Friday, April 15, 2005

It's time for the pendulum to swing back.

Just got back the latest nonsense from the Texas Supreme Court. Okay, not just back, but just got back last week. It was their opinion in Diamond Offshore Management v. Guidry.

The issue on which the Supreme Court reversed this case involved the way the questions and instructions were submitted to the jury. The Supreme Court of Texas said the instructions given were no good, but in doing so couldn't bring themselves to mention that the instructions given in the case came virtually verbatim from the Fifth Circuit's Pattern jury Instructions.

Did I mention that this was a Jones Act case? The Jones Act is a federal law covering injuries to seamen. The Fifth Circuit has long been recognized for its special expertise in maritime law. It's also among the most conservative of the federal circuit courts.

Did I mention that this case was submitted according to the Fifth Circuit's Pattern jury Instructions? And that the Supreme Court of Texas couldn't bring itself to acknowledge that fact when it reversed based on the jury instructions?

I really don't think anything matters in that court anymore except the identity of the parties. Corporate and insurance interests win; real people lose. The facts and the law are just things to be twisted and manipulated to make sure the "right" side wins.

I suppose I should probably start using a pseudonym if I'm going to post things like this.



Blogger Laurie said...

I have no quick, witty retort for this one since I will have to read the article and the opinion three or four more times before I fully understand it and then I'd be late for work. Horrors.

However, I do have a possible pseudonym for you: Strutter.

Friday, April 15, 2005 6:56:00 AM  
Anonymous Anonymous said...

would this "Jones" be the same corrupt "Jones" down in Cameron Parish who used to tie in the sheriff and everyone else to coerce witness's in giving the "right" evidence so that they could be released from jail?

Sunday, April 17, 2005 2:42:00 PM  
Blogger Laurie said...

John - The facts and the law are just things to be twisted and manipulated to make sure the "right" side wins.

Me - The "facts" weren't twisted when plaintiffs suggested that leaving a karioke bar in the bed of a pickup truck at 2:00 a.m. was in the course of his employment (with our without allowing admission of his intoxication)?

Monday, April 18, 2005 12:44:00 PM  
Blogger Jack said...

He was a seaman. "Socpe of employment" for a seaman isn't the same as for you and me. Well, not for you anyway.

And no, it didn't take any twisting of the facts for Mr. Guidry to be in the course of his employment under the applicable law at the time of the accident.

The jury knew the relevant facts and the relevant law, and decided that he was in the course and scope of his employment at the time of the accident. That was their call to make.

But the Supreme Court didn't like the result, so they pretended that the jury charge didn't adequately inform the the jury on the course and scope requirement, even though the charge contained the defendants requested instruction on course and scope (and another one in intervening cause for good measure).


And, in response to Anonymous's comment, no, the Jones Act doesn't have anything to do with a crocked Louisiana sheriff.

Monday, April 18, 2005 7:20:00 PM  
Blogger Laurie said...

Okay, I'll go with the improper inferential rebuttal opinion of the Appeals Court on the refused question.

However, I have one more question, then I'm moving on: Why, do you suppose, was the negligence of Martinez not considered? If everyone agrees that everyone was in the course of their employment shouldn't the driver of the truck also been assigned a percentage of the negligence?

Can you tell I've worked for defense firms for 20 years?

Okay, that was two questions. Moving on, now.

Monday, April 18, 2005 11:36:00 PM  
Blogger Jack said...

The negligence of Martinez was considered. Because he too was a seaman in the course and scope of his employment, his negligence was attributed to the employer which was vicariously liable.

I think that this case comes down to the Supreme Court's unwillingness to observe the constitutional restrictions on its jurisdiction.

I think they decided that they didn't think Guidry and/or Martinez was in the course and scope at the time of the accident. The problem is that the supreme court is barred under the Texas Constitution from doing a factual sufficiency review--the court of appeals is the final word there. As long as there is "more than a scintilla" of evidence to support the jury's verdict, the Supreme Court can't use that as a basis to reverse.

But they can't seem to live with these constitutional restrictions, especially when it means that the wrong side wins. So they come up with chickenshit stuff like they did here to get around the constitution.

Tuesday, April 19, 2005 8:27:00 AM  
Blogger Laurie said...

1. If Diamond was found negligent on the basis of Martinez being an employee of Diamond, that makes sense.

2. The Appeals Court has the last word on reviewing the facts of the case, not the Supreme Court, that makes sense.

3. The jury made an informed decision and that should be respected. That makes sense.

Thanks, Dr. Professor "Strutter" Cowan. I can't wait for next week's lesson.

Tuesday, April 19, 2005 6:57:00 PM  
Anonymous Bambi said...

