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A couple of months ago I wrote an article on the risks posed to business owners by work related accidents.  This month the article will be addressing the broader topic of work place injuries.  Specifically, injuries suffered by employees while on the job.  Texas, like most states, creates strong incentives for businesses to provide their employee’s coverage for work-related injuries by purchasing workers’ compensation insurance.  Workers’ compensation is a state-regulated insurance program that helps people with work-related injuries and illnesses.  Although providing worker’s compensation insurance is not mandated by the State of Texas, most employers in labor intensive business, such as construction or manufacturing, purchase worker’s compensation insurance.  However, the Texas workers’ compensation insurance system has been criticized as both expensive and ineffective.  For this reason, some employers have opted not to provide workers’ compensation insurance, and take on what can be significant litigation risks that arise when employees are injured on the job.

When determining a business’ potential liability for work place injuries, the first question to be asked is whether the business has workers’ compensation coverage.  If the answer is yes, then the risk and exposure is very low and primarily related to a potential increase in workers’ compensation premiums.  This is because the Texas Labor Code makes the recovery of workers’  compensation benefits the exclusive remedy for an employee covered by workers’ compensation insurance.  This means that generally injured employees and their families cannot sue an employer for damages arising out of a work place injury if the employee is covered by workers’ compensation insurance.  There are only one exception.  If the employer’s gross negligence was a cause of the employee’s injuries, then the employee or his surviving family (if the employee was fatally injured) can recover exemplary damages in addition to workers’ compensation benefits.

For employees injured on the job, workers’ compensation insurance provides payment for medical care for the treatment of their injuries; and, depending on the type and severity of the injury, workers’ compensation may also provide payments to replace some of an injured employee’s lost income, up to time and dollar limits set by law; compensation for burial expenses for employees killed on the job; and death benefits for dependents of employees killed on the job.  Benefits for lost wages are based on a percentage of the employee’s income.  If the injury is severe but does not result in death, the employee’s additional benefits are determined based on a medical exam and the application of a formula to the doctor’s determination of percentage of impairment.  Death benefits are determined based on a formula that takes into account the employee’s current earnings and his age at the time of death.

Employee rights groups have criticized the workers’ compensation system  arguing that it limits employees’ access to the doctors of their choosing and the benefit payments do not adequately compensate employees.  Employer friendly groups have complained the insurance in some industries is cost prohibitive.  Both employer and employee groups have complained that they system fails to effectively treat injuries so that the employee can return to work as soon as possible.  An additional risk associated with carrying workers’ compensation insurance for the employer is the potential for liability arising from what is referred to as workers’ compensation retaliation.  Workers’ compensation retaliation claims can arise if an employee is terminated when they have filed or are going to file a claim for workers’ compensation benefits.  Generally, Texas law does not allow employers to terminate an employee for having filed a claim for worker’s compensation benefits.  Because of these problems and risks, some businesses have decided not to participate in the workers’ compensation system.  These businesses are commonly referred to as non-subscribers.

Non-Subscribers are required by the State of Texas to file an annual notice with the Department of Justice, post notices in their personnel offices and workplaces that they do not provide workers’ compensation insurance, and tell each new employee in writing that they don’t have workers’ compensation insurance.  From a liability standpoint, non-subscribers  have increased exposure to lawsuits by injured employees.  Injured employees can sue non-subscribers over workplace injuries.  If they’re sued, non-subscribers can’t argue in court that the injured employee’s negligence caused the injury; another employee’s negligence caused the injury; or the injured employee knew about the danger and voluntarily accepted it.  Generally, injured employees seek to recover damages for lost wages, medical care, and pain and suffering.

Some non-subscribers mitigate the risk of employee suits by providing occupational insurance coverage and/or by providing health insurance and short term and long term disability coverage.  For some employers, these coverages would  have been provided anyway and/or can be obtained for a lower cost than worker’s compensation coverage.  When these coverages are in place, then can discourage lawsuits because the employee’s healthcare needs will be insured and, in the event of a lengthy work absence, there will be some wage replacement.  When the right benefits are in place, insurance can also be a more efficient method of recovering losses for the employee as well.  This is so because most attorneys who file suits against non-subscribers receive a fee of one-third to forty percent of any recovery.

