Congratulations to Quentin Brogdon and Rob Crain who did phenomenal work in their roles as Presidents of those associations in 2017.

DTLA’s Work to Support Texas Watch

Texas Watch is a non-partisan citizen advocacy organization dedicated to ensuring that insurance companies and other corporations are accountable to their customers. Texas Watch is hugely important to protecting injured Texans and their 7th Amendment rights. DTLA was proud to support Texas Watch in its fundraising efforts so that it can continue to protect ordinary Texans from powerful corporations and insurance companies when they attempt to take advantage of them.

DTLA has a long track record of protecting access to justice for those who have been harmed. “I thank each and every DTLA member for the honor and privilege of allowing me to serve as DTLA president,” Franklin says. “I am humbled to be included in a long and distinguished list of past DTLA Presidents.”

1963 Bert Bader 1983 Sylvia Demarest 2003 Marc Stanley
1964 David Kendall 1984 Joe E. Boudreaux 2004 Mary Alice McLarty
1965 Judson Francis 1985 Charles Wilson 2005 Ted B. Lyon
1966 Jim Foreman 1986 John Howie 2006 George (Tex) Quesada
1967 Jim Hultgren 1987 Boyd Waggoner 2007 James Girards
1968 Homer Brown 1988 Paul Gold 2008 Quentin Brogdon
1969 Robert C. Fultz 1989 S. Craig Smith 2009 Clay Miller
1970 William D. Cox, Jr. 1990 Roger Williams 2010 Clay Jenkins
1971 Burt Berry 1991 Paula Sweeney 2011 Roger Mandel
1972 Vic Terry 1992 James Francis 2012 Bryan Pope
1973 Windle Turley 1993 Les Weisbrod 2013 Jeffrey Simon
1974 Robert Woodruff 1994 Frank Giunta 2014 Todd Clement
1975 Charles Caperton 1995 Randall Moore 2015 Jim Mitchell
1976 Frank L. Branson 1996 Carmen Mitchell 2016 Greg Marks
1977 Al Ellis 1997 Robert Lyon 2017 Jason Franklin
1978 Jack B. Cowley 1998 Leon Russell
1979 Fred Misko, Jr. 1999 Coyt Johnston
1980 Frederick M. Baron 2000 Bill Liebbe
1981 James C. Barber 2001 Michael Parham
1982 John E. Collins 2002 Grady Chandler

Jason Franklin is founder of the law offices of The Franklin Law FirmJason Franklin is founder of the law offices of The Franklin Law Firm, a Dallas Personal Injury law firm that specializes in providing Real Help for Real Injuries to accident victims injured in a car accident, truck accident, motorcycle accidents, or other personal injury cases. Because of his years of experience and record of success, Jason Franklin is frequently invited to speak to lawyer groups about Texas personal injury law. Franklin has been repeatedly recognized by Super Lawyers as being one of the best personal injury trial lawyers in the State of Texas.


Texas home insurers see another strong year but still seek limits on lawsuits

Terrence Stutz – Dallas Morning News – Austin Bureau

20 April 2015

AUSTIN — Texas home insurers, led by the three largest companies, racked up a third straight year of healthy profits in 2014, thanks to higher rates and low levels of stormy weather across the state.

But the industry is still seeking legislation that would curb the ability of homeowners to sue insurers for unpaid claims or unfair practices. Industry representatives contend the changes are needed to protect companies from a rising tide of lawsuits filed by homeowners, particularly for hail-damaged roofs.

Such lawsuits didn’t hurt insurers’ bottom line last year, premium and loss numbers filed with the Texas Department of Insurance show. Overall in 2014, insurers paid out an average 46.4 percent of their premiums to cover property losses. That figure, known as the “loss ratio,” was slightly higher than in the previous year, but still reflected a good profit margin for most insurers.

A loss ratio of 60 percent or lower is considered a good target for profitability, and almost all large companies hit that benchmark in 2014.

