Texas Trucking Defense and Litigation

We have moved our Texas Trucking Defense blog ...

The new address is:

Castagna Scott LLP — Insurance Defense and Trucking Blog

Make sure you bookmark the address, to obtain updated information regarding defense of trucking lawsuits throughout the State of Texas.  We'll also cover the following subjects:

• Trucking and transportation accidents
• Dram shop and liquor liability
• Products liability
• Construction defects
• Construction accidents
• HOA litigation
• Automobile accidents
• Premises liability
• Ladder design and defects
• Racetrack accidents and litigation
• Fitness center and gym litigation
• Bicycle accidents
• Motorcycle accidetns
• Swimming pool safety and defects
• Fabric flammability litigation
• Oilfield negligence
• Employment matters
• Professional malpractice
• Bad faith litigation
• General liability

 

States beginning to restrict truck traffic

USA Today recently published a story discussing how many states are banning big trucks from specific lanes of highways:

Florida has already taken action, banning big trucks from the far left lane of Interstate 4 on a 60-mile stretch between Tampa and Orlando. Stretches of I-75 and I-95 elsewhere in Florida have similar restrictions. Elsewhere:

•Georgia, where truck traffic is likely to grow by more than 50% over the next 20 years, is considering truck-only toll lanes on parts of I-75 northwest of Atlanta and on a 20-mile stretch of the I-285 beltway that surrounds the city.

•Missouri, Illinois, Indiana and Ohio are using a $5 million federal grant to study adding truck-only lanes on I-70 from Kansas City to Columbus, Ohio.

•California, Arizona, Texas and the Gulf Coast states will use a similar grant to study segregating truck and automobile traffic on stretches of I-10.

•Tennessee is eyeing truck-only lanes on I-40.

After medical malpractice caps, more doctors moving to Texas

This is not directly related to trucking, but it is important generally to trucking litigation as an indication of the effects of tort reform in Texas. The New York Times today reports that more doctors are moving to Texas after the adoption of medical malpractice caps a couple of years ago:

Four years after Texas voters approved a constitutional amendment limiting awards in medical malpractice lawsuits, doctors are responding as supporters predicted, arriving from all parts of the country to swell the ranks of specialists at Texas hospitals and bring professional health care to some long-underserved rural areas.

The influx, raising the state’s abysmally low ranking in physicians per capita, has flooded the medical board’s offices in Austin with applications for licenses, close to 2,500 at last count.

...

“Doctors are coming to Texas because they sense a friendlier malpractice climate,” he said.

Texas Supreme Court Justice under investigation for accepting illegal gift of discounted legal services

This story is reported in Law.com:

Travis County, Texas, prosecutors are investigating whether Texas Supreme Court Justice Nathan Hecht received an illegal gift when Jackson Walker discounted its legal fees for representing him in his 2006 fight with the State Commission on Judicial Conduct.

On July 24, the citizens' group Texas Watch filed complaints about the reduction in Hecht's legal bill with three agencies, including the Public Integrity Unit of the Travis County District Attorney's Office, which investigates and prosecutes alleged wrongdoing by public officials. Jackson Walker represented Hecht in his successful challenge of the judicial conduct commission's public admonition of him for his support in 2005 of then-White House counsel Harriet Miers' failed nomination to the U.S. Supreme Court. Miers has been a member of Locke Liddell & Sapp in Dallas since May.

[More at the link...]

DC Court strikes regulations increasing driving hours

A federal court sitting in Washington DC has struck the administration’s rules increasing the administration’s 2005 decision to increase the maximum driving hours of truck drivers.  The Court indicated the FMCSA had ignored the results of a study, which indicated a substantially higher risk of fatigue-related accidents in the extra hours of service allowed by the new rules.

The hours had been increased from 60 to 77 over a period of seven consecutive days, and from 70 to 88 over eight consecutive days.

For more, go to these links:

New York Times article
Transport Topics Online

Clients balk at continued associate salary hikes

We haven’t written much additional on the subject, but more law firms have continued to fall in lockstep with “the leaders” and raised their associate salaries to $160,000 plus.

Law.com has posted an article with some interesting money quotes from the clients:

"There seems to be no end in sight," said James Hall, director of intellectual property at Silicon Valley's Quantum Corp. "At some point I think it has to impact how much I'll pay in legal services ... That money has to come from somewhere."

Susan Hackett, senior vice president and general counsel of the Association of Corporate Counsel, said the recent round of raises doesn't take clients into account at all.