Texas is one of a minority of states that does not require employers to participate in a worker’s compensation insurance system.  Like all freedoms, this one involves a risk.  Therefore, a careful risk benefit analysis should be done by any employer who engages in a business where there are frequent or potentially catastrophic injuries.  If you need help weighing your options, more information about this topic is available on the Texas Department of Insurance webpage and from licensed agents who specialize in selling workers’ compensation insurance.


Over the past twenty to thirty years, alternative dispute resolution (commonly referred to as “ADR”) has played an increasingly important role in resolving most business disputes. To understand why and how ADR could be beneficial to your business when you find yourself faced with actual or potential litigation, you have to start by understanding what ADR is an alternative to. Simply put, it is an alternative to a fully developed lawsuit tried before a judge or jury. In the late 1980’s the Texas Legislature passed statutes officially sanctioning several types of ADR procedures and providing protections for those parties and professionals who chose to participate in them. The procedures officially sanctioned by Texas Statutes include mediation, mini-trial, moderated settlement conference, summary trial, and arbitration. More recently, a process generally referred to as collaborative law has become increasing popular, but primarily in divorce cases. Of these procedures, the most often utilized are mediation and arbitration followed, in my experience, in a distant third place by collaborative law.

Since it became officially sanctioned by the Legislature, mediation has become, by far, the most common form of ADR. This is largely because of its effectiveness. Judged from a trial court’s perspective, mediation is successful when a case is resolved and thus off the court’s docket. Measured this way, mediation is successful eighty to ninety percent of the time. Because of this overwhelming success rate, most courts require a mediation before they will permit a case to go to a jury trial.

Mediation is essentially a settlement meeting that the parties attend in person conducted by a neutral third party, typically a lawyer or retired judge who does not represent either party. The third party mediator has no authority to decide the dispute and whether the parties resolve the suit at the mediation depends completely upon the parties’ mutual agreement to do so. The benefits of mediation are many, but in my opinion, there are three primary benefits. The first of these is focus. Mediation forces the parties to set significant time aside to concentrate on the dispute. It is human nature to defer dealing with difficult problems and bad relationships. Litigation often arises out of one or both of these. Mediation forces the parties to focus on the dispute in spite of the unpleasantness of the task. Second, mediation forces the parties to at least hear a different perspective. Parties to disputes are usually able to better process the other party’s position when they have devoted an extended period of time to focus on the dispute. In litigation, the parties’ discussions and consideration of the dispute, and sometimes even an attorney’s, can become an echo chamber of only likeminded views. Day to day, you may hear what the other side is saying, but, consciously or not, you can quickly move on to other things without really considering or processing whether it has any merit. Mediation, particularly with a good mediator, can help the parties break free from their typically narrow, black and white view of what happened and who is responsible. Finally, because mediation is a forum for settling disputes, it forces the parties to consider what they want. Do they really want to continue with the litigation? Sometimes, the inertia of the decision to bring a lawsuit needs to be broken. Do they want to focus on trying to salvage a business relationship or attempt to maximize a recovery in the lawsuit? If available, do they want to consider alternatives to resolution that a court cannot provide? Surprisingly often, these questions have not been given the attention they deserve and mediation forces the parties to provide answers.

Arbitration differs significantly from mediation. Arbitration replaces the judge or jury with an arbitrator who will decide who wins and who loses in the dispute. Arbitration typically arises out of a prior agreement of the parties. For example, many real estate contracts contain clauses that require the parties to arbitrate any dispute arising from the agreement. Texas courts are extremely differential to such contractual provisions and will typically enforce them if either party requests it. Ten to fifteen years ago, arbitration was a favored forum for many large businesses. This trend has waned. When a dispute has limited scope or requires special expertise, arbitration can be beneficial for both parties. However, it has proven to be more costly than court supervised discovery and litigation. When you arbitrate, you have essentially decided to pay a private judge, and sometimes his court staff, instead of utilizing a court system which is taxpayer funded. In my opinion, when used by big business today, arbitration clauses are used to prevent disputes from being decided, specifically class action lawsuits rather than providing an alternative forum for their resolution. Before voluntarily agreeing to arbitrate, you should carefully consider the costs and anticipated benefits and, if possible, tailor the process to your specific dispute. For instance, using experts in a specialized or technical field to serve as arbitrators can be beneficial in the right circumstances.