“Here we are with insurance companies posting extremely healthy profits for three straight years and four of the last five years,” said Alex Winslow of Texas Watch, a consumer group active in insurance issues. “Insurance companies already hold all of the cards, and now they want to stack the deck against policyholders with valid claims.”

Mark Hanna of the Insurance Council of Texas, an industry group, said the number of lawsuits against insurers in recent years is “off the charts” and has companies worried that more could be on the way.

In McAllen, he said, an estimated $250 million in actual damage to roofs caused by hail and wind swelled to almost $600 million recently because of lawsuits filed by homeowners.

Few storms in 2014

Regarding the recent financial fortunes of insurers, Hanna noted that Texas last year had no hurricanes and “the lowest number of tornadoes ever recorded” — which also meant fewer damaging hailstorms.

“It is an up-and-down business. We have good years and bad years,” he said, citing two bad years — 2008, when Hurricanes Ike and Dolly slammed the Texas coast, and 2011, when two destructive wind and hail storms hit the Dallas-Fort Worth area just six weeks apart. Both years saw massive property losses.

State Farm, the largest property insurer in Texas, showed a loss ratio of 36.7 percent last year. It was one of the company’s more profitable years of recent times. Allstate recorded a 45.4 percent loss ratio and Farmers was at 51.8 percent. Together, the three companies write most of the policies in Texas.

All three companies also boosted their homeowner insurance rates during 2014. State Farm increased its premiums 9.8 percent. Allstate had the lowest increase, at 6.5 percent, while Farmers raised rates 14.9 percent.

This year, the big three have kept rates fairly stable. State Farm hiked its premiums just half a percent, while Farmers actually cut its rates 5 percent. Allstate had a 4.3 percent increase.

Major insurers, meanwhile, are now pushing the bill by Sen. Larry Taylor, R-Friendswood, to limit lawsuits against property insurers. The measure has been approved by the Senate Business and Commerce Committee and is awaiting a vote in the full Senate.

Taylor, who owns Taylor Truman Insurance Agency, said some parts of Texas are now seeing a third of insurance claims wind up in litigation — a trend that will bring higher rates and a tighter insurance market if something is not done.

“Texas will always have some of the highest property insurance rates in the country because of our geographic location. But we cannot afford to add another 35-40 percent for litigation on top of every property claim,” he said. “If losses continue to go up, we will all pay more for insurance.”

Third-highest rates

A survey by the National Association of Insurance Commissioners this year indicated that Texas has the third-highest homeowner insurance rates in the nation. Only Florida and Louisiana were higher.

Winslow said Taylor’s bill would destroy “the last line of defense that families and businesses have against insurance companies that are caught cheating” on claims.

“It’s going to put pressure on policyholders to take low-ball settlement offers and place onerous and expensive burdens on homeowners trying to get their claims paid,” he said. “You won’t be able to sue for wrongfully denied benefits. In most cases, you lose you ability to get anything.”

The stakes are high, given the amount of money that Texans annually spend on property insurance.

Losses, expenses

Last year, according to the Insurance Department, Texas companies collected nearly $7.5 billion in homeowner premiums from their policyholders, while paying out about $3.5 billion for insured losses. In 2013, insurers collected $6.8 billion and paid out $3 billion for losses.

The 46.4 percent loss ratio reported by the Insurance Department does not reflect agent commissions, administrative costs and other expenses. Statewide, the so-called combined ratio of losses plus expenses was 83.8 percent.

Consumer groups note that percentage does not factor in earnings on company investments.


Could Texas’ high court curb trade-secret sharing in safety lawsuits?

By SUE AMBROSE Staff Writer The Dallas Morning News
Published: 18 April 2015

General Motors CEO Mary Barra swore under oath to Congress that her embattled company would change and focus on the safety of its customers.

“Today’s GM,” she said, “will do the right thing.”

The promise, made a little more than a year ago, came after company officials admitted they failed to correct faulty ignition switches now linked to more than 80 deaths.

As Barra spoke, GM was asking the Texas Supreme Court to undo a decades-old legal decision that many attorneys say helps hold big companies accountable for unsafe products. That ruling allows attorneys to share company secrets with other lawyers who have similar cases.

