Avoid a Final Costly Mistake

In death as in life, chaos surrounds Anna Nicole Smith. For a week the media fixated on the probate hearing that was to determine her final resting place. Why? Because the bombshell blond, despite her fortune, had failed to have her last will and testament properly prepared. Sadly, it’s an all too common mistake.

Just recently, a distant family member of a client, whom I was representing on another matter, became terminally ill. Without talking to me about the situation and with no estate planning documents in place, the family did the best they could in attempting to draft a will following the direction of the distant relative. In trying to save time and money, they unfortunately created a flawed document. Later, the client consulted with me regarding the matter, and we attempted to have the will admitted to probate. The failure to have the will properly executed prevented its admission to probate. In this case, the estate assets then passed according to the Texas intestacy law, which was sadly contrary to the intent of the decedent as expressed in his defective will.

Preparing estate planning documents is actually a relatively small expenditure, especially when you consider the cost of a flawed will. For usually under a thousand dollars, an experienced attorney should be able to create a simple set of estate planning documents for a husband and wife. You should have a set of wills, durable powers of attorney, directives to physicians (also known as a living will), and a set of medical powers of attorney. If you’re single, you will want to designate someone to be the beneficiary of your estate, and to have your power of attorney.

An attorney who is knowledgeable in estate planning will be able to analyze your situation and give some thought into planning your documents with consideration to the roles of family members and close friends who might be appropriately named for a role in the estate. By taking the time now, you’ll save your loved ones considerable expense and a lot of headaches in the future.

“Good Hands” Giving Policyholders a Beating

Since New Mexico plaintiffs’ attorney David Berardinelli published his book, From Good Hands to Boxing Gloves last spring, the spotlight has shown increasingly brighter on Allstate Insurance’s claims handling policies. In May, Businessweek described the book as the “story of the key role played by management consultant McKinsey & Co. in reengineering auto insurance claims operations at Allstate Corp…a story Allstate doesn’t want told.”

On Wednesday, February 7, CNN’s Anderson Cooper addressed the insurance giant’s dirty dealings with a much broader audience.

“CNN's investigation reveals a strategy to increase profits by limiting payments to accident victims. And former insurance insiders say most of the industry has adopted the strategy. Allstate and State Farm, the industry leaders, would not talk to CNN for this report.”

For a transcript of this segment, click here.

Not surprisingly, Allstate declined to be interviewed for the segment. However, interviews with Berardinelli, former insurance industry insiders and victims revealed a profit above all else mentality.

University of Nevada at Las Vegas Law professor Jeff Stempel stated what trial lawyers wish everyone knew:

“We can see that policyholders individually are getting hurt by being dragged into court on fender bender claims. And yet we don't see collateral benefit in the form of reduced premiums, even for the other policyholders. So, I think now we can say to continue this kind of program is, in my view, institutionalized bad faith.”

After 30 plus years of being an attorney for the little guy, I’ve had my share of dealings with Allstate. Presenting any claim to these folks, even if the claim is fair and reasonable is extremely difficult. This is due to the fact that Allstate has adopted the new McKinsey approach to claims handling, which is to deny almost any claim, even if it is reasonable and the Allstate insured was at fault. Allstate has billions of dollars of premium income to spend denying claims. They’re mean, arrogant and will stall and delay until you settle on their terms.

Lately, Allstate has taken a slightly different tack in Texas. In my case, a client, whom I recently represented, received a default judgment on her lawsuit seeking damages from an Allstate-insured who had broadsided her after running a red light. The client and her minor son were each awarded default judgments against the Allstate-insured for less than $30,000 each.

When demand was made on Allstate for payment of the judgments, they refused to pay, contending that their insured had not notified them of service of citation. However, shortly after filing the lawsuit, I had advised the Allstate adjuster that the suit had been filed. Allstate failed to file an answer on behalf of their insured, leaving their insured exposed to $50,000 in judgments, and refused to pay a valid judgment awarded by the court. Thus, the Allstate-insured was injured financially, and my client is being hindered in her efforts to collect the judgments. Yet another example of the “Good Hands” at Allstate.

Until more people become aware of the Allstate tactics and voice their objections, we’ll keep seeing these underhanded dealings from the “Good Hands” folks at Allstate.

Judges’ Decision Cracks Foundation of Legal System

Texas trial lawyers have been complaining loud and clear about the way the Texas Supreme Court is overturning jury verdicts. Our cries have fallen on deaf ears. Now that academics are speaking out about our diminishing right to trial by jury, perhaps citizens (and voters) will listen.

Baylor University law professor Gerald R. Powell has filed an excellent Letter Brief of Amicus Curiae with the Texas Supreme Court, following their decision in The Coca-Cola Co., et al. v. Harmar Bottling Co., et al. Professor Powell minces no words when he sums up the sad state of jury verdicts in Texas:

“If appellate courts so freely reverse jury verdicts, then there is little chance that trial by jury can long endure upon so unstable a foundation. Each tremor is an alarm to us all – it is a siren warning of the widening chasm ahead.”

To read the entire brief, click here.

You Can Teach an Old Dog New Tricks

After practicing law in the great State of Texas for the better part of four decades, I have found the main focus of my firm under attack. Zealous tort reformers have made it virtually impossible for anyone who’s been wronged to seek reasonable damages. In the eighties and nineties, Republican judges swarmed the courthouses. Today, they reign supreme on Texas’ top court, thus rendering any lower court’s pro-plaintiff judgment ultimately ineffective. The Bush White House may deem any judge just left of center an “activist judge,” but it was their legions that started that “activist” trend in North Texas by consistently ruling pro-business. The passing of Proposition 12 in 2003, which caps non-economic damages, was the final straw for this plaintiff’s lawyer. It seems today that no matter what the case; it’s practically dead in the water before it ever sees the inside of a courtroom.

This dark environment has given seasoned trial lawyers like me a reason to branch out and dip our toes in the sea of new technology. Thus, I have created this blog. I’ve always been a voice for the little guy in the courtroom fighting back against big business and even bigger insurance companies. Now I’m just making that voice a little louder, sharing it a little more by offering insight and opinion here on Lone Star Litigator.

They say you can’t teach an old dog new tricks, but this dog will use whatever tricks it takes to stay in the hunt. I’m invigorated by Dallas County voters’ decision to give Democrats a turn in the courthouse. It’ll be a while before the whole state makes that turn back to the left -- even a little bit back to the center might be nice.

For now, I’ve decided to get back to the basics and focus my practice on general law. I plan to keep fighting for the injured, but I will also focus more on helping my clients arm themselves for everyday legal matters with properly prepared wills and business contracts. And, on Lone Star Litigator, I hope to arm visitors with knowledge to help them make more educated legal decisions. Either way, I’ll still be on the side of ordinary Texans, giving them the power to stand up for their legal rights.