PRESS RELEASE (COLLIN COUNTY, TX) A business dispute ended (this week) when a Collin County judge sanctioned Altesse Healthcare Solutions, Inc., nearly $900,000 for defying a court order and basically looting a company it purchased and then gave back to the original owners.
Collin Kennedy of Hanshaw Kennedy, LLP said that this rare “death penalty sanction” from State District Judge Scott Becker effectively ended the lawsuit his clients filed against Altesse. Mr. Kennedy’s clients, Allen and Becky Wilson, sold their healthcare business to Altesse in June 2014 for $800,000 and agreed to seller-finance the deal. When the first payment was due, instead of paying the Wilsons, Altesse sued the Wilsons in federal court claiming the sale of the business was fraudulently induced. In December 2014, the Wilsons sued Altesse in state court and sought and received a Temporary Restraining requiring Altesse to turn back over control of the business to the Wilsons and to prevent Altesse from causing further damage to the business.
“Altesse blatantly disregarded the TRO and instead diverted the assets of the business to another entity it controlled,” said Mr. Kennedy, the lead counsel for the Wilsons. His co-counsel was David Wortham. “The Court said it simply could not turn a blind eye to the intentional disobedience of a court order due to the dangerous precedent it would set.”
Shawna Boudreaux, also a Defendant and sole owner of Altesse, admitted under cross-examination from Mr. Kennedy that she did not comply with any of the restrictions in the Court’s order. Ms. Boudreaux and her counsel, Dan Martens, instead argued that Altesse’s violations of the Court’s order were justified and that the order was improper. Mr. Kennedy and Mr. Wortham countered that there was a mechanism in place to challenge the efficacy of the TRO at the time the Court signed the TRO and that Altesse and Ms. Boudreaux did not properly pursue that remedy.
“In Texas, ‘death penalty’ sanctions are extremely rare because they can dispense with the need for a trial,” said Mr. Kennedy. Texas Courts of Appeal have consistently held that death penalty sanctions should only be imposed in exceptional cases when they are clearly justified and when it is apparent that no lesser sanctions would promote compliance with the rules. “Obviously, the Court viewed Altesse’s transgressions in the same way we did,” said Mr. Kennedy.
The case is Wilson v. Altesse Healthcare Solutions, Inc., and Shawna Boudreaux, Cause No. 219-04978-2014, in the 219th Judicial District Court of Collin County.
Hanshaw Kennedy, LLP is a multi-practice law firm serving North Texas and surrounding areas. Our attorneys handle a broad range of civil litigation, business law, catastrophic injury, and family law related cases for clients throughout the Dallas-Fort Worth Metroplex and the State of Texas.Read More
Mr. Hafen’s client, a hard-working small business owner, hired Mr. Hafen in a proverbial David v. Goliath case. In an extremely contentious case, Mr. Hafen got won a favorable jury verdict on behalf of the Client. After the Defendant appealed, Mr. Hafen successfully briefed and argued the client’s case in front of the Court of Appeals. Subsequently, The Court of Appeals issued a favorable opinion and rendered a judgment in favor of Mr. Hafen’s client.Read More
COLLIN KENNEDY GETS INVOLVED IN THE AFTERMATH OF TWO MURDERS (OF ALL THINGS) AND ACHIEVES JUSTICE IN THE MOST UNUSUAL OF CIRCUMSTANCES.
Sometimes even a veteran lawyer sees a case unlike he has ever seen. This happened twice to Mr. Kennedy in 2014.
In a probate proceeding in Ellis County, Mr. Kennedy represented a client who had been acquitted of murdering her spouse. While she was incarcerated and waiting for her criminal trial, the adult children of her deceased spouse obtained an injunction preventing the client from inheriting substantial life insurance proceeds and other investments from their dad. Mr. Kennedy entered the case and immediately filed a Motion to Dissolve the Injunction. On the day of the hearing, the case settled and Mr. Kennedy’s client received a huge settlement.
