legal insights

After more than 30 years defending clients in cases involving serious injury and wrongful death, Steve Laird has gained significant experience and insight. He continues to use the legal insights that he has acquired over the years to help him achieve the best possible results for his clients. See what some of our clients have to say.

Big Business as Usual at the Texas Supreme Court

Good editorial in today’s Houston Chronicle from Alex Winslow of Texas Watch:

Recent reports paint an ugly picture of irresponsible behavior by oil and chemical companies in Texas and across the country. In response to the BP Texas City tragedy, the federal agency responsible for policing workplace safety has started a review of the safety habits of U.S. refineries. The preliminary results paint a picture of carelessness, including 11 violations at a Port Arthur refinery. Meanwhile, the chemical industry continues to thumb its nose at Mayor Bill White’s call to reduce caustic benzene emissions in and around Houston.

The backdrop to all of this is Entergy v. Summers, a recent Texas Supreme Court decision allowing oil, chemical and manufacturing interests to escape accountability when they fail to ensure the safety of their work sites. When they cut corners on workplace safety, oil and chemical companies not only place their workers at risk, they also endanger the communities that surround the plants through increased chances of violent workplace and environmental disasters. The Texas Supreme Court has a chance to reconsider its position, and it should do so. In the meantime, big oil and chemical industries need to clean up their acts by putting public, workplace and environmental safety first.

Judge Joe Bruce Cunningham, 1928-2008

The Tarrant County legal community lost a giant of a man last week with the death of Joe Bruce Cunningham, former judge of the 342nd District Court. Integrity, wisdom, and strength of character defined Joe Bruce on and off the bench. He was a fine man and a true gentleman.

Referral Fees in Texas

Historically in Texas, there were no particular rules regarding the division of fees among lawyers or the payment of a referral fee from one lawyer to another for forwarding the case. In 2005, however, the Texas Supreme Court enacted new referral fee rules which do away with “pure” referral fees (those where the referring lawyer has no role in the case other than forwarding it to another lawyer). Now, referral fees in Texas must be based on either a “proportion of services” basis or a “joint responsibility” basis.

In a “proportion of services” situation, each lawyer performs substantial services on behalf of the client with respect to a particular legal matter. Each lawyer who participates in the division of the fee is required to perform services beyond simply being hired by the client and forwarding the case to another lawyer. There must be a “reasonable correlation” between services performed and the sharing of the fee between the referring lawyer and the handling lawyer.

In a “joint responsibility” situation, the referring lawyer assumes an ethical and perhaps financial responsibility for the representation. The referring lawyer must make a reasonable investigation into the client’s legal matter and refer the matter to a lawyer reasonably believed to be competent to handle it. The referring lawyer must monitor the matter throughout the representation, respond to client questions and keep the client informed of progress in the case, and assist the handling lawyer when necessary. “Joint responsibility” does not mean joint control, and the referring lawyer is not required to attend deposition or hearings or trial, or be copied on all pleadings and correspondence.

Importantly, attorneys must obtain the client’s written consent in advance regarding the basis for the referral and the division of fees. The complete rules pertaining to referral fees in Texas may be found in Rule 104 of the Texas Disciplinary Rules of Professional Conduct.

In our practice handling personal injury and wrongful death cases on a contingent-fee basis, we find that referrals on a joint responsibility basis are most common and most akin to the traditional referral fee arrangements our referring attorneys have enjoyed over the years.

Professor Laird’s Playbook – Using Video Depositions at Trial


More and more these days, witnesses are presented at trial through video deposition excerpts, either by necessity because they are unavailable at trial (out-of-state witnesses, treating physicians, etc.) or by choice (to streamline the case or in situations where an adverse witness’s testimony will never get better than it was at deposition).

