Saturday, April 30, 2011

Phony Reformers

Testimony on bills pending in the current Texas legislative session make it abundantly clear once again that tort reform is not about reform of any kind.  It’s about money and power.  Talking heads and fat cat practitioners of shady deals would have you believe they only want to protect the world from frivolous lawsuits.  But, they don’t give a twit about frivolous lawsuits.  It’s the real lawsuits with merit they fear and would like to eradicate.  

We have discussed one of these so-called reforms here in this blog.  This bill would provide that if someone, through their own negligence, killed 2 or more people, or seriously injured 5 or more people, they could stop a lawsuit in its tracks simply by making an offer of settlement.  The bill provides no standard of what an adequate offer of settlement would be and it punishes the would-be claimants by forcing them to pay the insurance company lawyers of the wrongdoers in the event a jury does not award at least as much as the defendants offered.  They call it a provision whereby the loser pays.  

The phony aspect of this is that the loser does not pay. Were the insurance company to offer a pittance and the plaintiff were to get a jury verdict for twice as much, there would be no penalty on the part of the defendant.  A true lose or pay would simply provide that whoever lost the lawsuit had to pay the other side’s attorney.  The so-called reform groups violently oppose such a provision.

During a recent hearing on many of these “reform” bills, an experienced attorney pointed out there are many abuses these groups seem to totally ignore.  He raised the question of whether or not the defendants of a lawsuit could be guilty of abuse.  

He told of a case where two people were seriously injured in an automobile accident.  The defendants had violated several traffic laws, including running a red light and t-boning the defendants, injuring them probably for life.  There were numerous witnesses to the accident and factually there was little or no doubt the defendants were guilty of negligence.  Instead of in good faith admitting their negligence and negotiating and going to trial on the issue of damages, the defendants’ attorneys filed a motion for summary judgment.  Although the defendants’ attorney knew or should have known there was no chance his motion would be granted, it required additional hours of work on the part of the claimants’ attorneys.  

After it was turned down by the court and ruled without merit, there was no penalty on the part of the defendants who filed such a motion.  Eventually, when the case reached the courthouse and was about to go before the jury, the defendants admitted negligence and went to trial only on the issue of damages.  They did so because they knew that if they, in the presence of 12 jurors denied what was obviously a fact, it would look like they were dealing in bad faith, which they were.  

From the reform groups I have named, there is absolutely no effort to curb this type practice in our courthouses.  There is no effort to curtail outlandish legal fees associated with trials charged by defendants.  Usually, they are charged by the huge Houston, Dallas and other metropolitan defense mega-firms.

Other evidence of the hypocrisy of the Citizens Against Lawsuit Abuse and Texans for Lawsuit Reform arose in hearings concerning the Texas windstorm claims arising from the recent hurricanes which besieged the Texas coast.  There is ample evidence that the executives of this insurance company-owned entity did not deal with victims of the hurricane in good faith, that in all likelihood kickbacks were made, favoritism was shown, nepotism was employed, incompetent adjusters hired and claims handled in a grossly negligent manner.  

Despite all of this compelling evidence, the lawsuit reform groups do not propose reforming the insurance entity, but instead seek legislation to curtail legal fees of the very lawyers, who through their diligence and efforts, uncovered the unethical and sometime illegal conduct of these people who were depriving Texans oftentimes of their homes.

Once again this shows that these people do the bidding of their fat-cat masters and really care nothing about reforming or improving the court system in Texas.  They are only interested in protecting the potential wrongdoers who are able to bankroll lobbyists and PR people in order to insulate themselves against being held accountable for their own wrongdoing.

Too many Texans seem to forget the tort system was created to bring some measure of relief to victims of negligence and bad conduct, but to deter that conduct by making an example of those who would injure and swindle their fellow citizens.  Oftentimes, the only thing these people will understand is hitting them in the pocketbook in order to deter people from manufacturing shoddy houses or unlawfully taking away the quality of life from others.

Although there is no definitive study on the subject, it appears since the wave of measures being passed through several state legislatures insulating doctors and hospitals from meaningful lawsuits, that there are more and more injuries occurring during medical procedures.  A recent study has pointed out that almost 1 in every 3 persons seeking medical treatment in a hospital is injured as a result of human error.  The rate of infections during hospital stays is growing at an alarming rate as a result of failure to take ordinary care such as washing one’s hands before performing medical procedures.  

Regulatory bodies such as the Board of Medical Examiners or attorney generals have proved effective as a measure to prevent harm due to human negligence.  The best tried and true remedy to deter such conduct is holding the wrongdoers liable before a democratically selected jury of one’s peers.  

It is obvious to some of us that having one’s fate decided in a democratic manner by free citizens sitting as a jury is certainly a scary proposition to some people.

Tuesday, April 19, 2011

...what emergency?

There are some weird definitions emerging from the 82nd Legislative Session.  But I could be wrong.  I always thought an emergency was an urgent matter needing immediate attention.  Failure to deal with an emergency, I thought, could lead to impending doom.

Either I or Governor Perry have the wrong view of what constitutes an emergency.

