Texas Supreme Court allows drunk drivers and others who cause car wrecks to reduce how much they will have to pay. Drunk Drivers get benefit of your premiums for health Insurance by getting credit for the negotiated rate.
This should have been front page news in papers across Texas this past week as our Supreme Court issued its opinion in the case Haygood v. Escabedo. Did you see a single paper discuss this ruling? Have you heard any of the radio or TV talk shows discuss this case? Why not? Where is the outrage?
I hear comments from people every month who call me about a workers compensation claim, medical malpractice or other issues. I tell them I can’t handle it because the law has made it almost impossible. They almost invariably tell me that it wasn’t supposed to impact their case only those frivolous ones. When I ask them why they weren’t mad and outraged when the laws were being passed or the Supreme Court was “interpreting” them, they always say it didn’t impact me so I didn’t pay attention. The only outrage about our rights being taken away nationally and in Texas seems to be coming from the trial lawyers. I am proud to be in the outraged group.
So what has the Texas Supreme Court done in its latest piece of judicial activism? Their twists and turns distort the law so much it would make a contortionist envious.
The Court's decision in Haywood v. Escobedo allows the person or company who harms you or your family to benefit from the health insurance you have paid premiums for all these years.
The Court argues there ruling is necessary to prevent a “windfall” to the claimant (that would be the person injured, maimed or killed by the drunk or other reckless driver to us normal people).
They also argue they are just interpreting the law as the Texas legislature wanted. Hard to believe that is the case when the legislature actually tried to repeal the law they are “interpreting” the session after they passed it as they realized what it truly was -- which is a windfall for the drunks, reckless drivers and their insurance companies. However Governor Perry vetoed the repeal of the bill so it is still on the books.
So here we are with an Activist Court that needs to protect the drunks and insurance companies, but how? They have already overturned virtually every jury verdict for any Plaintiff that comes their way. So rather than wait until a jury hears all the evidence and votes to compensate the injured person, they have decided to limit what the jury can hear so the compensation will be even lower and the insurance companies will have to pay less, make more profits and be able to contribute to all the expensive political campaigns.
Here is how the Court accomplished this with their latest decision: Let’s start with a situation where you are hit by a drunk who has a policy of $50,000.00. You are taken by life flight to the hospital where you stay for a week. You then have to go through rehabilitation. After about four months you are mostly better. You missed a month of work and still can’t do everything, but hopefully you will get where you can sleep through the night and play with your kids without having to tell them Daddy needs to rest. You have worked hard for years and paid for your health insurance at the cost of some vacations you wanted to take, but you knew how important it was for you to provide coverage for you and your family in case a situation like this happened. The medical bills were over $100,000.00, but because of your group plan they managed to reduce the total to $35,000.00 and since you met your deductible earlier in the year, you don’t owe anything else.
You send the bills to the drunks’ insurance carrier and ask that they pay the $50,000.00 policy limits because your medical bills alone are over $100k. Pretty straight forward right? You shouldn’t even need to get an attorney to settle this case. The operative word there is shouldn’t.
The reality is the insurance company will tell you we don’t owe $100k in medical because we get to take credit for your health insurance premiums and negotiated rate so all we will owe is $35k and we don’t think all of that is related because we know you hurt your neck 15 years ago when you were putting in fence posts and saw a chiropractor one time so we think all your neck issues are related to that and not this head on collision. So with the paid amount being $35k and us taking out some of the neck issue which we believe is not related (and because we can), we are willing to settle your case for $28,500.00.
What gives them the right to get the benefit of your paying premiums all those years: “Home Office” which is what they consider the Texas Supreme Court. Why shouldn’t they? They have won virtually every case that makes it there. Now the Texas Supreme Court has ruled that the only evidence a jury may consider in determining medical expenses are those amounts which were actually paid or will be owed by the person injured. So all those years of paying premiums and making sacrifices for you and your family to be covered is now benefitting the person who caused the wreck. The jury is not allowed to hear about how the bills were over $100k and because you had insurance it was reduced to $35k. They are not allowed to hear about the premiums you have paid to make that reduction possible. They may not even be allowed to hear about the deductible if it was met before this wreck. All because our Supreme Court has determined that it would be a “windfall”. How is it they never seem to be have a problem when insurance companies have a windfall of profits.
So if you happen to serve on a jury or hear about someone on a jury who talks about how this person was in a wreck but only had xxx in medical you can be fairly certain that it is at least 3x that amount of actual medical charges.
For my lawyer friends we know there are also significant issues regarding how Section 18.001 will be impacted and other battles over what constitutes paid --Is a deductible to be considered? Co-pay?
Some of you may know that I spent my senior year of high school attending gymnasium in Germany (which is the German equivalent of our U.S. high school). One of the things required in history classes was a complete study of the Nazi takeover both in political and military terms, which included the apathy and violence. The rational was if you never forget you will never repeat. If you were to ask someone who lived through that time how they could let it happen they would tell you it was not a sudden change. Rights were taken away one by one and it always was something that didn’t concern them. If someone was complaining about this or that they didn’t care because it didn’t impact them. Until one day it did. Then it was too late. Everyone asked how could “they” let this have happened? And then it became clear they were the “they” who allowed it.
As always I welcome comments.