Although the legislature sanctions mini-trials, moderated settlement conferences, and summary trials, there has been very limited use of these procedures in business or other litigation in Texas. This is likely a consequence of the success of the mediation process and the relative lack of benefits of these processes relative to the cost and risks associated with using them. Perhaps to fill this void or as a refinement on the idea behind these processes, collaborative law has emerged over the past decade. The collaborative process is party focused and is usually utilized before a lawsuit has been filed. The parties agree not to litigate while they are utilizing the process and the professionals, including lawyers, accountants, or other experts agree they will not participate in future litigation. In the business setting, the collaborative approach can have real utility where the parties have, or wish to have, an ongoing relationship and want to preserve and foster trust. Where there is little trust and no need or desire for an ongoing relationship, the benefits of the collaborative process won’t likely be sufficient to justify use of the process. An early mediation or settlement conference would likely produce the same results.

In business, disputes are evitable. We have an excellent civil justice system, which is the envy of the most of the world. However, as part of that process or separate from it, there are alternatives. When you are confronted with a dispute, I recommend you discuss and consider the alternatives with a lawyer qualified to handle your specific dispute.

The Panama Papers are an unprecedented leak of 11.5 million files from the database of the world’s fourth largest offshore law firm, Mossack Fonseca. Among the revelations within the leaked database is that twelve national leaders are among 143 politicians, their families and close associates from around the world known to have been using offshore creditor and tax havens.

With the added intrigue of tax havens, politicians, and the rich and famous, the current Panama Papers situation reminds us that many people (wealthy or otherwise) use mostly legal shelters to protect their assets. From a historical point of view, the leak should be viewed less as evidence of recent sea change and more as the modern manifestation of a well-established practice. In fact, the novelty illustrated by the Panama Papers may be the globalization or standardization of the tools used for asset protection by the wealthy across the globe. As observed by Crawford Spencer, a professor of accounting from the Warwick Business School in the U.K. in a recent article on the Panama Papers, “That the global elite ensconce their money in offshore tax havens and byzantine corporate structures is nothing new. However, these latest revelations… are novel in that they show how elites from different walks of life come together in order to avoid scrutiny of their affairs by state authorities and the public more broadly.” Not only is the behavior of today’s wealthy in seeking out protection of their assets nothing new, Panama’s use of asset protection as a means of recruiting investment within its borders is nothing new.
In fact, Texas residents don’t need to seek out exotic locals or foreign lands to find historical evidence of the use of asset protection to attract investment and settlement. Most readers are likely aware that your “homestead,” the house and land you intend to occupy as your main home, are exempt from creditor’s claims. In Texas, up to 10 acres of an urban family home, plus improvements, and up to 200 acres in rural areas — except for single adults, who are limited to 100 acres — are exempt from the claims of general creditors. What you may not be aware of is why Texans enjoy such generous homestead protections.

Many Americans who settled Texas in the early nineteenth century were pursued by their creditors, and for their protection Stephen F. Austin recommended a moratorium on the collection of the colonists’ foreign debts. In response to that recommendation, the legislature of Coahuila and Texas enacted Decree No. 70 of 1829 to exempt from creditors’ claims lands received from the sovereign as well as certain movable property. Although that act was repealed in 1831, the principle remained alive in Texans’ minds and was a model for the Texas Act of 1839, which protected the home of a family from seizure by a creditor. This was the first law of this sort, and the principle of homestead exemption is therefore deemed Texas’s particular contribution to American jurisprudence. The homestead principle was embodied in the Texas Constitution of 1845 and all constitutions thereafter. In other words, Texas was a forerunner of Panama as being an innovator in creating the legal protection of assets from creditors.

Even if you didn’t know the history of the homestead protection, it is easy to see history’s influence in some of our State’s personal property exemptions. Today, personal property with a fair market value of no more than $60,000 for a family and $30,000 for a single adult is protected. This includes horses, up to twelve head of cattle, and (of course) two guns. Other personal property that creditors can’t seize from Texans include your car, farming or ranching vehicles, clothes, pets, and athletic and sporting equipment, including bicycles. In addition to horses and twelve head of cattle, two mules or donkeys, and a saddle, blanket and bridle for each are exempt.