In the David vs. Goliath legal battles against big corporations, the ruling has given more punch to attorneys pitted against the GMs of the world. Sharing information allows lawyers to cut costs and compare notes. Undoing the ruling could make suing more difficult.

“It’s about access to justice,” said Jim Wren, a law professor at Baylor Law School in Waco. “Anything that significantly increases the cost for attorneys makes it harder for consumers to find attorneys who are willing to take their case.”

GM says the fight is about protecting trade secrets from leaks to competitors.

The company’s lawyers declined to be interviewed. But when responding to written questions, the company said, “GM considers trade secrets valuable company assets that require, given competitive sensitivity, robust protection from disclosure.”

Others say the fight is about making it harder for regular folks to challenge companies in court. Lawyers cite last year’s revelation that GM quietly settled lawsuits related to lethal defects in ignition switches as an example of the ways companies will try to protect themselves. That scandal landed company CEO Barra in the hot seat before Congress.

The ability to share company information with other attorneys who have similar cases can strengthen cases and counteract corporate malfeasance, lawyers say. And in the case before the Supreme Court, no one disputes that the materials GM was concerned about were trade secrets.

But, “this is not about the right of a legitimate business to protect a trade secret,” said Tyler attorney Randy Roberts. “It’s about corporations using the cover of trade secrets to hide important consumer safety information. I hope the Texas Supreme Court sees the distinction and comes down on behalf of consumers.”

GM’s fight over the right to share — with the Supreme Court of Texas deciding the winner — had the potential to rewrite rules that govern lawsuits against big companies. But a month before the high court was to hear GM’s case, after The Dallas Morning News began asking questions, the lawsuit that set up the issue was settled, leaving the court nothing to rule on.

Legal experts say the issue will be back. Since 2004, the Supreme Court has agreed to consider at least three cases in which companies were unhappy with how judges were following the court’s earlier decision on sharing between attorneys. Each time, the companies and those who sued them resolved their disagreements before the high court could make a decision.

“The fact that the Texas Supreme Court has shown interest in these cases several times indicates the court would like to revisit the rule,” said Austin attorney Lisa Hobbs, representing the Bolaños family. Companies “like GM know this and this will encourage them to take the issue back up if it comes up in their cases. Right now they know they have a friendly court.”

GM’s journey to the Supreme Court started with an accident nearly five years ago on a two-lane road in a remote stretch of South Texas.

On a warm Sunday night in May 2010, Elias Bolaños and a co-worker were southbound on State Highway 16 to Zapata, where Bolaños lived, after a long day of work for an energy company.

Bolaños, 52, was in the right front passenger seat of the 2006 Chevrolet Silverado pickup, wearing his seatbelt. Traveling at 80 mph, the driver dozed off and lost control. The pickup rolled several times before it slid and stopped, wheels up.

The cab’s roof caved in so far that it was level with the hood. The driver and the witness later told authorities that they could hear Bolaños moaning from the flattened truck. A volunteer firefighter told The News Bolaños was so compressed that his chin was pushed against his chest.

An autopsy found Bolaños had no other life-threatening injuries and concluded he suffocated.

In 2012, Bolaños’ wife, Martha, son Elias Jr. and daughter Edlin sued GM and others, alleging the pickup wasn’t sturdy enough to protect those inside. Unlike in most four-door vehicles, the truck’s front and rear doors were designed to open facing each other. Without a pillar between the two doors, at that spot only the door frames support the roof.

All denied wrongdoing. The seller of a rack behind the truck’s rear window settled. The case against the employer is pending.

In the lawsuit against GM, the Bolaños family’s attorneys asked the automaker to turn over details related to the truck’s design.

But GM had conditions: The Bolañoses’ attorneys would have to return the materials when the case ended. And they couldn’t share the design data with other attorneys.