As our elected officials have been meeting in Austin to wrestle with knotty state problems, several matters have appeared to me to present themselves as true emergencies.  First, the State’s $27-billion deficit, I believe, should rank at or near the top.  And in the running for a state emergency could be the impending layoffs of tens of thousands of Texas teachers; also it might constitute an emergency that, next school year, Texas students will not have new books.

And at the top of my list are the many Texans who feel that health care for seniors or the shortage of over 650 state police officers also might have merited some early concern as possible emergencies.

Obviously, our governor knows something we don’t.  You can tell by the things he has placed on the state’s agenda by declaring them emergencies and needing immediate action.  Our governor’s number one emergency was directing the Legislature to immediately deal with requiring voters to show a picture id before casting a ballot.  Well, Governor Perry surely has some terribly secret information on this voter fraud emergency because, from all the reports emanating from the Attorney General’s office, only one or two possible voter fraud cases have been filed as a result of a 2-3 year investigation by that office.

Second in rank of importance on our governor’s list was a bill to prevent Houston, and a few other cities, from being a sanctuary to illegal aliens--a law obviously and sorely needed by persons other than the officials of the city of Houston, who were unaware that their city was under attack, and who instead have been humanely furnishing a safe harbor from the warlords killing and pillaging just south of our borders.

Finally, I’m certain most women seeking an abortion did not realize how helpful it would be to have imposed on them the requirement that they watch a sonogram prior to having such a procedure. This is not one of those ‘jelly on the belly’ procedures--in early pregnancy, a sonogram requires a probe inserted in the vagina to take a picture. Surely doctors, not legislators, should be the judge of whether this is an emergency.

Defining frivolous lawsuits also has me confused.  Based on reports from all the groups claiming to be about improving our legal system, frivolous lawsuits clogging our courts, if you can believe it, are at a crisis level and are the focus of trying to streamline the system by ridding us of these merit-less matters being filed in our courts.  The Texas Association of Business, Citizens Against Lawsuit Abuse and fellow travelers seem to believe that it is the frivolous lawsuits and their costs that is spiraling this country toward destruction of our entire free enterprise system.

In checking the definition, I discovered in The New College Dictionary that ‘frivolous’ is defined as “a matter characterized as lacking seriousness or sense.”  The second definition is, “lacking any serious purpose.”  These definitions are in part the source of my confusion.  If so-called tort reform is aimed at frivolous lawsuits, I’m having trouble understanding why the so-called tort reform groups are backing bills to require a litigant Plaintiff, or a claimant for serious injuries, to pay the insurance company’s lawyer if they fail to get all the money they claim. And there's a bill by Senator Tommy Williams that would allow a company like British Petroleum, after killing more than two people, or injuring more than five, to simply shutdown a lawsuit and cutoff discovery by a mere offer of settlement.  Also, it would require the family of a worker killed in such a negligently caused explosion to pay the company’s legal costs, if they fail to obtain more than the offer by the company...which is a concept somewhere beyond heinous, to my way of thinking.

This brings to mind the question that thus far has been unanswered:  How can a lawsuit that is filed because more than two people were killed --or more than five were seriously injured-- be frivolous?  The last time I checked, the lawsuit over the death of the breadwinner of a family was a serious matter.  At least it is for the victims of wrongdoing.  

I suppose whether or not a lawsuit is a frivolous lawsuit is determined sort of like the way one might determine whether or not surgery is major or minor.  Clearly, our governor would define minor surgery as that surgery performed on someone else.

Saturday, April 9, 2011


Recently, I noticed an insurance ad on television in which the speaker asked, “If a tree falls in the forest and no one’s there to hear it, does it make a sound?”  He reasoned that it did.  

This got me to thinking about the ever-present pledge of conservative members of the Legislature about no new taxes.  

The question comes to my mind, if it’s not called a tax, is it a tax, even though it takes money out of taxpayers’ pockets?

You would never get our governor or his trusty followers to admit that raising fees is tantamount to imposing a tax.  Representative Harvey Hildebran, Chairman of the Revenue and Tax Committee, seems to indicate in his remarks that at some point a fee could rise to the level of a tax. Hmmm.

In fact, the Legislature, in all probability, will raise the cost of your hunting and fishing license, your driver’s license, cost of your insurance and will increase the state charge on local criminal fines.  The governor’s definition of tax seems to be – “It’s only a tax if you call it a tax.”  The Legislature is not calling a tax on the additional fee for a stamp to hunt reptiles, nor college tuition, nor enhanced criminal fines.  Those are just considered fees.  

All of this has given me a bright idea about how we might improve the revenue income of the state. 

What we simply need to do is enact an “earnings fee” whereby anyone earning money in Texas must pay a 1.5% fee on those earnings.  Of course, it would not be a tax because we’d call it a fee.  It only applies to those people who choose to earn money in Texas.   

I’m certain those who differ with me will say it is still an income tax.  Well, it’s no more a tax than calling a fee raising tuition on college students a fee and not a tax.

