Recently, Williams Kherkher partner Jim Hart and attorneys Jim Soto, Eloy Gaitan, and Margret Lecocke conducted a steward training presentation for local electrical workers to help explain some legal areas of interest for the group. Jim Hart explained the grievance process and how best to prepare a grievance file for arbitration. Jim Soto covered critical aspects in developing an effective will. Eloy Gaitan covered workers’ comp, changes in the law, and what people need to know to protect their rights. Finally, Margret Lecocke gave an update on pharmaceutical and medical device recalls. The meeting was well attended, and our presenters answered questions from the audience throughout the session. Williams Kherkher is proud to show our support of unions.
The law regarding a run of the mill two-party breach of contract case is fairly straightforward in Texas. A plaintiff must prove: (1) there is a valid, enforceable contract; (2) the plaintiff is the proper party to sue for the breach of contract; (3) the plaintiff performed, tendered performance, or was excused from performing its obligations under the contract; (4) the defendant breached the contract; and (5) the defendant’s breach caused the plaintiff injury. West v. Triple B Servs., 264 S.W.3d 440, 446 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Mandell v. Hamman Oil & Ref. Co., 822 S.W.2d 153, 161 (Tex. App.—Houston [1st Dist.] 1991, writ denied). As such, the plaintiff’s discovery should focus on showing: (i) the parties formed an agreement that is valid and legal; (ii) the plaintiff fulfilled his obligations; (iii) defendant did not and has no valid excuse; and (iv) plaintiff suffered some injury as a result of defendant’s actions. I don’t advocate using standard discovery requests in any case, but the following concepts should get you thinking about the kind of evidence you will need to prove the elements of the claim.
Consider attaching a copy of the contract and asking the defendant to describe all of his factual contentions regarding:
- Whether the contract is valid
- What, if any, relationship the defendant has with the plaintiff
- Any prior agreements between the parties
- The material terms of the agreement
- Whether plaintiff breached or did not comply with his/her requirements
- Why the defendant did not breach the contract
- Whether the defendant was excused from performing his obligations and why (i.e, impossibility, rescission, mutual mistake, etc)
- Whether the contract was against public policy, illegal, or unconscionable
- Whether defendant believes that the plaintiff performed compensable work related to the agreement
- Defendant’s challenges to plaintiff’s claims for damages
- Whether defendant believes the plaintiff failed to mitigate his damages
Consider requesting the following documents from the defendant:
- Executed contract
- Drafts of the contract
- Working notes regarding the contract
- Communications between plaintiff and defendant
- Internal communications about the agreement
- Documents showing the parties intent to modify the terms of the agreement
- Other case specific documents that might show the harm plaintiff suffered (i.e., invoices, checks, receipts, shipping bills, etc.)
Consider attaching a copy of the contract and asking the defendant to admit the following:
- That a contract existed
- That the specific attached contract was the operative agreement
- That the attached contract is a true and correct copy
- That the signature is the defendants
- That the contract was executed
- That the defendant had the mental capacity to enter into an agreement
- That the defendant could have complied with the obligations
- That the parties never modified the agreement
- That the plaintiff performed its obligations
- That the defendant did not perform its obligations
You have the right-to-know of any dangerous or hazardous chemicals that you may be working with or around in your current occupation. Being a safe worker involves more than just doing the right thing, watching out for yourself, and being well trained in hazardous response measures. It includes ensuring that your co-workers work safely, watch out for each other, and understand your employer’s hazardous response policies. A great training program will assist in making your place of employment a safer place. A component of that training program may include the Hazard Communication Standard (HCS). Your understanding of hazardous communications could save your life and the lives of many of your co-workers. The Hazard Communication Standard was designed by the Occupational Safety & Health Administration (OSHA) to ensure that information about chemical hazards and the associated protective measures were properly disseminated by employers to employees. The standard provides you the right-to-know that hazards and identification of the chemicals that you are exposed to in your workplace. You want to have this information to be able to participate in your employer’s protective programs and to know what steps to take to protect yourself.
You should receive training. Employers must train employees at the time employees are assigned to work with a hazardous chemical. The training program must be a forum for explaining to employees the hazards of the chemicals in their work areas, as well as how to use the information generated in the hazard communication program. Training should be comprehensible and can be in categories of hazards (e.g., acutely toxic agents, carcinogens, sensitizers, etc.) that may be encountered by an employee during the course of their duties. Additional training may be required whenever a new physical or health hazard is introduced into the work, not necessarily a new chemical. The training provisions of the Hazard Communication Standard are not satisfied by an employer just giving an employee a Material Safety Data Sheet (MSDS) to read. You should be trained to be aware of work practices, measures used to protect your self and others, emergency procedures, and the personal protective equipment to be used. As an employee you should also know what a Material Safety Data Sheet is, know where they are located, have access to them, and be able to use the information provided to you in the Material Safety Data Sheet – which can save lives.
