John Polewski and Associates

Driving and Texting More Common than Drinking and Driving

2011-04-28T08:47:00.000-07:00

Up until just a couple of years ago, the worst menace on the road was drivers who had been drinking prior to getting behind the wheel. While this is still a big problem, texting and other cell phone use while driving has actually become more common and even more dangerous. Adults and teenagers are chronically texting while operating their car and are causing car accidents resulting in serious personal injury and/or death. If you have been the victim of a reckless driver who was texting just prior to the accident, you should seek out the advice of an experienced car accident lawyer such as Dallas’ John Polewski at Polewski & Associates.

Studies have actually been conducted to illustrate how much more time your eyes are off the road when texting as compared to how impaired you are while driving drunk. Here is one example to show you how much texting while driving impairs your ability to react in time:

• Unimpaired: .54 seconds to brake
• Legally drunk: add 4 feet
• Reading e-mail: add 36 feet
• Sending a text: add 70 feet

These numbers clearly show that texting while driving impairs a driver’s ability to react much more seriously than driving while legally drunk. That example alone should be sufficient evidence to deter you from ever sending another text message while driving.

If you have suffered or a loved one has died due to a driver who was texting, please contact Polewski & Associates today to schedule a consultation with a Dallas car accident lawyer.

Increased Incidents of Driving and Texting Accidents

2011-04-25T08:45:00.000-07:00

With just about everyone owning a cell phone and a car, the incidents of texting and driving are certainly going to increase—that is no surprise. But what is surprising is that adults as well as teens are texting chronically while driving even though many states now have laws to punish cell phone users who text while driving. Many states, including Texas, punish drivers who use their cell phones with hefty fines, especially if the driver is a repeat offender.

According to statistics in 2005, 10 billion texts were sent in December, and in 2008 the number increased to 110,000 billion texts sent in the same month. With that number expected to continue to grow, it is no wonder that the number of car accidents due to texting is growing.

According to a report by the National Safety Council, 28% of car accidents are caused by talking or texting while driving. In another recent survey, 26% of mobile phone users said that they have texted while driving. Sixty percent of teenagers, typically the most dangerous of drivers, reported that they have texted while driving.

If you have been the victim of someone else’s negligence and have been in a car accident due to a texting driver, please contact Dallas car accident attorney John Polewski at Polewski & Associates today to schedule a confidential consultation.

What Tanker Trucks Typically Carry

2011-03-21T11:24:00.000-07:00

Tanker trucks are large trucks that either carry or pull trailers capable of handling various liquid, dry bulk or gaseous loads. These vehicles are typically categorized as heavy, medium, or light-duty types based on their load-carrying capacities. Tanker trucks can carry more than one load, making them even more dangerous in the event of an accident.

When a truck carries more than one load, dissimilar loads can be divided within a single container enclosure, or loads can be mixed by piggybacking multiple trailers. With the exception of light-duty tankers, such as water dispersion tankers, drivers typically carry Class B or C commercial licenses in addition to various bulk goods, fuels or hazmat endorsements.

A collision with a tanker truck can be very serious due to the size and weight of the truck and the nature of its load. If you or a loved one has been in a tanker truck accident, you really should seek out the advice of an experienced truck accident lawyer such as Dallas’ John Polewski. For over twenty years, we have represented people just like you who were injured or who lost a loved one in a serious truck accident.

If you live in or around Dallas or north Texas, please contact Polewski & Associates today to schedule a confidential consultation.

Damages Caused by Tanker Truck Accidents

2011-03-07T11:18:00.000-08:00

Because the load in a tanker truck is liquid, it shifts and rolls with the motion of the truck and the grade of the roadway. That fact, combined with driver error, often results in a tanker truck accident. Driver fatigue and inattentiveness actually account for one in five tanker truck accidents. It is imperative that tanker truck drivers get the rest they need to haul these very dangerous loads. An accident with a tanker truck will surely result in serious personal injury and/or death. If you have been in an accident with a tanker truck in Dallas or a surrounding area, please contact John Polewski, an experienced and knowledgeable Dallas truck accident attorney who will fight tirelessly until you get the compensation you deserve.

Polewski & Associates will fight to recover both economic and non-economic damages if you have suffered due to a tanker truck driver’s error. We will work to get you money to pay for:

• Medical bills
• Physical rehabilitation
• Long-term care
• Medications
• Lost wages
• Funeral expenses (in the event of wrongful death)
• Pain and suffering (if it applies)

Due to the sheer size and weight of tanker trucks, any collision with a passenger vehicle is going to cause some type of damage. If you live in Dallas or anywhere in north Texas and have been in an accident with a tanker truck, please contact Polewski & Associates today to schedule a no-cost consultation so we may hear the details of your case.

Types of Construction Zone Vehicle Accidents

2011-02-28T09:12:00.000-08:00

Most of you have seen those signs warning of construction ahead or asking you to slow down to keep our construction workers safe. All over the country, our roads are being improved, repaired, and new ones are being created to keep up with the incredibly high number of vehicles on our nation’s roadways. With construction zones comes the potential for serious accidents. Cars traveling at high rates of speed often do not have time to slow down when they come upon construction zones, and the result can be deadly. If you have been involved in an accident in a construction zone, you will need an experienced Dallas auto accident lawyer on your side. Polewski & Associates has over twenty years of experience representing accident victims in these difficult cases and we can help you, too.

There are many types of construction zone accidents. Most often, speeding is the cause of the accident. Drivers often rear-end other cars because they don’t have enough time to stop when they come upon a construction zone. Hitting equipment or even construction workers is another type of construction zone vehicle accident. Even with proper signage, drivers going too fast are not able to control their vehicle and avoid crashing into equipment or workers. Merging into another lane is often the cause of construction zone accidents. You all know those drivers who wait until the very last second to merge into the lane that is open. Merging at the last second will often cause fender benders and will also cause road rage in other drivers which leads to a whole host of other problems.

If you have been involved in a construction zone vehicle accident, please contact Polewski & Associates today to schedule a confidential consultation.

Who Can be Responsible for Construction Zone Car Accidents?

2011-02-22T09:03:00.000-08:00

It seems not a day goes by where we do not see some type of construction taking place on our nation’s roadways. Roads are constantly being repaired and new roads are created each and every year. With the high number of construction sites on our roads, it is not surprising that the number of construction zone car accidents keeps growing each year. Accidents at construction zones can be very serious as cars are often traveling at high speeds and workers have very little or no protection from the cars and elements around them.

Construction zone car accident cases can be difficult because multiple parties are usually involved, and determining liability is sometimes a daunting task. However, the experienced car accident attorneys at Polewski & Associates, serving Dallas and north Texas have the knowledge and resource to fight these difficult cases and win.

We have the resources to employ accident reconstruction experts who can assist us in proving that the construction zone was improperly marked and that required safety warnings were absent or insufficient to prevent your accident.

An important first step is to determine whether or not the construction zone in question was under the direct control of the Texas Department of Transportation (TDOT). If so, issues of municipal liability and governmental immunity may limit your options.

Private contractors and subcontractors are required to maintain liability insurance. Identifying the responsible party will enable us to provide you with an accurate evaluation of your chances of full financial recovery.

Please contact Polewski & Associates today if you are in need of an experienced Dallas auto accident attorney. For over twenty years, we have been fighting these cases, and we will not stop fighting until we receive a fair settlement or award from a judge or jury.

What to do if you Have Been in a Construction Site Accident

2011-01-11T14:07:00.000-08:00

If you have been injured in a construction site accident, you may be facing a long period of recovery or even permanent disability. Construction accidents, due to the nature of the work, are typically very serious. Falls and burns are very common construction site accidents, and the use of heavy equipment is always very dangerous.

Many construction workers who are injured may not know what their legal rights are following an accident at a job site. If the boss or supervisor does not inform you of your rights, you may not realize you could be entitled to serious financial compensation if your accident was caused by some type of maintenance or safety issue. If you have been injured or a loved one has been killed in a construction site accident, it is highly recommended that you contact an experienced construction accident attorney such as John Polewski in Dallas, Texas.

The most important thing to focus on after your accident is your recovery. Let Polewski & Associates handle the legal aspect of your case. These cases can be complicated and time consuming as multiple parties may be liable for your injuries. Our team of investigators will look into your accident in depth and figure out what caused the accident and who is at fault. We will then begin fighting your case to ensure you receive the compensation to which you are entitled. We will fight to recover economic and non-economic damages such as:

• Medical bills
• Physical rehabilitation
• Medications
• Long-term care if necessary
• Funeral expenses (in the event of wrongful death)
• Pain and suffering (if this applies)

If you have been injured in a construction site accident in Dallas, please contact Polewski & Associates today to schedule a confidential consultation so we may hear the details of your accident and advise you of what we can do for you.

Common Construction Site Accidents

2011-01-05T08:10:00.000-08:00

Being a construction worker is, by far, one of the most dangerous occupations and the potential for being involved in a construction site accident is fairly high. Construction sites are filled with heavy equipment, scaffolding, chemicals, and tools that can cause serious personal injury or death. Construction workers risk their lives every day and when proper training and maintenance is not performed, their jobs become even more dangerous.

If you were injured, or if a loved one died in a construction accident in Dallas or anywhere in northern Texas, you need experienced construction accident lawyer John Polewski on your side. For well over 20 years, he and his legal team have been trying these difficult cases and winning.

Some of the most common construction site accidents include:

• Falls from ladders or scaffolding
• Accidents involving construction vehicles
• Injuries from sharp or heavy objects
• Falling debris
• Electrocution
• Burns from chemicals or fire

Burns, brain injury, spinal cord injury, soft tissue damage, and damage to extremities are just a few of the painful injuries you can sustain when hurt in a construction site accident. We know from experience that even the most minor of incidents can lead to permanent, life-changing damage.

If you live in or around Dallas and were injured on a construction site, please contact the skilled construction accident lawyers at Polewski & Associates today to schedule your confidential, no-cost consultation.

How Should I Find a Lawyer That Handles Surgical Error Lawsuits?

2010-12-06T08:26:00.000-08:00

Medical malpractice involves making preventable mistakes that cause serious injury or death. If you have been a victim of a surgical mistake, it is important that you find a qualified surgical error attorney.

At Polewski & Associates, we hold ourselves to only the highest standards of excellence and possess more than two decades of litigation experience to win you the damages to which you are entitled.
Finding a Qualified Surgical Error Lawyer

Medical malpractice law is a very specialized field of law. If you or a loved one has suffered a surgical error because of a medical employee’s negligence, you need a legal specialist who focuses on this area of law.
You can begin by asking for recommendations from friends, family members, coworkers and other trusted sources. Then, search online for a lawyer in your area who specializes in surgical errors. Next, schedule a consultation with a few lawyers (many charge no fee for the initial consultation). Bring any medical documents, doctor’s names and other records that pertain to your case. You should also bring a list of questions to ask your potential attorney, such as:

• How much experience do you have with surgical error cases and how long have you been practicing medical malpractice law?

• How do keep updated with current medical issues?

• Do you have the financial resources to take my case to trial, if required?

• How many medical malpractice/surgical error claims have you taken to trial?

• How do you find medical experts for your malpractice cases?

If you live in the Dallas, Texas area, and are looking for an experienced surgical error attorney, please contact Polewski & Associates to schedule your consultation with our qualified attorneys.

What Constitutes a Surgical Error?

2010-12-01T12:22:00.000-08:00

Surgical errors are serious and potentially life-threatening forms of medical malpractice that can leave patients permanently injured.

The attorneys at Polewski & Associates have been successfully helping medical malpractice victims for more than 20 years. We will devote all of our skills, experience, and resources to ensuring that you have the highest quality representation possible.

Different Incidents of Surgical Errors

There are numerous errors that can be made during surgery, including:

Anesthesia overdoses
Administering the incorrect blood type
Prescription errors or medication mistakes
Failure to review medical instructions resulting in surgery on the incorrect body part
Misreading a medical chart or incorrectly assessing a patient’s medical history
Improper medical clearance for surgery
Scalpel slips that nick neighboring organs or pierce other body parts
Failure to treat a post-operative infection

Aside from these occurrences, unnecessary procedures like a Cesarean section or hysterectomy can also constitute a surgical error. Mistakes that happen during cosmetic procedures can leave patients physically disfigured and emotionally scarred.

The most common types of surgeries and procedures where mistakes happen include:

Gastric bypass surgery
Plastic and cosmetic surgery
Laparoscopic intestinal surgery
Thoracic surgery
Childbirth
Cardiothoracic surgery

If you have been the victim of a surgical error and you live in the Dallas, Texas area, please contact Polewski & Associates today to schedule your consultation a qualified surgical error attorney.

Drug Side Effects and Seizures

2010-11-15T14:13:00.000-08:00

Sadly, some medications can provoke seizures, especially in patients with a history of seizures.

The following medications will not cause epilepsy, but they can cause seizures in people who have had past seizures:

Some antihistamines
Attention-deficit drugs
A number of psychiatric medications
The weight loss drug Dexatrim (phenylpropanolamine)
Certain antibiotics
Recreational drugs like amphetamines and cocaine
Some respiratory drugs
The multiple sclerosis drub Liorisal (baclofen)

The qualified attorneys at Polewski & Associates have more than two decades of medical malpractice experience, and can help you get the money you deserve.

Dilantin and SJS

Stevens-Johnson Syndrome (SJS) is a potentially fatal medical condition that affects your skin and mucous membranes by causing a rash and blisters throughout your body. Dilantin (phenytoin) is a widely-prescribed antiepileptic drug prescribed to prevent tonic-clonic (grand mal) and complex partial (psychomotor) seizures.

Some experts believe that a reaction to Dilantin can lead to the development of SJS. Although Dilantin has been recalled multiple times since it was introduced into the marketplace, it is still being widely prescribed.

Other anti-seizure medications known to potentially cause SJS include:

Tegretol (carbamazepine)
Lamictal (lamotrigine)
Levaquin (levofloxacin)

If you live in the Dallas, Texas area, please contact Polewski & Associates today to schedule your consultation with our qualified birth injury attorneys.

What is Stevens-Johnson Syndrome?

2010-11-05T14:10:00.000-07:00

Stevens-Johnson Syndrome (SJS) is a medical condition that affects your skin and mucous membranes. It is commonly caused by an allergic reaction to a medication. The medical malpractice and defective product attorneys at Polewski & Associates are now accepting cases in which Stevens-Johnson Syndrome has caused injury or death.

Medicines That May Cause SJS

Medications that may cause SJS include:

Non-Steroidal Anti-Inflammatory Drugs (NSAIDS) such as Vioxx, Ibuprofen, Advil, Excedrin and Naproxen
Cold medicines containing NSAIDS such as Advil Cold and Sinus
Sufla-based antibiotics such as amoxicillin, tetracycline and doxycycline Fluoroquinolone antibiotics such as parfloxacin and ofloxacin
Certain anticonvulsants and diuretics
In children, ibuprofen-based medications such as Children’s Motrin

Symptoms of SJS

The symptoms of SJS begin with flu-like symptoms such as a headache, fever and body aches. The subsequent symptoms include a red or purplish rash that may break out on your face and body before blistering in your nose, mouth, ears and genitals.

Other symptoms of SJS include:

Red eyes
Conjunctivitis (pink eye)
Swelling of your eyelids and/or tongue
Hives
Persistent fever
Pain in the skin
Shedding (sloughing) of your affected skin

A product liability lawsuit may be brought against the manufacturer of the medication that caused your SJS. If you live in the Dallas, Texas area, please contact our law firm today to arrange a consultation with our experienced medical malpractice attorneys.

Alternatives to Doctor Referrals

2010-10-19T14:44:00.000-07:00

If you do not agree with the specialist referral made by your primary doctor, there are other options. You can seek a second opinion or try alternative therapies to help manage your condition or illness.

At Polewski & Associates, we will devote all of our skills, experience, and resources to ensuring that you have the highest quality of representation possible should you suffer due to medical error or negligence.

Get a Second Opinion

You want to be entirely sure that you are making the best decision about your health. Therefore, if you are skeptical about your doctor's advice, you should ask for a second opinion. Reasons to obtain a second opinion include:

If you have doubts about your condition
If you do not feel confident about the recommendation by your primary care physician
If you are unsure about the advised treatment
If you do not feel that the recommended specialist is right for you

Alternative Therapies

Alternative therapies like yoga, meditation, and acupuncture have been shown to help alleviate certain conditions and illnesses. Studies have revealed that yoga can help alleviate stress, which has been linked to high blood pressure. Some yoga practicioners have also found relief from chronic pain from back injuries, as well as knee pain and hip pain.