This early legacy of asset protection in Texas has not waned. Led by the famous homestead exemption, our debtor-friendly state shelters the most significant parts of an average family’s wealth from creditors. Much as it was in 1845, the Texas Constitution continues to be the foundation for protection of debtors from creditor actions. For instance, the Texas Constitution does not cap the value of the homestead exemption. The Texas exemption is done by the area of land, so it doesn’t matter how expensive it is. If your 200 acres is worth $2 million or $200,000, it doesn’t matter. You still get your 200 acres.

Although legal protection from creditor’s claims goes all the way back to Texas’s early recruitment of settlers, today Texans enjoy protection of many modern classes of assets. For example, in general, IRAs, 401(k)s, traditional pension plans, profit-sharing plans, annuities, and life insurance proceeds are protected from creditors. Also protected are college savings plans, such as 529 plans, and prepaid tuition plans.

Whether or not we choose to be proud of Texas’s singular contribution of the Homestead exemption to American jurisprudence, or are disappointed by what we have learned from the Panama Paper’s leaks, knowledge of our own Texas history can help us keep today’s global events in perspective and allow us to at least acknowledge that the impulse to protect what we claim as our own is part of the human condition.

While many advocates of House Bill 910 tout the bill’s passage as a big win for the Second Amendment, the law creates new and interesting challenges for business and property owners.   HB 910 did not change the rules and restrictions already in place as to concealed handguns. These laws are still applicable and apply to Open Carry as well. Generally, prior to the passage of HB 910, a person could obtain a license to carry a conceal

texas-concealed-carry-sign-nhb-28237_1000ed handgun and after obtaining that license could carry a concealed handgun in most bu
sinesses unless the business or property owner posted a sign in compliance with State law that prohibited concealed handguns on their premises. The sign prohibiting concealed handguns is referred to generally as a Section 30.06 sign.

What the passage of HB 910 basically accomplished was to authorize individuals to openly carry a handgun in places where carrying of a concealed handgun had previously been allowed, with the following two exceptions. The first exception is that open carry is not permitted on the premises and any public or private driveway, street, sidewalk or walkway, parking lot, parking garage or other parking area of an institution of higher education or private or independent institution of higher education. The second exception will not affect many CHL permit holders. It prohibits individuals acting as personal protection officers under Chapter 1702, Texas Occupations Code, who are not wearing a uniform from openly carrying a handgun.

When an individual is openly carrying a handgun, HB 910 requires the handgun to be carried in a shoulder or belt holster, whether the gun is loaded or unloaded. The criteria for obtaining a license to carry a handgun (concealed or openly) were not changed by HB 910. Current holders of concealed handgun licenses may continue to carry handguns with that license, and current license holders will not be required to attend additional training or pay any additional fee to openly carry a handgun. New applicants for handgun licenses will be required to complete training which will be updated to reflect the new requirements relating to the use of restraint holders and other methods to ensure the secure carrying of openly carried handguns.

Important to business owners, businesses may continue to prohibit the carrying of handguns, whether concealed or open, in their place of business. In order to do so, the business owner should post signs on the property to prohibit entry by a licensed holder with a handgun. There is required statutory language for this signage. The open carry sign is generally referred to as a Section 30.07 sign. If a business owner wants to prohibit both concealed and open carry, both the Section 30.06 and Section 30.07 signs must be displayed in English and Spanish.

Apart from the purely mechanical obligations HB 910 creates, many businesses have felt thrust into a political debate that they might rather have avoided. For instance, Open Carry Texas, one of the organizations that helped spur the Legislature into action on the issue, wants business owners to know that opting out of open carry can carry financial consequences. The group sells 50 packs of cards for supporters of the law to pass out to businesses displaying 30.07 signs to inform management that, because they can’t bring their guns in, they won’t be spending money there. A quick survey of the messages posted to Facebook around the New Year reveals that people on the opposite side of the issue have their own cards that remind businesses that they will not patronize businesses where open carry is permitted.

Likely, most businesses will be looking for a “neutral” position to take. Public companies usually recognize that their responsibility is to their shareholders which requires they alienate as few of their customers as possible. As reported in Texas Monthly, Whataburger’s CEO wrote this blog post over the summer when then the law was signed:

“[A]s a representative of Whataburger, I want you to know we proudly serve the gun rights community. I personally enjoy hunting and also have my concealed carry license, as do others at Whataburger.