Similarly, Mr. Kennedy was hired by a client in Harris County who was in jail charged with murdering his wife. There were many questions surrounding the facts related to the murder charge, but the Client needed Mr. Kennedy’s help because a civil court had awarded an injunction in favor of the children, effectively preventing the client from having access to all of his substantial estate. Mr. Kennedy filed a Motion to Dissolve the Injunction. Yet again, on the day of the hearing, the opposition capitulated and Mr. Kennedy was able to achieve a favorable settlement for the client.Read More
Collin Kennedy Co-Authored “A Cup Of Coffee With 10 Of The Top Personal Injury Attorneys In The United States” with Randy Van Ittersum. The book is currently featured in Amazon’s Top 100 list. Collin also has been featured on “The Business Leaders Spotlight” and “Rodney Anderson Show” – Both of these can be downloaded on the firm’s new ITunes Podcast Channel
Hanshaw Kennedy is proud to announce they have been retained to represent Mercedes Benz, USA for all of their Texas litigation. Mr. Kennedy is acting as lead counsel for the firm in all of these matters.
In a probate proceeding, Mr. Kennedy represented a client accused of murdering her spouse. While she was incarcerated, the adult children of her deceased spouse obtained an injunction preventing the client from inheriting substantial life insurance proceeds and other investments from their dad. Mr. Kennedy entered the case and immediately filed a Motion to Dissolve the Injunction. On the day of the hearing, the case settled and Mr. Kennedy’s client received in excess of $900,000 in cash and other assets.Read More
Collin Kennedy was recently a featured guest on the Business Leader Spotlight radio show “Legal Issues”. Collin outlined some of the issues clients need to better understand related to Personal Injury legal matters and interacting with insurrance companies related to personal injury matters.
Enjoy the Archived Audio Interview online or the transcribed version that follows.
Welcome to the Business Leader Spotlight Show
R: I want to welcome everyone to the Business Leader Spotlight Show; this is Randy Van Ittersum, your host for today.
R: Today we have with us Collin Kennedy, a leading personal injury attorney in the Dallas area of Texas. He is here today to talk to us about some of the legal issues that you can encounter in a personal injury case. Collin, welcome to the show.
C: Thanks Randy. Thanks for having me.
R: Collin, tell us a little bit about yourself and your law firm.
C: Randy, I’ve been practicing law for about 15 years. I started my firm with my business partner here about 10 years ago and we have three big practice areas and I kind of head the personal injury section. We also do commercial litigation and we have three lawyers that do exclusively family law. But I got into personal injury because I enjoyed when I got out of law school, I was a prosecutor actually down in Houston and enjoyed representing victims and that’s essentially what I do as a personal injury attorney. So I kind of enjoy the relationship that I develop with many of my clients and the investigation of the case and then ultimately bringing it to a positive result for the client.
R: Very good and tell us why should somebody hire a personal injury attorney?
C: You know Randy I don’t think it’s necessary 100% of the time but most of the time it is and here’s why. When someone is injured, it is a very personal event for them. I think that you know in many instances it turns their life upside down. That’s the perspective they bring. The insurance company on the other hand is a business and it’s strictly a business decision for them on how they handle the claim and so that naturally creates kind of an adversarial relationship and I think when you are in a adversarial relationship you must know that the insurance companies are going to have attorneys advising their adjustors every step of the way and if it ultimately becomes a lawsuit than obviously they’re going to have lawyers handling the case and so I just think it’s smart and only fair that the injured party is represented by counsel as well.
R: Tell us, you bring up the fact that there is an adversarial position between the injured party and the insurance company. Could you provide some additional insights into that area?
C: Sure, this is the perfect example. I got a letter this morning from one of the largest insurance companies in the world about one of my cases and if you don’t think it’s just a business decision for them just listen to some of the language. Now they already know that I represent my client, here’s how they address the letter “To Whom It May Concern” ok that’s red flag number one. This is not personal to them at all. This is simply, basically a formula on their spreadsheet on how they’re going to evaluate the case. Now in this case my client is about to get his leg amputated in a hospital in Texas and the insurance company has no knowledge of anything and they’re demanding that he immediately give them a recorded statement and unless he cooperates they’re not going to adjust the claim so that is a perfect illustration of why this is an adversarial relationship. Again they’re trying to dot their I’s and cross their T’s and simply just input data into I envision a giant spreadsheet and then I understand that’s the way it actually works and it spits out a number either they cover the claim or they don’t and if they do it’s a number between 0 and whatever the limits of the policy are. But you know it’s “to whom it may concern” and I think that’s a little bit offensive in situations like this when you take into account what my client is going through and how they are demanding that he hop on the phone with them and give them a recorded statement. Well he’s got other fish to fry right now.