Acupuncture has been known to help manage arthritis, nerve paralysis, stomach ulcers, and addictions like smoking and overeating. Because of its calming effects, meditation is believed to protect against stress-related health problems, while helping manage pain and improving sleep.

If you live in the Dallas, Texas area and want to learn more about your options, please contact the medical malpractice attorneys at Polewski & Associates. We have represented clients in a variety of medical malpractice cases and can help you, too.

How to Research a Medical Specialist Referral

2010-10-18T14:42:00.000-07:00

If you are referred to a specialist, you will probably want to research their credentials and qualifications.

The attorneys at Polewski & Associates have been successfully helping medical malpractice victims for more than 20 years. We provide our clients with highly personalized attention and the services of a board certified personal injury trial lawyer.

The World Wide Web

The wealth of information online makes it easier to verify your potential specialist’s expertise. But be wary, because the World Wide Web also makes it challenging to decipher what information is reputable and what is bogus.

Here are some tips for obtaining trustworthy information online:

Find your state's licensing board to research basic credential information. Additional information about your potential specialist may also be found at one of these credential sites.
If board certification is not listed on those sites, check separately to make sure your doctor is board-certified in the type of specialty you need. This can be done through a trusted organization like the American Board of Medical Specialties (ABMS).
It is possible to gather pertinent and helpful information at ratings websites, but not always. Therefore, use your best judgment or ask friends and family members for recommendations.
Check any history of medical malpractice suits or any type of disciplinary action by word-searching the doctor’s name in quotations marks, followed by the words medical malpractice lawsuit.

If you live in the Dallas, Texas area and are looking for a qualified medical malpractice attorney, please contact Polewski & Associates today to schedule your consultation.

How Quickly Are Birth Injuries Noticed?

2010-09-10T11:21:00.000-07:00

Sometimes birth injuries are caused by the natural birth process; other times they are a result of medical malpractice. One of the main problems with birth injuries is that some can be detected within a few hours of birth, whereas others can not be diagnosed until later in a child’s life. Sadly, the more severe birth injuries are often the last to be detected, such as those relating to learning or developmental disabilities.

At Polewski & Associates, we hold ourselves to the highest standards of excellence and possess more than two decades of litigation experience to get you the settlement you deserve.

Detection of Birth Injuries

Some types of birth injuries are immediately apparent, so they can be diagnosed and treated right after birth. These include bruising, forcep marks, swelling of the scalp, facial paralysis, fractures and subconjunctival hemorrhage (ruptures to the small blood vessels of your eye)

Unfortunately, the more severe injuries may not surface until later in your baby’s life such as:

Cerebral Palsy: A condition characterized by involuntary movements, learning disabilities and speech problems.
Spinal Cord Injuries: The diagnosis of spinal cord injury is often missed in newborns.
Brachial Plexus Injuries: Brachial plexus injuries, such as Erb’s palsy, can also be challenging to detect in newborns, as it is diagnosed by a low muscle tone or strength, limpness, and lack of sensation on the arms or hands.

If your child has suffered a birth injury in the Dallas, Texas area, please contact Polewski & Associates to arrange a no-cost, confidential consultation to hear the details of your case.

What is Erb's Palsy?

2010-09-07T11:18:00.000-07:00

Erb's palsy is a birth injury caused by damage to an infant's brachial plexus, the bundle of nerves that runs from the spine to shoulder, and then down the arm.

At Polewski & Associates, we provide our clients with highly personalized attention and the services of a board-certified medical malpractice lawyer. Your case will also be reviewed by experts such as a licensed medical doctor to give you the strongest case possible.

Symptoms of Erb's Palsy

Erb's palsy is usually detected immediately, as it is caused by an injury at birth, but the extent of your child's injury may not be determined until months after delivery. Symptoms include:

The inability for your infant move his or her arm
A limpness in the arm
A lack of muscle control in the arm/hands

Healing and Treatment

Most cases of Erb’s palsy are caused by a stretching of the nerve that will heal within six months to a year after birth. Occasionally, the nerves are torn and are unable to heal on their own. In these cases, surgery is often necessary. Less than 10 percent of brachial plexus birth injuries result in permanent impairment.

Improved Delivery

Today’s improved delivery techniques prevent many brachial plexus injuries. Larger- than-average babies are at greater risk for this type of injury, as they are more likely to get a shoulder stuck under the mother’s pelvic bone (called shoulder dystocia). A breech birth (feet first) also puts the baby at greater risk of injury.

If you live in the Dallas, Texas area, and your child has suffered a birth injury, please contact our office to schedule your consultation with the aggressive, committed medical malpractice attorneys at Polewski & Associates today.

Steps to Take as a Victim of Unfair Business Practices

2010-08-23T07:15:00.000-07:00

Do you think you've been a victim of unfair business practices? If so, and you are only looking for a refund of the purchase price, you should begin by contacting the business with your complaint. If you do not get a refund from the business, it is a good idea to file a complaint with the Texas Attorney General. If you used a credit card for the purchase, you should also contact your credit card company--they may be able to get a refund for you.

However, if you have suffered a serious personal injury, want more than a simple refund, or have other reasons for wanting an attorney to resolve your complaint, here are some steps you should take in addition to contacting a lawyer.

First, document how you think the product or service failed to live up to promises and any injuries or secondary damages (including losses incurred by your business) that resulted. Next, collect all documentation on the product or service in question. Include any advertising, pamphlets, instructions, receipts, estimates, and contracts. Also try to remember what was said to you by a salesperson. Finally, document your decision-making process. Often a case will revolve on whether a particular misrepresentation led to your decision to purchase a particular product or service.

If you have been a victim of deceptive or unfair business practices and feel you need an attorney to help you resolve your complaint, please contact the Dallas business lawyers at Polewski & Associates today.

How to Identify Unfair Business Practices and When You Need an Attorney

2010-08-16T10:00:00.000-07:00

Unfair business practices encompass a wide range of activities. In general, unfair business practices are those designed to take advantage of consumers by making promises that are not fulfilled by the seller or his merchandise. Most commonly this includes:

Selling defective products
Misrepresenting the quality or type of products sold
Misrepresenting the skills or certifications of a service provider
Promising additional services that are not provided
Taking advantage of the ignorance of the buyer to recommend additional unnecessary services or products

The best way to identify and avoid unfair business practices is to ask hard questions and shop around. If a salesman seems to be implying that a tool can perform a particular task, ask outright whether it is true. The salesman will either balk or give you a strong case in the event that the tool is defective with respect to that claim. If you get a repair estimate for your car that seems to include many unnecessary items, take it to another mechanic.

In the case of many unfair business practices, you may only be looking to get your money back, and in those cases you generally do not need a lawyer. However, you should seek the assistance of a lawyer in cases where:

You suffered personal injury
You suffered secondary losses
You feel the practices may have impacted a large number of people
Your investment is large and the seller refuses a refund

If you think you have been the victim of unfair business practices and feel you deserve compensation, please contact Polewski & Associates today for a free initial case evaluation.

When Your Landlord-Tenant Dispute Requires a Lawyer

2010-07-27T16:19:00.000-07:00

Many landlord-tenant disputes are relatively minor and can be resolved through cordial conversation and quick reference to the terms of the lease. However, other times, a lawyer is necessary to ensure that both parties are not running afoul of the law, which could be very costly for either party. The following are a few situations in which a landlord or tenant should strongly consider consulting a lawyer:

Evictions or lockouts
Accusations of discrimination or retaliation
Accusations that a landlord is failing to make necessary repairs
Actual or perceived injury due to dangerous premises, such as those due to:
1) Poor maintenance, 2) Damaged stairs, floors, ceiling, or walks, 3) Toxic mold or substances in building, 4) Negligent security
Damage to the rental or personal property

Landlords should be especially wary of taking unilateral action (such as a lockout or sudden eviction) against a tenant as the laws give very specific procedures for handling most forms of dispute. In the event of such action, tenants can often bring successful litigation that may cost a landlord much more than the cause of the initial dispute. As soon as disputes arise, tenants and landlords should try to keep as much communication in writing as possible so it can be used as evidence in the event of a lawsuit.

Sometimes, it is only necessary to consult with one of the real estate lawyers at Polewski & Associates to determine what actions are appropriate and legal on the basis of the dispute and the terms of the lease. We are skilled at representing clients in alternative dispute resolution (mediation and arbitration). But if necessary, the Dallas, Texas real estate lawyers of Polewski & Associates can help you pursue litigation. To learn more, schedule a consultation today.

When a Property Purchase May Involve a Real Estate Litigation Attorney

2010-07-05T14:53:00.000-07:00

Although it is always a good idea to consult with a lawyer on any real estate deal, it is not always strictly necessary. In cases of simple residential property purchases, your real estate agent can handle many of the common legal issues related to the sale and the contract. Your prospective mortgage holder may also feel it has enough of a stake that it will perform some legal work--such as looking over the contract and investigating the title--with its own attorneys. For commercial property purchases, a lawyer is more often recommended, but is still not always required.

However, a real estate litigation attorney is necessary when a contract dispute arises about the terms of the purchase. Some common disputes arise as a result of:

Failure to perform specified repairs / improvements
Failure to vacate by specified date
Failure to leave property move-in ready (debris or large equipment left behind)
Property not as specified
Equipment or property missing
Utilities or property tax not paid as specified

In some cases, these violations of the terms of the purchase contract may be just a minor annoyance, but in other cases they can significantly impact your business. Unpaid property taxes and utilities can lead to significant penalties. Repairs or clean-up can not only cost thousands (even tens of thousands) of dollars, but can significantly delay your move-in date. And with your business packed up and ready to move, every day of delay is a day of expenses without revenue. Finally, if the property is not as specified, it's possible the whole deal should be canceled, with a return of all moneys paid plus penalties.

In these cases, a real estate litigation attorney can help you pursue the full range of remedies allowed in your contract. If you are involved in a dispute over a real estate sale in Dallas, Texas and need the help of a real estate litigation attorney, please contact Polewski & Associates today for a consultation.

What Does Commercial Litigation Cover?

2010-06-30T13:27:00.000-07:00

Commercial litigation, also known as business litigation, covers any type of legal conflicts related to businesses. It includes all areas of business law that result in disputes between parties, including:

Contract disputes
Employment disputes
Business interference
Unfair business practices
Civil RICO
Dissolutions and acquisitions
Violations of non-compete clauses
Breach of duty
Shareholder disputes
Disputes between partners
Debt collections
Consumer fraud and consumer protection cases

Commercial litigation can be stressful for a business and its employers, whether the litigation is related to a threat or an opportunity for the business. If your business is facing litigation, has justification for bringing litigation, or is considering actions that might result in litigation, a business lawyer can help you limit the danger and increase the potential benefit from commercial litigation.

Polewski & Associates has extensive experience representing businesses of every size in Dallas and across Texas, and we may be able to represent you. Please contact us today for a consultation.

Does Commercial Litigation Apply to Small Businesses?

2010-06-10T08:45:00.000-07:00

Yes, just as much as to large businesses. In fact, for small businesses, being aware of your commercial litigation options may be even more important than for larger businesses.

One of the law's primary functions is to protect the small and disempowered against those who would use their size, their power, their commercial influence to unduly influence the marketplace. As a small business, you will find many situations where others think they can treat you unfairly because of your size, including:

Distributors who favor their larger customers
Customers who think they can avoid paying
Companies that want to steal your intellectual property
Larger contractors who interfere with your work at shared sites

In any of these situations, the law is your ally and can make sure that you receive the supplies, money, and opportunity you need to compete in a free and open marketplace. If you protect yourself by writing judicious contracts and aggressively resolving contract disputes, you can show that your company is not to be trifled with.

Small businesses are the engine of our economy, the key to higher employment, continuing innovation, and a return to economic prosperity. The law is on your side and so is Polewski & Associates. Contact us today for a consultation at one of our Dallas-area locations.

Settling Disputes between Business Partners

2010-05-25T12:07:00.000-07:00

When two people first go into business together, they often are thinking only of all the great things they will be doing together and may fail to imagine what will happen if business is poor or if conflicts arise about the course the business should be following. Unfortunately, business disputes between partners are all too common, about issues as diverse as sharing work, sharing profit, future plans, even what idea was whose. These disputes can often go beyond the ability of you and your partner to resolve them by yourselves. Instead, you must get outside help to resolve the dispute.

The most important question you have to answer for yourself before seeking help resolving a dispute is: do I still want to maintain my partnership or is this dispute so serious that it is time to dissolve the partnership?

If you want to maintain a partnership, the best strategy is to seek conflict resolution that is less antagonistic, that potentially has the ability to resolve a dispute, reduce tension, and form the foundation of future work. Alternative dispute resolution, mediation and arbitration, can do this. Mediation or nonbinding arbitration in particular can be a great place for business partners to work through some important issues without the stress that their entire future is riding on the outcome. Getting an opportunity to hear a third party's objective opinion about a dispute can be refreshing and give partners some much-needed perspective that will allow them to continue working together. The only problem with mediation is that there is a possibility it will not resolve your disputes.

On the other hand, if you feel you can no longer work with your partner or partners, then it may be best to pursue binding arbitration or a lawsuit. This is the best way to definitively settle a business dispute.

If you are having a dispute with your business partner or partners, it is best to talk to a lawyer sooner rather than later, so you can begin protecting your interests and those of the business. To talk to an experienced business lawyer, please contact Polewski & Associates today.

Alternatives to Suing: Arbitration and Mediation

2010-05-24T12:04:00.000-07:00

If you are involved in a business dispute, you probably have a lot at stake and want to make sure you get what you are owed. But you may not want to sue the other party, often because you want to avoid the expense, uncertainty, and antagonism of a lawsuit. In this case, you can use the alternative dispute resolution procedures of mediation and arbitration.

Mediation is a procedure of negotiation, in which both you and the person with whom you have the dispute propose solutions to your dispute under the learned supervision of an experienced and impartial third party, the mediator. There is no guarantee that mediation will reach a settlement, but this procedure is the best for avoiding conflict and reaching a compromise that is equally amenable to both sides. Mediation is good for businesses and individuals that hope to work together more in the future.

Arbitration is a process that is very similar to a trial, in which each side makes its arguments and a written decision is issued, but instead of a public judge, arbitration uses a private arbitrator or panel of arbitrators to make the decision. Arbitration can be binding or non-binding, and sometimes is blended with mediation.

Depending on the type of dispute in which you are involved and the terms of your contract, you may be able to choose between arbitration, mediation, or filing a lawsuit. We can advise you about which course is most likely to get you a favorable outcome. And if you are bound to mediation or arbitration, we can help you get the best possible outcome. Please contact the Dallas, Texas business lawyers at Polewski and Associates today to learn how we can help you.

Some Situations Where a Business Lawyer Can Help

2010-04-28T08:32:00.000-07:00

You might think your business doesn't need a lawyer, but the truth is that a business is as much a legal entity as it is a financial one, probably more so. Many businesses need a lawyer on a daily basis, and the continued survival of the business often depends on getting the best possible legal advice for any given situation. Situations where a business lawyer can help include:

Starting a business (should it be an LLC, an LLP, an LPA, etc?)
Buying or selling a business
Buying, selling, or leasing commercial real estate
Writing or reviewing contracts with suppliers, buyers, service providers or employees
Resolving disputes with customers, suppliers, service providers, or employers
Negotiating loans, securing capital, and making banking arrangements
Protecting intellectual property
Dissolving the business

In every one of these situations, a lawyer can be helpful not only in resolving situations, but also in preventing them from arising in the first place. For example, when a situation arises with an employee, early consultation with a business lawyer can help you defuse the situation and avoid an employment lawsuit. Ensuring a contract is well written before you sign it will put you in a better position if a contract dispute arises.

If you own a business and are facing any of the above situations, talking to a lawyer can help. A good business lawyer can be an essential component in ensuring the success of your business. To learn more about how business lawyers can help you, please contact Polewski & Associates today.