The company argued that the information was proprietary and valuable. “GM has spent millions of dollars and invested thousands of hours so they can develop this,” GM attorney Daniela Gonzales Aldape said at a court hearing. Even most GM employees don’t have access to the detailed electronic blueprint, she said. “That’s how highly guarded this information is.”

But the Bolañoses’ attorneys said they should have the right to share that material, citing a 1987 Texas Supreme Court ruling.

With the two sides unable to agree, the issue would eventually end up back before the Supreme Court. The court would have the opportunity to undo the ruling made almost 30 years earlier. That case also involved GM.

In 1985, San Antonio judge David Peeples was presiding over a lawsuit by a man burned in a rear-end collision of a 1982 GM Buick. The lawsuit alleged the fuel system was poorly designed.

David Perry, the man’s attorney, said in an interview that while preparing for the trial, GM “produced a lot of documents that we thought were going to be important” for a lot of other cases.

After Peeples forbade the sharing of the documents, the Supreme Court ruled in 1987 that he had “abused his discretion.” The court noted the benefits of sharing information:

If lawyers can compare notes, this can force companies who are sued to be honest and give the same information to every lawyer who asks. When lawyers share, attorneys don’t have to prove over and over, in similar cases, that they deserve the same information that other lawyers have already received. The courts are more efficient.

The Supreme Court also said it’s possible to protect trade secrets while allowing them to be shared. A trial court could restrict sharing to attorneys with similar cases and forbid releasing trade secrets to business competitors.

The decision set the standard for such sharing in Texas. It is also often cited by other courts across the country when they weigh whether to allow attorneys to share company information obtained during the course of a lawsuit.

That 1987 ruling set “a very important precedent,” said Dustin Benham, a law professor at Texas Tech University School of Law in Lubbock. “Those who oppose sharing would love to undo it because it would have nationwide implications.”

When GM went back to the Supreme Court over sharing in the Bolaños case, the company’s argument hinged on the notion that the electronic blueprints are trade secrets and thus proprietary. GM argued that sharing in the age of the Internet has made the danger of spreading proprietary business information bigger than ever.

“Modern technology allows for the anonymous, immediate, global and irretrievable sharing of data,” GM wrote in a brief to the Texas Supreme Court. When the court allowed sharing in 1987, the court “did not contemplate a situation where trade secrets could be irreversibly disclosed with the click of a mouse.”

Asked to cite examples in which a trade secret had leaked during a lawsuit where lawyers had been granted the right to share the trade secret with other lawyers, GM offered The News six examples. The News again asked, specifically, whether the leaks occurred because lawyers had exercised their right to share the trade secrets with other lawyers. GM told The News to do its own research.

The News obtained court opinions, original documents and other summaries of the cases. None matched the scenario GM told the court it was concerned about.

The Bolañoses’ attorneys did not question GM’s assertion that the computer data represented trade secrets. But engineers say the computer blueprint of the pickup model isn’t as secret as GM claims. For example, automakers and parts manufacturers can reverse engineer a competitor’s vehicle by taking it apart and inspecting it.

Although it’s not cheap, it is possible for a competitor to create the type of computer blueprint GM wanted to protect. And in the Bolaños case, the Chevrolet Silverado model had already been out of production for five years when the suit was filed.

“If the competitors had wanted it, they would have already created” a blueprint, said Keith Friedman, a vehicle safety engineer and expert witness with offices in Austin and California.

A GM employee even hedged the issue in a sworn affidavit filed early in the case. The data “may” contain information “which cannot be obtained by reverse engineering,” she said.

The News asked GM about that choice of words. GM responded that their data “typically” contain that type of information.

GM also argued that another Supreme Court ruling needed to be considered. In 1998, the court ruled that a tire company didn’t have to turn over a secret rubber formula because the opposing lawyers hadn’t shown they needed it to prove their case.

GM reasoned that if the Supreme Court said then that lawyers should only get information they needed to prove their case, they should not be able to share that information with other lawyers to prove other cases.

Hobbs, Bolaños family’s attorney, argued that the 1998 ruling didn’t apply. When the Texas Supreme Court sided with the tire company, Hobbs noted, it didn’t say it was overturning the earlier ruling that allowed sharing. If it had intended to, it would have said so, she wrote.