Tuesday, July 12, 2011
Thursday, July 07, 2011
TWIA Wins Texans Lose
Our Texas governor determined that an emergency session was necessary to get legislation passed which limits the amount of damages TWIA will have to pay. The main arguments they made to take away Texas citizens’ rights were:
first — the insurance company needed to be able quantify how much they would owe and they couldn’t do that under the current laws second – to keep premiums affordable.
The problem is the first issue (while true) is not a legitimate reason to take people’s right to recover their damages. If TWIA would have done the job they were supposed to do they would have been able to quantify how much they would have owed for claims. The problem is they denied legitimate claims which resulted in their policy holders having to file suit to recover the damages they were legally entitled to recover. That included recovering the damages for attorney fees and damages to punish them for their misdeeds. Those damages and fees were required by law when the company violated their duty to their policy holders.
So what do our current elected officials do to correct this violation of public trust and dishonesty by the TWIA? They protect them from legitimate claims by limiting their exposure, in effect they told them — we know you lied, cheated and stole from your policy holders, but we want to make sure that you are protected from having to pay for the mess you caused.
The only time people hire a lawyer is to help them with an insurance claim is when the company isn’t doing what they should. So your insurance company is not taking care of your claim (the claim your premiums have been paid to handle) you have to hire an attorney, you prove your case, and recover damages.
Now because of this “emergency” legislation, the damages the jury determined to be fair might be reduced. The only cases it will impact are the legitimate cases – it like all the other “tort reform” legislation has absolutely no impact on the so called frivolous cases.
The second claimed reason to keep premiums affordable is laughable.
The governor signed his “emergency” legislation and less than 24 hours the TWIA raised premiums 5% for its policy holder which is the maximum allowed. So the TWIA now has been able to limit their exposure for their own misdeeds, which increases their profits and at the same time have raised the premiums their policy holders have to pay increasing the profits even more.
Hopefully all those who determined this was an emergency have been properly rewarded for their work for TWIA.
It is unfortunate that the individual policy holders who have been and will be impacted by this legislation did not have a lobbyist, but they do have a vote and hopefully will remember how you treated their concerns and rights.
first — the insurance company needed to be able quantify how much they would owe and they couldn’t do that under the current laws second – to keep premiums affordable.
The problem is the first issue (while true) is not a legitimate reason to take people’s right to recover their damages. If TWIA would have done the job they were supposed to do they would have been able to quantify how much they would have owed for claims. The problem is they denied legitimate claims which resulted in their policy holders having to file suit to recover the damages they were legally entitled to recover. That included recovering the damages for attorney fees and damages to punish them for their misdeeds. Those damages and fees were required by law when the company violated their duty to their policy holders.
So what do our current elected officials do to correct this violation of public trust and dishonesty by the TWIA? They protect them from legitimate claims by limiting their exposure, in effect they told them — we know you lied, cheated and stole from your policy holders, but we want to make sure that you are protected from having to pay for the mess you caused.
The only time people hire a lawyer is to help them with an insurance claim is when the company isn’t doing what they should. So your insurance company is not taking care of your claim (the claim your premiums have been paid to handle) you have to hire an attorney, you prove your case, and recover damages.
Now because of this “emergency” legislation, the damages the jury determined to be fair might be reduced. The only cases it will impact are the legitimate cases – it like all the other “tort reform” legislation has absolutely no impact on the so called frivolous cases.
The second claimed reason to keep premiums affordable is laughable.
The governor signed his “emergency” legislation and less than 24 hours the TWIA raised premiums 5% for its policy holder which is the maximum allowed. So the TWIA now has been able to limit their exposure for their own misdeeds, which increases their profits and at the same time have raised the premiums their policy holders have to pay increasing the profits even more.
Hopefully all those who determined this was an emergency have been properly rewarded for their work for TWIA.
It is unfortunate that the individual policy holders who have been and will be impacted by this legislation did not have a lobbyist, but they do have a vote and hopefully will remember how you treated their concerns and rights.
Friday, February 18, 2011
Jury Duty
When I was kicking around blog topics with different people, I was provided with several great topics. The one which gets today’s effort is jury duty. Why you ask, did jury duty rise to the top of all the other topics? That is easy. A Judge suggested I should write about jury duty. Judge wins. Jury duty is it.
Jury duty is really an honor and privilege that we have. Yet it is constantly being attacked. You have no doubt heard the arguments about how a “crazy jury” awarded x amount of money on some case. But never do you hear from the actual jurors who heard the evidence and came up with their verdict. I am a firm believer in the jury system and have found they usually end up doing the right thing. Understand this is from one of those rare lawyers who has actually won and (gasp!!) lost cases at trial. Based upon the ads I see and talk around the Courthouse, I may be one of only a handful of lawyers in the Fort Bend, Brazoria, Harris, Galveston, Matagorda, Waller, (or for that matter all of Texas and the U.S.) to have ever lost a case. It is also strange that some people believe that juries should be done away with completely in personal injury cases where a person’s livelihood is on the line, but firmly believe in juries deciding whether a person should spend the rest of their lives in jail or be executed. Maybe it’s just me but I believe a jury panel which could decide if I live or die is capable of deciding if the person that hurt me in a wreck should pay for my damages.
So—let’s talk about jury duty.
Why did I get this notice (summons) and what am I supposed (have) to do?