A Material Safety Data Sheet is a quick reference during hazardous response procedures. Hazard information must be transmitted on a Material Safety Data Sheet and must be distributed to the customer at the time of the first shipment of a potentially hazardous product. Although, Material Safety Data Sheet formats may vary, they are widely used to catalog information on chemicals, chemical compounds, and chemical mixtures. Pursuant to OSHA, a generic Material Safety Data Sheet must have minimum requirements, to include the name, address and telephone number of the responsible party preparing or distributing the Material Safety Data Sheet, who can provide additional information about the product or material. A Material Safety Data Sheet will include information such as physical data (e.g., flash point, boiling point, etc.), toxicity, health effects, first aid, reactivity, storage, disposal, protective equipment, and spill-handling procedures. It may even include information regarding the safe use of the specific product or material. The intended primary focus of a Material Safety Data Sheet is regarding the hazards of working with specific material in an occupational setting. As a convenience, Material Safety Data Sheets may be maintained on a computer by your employer. However, employees must have access to the computer in their work areas(s) for the employer to be in compliance with the standard.
You should ensure that your workplace has an effective Hazard Communication (HAZCOM) Program. There are four (4) minimum components that any Hazard Communication Program should have, to include:
- A Written Plan. All workplaces where employees are exposed to hazardous chemicals must have a written plan that describes how the standard will be implemented in that facility;
- Use of Labels. All containers of hazardous chemicals must be labeled, tagged, or marked with the identity of the material and appropriate hazard warnings;
- Use of Material Safety Data Sheets (MSDSs). Chemical manufacturers and importers are required to obtain or develop an MSDS for each hazardous chemical they produce or import. Distributors are responsible for ensuring that their customers are provided a copy of theses MSDSs. Employers must have an MSDS for each hazardous chemical they use; and
- A Training Component. Each employee who may be exposed to hazardous chemicals when working must be provided information and trained prior to his or her initial assignment to work with a hazardous chemical, and whenever the hazard changes.
Hazard Communication is addressed in specific standards for general industry, shipyards, marine terminals, longshoring, and the construction industry.
If you and your co-workers have a good understanding of the Hazard Communications Standard (HCS), Material Safety Data Sheets (MSDSs), and your employers’ Hazard Communication (HAZCOM) Program – you will save lives.
REMEMBER: Section 5(a)(1) of the OSH Act, often referred to as the General Duty Clause, requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Section 5(a)(2) requires employers to “comply with occupational safety and health standards promulgated under this Act.”
“If I do my full duty, the rest will take care of itself.” – General George S. Patton
Patton’s quote always gave me hope. To me, the quote meant that if I just worked hard, played by the rules, and treated people well then everything would work out okay. To this day I want to believe that concept is true for everyone: that if we just work hard and play by the rules then everything will turn out okay. I suspect most people agree and wish that it were true.
The first time I heard that quote, I was a seventeen year old boy at the United States Air Force Academy. During Basic Cadet Training, all cadets are given a small book containing “knowledge” they must memorize. The book contained many thoughtful quotes on duty, honor, and country, but Patton’s quote on duty was the one I found most memorable. It was as if someone handed me the key to success in only thirteen words. In an artificial world like basic training that quote is entirely true—if you do your job everything runs smoothly. As long as you sound off, march correctly, maintain a sharp uniform, and push yourself physically everything works out well. The instructors don’t yell as much and you get to eat without being harassed.
Sometimes, however, real life is not so simple. Many people work a full day, pay taxes, serve the community, and strive to make their children’s life better than their own. Unfortunately, for reasons beyond their control, and despite their best efforts, not everything works out okay. Other people failed to honor their commitments. A business idea is stolen. An accident happened. A natural disaster occurred. Regardless of the specific situation, these people have been good, solid citizens and have suffered some misfortune. They deserve more than bad luck.
In many cases, the legal system is the only avenue for people like these to make sure “the rest will take care of itself.” For example, a computer programmer that devoted significant resources to design a computer program that is now being used without permission by a rival company can ask a court to order the rival business to fairly compensate the programmer. A woman that suffered a stroke because of a drug defect can use the legal system to compensate her for her injuries if the court or jury determines that the drug manufacturer knew of the risk but failed to properly warn the woman. Without the legal system, these two people would be left footing the bill for situations caused by others.