Lawyers who take them on say the big companies aren’t really worried about the leaking of trade secrets. They say the companies are trying to make suing more difficult.

“It’s not about trade secrets, it’s about avoiding liability,” said Daniel DeFeo, a Missouri attorney who has tried cases in Texas. “All they’re trying to do is hamstring a plaintiff who has limited resources to not being able to sue on the same level. They’re just being bullies.”

GM disputed that notion, saying the “attorneys’ speculation is simply that — speculation,” the company wrote to The News.

Lawyers who have sued automakers over alleged defects say they need vehicle design data to expose when a company could have made a vehicle safer.

“Once an attorney like myself has their … engineering files, we can simulate the actual crash conditions with and without an alternative design and prove the case,” said Dallas attorney Lee Brown.

Jaime Gonzalez Jr., the attorney for the Bolaños family from the beginning of the case, told The News that without the ability to share that kind of information “then the only thing we can do is simply take it on faith that General Motors has truly produced everything that they were ordered to produce.”

After the Bolaños case was originally filed, GM did give the computer blueprint to the family’s attorneys. When the Supreme Court became involved, a temporary order was issued forbidding any sharing with other attorneys. As part of the settlement, the Bolañoses’ attorneys agreed to return the materials.

The 1987 ruling that allowed lawyers to share was made at a time when the state’s Supreme Court was dominated by Democrats.

Because the court is now dominated by conservative Republicans, many lawyers think the time remains ripe for another push to limit sharing.

“They’re taking it up to a Supreme Court that’s got a track record for protecting corporations and giving them what they ask for,” said Houston attorney Erin Copeland.

If the court gets a similar case again, lawyers see several options:

The court could completely deny a company’s request to restrict sharing, and reaffirm the 30-year-old ruling. Legal experts say this is the least likely outcome.

The court could instruct judges to decide the issue on a case-by-case basis, giving them guidelines for deciding whether trade secrets can be shared.

The court could now say it’s wrong for judges to ever allow attorneys to share trade secrets.

Restricting sharing would make pursuing lawsuits more costly “because each lawyer has to go through the process, essentially reinventing the wheel each time,” said Wren, the Baylor law professor. Attorneys could be more reluctant to sue.

Lawyers predict companies would also try to designate more types of information as secret.

“You’re going to shift the battle to whether or not something is trade secret,” said Hobbs, the Bolaños attorney. Those suing will have to spend more time and money fighting those claims.

As the Supreme Court was to hear the GM case, it had gained national attention from groups that represent the interests of companies who are frequent targets of product liability lawsuits.

Two national groups that represent some of the biggest companies in the world — including makers of automobiles, oil, tobacco, tires and pharmaceuticals — voiced their support for GM’s point of view.

The Product Liability Advisory Council and the Alliance of Automobile Manufacturers both wrote lengthy legal arguments and sent them to the court. Wallace Jefferson, former chief justice of the Texas Supreme Court, authored the brief for the automobile manufacturers.

The Texas Association of Defense Counsel — a group of lawyers who defend their clients against lawsuits — also supported GM.

Merely having the issue pending in front of the high court has affected other lawsuits.

Other car companies have also been seeking court orders to prevent lawyers from sharing certain information with other lawyers. Attorneys who take on big companies sometimes agree to such arrangements despite the 1987 precedent because “Texas is not the place where you want that issue to go to the Supreme Court,” said Chip Martens, a Corpus Christi attorney.

Houston attorney Jeffrey Raizner said that while the GM case was pending, an insurance company tried to use it to get its way in a Dallas courtroom.

Raizner was suing the company, and it didn’t want him to be able to share guidelines on how insurance claims were handled. The insurance company said the guidelines were trade secrets.

“Let me ask you something,” Dallas Judge Ken Molberg said at a hearing. “It is very, very common that information is shared in other cases and even cases like this in other jurisdictions. Why is this any different?”