R: Very good insight. I think that said it all. I agree with you. Tell us now, you’ve been around now for 15 years working in this area. Has the complexity of navigating a personal injury claim become harder for the injured party than it has in the past?
C: I think there’s two things that, I would say yes, particularly in Texas and in a lot of the other what I call conservative jurisdictions in the United States and Texas would certainly fall under that category. It’s just a function of the law has evolved in such a way that it protects insurance companies more so than it has in the past. Texas went through it about ten years ago, the Texas Legislature changed personal injury law dramatically and it tilted in favor of the insurance companies and so that’s definitely made it more complex because you better have a good factual case if you’re going to file a lawsuit in Texas in almost every one of our jurisdictions and the same rings true for as I said many of the other, what I would could call the more conservative jurisdictions in the United States. and so that’s part of it, the other part is and this I think we’ll talk about this later in the call but liens and subrogations, those are two concepts that I think have made personal injury claims more complex simply because the laws evolved in those two areas too. What I mean by lien and subrogation. If one of my clients goes and gets treated by a hospital as a result of the accident and he or she does not have insurance, then the hospital is gonna file a lien and you cannot resolve your personal injury claim with the third party insurance carrier unless that lien is resolved in fact in many states it’s criminal to do so and the attorneys can get in trouble as well. If funds are received from the insurance company and disbursed to the client without resolving the lien then there’s all kinds of problems and the same goes for what I call kind of a general concept of subrogation and that simply means if my client does have health insurance, his health insurance company at the end of the day is gonna want to be reimbursed every penny they paid for the provision of care to that injured party and so the attorney, an important role that an attorney plays that clients don’t necessarily see on the front end, is that we negotiate those things and so that really has nothing to do with the underlying facts of the case but it’s a very important component of the case, none the less. So I would call the hospital and I would say look my client’s trying to settle this case for X amount of dollars. Here’s what he’s got in terms of future medical expenses and most of the time the hospitals will negotiate with you for a fraction of what their total bill is and the same goes for the health insurance carriers for the clients too so, so kind of summarizing up that point, Randy, is that the law has become I think more favorable in most places to insurance companies and then we’ve got to deal with these liens and subrogation issues and so that can make it a lot more complex than the client might have understood before they walked in the door.
R: Well it certainly will and your insights in that area I think are very helpful to our listening audience. I don’t think a lot of them even begin to think that there is going to be another party that has to be paid out at the end of when they collect their money.
R: So, tell us, what are some of the hidden landmines that you see in a personal injury case? You know somebody gets hurt and obviously you know they’re reacting to adjusters contacting them just you know the immediate situation. What are some of the things that they might do that actually is hurting their case unbeknownst to them.
C: I think if it’s a serious case an adjustor is going to expect to hear from an attorney on behalf of the injured party and so when an adjustor doesn’t hear from an attorney naturally there’s going to be some element of the adjustor taking advantage of that situation. That’s just human nature. They know that they’re dealing probably with someone that’s unsophisticated at least in terms of dealing with a personal injury claim and so in terms of hidden landmines the adjustors are going to try to elicit information from the injured party that shifts responsibility, from their insured to the injured party and it may be subtly the way they word a question, that the injured party is having a conversation with the adjustor and doesn’t really realize the importance of a particular word in the question. Those conversations are a lot of times recorded and you can’t really go back and change it after it happens. So, that’s why I think in answering your question earlier most of the time you really need to have an attorney so that you avoid that type of landmine. And again, not to ___ the point, but one of the big landmines are liens and subrogation issues too because again the unsophisticated client who hasn’t been in this situation before may overlook those things and it can just cause lots of problems down the road, so those are two of the big things.
R: So, what I hear you saying is in spite of what we see on TV, where people talk about how friendly we are to settle your claim and everything. Is the adjustor really your friend and your advocate?