How to Choose a Business Lawyer

2010-04-27T08:29:00.000-07:00

It's not hard to find a business lawyer. Between directories, advertisements, and internet searches, you can find hundreds very easily. Heck, they're looking for you and do their best to be visible. The challenge is how to choose from all the ones you find. Here's some advice on choosing the lawyer that's right for your business.

Choose a lawyer with the right expertise. If you're looking for a lawyer, whether for contract issues, disputes between your business and others, or just for general legal advice, make sure the lawyer knows enough to really help. Talk to the lawyer about your problem and gauge his response carefully to see if you think this lawyer has the knowledge to successfully handle your case.

Choose a lawyer with a good reputation. Talk to lawyers you know and see if the lawyer has a good reputation in the community. Also, talk to the lawyer's current and former clients about the quality of service they received. See some testimonials for Polewski & Associates. You can also check with the State Bar of Texas to see if a lawyer has been disciplined for misconduct.

Choose a lawyer with reasonable fees. "Reasonable" doesn't mean "cheap." A lawyer whose rates look too low should be avoided, probably more than a lawyer whose fees are too high. Talk to a lawyer about the fees for legal services you need, whether they're negotiable, and if there's a mechanism for keeping them from spiraling out of control.

Choose a lawyer with whom you feel comfortable. You have to feel comfortable with putting your business in the hands of a lawyer. If you have any reservations about a lawyer or law firm, walk away and look for someone else.

In choosing a business lawyer, it's important to talk to several lawyers to ensure you've found the right one for your business. We invite you to come and talk to us today. Please contact Polewski & Associates today to schedule a consultation.

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2010-04-26T12:43:00.001-07:00

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When Foot Surgery Goes Bad

2010-04-21T13:17:00.000-07:00

My office sees a lot of clients who have been hurt by bad podiatrists. Invariably, the patient goes into the podiatrist with a minor problem, the podiatrist acts like fixing it is "nothing"--and the patient ends up with a major problem because the podiatrist did not take simple precautions for the patient's safety. We've seen many cases where the podiatrist is doing a routine operation (like removal of a bunion or a corn) and it appears that the podiatrist either didn't know what he was doing or decided that he would create a "new" method for doing an operation. Worse, when these operations fail, these podiatrists keep operating, trying to fix the damages caused by their first surgery without fully understanding either what went wrong or what to do about it.

All too often the result is a patient who is permanently crippled when all she wanted was a bunion removed.

The moral of this story is that not every podiatrist should be doing all of the surgeries that they are willing to do, and that patients considering having foot surgery by a podiatrist also get a second opinion from a medical doctor who does foot surgery. There are orthopedic surgeons who perform foot surgery, and their training is much more extensive than that of podiatrists. Second, if your first surgery with a podiatrist went bad, it is imperative that you immediately see a foot and ankle specialist that is an M.D. Letting a podiatrist who isn't good at surgery keep operating on your foot after he failed once is a recipe for disaster.

If you have been injured by a bad podiatrist, give us a call. We can help, and we can help you find doctors to fix your feet.

Do I Have a Medical Malpractice Case?

2010-03-10T16:26:00.000-08:00

Medical malpractice claims are some of the most difficult to win. They are highly complex and require the assistance of an attorney with extensive understanding of the medical principles involved. Due to the long time period for completion, large up-front expenses incurred, and difficulty of proving liability in medical malpractice claims, many attorneys will only accept a case if they believe it has a strong likelihood of winning a substantial settlement.

There are several factors which must be evaluated in determining if you have a medical malpractice claim worth pursuing. The most important factor is liability.

In order to prove liability, you will need to demonstrate that the medical professional provided negligent care which failed to meet accepted standards put forth by the medical community. A poor outcome for your procedure does not necessarily imply negligent care. You will need to demonstrate that the poor outcome could have been prevented if the medical professional had provided care commensurate with accepted standards.

However, it is not enough to prove that your doctor's care was negligent. In order for the doctor to be held liable for your damages, you also need to prove that the negligent care directly resulted in your injury or worsened your condition.

Once you have established liability, you will need to demonstrate that you have suffered damages. These can include:

Medical expenses
Long-term care
Lost wages
Pain and suffering

The extent of damages will be determined by your unique individual situation. For example, if your injury prevents you from ever performing your job again, you may be entitled to more damages for lost wages than someone who can eventually resume the performance of all regular work responsibilities.

The medical malpractice lawyers at Polewski & Associates can help you receive the compensation you deserve if you have suffered an injury caused by a medical error. At your initial consultation, we will thoroughly review the details of your case to help you determine how best to proceed.

Please contact our Dallas medical malpractice lawyers today to schedule your free initial consultation. Polewski & Associates serves clients in Dallas, Desoto, Duncanville, Midlothian, and Waxahachie, Texas.

When Cancer is Misdiagnosed

2010-03-09T16:19:00.000-08:00

Early detection and treatment of cancer is crucial to your survival chances. In many cases, if caught early enough, doctors will be able to treat your cancer in a manner which enables you to enjoy a full recovery without the pain and agony associated with chemotherapy or radiation treatment.

However, when cancer is misdiagnosed or when there is a delayed diagnosis of your cancer, it festers inside your body, increasing the likelihood that it will spread to other organs. Once cancer spreads, it becomes much more difficult to remove from your body, and treatments become increasingly painful.

The Dallas medical malpractice lawyers at Polewski & Associates have witnessed too many instances where medical errors have resulted in a misdiagnosis of cancer which would have otherwise been treatable with a high success rate. Common actions resulting in a misdiagnosis of cancer include:

Failure to properly read a pap smear
Failure to order x-rays or CT scans
Failure to properly read a biopsy

If your doctor's actions resulted in a delayed diagnosis or misdiagnosis of your cancer, you may be entitled to receive compensation for your damages. Our lawyers are board certified in personal injury trial law, and we possess the skills to effectively prove your claim through litigation. One of our attorneys, Andrew Gross, is also a licensed medical doctor, and this background enables him to accurately review medical records and identify when a doctor's actions constitute negligence.

If you think you have a cancer misdiagnosis claim, please contact our Dallas medical malpractice lawyers today to schedule your free initial consultation. Polewski & Associates serves clients in Dallas, Desoto, Duncanville, Midlothian, and Waxahachie, Texas.

Documenting Events after a Car Accident

2010-02-20T12:20:00.000-08:00

If you have been injured in a car accident, it is important to properly document the events immediately while the details are still fresh in your mind and the evidence is intact. Proper documentation of your accident will substantially help your chances of recovering damages in a car accident lawsuit.

You should call the police immediately. If the other driver caused the collision, you will want an accurate police report indicating that the other driver was at fault. While you can fill out a police report a day or two after the incident, it will most likely be less accurate. Your recollection of the events will be much stronger moments following the crash, and if the police officer fills out his report at the accident scene, he can evaluate the evidence to get a much clearer understanding of who was at fault.

You should also record the contact information of any eye witnesses and have your car accident attorney interview them as soon as possible. The longer you wait to record statements from witnesses, the greater the likelihood they will forget the details of the accident.

You will also want to personally document all evidence before leaving the scene of the accident. You should take photos of the damage to both your car and the other driver's vehicle. If you do not have a camera with you, a cell phone camera will be sufficient. It is also a good idea to jot down your recollections of the events on a piece of paper so that you can remember the details at a later date.

Even if you do not think you are seriously injured, it is a good idea to visit your doctor as soon as possible. Sometimes the symptoms of auto accident injuries may take several days to appear. In order to prove that your injuries were a result of the accident and not a later incident, you will want to have them documented immediately.

Finally, you should consult an experienced car accident attorney as soon as possible. Your lawyer can advise you before you give any statements to law enforcement officers or insurance agents, and he can negotiate with the insurance company on your behalf.

The Dallas car accident lawyers at Polewski & Associates have decades of experience helping accident victims receive the compensation they deserve. We can make sure your rights are protected so that your medical bills and property damage do not become an overwhelming burden to you and your family.

Please contact our Dallas car accident lawyers today to schedule your free initial consultation. Polewski & Associates serve clients in Dallas, Desoto, Duncanville, Midlothian, and Waxahachie, Texas.

When Business Partnerships Go Bad

2010-02-11T10:06:00.000-08:00

Rule number one of Texas business partnership law is that business partners are equal partners in all aspects of their business. That is a simple statement, and a fairly easy concept, but many people are surprised when they see the concept applied in a business breakup, when emotions and vastly differing ideas of what is fair are the rule, not the exception. Business disputes, particularly between partners, can be very emotional and ugly.

Any lawyer who handles business disputes between partners can tell you that there is little difference between the reactions of business partners and those of angry spouses when the relationship breaks up. One spouse, or one partner, typically will sputter about "it not being fair" and how he or she "built the business by working my tail off while she spent her time at the country club".

Another similarity between business disputes involving partners and divorce litigation is how betrayed a partner can feel when he finds the other partner "cheating" on him.
From a purely business standpoint, unless you and your business partner agree otherwise in a valid written contract, the law says that you share responsibilities and assets equally. It doesn’t matter if you keep separate accounts at different banks. It doesn't matter if one partner works and one doesn't, or if one makes more money than the other. The law is not going to penalize either for "not pulling his weight", not working hard enough, not making enough money, or spending too much time watching football and not enough time helping with the chores, or marketing.

One of the functions of a business dispute lawyer is to guide you through the process of dissolving your businesses partnership with a clear head, and keep you focused on what can and cannot be accomplished. Lawyers almost certainly cannot get you back together. We cannot make you forget that your partner cheated you. Business dispute lawyers can, however, help you focus on the future and on minimizing the damage which business disputes and the breakup of a business partnership can cause. It is always better to know your legal options early rather than after a breakup has happened. For example, if you think that your partner is cheating you, you should get legal advice before confronting your partner.

For example, is it better for the stronger of two partners to spend his time fighting over what is left of the dead business, or to concentrate his time and money on a new business? The answer is that it is always better to move on as quickly as possible, and that the stronger partner is always well advised to accept a small loss now in exchange for the future gain to be had when no longer tied to or distracted by the failed business relationship. Put simply: the partnership is over, and the question really is not "what should you have done?", but rather "what should you do now?"

Business lawyers, like divorce lawyers, serve their clients very poorly if they do not force them to focus on the future, rather than on the past. Yes, you can go after the money your partner stole from you, and you should. But you should be pragmatic about it, too: the business relationship is over and cannot be saved. The issues therefore are about money, and should be addressed with the same cold-blooded objectivity as any other business issue. Have your lawyer focus on the business dispute with your partner, and you worry about your future business.

Causes of Traumatic Brain Injuries

2010-02-10T12:18:00.000-08:00

Your brain is a very delicate organ possessing the consistency of gelatin. The cerebrospinal fluid inside your skull provides your brain protection from ordinary bumps or jolts you may experience on a daily basis. However, a heavy blow to your head may cause your brain to hit the inner wall of your skull, resulting in bleeding and the tearing of nerve fibers.

According to the National Institutes of Health, auto accidents are responsible for approximately 50% of all traumatic brain injuries resulting from a violent blow to the head. Roughly 20% of these blows are caused by acts of violence.

The leading cause of traumatic brain injury in children is being shaken violently. For elderly people, slips and falls are the most common cause of brain injury.

Other causes of traumatic brain injury include:

Bullet wounds
A sharp object piercing the skull
Exposure to toxic chemicals
Lack of oxygen to the brain
Infection
Stroke

If your traumatic brain injury was caused by the negligence of another, the Dallas brain injury lawyers at Polewski & Associates can help you receive compensation for your damages. Often, these injuries will result in ongoing medical expenses and the need for lifelong care. Our lawyers will work to hold the responsible party accountable for your injury so that you can receive the assistance you need.

Please contact our Dallas brain injury lawyers today to schedule your free initial consultation. We serve clients in Dallas, Desoto, Duncanville, Midlothian, and Waxahachie, Texas.

Potential Causes of Birth Injuries

2010-01-26T11:34:00.000-08:00

The majority of birth injuries are caused by medical errors occurring before, during, or after delivery of the baby. The most common cause of birth injuries is a lack of oxygen and/or blood flow to the baby. Often, this is preventable if the medical staff takes the appropriate precautions or responds properly to complications during delivery.

Other potential causes of birth injuries include:

Failure to respond to fetal distress
Delay in ordering a cesarean section
Failure to diagnose gestational diabetes
Failure to respond to bleeding
Failure to anticipate complications of a larger baby
Improper monitoring of the baby's vitals
Medication errors
Anesthesia errors
Failure to perform genetic testing for Down syndrome, Spina Bifida, Huntington's disease, Tay-Sachs disease, and Fragile X

In order to ensure success in your birth injury claim, you will need to prove that the medical professional acted negligently. To prove negligence, you will need expert testimony from medical professionals.

The Dallas medical malpractice lawyers at Polewski & Associates can help you receive the compensation you deserve if your child has suffered a birth injury due to medical malpractice. We have a licensed doctor on our litigation team who can evaluate medical records to spot malpractice. Our extensive medical knowledge gives you the best chance of success in your claim.

A birth injury doesn't just affect your child, it affects your entire family. It is important to have a lawyer on your side who can help you receive the compensation your child needs.

Please contact our Dallas birth injury lawyers today to schedule your free initial consultation. Polewski & Associates fights for the rights of injured victims in Dallas, Desoto, Duncanville, Midlothian, and Waxahachie, Texas.

Car Accidents and Slow-to-Respond Insurance Companies

2010-01-22T11:30:00.000-08:00

When you are injured in a car accident, you hope that your insurance company will come to your aid and respond to your claim promptly. After all, when faced with mounting medical bills and property damage to your vehicle, it is easy to get financially buried rather quickly.

Unfortunately, most insurance companies are in the business of making money, not paying money. Therefore, they often delay responding to your claim as long as possible in order to put off paying your settlement. In these situations, pursuing your car accident insurance claim may seem like a full-time job. When you are trying to recover compensation from the other driver's insurance company, this fight can be even more difficult.

In these situations, it is best not to pursue your insurance claim alone. Even if you finally get a response out of the insurance company, they will most likely not offer you a fair settlement that compensates you for the full value of your damages. Your best chance of receiving maximum compensation in the shortest time frame is to hire an experienced car accident attorney.

The Dallas car accident lawyers at Polewski & Associates have been helping injured accident victims recover the compensation they deserve for more than 25 years. Our lawyers are board certified personal injury trial lawyers, a distinction held by only 3% of Texas attorneys. We can exert pressure on the insurance company to take action quickly, and if necessary, we have the skills to secure your compensation through litigation.

Please contact our Dallas car accident lawyers today to schedule your free initial consultation. Polewski & Associates serves clients in Dallas, Desoto, Duncanville, Midlothian, and Waxahachie, Texas.

Trucking Companies' Contribution to Unsafe/Fatigued Drivers

2009-12-30T13:07:00.000-08:00

Serving Dallas, Texas and Surrounding Areas

Like many other types of company, trucking companies are feeling the strain of the downward turn in the economy. But trucking companies are governed by federal and state regulations to insure that their drivers do not cause truck accidents. By allowing their drivers to exceed the legal limits on driving time, the trucking company can cause unnecessary danger and injury to those involved in truck accidents.

Trucking companies typically do not order their employees to perform dangerously, but they can indirectly contribute to truck accidents in several ways, such as:

Placing pressure on drivers with unreasonably tight deadlines
Requiring drivers to operate for the maximum 11 hours allowed by federal law, regardless of fatigue level
Offering incentive pay for meeting or beating deadlines
Hiring inexperienced or unqualified drivers to work for low pay
Overfilling or overloading their trucks

While a driver is ultimately responsible for his or her own actions, pressure placed while a driver is already fatigued may make the company legally responsible for a truck accident. Determining the fault of a trucking company requires the help of an experienced truck accident attorney.

If you or someone you know has been the victim of a truck accident, please contact Polewski & Associates today for a free consultation. We serve Dallas and the surrounding areas of Texas.

Passenger Rights in Auto Accidents

2009-12-22T13:05:00.000-08:00

Serving Dallas, Texas and Surrounding Areas

In 2008, Texas had more passenger car occupant deaths than any other state except California. Regarding fatal crashes in Texas, the Department of Transportation reported that:

56% were not wearing their restraint at the time of the crash
54.1% occurred in rural areas
28.1% involved a driver being under the influence of alcohol
The overall number of accidents increased from 2007

In any auto accident where a passenger is injured or killed, passengers usually have the same rights as the driver. An exception is when the driver is shown to have been at fault. Then the passenger or passenger's family may be entitled to damages from the driver. Even in an instance where the passenger was not wearing a seat belt, negligence on the driver's part may still hold him or her liable for injury or death to the passenger.