And that is the reason I left the Air Force to become a lawyer. I thought that I could do more to help people as a lawyer than an Air Force officer. The American legal system is not a perfect animal. The law and justice are not necessarily the same thing. But, sometimes it is the only way to make sure the right people pay for the bill. My goal is to be the part of the system that gives the people that work hard and play by the rules someone who will work as hard as possible for them to make sure “the rest will take care of itself.”
Depositions are sworn testimony in lawsuit taken before trial. Deposition testimony “counts” just like trial testimony in front of a judge and jury, but often the only people present are the lawyers, the witness and a court reporter or videographer. If the person is sick, dead or otherwise unavailable to attend the trial, the videotape of their deposition may be played for the jury. Since the judge is not present some attorneys may object to certain questions if they are afraid of the answer and then later ask the judge to not allow the jury to hear the question and answer.
Some unskilled attorneys are very afraid of the questions and answers and object to virtually every question being asked. When this happens the judge will later review their objections and if he finds them to frivolous or unfounded, he will “over-rule” the objections which means the jury will be allowed to hear the question and answer. This can be problematic when the video tape is being edited for the jury to watch because the court often requires the parties to cut out the portion where the attorney says “objection.” When this happens, the video tape, unfortunately, looks choppy in between the question and the answer. The strategy may even be deliberate from some attorneys to try and create a “choppy” video for the jury by objecting to every question. This fearful attorney may think that a choppy video seems less credible to the jury and the jury will not consider the testimony. Strong judges do not permit this type of gamesmanship and can punish the frivolously objecting attorney by allowing the jury to see and hear him or her making their unfounded objections. The jury will then know that the unskilled attorney is very afraid of the answer to the question and will pay close attention to it.
What Is My Duty As A Juror?
As a juror, you must be fair and impartial. Your actions and decisions must be free of any bias or prejudice. Your actions and decisions are the foundation of our judicial system.
How Was I Selected?
You were selected at random from a list of voter registrations and a list of driver registrations from the county in which you live.
Am I Eligible?
- Be a citizen of the United States and of this State.
- Be at least 18 years of age.
- Reside in the county of jury service.
- Be able to read and write.
- Be of sound mind.
You cannot serve on a jury if:
- You have been convicted of a felony or of any type of theft (unless rights have been restored)
- You are now on probation or deferred adjudication for a felony or for any type of theft; or
- You are now under indictment for a felony or are now under criminal charges for any type of theft.
Who Can Be Excused From Jury Service?
You are entitled to be excused as a juror if you:
- Are over 70 years of age;
- Have legal custody of a child under 12 years of age and jury service would leave the child unsupervised;
- Are a student in class;
- Are the caretaker of a person who is unable to care for themselves (an invalid); or
- Can show a physical or mental impairment or an inability to comprehend or to communicate in English.
Will I Be Paid For Being A Juror?
Yes. In Harris County, you will be paid a minimum of $6.00 for each day you actually serve on the jury.
Must My Employer Pay Me While I Am On Jury Duty?
Your employer is not required to pay you while on jury duty; however, employers are prohibited by law from firing an employee for serving as a juror.
Who Can Have A Jury Trial?
Any person charged with a criminal offense or any party to a civil case has a right to a jury trial. All parties are equal before the law and each is entitled to the same fair treatment.
Are There Rules About Jury Conduct?
Yes. The Texas Supreme Court has rules to assist you in your conduct as a juror, which will be given to you by the judge.
How Is A Juror Selected For A Particular Case?
Cases will usually be heard by juries of 6 or 12 jurors. A larger group, called a panel, will be sent to the trial court (courtroom) where the jurors will be questioned under the supervision of the judge.
A juror may be excused from the panel if it is shown that the juror cannot act impartially concerning the case to be heard. In addition, each side is allowed to remove a given number of jurors from the panel without having to show any reason. The trial jury will be the first 6 or 12 of the remaining jurors on the panel.
What Is Voir Dire Or Questioning Of The Jury Panel?
It is a way for the parties to select a fair and impartial jury. Under the justice system, you may be questioned by each of the lawyers before they decide to remove a certain number of jurors from the jury panel.
For example. the lawyer may ask you questions to see if you are connected to the trial or if you have any prejudice or bias toward anyone in the trial These questions are not intended to embarrass you, but rather to help the lawyers in the jury selection process. You may ask the judge to allow you to answer some questions away from the other jurors.