C: You know Randy, I don’t mean to disparage insurance adjustors too much and I would say there is a distinction. If you are filing a claim against your own insurance policy, so you get into a fender bender, maybe the other party doesn’t have insurance. I have found that first party insurance adjustors are typically more friendly and reasonable. However, in the personal injury world most of the times I’m dealing with a third party insurance adjustor. That means I’m dealing with somebody else’s insurance company. The person at fault and they’re not bad people. They’re simply doing their job but no, they’re not your friends. I mean, they’re judged by their company on how efficiently they can adjust a claim and frankly what does that mean? It means and I hate to sound like such a skeptic but just having been in this business for long enough to know, it means that they need to try to pay as little as they can on each claim. I mean, that’s really the name of the game for them. So no, to answer your question directly, they’re not your friend; they’re certainly not your advocate. I mean, they are an advocate for their insured. I mean that’s obviously the way that dynamic works. So not bad people and I’ve certainly had some good experiences with even third party adjustors but circling back to the letter I read excerpts from this morning, I don’t think that adjustor is going to be one that is going to be our friend and advocate.
R: That’s true. Tell us, in managing our clients expectations, you know, what’s the most frequent problem that you encounter?
C: Speed of the resolution of the case. I can unequivocally say that’s it. As much as I try to set their expectations about that early on, it’s just very difficult to keep a client from becoming very frustrated. So, speed of the resolution. What am I talking about? The wheels of justice are slow and you know dealing with an insurance company on the front end of a claim before you even file suit can make you wanna kinda pull your teeth out. I write a letter, they won’t let me email it to them. and it has to be, Some companies won’t even except faxes and if they do it usually doesn’t actually hit the adjustors desk until several days after you fax it, it’s just dealing with giant bureaucracies and so couple weeks later I’ll get a response letter and you can see how that really makes the case drag along and then once you file suit not only are you at the mercy of the insurance company but you’re at the mercy of the courts. That’s just everywhere, not just Texas, but everywhere. It’s very difficult to get a case to trial in a reasonable amount of time. I think I pretty much will tell my clients, that if you can get to trial in 1 ½ or 2 years from the day you’re meeting with me for the first time, well then we’ve done something. But the problem with that is and I completely understand my client’s perspective is, they’ve been hurt, they’ve got medical bills to pay, collection letters they’re receiving everyday because they can’t pay the bills, yet there’s a dispute that has to be ultimately resolved between the insurance company and the injured party and that just takes a long time. So it’s frustrating for the attorneys, and it’s certainly frustrating for the clients and it can be something that can create a rift between the attorney and client if that expectation isn’t properly managed on the front end.
R: Interesting insight and tell us if somebody came to you for a consultation what’s the process that they can expect to go through?
C: Randy, the last thing I want to have to do is a fire a client. That may sound like a funny thing to say. I mean, clients are typically the ones firing their lawyers but and why I say that is when I go through a consultation with a client I almost never commit to the case at the end of the consultation. There’s just more to the story usually, I need to see medical bills, I need to see billing records, I need to see the police report and most of the time at the initial consultation I’m not going to have all that information. So I’m very frank with the clients and I tell them look I’m going to investigate this for a period of a couple weeks. It’s not going to cost you anything for me to do that but we’ll both be better off if I can have a good look at the underlying facts of the case and what were up against before I commit to it and I can certainly give them better advice and set their expectations at a more appropriate level if I’ve done that. Rather than they walk into my office, they tell me for 10 minutes about their accident and I’m shoving a contract across the table. I just don’t do business that way and I’ve found that it makes it more infrequent that you know six months down the road I have to call and say you know here’s a fact I didn’t know and that kind of changes the name of the game for you and I need to withdrawal. I don’t like doing that and so I think it’s better that I’ll give them a thorough consultation and a thorough investigation before they’ll have to sign on the dotted line. I just think that’s the way you should do business.
R: Very good and you know one of the issues that I’m sure comes up all the time is everybody wants to know the cost of hiring a personal injury attorney. What can they expect to pay and who’s expected to pay for these costs.