Placing yourself or a loved one in a car as a passenger does not mean you forfeit your rights in a fatal auto accident. The fact that you were not operating the vehicle at the time may relieve you from any fault in the accident, but does not negate your rights as an occupant of the vehicle.

If you or someone you know has been injured as a passenger in an auto accident, please contact Polewski & Associates today and let us help you recover. Our law firm serves Dallas and surrounding areas of Texas.

Establishing Fault in a Semi Truck/Car Accident

2009-11-17T08:36:00.000-08:00

Serving Dallas, Texas and Surrounding Areas

Fault in the legal sense is defined as an individual or organization refusing to perform an action they are legally obligated to perform. This can include the failure to respond appropriately in a dangerous driving situation, which can result in injury or loss of life. Establishing fault in a truck accident case is an important step in determining if a plaintiff will be awarded damages.

Fault may lie with more than one individual or entity. An example might be if dangerous roads contributed to the accident and the semi truck driver disregarded the danger. In this case, both the government body responsible for the road and the trucker can be held liable. If the situation were further compounded by the semi-truck being in disrepair, even the trucking company could be held partly responsible, establishing fault in three entities.

Truck driver fatigue is known to be a leading cause of truck accidents, causing more injuries and deaths than truck driver cell phone use. The trucking company may be culpable if a driver has been forced to continue operating a semi after requesting a break due to fatigue.

If you or someone you know has been hurt in a semi-truck accident in Dallas or the surrounding area of Texas, please contact Polewski & Associates today. It is important to begin building your case as soon as possible and we will be happy to give you a free consultation and case evaluation.

Frequency of Semi Truck/Car Accidents

2009-11-13T08:35:00.000-08:00

According to the Fatality Analysis Reporting System (FARS), more than 3,500 people were killed in 2008 when their automobile was involved in an accident with a large truck. That is almost 10 people a day. This number does not include the operators and passengers of those trucks, which numbered an additional 677.

Non-fatal truck accidents are even more frequent, but can be just as serious as those which do end in death. One of the leading causes of truck accidents is truck driver fatigue, but there are also cell phone use, distracted driving, and other causes of truck accidents.

Truck accidents happen every day and are especially prone to causing a higher rate of fatalities and injuries. The personal injury attorneys at Polewski & Associates can help if you have been involved in a truck accident. Truck drivers are required to drive with increased caution when operating a large, heavy vehicle, and if you or your property was harmed by a truck driver's negligence, you deserve compensation.

If you or someone you know has been injured in a truck accident, please contact Polewski & Associates today for a free case evaluation. Our law office serves Dallas, Texas and surrounding areas, and we are ready to fight for the justice you deserve.

Fatigue and Truck Accidents

2009-10-23T08:03:00.000-07:00

Did you know that driver fatigue is one of the leading causes of truck accidents in the U.S.? The National Transportation Safety Board (NTSB) and Federal Motor Carrier Safety Administration (FMCSA) know this, and have published recommendations on how to potentially mitigate the annual number of truck accidents caused by truck driver fatigue.

Truck drivers are subject to laws that prohibit them from operating a commercial transport vehicle for more than 11 hours at a time. But federal law cannot require that drivers sleep during their legally-required 10-hour break between shifts. As a result, a driver may continue loading or unloading the truck, or may even spend that time operating another vehicle. Some drivers have commented that their company requires them to continue driving for the full time allowed by the government, even if the driver is fatigued.

If you or someone you know has been the victim of a trucking accident caused by driver fatigue, you should contact Polewski & Associates immediately to learn more about your rights and those of your loved ones. The sooner we learn about your situation, the sooner we can evaluate it and begin gathering more data.

If you have been in a truck accident in the area of Dallas, Texas, please contact Polewski & Associates to learn more about how you can protect your rights and obtain the financial restitution you deserve.

When Car Accidents Are Fatal

2009-10-15T08:00:00.000-07:00

Serving Dallas, Texas and Surrounding Areas

Most of us know what to do if we are in a car accident where nobody is injured: contact the police and our insurance company. But in an accident where you or your passenger is injured, or worse, killed, do you know how to respond?

When an individual is killed in a fatal car accident, loved ones are often at a loss to know what actions to take. Sometimes a person delays seeking legal help, worrying in case their loved one was at fault. Other times, bereaved family members trust the insurance company to treat them appropriately and compensate them for the costs of losing a loved one.

Do not be lulled into a false sense of security by an insurance company's promises. At Polewski & Associates we know that dealing with the pain of losing a loved one can be overwhelming. That is why we work to protect your rights before they may seem like a priority to you. If you have lost a loved one in an auto accident, contact a wrongful death attorney immediately to insure that at a later date you are not mistreated by your insurance company or another motorist's attorneys.

Please contact Polewski & Associates today for a free consultation if you have lost a loved one to a fatal auto accident in Dallas or the surrounding areas of Texas.

Was the Accident Caused by a Defect in my Vehicle?

2009-09-29T09:38:00.002-07:00

That is a question you may not be able to answer until some investigation is done. If your vehicle is defective, you would not necessarily know because there are many ways in which a vehicle can have hidden defects. They can cause a car accident suddenly as you are on your way to work or an outing, and that can totally disrupt your life and put you in the hospital for a while.

Defective vehicles can make an ordinary accident more serious. There can be design or manufacturing defects, or there may be faulty components in your car.

Some examples of common vehicle defects

Defective steering, brake, and fuel systems
Defective roofs that crush in a rollover
Inadequate door latches that let a door fly open when there is an impact to your vehicle
Bad tires that can blow at the worst moment
Airbags that do not deploy and seatbelts that come undone on impact or get stuck and trap a driver or passenger
Poor quality car seats that do not keep a child safe during an impact

If your car accident was indeed caused by a defect found in your vehicle, that does not necessarily make you responsible for the accident. The car manufacturer may be the culprit, or the vehicle designer, or the company that supplied any defective components. An experienced car accident attorney can advise you in such a situation and let you know of your legal rights and options.

If you or a loved one has been seriously injured in an auto accident caused by any vehicle defect, Polewski & Associates in Dallas, Texas can help. Please call or email our personal injury law firm today and we will be happy to give you a free case review.

Was the Accident Caused by a Defect in my Vehicle?

2009-09-29T09:38:00.001-07:00

Defective steering, brake, and fuel systems
Defective roofs that crush in a rollover
Inadequate door latches that let a door fly open when there is an impact to your vehicle
Bad tires that can blow at the worst moment
Airbags that do not deploy and seatbelts that come undone on impact or get stuck and trap a driver or passenger
Poor quality car seats that do not keep a child safe during an impact

What to do After a Semi-Truck/Car Accident

2009-09-16T09:35:00.000-07:00

When a semi-truck collides with a passenger car, the occupants of the car will usually sustain worse injuries than the truck driver. In many such accidents, the trucker is not hurt at all because of the height of his cabin and the enormous weight and momentum of his big rig.

If you are severely hurt in a truck accident, remaining still and accepting medical care is your first priority. However, if your injuries are relatively minor and you can move around the accident scene, there are many things you can and should do, if possible.

Reduce Immediate Danger
When a big rig hits a car, the car will often be pushed beneath the truck, trapping the car occupants. There is likely nothing you can do to help them without possibly increasing their injuries. However, take a quick look around the scene and if you can help reduce ongoing danger, go ahead. Perhaps you can move someone's car out of the path of oncoming traffic. Maybe you could get a car door open for a trapped person, or a seatbelt unbuckled; or you could remove debris from the roadway.

Call 9-1-1 while you look around. They will call the police for you and medical help. Be sure to give clear directions to the accident scene, or at least a clear description of the location. If someone is lying on the road injured, see if you can cover them with a blanket without moving them at all, and stay with them to give emotional support.

Collect Information
When the police arrive, obey their instructions and answer all their questions. You should ask them to send you a copy of their report when it is finished. Also ask for the name of at least one officer, and his or her badge number.

Ideally, you carry pen and paper and a disposable camera in your vehicle. Perhaps your cell phone has a camera. Now is the time to use them.

Make notes as to what happened. You will likely forget some things later, so be detailed in your notes. They may be enormously helpful later on if an insurance company questions your injuries or vehicle damage. The notes don't have to be full sentences, just jottings to remind you how to fill them out later on. Note the truck's plate number and company and try to get the driver's name.
Take photos of all involved vehicles, both close-up for the damage details, and more distant for their relative positions.
Take photos to document the weather and lighting conditions and any road conditions that may have contributed to the accident, such as hidden signage, ice, potholes etc.

As soon as you can, later in the day or the next day, fill out your notes to make them readable by another person. Please see our page on Things You Need to Know for more on what to do at an accident scene and our page on Truck Accidents for more on how an accident attorney can help in this situation.

Contact a Car Accident Attorney
Regardless of who or what you think caused the accident, contact a car or truck accident attorney and schedule a free case review. An experienced car accident attorney like John Polewski or Andrew Gross can look at your situation objectively, ask the right questions, and advise you of your legal rights and options.

What Should You Look for in an Auto Accident Attorney?

2009-08-26T08:41:00.000-07:00

Though automobile accidents are incredibly common, this does not mean that automobile accidents are simple matters, or that the legal issues can be handled by any attorney. Attorneys have to be well-versed in the laws specific to automobile accidents, including the type of accident, the kinds of vehicles involved, whether the accident was alcohol-related, while also knowing the laws specific to the place the accident occurred. So why call an attorney, and what exactly should you look for in finding an automobile accident attorney in Texas?

There are a number of unique factors that Texas accident and personal injury attorneys have to familiar with. The first is comparative versus contributory negligence. This is perhaps the most important legal aspect of automobile accident claims, particularly Texas' 51% bar rule and its application to the Texas standard of proportional comparative negligence. The attorneys at Polewski & Associates are well-versed in the legal nuances of these Texas standards.

Another tricky of aspect of Texas law as it applies to automobile accidents is the varying length of the statute of limitations. Many people assume statutes of limitations are uniform or longer than they actually are. Finding attorneys familiar with the varying statutes of limitations is very important in dealing with automobile accidents.

So how can you know if your attorney is not just familiar with these aspects of Texas law, but expertly trained to argue in your favor? There are a few ways of telling the average attorney from the experienced expert. The first is whether or not the attorney is board certified to specialize in personal injury cases. Only 3% of Texas attorneys are board certified to handle personal injury cases, and you can be sure that your attorney at Polewski & Associates will be board certified.

Another thing you should look for is positive peer review. The Martindale-Hubbell Peer Review Process provides a way for other attorneys, judges, and those within the field of law to review their peers and provide information about a lawyer's performance and ethical standards. Your attorney at Polewski & Associates will have very high ratings according to the Martindale-Hubbell Peer Review.

Finally, your attorney should be not only be experienced, but have experienced success. Polewski & Associates has 25 years of experience in personal injury cases, and in those 25 years has won multiple verdicts of over one million dollars, allowing access to the exclusive Million Dollar Advocates Forum. Polewski & Associates has won hundreds of cases and secured millions of dollars for its clients, and can put that success to work for you.

If you or a loved one has been involved in an auto accident, and you are looking for the best personal injury attorneys in Texas, please set up a consultation by contacting the auto accident attorneys at Polewski & Associates.

What Do I Do If I'm in an Auto Accident?

2009-08-11T08:39:00.000-07:00

While automobile accidents are frighteningly common, most drivers either don't know what to do if they're involved in an accident, or are so rattled by the experience that they forget what they should do. While this is understandable, it can also have extremely negative consequences for the driver down the line.

So what should you do following an automobile accident? Of primary concern is your health and well-being. Make sure to call the proper medical authorities and get proper medical treatment promptly, insuring that your injuries are examined and recorded by professionals for future claims. You could have serious back, neck, or head injuries, even though you don't necessarily feel seriously hurt. Also contact the police. They are there to insure your safety, but also are important in getting a record of the details of the accident. Make sure that the police get a record of your version of the events, and, if possible, take pictures of the accident scene. You may also want to make sure any witnesses available give a statement.

Almost immediately after the accident, you should be in contact with a skilled and experienced personal injury and accident attorney. While not always pleasant to think about, at this point you have several "adversaries," including the other driver and the insurance companies. The other driver will want to prove his own lack of negligence in the accident, and the insurance companies use strategies to avoid paying after an accident. What if the driver is uninsured? How is negligence determined? How are damages determined and what is the standard for paying dependent on amount of negligence? These are difficult questions for the average driver.

Having an experienced attorney on your side at this stage of the accident process can mean the difference between getting what you deserve and having to pay damages undeservedly. It's in your best interest to find the most qualified attorneys available, attorneys who are board certified, who have extensive experience, and who have gone to battle in big cases and won large settlements. Those attorneys are Polewski & Associates. If you have been in an auto accident, please contact Polewski & Associates for a consultation.

Passenger Injury in an Auto Accident

2009-07-28T08:56:00.000-07:00

When people think about filing claims and collecting damages after an automobile accident, they usually just think about the drivers of the vehicles. But what about passengers and their rights? Passengers in automobile accidents can often suffer severe head, neck, and back injuries. What many people don't realize is that a passenger involved in an automobile accident can file claims against the driver of the car they were in, or the driver of the other vehicle involved in the accident.

Rarely are passengers found negligent in an automobile accident, so when negligence is determined by insurance companies, the passenger has the ability to file a claim for damages against the negligent party. A passenger injured in an accident can file a claim and collect damages for personal injury, damages for medical bills, lost wages, pain and suffering, or damaged or lost property.

Because a passenger's claims may be independent of, or even against the driver of the vehicle they were in (often a close acquaintance), it's important that the passenger secure an independent lawyer to argue for their specific claims.

If you or a loved one has been injured in a car accident in Texas or while on vacation, either as a driver or passenger, please schedule a consultation with the Dallas, Texas accident attorneys at Polewski & Associates.

Different Types of Automobile Collisions

2009-07-10T08:53:00.000-07:00

There are many different types of car crashes, and knowing the differences between the various types and the way in which negligence is determined in each is crucial in a court of law, since negligence ultimately determines how claims and damages are awarded. Here are a few of the different types of automobile collisions:

Rear End Collisions - the most common of all types of collisions, rear end collisions are often the fault of the trailing driver, either through following closely or a lack of attention paid to the road, invoking in Texas what is known as the "proper lookout" standard. These collisions can also result in severe head, neck, or back injuries.
Intersection Collisions - as its name implies, these collisions happen at intersections: two-, three-, or four-way stops, driveways, etc. These accidents usually involve one car on a "favored" road and one on an "inferior" road. In most cases, the car on the favored road has the right-of-way, and if involved in an accident, is not at fault. But, on occasion the car on the inferior road may actually have the right-of-way. A skilled lawyer with experience handling automobile accident cases will be well-versed in determining exactly who was negligent in an accident.
Lane Change Collisions - occurring when a car changes lanes or moves into the adjacent space already occupied by a vehicle, lane change collisions are common and very dangerous. Though it would seem, since the cars were traveling in the same speed and same direction that the results would be minor, these crashes often involve one car swerving to avoid another, leading to even more potential danger.
Left Turn Collisons - while sometimes falling under rear end and intersection collisions, left turn collisions are so dangerous because the turning car has to cross the path of traffic, creating the potential for a front to side collision. Left turns are so dangerous that if a car is involved in a collision while making a left turn, it is up to them to disprove their negligence, which is automatically assumed.
Road Condition Collisons - some collisions are not necessarily the fault of one driver or another, but are a result of poor or defective road conditions, such as faulty or missing traffic signals or a roadway that falls below required safety standards. These types of cases can often be complex because who is responsible for the accident-causing condition may not be entirely clear, or the condition may include a number of contributing factors.

Each of these types of collisions presents its own unique set of challenges when
filing claims and attempting to determine negligence. An experienced attorney with significant knowledge about the various types of collisions, like those at Polewski & Associates, can insure that your case is handled in the best manner possible. If you or a loved one has been in automobile collision, contact Polewski & Associates for an accident lawsuit consultation.