State law sets the process for selecting potential jurors. In Texas, each county gets a list from the State of people who are registered to vote, have a Texas driver’s license or a Texas identification card. You do not need any special skills or legal knowledge. People are then chosen randomly from that list. You may or may not get additional information with the summons such as a questionnaire requesting some basic information to fill out and bring with you or mail back ahead of time. Some counties have I-Jury Online Impaneling (it is the selection process – not being made part of a wall) and if your county has that you can respond on line and potentially save yourself a trip to the Courthouse.
What if I just don’t answer summons?
Bad idea. You can be subject to a contempt action that can result in a fine of not less than $100.00 or more than $1,000.00. (Texas Gov’t Code – 62.0141)
Ok. Got the summons and I will show up. Does that mean I will be on a jury?
No. There are still several things which have to be determined to see if you are qualified to serve as a juror. The first step outlined above gets you in the selection hopper; the following are REQUIRED to qualify you as a juror.
1. Must be at least 18 years of age;
2. Be a citizen of Texas and of the County in which you are to serve as a juror;
3. Must be qualified to vote in County in which you are to serve as a juror, you do not need to be registered, just qualified (you could legally vote if you wanted);
4. Be of sound mind and good moral character;
5. Be able to read and write;
6. Not have served as a juror for six days during the preceding 3 months in County Court or during the preceding 6 months in District Court;
7. Not have been convicted of, be under indictment or other legal accusation for, misdemeanor theft or a felony.
If you meet all the above requirements, you are qualified to serve as a juror, but there are some exemptions which you may claim. You may choose to serve even if any of the following apply, but you are not required to:
1. Over the age of 70;
2. Have legal custody of a child younger than 10 and serving on the jury would leave the child without adequate supervision;
3. Are a student at a public or private secondary school;
4. Are enrolled and in actual attendance at an institution of higher learning;
5. Are an officer or an employee of the senate, house of representatives, or any department, commission, board, office or other agency in the legislative branch of government;
6. Have served as a petit juror in the county during the 24 month period preceding the date you are required to appear for this summons. (Only if county has at least a population of 200,000)
7. Are the primary caretaker of a person who is an invalid and unable to care for himself (does not apply to healthcare workers); or
8. Have been summoned for service in a county with a population of at least 250,000 and you have served as a petit juror in the county during the 3 year period preceding the date you are to appear for jury service.
Jury Selection:
If you made it through the qualification process and have no exemptions (or have chosen not to take them) that still does not mean you will actually serve on a jury, but you will be able to be on a jury panel from which the actual jury will be selected. The selection process is usually a day or less, but in some rare cases can take several days. You and your fellow panel members will be taken to a courtroom where the judge, lawyers and parties will be able to ask questions to determine if you are the proper person to serve as a juror in that particular case.
Juror Oath:
At some point in the process all prospective jurors are given an oath in which they swear or affirm to tell the truth when answering questions. If there is a question which you would be embarrassed to answer or is extremely private, you can ask to go up the judge to give your answer, but you need to answer it truthfully. I usually ask jurors if they would want someone like them being on a jury which was judging a case where they were the party. Not answering questions truthfully and completely generally can not only be grounds for contempt, but may actually get you on the jury. I realize that some people try to get out of jury duty by lying. You don’t have to lie. Tell them the Judge and lawyers the truth and you will probably scare them enough to not select you.
Jury:
Make it through the process and are selected to be on the actual jury. Don’t be upset. You should be proud that you were one of only a handful of citizens who were chosen out of the entire county to be able to decide a case which will impact the lives of all those involved. Thank you for taking your responsibility and duty seriously.
Jury duty is really an honor and privilege that we have. Yet it is constantly being attacked. You have no doubt heard the arguments about how a “crazy jury” awarded x amount of money on some case. But never do you hear from the actual jurors who heard the evidence and came up with their verdict. I am a firm believer in the jury system and have found they usually end up doing the right thing. Understand this is from one of those rare lawyers who has actually won and (gasp!!) lost cases at trial. Based upon the ads I see and talk around the Courthouse, I may be one of only a handful of lawyers in the Fort Bend, Brazoria, Harris, Galveston, Matagorda, Waller, (or for that matter all of Texas and the U.S.) to have ever lost a case. It is also strange that some people believe that juries should be done away with completely in personal injury cases where a person’s livelihood is on the line, but firmly believe in juries deciding whether a person should spend the rest of their lives in jail or be executed. Maybe it’s just me but I believe a jury panel which could decide if I live or die is capable of deciding if the person that hurt me in a wreck should pay for my damages.
So—let’s talk about jury duty.
Why did I get this notice (summons) and what am I supposed (have) to do?
State law sets the process for selecting potential jurors. In Texas, each county gets a list from the State of people who are registered to vote, have a Texas driver’s license or a Texas identification card. You do not need any special skills or legal knowledge. People are then chosen randomly from that list. You may or may not get additional information with the summons such as a questionnaire requesting some basic information to fill out and bring with you or mail back ahead of time. Some counties have I-Jury Online Impaneling (it is the selection process – not being made part of a wall) and if your county has that you can respond on line and potentially save yourself a trip to the Courthouse.
What if I just don’t answer summons?
Bad idea. You can be subject to a contempt action that can result in a fine of not less than $100.00 or more than $1,000.00. (Texas Gov’t Code – 62.0141)
Ok. Got the summons and I will show up. Does that mean I will be on a jury?
No. There are still several things which have to be determined to see if you are qualified to serve as a juror. The first step outlined above gets you in the selection hopper; the following are REQUIRED to qualify you as a juror.