C: There’s not a boiler plate answer for that question, Randy. It really depends on the case and the complexity of the case. You know, I would say that if it’s a very black and white case in terms of liability and that is almost never the case but if it is and it looks like that my job is simply going to be to negotiate the best deal for my client and handle the liens and subrogation issues at the end of the dispute and it’s a case that may not have to go to trial, then the standard rate is 33% and the client will typically pay the expenses but we always front them in that situation. So that if I have to pay a stenographer for a deposition or an expert witness fee I’ll do that and take those costs out of the client’s recovery at the end of the case. But I should say that there have been plenty of cases where the rate is even higher than that. I mean it’s all about shifting the risk and you know the greater the risk for the lawyer, I think the more justifiable that the fee be a little bit higher, so sometimes we’ve gone up as high as 40% if there’s a real liability issue and a lot of dollars at stake and I’m gonna have to spend a lot of money out of our pocket on the way to getting a resolution and usually I don’t have any problems with the clients, they understand that you know at the end of the day when they sign a contingency fee agreement, it shifts the risk entirely from them to the lawyer. That is, at the end of the day if they don’t get any money, well there in no worse financial position then they were when they walked in our door but if I spend two years on a case and hundred, several hundreds of hours and tens or hundreds of thousands of dollars and we don’t win or we can’t get a resolution or the case just wasn’t a winner in the first place, then the only loser financially there is the lawyer and so I think the clients understand there’s a shifting of the risk and sometimes it’s appropriate to have one fee and sometimes it’s appropriate to have a higher one.
R: Very good and so what I hear you saying is, it doesn’t matter what the financial position of the injured party is, whether they’re rich or poor, they have access to the system because there is no direct cost to them initially compared to for example if they wanted to get a divorce.
C: Sure. That’s exactly right. Now, almost all personal injury cases, in fact I’ve never handled one that wasn’t, is a contingency fee arrangement and I’ve had wealthy clients and very poor clients and I would probably entertain the idea of handling a personal injury case on an hourly arrangement if somebody wanted to do that in the right circumstance but I’ve just never had anyone request that to happen, so yes, you’re right, everyone has access to it because it’s one of those situations where the clients just don’t have to pay a dime unless there’s a recovery.
R: And tell us, you know we’re getting to the end of the interview and I do have one last question I’d like to ask you and that is, if somebody were to be looking for a personal injury attorney, what should they look for and how should they go about selecting the right attorney for their situation?
C: Results and I think that applies across many industries but it certainly applies in the legal industry as well. Don’t accept just fluff talk and big promises, dig down deep and ask the lawyer to show you examples of the results they’ve gotten and I think the best predictor of the future is past results, right and I think that certainly applies in the realm of hiring a lawyer too so don’t just take all their blustery marketing legalese that they use, challenge them to show you what their results are and if they can do that and it looks like those are favorable results than you know, consider hiring that attorney.
R: Very good insights. Thank you. Collin, I want to thank you for sharing all your insights with us today. I know our listening audience is going to gain a lot of really good information from it and if you want to learn more about Collin Kennedy you can go to www.hanshawkennedy.com or call 972-731-6500. Again, Collin, thank you very much for your insights.
C: Ok, thanks, Randy.Read More
By now, we should all be sensitive to the evolving groundswell of law which could affect those of us (I’m among the guilty) who text and drive. As lawyers, we are waiting to see where all of the various state legislatures end up drawing the lines and how severe the penalties they will ascribe? Although not illegal in every jurisdiction yet, we know that while we are operating a motor vehicle, we ought not be reading or sending texts. The National Safety Council informs us that texting while driving (“TWD”) causes 1,600,000 accidents per year and that number will likely only continue to swell. Given the volume of accidents caused by TWD, it should come as no surprise that 330,000 people are injured each year and that 11 teens die every day in TWD accidents. Additionally, the National Highway Transportation and Safety Administration reports that TWD makes us twenty-three times more susceptible to crashing. Insurance companies and various safety organizations have done a fairly good job of educating us all on the dangers of TWD. That is, much as the MADD battle cry of the 90’s became “Don’t Drink and Drive,” we have now added “Don’t Text and Drive” to the automobile safety lexicon.