From a business standpoint, though, we have to think about how open carry impacts our 34,000+ employees and millions of customers. We serve customers from all walks of life at more than 780 locations, 24 hours a day, in 10 states and we’re known for a family friendly atmosphere that customers have come to expect from us. We’re the gathering spot for Little League teams, church groups and high school kids after football games.

We’ve had many customers and employees tell us they’re uncomfortable being around someone with a visible firearm who is not a member of law enforcement, and as a business, we have to listen and value that feedback in the same way we value yours. We have a responsibility to make sure everyone who walks into our restaurants feels comfortable. For that reason, we don’t restrict licensed concealed carry but do ask customers not to open carry in our restaurants.”

Surprisingly, some online groups who support Second Amendment rights feel that open carry has done more to harm their cause than help. As one post lamented, “If you’re making one sign for open carry it’s just as easy to make two [and prevent both open and concealed carry.”] In 2016, in Texas, open carry is the law of the land, and no matter how apolitical a business would like to be, every business owner is now confronted with the choice of whether open carry on their premises is what’s best for business.

Samuel B. Burke is board certified by the Texas Board of Legal Specialization in Civil Trial Law and may be contacted at and


Coinciid-fraud-protection-01ding with the widespread adoption of computer technology and the use of the internet to conduct business, identity theft is the fastest growing crime in the country. According to federal statistics, more than 20,000 Texas families file identity theft complaints each year
and that number reflects only those who know they were victimized. For many, it takes months or years to discover they have been victimized, and by that point they have been substantially harmed. Nationally, it is estimated that identity theft drains at least $50 billion from our economy – most of these losses are absorbed by businesses when identity thieves run up huge lines of credit and make purchases under the names of their victims.

Reacting to this problem, new Texas laws have reinforced the need for businesses to handle and dispose of their customers’ personal information with care. Exposing your customer’s information to the risk of identity theft can carry hefty penalties, even when the information does not end up in the wrong hands.

Businesses commonly mishandle sensitive information by failing to shred receipts and other documents with customers’ personal data before throwing them into the trash. According to the Texas Attorney General’s office, State investigators conduct routine spot-checks as part of ongoing enforcement efforts, and the Texas Attorney General’s office has brought several legal actions against large companies that have improperly disposed of records with information such as credit card and Social Security numbers.

Several new laws can result in fines for businesses that mishandle information. New provisions of Chapter 35 of the Business and Commerce Code require businesses to develop retention and disposal procedures for their clients’ personal information. The law provides for fines of up to $500.00 for each record that could potentially land in the wrong hands. The new Identity Theft Enforcement Act can mean fines of up to $50,000.00 – even for a single record. Additionally, businesses that give consumers specific reassurances about how their privacy will be protected and subsequently fail to live up to those promises could face penalties of up to $20,000.00, per violation.

In light of the potential for fines imposed by the State and lawsuits from affected customers, businesses should carefully review their practices and put into place necessary measures that will prevent clients’ personal information from ending up in the wrong hands.

The following are some of the types of customer information most susceptible to being mishandled or improperly discarded by businesses:

Credit and debit card numbers
Social Security numbers
Bank account information
Mother’s maiden names
Dates of birth
Account numbers within the business (i.e. membership number)

This information commonly appears in the following paper documents and electronic files:

Refund forms
Credit and employment applications
Bank statements
Checks / money orders
IRS-related documents
Personnel files
Medical records
Sweepstakes entry forms
Email / hard copy correspondence
Disks, magnetic tape, and all other data storage devices
Discarded computers

As an initial part of any business’ plan to protect its customer’s information, businesses should develop a list of all the types of information they handle, who handles it, where that information is maintained and how it is disposed of when it is no longer needed. Once the flow of customer information is understood, businesses should create written protocols about how to properly handle that information and how to dispose of it. These protocols could include shredding applicable paper documents, permanently deleting electronic files, and properly destroying / wiping old computers and data storage devices.

Businesses should be particularly careful when disposing of storage devices and old computers. Simply hitting the “delete” button seldom erases data from a disk or hard drive. Ideally, computers should be professionally “wiped” before they are discarded.