I find it amazing that you have such an indignant attitude towards the Supreme Court. Lawyers like you have made millions by running unions, bribing judges and exploiting the misery of underprivileged, disenfranchised people. Society takes a stand against you through it elected officials. Why should you have the lavish lifestyle and expensive bikes? If you were a patent attorney, you would have absolutely no problem with the Supreme Court. You had it too good for too long. Now, you are a poor little rich plaintiff attorney. Boo hoo. I do not pity you. Lawyers will last longer than roaches - - - you will create some other causes of action against some other defendants. You just have to try harder until things swing back a little your way. How many beach houses, ranches and hunting lodges do you have again?

Tuesday, May 17, 2005 1:48:00 AM  
Blogger Jack said...

Thanks for another insightful comment, Bambi. There are a couple points where you went astray, though.

First, I've never made millions, ran a union, bribed a judge, or even exploited the misery of an "underprivileged and disenfranchised" person. At least I've never exploited misery any more so than a doctor would (the primary difference being that the doctor gets paid regardless of the results, while a plaintiff's lawyer actually has to help his client to get paid).

And I'm sure you'll be disappointed to learn that I have only have one bike (not "expensive bikes" (plural)), and no beach houses, ranches or hunting lodges at all. I think you must have me confused with someone else.

And, "society" didn't "take a stand" against me through it's elected officials. That would involve the legislature passing a law. Nothing like that was involved in this case. Although they're elected, Texas judges aren't supposed to make their decisions based on their political views. That's what legislators are for. They're supposed to follow the laws that the Legislature makes and observe the constitutional restrictions on their powers. That's what they didn't do here.

But you are right about one thing. If I were a patent atorney, I'd have no problem with the Supreme Court. But then, this was a discussion about the Supreme Court of Texas, and they don't handle patent cases.

But if we were talking about the Supreme Court of the United States, I'd have a whole different set of complaints. Not as a patent atorney, or even a plaintiff's attorney, but as a citizen. And that would be their penchant for rewriting the Constitution to suit their own political views.

Tuesday, May 17, 2005 10:10:00 AM  
Anonymous BAMBI said...

Wang, I beg to differ regarding society taking a stand against plaintiffs' attorneys through their votes. Constituents have voted for judges who are not sympathetic towards plaintiffs, plaintiff attorneys or frivolous lawsuits. Voters know that judges overstep their bounds, and they have selected judges consistent with what they mistakenly believe are their interests. For instance, the Supreme Court of Massachusetts, not the legislature, determined the gay marriage issue. It really doesn't matter what judges are supposed to do; they do use their positions to advance their political positions. Have you ever heard that some of the judges in Jefferson County abuse their discretion to help plaintiff firms who get them elected and keep them elected? I won't mention any names, but you know who they are, Mr. Chi.

Tuesday, May 17, 2005 8:06:00 PM  
Anonymous Anonymous said...

P.S. Wang, you would not have a problem with Texas Supreme Court if you were a patent attorney because they would not have jurisdiction over your cases. This was my case in point. You would have no problem with Texas because all of your cases would be filed with patent office and your infringement cases would be in federal district courts and the Federal Circuit. You don't have to be so snide just because I disagree with you. Would this be as much fun if everyone just kissed your ass?

Tuesday, May 17, 2005 8:11:00 PM  
Blogger Jack said...


Instead of begging to differ, you would do well to defer, at least in this instance. Courts--wherher elected or appointed--have a constitutional role, and it does not include social engineering. while they often depart from their constitutional roles, and they are often applauded by various interest groups who benefit from their misdeeds, they are still oarhbreakers and as such will surely burn in hell.

Now, as for the allegedly corrupt Jefferson County judges-- I've heard that from CALA-types, but since I know them to be shameless and prolific liars, I don't put much stock in what they say. All I can say about that is that I've never seen it personally.

Wednesday, May 18, 2005 12:28:00 AM  
Blogger Jack said...

anonymous bambi--

I thought that was funny. If I used Internet lingo, I would hve said "ROTFLMAO." What the hell--"You had it too good for too long. Now, you are a poor little rich plaintiff attorney. Boo hoo." and "You don't have to be so snide just because I disagree with you." ROTFLMO!!!

Wednesday, May 18, 2005 12:31:00 AM  
Anonymous Bambi said...

Wang, you're rude.

Moreover, you wear rose colored glasses. You truly believe that plaintiffs' attorneys help all of their clients. Many attorneys just file lawsuits which lack merit to extort money from defendants. This results is that blood sucking defense attorneys make money; they are just as reprehensible as you plaintiff types. Both sides make money from insignificant injuries and lawsuits.

If you have lived in Jefferson County for any amount of time and you don't believe that the judges favor your firm and your bar, you are stupid or naive. It is obvious that you are not stupid. Hence, you are either unaware of the corruption and bias, or you're pretending that it does not exist.