"The decision is completely divorced from any recognition of the value that's provided," Hackett said. "I don't see how those people who got paid $10,000 less yesterday got any more talented today."

Our thoughts exactly.  We’re surprised more clients are balking.  It’s obvious that they will end up subsidizing the new salaries, through higher rates or inflated reported hours.

Tanker truck takes down SF Bay Area overpass

I’d hate to be defending this one.

Early Sunday morning, a tanker truck accident wiped out an overpass in a very heavily travelled mess of freeways where they converge to connect San Francisco with the cities of the other side of San Francisco Bay.  It apparently was a single vehicle accident where the driver, who had just filled up with 8,600 gallons of fuel, lost control and flipped his truck.

The mayor of San Francisco visited the accident site, and called it a “giant wake-up call to the region” about what might happen when the Big One (my words, not his) hits San Francisco.

The New York Times has the story here, including this, and more, photographs.

Federal Judge in Tulsa, Oklahoma orders new trial in $15M Ford Explorer rollover case

A Federal Judge in Tulsa Oklahoma ordered a new trial for Ford in an Explorer rollover case in which the jury awarded $15 million.  In her order, the judge referenced personal attacks on Ford attorneys and witnesses.  The Judge specifically referenced the closing argument of the plaintiff’s counsel, wherein he "blatantly suggested that Ford Explorers were responsible for 10,000 deaths per year, and he had the temerity to compare this improper suggestion to the number of deaths in the Iraq War."  The Judge found that because the argument was made in the final portion of plaintiff’s counsel’s final argument, Ford had no opportunity to respond or to cure any resulting prejudice.

For the full story, go here.

Truck makers are starting to advertise like they are targeting consumers of automobiles

In his email newsletter, Stuart Elliott, from the online edition of the New York Times, discusses a new advertising campaign by International where they are targeting truck drivers with advertising that sounds remarkably similar to campaigns for consumer cars.  They will be focusing on emotional connections and branding:

For years, truck makers have tried to build carlike features into their products. Now, a leading truck maker is peddling its wares with a carlike campaign.

The campaign, now under way, is for the International trucks sold by the International Truck and Engine Corporation, a division of the Navistar International Corporation. International trucks compete against brands like Freightliner, Kenworth, Mack and Peterbilt.

The campaign, with a budget estimated at $15 million to $20 million, adopts a carlike approach from its assertive theme, "Miles ahead," to its presentation of the tankers, dump trucks, 18-wheelers and other products at their shiny best.

The campaign includes print advertising and radio commercials, which are being created by Bagby & Company in Chicago, as well as online work (internationaltrucks.com) by Fathom Communications in New York.

The campaign is emblematic of a trend among advertisers that sell to industrial customers rather than consumers, which are known as business-to-business marketers. They are increasingly borrowing from the playbooks of advertisers that sell to consumers, hoping to burnish their brand images and forge closer ties with customers based on emotions as well as rational reasons for buying their products.

Al Saltiel, who is overseeing the campaign for Navistar, has a background he describes as mostly in the business-to- consumer market.

"I've set our organization out to really challenge what you see in the traditional business-to-business space, the traditional truck-category space," says Mr. Saltiel, who is vice president for marketing at the truck group of Navistar in Warrenville, Ill.

"World-class branding and great creative don't belong only to consumer companies," he adds.

For years, International trucks have been "known for our honest, friendly Midwest roots," Mr. Saltiel says, and, "to be honest, were a little dull."

In one focus group, he recalls, "one respondent told us we're like a pair of old brown shoes," which is "not good for making emotional connections with consumers."

The "Miles ahead" theme takes "a much more assertive and confident tone," Mr. Saltiel says, as if to declare, "Hey, we have nothing to be apologetic for with our products."

And the theme is "rooted in the customers," he adds, "and how what we're doing improves their bottom line" in areas like fuel economy and design.

The theme is also serving to "mobilize us internally" to focus on the quality of the trucks, Mr. Saltiel says, and "put out products that fit 'Miles ahead.' " "The dealers have also reacted with pride," he adds. "There's a buzz in our community."

The print ads seek to take on the straightforward voice and point of view of the truckers who drive International models like the ProStar, TranStar, WorkStar and 9900, as well as the fleet managers and fleet owners for whom they work.

"Cab sweet cab," reads the headline for one ad, whose text begins: "My home away from home actually feels like a home. That's because my International 9900 puts the driver first with improvements that keep me comfortable on the longest of hauls."