What If I Have A Special Need or Emergency?
After you have been selected as a juror on a trial panel, if you have a special need or an emergency, tell the bailiff.
When In Doubt, Ask The Judge
You have the right to communicate with the judge regarding any matters affecting your deliberations, including but not limited to:
- physical comfort;
- special needs;
- any questions regarding evidence; or
- the Charge of the Court.
During deliberation, if it becomes necessary to communicate with the judge, the bailiff or the officer of the court will deliver jurors’ notes to the judge. The information in this Handbook is not intended to take the place of the instructions given by the judge in any case. In the event of conflict, the judge’s instructions will prevail.
Insurance exists in practically every negligence or gross negligence lawsuit filed in this country. A case almost never gets filed unless the wrongdoer has insurance to compensate a person for their wrecked car and body. For example, all drivers in Texas (and most states) are required to have liability insurance. If an automobile collision occurs and the liability for the wreck is disputed, one can guarantee that insurance is somehow involved.
The role of insurance is critical on three different fronts: for the injured family member to received the medical attention they need; for the alleged wrongdoer so their personal assets are protected and lastly for the taxpayers who through Medicare, Medicaid or hospital write-offs, would often have to bear the brunt of a wrongdoer’s negligence or gross negligence.
Under Texas law, juries are deliberately not informed about the role of insurance in the trial. Even though insurance companies will hire attorneys for the defendant or in some cases the defense attorneys are actual employees of the insurance company, the attorneys will have a separate law firm name so if a juror looks them up they will not know the lawyer’s true employer.
The mere mention of the word “insurance” in a courtroom is taboo and trial lawyers collectively panic when “insurance” is mentioned in fear of an automatic mistrial. Even during jury selection “insurance” is not used when asking potential jurors about their jobs or backgrounds. Instead, vague questions regarding “claims handling”, “subrogation” or “adjusting claims” are often asked that hint or tap dance around the real issue.
Most jurors are already aware that in a lawsuit an insurance company is paying for the defense and selecting the experts and deciding the strategy and witnesses for the defense. The perception that a jury will be more likely to find liability on the part of the defendant because they have insurance seems outdated and patronizing to modern jurors so the wisdom of the not being allowed to mention insurance at trial will continue to be debated.
Jury duty is an obligation of citizenship. Just like paying your taxes or voting, jury duty is an essential part of maintaining the civic infrastructure most of us take for granted. We all have the right to be tried by our peers and the jury system is the best system yet devised; the one most likely to yield just, fair results. Jury service is not perfect but it is meaningful work and one of the best in the world. If jury duty was not mandatory there would be no jurors or at-most very few. It seems to the average American, nothing is seemingly more disliked than receiving a jury summons in the mail. The list seems endless of what people believe they are going to miss or the hardship they will suffer if they have to report to jury duty. As inconvenient as it may seem, jury duty is important for you and is in place to protect you from governmental abuse. It is a common misconception that jury duty is about deciding guilt. The jury system was first formed as a place for review of the law and how it is applied to everyone. There are circumstances in which the law is unjust and it is your duty as a juror to represent the opinion of the people. The next time you think about being inconvenienced by reporting to jury duty, remember that other than voting, acting as a juror is really your only other civic responsibility in this country. In other words, all the work done by the founding fathers, and all the actions of those who fought bravely or died on behalf of this country’s democratic institutions, resulted in a set of freedoms for citizens of this country not seen in other parts of the world. And, after all the sacrifice of those that came before you to ensure that each of us has the right to life, liberty and happiness, all your government really asks of you in return is to vote and show up for jury duty.
Thomas Jefferson once said “I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.” As a trial lawyer I stand by Thomas Jefferson’s quote. I can’t think of anything more important to my clients than the right to have their cases, whether personal injury or any kind of case, decided by a jury. And even though jury duty does take some amount of time away from what your daily routines would have been, almost every judge I have been in front of has been very sensitive to those facts. While there is no one standard rule as to how long jury service is, one thing is clear, if you sit on a civil or criminal jury, and reach a verdict, you are done.
So the next time you get that jury summons, sure it may be an inconvenience, but at the end of the process, you, like so many before you, will have made a huge commitment to our democratic system of government, you will have made a huge difference in resolving a controversy. That small burden is a small price to pay for the privileges and protections of our government. With rights, come responsibilities. Jurors owe it to their fellow citizens to perform this service seriously; justice depends all on the quality of jurors who serve. The survival of your own right to trial by jury depends on the willingness of all to serve, so be part of the system and make a difference.