But should the driver who TWD or who reads texts while driving be the only responsible party in the unfortunate event of an accident caused by the driver’s temporary inattention to the road? A recent case out of New Jersey could completely re-shape the jurisprudence on TWD. In Kubert v. Best, et al. and Shannon Colonna, the Superior Court of New Jersey – Appellate Division took up an issue of first impression; whether, as a matter of civil common law, one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text.
On the afternoon of September 21, 2009, David Kubert was riding his motorcycle, with his wife, Linda Kubert, riding as a passenger. As they came around a curve, a pick-up truck being driven north by eighteen-year-old Kyle Best crossed the double center line of the roadway into their lane of traffic. David Kubert attempted to evade the pick-up truck but could not. The front driver’s side of the truck struck the Kuberts and their motorcycle. The collision severed, or nearly severed, David’s left leg. It shattered Linda’s left leg, resulting in a compound fracture of her femur. Ultimately, both David and Linda each lost a leg as a result of the accident. The Kuberts’ attorney subsequently developed evidence which demonstrated that Kyle Best and his girlfriend, Shannon Colonna, had been texting each other all day long, including at the moment that the accident occurred. Although the Kuberts were able to prove that Best and Colonna were texting at the moment of the accident, it was not proven that Colonna knew that Best was driving while she was sending him texts that day. Without sufficient proof of Colonna’s knowledge of Best’s whereabouts at the time she was texting him, the Kuberts were not able to prevail in their novel legal theory against Colonna. However, the New Jersey court held that a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving. And with that, the sure-to-be controversial gauntlet has been thrown down and legislatures and courts from other states will likely soon follow with similarly reasoned laws and opinions. Will Texas follow?
Section 545.425 of the Texas Transportation Code provides that it is unlawful for:
- Bus drivers to operate cell phones (handheld or hands-free) while driving
- Novice drivers to operate cell phones (handheld or hands-free) while driving
- All drivers to use hand-held phones and to TWD in school zones
Texas is currently among the most conservative venues in the United States and is likely to lag the rest of the country in doing anything to strengthen the theories of negligence for injured Plaintiffs. And, frankly, I could understand a reluctance to broaden theories of liability in TWD cases. The anti-texting laws fall broadly into a category called “Distracted Driving” laws. But aren’t there many other elements on our Texas roadways that distract us from the road? What about giant billboards designed to seduce our eyes into reading and digesting the billboard’s message? Should advertisers then also be liable if a distracted driver causes an accident because he took his eyes off the road to read a billboard? What about a commercial hot air balloon outfitter? I have gawked at those multi-colored giant dirigibles on many occasions as they hovered overhead while I drove down the road. Surely the operator of those balloons knows their vibrant colors will catch the eye of anyone (including drivers) as they traverse the sky. Is there a difference in a driver’s culpability in an accident if he took his eyes off the road in favor of one distraction (say, a beeping cell phone) over another distraction (a billboard challenging us to consume a 64 ounce steak at a restaurant in Amarillo)?
TWD accidents are unnecessarily injuring and killing thousands of people a year. So I get it. Our human nature motivates us to do something quick and extreme to curb this alarming trend, especially in the name of political expediency. On the other hand, opponents of broader TWD laws argue that the fundamental issue is rather simple. They say whether or not your spouse or your friend knows you’re driving at the time they send you a text, you are not required to respond to them while you are behind the wheel. Furthermore, they argue that if you relent and succumb to the enticing ring/beep on your phone while you are driving, it is your conscious decision alone that recklessly diverts your eyes from the roadway.
In any event, TWD is a lightning rod legal issue right now and there will undoubtedly be other states which adopt the holding of the Kubert court. Accordingly, text senders across the country should proceed with caution. Don’t be the one who sends the wrong message.Read More
Facebook: I lose sleep over it
Postings on Social Media like Facebook & Twitter are quickly finding their way into the courtroom
Facebook sometimes keeps me up at nights. And not for the reasons you might think. While I admit that I am prone to browse my Facebook newsfeed every couple of days, and even less frequently post a picture or a thought, I wouldn’t classify myself as a Facebook junkie. No, Facebook (and other social media platforms, for that matter) impairs my slumbering at times because I worry about its effect on my clients’ cases. To otherwise bury my head in the sand and not have angst about the material my clients feel the need to post on their Facebook pages would render me negligent in the care of their legal matter. I learned my lesson the hard way. Let me explain by telling you about a case I once handled.