1. Must be at least 18 years of age;
2. Be a citizen of Texas and of the County in which you are to serve as a juror;
3. Must be qualified to vote in County in which you are to serve as a juror, you do not need to be registered, just qualified (you could legally vote if you wanted);
4. Be of sound mind and good moral character;
5. Be able to read and write;
6. Not have served as a juror for six days during the preceding 3 months in County Court or during the preceding 6 months in District Court;
7. Not have been convicted of, be under indictment or other legal accusation for, misdemeanor theft or a felony.
If you meet all the above requirements, you are qualified to serve as a juror, but there are some exemptions which you may claim. You may choose to serve even if any of the following apply, but you are not required to:
1. Over the age of 70;
2. Have legal custody of a child younger than 10 and serving on the jury would leave the child without adequate supervision;
3. Are a student at a public or private secondary school;
4. Are enrolled and in actual attendance at an institution of higher learning;
5. Are an officer or an employee of the senate, house of representatives, or any department, commission, board, office or other agency in the legislative branch of government;
6. Have served as a petit juror in the county during the 24 month period preceding the date you are required to appear for this summons. (Only if county has at least a population of 200,000)
7. Are the primary caretaker of a person who is an invalid and unable to care for himself (does not apply to healthcare workers); or
8. Have been summoned for service in a county with a population of at least 250,000 and you have served as a petit juror in the county during the 3 year period preceding the date you are to appear for jury service.
Jury Selection:
If you made it through the qualification process and have no exemptions (or have chosen not to take them) that still does not mean you will actually serve on a jury, but you will be able to be on a jury panel from which the actual jury will be selected. The selection process is usually a day or less, but in some rare cases can take several days. You and your fellow panel members will be taken to a courtroom where the judge, lawyers and parties will be able to ask questions to determine if you are the proper person to serve as a juror in that particular case.
Juror Oath:
At some point in the process all prospective jurors are given an oath in which they swear or affirm to tell the truth when answering questions. If there is a question which you would be embarrassed to answer or is extremely private, you can ask to go up the judge to give your answer, but you need to answer it truthfully. I usually ask jurors if they would want someone like them being on a jury which was judging a case where they were the party. Not answering questions truthfully and completely generally can not only be grounds for contempt, but may actually get you on the jury. I realize that some people try to get out of jury duty by lying. You don’t have to lie. Tell them the Judge and lawyers the truth and you will probably scare them enough to not select you.
Jury:
Make it through the process and are selected to be on the actual jury. Don’t be upset. You should be proud that you were one of only a handful of citizens who were chosen out of the entire county to be able to decide a case which will impact the lives of all those involved. Thank you for taking your responsibility and duty seriously.
Thursday, December 09, 2010
Christmas, Happy New Year and Safe Driving
This is the time of year where people get together with family and friends. There are parties and shopping and not seems like not enough time to get it all done. I want to wish everyone a Merry Christmas and Happy and Safe New Years. Here are some basic safety rules - First: If you have a drink - don't drive. It is not worth it to you, your family or the others your actions may impact. I recently spend an afternoon deposing a man who will spend the next 15 years (minimum) of his life in prison for driving while drunk and killing a young girl. He destroyed his life and the life of another family by his drinking and driving. Second: Do not text or check your phone while driving. The message can wait until you stop or pull over. In that second you look down the car in front of you can stop resulting in a wreck. That will cause you and other driver to have to exchange information and get your cars repaired even if you are lucky enough to have no one injured. That same second of inattention could result in your destroying your life and those of others. If you are in the mall parking lot and look down to check a text how can you see the people walking out in front of you. Don't risk it. Keep focused on your driving, be safe and enjoy Christmas and New Years.
Thursday, November 11, 2010
Veteran's Day - Freedom is never Free
To all the men, women and families who have served and sacrificed for our country -- Thank you!! Below is a re-post of my blog from Oct. 5th. Freedom isn't Free.
As I was preparing to write this weeks’ blog I had intended to write about how much is a life worth and methods courts, juries and attorneys can use to try and explain how to calculate compensation for a family who has lost their loved one. Then last night, I learned of a young navy seal Lt. Brendan Looney, 29, a native of Silver Spring. that died in a helicopter crash while serving our country in Afghanistan. He was an Annapolis graduate and married and was buried at Arlington National Cemetery. His mother is a friend of my sister-in-law and he has family in the Maryland area. His is a story of courage and sacrifice. A story of fighting for our freedoms including freedom of speech and that is where this blog comes in. A group showed up to protest the war carrying signs and trying to yell out “comments” about the family and solider that died for his and their country. This group has chosen to protest the war not at the White house or Pentagon but at funerals of our fallen soldiers. The group has been sued before and was ordered to pay several million dollars in damages for this same type of action, but continue to exercise what they claim is their free speech. That case has been appealed and is scheduled for oral arguments before the United States Supreme Court tomorrow. A copy of the complaint can be found at http://blogs.kansascity.com/files/findlaw.pdf and the issues before the Supreme Court can be found at http://www.supremecourt.gov/qp/09-00751qp.pdf.
The question is how free is free speech? Should a person be allowed to protest at a funeral? What about on the way to the funeral? Can they hold signs, but not yell? What if they are a mile away, but on the route to the cemetery? Should it matter if it is a private person vs. a public person? Are there certain areas which should be free from all protest and how do you determine what those areas should be and how near/far from them? The irony of this discussion and what makes me proud is that those who are fighting and have fought for our freedom to have these arguments are also some of the strongest supporters of the right of the protestors – not the appropriateness of the action – to protest.