Some tips:

  • Keep the video edits as short as possible, 15 minutes or less if possible.  Don’t just pop the entire video in and hit “play.”
  • Hire a good video editor.  Get the edits on VHS and DVD formats.
  • Have a copy of the edits and a written page/line designation to give to the court reporter for the record.  It will save him or her from having to record the testimony at trial.
  • Ask the judge in pretrial to instruct the jury that they will see and hear video deposition testimony, which is meant to speed the trial and which is to be given the same weight as if the witness was live at trial.
  • Ask the judge to point out that the lawyers have edited the videos with the judge’s approval (here in Tarrant County, at least, the parties have to exchange designate portions of the depos they wish to use at trial and the court rules on objections to those designations prior to trial).  Often the editing causes the image on the screen to jump around a bit or cut off a word or two.  I had one juror tell me after trial that this made her suspicious that the attorneys were trying to pull a fast one on the jury by splicing the testimony.  Get the judge to explain this before your jurors draw that conclusion in their minds!
  • Think about the timing of showing your video depos.  Consider interspersing them in between live witnesses.  Be careful about showing them right after lunch or at the end of the day.
  • As much as possible, coordinate your video edits with those to be shown by the other side.  Jurors don’t like hearing the same testimony again when the defense offers their tender right after the plaintiff shows his.
  • When taking the deposition, keep in mind that the jury may later see the video and they may compare your dress and demeanor during deposition with that at trial.  For example, if you tone down your usual jewelry when you’re in trial, don’t forget to take off that flashy watch during the depo.  Don’t be a jerk in deposition and then a choirboy in trial.
  • In a lengthy trial, take a still shot of the witness’s face from the video depo and blow it up or show it on an ELMO during closing argument to remind the jurors of the witness.

Clearly, there is no substitute for a live witness. However, when done right, video depos can be effective and time-saving, so long as they are not too long and are not overused.

Great Book on Trial Strategy

Texas Legislature and Supreme Court Favor Businesses Over Consumers

Caps on damages, legislative protection, shifting responsibility, immunity from lawsuits…the list just goes on. Here in Texas, it’s a bad time to be an injured consumer looking for relief through the civil justice system. Criticizing the effects of “tort reform” legislation passed by the Texas Legislature in 2003, a recent editorial in the Houston Chronicle summed up the problem well:

“If Texas was once a playground for litigious plaintiff’s attorneys, the pendulum has swung too far in the direction of their corporate counterparts. Instead, citizens are now being shut out of the civil court system by laws that effectively immunize special interests from responsibility for the consequences of their actions and products.”

Equally as bad, where the Legislature didn’t stick it to injured consumers, the Texas Supreme Court usually does. A recent study released by the pro-consumer group Texas Watch gave failing grades to all nine justices on the state’s high court when it comes to consumer cases. In the court’s latest term, it ruled against consumers 84% of the time.

Changing Minds, One at a Time

A grown man sat in my office last week and cried like a baby. He had buried his wife and their first child less than a month earlier, both the victims of medical negligence. He came to us for help, wanting answers to why his young, healthy wife and his unborn son are now gone. He struggled to simply breathe. I thought of my wife and my two girls and I cried, too.

What do you say to a fellow like this? I confess that I was at a loss. Once we plaintiff lawyers could at least offer some comfort, inadequate as it was, that the civil justice system might provide answers and maybe, just maybe, some attempt at compensation. Now I had to explain that politicians in Austin have already decided what his loss is worth. I had to tell him that because his beautiful wife and the son that was to bear his name were the victims of medical negligence, the courthouse doors had been closed by the very people who represent his family in the Capitol.

Do you know what was most frustrating about this scenario? This man had not voted on Proposition 12 and had no idea of the damage that it did to the Texas Constitution. Before this tragedy befell him, he was one of the thousands of uninformed, misinformed or indifferent Texans who did not understand what HB 4 and Proposition 12 really did to their rights. He knows the truth now, unfortunately.

So what can we trial lawyers do about this ? Speak up. Educate others. Make sure your families, friends and clients are registered to vote and that they do vote. Get involved with your elected representatives. Let them know that we will hold them accountable for the promises made when they stripped away our rights. When you turn down cases that are no longer economical due to “tort reform,” make sure the potential clients know how to contact their senators and representatives in Austin, because odds are they voted in favor of HB 4.

