John Polewski and Associates

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

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

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

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

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

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

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

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

John Polewski is a board certified attorney with offices in DeSoto

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

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

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

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

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

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

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

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

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

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

Contingent Fees

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

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

Frivolous Lawsuits?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Note that the rules speak of children that the non-custodial parent is actually providing support for. In the classic “deadbeat dad” situation, there may be several children by different mothers that the father is providing no support to at all: in this situation, if one of the mothers seeks child support, the father will owe the full 20% of his income, and gets no credit (no should he) for the other children he has abandoned.

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

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

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

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

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