Back to Lt. Looney and his funeral. The protestors were there with their signs and trying to yell at the family. What are they hoping to gain by protesting at a funeral? Are they really expecting change of policy or just publicity for their own selfish gains? Here is an idea how about the media just doesn’t cover the protestors. Don’t quote them, don’t take any pictures, and don’t even mention that they were there. They are only a story if the media makes them one.
There are heroes in this story. They include the Looney family and all the others who have paid the ultimate price for freedom. They also include Clyde Fleming and others around the county who attend the funeral of our fallen soldiers. We saw them here in Sugar Land escorting home a local solider who was killed overseas. They have been in attendance at funerals across the United State and they were there again at Arlington Cemetery for the Looney family.
Michael E. Ruane staff writer for the Washington Post reported on the events in his story which can be found at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/04/AR2010100407104.html Clyde Fleming and others (vets and non-vets) went to Arlington on motorcycles and placed themselves between the protestors and the family procession and as Mr. Ruane reports “Moments before the funeral procession appeared, the bikers arrived with a roar, several flying large American flags from their motorcycles. As they lined up and revved their engines to ear-splitting levels, occupants of cars in the procession gave a thumbs-up sign.” "I'm a vet myself, and I think what these people over here are doing is horribly wrong," said motorcyclist Clyde Fleming, 62, who said he lives on the Eastern Shore. "If you want to protest a war, you do it with government officials, not with the soldiers who died for you," he said. "You don't disrespect them and their families with such hatred." “He (Clyde Fleming) said the church "absolutely" had a right to its protest - "just as we have a right to block their noise and their rhetoric."
Free speech wasn’t free for the Looney family and the hundreds of thousands of others who have given their lives for this country. My thanks and prayers go out them and all the other families who have sacrificed to allow us to have these discussions. The Supreme Court will ultimately decide the legality of this type of protest, but we have the freedom to speak out against it and to show up and support our troops and their families when they need us most. We have the freedom to do like Mr. Fleming and the thousands of other riders across the country to show up and support the family of our fallen heroes and shield them from this type of abuse. So the next time you hear about a solider being brought home, say a prayer for them and their family, but also make the time to go and show your support and thanks for all they have sacrificed for you.
As I was preparing to write this weeks’ blog I had intended to write about how much is a life worth and methods courts, juries and attorneys can use to try and explain how to calculate compensation for a family who has lost their loved one. Then last night, I learned of a young navy seal Lt. Brendan Looney, 29, a native of Silver Spring. that died in a helicopter crash while serving our country in Afghanistan. He was an Annapolis graduate and married and was buried at Arlington National Cemetery. His mother is a friend of my sister-in-law and he has family in the Maryland area. His is a story of courage and sacrifice. A story of fighting for our freedoms including freedom of speech and that is where this blog comes in. A group showed up to protest the war carrying signs and trying to yell out “comments” about the family and solider that died for his and their country. This group has chosen to protest the war not at the White house or Pentagon but at funerals of our fallen soldiers. The group has been sued before and was ordered to pay several million dollars in damages for this same type of action, but continue to exercise what they claim is their free speech. That case has been appealed and is scheduled for oral arguments before the United States Supreme Court tomorrow. A copy of the complaint can be found at http://blogs.kansascity.com/files/findlaw.pdf and the issues before the Supreme Court can be found at http://www.supremecourt.gov/qp/09-00751qp.pdf.
The question is how free is free speech? Should a person be allowed to protest at a funeral? What about on the way to the funeral? Can they hold signs, but not yell? What if they are a mile away, but on the route to the cemetery? Should it matter if it is a private person vs. a public person? Are there certain areas which should be free from all protest and how do you determine what those areas should be and how near/far from them? The irony of this discussion and what makes me proud is that those who are fighting and have fought for our freedom to have these arguments are also some of the strongest supporters of the right of the protestors – not the appropriateness of the action – to protest.
Back to Lt. Looney and his funeral. The protestors were there with their signs and trying to yell at the family. What are they hoping to gain by protesting at a funeral? Are they really expecting change of policy or just publicity for their own selfish gains? Here is an idea how about the media just doesn’t cover the protestors. Don’t quote them, don’t take any pictures, and don’t even mention that they were there. They are only a story if the media makes them one.
There are heroes in this story. They include the Looney family and all the others who have paid the ultimate price for freedom. They also include Clyde Fleming and others around the county who attend the funeral of our fallen soldiers. We saw them here in Sugar Land escorting home a local solider who was killed overseas. They have been in attendance at funerals across the United State and they were there again at Arlington Cemetery for the Looney family.
Michael E. Ruane staff writer for the Washington Post reported on the events in his story which can be found at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/04/AR2010100407104.html Clyde Fleming and others (vets and non-vets) went to Arlington on motorcycles and placed themselves between the protestors and the family procession and as Mr. Ruane reports “Moments before the funeral procession appeared, the bikers arrived with a roar, several flying large American flags from their motorcycles. As they lined up and revved their engines to ear-splitting levels, occupants of cars in the procession gave a thumbs-up sign.” "I'm a vet myself, and I think what these people over here are doing is horribly wrong," said motorcyclist Clyde Fleming, 62, who said he lives on the Eastern Shore. "If you want to protest a war, you do it with government officials, not with the soldiers who died for you," he said. "You don't disrespect them and their families with such hatred." “He (Clyde Fleming) said the church "absolutely" had a right to its protest - "just as we have a right to block their noise and their rhetoric."