Businesses that obtain consumers’ personal information through websites, such as accepting credit cards to purchase goods and services, must be careful that those pages are properly safeguarded. Because of the constantly changing nature of the internet and the tactics used by hackers, businesses should review and update security measures for their websites and internal systems on a regular basis.

Computer technology and the internet have opened up new lines of business and streams of customers for many businesses, and have improved the efficiency and productivity of most. Unfortunately, at the same time, new opportunities have been created for theft. New Texas laws highlight that it is no longer good enough for businesses to enjoy the benefits of new technologies without accepting the responsibility of taking reasonable steps to protect their customer’s information. Businesses must be proactive about understanding their responsibilities and taking steps to meet them.

Sam Burke is board certified by the Texas Board of Legal Specialization in Civil Trial Law and can be reached at and

In many types of civil lawsuits, Plaintiffs can sue for punitive damages.  Punitive damages are damages intended to punish a Defendant when they have engaged in fraud or acted with malice or where the Defendant was grossly negligent.  Punitive damages are also recoverable in a host of circumstances when the Defendant’s conduct violates a criminal statute.  By their nature, punitive damages (sometimes called exemplary damages) are in addition to the damages that compensate a Plaintiff for their loss.  Until the late 1980’s, in Texas, the focus of the evidence regarding the amount of punitive damages was the injury inflicted rather than the ability of the Defendant to pay.  Therefore, Texas courts did not allow discovery of net worth.  In a case named Lunsford v. Morris, the Texas Supreme Court changed this rule and for the first time permitted the use of evidence of a Defendant’s net worth.  The Supreme Court in Lunsford decided that net worth evidence was relevant and necessary to accomplish one of the main objectives of punitive damages – deterrence.  In making this change, the Texas Supreme Court also decided that no prima facie showing of entitlement to punitive damages was required before the Plaintiff was entitled to discover the Defendant’s net worth.  Left undecided by the Texas Supreme Court in Lunsford was the definition of net worth, what types of information could be obtained to determine net worth, and on what date or dates was the Defendant’s net worth relevant.

The Texas Supreme Court’s decision in Lunsford was later codified in section 41.011(a) of the Texas Civil Practice and Remedies Code.  In pertinent part, Section 41.011(a) states that, “[I]n determining the amount of exemplary damages, the trier of fact shall consider evidence, if any, relating to… the net worth of the Defendant.”  Because Texas state courts require pleadings to provide only fair notice of the Plaintiff’s claims, almost any Plaintiff could plead a claim for punitive damages and thus require the Defendant to reveal his or her net worth.  When the legislature codified the Lunsford holding, they also did not provide a definition of net worth nor did they provide any guidance regarding at what point or points in time the Defendant’s net worth was relevant.

Separate and apart from its potential use to support a punitive damages claim, a party’s net worth information is useful in negotiations.  Knowing what a party can pay may influence what you ask for.  In fact, in cases where insurance is available to pay a claim, parties are required to disclose the limits of their insurance.  The exchange of this information in many cases greatly increased the parties’ ability to negotiate in good faith.  While I seldom, if ever, encountered a  fraudulently pled punitive damages allegation which I believed was solely intended to obtain net worth information, the potential for abuse exists.  It is also often disturbing to clients to learn that this type of information is discoverable just because someone alleges they have committed an act that they wholeheartedly deny.  Additionally, parties would, at times, disagree regarding the definition of net worth, what types of information should be discoverable to determine net worth, and regarding the time frame during which the Plaintiff should be able to discover a Defendant’s net worth.

In this past Legislative session, the Legislature passed and the Governor signed into law Senate Bill 735.  This bill greatly reduces the potential for abuse of punitive damages allegations to obtain net worth discovery.  First, Senate Bill 735 provides a definition of net worth.  The new definition is “the total assets of a person minus the total liabilities of a person on a date determined appropriate by the trial court.”  This definition provides some clarity regarding what net worth means.  It informs litigants that net worth will be determined on a specific date, and also provides a process for deciding on the relevant date.