Attorney Charles Frazier, who works for the same firm as Jefferson, told the judge about the GM case. If Molberg approved the sharing of the insurance guidelines, a higher court might eventually overturn the judge’s decision.

Molberg allowed Raizner more time to investigate why the guidelines wouldn’t qualify as trade secrets. But he also issued a temporary court order forbidding Raizner from sharing them. The case is ongoing.


Civil jury trials plummet in Texas

Civil jury trials are becoming rare in Texas.

The right to have disputes decided by a panel of fellow citizens is cited in the Declaration of Independence and explicitly confirmed in the constitutions of Texas and the United States.

But new statistics show that the right to “trial by jury” is quietly and steadily disappearing thanks to a mixture of tort reform laws and Texas appellate court decisions that have made it more difficult for parties in a lawsuit to have their disputes decided by juries. In addition, lawyers and judges say the expenses of litigation, including discovery and increased attorneys’ fees, have made getting a lawsuit to a jury cost prohibitive.

The result is that the system has made it so procedurally and financially onerous that individuals and even many companies can no longer have their peers judge their disputes.

The number of civil disputes in the state’s district courts that were resolved by juries plummeted 20 percent in 2011, even as the number of lawsuits filed continued to hit record highs.

It’s not a new phenomenon. The 1,195 jury trials conducted in 2011 are one-third the number held in 1996, according to the Texas Administrative Office of Courts. During the same period, the number of lawsuits filed rose 25 percent.

In 1996, juries decided one out of every 48 lawsuits filed. Last year, only one in 183 new civil complaints resulted in jury verdicts.

“We are seeing our rights to trial by jury disappear before our eyes,” said Houston trial lawyer David Beck.

“This attack on our civil jury system has been going on for more than a decade,” said Beck, who represents businesses in large and complex disputes. “The right to trial by jury is part of our democracy.”

The trend is true in every metropolitan area across the state.

“It is very disheartening to see the demise of the civil jury system, but it is happening right in front of us,” said Mark Werbner, a litigator with Sayles Werbner in Dallas.

The statewide statistics do not include cases filed or tried in the state’s county courts at law because court officials have not collected or reported those numbers in a manner that allows accurate comparisons. But judges and court officials say those courts have witnessed a decline in jury trials similar to the district courts.

“Contrary to popular belief, the drop in jury trials is not a positive development,” said Steven McConnico, an Austin trial lawyer who represents plaintiffs and defendants in major lawsuits.

“Fewer jury trials does not mean fewer lawsuits or fewer disputes,” said McConnico, who is a partner at Scott, Douglass & McConnico.

Judges decide

Legal experts say the state courts were hit with the trifecta:

The Texas Legislature passed significant tort reform measures, making it more difficult for plaintiffs to prevail in certain kinds of lawsuits and less likely to claim large damage awards if they do win.

At the same time, the Texas Supreme Court became more pro-defense, or at least less pro-plaintiff, according to legal observers.

The justices also issued a series of procedural decisions that shifted several key legal questions previously considered questions of fact to be decided by juries, to questions of law to be decided by judges, lawyers say.

The result, according to statistics, was a dramatic increase in the number of cases decided by judges on motions to dismiss or motions for summary judgment.

In 1996, judges resolved 3,488 cases on motions for summary judgment. By 2010, that number jumped to 5,597, a 30 percent increase.

“There are a significant number of judges who simply do not trust juries,” said Mike Lynn, a partner at Lynn Tillotson Pinker Cox in Dallas. “These judges have the opinion that regular people, also known as jurors, do not have the ability to understand the evidence or will be too emotional to decide cases.

“Too many judges think that if a case ends up in trial before a jury, that they have failed as a judge,” Lynn said. “And that is very sad.”

Texas District Judge Ken Molberg said that judges in Dallas are concerned that the state’s own policies involving alternative dispute resolution and tort reform are blocking access to the courthouse for real people.