Free speech wasn’t free for the Looney family and the hundreds of thousands of others who have given their lives for this country. My thanks and prayers go out them and all the other families who have sacrificed to allow us to have these discussions. The Supreme Court will ultimately decide the legality of this type of protest, but we have the freedom to speak out against it and to show up and support our troops and their families when they need us most. We have the freedom to do like Mr. Fleming and the thousands of other riders across the country to show up and support the family of our fallen heroes and shield them from this type of abuse. So the next time you hear about a solider being brought home, say a prayer for them and their family, but also make the time to go and show your support and thanks for all they have sacrificed for you.
Wednesday, October 27, 2010
Voting - parties - judges
You still have a few days left for early voting. The lines are small and the weather is great so no excuse. Voting early is easy. Voting is your right and duty, so get out there and do it! Take action on who will be in charge of your community, state and country. The Democrats and Republicans parties are out doing what they should which is pushing for their candidates and a straight ticket vote. I don’t vote straight ticket because neither party has every candidate that I support. To be clear, I am fed up with both of the major parties. On the state and national level, each party talks about how the other will destroy the country, taxes will go up, morals will collapse, etc., etc. but it appears what the parties really want is to continue the status quo of making sure they get in office and stay in power. If the politicians are really serious about doing what is best for our country they should do what all of us have to do – don’t spend more than you have –period. Further if you pass a law you should have to live by it. You want new health care for the country? Great! Dissolve your current government provided plan you enjoy and live under the program you enacted into law. You want to change retirement fund regulations? Then do the same for your plan. Don’t tell us we have to cut back and be more conscious of our environmental footprint and then hop on your jet and fly around the country. How about calling Southwest and booking a flight like the rest of us and really saving some money? They won’t even charge you for all that baggage:>) They will even set you up with a rapid rewards number where you will get to fly free after a few of your vacations- sorry fact finding missions.
So what does all this mean to us voters? Look at the person not the party. How many times to we have to see someone elected who is not qualified just because he or she is in the ——— party? We have lost great people because they were voted out on a sweep in the judiciary by one party or the other. I have heard people say that I don’t agree with everything they are doing, but they are better than the other party. Stop!! Why are we settling for they are not as bad as the other instead of demanding the best from our elected officials. So when you are voting, before you pull that straight ticket – just think and look down the list. Then ask yourself: Do I want this person to decide my JP case? Do I want this Judge to be the one to decide my family’s case? Who is this clerk and what do they want to do or change and what are their qualifications? This brings me to Judges and their election.
In Texas we get to vote for our judges. I am a firm believer that is the right way to go. But it means you have to actually do some thinking before you vote. Judicial candidates are almost always associated with some political party. However; I suspect most of them would prefer to just run on their qualifications if they could. So each election we get to select judges based upon —-what?? If you don’t practice in front of them and/or know them you may get a sound bite here or there or a five minute speech at a meet the candidate event. I have had the great privilege of being a trial lawyer for almost 25 years and have had cases before Courts around the country and specifically Fort Bend, Harris, Brazoria, and Wharton Counties. There are some great judges and some great candidates for judges in races in these counties. But how do you know who to vote for? Ask a trial lawyer. We are before the judges on a fairly regular basis and if we don’t know a judge we call around to anyone we know who has been before them before we go to a hearing or trial in that Court. Why wouldn’t you do that before you vote to have someone make decisions which will impact you and your family for years to come? I am constantly amazed when one of the parties put up a candidate who is technically qualified in that they are a licensed lawyer, but has virtually no trial experience. Every lawyer has to start somewhere and get experience. I am all for that and court room experience is something that can only be gained through time. However we are not talking about hiring a lawyer. We are talking about voting for a judge. I firmly believe a candidate should have trial experience and should have practiced in the court (district, county, jp) that they hope to be elected to. What do I look for in a judge?
If the candidate is an incumbent I want to know how they have ruled on motions. Do they follow the law? Do they treat lawyers, court personnel, witnesses, juries, etc. with respect? Do they move their dockets, but understand that justice can require continuances to make sure all the parties have adequate time to gather their evidence? Do they treat all parties equally? Do they use common sense along with the law? Do they allow lawyers to do their jobs representing their clients while following the rules of procedure? What do other lawyers say about the judge? Finally what is it about the current judge that causes you concern about their ability to continue? If they are doing a good job why would you replace them simply to put someone from a different party in office?
If the candidate for judge has not sat on the bench previously I want to know how much trial experience they have? Who knows them and what do those lawyers say about them? How are they perceived by the lawyers they have tried cases against? Do they know what they are doing? If they tell you something can you believe them? Do they have an agenda i.e. do they believe all personal injury cases should be thrown out or conversely that all personal injury claims are valid and should result in a recovery? Do they believe that anyone charged with a crime is guilty and should be convicted or alternatively that most persons charged are probably wrongly charged and should be dismissed? I believe judges should follow the law and apply it to the case in a fair and impartial manner.
Finally what is the candidate’s qualification to be a judge? The fact that they have not been one before is not an issue. Obviously until they are elected (or appointed) they will not have had that experience. If you take all the other information gathered from lawyers that have been against them or worked with them you should have a good idea of their ability and qualification to be a judge.