Determining Fault in Auto Accidents

2009-06-26T13:50:00.000-07:00

As the temperatures rise and vacations loom, more people get in their cars and hit the Dallas highways, often bound for other states. This increased traffic leads to increased automobile accidents and injuries. Most people assume that laws regarding fault for automobile accidents are uniform across the country, but this is not the case. Depending on the state where the accident occurs, there are multiple ways of determining fault. Determination of fault is a critical aspect of automobile accidents, since who is at fault, and how much, has a direct effect on how damages are determined and who can claim what, and an experienced personal injury and accident lawyer is crucial

A handful of states (Alabama, District of Columbia, Maryland, North Carolina and Virginia) still adhere to what is known as "pure contributory negligence." What this means is that if you are at fault (negligent) in any way during an auto accident, even if the other party was much more at fault, you wouldn't be able to recover damages from that person, since your negligence contributed to the accident.

Most states have one of three more tempered versions of contributory negligence. Alaska, Arizona, California, Florida, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, South Dakota and Washington follow what is called, "pure comparative negligence" or "pure comparative fault." This means that the degree to which you were negligent or at fault for the accident is subtracted from the amount of damages you can claim. If you were 90% at fault for an accident, and claim $10,000 in damages due to injury, the most you could receive would be $1,000, or 10% of $10,000.

Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming use a different method of determining fault and awarding damages through what is called, "proportional comparative negligence" or "proportional comparative fault" under the 51% bar rule. This standard dictates that if you were involved in an auto accident and were 51% or more negligent or at fault, then you are unable to claim any damages, regardless of the extent of your claims.

Finally, Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, Nebraska, North Dakota, Oklahoma, Tennessee, Utah and West Virginia follow a similar but slightly different form of "proportional comparative negligence," this time with a 50% bar rule. This rule states that if you are involved in an accident and are less than 50% negligent, you are entitled to compensation. Once again, the amount you can claim will be reduced by the percentage of your negligence. This rule also allows for two parties to be equally negligent in an accident, resulting in neither party able to claim damages.

Since Texas is a 51% bar rule state, the insurance adjuster's determination of fault is crucial in deciding whether or not accident victims will be able to claim damages. Most drivers don't have the skills, experience, or time to properly negotiate with an insurance company in order to best represent their interests when determining negligence or fault in an accident. On top of that, the insurance company employs a number of strategies or tricks to avoid paying out large sums of money. Finding an experienced, quality personal injury and accident attorney in Texas is key to insuring you receive the compensation you deserve.

If you or a loved one has been injured in a car accident in Texas or while on vacation, contact Polewski & Associates to schedule an accident lawsuit consultation.

Automobile Accidents and Under- or Uninsured Drivers

2009-06-12T13:48:00.000-07:00

Automobile accidents can be a big enough headache as it is, but combine an accident with an under- or uninsured driver, and things can seem to get quickly out of control. While it's Texas law that all drivers must have valid insurance, that doesn't mean that all drivers actually have that insurance. And even then, the minimum required liability coverage is only $25,000, which can be a tiny amount when repair and medical bills begin piling up and you are unable to work due to head, neck, back or other injuries from an accident. So what should you do if you're involved in an automobile accident with someone with not enough insurance or no insurance at all?

Actually, there is something that Texas drivers can do before ever finding themselves in this situation, which is take advantage of Texas' Uninsured/Underinsured Motorists Coverage (UM). By law, Texas automobile insurers have to offer this coverage, and it protects you from this very situation. Most drivers are unaware that they even have this coverage, and are uninformed about how it works or how to get the benefits from it. This is where an experienced and knowledgeable attorney like those at Polewski & Associates can help you navigate these confusing waters.

Unfortunately, those with too little or no insurance are often unable to pay for the damage they cause in accidents, so once the accident occurs, the fully insured party is left with very little recourse. That is why understanding UM coverage and its relation to the law is so important. If you have questions about UM coverage or have been in an accident with someone under- or uninsured, please contact Polewski & Associates for an uninsured motorist lawsuit consultation.

Auto Accidents in Texas

2009-05-25T12:03:00.000-07:00

In 2007 alone, 3,363 people died in automobile accidents in Texas, the second most of any state in the United States. The number of non-fatality accidents, resulting in injuries of all kinds, including head, neck and back, dwarfs this number. At some point, you will be in a car accident. And when you are, it’s critical that you are aware of the unique aspects of Texas law regarding automobile accidents.

Two important Texas legal standards applicable to automobile accidents are “foreseeability” and “proper lookout”. The first states if a driver “foresee[s] that his conduct will involve unreasonable risk of harm to other drivers or to pedestrians,” has a “duty” to act in a reasonable manner to avoid that risk. The “proper lookout” standard essentially says that it is the driver’s duty to pay a sufficient amount of attention and care to the various factors which affect his or her vehicle. Failure to maintain “proper lookout,” resulting in an accident, means that the driver could be found at fault, or “negligent”.

After an accident, insurance companies get involved in order to determine whose fault the accident was. This process is pivotal, since the determination of fault or negligence will ultimately determine how damages are rewarded. Texas has a proportional comparative negligence law that follows the 51% bar rule. This means that if someone is found to be 51% negligent in an accident, they are barred from seeking any damages. Thus, the insurance company’s determination of fault could mean the difference between compensation for your injuries and receiving nothing. Whether the other driver is uninsured or underinsured also has to be taken into account.

Another important factor is statute of limitations. In Texas, there is a two year statute of limitations for filing a claim involving personal injury, damages for medical bills, lost wages, and/or pain and suffering. There is a four year statute of limitations for any claim involving property. Failing to file a claim within these time frames means there is no chance at compensation.

The unique laws of the state of Texas regarding automobile accidents can make it difficult for those involved to determine their rights. That’s where the experienced attorneys of Polewski & Associates can help. Schedule an auto accident consultation to get our knowledge and experience in Texas law working for you.

Auto Accidents Caused by Drunk Drivers

2009-05-21T12:01:00.000-07:00

In 2007, 1,292 people died in alcohol-related automobile accidents in Texas, the highest number in the nation. One third of all drunk-driving fatalities in Texas involve a driver previously found guilty of drunk driving. These staggering numbers reveal the dangers of Texas roadways, and the importance of knowing your rights and options if you are involved in an accident with a drunk driver.

Why is a trained and experienced lawyer crucial to punishing drunk drivers involved in auto accidents? Given Texas state law and its 51% bar rule for proportional comparative negligence, it’s important to be able to prove a driver’s level of drunkenness in order to file a claim against them. These claims may result in monetary damages, but that is not the only purpose of going after drunk drivers. Going after drunk drivers has the added benefits of punishing someone for irresponsible and dangerous actions, acts as a deterrent for future possible drunk driving, and emphasizes the guilt of drunk drivers. While monetary damages may not heal the injuries of an accident or remove the emotional and mental pain, they can give you a sense of justice that may be the first step in you moving on with your life, all while taking a step to eradicate drunk driving. Polewski & Associates believes that going after drunk drivers is a way to make our Texas roads safer for all Texas drivers.

If you or a loved one has been hurt by a drunk driver in the state of Texas or while in another state, schedule a consultation with the Dallas, Texas accident attorneys at Polewski & Associates. We can help you get the justice you deserve.

The Court Secrecy Debate

2009-04-29T14:37:00.001-07:00

Our courts historically are open to the public, not only in terms of giving every citizen access to the courts to solve disputes, but also in terms of giving all citizens access to what is going on in suits involving others. On any given day in Dallas county, there will be ten or more civil trials underway. Anyone who wants to can go into the courtroom, have a seat, and listen all they want. Every courtroom has a "gallery" area for people to do just that. Likewise, court records are open to the public. Want to find out if someone has been sued before, or divorced, or convicted of a crime? Those records are available to everyone.

Want to look at the court's file and see exactly what happened? That's a little different. There is a small percentage of suits that the public should know about but never will, and a greater number of suits where the court's records are purged of important information.

The two most common examples involve settlements and evidence. In a suit against a professional (doctor, lawyer, accountant, etc) where the defendant's reputation is important, it is the rule, rather than the exception, for settlements to be reached secretly, and the case to be dismissed, rather than any record being kept of what happened. Has your doctor paid settlements in 20 malpractice suits? There would be no way for you to know - county records will reveal only that he was sued and the case against him "dismissed." This makes it look like the cases were no good, when just the opposite may be true.

A common example involving evidence occurs when a product manufacturer is sued. Its attorneys will fight tooth and nail to prevent the disclosure of "smoking gun" evidence that proves that the manufacturer knew its product was dangerous and sold it anyway. In a lawsuit where the truth finally comes out, the manufacturer always seeks a "protective order" or a "confidentiality order" to prevent these documents from becoming public record. In this way, the documents are not available to others who are considering suing the company - and the company can fight against producing the "smoking gun" in the next suit.

Yes, this costs a lot of money: but it also costs plaintiffs a lot of money to fight for these kind of documents, and manufacturers know that usually neither plaintiffs nor their lawyers can afford the fight. If you can't get the documents, you can't make the case, and you lose. For similar reasons, defendants such as manufacturers and doctors often insist that any settlement reached be "confidential" - that is, that nobody but the parties knows about it - and sometimes insist that the plaintiff's lawyer agree to never handle a similar claim against the company again.

Defendants want these agreements so that the public is unaware of the amount and number of settlements involving them, and so any lawyer who sues them in the future will not have the benefit of the work that the first lawyer did. If the settlement were not a secret, and the documents were of public record, then the next lawyer who was suing the company would have a big head start, and the chances of the defendant making the suit too expensive to prosecute would be much less.

Of course, it would be impossible to argue that such agreements are good for public safety. The opposite is true. But they are good for business, and they may be good for the plaintiff in the particular lawsuit - who gets paid extra to keep his mouth shut and order his lawyer to do likewise.

Stopping "Frivolous" Lawsuits

2009-04-29T14:33:00.000-07:00

Stopping "Frivolous" Lawsuits
Anybody can sue anyone for anything - and get money for doing it. That is the impression some people have and all insurance lobbyists and the politicians who take their money keep talking about. And its true...partially.

The true part is that as American citizens we all have unrestricted access to the courts to seek justice for wrongs done to us, large and small, by anyone - regardless of how rich and well connected they might be. There is no group of people acting as gatekeepers to determine who is worthy of filing suit, or whether a suit can be filed.

So much for the true part. In practice, there are a lot of things preventing frivolous lawsuits from getting very far. To begin with, any defendant in any suit can file a motion for summary judgment, which essentially asks the judge in the case to throw it out. There are two kinds of summary judgments: in the first kind, the defendant conclusively proves something that makes it impossible for the plaintiff to win. For example, a defendant accused of slandering someone can conclusively prove that the allegedly slanderous statement was true - which means that it can't be slander.

The second kind of summary judgment motion asks the judge to dismiss the plaintiff's case because he has no evidence to support his claims: for obvious reasons this is called a "no evidence" summary judgment. Either kind of summary judgment motion can be brought at any time after the parties have had a reasonable opportunity to investigate the case. The motion is decided by the judge alone, and the evidence at the hearing consists of affidavits and documents rather than live testimony.

A summary judgment motion typically takes only a few hours to prepare and less than that to argue. If the defendant wins, the case is over, no jury ever hears about the case, and the plaintiff must reimburse the defendant for some (but not all) of the costs associated with the case. This is not a new procedure dreamed up by tort reformers, by the way; summary judgments have been available to defendants for at least 50 years.

Both Texas and Federal law also have provisions that allow a trial judge to impose sanctions on either party for filing frivolous pleadings or motions. Not only that, but the attorneys representing the parties can receive stiff fines as well. These sanctions can and do range from a few hundred dollars and a humiliating tongue lashing to multi-million dollar fines. These provisions aren't new, either.

Of course, when the business lobby complains about "frivolous" claims being made in our courts, it isn't referring to the dishonest and groundless claims that many defendant businesses make, but only to claims made by injured persons against business. Speaking as a lawyer who has represented both plaintiffs and defendants in court for over fifteen years, I can promise you that that there is no shortage of dishonest, "frivolous" claims being made by defendants - and that there is no shortage of dishonest businessmen paying defense lawyers big money to advance those frivolous claims. Neither defense lawyers nor plaintiffs lawyers have any monopoly on either honorable or dishonorable tactics.

Contingent fee plaintiffs' lawyers, of course, get paid only if a jury agrees with them—or if a defendant settles the claim because of the fear that a jury will do so. The inside joke among plaintiffs' contingent fee lawyers is that there is one, ultimate sanction for taking and prosecuting frivolous cases. If the defendant won't settle, and either the judge or the jury sides with the defendant, a contingent fee attorney loses all the time and money he put into the case. The ultimate sanction for the plaintiff's attorney who takes frivolous cases? Bankruptcy.

That's why no plaintiff's lawyer I know files frivolous cases. Why would I risk my time and my money pursuing a case I know I can't win? The answer, of course, is that I wouldn't - and neither does anyone else. That's why there is not now, nor has there every been, a "crisis" of "frivolous cases" being filed.

Defensive Medicine

2009-03-24T14:12:00.001-07:00

As a lawyer who has been on both sides of medical malpractice suits for almost twenty years, it is interesting to hear people talk about the cost of "defensive medicine". You've heard about this: it is the argument that says that doctors order "many unnecessary tests" solely to be able to defend themselves in case they are sued.

Sued for what, you may ask? Well, sued for failing to diagnose a serious medical condition that the test would have revealed by available tests. For example, when a patient comes into an emergency room complaining of sharp pains in their lower abdomen, that complaint should (but sometimes doesn't) make the doctor there think about appendicitis. Doctors can order tests (sonograms and/or CT scans) which are often (but by no means always ) capable of diagnosing appendicitis when it is there. Lower abdominal pain can mean many things other than appendicitis.

Here's the question: If you or your child is the patient, is the sonogram or CT scan "necessary" or "unnecessary"? Remember, if your appendix bursts you will (not might, but will) get peritonitis and will almost certainly need major abdominal surgery which often includes removing part of your intestines. You might die. Like 99.9999% of normal humans, I bet you think that the sonogram is "necessary". Your doctor may think that your chances of having appendicitis aren't high enough to justify the cost of the CT scan or sonogram. Is it therefore "unnecessary"?

Similar issues come into play when discussing mammograms, prostate exams, chest x-rays, arteriograms, blood tests—in fact, all of the tests which science has devised to detect illness or injury and which separate American medicine now from what it was 150 years ago.

The people that talk about the cost of "defensive medicine" always give huge estimates of the purported cost of these "unnecessary" tests, but they never actually define which tests were unnecessary, and they certainly never say that any particular class of tests is unnecessary. Why? Because they can't. Their argument is simply that some unidentifiable number of times, some unidentified doctors ordered some unidentified tests that someone, somewhere, thinks were a waste of money. But nobody will ever say which tests were unnecessarily ordered, how often, or by which doctors—because the one thing that is certain is that these tests save lives.

In our example of the possible appendicitis case, we all can agree that if the doctor orders the test and the test shows appendicitis (or cancer, or a problem with the intestines) then the test was clearly "necessary". Is it equally obvious that the only "unnecessary" tests are those which don't show anything? Absolutely not. If a test shows only normal anatomy, that tells the doctor that your problem may be something else from what he thought it was, and he'll think about what that other problem might be. When he makes the right diagnosis because one of the tests he did proved his first impression was wrong, the test that proved the first impression wrong was hardly "unnecessary". Any test that gives your doctor information-positive or negative - with which to make a diagnosis is a test which has value.

The "defensive medicine" argument isn't about whether the tests which are done have any value, it is about whether they have enough value to justify their use as much as they are being used, or to put it another way, "At what point does the risk of not doing a test outweigh its cost?" If the sonogram in our example costs $200, but the risk of not doing it is that there is a 10% chance of the patient dying because of undiagnosed peritonitis, is the sonogram "necessary"? Most of us would say yes. If the cost is $2000, and the risk is that the patient will only be ill for a week and then get better, then many (but not all) of us would say "no".

Doctors rightly fear that if they make the call that a test is unnecessary, and things go badly wrong for the patient because of something the test could have diagnosed, they may get sued as a result. How you feel about that depends a lot on what level of risk you think you should be exposed to, who gets to make that decision when you are the patient, and whether you are a doctor. It also depends a great deal on who is paying for the test. If it is an insurance company, we are all a lot more willing to have a $500 test done than if we are paying for it ourselves.