“Binding mandatory arbitration has been driving cases out of our court system and toward rent-a-judges,” Judge Molberg said. “And tort reform has discouraged or impeded people’s right to jury trials. Some people may think that is a good thing, but it means that real people are not getting their claims heard — at least not by a jury of their peers.”

Adding to this attitude, lawyers say, is nothing short of a directive from the Texas appellate courts to trial judges to decide more cases before trial, be it on motions to dismiss, motions for summary judgment or pressuring the parties to settle.

“For the past 10 years or so, the appellate courts in Texas have made it clear that they do not respect jury verdicts,” Werbner said.

“All the lawyers know that jury verdicts will be met with great suspicion by the Texas Supreme Court and the courts of appeals,” Werbner said. “What is the result? People settle more quickly for results that are less than fully just.”

Trial costs

Texas Supreme Court Justice Nathan Hecht says the decline in the number of jury trials is much more complex than simply blaming decisions by the court.

Hecht says the real problem is that the cost of trying a case before a jury is so expensive, due to endless discovery requests and demands to take useless depositions. Control the costs, he says, and jury trials will return.

To that end, Hecht has advocated passage of the new expedited jury trial rules for cases involving $100,000 in dispute or less.

Even critics of Hecht agree that the cost of litigation has gotten out of control. But those lawyers point out that this is also true for nonjury trials and arbitrations, which continue to increase.

“The large law firm litigation shops have overpriced themselves so that clients cannot afford to go to trial,” Lynn said.

But lawyers and judges say there may be one additional party to blame for the decline in jury trials: lawyers.

“I think one problem is that many lawyers at many law firms no longer know how to try cases to a jury or are afraid of juries,” Beck said. “We have litigation partners at major law firms today who have never tried a case to a jury verdict. That is sad.”

By MARK CURRIDEN
The Texas Lawbook
Originally Published: April 02, 2012


Texas insurance lobbyists have a plan you won’t like

Dave Lieber
Watchdog
Dallas Morning News
Published:  09 April 2015

The Watchdog wants you to know that the insurance industry is trying to slide something slick through the Texas Legislature toward Gov. Greg Abbott’s signing pen that’s designed to pay you smaller insurance claims.

How?

By making it much harder for people with all kinds of insurance policies to use their rights to win deserved financial settlements in court.

That’s not how the bill’s author explains it. Sen. Larry Taylor, R-Friendswood, who owns Truman Taylor Insurance Agency, claims this is pro-consumer.

Taylor said last week in a hearing for his Senate Bill 1628 that he wants to stop the march of lawyers and public adjusters who contact potential customers and offer to help file lawsuits against insurance companies.

The result of this solicitation for business, the senator claims, is that 1 of every 3 catastrophic claims in Texas ends up in court. He warns that if his bill doesn’t pass, insurance companies will cut back their coverage offerings.

“We need to take care of the consumers on this,” Taylor said.

Ha. No, make that a double: ha-ha.

Texas Watch, a nonpartisan insurance watchdog, warns that Taylor’s bill is priority one in 2015 for the industry because, if passed, it would “succeed in stripping policyholders of their ability to force fair, timely payments,” says the group’s executive director, Alex Winslow.

If a company fails to pay in a timely way, it faces penalties under laws that have been around for decades.

Taylor’s bill, Texas Watch warns, promotes low-ball settlement offers, makes insurance company adjusters unaccountable for their actions and restricts the time allowed to file claims.

The bill also creates “gotcha” provisions that allow insurers to easily deny claims, Texas Watch says.

A thin line separates consumers’ rights from annihilation, and this is the thin line. In this case the line was marked at the hearing by two state senators, both lawyers, who understood the layers beneath the anti-litigation spin given by the bill’s author.

Sens. Kirk Watson, D-Austin, and Rodney Ellis, D-Houston, chewed up Taylor’s bill with legal questions that nonlawyer Taylor couldn’t answer.

“Obviously, I did not draft this,” Taylor said at one point about his bill.