Be honest, Wang. If you were not a plaintiff attorney, you would not care about the Texas Supreme Court. Do you really want us to believe that you are a plaintiffs' attorney because you enjoy making society a better place? Admit it, you're an Ann Raynd egoist like everyone else. You became a lawyer because you enjoy money. You make more than 95% of other Americans, assuming you make greater than or equal to $100K. You're not exactly working at Legal Aid.

I am glad I could make you happier by calling you a poor little rich plaintiff attorney and pointing out that you want us to kiss your ass. I hope our banter continues.

Saturday, May 21, 2005 2:51:00 PM  
Blogger Jack said...

Bam Bam--

I don't even know who Ann Raynd is. Is she a parody of Ayn Rand? That would certainly make sense. 'Cause Ayn Rand couldn't write worth a s**t.

But please forgive me. I'm being rude again.

And as for my untold wealth-- If you take everything I've made so far as a lawyer, then subtract what I had to pay to get the law license, and then compare it to what I'd have made if I'd gotten an associate degree from Lamar and gone to work at one of the plants(minus what it cost to get the degree), I probably still wouldn't have caught up yet.

And you're right about my knowledge of the corruption of the local judiciary. I'm unaware of it.

But you're right about one thing. Sort of. If I weren't a plaintiff's attorney, I probably wouldn't care what the Supreme Court of Texas does. but that's because (1) I probably wouldn't know what they were up to, and (2) even if I did, I probably wouldn't appreciate the implications.

Tuesday, May 24, 2005 9:19:00 PM  
Anonymous Bambie said...

I think your mathematical calculations are erroneous. Most plant employees make $60,000/year. Moreover, most people your age do not have permanent jobs with benefits at plants. That stopped in the 80's. Most of your contemporaries work temporary contract positions for much less than $70/hour, and they don't have insurance, retirement, etc. Trust me on this Wang, you have surpassed the plant workers.

In additon, you have a phenomenal education for a great cost. My education was much more than yours and my ROI is extremely high. I make three times what I made before law school, and I don't work for a first tier firm. Think about what you made at age 22 and what you make now.

FYI, if you must speak to me like I am a child, I prefer Pepples. Bam Bam is a boy.

Wednesday, May 25, 2005 11:03:00 PM  
Blogger Jack said...

Pebbly Poo,

My calculations are right. I had five extra years of school (compared to an associate degree) where I earned practically nothing and acquired a bunch of educational debt while our plant worker was gainfully employed. Then when I started working as a lawyer, I made a whopping $30K per year, and yearly take only passed our hypothetical operator a few years ago. In terms of lifetime earnings, Operator Guy is probably still ahead.

Wednesday, May 25, 2005 11:19:00 PM  
Anonymous Pebbles said...

Wang, your calculations are based on the fallacy that you obtained a full time job as an operator and were never laid off. Again, many men your age do not have those sorts of jobs. Assuming arguendo that you did obtain a full time job and made $60K a year, you would not have made $60K circa 1983. You would have made considerably less.

Based on the scenario that you were a contract skilled laborer who was subject to many ROFs, you have met or surpassed their average income when you worked for the 5th Circuit. Since you've been an attorney, you have always made more than $12 per hour and you have not had any real gaps in employment. Given that you "hardly made anything while you were in college," you make a great deal more than you did 20 years ago.

Lastly, the stress caused by the tedium of operations would drive you mad. You have one of the most difficult jobs in the legal profession, and you are bored. Assuming that you would have made more money in the past 22 years, you would be bored out of your mind. This would have resulted in you doing something drastic like killing everyone in Luby's or blowing up a federal building. Think how sad your son and your blog fans would be if this would have occurred. Quality of life means something. Of yeah, people like saying they date attorneys. It would be more difficult for you to attract all of these women who fawn over you if you were an ordinary Joe - no probably not.

Friday, May 27, 2005 7:07:00 PM  
Anonymous Pepples said...

Clarification: You would still have these women fawn over you (former spouse, ex-girlfriend, future girlfriends, etc.). Your talents and humor would compensate for any lack of prestige. Plus, I would hope that women who like you are not as superficial as most. Well, some of your admirers are sort of shallow.

Friday, May 27, 2005 7:11:00 PM  
Anonymous Thumbalina said...

How could Guidry recover anything when the jury found him more than 50% responsible? Does the Jones Act have an exception similar to the slight negligence burden?

Tuesday, June 07, 2005 10:07:00 PM  
Blogger Jack said...

The Jones Act is straight comparative negligence. There's no 50% bar.

Tuesday, June 07, 2005 10:11:00 PM  

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