You can always find interesting things to write about simply by looking at the litany of bills introduced in the Legislature.  For a session that has absolutely pledged in blood to enact no new taxes, there are probably over 250-300 bills introduced having to do with new taxes.  Most of them, however, apply only to consumers, not to the filthy rich.  

For example, there’s going to be a new tax on beer and chewing tobacco.  Last time I checked, most millionaires in Texas don’t chew tobacco and are more inclined to drink champagne than beer.  One of the more interesting proposals is to add a sales tax on oil field port-a-potties and certain other portable buildings connected with the oil patch.

I doubt seriously if there are many millionaires using port-a-potties, no matter where they might be. 

Other things I find interesting in this session of great financial need for the state are proposals to exempt school art supplies and certain guns and ammunition used for hunting.  Upon reflection, however, this probably makes sense as to the guns, but not to the art supplies.  

At the rate we’re going, with all the fees being raised by these conservative Republicans, many Texans are likely to have to resort to hunting game to put food on their tables.  

Exempting the art supplies for schools, however, does not make sense in that we are about to fire so many teachers--so what good will it do to have art supplies for the school and no teacher to show kids how to use them?  

There are many other silly things in the tax code I’ve never been able to see the logic of.  

Giving big oil companies huge tax breaks at a time they’re making record profits and classifying country clubs as agricultural endeavors to give them a bigger tax break than the average homeowner in Texas make no sense to me. 

Then again, what do I know?

Wednesday, April 6, 2011

Schools Underfinanced

Governor Rick Perry’s recent pronouncements about the budget for the State of Texas are beginning to make him sound more like Muammar Gaddafi.  Perry recently announced that the impending possible 100,000 personnel layoffs from public education in Texas were the fault of local districts, not the state. All of this makes about as much sense as Gaddafi’s pronouncement that everybody in Libya loves him, while all the while he is having them bombed by jet fighter planes and shelled by artillery.  

Governor Perry’s meamory is either flawed, or he is making a ridiculous attempt to rewrite history.  Our governor would have us all believe the Texas crises over having a $27 billion deficit is all the fault of the United States government.  He seems to have forgotten that all of this has occurred on his watch.  Even though Texas has a pay-as-you go provision in its constitution to avoid deficit spending, refusing to recognize facts can still get our state in financial trouble.  

If you will recall, in a great political ploy, Governor Perry pronounced he could reduce property taxes without increasing state taxes.  To this end our governor came up with a plan to adopt a business tax which he claimed to be revenue neutral.  This was in order to supposedly reduce our property taxes by a third.  Our governor took an attitude of, “damn the deficits, full speed ahead” in spite of the fact several experts, including formal Comptroller Carolyn Keeton Rylander, who warned the state Legislature and Perry that his proposed new tax was inadequate to supply enough funding to get us through the first two-year biennium for public education.  Perry insisted our Texas economy was so strong it would make up for the difference in spite of all the bad predictions.  

Now, as it has turns out, Governor Perry, in all of his wisdom, was off in his calculations by approximately $5.5 billion.  Still in typical fashion, which burnishes his conservative credentials, Governor Perry does not want to touch any of the state’s rainy day fund, but simply shove it off on us, local taxpayers, in the form of higher taxes on our homes and businesses.

It seems far-fetched the leader of our state could gain any credibility by maintaining he could take $11 billion from our state education system and pronounce resulting layoffs and cutbacks are not the part of the state.  In fact, the conservative mantra of no new taxes obviously has not applied to “no new” local property taxes.  The no new tax position is in large measure responsible for why we are where we are–in the hole.

When the Foundation School Program was adopted to fund our state system of public education in the 1940s, Texas furnished a little over 60% of the total funding for our system.  Local school taxes were an afterthought to add to the quality in various local areas around the state.  Currently, our state system of education is funded primarily by local property taxes and supplemented by one-third of state taxes or funds.

Believing that cuts alone can return Texas to a balanced budget and make up for a $27 billion dollar deficit is following the old conservative head in the sand technique.  Ignore the problem, including widespread suffering which will occur because of cuts in education, health, law enforcement and research and everything will be alright and nobody will notice.  

Some of us will notice.  We will pay the price in poorly educated children, lagging behind in innovative business development and look more and more like a third-world country rather than a modern day developing state.

The current course set by our governor and conservative Republican leaders has us headed directly to a depression of our own within the borders of Texas.   We are already beginning to experience unemployment akin to that at the national level.  Adding 100,000 school employees, 60,000 employees of nursing homes and healthcare facilities to the roles of the unemployed, continuing to limp along without filling the 400 vacancies of our state police force and eradication God only knows how many state employee positions will cause unemployment the likes of which has not been seen in Texas since the 1920s.  

Idealistic conservatives say everybody has to tighten their belt and share the pain.  Unfortunately, people like our conservative governor, while living in a $10,000 a month rental unit, will share little of the pain of the average working family who may or may not have a roof over their head after the Republican recession or depression.

We need a serious antidote to people calling themselves Tea Partiers who think our best hope for the future lies in crippling government.  I would suggest the strongest antidote to this non-thinking group would be a group called, “Intelligent, well-informed thinking voters.”