In all this ranting, information, questions, etc. about how to select a judge did any of it come down to what their political party platform states? Why not? Because I want a judge who is impartial and not going to decide a case on the party stance on an issue, but on the law and do so impartially and fairly It seems kind of simple to me, but I am just a small town lawyer, what do I know. Let me know your thoughts.
So what does all this mean to us voters? Look at the person not the party. How many times to we have to see someone elected who is not qualified just because he or she is in the ——— party? We have lost great people because they were voted out on a sweep in the judiciary by one party or the other. I have heard people say that I don’t agree with everything they are doing, but they are better than the other party. Stop!! Why are we settling for they are not as bad as the other instead of demanding the best from our elected officials. So when you are voting, before you pull that straight ticket – just think and look down the list. Then ask yourself: Do I want this person to decide my JP case? Do I want this Judge to be the one to decide my family’s case? Who is this clerk and what do they want to do or change and what are their qualifications? This brings me to Judges and their election.
In Texas we get to vote for our judges. I am a firm believer that is the right way to go. But it means you have to actually do some thinking before you vote. Judicial candidates are almost always associated with some political party. However; I suspect most of them would prefer to just run on their qualifications if they could. So each election we get to select judges based upon —-what?? If you don’t practice in front of them and/or know them you may get a sound bite here or there or a five minute speech at a meet the candidate event. I have had the great privilege of being a trial lawyer for almost 25 years and have had cases before Courts around the country and specifically Fort Bend, Harris, Brazoria, and Wharton Counties. There are some great judges and some great candidates for judges in races in these counties. But how do you know who to vote for? Ask a trial lawyer. We are before the judges on a fairly regular basis and if we don’t know a judge we call around to anyone we know who has been before them before we go to a hearing or trial in that Court. Why wouldn’t you do that before you vote to have someone make decisions which will impact you and your family for years to come? I am constantly amazed when one of the parties put up a candidate who is technically qualified in that they are a licensed lawyer, but has virtually no trial experience. Every lawyer has to start somewhere and get experience. I am all for that and court room experience is something that can only be gained through time. However we are not talking about hiring a lawyer. We are talking about voting for a judge. I firmly believe a candidate should have trial experience and should have practiced in the court (district, county, jp) that they hope to be elected to. What do I look for in a judge?
If the candidate is an incumbent I want to know how they have ruled on motions. Do they follow the law? Do they treat lawyers, court personnel, witnesses, juries, etc. with respect? Do they move their dockets, but understand that justice can require continuances to make sure all the parties have adequate time to gather their evidence? Do they treat all parties equally? Do they use common sense along with the law? Do they allow lawyers to do their jobs representing their clients while following the rules of procedure? What do other lawyers say about the judge? Finally what is it about the current judge that causes you concern about their ability to continue? If they are doing a good job why would you replace them simply to put someone from a different party in office?
If the candidate for judge has not sat on the bench previously I want to know how much trial experience they have? Who knows them and what do those lawyers say about them? How are they perceived by the lawyers they have tried cases against? Do they know what they are doing? If they tell you something can you believe them? Do they have an agenda i.e. do they believe all personal injury cases should be thrown out or conversely that all personal injury claims are valid and should result in a recovery? Do they believe that anyone charged with a crime is guilty and should be convicted or alternatively that most persons charged are probably wrongly charged and should be dismissed? I believe judges should follow the law and apply it to the case in a fair and impartial manner.
Finally what is the candidate’s qualification to be a judge? The fact that they have not been one before is not an issue. Obviously until they are elected (or appointed) they will not have had that experience. If you take all the other information gathered from lawyers that have been against them or worked with them you should have a good idea of their ability and qualification to be a judge.
In all this ranting, information, questions, etc. about how to select a judge did any of it come down to what their political party platform states? Why not? Because I want a judge who is impartial and not going to decide a case on the party stance on an issue, but on the law and do so impartially and fairly It seems kind of simple to me, but I am just a small town lawyer, what do I know. Let me know your thoughts.
Tuesday, October 05, 2010
Free Speech is Never Free
As I was preparing to write this weeks’ blog I had intended to write about how much is a life worth and methods courts, juries and attorneys can use to try and explain how to calculate compensation for a family who has lost their loved one. Then last night, I learned of a young navy seal Lt. Brendan Looney, 29, a native of Silver Spring. that died in a helicopter crash while serving our country in Afghanistan. He was an Annapolis graduate and married and was buried at Arlington National Cemetery. His mother is a friend of my sister-in-law and he has family in the Maryland area. His is a story of courage and sacrifice. A story of fighting for our freedoms including freedom of speech and that is where this blog comes in. A group showed up to protest the war carrying signs and trying to yell out “comments” about the family and solider that died for his and their country. This group has chosen to protest the war not at the White house or Pentagon but at funerals of our fallen soldiers. The group has been sued before and was ordered to pay several million dollars in damages for this same type of action, but continue to exercise what they claim is their free speech. That case has been appealed and is scheduled for oral arguments before the United States Supreme Court tomorrow. A copy of the complaint can be found at http://blogs.kansascity.com/files/findlaw.pdf and the issues before the Supreme Court can be found at http://www.supremecourt.gov/qp/09-00751qp.pdf.