Importantly, the Bill also provides guidance regarding what type of information may be obtained regarding a party’s net worth.  The Bill limits the trial court to authorizing only the least burdensome method available to obtain net worth evidence.  Most significantly, the Bill allows Plaintiffs to conduct net worth discovery only after they have demonstrated a substantial likelihood of success on the merits of a claim for exemplary damages. Now, when a Plaintiff desires net worth information, the Plaintiff must file a motion with the trial court requesting the discovery.  As part of this motion, the Plaintiff must submit evidence supporting his or her claim for punitive damages.  Also, by filing the motion requesting net worth information, the Plaintiff is considered to have had sufficient time to obtain evidence supporting their punitive damages claim and the Defendant may file a motion for summary judgment on the claim.

These changes, which apply to all suits filed after September 1st of this year, will likely curb any abuses of net worth discovery.  What remains to be seen is if the costs of additional hearings and appeals which the procedure will create will be worth the extra-protection that has been provided.  Previously, net worth discovery was often worked out between the parties and the chances of misuse of the information were reduced by protective orders limiting disclosure of the information obtained and how it could be used.  It is also possible that Defendants with greater resources will take advantage of the additional hearings and appeals now required to obtain net worth discovery to prevent Plaintiffs from obtaining information that they have legitimately requested.  Time will tell.  For now, Defendants will at least enjoy clearer standards regarding the types of net worth information they may be required to turn over and will not be required to provide this information merely because allegations of wrongdoing have been made against them.

Jim Dwyer summed up the problems with memory beautifully when he wrote, “The real world of memory is made of bits of true facts, surrounded by holes that we spackle over with guesses and beliefs and crowded-sourced rumors.” Mr. Dwyer wrote those words in a report for the New York Times about the police shooting of David Baril in New York City in May of this year. Like many recent police shootings, the shooting of Mr. Baril was captured on video, in this case a surveillance camera, so there is quite a bit of certainty about what occurred. Mr. Baril pulled a hammer out of his coat and began chasing a police officer with it. After recognizing what was happening, a second officer pulled his gun and charged at Mr. Baril from behind shooting Mr. Baril before he could bring his hammer down on the first officer.

For most, witnessing something like this happening is a once in a lifetime experience. The kind of event people would expect to remember well. Because of the proliferation of video evidence (almost everyone with a smartphone is now a potential source of video), we are learning that even memories of unique events can be grossly inaccurate. One bystander who witnessed the Baril shooting reported that he heard a ruckus, some shouts, and then saw a police officer chase a man into the street and shoot him down in the middle of the street. A second witness reported that she saw a man who was handcuffed being shot. Neither of these two witnesses knew Mr. Baril or had any apparent motive to lie about what they saw.

What the Baril incident illustrates, that eyewitness testimony can be very unreliable, may be surprising to some, but it is no longer surprising to psychologists and scientists who study memory and eyewitness accounts. In 2015, the National Academy of Sciences released a report calling for an overhaul of how courts deal with eyewitness identification. The saying “justice delayed is justice denied”, may be especially true when cases are built on a witness’ recollection. Because, when it comes to long-term recollections, most memory researchers believe modifications to memory are constantly being made, with gaps in narrative being filled with experiences and expectations. This gap filling can lead even honest people to transform expectations into promises. For example, “I expected the plumber to stand behind his work” can become “the plumber told me he stood behind his work.”

Fortunately for those who depend on evidence to right wrongs, the explosion of digital information in its many forms seems to be filling the void that is being created by our loss of confidence in eyewitness accounts and witness recollection. Unfortunately, however, our justice system has not fully developed cost-effective logistical tools for the retrieval and processing of all this information. But those tools are on the way and they will likely continue to transform how and what evidence is presented in courtrooms across the country. For example, mobile data extraction devices now exist which crack password protected devices and recover deleted data. The software used by these devices can even render reports that show a timeline of the user’s interaction with the device such as text messages, phone calls, emails, etc. In the Arron Hernandez trial, police used cell phone information to place Mr. Hernandez at the scene of the crime, even though no eyewitness could do so. This evidence was so powerful that Mr. Hernandez’s lawyer was force to admit in closing argument his client was at the scene of the murder.

