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.

Attorney Jason Franklin named to Texas Super Lawyers for 2015

Jason Franklin has been named to Texas Super Lawyers for 2015. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations. No more than 5 percent of all lawyers in the State of Texas are named to Super Lawyers.

Jason Franklin has previously been named to Super Lawyers – Rising Stars which recognizes the top up-and-coming attorneys in the state – those who are 40 years old or younger or who have been practicing for 10 years or less. Only 2.5% of Texas attorneys are chosen for this honor in any given year. Jason Franklin was selected for this honor on four separate occasions: 2008, 2010, 2011, and 2012.

The Use of Focus Groups as a Jury Research Tool

Jury research is a powerful tool. By testing the evidence of a case in front of people like the ones who will be jurors in the actual case, valuable insights about the strengths, weaknesses and risks of a case are often discovered that allows the attorney to develop themes and strategies to most effectively present the case to a jury.

All too often, many attorneys mistakenly believe that using jury research is only an option in very large and expensive cases.   Many attorneys often dismiss the possibility of conducting jury research because of these resource restraints.  One of the reasons for this is that many attorneys still think of jury research as using a time-consuming and often expensive method called a “Mock Trial.”

For many years jury testing was done primarily using a mock trial.  In a mock trial, attorneys representing the different parties in a case make their arguments and present their evidence in an adversarial trial setting.   The mock jury then deliberates and renders its verdict.  However, there are often a number of factors that can prevent a mock trial from being effective, including the time and expense involved to effectively prepare for and present the mock trial, as well as the different advocacy skills of the presenters.  Another issue with mock trials is the difficulty in fully developing the other side in the case. When lawyers have spent many months (and sometimes years) developing their own case, it is difficult (if not impossible) to fully develop the other side’s best case for mock trial purposes.

However, there is another far more effective method of conducting juror research called a “Focus Group.”  Focus groups are different from mock trials in that they present the information in a neutral way and do not try and simulate all aspects of an actual trial. Instead, the purpose of the focus group is to present the evidence of a case in a neutral and easily understood manner.

Conducting focus groups in this manner addresses many of the problems posed by a mock trial. Not only is this type of focus group more cost-effective, but by having a single neutral presenter the impact of advocacy is removed.  Rather than trying to “persuade” the jurors, we are simply listening to what’s important (and not important) to them.  What problems do they have with the evidence?  What doubts do they have about the case?  How do they value the damages?  All of these are questions that are often answered by using focus groups.

Another advantage to using focus groups is that they can be used a number of different times in the same case. You can use it early in the case to assist in zeroing-in on the type of evidence that needs to be developed.  Later, you can use it to develop case themes to effectively communicate your client’s story. You can use it to assess damages in preparation for settlement negotiations.  Focus groups are an extremely flexible research tool that can be used at every stage of the case.

Lastly, and importantly, focus groups can be conducted at a very reasonable cost, especially if the attorney conducts the focus group themselves rather than hiring a high-priced jury research firm to do it for them.

While focus groups certainly cannot guarantee an outcome, they are tremendously valuable in helping to put forward the best possible case.

Why Choose a Board Certified Attorney?

Mark of Excellence

Board Certification is a mark of excellence and a distinguishing accomplishment. Within the Texas legal community, Board Certification means an attorney has substantial, relevant experience in a select field of law as well as demonstrated, and tested, special competence in that area of law.

A Distinguished Few

There are more than 70,000 attorneys licensed to practice in Texas. Only 7,000 are Board Certified. Board Certified lawyers earn the right to publicly represent themselves as a specialist in a select area of the law. In fact, they are the only attorneys allowed by the State Bar of Texas to do so. This designation sets them apart as being an attorney with the highest, public commitment to excellence in their area of law. The process is voluntary and can only take place after an attorney has been in practice for five years, with a minimum of three years experience in the specialty area. Moreover, Board Certification is not a one-time event. It requires an ongoing involvement in the specialty area which is periodically substantiated with references from peers in that field. It also requires annual professional refreshment through TBLS approved, continuing legal education course work to stay abreast of current trends in law.

The Texas Board of Legal Specialization (TBLS) was established in 1974 by the State Bar of Texas to “promote the availability, accessibility and quality of the services of attorneys to the public in particular areas of the law… and advance the standards of the legal profession.” It operates under the continuing jurisdiction of the Supreme Court of Texas. The TBLS certifies attorneys in 21 select areas of law and paralegals in seven areas. The TBLS is the only organization authorized to provide this service to the citizens of Texas.

The Board Certification process is rigorous and thorough with stringent, ongoing requirements after initial certification. In brief, an applicant must:

  • have been in practice a minimum of five years with three years of substantial involvement in an  area of law,
    • complete TBLS-approved Continuing Legal Education course requirements,
    • furnish at least 10 qualified, vetted references,
    • provide extensive, relevant experience documentation and
    • pass a comprehensive, daylong, specialty area examination.

Few Texas attorneys have answered the challenge laid down 36 years ago by the Supreme Court of Texas and the State Bar of Texas to “…serve the public interest and advance the standards of the legal profession.”
We invite you to connect with a Board Certified attorney today.

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.”

The Texas Lawbook
Originally Published: April 02, 2012

Texas insurance lobbyists have a plan you won’t like

Dave Lieber
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.


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.


Explore Our New Site

The Franklin Law Firm, LLP is proud to announce the launch of our new website that focuses specifically on DWI Accident cases. Our goal is to become a powerful and influential resource  for the families living in Dallas and the surrounding area that have been affected by DWI accidents.  These accidents are 100% preventable – by holding drunk drivers accountable not only do we help the injured victims and their families, but we make our community safer.

Please take a few moments to explore the new site. Read about the Accountability, Respect, and Strategy that drives us and makes us who we are. See images of Our Courtroom and learn how staging mock juries prepares the families we help and sets us apart. Receive valuable knowledge, facts, Support & Resources, and Latest News under the DWI Information tab.

We are confident that our new site will be an important resource for Our Community. Check back often for more upcoming blogs about DWI topics or click here to contact us.

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.