A cautionary tale:
Not too long ago, Jim called me to report that he had suffered a head injury which resulted in significant impairment of his olfactory sense. That is, he claimed that his injury caused him to lose his sense of smell. I won’t go into the cause of his injury, but suffice it to say someone else’s negligence caused it and liability was never a disputed issue in the case. What most certainly was at issue was the measure of his “damages.” After all, how does one quantify (in dollars) what it means to a person when he can no longer smell?
Think about it. For you coffee lovers, what would your mornings be like without the distinctive smell of your java brewing as you get ready for your day? For movie lovers, can you imagine walking into a movie theater and seeing that bubbling cauldron of buttery popcorn spilling into your carton, but not being able to enjoy the aroma as you consume this favorite treat? Granted, I grew up near the stinky refineries of the Houston Ship Channel, so I can recall times as a child when I regretted that my olfactory nerve hadn’t been mortally severed. But even putting aside the future prospect of not being able to smell the good (and the bad) things in life, there’s a safety component too. What if my client was alone in his house and couldn’t smell the fumes promulgated by a burning stove or an attic fire? Its certainly conceivable that one’s sense of smell could be a life-saver in those unfortunate situations.
But hey, I promised you a story related to Facebook. And by now you’re asking yourself what any of this has to do with Facebook. At the time that I filed my client’s case it was not my general practice to snoop their social media pages to discern information which may be helpful or hurtful to their case. It turns out, however, that it was the practice of opposing counsel (or his paralegal) to wander around the social media pages of his adversaries. And for good reason.
Opposing counsel proceeded with taking Jim’s deposition at my office. With his questions, he drilled down on exactly how Jim’s purported total loss of his sense of smell was affecting his quality of life. In painstaking detail, Jim answered his questions. At the time, there was really not a conclusive medical test which could measure one’s ability to smell. After all, the result of such a test would be largely controlled by the subject’s subjective answers to questions. “Can you smell this? How about this? What does this smell like?” Etc.
In any event, at the conclusion of Jim’s deposition, I was as convinced as ever that he had a compelling story to tell to a jury and that he would receive a substantial damage award at trial. Except…. opposing counsel innocuously sent me a subpoena for my client’s Facebook page history/content one afternoon a couple of months before our trial date.
Curious, I called Jim and asked him if he had a Facebook page. Indeed, he did. After only a few minutes of browsing his page, I knew our case was in trouble. You see, Jim had commented on his page about the wonderful smell of the chocolate chip cookies coming out of his oven the night before. As I sit here now, I can still remember the temporary nausea that engulfed me as I read his comment. You can imagine how quickly that case headed south. Sure, he had also suffered a small fracture and had some medical bills that needed to be paid, but his credibility was shot.
There was no trial and only a very small settlement, which was undoubtedly paid only as a professional courtesy to me. What’s the old adage? “Fool me once, shame on you; fool me twice, shame on me.” I’m confident this won’t ever happen to me again. To be sure, if you hire me, I’m going to ask you for passwords to your social media pages. And if you post something on your pages which undermine your credibility (or mine) or could jeopardize your case, I will badger you until you take it down. I might even fire you.
Sleep is important to me.Read More
State Employees Learn the Hard Way about FOIA Requests; Just ask ex-Arkansas Razorback Football Coach Bobby Petrino
It started as just another Sunday afternoon in the bucolic foothills of the Ozark Mountains for the revered Coach Bobby Petrino. Still basking in the after-glow of his team’s successful 11 win season which culminated in a Cotton Bowl victory, Coach Petrino headed to his on-campus office on his beloved Harley-Davidson. After a team meeting with players and coaches, he mounted his bike again and headed out for a nice ride, not unlike he would frequently take on those pleasant spring afternoons in northwest Arkansas. Sounds innocuous, right? It wasn’t.