The question is how free is free speech? Should a person be allowed to protest at a funeral? What about on the way to the funeral? Can they hold signs, but not yell? What if they are a mile away, but on the route to the cemetery? Should it matter if it is a private person vs. a public person? Are there certain areas which should be free from all protest and how do you determine what those areas should be and how near/far from them? The irony of this discussion and what makes me proud is that those who are fighting and have fought for our freedom to have these arguments are also some of the strongest supporters of the right of the protestors – not the appropriateness of the action – to protest.
Back to Lt. Looney and his funeral. The protestors were there with their signs and trying to yell at the family. What are they hoping to gain by protesting at a funeral? Are they really expecting change of policy or just publicity for their own selfish gains? Here is an idea how about the media just doesn’t cover the protestors. Don’t quote them, don’t take any pictures, and don’t even mention that they were there. They are only a story if the media makes them one.
There are heroes in this story. They include the Looney family and all the others who have paid the ultimate price for freedom. They also include Clyde Fleming and others around the county who attend the funeral of our fallen soldiers. We saw them here in Sugar Land escorting home a local solider who was killed overseas. They have been in attendance at funerals across the United State and they were there again at Arlington Cemetery for the Looney family.
Michael E. Ruane staff writer for the Washington Post reported on the events in his story which can be found at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/04/AR2010100407104.html Clyde Fleming and others (vets and non-vets) went to Arlington on motorcycles and placed themselves between the protestors and the family procession and as Mr. Ruane reports “Moments before the funeral procession appeared, the bikers arrived with a roar, several flying large American flags from their motorcycles. As they lined up and revved their engines to ear-splitting levels, occupants of cars in the procession gave a thumbs-up sign.” "I'm a vet myself, and I think what these people over here are doing is horribly wrong," said motorcyclist Clyde Fleming, 62, who said he lives on the Eastern Shore. "If you want to protest a war, you do it with government officials, not with the soldiers who died for you," he said. "You don't disrespect them and their families with such hatred." “He (Clyde Fleming) said the church "absolutely" had a right to its protest - "just as we have a right to block their noise and their rhetoric."
Free speech wasn’t free for the Looney family and the hundreds of thousands of others who have given their lives for this country. My thanks and prayers go out them and all the other families who have sacrificed to allow us to have these discussions. The Supreme Court will ultimately decide the legality of this type of protest, but we have the freedom to speak out against it and to show up and support our troops and their families when they need us most. We have the freedom to do like Mr. Fleming and the thousands of other riders across the country to show up and support the family of our fallen heroes and shield them from this type of abuse. So the next time you hear about a solider being brought home, say a prayer for them and their family, but also make the time to go and show your support and thanks for all they have sacrificed for you.
The question is how free is free speech? Should a person be allowed to protest at a funeral? What about on the way to the funeral? Can they hold signs, but not yell? What if they are a mile away, but on the route to the cemetery? Should it matter if it is a private person vs. a public person? Are there certain areas which should be free from all protest and how do you determine what those areas should be and how near/far from them? The irony of this discussion and what makes me proud is that those who are fighting and have fought for our freedom to have these arguments are also some of the strongest supporters of the right of the protestors – not the appropriateness of the action – to protest.
Back to Lt. Looney and his funeral. The protestors were there with their signs and trying to yell at the family. What are they hoping to gain by protesting at a funeral? Are they really expecting change of policy or just publicity for their own selfish gains? Here is an idea how about the media just doesn’t cover the protestors. Don’t quote them, don’t take any pictures, and don’t even mention that they were there. They are only a story if the media makes them one.
There are heroes in this story. They include the Looney family and all the others who have paid the ultimate price for freedom. They also include Clyde Fleming and others around the county who attend the funeral of our fallen soldiers. We saw them here in Sugar Land escorting home a local solider who was killed overseas. They have been in attendance at funerals across the United State and they were there again at Arlington Cemetery for the Looney family.
Michael E. Ruane staff writer for the Washington Post reported on the events in his story which can be found at http://www.washingtonpost.com/wp-dyn/content/article/2010/10/04/AR2010100407104.html Clyde Fleming and others (vets and non-vets) went to Arlington on motorcycles and placed themselves between the protestors and the family procession and as Mr. Ruane reports “Moments before the funeral procession appeared, the bikers arrived with a roar, several flying large American flags from their motorcycles. As they lined up and revved their engines to ear-splitting levels, occupants of cars in the procession gave a thumbs-up sign.” "I'm a vet myself, and I think what these people over here are doing is horribly wrong," said motorcyclist Clyde Fleming, 62, who said he lives on the Eastern Shore. "If you want to protest a war, you do it with government officials, not with the soldiers who died for you," he said. "You don't disrespect them and their families with such hatred." “He (Clyde Fleming) said the church "absolutely" had a right to its protest - "just as we have a right to block their noise and their rhetoric."
Free speech wasn’t free for the Looney family and the hundreds of thousands of others who have given their lives for this country. My thanks and prayers go out them and all the other families who have sacrificed to allow us to have these discussions. The Supreme Court will ultimately decide the legality of this type of protest, but we have the freedom to speak out against it and to show up and support our troops and their families when they need us most. We have the freedom to do like Mr. Fleming and the thousands of other riders across the country to show up and support the family of our fallen heroes and shield them from this type of abuse. So the next time you hear about a solider being brought home, say a prayer for them and their family, but also make the time to go and show your support and thanks for all they have sacrificed for you.
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