Another ad declares: "I don't pay for good looks. My truck does." The text explains that the money the trucker saves because of the fuel-efficient operation of the 9900 "means more jangle in my pocket, so I can put more chrome on my rig."

Other ads carry confident headlines like "The only thing I refuse to deliver is an excuse," "You just can't keep a good truck down" and "I leave competitors in the dust and at the pump."

Compared with its rivals, the International brand "was lagging," says Steven Bagby, president and chief creative officer at Bagby, despite the quality of the products and an extensive dealer network for service after the sale.

The reason was because the brand "was looked upon as middle- of-the-road," he adds - not a good place to be for a truck or a truck nameplate.

The campaign is intended to give potential customers "reason to believe" in International, Mr. Bagby says, and "a sense there's new energy in the company, creating innovations tied to what drivers need."

"It's not looked upon as a consumer product," he adds, referring to trucks, "but there's a consumer product in there."

International "is looking for a leadership position," Mr. Bagby says, "and the only way to get to become a leader is not just to act like one but to inspire the people around you."

The print ads are appearing in a long list of trade publications that include Beverage World, Bulk Transporter, Construction Equipment, Food Logistics, Landscape Management, Road Star, Trucker's News and Waste Age.

The radio commercials are planned to run on the Midnight Trucking Radio Network and the Open Roads channel on XM satellite radio.

"We're working on a song" for the spots, Mr. Bagby says, that will be "cool" rather than "the typical country-western sound associated with truck drivers."

More on obscene salaries of newly licensed lawyers

Susan Hackett, of the Association of Corporate Counsels, calls foul on the obscene starting salaries of recent law graduates.  In an article on law.com, she estimates the true cost of brand new attorneys to be about $400,000 per year.  She points out that when you raise the salaries of brand new associates, you also have the raise the salaries of the more-experienced associates as well.  Who pays for it?  The client, of course.

Ms. Hackett goes on to excoriate the outrageous money made by lawyers in the “law firm biz”, and to suggest that corporate counsel put a stop to it:

Is this out of touch with reality? You bet. I'm completely unpersuaded by apologists who suggest that entry-level associate salaries are hardly keeping up with partners' slice of take-home pay. The fact that the associates make less per year compared to their partners than associates 20 years ago did is yet another indicator of how obscene partners' fees and profits are in the law firm biz. Sure, outside counsel are entitled to make as much money as they can, but let's not "justify" these salary increases by suggesting that they're necessary to adequately compensate associates.

*****

So where will in-house counsel draw the line on new associate costs? Why don't corporate clients simply say: We're not paying for this anymore? In-house legal executives need to stand up and exercise their considerable influence. Demand to know -- in detail -- why prestigious firms believe their inexperienced associates provide more value than a successful partner in a less expensive firm or an expert legal service vendor/consultant. Tell them that you're happy to pay high rates for high quality and experience, but you'll be the judge of the value provided. And if they answer that they had no choice but to follow the market in order to attract the same 50 graduates from the same 25 top-ten schools, then label them the sheep that they are, and vote with your feet.

Texas truck accident lawsuit is one of largest verdicts in 2006

Lawyers USA has published a story about the “top ten jury verdicts of 2006”.  The number ten slot is occupied by a Texas lawsuit in which actual damages of $38.5 million were awarded.  It was an underride protection lawsuit in which the jury awarded $36 million to a 25 year-old woman who survived, and $2.5 million to the family of a woman who died.  Here’s a link to the story.

DOT: Border plan to involve fewer that 1,000 Mexican trucks

The DOT has announced that the plan allowing Mexican trucks access to American highways will involve less than 1000 Mexican trucks.

American Trucking Association originally announced they supported the plan.  But now they are expressing concern that the Mexican trucks not be given preferential treatment and be held to the same safety standards and trucking regulations as American trucks.  James Hoffa, the Teamsters president, has announced the Teamster’s position that allowing Mexican trucks onto American highways is “playing Russian roulette with highway safety and national security”.

For more, go here.

Juror deliberations in the Scooter Libby trial

Law.com has a very interesting story about the juror deliberations in the Scooter Libby trial.  Regardless of whether you agree with the outcome, don’t you wish all juries were this focused, meticulous, and conscientious?

*****

ONE JUROR'S ACCOUNT

Collins, 57, a former Washington Post reporter, was the sole juror to give an account of the deliberations. The other 10 jurors declined to speak to the media, but Collins said, after years as a journalist, "I just figured it would be kind of hypocritical for me to walk away."