As the world now knows, at some point that afternoon, Coach Petrino lost control of his bike on a rural highway and suffered some relatively serious structural injuries (though it could have been much worse) to his back and some cosmetic injuries to his head and face. Given the stature of Coach Petrino in Arkansas, the wreck was briefly a front-page story on ESPN and other national news organizations. But, in essence, it was just another motorcycle accident. Big deal, right? It was page 2 news the next day and back page news the day after.
Then, Coach Petrino, after being discharged from the hospital a few days later, inexplicably stepped in front of a microphone at a press conference called at his behest and uttered the words that have forever changed his life – “well, when I came out of the ditch there was a lady there that had flagged down a car.” Umm, excuse me, Coach, did you say there was a lady there? A lady just happened to be strolling down a country highway and happened upon the aftermath of your crash? And with that, the hounds were unleashed.
Indeed, in a very weak attempt to stay ahead of the storm that was brewing in the Ozarks, Coach Petrino dialed up Arkansas Athletic Director Jeff Long just twenty minutes before his personal security guard leaked to him that the Arkansas State Police was about to publish the official police report in connection with his motorcycle accident. We don’t have a transcript of Petrino’s conversation with Long, but we do know that Petrino told Long that the report was going to reflect that the “lady” to which he vaguely referenced at his self-serving press conference was a passenger named Jessica Dorrell. Say what? Who? Jessica Dorrell, the brand new (she was personally hired by Coach Petrino just 3 days prior to the accident) attractive “assistant” to Coach Petrino. Did I mention that she was engaged to be married in June to another Razorback athletic department employee? On the surface, there would not appear to be a legitimate reason for Ms. Dorrell to be latched on to the back of Coach Petrino’s motorcycle for a joy-ride in Washington County, Ark.
But the “hounds” I mentioned above were not content to rely on the obvious nefarious inferences to be drawn from the tale spun by Coach Petrino. Instead, various individuals and news organizations initiated a FOIA (Freedom of Information Act) request. The FOIA was enacted by Congress in 1966 and adopted by most states, including Arkansas, in 1967. Incidentally, the Texas FOIA is virtually identical to the Arkansas FOIA. In pertinent part, the Arkansas Act provides that the business of public officials must be performed in an open and public manner so that the constituents are properly advised of the performance of public officials and in the processes leading to public policy.
Congress didn’t likely intend for the Act to create a mechanism for a fishing expedition for incriminating or embarrassing records, but, in any event, the general rule is that anyone can request to see the “public records” (which is very broadly defined by the Act) of public employees/officials. Accordingly, an FOIA request can compel a public institution like the University of Arkansas to release all manner of otherwise private information about a university employee.
In fact, there are criminal penalties for a government agency’s failure to properly respond to an FOIA request. In Petrino’s case, the University was forced to parse and produce the phone records from Coach Petrino’s state-issued cellular telephone. After the provision of the records to the public domain, we now know that Coach Petrino authored some 4,000+ text messages to Jessica Dorrell dating back to September 1, 2011. On some days, he sent as many as 70 texts to Ms. Dorrell. There wasn’t a national news organization in America who didn’t report the result of the FOIA request. The irony is palpable given that Coach Petrino, a husband and devoted father of four children, is known to be fiercely private.
Coach Petrino has now confessed his infidelity. And while it was the fateful decision to take Ms. Dorrell for a ride which sparked the ensuing firestorm, it is inarguable that the FOIA request was the proverbial nail in the coffin of the career of Bobby Petrino. Athletic Director Long was left with the Hobbesian choice, on the one hand, of keeping Coach Petrino and absorbing the deserved media criticism and damage to the University’s reputation, or, on the other hand, terminating Coach Petrino for cause and casting the state’s beloved Razorback football program into a state of disarray. Petrino’s reckless and ill-advised conduct has cost him dearly. A lost career, tens of millions of dollars, and, perhaps worst of all, the lost respect of his family.
So, if you are employed by a state or federal government agency or institution, beware of the FOIA and be advised that the emails you send on your work computer or the text messages you send from your employer-provided phone might as well be addressed to Reuters or the Associated Press.
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