And above all, keep fighting. Fight for victims. Fight for justice. Fight the negative stereotypes about trial lawyers and the “tort reform” propaganda. Fight for what is right and never, ever give up.

Mandatory Arbitration Hurts Consumers, Favors Businesses

Bills are being floated in Washington D.C. to address the growing disparity between consumers and businesses because of mandatory arbitration clauses which prevent consumers from taking disputes to a court of law.

At issue is the fine print in many contracts for goods and services, such as credit cards and cellphones, requiring that disputes be submitted to arbitration by a third party. Critics of the provisions say they deny consumers and employees a basic American principle: the right to go to court.”People from all walks of life — employees, investors, homeowners, those enrolled in HMOs, credit card holders and other consumers — often find themselves strong-armed into mandatory arbitration agreements,” said Sen. Russell D. Feingold (D-Wis.), who is sponsoring one of the measures aimed at making arbitration voluntary rather than mandatory.

Many lawmakers say mandatory arbitration has tipped the playing field in favor of businesses. Public Citizen, a Washington-based consumer watchdog group, reported that consumers won 4% of 19,000 California cases decided by one arbitration firm between January 2003 and March 2007. The study found one arbitrator who rendered 68 decisions in one day — “one every eight minutes,” said Laura MacCleery, director of the consumer advocacy group Public Citizen’s Congress Watch. “Consumers won zero.”

During a hearing Wednesday on Feingold’s bill, Sen. Sam Brownback (R-Kan.) said, “The fact of the matter is that the little guy is, by and large, better off in arbitration than trying to get to court. Arbitration is cheaper than litigation, and it leads to faster results for plaintiffs.”

Whoa there, Senator. You’re either wilfully ignorant, woefully misinformed, or just flat-out being dishonest with that statement.

Judge wants wrongful death lawsuit dropped

Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals (that’s the highest court in the state for criminal matters), has been named in a wrongful death lawsuit brought by the widow of Michael Wayne Richard. Richard was executed by the state on September 25th, after his lawyers tried unsuccessfully to file a last-minute appeal.

Keller contends that while she ordered the clerk’s office closed promptly at 5 p.m., state law clearly gave attorneys for death row inmate Michael Wayne Richard the power to contact judges on the court directly.

In papers filed in U.S. district court in Austin, Keller said Richard’s lawyers made no attempt to contact any judges on the court, even though three were available Sept. 25, the date of Richard’s execution in 1986 rape and murder of Marguerite Dixon, a Houston-area mother of seven. Keller said the clerk’s office was closed but the court’s building remained open.

Keller has garnered national attention for refusing to extend the court’s closing time prior to Richard’s execution, despite calls from Richard’s attorneys alerting her office they were experiencing computer problems and begging for extra time.

But in a motion to dismiss the suit, Keller said Texas law “provides a clear and unambiguous avenue for litigants to file documents with the (Court of Criminal Appeals) directly through any of its judges, so Richard did not need the CCA clerk’s office to stay open after hours to file his motion.” This is the first time Keller has claimed Richard’s lawyers could have directly gone to other judges on the court. She previously has tried to shift blame to Richard’s lawyers by saying they had all day to file.

Jim Harrington, director of the Texas Civil Rights Project, called Keller’s argument “shameless” and said “The rules of procedure in the law are supposed to serve justice and here you have a case where a guy’s life is at stake. It’s literally a matter of life or death and to fall back on some off-the-wall assertion, ‘go find a judge and file it that way’ is absurd. It makes a farce of the law.”

Story here.

“Judicial Activism” in the Eye of the Beholder?

Interesting. President Bush endorses Texas Supreme Court Justice Don Willett by saying “he is a proven conservative who understands courts should interpret and apply law, not legislate from the bench.” Yet Justice Willett authors a recent opinion – joined by the other eight justices – that “offends not only the law, but also court precedent, legislative intent, reason, custom and common notions of justice” in order to side with big business. As the Houston Chronicle points out, this ruling “makes the justices guilty of blatant judicial activism, which many conservatives regard as an unpardonable sin.”

Guess it depends on whose interests one is protecting…