By his account, jurors gathered each day on the 6th floor of the courthouse, in a room overlooking the D.C. Department of Motor Vehicles. The room had two long tables and a few cushioned seats. When they arrived the first Wednesday afternoon, everyone looked at each other without knowing what to do. "They don't give you a field manual on how to be a juror," he said.

But the jury was a resourceful one, full of methodical panelists who knew how to take charge and break down complicated material into digestible bits. And that is what they did for the first week, gathering large Post-it notes (2 1/2 by 2 feet) with quotes and information concerning the evidence presented. The jury had some meticulous note-takers, Collins said, including one who calculated how many objections had been sustained during Russert's testimony (25 out of 36). For the first week of deliberations, the jury made no decisions, took no straw polls, but systematically went through the evidence. They asked: Who told the truth? Who lied? Who do we believe?

The debate was not about the war. It was not about politics. Collins said he didn't even know the politics of most jurors during deliberations. (Although he said he learned this morning that at least three were registered independents.) There were "differences of opinion, but no fistfights," Collins said. (For instance, he said one person thought former White House press secretary Ari Fleischer was a "slick willy," while Collins didn't think Fleischer had any motive to lie.)

At times, of course, the jury grew restless and would occasionally glance outside at a small stand with hot dogs and half-smokes. "It was like we were in a cocoon. I would forget what day it was," he said.

But in the end, Collins said, it simply came down to the facts, which pointed to a single answer: guilty. "Opinion had very little to do with it," he said.

What stood out most to the jury was Libby's account that he was "surprised" when he first learned that Valerie Plame worked at the CIA. "The least convincing thing was that Libby was working so hard that he could forget everything," Collins said.

Looking at the Post-its they had amassed, the jury found that in a short period of time Libby had either been told about Plame's employment, read about it, or told someone else at least nine times. "It seemed very unlikely that he would not have remembered about Mrs. Wilson," he said.

There was, he said, just too much evidence. He singled out the testimony from Marc Grossman, former undersecretary of state, who noted that the information about Wilson's wife was an "interesting tidbit." And Collins said that Cheney's handwritten notes on Wilson's op-ed questioning whether Plame sent her husband on a "junket" stood out.

"It was just very hard not to believe that he could remember on Tuesday and forget on Thursday and then remember two days later," Collins said, echoing the rhetoric Fitzgerald used during trial.

While the jury was inclined to believe that Libby had a bad memory, Collins said John Hannah, Libby's former national security adviser who testified for the defense, seemed to hurt Libby. Hannah testified that Libby had an "awful memory," but jurors found that didn't mesh with his comments that Libby had a strong memory for conceptual issues, Collins said.

But when it came to the count about Libby's statements to the FBI about Cooper, jurors were more skeptical. Their eventual decision to acquit on that charge stemmed from the lack of documentation on Cooper's part. Cooper had no notes to back up that Libby confirmed Plame's identity and there was a passage in Cooper's notes that the defense tried to suggest represented Libby's explanation of the conversation. While jurors weren't absolutely convinced about that passage, those questioned "weighed six ounces" and were enough to create "reasonable doubt," Collins said.

On the whole, though, jurors found the key reporters testifying for the prosecution to be credible, he said. Some even thought the defense attorney's badgering of Miller worked against Libby. "Some said I think she seems nice," Collins recounted.

Jurors put little weight in the parade of journalists that testified for the defense. And even though Libby didn't testify at trial, Collins said the jury felt very good about having eight hours of his grand jury testimony.

Despite their decision, Collins said, "We had tremendous sympathy" for Libby. One juror said he didn't want to be judging Libby. "This sucks," Collins quoted the juror as saying. "The belief of the jury was that he was tasked by the vice president to talk to reporters," he said.

Yet, Collins emphasized, "This wasn't about the war ... This wasn't a question of who can we punish for going into Iraq."

Completely unrelated to Texas Trucking Defense: cell phone tricks

This post is completely unrelated to Texas Trucking Defense, but it is so interesting and helpful we thought we would share it with you.  The information is from Ed Poll, an expert on law firm management, and it describes some tricks and hidden functions of cell phones:

Law firm management - Use of cell phones

Cell phones are ubiquitous  - In fact, I fear the next generation of young folks may be born with one arm at a 90 degree angle resulting from their parents seemingly being in a permanent "cocked arm" position.

However, there are things you can do with a cell phone that you may not have realized.  Check out the following:

First:  Emergency
The Emergency Number worldwide for Mobile is 112. If you find yourself out of the coverage area of your mobile; network and there is an emergency, dial 112 and the mobile will search any existing network to establish the emergency number for  you, and interestingly this number 112 can be dialed even if the keypad is locked.