So the answer to the question "how much 'defensive medicine' is being practiced?" depends, like so many other questions, on who you ask, who is taking the risk, and who is paying the cost.

What Happens When Partners Can't Stand Each Other Anymore?

2009-03-24T14:04:00.000-07:00

Rule number one of Texas business partnership law is that business partners are equal partners in all aspects of their business. That is a simple statement, and a fairly easy concept, but you would be surprised at how many people are surprised when they see the concept applied in a business breakup, when emotions and vastly differing ideas of what is "fair" are the rule, not the exception.

Any lawyer who handles business litigation between partners can tell you that there is little difference between the reactions of business partners and those of angry spouses when the relationship breaks up. One spouse, or one partner, typically will sputter about "it not being fair" and how he or she "built the business by working my tail off while she spent her time at the country club".

Maybe so, or maybe not. But unless you and your business partner agree otherwise in a valid written contract, the law says that you share responsibilities and assets equally. It doesn't matter if you keep separate accounts at different banks. It doesn't matter if one partner works and one doesn't, or if one makes more money than the other. The law is not going to penalize either for "not pulling his weight", not working hard enough, not making enough money, or spending too much time watching football and not enough time helping with the chores, or marketing.

The emotional component of business partners breaking up often has much in common with the breakup of a marriage - and in both cases emotions cloud people's perceptions of what is "fair" or allowable. In either case, one of the functions of a lawyer is to guide you through the process of dissolving the relationship with a clear head, and keep you focused on what can and cannot be accomplished. Lawyers almost certainly can't get you back together. We can't make you forget that your partner cheated you. We can, however, help you focus on the future and minimizing the damage which business and marriage breakups inevitably cause.

For example, is it better for the stronger of two partners to spend his time fighting over what's left of the dead business, or to concentrate his time and money on a new business? The answer is that it is always better to move on as quickly as possible, and that the stronger partner is always well advised to accept a small loss now in exchange for the future gain to be had when no longer tied to or distracted by the failed relationship. Put simply: the partnership is over, and the question really isn't "what should you have done?", but "rather what should you do now?"

Business lawyers, like divorce lawyers, serve their clients very poorly if they do not force them to focus on the future, rather than on the past. Yes, you can go after the money your partner stole from you, and you should. But you should be pragmatic about it, too: the relationship is over and cannot be saved. The issues therefore are about money, and should be addressed with the same cold-blooded objectivity as any other business issue. Have your lawyer focus on the dispute with your partner, and you worry about your future business.

Who Gets Paid When a Case Settles?

2009-02-23T10:09:00.000-08:00

As a trial lawyer who handles many types of suits, I see a lot of people with their hands out looking for a piece of any judgment or settlement which I obtain for my clients. Most people think that the plaintiff either gets to keep all of the money in a judgment, or that the plaintiff may have to pay a contingent fee to his lawyer, but otherwise gets to keep all the money.

That almost never happens. In the cases I handle, where the person is seriously injured, there are also serious medical bills to be paid. If a judgment is entered or a settlement is reached, usually the people who paid the medical bills caused by the conduct that led to the suit being filed are right there demanding to be paid back.

Private insurers, such as health insurers, often have contractual rights called "rights of subrogation" which state basically that if they pay damages caused by the negligence of somebody else, and you recover money from that person, you have to pay them back. Even where the insurance contract doesn't state this expressly, there is some law in Texas to indicate that private insurers may have this "subrogation right" anyway.

Hospitals are required by state and Federal law to accept and care for emergency patients if they wish to be part of the Medicaid and Medicare systems. It can happen, of course, that hospitals spend thousands or even tens of thousands of dollars caring for horribly injured patients who are uninsured and have no means to pay for their own care. Texas, like many other states, has a "hospital lien" statute, which provides that a hospital can take out a lien on any recovery made against the person who caused the care to be necessary - the other driver, a manufacturer of a bad product, etc. This lien must be paid out of any settlement or judgment, and it has to be paid first.

Likewise, if a plaintiff has had medical bills and lost wages paid by worker's compensation insurance, the worker's compensation insurer has a lien on any recovery the worker makes against a third party for the same injuries, and must be paid before any other claims are paid - including the plaintiff and his attorney. Finally, the Federal and state governments have a "superlien" on recoveries in civil suits to the extent that they have paid Medicare or Medicaid benefits. These liens last forever, there is no statute of limitations on them, they exist whether or not anyone knows they exist, and there are stiff civil and criminal penalties if they are not paid - and the penalties are imposed not only on the plaintiff, but also on his lawyer.

Of course, we can all agree that no plaintiff should get a "windfall" by being paid for medical bills which have already been paid. Unfortunately, the size and amount of these liens often result in a plaintiff actually recovering nothing, or a suit never being brought against someone clearly responsible. For example, I have several cases in my office now where there are liens by either the government or by hospitals which are well over $100,000. If the clearly negligent drivers in those cases (one of whom was drunk and the other jumped a median into oncoming traffic) have less than $150,000 in insurance, there will be no point in pursuing the cases, because after payment of the liens and the costs of litigation, my clients will end up with nothing. Some insurance carriers love this result—particularly the insurers of bad drivers with small insurance limits, who end up never having to pay a dime for the terrible injuries caused by their customers.

Often, an agreement can be reached with the holders of the liens to reduce their claims so that the case can go forward. Equally often, particularly in the case of some government liens, the lienholder either will not, or by statute cannot, reduce the size of their claims. I'm sure that this sort of thing sounds like a great idea when one Senator or another is complaining about "those evil trial lawyers", but when the result is that neither the injured, innocent plaintiff or the government gets their money back, and the drunk driver who caused all the pain and expense is never required to pay anything, it sure looks like bad public policy to me. The government loses tens of millions because of its insistence on getting all (or none) of its money back and its refusal to either reduce the size of its claim or pay any of the costs of asserting the claim.

I cannot advise a client to file a suit and pay all the costs of that suit with the certain knowledge that the government is going to take any money that we recover. And of course I am not willing to spend hundreds of hours of my time and thousands of dollars to get money for the government in exchange for nothing. The result? Taxpayers foot the bill, no suits are filed, and neither the guilty parties nor their insurers pay a dime.

Why Cases Go to Trial

2009-02-18T07:48:00.000-08:00

Nationally, over 90% of lawsuits settle before they go to trial. This is true in Texas as well. Usually money changes hands, but often not: sometimes cases settle for an apology, an agreement to change the terms of a contract, or even an agreement to enter into another contract which is lucrative to both sides.

So what about the other ten percent? What makes cases go to trial instead of settling? There are a lot of reasons for that, but they can be distilled into three general categories.

In the first category are the cases in which one side or the other is being unreasonable and unrealistic. For example, a plaintiff who wants a million dollars for a car crash in which he received only a broken leg is going to have to try his case, because no insurance company is going to pay that to settle his case. Equally often, an insurance carrier offers to pay almost nothing for serious injuries, hoping that the plaintiff or his lawyer will be too afraid to take the case to trial, or will lose the trial because of an error. Juries see cases with either frivolous, unreasonable claims by plaintiffs or equally frivolous, unreasonable defenses by defendants every day - and sometimes they see both a frivolous claim and a frivolous defense in the same trial.

Almost every case I have handled in 25 years of litigation has involved settlement discussions. With few exceptions, the lawyers for the parties had a good understanding of the "market value" of the case, that is, whether the plaintiff was likely to win, and if so, what a jury would be likely to award. Part of the lawyer's job is to advise the client on the settlement value of the case. Cases go to trial primarily because either my client or the other lawyer's client doesn't take our advice. That's fine, of course: it is the client's case, not mine, and if my client wants to take a chance on what a jury might decide, that is their choice.

Another type of case that goes to trial is the "matter of principle" case. If one side or the other believes totally in their position and is unwilling to compromise and unable to see the other side's argument at all, the case is going to trial. Settlements obviously have to be agreed upon, and if one side or the other is unwilling to compromise, only a jury can resolve the dispute. This type of thing almost never happens in a car wreck case or a contract case because the issues are not that personal: very few people are going to feel personally humiliated, or that they have sold out their principles, by settling a case over whether a stop light was red or green at the time of an accident. Corporations arguing over which one of them owes shipping charges don't worry much about whether anybody will be embarrassed: they worry about the bottom line. That isn't true when a professional has been sued for malpractice, or where someone has been accused of ethical or moral misconduct, or where the case involves religious practices or racial discrimination. In those type of cases, while it may be economically reasonable to settle a case, it can often be emotionally impossible for a defendant to settle, or equally impossible for a plaintiff to accept a reasonable amount in settlement without getting to "tell their story" to a jury. Indeed, it sometimes happens that one side or the other does not care about money at all, and the only goal is to get a court judgment which says that they were right.

The worst reason for a case to go to trial is because the parties to a case haven't really thought about what they are doing until they have spent so much money in litigation that they feel they have to go ahead and finish the dispute in a trial. I think this is always the fault of the lawyers involved, who have a duty to sit down with their clients early on and discuss what the litigation is going to cost, and what results the clients can reasonably expect. Texas courts now routinely order cases to mediation fairly early on in litigation, for the specific purpose of forcing the parties to get together and seriously think about what they are doing with the aid of an impartial mediator appointed by the court. The mediator always discusses the risks with each side very bluntly, and many cases get settled as a result.

Should there be "caps" on damages that juries can award?

2009-01-23T12:43:00.000-08:00

One of the fondest dreams of insurance carriers is that they will get to continue charging high rates for insurance but that our legislature will cap their potential downside risk. Big businesses like car manufacturers and investment companies also love the idea that the amount they have to pay for the damage they cause can be limited - no matter how much damage they did. These are the same people, remember, who think it's a good idea to pay themselves million dollar bonuses right after begging the government for a bailout of the companies they have mismanaged into bankruptcy.

The arguments made for such caps are basically two: First, spokesmen for insurance carriers point to silly lawsuits filed in other states to "prove" that there is a problem here. In editorial after editorial by representatives of a "concerned citizens group" fronting for insurance companies we hear about the McDonald's spilled coffee case (a fifteen year old New Mexico verdict which settled for a fraction of the verdict awarded) and the silly case filed in New York five years ago against fast food companies for serving food with a high fat content. What we don't hear is why either of these cases is relevant to a discussion of what is happening in Texas - and why either case could be relevant to the discussion of whether to artificially cap damages awarded to people when a Texas jury, a Texas trial judge and a Texas court of appeals all believe the injured person deserves the money.

But saying that caps on damages have anything to do with frivolous lawsuits is just silly. A frivolous lawsuit is one where any reasonable person would agree that the plaintiff should get nothing. Damage caps, by contrast, only come into play when twelve reasonable jurors, a trial judge and then a panel of appellate judges agree that the plaintiff's case is not only not frivolous - but that the plaintiff is entitled to recover a large damage award. Put another way, what big business and insurance companies are really asking for is for laws to prevent people who really have suffered catastrophic damages from getting justice from the people who caused the damage. In order to actually get paid in our system today, first 12 jurors have to agree that you deserve the damages, then the trial judge has to sign a judgment agreeing, and then the losing party can appeal that decision and get the damages reduced if they are not supported by the evidence. After going through all of that - 12 jurors, a trial judge and three appellate judges - there is no way to argue that the damages weren't actually suffered, and certainly no argument to be made that the case was "frivolous".

The second argument made for damage caps is that insurance coverage is too expensive. But this argument is never, ever, followed by a promise that insurance rates will be lowered if damage caps are put in place. The insurance lobby says that we must have damage caps on what seriously injured people who deserve the money can recover, so that we can all have lower rates. Well, it seems to me that if we are all going to give up our rights based on that argument, then we ought to get a promise to lower rates in return. But we never do: in fact, we get just the opposite. In California, where there has been a cap on damages in medical malpractice cases for over a decade, rates have gone up 190%. Texas passed damage caps in medical malpractice suits three years ago, and the promised savings to doctors and consumers never materialized - but the insurance industry is making millions more. In exchange for a real loss of rights for the innocent injured, the public gets...nothing.

You should also know this: when a doctor commits malpractice, or a manufacturer knowingly sells a defective tire and kills a family member or maims you, they're not going to compensate you for the damage he causes out of the goodness of their hearts. Their insurance companies have no heart at all and are interested only in profits, not your problems. That "concerned citizens tort reform" group funded by big business and the insurance industry won't help you, and neither will the politicians they put in office. Only the court system can help you, and it won't be able to help if the insurance and corporate lobbyists get their way.

We all need to pay attention to what the issues really are, and not what the propaganda machine says they are. A suit against McDonald's in New York matters to us not at all. Damage caps which deny justice to truly injured Texans and benefit only insurance carriers matter right here, and right now.

Medical Malpractice

2009-01-20T13:18:00.001-08:00

If you suspect that you or a family member have been the victim of medical malpractice, there is only one way to know for sure-you need an expert medical malpractice lawyer to find out for you.

Only a medical malpractice expert knows how to interpret medical records and apply the legal analysis necessary to know if you have a case. Only a medical malpractice expert knows how to find doctors who will break the code of silence and testify against other doctors. In Texas, a special and extremely complicated medical malpractice statute makes success in a medical malpractice lawsuit expensive and difficult. Only a lawyer who is intimately familiar with the statute and how to meet its requirements has any chance of winning your medical malpractice case for you. Like heart transplant surgery, medical malpractice litigation is no place for rookies.

The vast majority of attorneys simply do not know how to handle a medical malpractice suit. To have any chance of winning a case against a doctor, your attorney has to know a very technical area of the law and must be familiar with medicine and medical records. If he doesn't have the knowledge and experience he needs, you attorney won't be able to recognize what a doctor did wrong, no matter how much time he spends looking at your records. And if he does figure out what was done wrong but doesn't know how to prove the case under the Texas medical malpractice statute, he'll lose your medical malpractice case without even getting it to court. There is no substitute for experience.

That's why doctors and their insurance companies always hire big city lawyers who specialize in medical malpractice cases. No doctor ever makes the foolish mistake of hiring an inexperienced lawyer just because he has an office nearby. You shouldn't either.

You and your family need the skills and experience of Polewski & Associates. With 25 years of experience handling medical malpractice cases, outstanding qualifications and a commitment to treating every client like we would treat our own families, Polewski & Associates is the right choice for you. You've been through a lot. You and your family deserve lawyers who know what they're doing.

Contact us now, and let us know how we can help.

What is my Case Worth?

2008-12-26T13:04:00.000-08:00

When prospective clients come into my office to see me, they generally have two questions at the end of our initial visit. These questions are "Do I have a case?" and "What's it worth?".

The second question is often a lot harder to answer than the first one. In fact, the answer to the question "what is my case worth" at the time of the first visit is almost always either "nothing" because there isn't a case at all, or "I don't know" because there are so many different factors involved in determining what a case is or might be worth. Primarily these issues have to do with the facts of the case, but just as important are issues of the prospective client's perception - and how a jury would perceive the client.

In the first place, anyone who deals with trial lawyers on a regular basis will soon notice that we are a skeptical bunch. I am lied to so often by prospective clients and witnesses (under oath or not, respected professionals to homeless people) that I confess that I am a little doubtful when my wife tells me what we are having for dinner. For this reason, when people come into my office seeking legal help, the first step is to weed out the liars from the truth tellers.

Unfortunately, there is another class of prospective clients: those who really believe something happened that didn't, or have an incorrect perception of how something happened. This is just plain human nature: ask ten witnesses to an event to describe what happened and you will get at least five different versions. In any trial of any case, you will see a mixture of out and out lies, rationalizations, excuses and different points of view.

The second thing that goes into my analysis is an evaluation on how my client will come across to the jury. Some people, no matter what their background is, just don't come across well: they seem unsure of themselves or dishonest even when they are telling you where they live. Prejudice is also a significant issue. Illiterate minorities who speak bad English don't fare well in front of the kind of juries they are likely to get in this area, where the people who show up for jury service are predominantly white and conservative. That isn't "fair", but it does impact the question "what is my case worth?" A white, pretty, married school teacher mother of two is going to get a better verdict than a fat, ugly, minority, unmarried, unemployed mother of two, even if exactly the same thing happened to both of them.

That's a fact. It isn't a "politically correct" fact, but in discussing a case's value with my minority clients, it wouldn't be honest for me to pretend that prejudice doesn't exist. Believe me, they aren't surprised to hear that it is going to be a tougher fight for them, and are grateful for a blunt discussion of the issues rather than a pretense that the issues do not exist.