It is becoming more common for inspections of computers, smart phones, and other mobile devices to be made at the start of litigation. Also, fertile ground for investigation are social media postings such as those routinely made on Facebook and Twitter. Forbes recently reported on an example of the rise in the use of social media in litigation. The report in Forbes involved a worker whose Facebook posting became the subject of a discovery dispute and may ultimately decide the outcome of the case. Apparently, a man named Mr. Crowe claimed to have injured his knee at work. He sued his employer for the injury. Based on a message sent to a friend on Facebook, Mr. Crowe’s employer believed the knee injury may have occurred outside of work. In an apparent attempt to avoid the discovery of this message, Mr. Crowe deactivated his account and claimed he did not currently have a Facebook account. After the court became aware of Mr. Crowe’s verbal slight of hand, Mr. Crowe was ordered to turn over all 4,000 pages of information that had accumulated on his Facebook account since it was created. After the court reviewed the Facebook information Mr. Crowe produced, his case took a turn for the worse. A turn it may not have taken before the use of social media became so common.

We live in interesting times. We are learning that our recollections may not be as reliable as we once believed. At the same time, we are actively preserving more and more digital information about our everyday lives and the events around us. If current trends continue, court cases will be decided less and less by what witnesses say and more by the trail of digital information they create.

Samuel B. Burke is board certified in Civil Trial Law by the Texas Board of Legal Specialization and can be reached at and/or

A claim for personal injury to the health, reputation, or person of any injured person survives their death in favor of the deceased’s heirs, legal representatives, and estate.  The damages that can be recovered include pain and mental anguish; medical expenses; funeral and burial expenses; and punitive damages.  If you believe you have a potential claim, please feel free to contact me at 940.891.0003 to set up a cost-free consultation to discuss your case.  *Please note that this Blog does not address a claim under the Wrongful Death Statute, which is addressed in a prior Blog. I look forward to visiting with you next time.    Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood Cartwright Burke PC.

When a person dies as a result of injuries caused by a defendant or his agent’s or servant’s wrongful act, negligence, carelessness, or unskillfulness, the deceased’s surviving spouse, children, and/or parents each have a claim against the party(ies) causing the death.  The claim is called a wrongful death claim, and permits the spouse, children, and/or parents to file suit to recover various damages, including past and future pecuniary loss (i.e., the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that the survivor would have, in reasonable probability, received had the decedent lived); past and future loss of companionship and society; past and future mental anguish; loss of inheritance (i.e., the loss of the present value of the assets that the deceased, in reasonable probability, would have added to the estate and left at his natural death to the survivor); and punitive damages.   If you believe you have a wrongful death, please feel free to contact me at 940.891.0003 to set up a cost-free consultation to discuss your case.  *Please note that this Blog applies to wrongful death claims only, and not survival claims that belong the decedent’s estate.  This is a separate topic which is better discussed in a separate blog.  I look forward to visiting with you next time.    Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood Cartwright Burke PC.

Many people who are injured, whether as a result of a car wreck, medical malpractice, or otherwise, focus on the negligence of the person who injured them, believing that this is all that they must prove in order to recover damages. Unfortunately, negligence is only part of what must be proven. What some do not realize is that they must also prove that the defendant’s negligence caused their injury. To do this, the plaintiff must prove that the defendant’s negligence was a cause that was a substantial factor in bringing about the occurrence or your injury, and without which cause such occurrence or injury would not have occurred. Furthermore, the plaintiff must establish that the act or omission complained of was such that a person using ordinary care would have foreseen that the occurrence or injury, or some similar occurrence or injury, might reasonably result therefrom. In some instances, causation is not very difficult to prove. For example, the defendant runs a stop sign, hits you, and you suffer a broken arm as a result of the collision. In some instances, however, causation can be problematic. For example, the defendant runs a stop sign, hits the plaintiff, and the plaintiff is later diagnosed with a bulging disc. However, the plaintiff is 80 years old, has had 3 back surgeries, and was diagnosed before the wreck with degenerative spine disease. That plaintiff will need a medical doctor who can testify that the bulging disc was caused by the accident and not the prior medical condition of the plaintiff. Because the issue of causation is so important, do not put off consulting with a qualified personal injury trial attorney to assist you in determining if you have a claim. Therefore, please feel free to contact me at 940.891.0003 to set up a cost-free consultation to discuss your case. I look forward to visiting with you next time. Brian T. Cartwright, Board Certified, Personal Injury Trial Law, AV-Rated, Martindale-Hubbell, Shareholder, Alagood Cartwright Burke PC.