Second:  Locked your keys in the car?
Does your car have remote keyless entry? This may come in handy someday. Good reason to own a cell phone: If you lock your keys in the car and the spare keys are at home, call someone at home on their cell phone from your cell phone.  Hold your cell phone about a foot from your car door and have the person at your home press the unlock button, holding it near the mobile phone on their end. Your car Will unlock. Saves someone from having to drive your keys to you. Distance is no object.  You could be hundreds of miles away, and if you can reach someone who has The other "remote" for your car, you can unlock the doors (or the trunk).

Third:  Hidden Battery Power
Imagine your cell battery is very low. To activate, press the keys *3370# Your cell will restart with this reserve and the instrument will show a 50% increase in battery.  This reserve will get charged when you charge your cell next time.

Fourth:  Disable a STOLEN mobile phone?
To check your Mobile phone's serial number, key in the following digits on Your phone: * # 0 6 #
A 15 digit code will appear on the screen. This number is unique to your handset. Write it down and keep it somewhere safe.  When your phone get stolen, you can phone your service provider and give them this code. They will then be able to block your handset so even if the thief changes the SIM card, your phone will be  totally useless. You probably won't get your phone back, but at least you know that whoever stole it can't use/sell it either. If everybody does this, there would be no point in people stealing mobile phones.

And Finally....

Fifth:  Free Directory Service for Cells
Cell phone companies are charging us $1.00 to $1.75 or more for 411 Information calls when they don't have to. Most of us do not carry a telephone directory in our vehicle, which makes this situation even more of a problem.
When you need to use the 411 information option, simply dial: (800) FREE 411, or (800) 373-3411 without incurring any charge at all. Program this into your cell phone now.

Analysis of issues related to ridiculous salaries for brand new associates

A couple of months ago, leading firms in New York and other large cities announced they would raise the compensation of the new-hires (brand new law school associates) to $160,000 per year.  Law.com has published another excellent story analyzing the effect of this decision.  Their basic point: luring new graduates with salaries that high might entice them to join the firm, but it actually might be counterproductive to the associate’s happiness and longevity with the firm.  Someone has to pay for those raises, and it will not be the partners in the law firm.  Rather, the associates will either have to work even longer hours (or exaggerate their hours!), or the rates will have to go up.  In my opinion, there is no way any client of legal services benefits from this trend.

Here are excepts from the story:

Is Raising Salaries the Best Way to Retain Associates?
Elizabeth Goldberg and Ben Hallman
The American Lawyer

*****

A higher salary "puts more pressure on productivity and hours," says Link, exacerbating precisely the quality-of-life issues that make junior lawyers unhappy.

*****

. . . Money isn't necessarily an associate's first concern. On The American Lawyer's 2006 survey of midlevel associates, Simpson scored much better in terms of satisfaction with benefits and compensation than it did with overall associate happiness.

"What the salary increase can't and won't do is address associates' myriad of concerns about more communication, more feedback and more robust training opportunities," says Miriam Herman of Blaqwell Inc., a legal consulting firm.

As for overall associate happiness, the raise could have a negative impact.

Many firms will ask associates to cover their own raises with longer days or higher productivity. During the last round of hikes, Dechert raised its New York salary from $125,000 to $145,000. At the same time, the firm raised its minimum billables from 1,950 to 2,000 hours, according to associates at Dechert. An associate at Covington & Burling says that even if there isn't a formal change in the requirements, partners will simply expect more hours.

"We don't say, 'Here's your raise, now work 50 more hours,'" says Roger Warin, chairman of Steptoe & Johnson. "But associates know, for most firms, that's the way the math works."

If the raise was a mistake, it was an expensive one. The game of keeping up with the Wall Street Joneses isn't cheap. While $8 million may represent a mere 2 percent of Simpson's net profits in 2005, it does mean that a minimum of $50,000 of per-equity partner profit will be redistributed to the associates. Not that firms intend to cut partner salaries to pay for the raise. While partner profits have grown almost twice as much as associate salaries over the last decade, consultants say that firms will raise either associate hours or hourly rates before they ask partners to pony up.

"They're going to have to squeeze more blood out of the turnip," says Peter Zeughauser, lead consultant at Zeughauser Group.

Of course, turnips, at least those of the associate variety, aren't complaining about getting paid more money.

"Everybody is happy that salaries have been going up," Harvard's Weber says. "But at what cost?"