The third thing that has to be considered in any analysis of case value is where the case is going to be tried. In real estate, it is said that the three main rules of real estate value are location, location - and location. The same can often be said about value of particular lawsuits. Just as a four bedroom home in the best part of the Metroplex is worth ten times what the same house would be worth in another area, so a case that would be worth $50,000 in one part of the state is worth $500,000 elsewhere. For example, juries in Dallas and Ellis Counties are known state wide to be very stingy on awards to plaintiffs who are injured - but generous in awarding damages for business losses. In other parts of the state, juries are very sympathetic to people who have been physically injured, and are not impressed with purely economic losses.

Of course, there are many, many other factors to be considered it determining the value of any particular case. It is a certainty, however, that nobody can tell what a case is worth from a half hour conversation with only one witness. The other thing to bear in mind is this: trials occur when the two different sides can't agree on the value of the case - and there are a lot of trials going on in every jurisdiction in this country every day.

John Polewski is a board certified attorney with offices in DeSoto

Common law, Common justice

2008-12-17T10:10:00.000-08:00

Every day we read in the paper about some lawsuit or another. Any conceivable kind of dispute can wind up in America's civil courts. After all, that's what they are there for: to settle disputes between citizens in a nonviolent manner and to ensure that any citizen can seek justice, even if his opponent is rich and powerful. I think we can all agree that while the concept is good, sometimes the process isn't pretty, and sometimes the results we read about in the paper make us scratch our heads and wonder how the jury in a particular case reached the result it did. Having been involved in several well-publicized cases, I can assure anyone that the reports that made it into the paper about those cases bore little resemblance to the case I was handling - but that isn't the topic of this article.

Lost in all the squabbling about who is getting the worst end of the stick at the courthouse is the fact that our civil legal system is almost entirely based on "common law". "Common law" is law that comes entirely from the people - you and me - and not from any statute, ordinance, code or rule passed by the government.

With few exceptions, when you sue someone in the civil courts in this country, there are no statutes or codes that will decide whether you are right or the defendant is right. A jury will make that determination based on what they think is fair. The right to sue is not contained in a statute: it simply exists as a right that is "common" to all of us and is guaranteed by the United States and Texas constitutions.

In a jury trial, the judge is basically a referee: he decides if there is enough of a case to be heard by a jury, what evidence can be heard by the jury (if there is a dispute about that), and various other procedural matters. Except in rare circumstances, the judge does not decide the case. People like you and me, sitting on the jury, decide the case. Judges are limited in their power to contradict the jury's verdict, since our system is based on the principle that our citizens should have the right and the duty to decide what a just result will be in any particular case.

What a person can sue another person for, and the amount that can be recovered, has been changing as the average citizens' attitudes have changed over the centuries. Our civil law is the product of literally hundreds of thousands of jury verdicts over two hundred years in which people like you and me determined what was right.

The concept that 12 ordinary people can do a good job of finding a just result in any kind of dispute is still revolutionary: In most nations, if you have a dispute with the government or a powerful corporation, you lose, period. Many countries with highly organized court systems have no provision for a man to sue for personal injury, or breach of contract. Others let every dispute be investigated, prosecuted and decided by the same people, all appointed by the government. Think about the politician you like the most: do you really trust him to investigate, prosecute and decide your case against someone he golfs with, or the corporation who contributed money to his campaign?

There is something fundamentally amazing - and really, really good - about the idea that in this country, we trust each other to decide disputes, and that twelve of our citizens sitting on a jury can decide that a plaintiff's claim is silly, or can change the way a major corporation does business. Our citizens decide what the law is, and they do it thousands of times a day sitting on juries deciding disputes ranging from minor fender-benders to multi-million dollar fraud suits. Our law is "common" to all of us - young or old, black or white, rich or poor. We're used to our system here, and we like to complain about it, but I haven't heard of anything better anywhere else. It is one of the fundamental strengths and requirements of a true democracy that the people decide legal disputes - not the government, not the wealthy, but you, and me, and our neighbors.

The Founding Fathers thought this concept was so important that they put it in the Declaration of Independence and in three places in the Bill of Rights. The Founding Fathers of Texas thought it was so important that they put it in the Texas Constitution in two places. And they weren't wrong: today, as was the case 226 years ago, the evidence of what happens when the rich and powerful think they can make their own rules is obvious. In this country, the richest and most powerful in the history of the world, we still have law which is "common" to all of us - meaning we all share in it, we all have a duty to help create it, and it applies to all of us. Many, many rich and powerful people and corporations hate that idea, because it means that they may have to answer to the rest of us when they make the mistake of thinking our laws don't (or shouldn't) apply to them. We are all safer, and more free, because they are wrong, and our Founding Fathers were right.

Contingent Fees Make Justice Possible

2008-11-26T11:50:00.000-08:00

Both the United States Constitution and the Texas Constitution provide that every citizen has the right to free access to the courts and to a jury trial. Having a Constitutional right to use the courts to seek justice is great, of course - but having a right to seek justice in the courts and actually being able to afford doing so are two dramatically different things. Litigation is expensive - very expensive. A product liability suit against a big car manufacturer or a complex medical malpractice suit may cost over $100,000.00 in expenses alone - filing fees, expert witness fees, court reporter charges, preparation of exhibits, investigators - even before the cost of the attorney's services are figured in. An attorney with the skills to actually take on the legal army that a car manufacturer would put in the field or the knowledge to develop a complex medical negligence case would easily command $500 an hour for his time. Fees and expenses in even a typical contract dispute often exceed $20,000.00.

Consider, then, the plight of a working class family whose children burn to death in a car with a defective gas tank, or whose child has been crippled by a doctor's mistake. There is not even the slightest possibility that they could afford either the expenses or the attorneys necessary to investigate and prosecute their case, and no chance at all that they would prevail without sophisticated legal help.

Contingent Fees
Contingent fee arrangements make it possible for such plaintiffs to take on a rich defendant. A typical contingent fee contract does two things: first, it provides that the lawyer does not get paid unless he is successful. Second, it provides that the lawyer who takes the case will pay the expenses of the case, and that the client will not have to pay the expenses until the case is over - and only if there is a recovery for the client. That means that people who otherwise could not afford to assert a claim in court can do so. It also means that lawyers who take cases on a contingent fee basis are gambling their time and their money on the outcome of their client's case.

Because of the contingent fee system, average citizens can take on big businesses who could otherwise bury them in expense and legal fees, making a legal victory impossible. Big business and insurance carriers hate contingent fees for that very reason. Eliminate the contingent fee contract and no average person could ever afford to sue.

Frivolous Lawsuits?
For those of you concerned that there might be too many frivolous lawsuits (and there are definitely some silly ones filed) consider this: in a contingent fee system, if a plaintiff's lawyer takes a case to trial and loses, then he loses everything - sometimes years of his time and hundreds of thousands of dollars in expenses invested in the case. Any big case is a really big gamble by the plaintiff's attorney, and if their clients lose, the attorney loses, too.

For those of us that handle some cases on a contingent fee basis, this is a very real deterrent to taking any case that we don't really believe in. Think about it:
When was the last time you gambled $100,000 of your time and money on what twelve complete strangers might think was fair? How sure would you have to be that you were right before making the gamble? When the injuries are severe, and the case is going to be expensive, no attorney that I know files suit without a lot of thought.

This is a system that works: that's why when you read about some ludicrous claim like a claim against a fast food company for "making people fat", you only read about the one case, its always filed in another state, and you never hear about it again. Real lawyers risking real money don't take cases like that. Someone might file such a case to get some quick and easy publicity when gullible reporters (or the usual anti-lawsuit big business crowd) jumps all over the story, but anybody who knows anything about our justice system knows that cases like that are always thrown out by the trial judge pretty quickly. When they are, you won't read about it - because a frivolous case being dismissed isn't news, and because the pro-business and anti-consumer crowd would hate for you to think that the system doesn't need to be "reformed" to make it even more difficult for the average person to sue big business.

John Polewski is a board certified attorney with offices in DeSoto and Midlothian.

The "Conspiracy of Silence" in Medical Malpractice Cases

2008-11-10T10:35:00.001-08:00

In a medical malpractice case, as in many other types of cases against professionals, the plaintiff is required to prove his case with expert testimony from another professional to the effect that the defendant failed to provide proper care to the plaintiff.

Such testimony is often required to even start a case: under a special law enacted for the benefit of doctors (thanks to a powerful lobbying effort) if the plaintiff cannot furnish such testimony within 120 days of filing suit, the suit will be dismissed and the plaintiff and his attorney have to pay the doctor's attorney's fees and costs. Of course, a doctor need not respond with an expert report of his own defending his conduct, and if he sues you he doesn't have to provide any kind of report. This is what passes for "equal justice" these days in a state where lobbyists and their money can buy legislation.

Be that as it may, as a result of this statute, attorneys who handle claims for consumers spend a lot of our time begging professionals to come forward and testify in public against other professionals. I have no problem finding a doctor willing to review the medical records and tell me if my client has a good case: that's easy. Getting them to say it in public is a different story.

We have had dozens of patients come into our office and tell us that one of their doctors has told them that they should "go see a lawyer" because of what another doctor did, or that one of their doctors told them that "this is the worst case of malpractice I have ever seen". Yet when we contact those doctors, they clam up in a hurry.

What's going on here? Some of the more wild-eyed of my colleagues who handle these cases, and some members of the public, call this a "conspiracy of silence" - and say that all doctors everywhere are sweeping each other's errors under the rug. The same accusation is made of police officers, accountants, lawyers, and other groups. The idea is that these groups will stand together in the face of any outside threat, even if it means supporting a bad apple in their group.

There is some truth to that, of course. Police officers and doctors, among other groups, feel themselves misunderstood and overly criticized by the public in general, and as a result tend to have a knee jerk reaction against such criticism aimed at members of their professions. But as someone who has both represented and sued members of these groups, I think that there is also something much less sinister going on, and it is this: Nobody wants to testify against someone they are going to have to deal with in the future.

For doctors, this is a big issue: if you are a neurosurgeon in Dallas, even as big as the medical community is, you know all of the other neurosurgeons. They may not be your friends and you may not think much of them, but you see them in operating rooms and doctor's lounges in hospitals every day. You will see them at medical meetings and seminars. They sit on the boards of hospitals at which you may want to practice someday.

Now imagine that you are such a doctor and a lawyer you don't know calls you and asks you to review a file for negligence. Would you testify against the other doctor, knowing that you will see him often and that he will complain bitterly about you to other members of the local profession? Almost certainly not. There are limits anyone wants to go to for a stranger.

On the other hand, if you are asked by a defense attorney to testify for another local doctor, the situation is reversed: now you are not risking censure by your colleagues, but instead get praised, and instead of making enemies, you are creating goodwill and doing favors for people who will owe you favors in the future.

The result is that most local doctors, lawyers, accountants, builders, etc. will not testify against another local colleague, but will readily testify for the defense of their colleagues. This may not be "fair" or in the public's best interest, but it isn't necessarily a "conspiracy", either. These professionals are human, just like the rest of us. That's why they make the mistakes that get them sued, and its why they won't testify against the professional just down the hall.

Of course, it is also true that many, many doctors will never testify in a malpractice case against another doctor - even one they don't know who lives in another state. Some of these doctors simply don't want to get involved in any case, which is understandable. Many, however, are happy to testify for another doctor, but never for a patient injured by malpractice. Put another way, there is in fact a "conspiracy of silence" which results in doctors refusing to publicly point out the mistakes of other doctors. Anyone who handles medical negligence cases has to deal with that fact - and they had better also understand the other reasons doctors won't testify against other doctors.

"Common Law" Marriage

2008-10-23T12:17:00.000-07:00

I met another couple last week that told me that they had a "common law marriage." They didn't. As usually is the case when a "common law" marriage is claimed, what was actually going on was that one of the parties wanted to have the benefits, but not the responsibilities, of marriage. The signs were obvious: his name isn't on the birth certificate of their child, he wears no ring, and when asked whether he wanted to participate in decisions affecting his child, he said he "didn't want to sign anything." When I asked the couple if they were married, he said nothing, and she said they were "common law married." She was wrong, and his silence spoke volumes.

Marriage of any kind is primarily a thing of the heart. The ability of a couple to be married without a ceremony under Texas common law (and the law of most other states) recognizes that fact - and it also recognizes the fact that you cannot be "halfway" married. Either you are in the relationship all the way, or you are not married. You cannot ride the fence on the issue.

Nor is there any real impediment to being definitely, undeniably married if that is what a couple wants. Getting married is so cheap and so easy that there just isn't any reason why a couple who want to be married wouldn't just spend the minimal time and money that it takes to get a marriage license. With the consequences of being wrong potentially being huge, there is no reason to leave any doubt.

Texas recognizes the existence of marriages in the absence of a marriage license, but like the other states which do so, if there is ever an issue about whether you were married, the party that is claiming to have been married will have to prove it in court. This will mean proving three things: the man and woman agreed to be married, they lived together as husband and wife, and they "held themselves out" as married to the public. All of these factors must exist, and they must exist at the same time, or there is no marriage.

For example, just living together, regardless of how long you do so, will not make you married. Nobody can be fooled into becoming married just because they share the same apartment with their lover. Nobody gains any rights just by being someone's room mate.

Nor does a marriage exist when fiancees, fully intending to marry in the future, begin living together: although they are "living together as husband and wife" for all intents and purposes, they are not yet telling people that they are already married, and have not agreed with each other that they are already married. And you have to be consistent about it: you can't be married "sometimes".

In my office, the question of the existence or nonexistence of a common law marriage comes up most often when I am asked to look at a case where someone died in an accident, and his or her "spouse" wants to sue for damages. With one party to the marriage being dead, it can be difficult for the other party to prove that the dead party "agreed to be married" and "lived together as husband and wife" with the survivor. This is particularly true where the "marriage" was of short duration or there are multiple people claiming to be entitled to damages due to the death. In the absence of a marriage license, trying to persuade the government or an insurance company that you were married to someone who has died (and that you are therefore entitled to tens or hundreds of thousands of dollars in benefits) is hard and may be impossible.

Family law attorneys and general practitioners see the issue come up in the context of claims made on the end of the "marriage", in the determination of who the legal heirs are of a person who has died, and in determination of who gets custody of the children.

These are major issues, and in my view it is silly to leave them to chance. If your partner loves you, he or she should insist on giving you (and any children) this protection. On the other hand, if he or she is a "fence sitter", it is probably long since time to get them off that fence.

John Polewski is a board certified attorney with offices in DeSoto.

Class Actions - Love Them or Hate Them?

2008-10-08T12:07:00.000-07:00

We read about a really big and important class action every year or so - suits against tobacco companies settled for billions of dollars, or against drug manufacturers settled for hundreds of millions. Other defendants who have paid big, big money in class action suits include utility companies, manufacturers of toys, tires, breast implants, and computers, and financial institutions such as banks or stock brokerage companies.

The business and insurance lobbies hate class actions with a white hot passion. Some plaintiff's lawyers make millions of dollars handling them, and most people have little understanding of what they are.

A class action is a lawsuit brought on behalf of a large group of people by several "class representatives" and their lawyers. Class actions cannot be brought at all until the court determines that the number of people in the "class" is so large that it is either impractical or impossible to get all of the people affected by the particular problem into the suit. For example, filing suit on behalf of hundreds of thousands of buyers of a particular type of computer would be a logistical nightmare - just putting their names on the court documents would take up many file drawers, let alone the time and expense that would be required for testimony, exhibits and court time. On the other hand, 15 or even 50 plaintiffs would be too small to be considered for class action status.

Not just any group of people can file a class action. The court must first determine that they all have a "common" complaint about the same defendant (or group of defendants) and that their damages are substantially the same. For example, a group of 2,000 people mad at the telephone company for different reasons could not file a class action, while 2,000 people who were intentionally billed for the same expense which none of them owed would be a viable class and could bring suit as such.

Many class actions arise in just such a circumstance - a company makes it a practice to overcharge all of its customers a few cents or a few dollars, knowing that it isn't entitled to the money - but also knowing that nobody can afford to sue over a few dollars. Without class actions, there would be no reason a big company wouldn't engage in this sort of practice: losing a few customers who figure out they've been cheated means nothing when thousands or tens of thousands of other customers go on paying the overcharge and the company makes millions of dollars as a result.