Later, The Watchdog asked Taylor’s office who did write the bill. No answer. Taylor also declined an interview request. His office issued a statement that said, in part:

“SB 1628 is a consumer protection bill. Without this bill, many Texans, particularly low-income homeowners, could lose access to homeowners insurance, and insurance premiums for every Texas homeowner could increase. … Lawsuit abuse is the only explanation for the recent surge in lawsuits following hailstorms.”

On the webcast for the March 31 hearing of the Senate Business & Commerce Committee, the camera offers a brief glimpse of the rear of the committee room, away from the microphones. I count 15 people in dark suits — the “blue suits,” I call them. Most were probably insurance lobbyists. Maybe one or more are the actual authors lusting after their dream bill.

Dallas lawyer Steven Badger was the first to testify, in favor. “Today, hail is all I do,” he explained, meaning he defends insurance companies in lawsuits.

Badger laid out his view in a letter to me a year ago: “Over the last couple years a cottage industry has arisen in Texas comprised of roofers, appraisers, public adjusters, unlicensed public adjusters and various other characters who consider the insurance industry a slot machine that keeps on paying. The situation is totally out of control. Abuse and outright fraud is rampant.”

Sen. John Whitmire, D-Houston, took a counterview at the hearing: “There’s a reason people desperately turn to legal representation. Without that, they wouldn’t have gotten a good settlement.”

“This is going to affect rates every Texan pays,” Taylor warned. “We may lose protection on roofs.”

You’d think the insurance industry is hurting. It’s not. In the past year, companies writing homeowners insurance in Texas posted $1.4 billion in underwriting profits, Texas Watch says. Auto insurers earned $430 million in profits. And that’s before companies invested earnings for further profits.

Ellis said the first page of Taylor’s 20-page bill disturbed him so much, “I’m afraid to dig much deeper.”

Taylor soothed him: “This is a work in progress.”

That’s what should scare us.

Note: News on a couple of The Watchdog’s pro-consumer bills: Senate Bills 188 and 189 from Watson passed the Senate this week on 28-3 votes. They would make it illegal for home and auto insurance companies to raise rates on customers who ask questions about their policies but never file a claim.

On to the Texas House to achieve fairness for all Texas home and auto insurance policyholders.


New VTTI study results continue to highlight the dangers of distracted driving

Recently released results from a new Virginia Tech Transportation Institute (VTTI) naturalistic driving study continue to show that distracted driving is a tangible threat. The study, entitled The Impact of Hand-Held and Hands-Free Cell Phone Use on Driving Performance and Safety Critical Event Risk, shows that engaging in visual-manual subtasks (such as reaching for a phone, dialing and texting) associated with the use of hand-held phones and other portable devices increased the risk of getting into a crash by three times. The data were collected by VTTI and Westat. The study, which was conducted under a separate contract from the National Highway Traffic Safety Administration (NHTSA), found:

  • Text messaging, browsing and dialing resulted in the longest duration of drivers taking their eyes off the road.
  • Text messaging increased the risk of a crash or near-crash by two times and resulted in drivers taking their eyes off the road for an average of 23 seconds total.
  • Activities performed when completing a phone call (reaching for a phone, looking up a contact and dialing the number) increased crash risk by three times.
  • There is no direct increased crash risk from the specific act of talking on a cell phone. However, visual-manual tasks (locating the phone, looking at the phone and touching the phone) are always involved when using a hand-held cell phone. This makes the overall use of a hand-held cell phone riskier when driving.
  • Even portable hands-free and vehicle-integrated hands-free cell phone use involved visual-manual tasks at least half of the time, which is associated with a greater crash risk.

To learn more about the VTTI study, view the full report here.

 


What Is BAC?

The Franklin Law Firm, LLP is dedicated to educating our community and increasing safety through knowledge. We recently read an article on MADD explaining what a blood alcohol concentration (BAC) device is, and we appreciate the clear, down-to-earth way that they explain it.

They offer answers to questions like “should you rely on these types of devices to determine whether you are sober enough to drive home?” and caution that “impairment begins with the first drink, so it’s always dangerous to try to stay ‘one sip under the limit.'”

Click here to find out more about BAC.