Individuals cannot afford to sue in this situation, and no lawyer would take a case involving mere pennies, or even a few hundred dollars, for an individual client. However, the stakes change dramatically with a class action: suddenly the amount in controversy is the amount that all of the customers were overcharged, and there is a potential for multi-million dollar recoveries for the class. This kind of suit has in fact brought changes for millions of consumers in the fields of insurance, telephone service, air travel, drug manufacturing and birth control devices - to name just a few of the many successful class actions in the last 10 years.

There have been some real abuses of the class action provisions in the law. Some of these abuses are by unscrupulous lawyers who essentially create a dispute in order to extort settlement from companies for incredibly miniscule and harmless mistakes. Other abuses are those by companies who actually encourage lawyers to file a collusive class action, hoping to preclude other litigation by individuals who would otherwise be able to sue for their injuries.

The result is that nearly everyone who looks at the class action provisions and how they are used (and abused) can find something that they strongly believe should be changed - but there is rarely enough agreement on what those changes should be to make real changes in the law. In practice, it is individual judges who determine whether a class action can or cannot go forward - and whether his decision was "fair" or "ridiculous" always depends on which of the parties you talk to. Conservative commentators, for example, can be heard complaining on any radio station at any time of the day about judges "legislating" - but are oddly silent when pro-business judges fail to allow a class action to go forward when the requirements of the class action statutes are clearly satisfied. Like so many other issues in politics today, the label placed on a result is often dependent on what the result costs the person doing the talking.

Child Support

2008-09-18T09:45:00.000-07:00

There are aspects of everyone's job that they don't like. For me, number one on my list has got to be child support work. I do it only when an existing client has a problem and wants my help particularly. Its depressing, and always, always makes me think about how miserable I would be without my wife and child.

Fortunately, there are plenty of attorneys out there who don't mind this type of work, and the rules about what happens, and who owes what for child support, are pretty clear.

The parent who lives with the child is known under the law as the "custodial parent" of the child - and has the primary responsibility for caring for the child and meeting his or her daily needs. The other parent - the "non-custodial parent" - owes child support, and owes it until the child is at least 18, and possibly until the child is 21.

How much is owed depends on how much the non-custodial parent makes in salary and other income during the year. Texas law provides for standard orders to be entered unless the court can be convinced otherwise, which is pretty hard to do. For child support obligations, the rules are these: the non-custodial parent owes 20% of net income for support of one child, 25% for support of two children, 30% for support of three children, 35% for support of four children, and 40% for five or more children.

Note that the rules speak of children that the non-custodial parent is actually providing support for. In the classic "deadbeat dad" situation, there may be several children by different mothers that the father is providing no support to at all: in this situation, if one of the mothers seeks child support, the father will owe the full 20% of his income, and gets no credit (nor should he) for the other children he has abandoned.

The law provides that if a parent has to be sued for child support - by either the State or by the custodial parent - and the court finds that child support is owed, then the costs of the suit (including the attorneys' fees of both sides) are paid by the parent who owes the support.

And the case stays open until the child reaches the age of either 18 or 21. If the parent who owes support gets a raise or other improvement in income, the court can (and will) order an increase in monthly child support obligations. Likewise, if the parent owing support loses his job, or gets ordered to pay support for another child, the court can and will order a reduction in monthly payments.

The payments themselves are typically ordered withheld from paychecks and paid directly to a child support office of the State or a county - and the government is thus able to keep track of whether the payments are being made.

All of this, of course, works best when the parent who owes the support has a job and an employer, as well as a regular address. When the parent of a child is an irresponsible loser, child support requirements are of no help - you cannot get money from someone that has none.

And that is depressing, too. Like other aspects of family law disputes, it always seems to be the children that lose, while their parents often escape the consequences of their selfishness and irresponsibility.

Child Support Rules

2008-09-04T09:20:00.000-07:00

As you would expect, Texas has very well settled rules about child support and how it gets collected. These rules are enforced by the courts, and the parent with custody of the child can either hire a private agency (or attorney) to seek child support, or can receive assistance from the Texas Attorney General's office. If the State has provided assistance to the child, then the Attorney General will automatically seek reimbursement from the parent who is not paying child support. This can happen even many years after the birth of a child. I once represented a man who was unpleasantly surprised to find that the State had sued him for reimbursement of welfare benefits paid to support a child he fathered while a junior in high school. The man had long since lost contact with the mother, and received quite a shock when the Attorney General of the State of Texas sued him to recover over $45,000.00 in past due child support payments, with interest and court costs.

One of the first issues in many cases is establishing who the father of the child is. If the man identified by the mother denies fathering the child, or if the mother is unsure of who the father is, the State can and will obtain blood tests on the possible fathers to determine paternity - even if the father is still in school or if he lives in another state. A court will then enter a formal judgment declaring a specific individual to be the father. Nor does it matter whether the pregnancy was unplanned. Texas law says that both parents are responsible for supporting their children. This means that once the court determines the identity of the biological father, the man must pay to help support his child.

The amount of child support is almost always determined by the amount of money that the parent who does not have custody of the child makes. Texas law provides a sliding scale of percentages of income that the non-custodial parent must pay, and Texas courts rarely stray from this scale. It is: 20% of net income for support of one child, 25% for support of two children, 30% for support of three children, 35% for support of four children, and 40% for five or more children. Child support obligations continue until the child is at least 18 years old, and possibly longer, depending on factors like whether the child is still in school or college when he or she reaches the age of eighteen. Although courts rarely stray from the above guidelines, Texas law does allow them to do so in specific and limited circumstances.

The court which orders the child support can modify its orders at any time, and will do so if there has been a significant change in the non-custodial parent's ability to pay. An increase in earnings may result in an order requiring payment of more child support, for example, while the loss of a job or other decrease in income might decrease the amount of child support owed.

If non-custodial parents do not pay child support, they are subject to enforcement measures to collect regular and past-due payments. The Child Support Division uses many techniques to enforce child support orders, including:

requiring employers to deduct court-ordered child support from the non-custodial parent's paycheck through wage withholding;
intercepting federal income tax refund checks, lottery winnings, or other money that may be due from state or federal sources;
filing liens against his or her property or other assets; and
seeking to have driver's, professional, and hunting and fishing licenses suspended

There are, by all accounts, a lot of deadbeat dads (and some deadbeat moms) out there. With the arsenal of methods which now exist to force payment of child support, and the growing cross-referencing of records both within Texas and out of state, persistence by the non-custodial parent in seeking child support will almost always pay off eventually - unless, of course, the non-custodial parent simply does not have the means to pay.

John Polewski is a board certified attorney with offices in DeSoto and Midlothian

Civil Liability When a Person Dies

2008-08-19T10:03:00.000-07:00

Some of the biggest suits you read about in the newspaper are "wrongful death" suits. Everyone knows what death is, of course, and we all have an idea what "wrongful" means, even though it is another one of those words lawyers use and absolutely nobody else does. A "wrongful death" suit is purely a creation of statute, unlike most other types of suits, which are "common law" causes of action that have been around for centuries.

It used to be the law that if a person died, his survivors had no cause of action for their loss as a result of his death - regardless of whether he was killed because of the negligence of others, or even intentionally. If the person who caused the death committed a crime in causing the death (murder, manslaughter or criminal homicide) he might be thrown in jail, but the family of the deceased would not have a civil claim for money damages.

Texas, and every other state, recognized that this was not fair, and that if a person was killed through the fault of another, his family had sustained damage for which the responsible person should be held accountable. Our Wrongful Death Act was the result. Only spouses, children and parents may bring such a cause of action under the statute: brothers, sisters, aunts, grandparents and other family members cannot sue for their damages.

In my practice, I often have to tell people - like an aunt or grandmother who raised a child and is as close to the child as any mother - that they simply cannot sue for their loss because the Wrongful Death Act says they cannot.

Another wrinkle that comes in because a wrongful death suit is based on a statute has to do with conflicts between that statute and other statutes. Under the law, "what the Legislature giveth the Legislature can taketh away", and quite often this can have harsh results. One example I have seen in my practice is that many people - and unfortunately many lawyers - have been unpleasantly surprised to find that their time to sue has run out months or even years before they thought it had because the statute of limitations in the medical malpractice statute overrides the limitations rules under the Wrongful Death Act.

Texas has one other statute, called the "Survival Statute" which allows the estate of a dead person to sue for damages that he could have sued for if he were still alive: the cause of action is said to have "survived" the death of the person who had it, which is why the statute that allows this is called a "survival statute".

If this law didn't exist, then the death of a person would immediately extinguish any claim the deceased person might have had - whether for injuries which caused the death, or for totally unrelated claims like breach of contract. Such a "survival" suit is brought on behalf of the estate of the deceased person, and any recovery in the suit is paid to the heirs of the estate under Texas probate law.

So it is entirely possible for a dead person (or rather his estate) to sue. And if a person is killed by the acts of another person, the dead man's family can sue as well.

John Polewski is a board certified attorney with offices in DeSoto.

Business Structures and You

2008-08-04T09:56:00.000-07:00

Inc. Corp. LLC, LP, PA, PC. Ever wonder what these letters at the end of business names actually mean? Do they have any significance to your life? Well, that depends. These are all phrases or abbreviations indicating the type of legal organization you are dealing with.

General Motors, Microsoft, and every other company whose stock you can buy are corporations. Corporations are individual legal entities that can be created by anyone. Once created, a corporation is like a new person - it can hire and fire employees, own property, and generally do most things that any individual can do. They outlive the people who created them: if you form a corporation today and die tomorrow, the corporation still exists even if you owned all of its stock. When you see the letters "Co." "Corp." or "Inc." in a business name, or the word "corporation" or "incorporated" spelled out, you are dealing with a corporation. The law requires that corporations have these words or abbreviations in their business name so that people doing business with them are aware that they are dealing with a corporation.

A partnership is a business owned by two or more people who have not chosen (and documented) another choice. If a business is owned by two or more people and they have not complied with the documentary requirements to function as another kind of business, the law presumes they are partners - and that they therefore intended to share the risks of the business as well as well as the profits. Without a written agreement to the contrary, the law also presumes that every partner is entitled to the same share of profits and losses as every other partner, regardless of how much each has invested.

A limited partnership is one in which one of the partners (the "limited partner") does not share in the risks of the partnership as much as the other partners. Limited partners invest in the limited partnership and get a share of the profits of the partnership, but their potential loss is limited to the amount they invest. Forming a limited partnership requires specific documents to be drafted and signed by the partners. You know you are dealing with a limited partnership when these words or letters are present: Ltd., Limited, Limited Liability Partnership, or LLP. The law requires that these words be in the business name if a business wants to operate with the limited liability that this business form provides.

So why does it matter to you how a business is structured? The answer is that it only matters to you when things go wrong. If you have a claim against a company - for fraud, breach of contract or causing an injury, it can matter a great deal whether you are dealing with a real person or with a corporation, or with a partnership as opposed to a limited partnership.

Most corporations are formed for the sole purpose of creating a "liability shield" to avoid personal risk and liability by the owners of the business. Corporations are attractive to even the smallest business because generally the owners of the stock of a corporation are at risk only to the extent of their investment in the corporation. Banks know this very well: when they lend money to a corporation, they check it out carefully. If they have any doubts (and it is rare that they don't) they get a personal guarantee of the debt from the human beings who run the corporation.

When you and I deal with a limited partnership or a corporation, particularly one that is not publicly traded, we should bear in mind that a primary purpose of these forms of business is to make sure that the owners are protected from claims we might make against them if things go wrong. A little caution, like asking for a personal guarantee or making sure that the corporation is insured, can't hurt and may save a lot of grief later.

John Polewski is a board certified attorney with offices in Midlothian and DeSoto.

A Short Lesson on Texas Wills

2008-07-31T10:20:00.000-07:00

Like most firms, my firm will draft simple wills for people who do not need extensive estate tax planning. I have found that most people don't know what happens if someone dies without a will, or what the law requires for a will to be valid.

If you die without a will, the Texas Probate Code will determine who gets what. The statutory scheme is logical, and pretty much follows what most people, most of the time, will want to happen to most of their property. The Probate Code provides for every imaginable situation of what relatives may or may not survive you. The only problem with these rules is that the result they require may not be what you want to happen, and there is no provision for making gifts of particular pieces of property to particular people.

Do you want your nephew to get your baseball collection, or a special friend to get a valuable piece of jewelry? To make sure that happens, you'll need a will. Likewise, people with children will need a will if they want to make sure that an ill parent or other elderly relative is taken care of - or any one of the other dozens of situations that come up in our lives that no general statute can anticipate.

If you decide to make a will, Texas law provides for three types of will. In certain situations, a witnessed statement of a will (sometimes called a "deathbed" will) can be valid. Usually, however, wills must be written. There are two types of written wills, the "holographic will" and the "formal will."

A holographic will is a will entirely in the handwriting of the person making the will, and it must be signed by the person making it. It need not be dated - which has resulted in much litigation concerning competing holographic wills. Under the law, a subsequent will supersedes a prior will, so dates matter.

A formal will is any other written will meeting the requirements of Texas law. It needs to be properly dated, signed, notarized and witnessed by people who are not beneficiaries of the will.

Any will can be made "self-proving", that is, sufficiently authenticated that probate courts will accept it and enforce it without the necessity for a formal hearing. This requires the affidavits of the witnesses and the maker to be attached to the will.

There are many other issues to be concerned with in legal planning for the inevitability of our deaths, such as custody and care of our minor children, the continuation of a family business, marital property and tax issues. Most lawyers will offer to prepare other documents in conjunction with a will to take care of these issues, as well as issues which arise when a person is incapacitated or becomes mentally incompetent, such as a parent who has Alzheimer's, or the victims of serious car accidents. These documents typically are prepared as part of a "will package" for one inclusive price.

Some issues surrounding property distribution after death are so complex that only a specialist should handle them. My firm, like most others, will send clients on to probate or tax specialists in these situations.

John Polewski is a board certified attorney with offices in DeSoto and Midlothian.

At Will Employment

2008-07-30T10:16:00.000-07:00

Texas is an "at will" employment state. Almost all of us are employed "at the will" of our employer, which means that if our employer doesn't want us around anymore, he or she can fire us without worrying about our reaction.

As a general rule, employers in Texas can fire their employees for any reason or for no reason at all. The reason given for firing an employee doesn't have to be true, it doesn't have to be fair, and it doesn't even have to be rational. If your boss wants to fire you because he has suddenly decided that you are, in fact, a 15 foot tall green rabbit, it is his absolute right to do so.

There are some exceptions to this general rule, and as you might imagine the exceptions have been the subject of a lot of litigation over the years.

A. Anti-discrimination statutes provide the basis for most of the employment claims you read and hear about. While an employer may fire an employee for just about any reason under Texas law, it is illegal for him to do so because of race, gender, age, sexual preference, religious beliefs or (due to the recent passage of the Americans With Disabilities Act) because of a disability. Likewise, it is illegal to discriminate against employees for any of these reasons—this is the basis of the suits we have all read about involving allegations of sexual harassment, or racial preferences. As a practical matter, many of the most bigoted employers are at least smart enough not to tell anyone that the reason they are not promoting a homosexual, woman or Hispanic is because of their status as such. Many suits in Federal court deal with the issue of whether a particular employee was fired or not promoted due to an illegal motive, rather than for some other reason.
B. Contract Law also provides the basis for many claims against employers. In order to be successful on such a claim, the employee must prove that the employer made an enforceable promise to employ the employee. This requires much more than statements like "If you do a good job we'll keep you around". Instead, it requires that a court be able to determine that you were promised a specific job, at a specific rate of pay, with specific duties, for a specific length of time. To be enforceable, these contracts need to be in writing.
C. Worker's Compensation Law in Texas makes it illegal for an employer to fire an employee because he made a claim for worker's compensation benefits. Some employers still, in spite of this law, punish workers for making injury claims by demoting them or firing them, often on a transparent pretext, so as to avoid paying injury claims. Such "retaliatory firing" by employers entitles employees to recover civil damages from the employer and can expose the employer to stiff fines.
D. Whistleblowers have protection from being fired as a result of reporting illegal activities of their employers, but only in narrow situations. The law in this area is constantly changing, and it is very clear that not every whistleblower will be protected.