Rob Henry’s Fort Worth Attorney Blog – Personal Injury & Business Stories

You’ve been in an accident, and you were hurt. What’s next? The biggest question here is: were you hurt badly enough to ask for damages? In this article, we’ll discuss how to judge that.

Medical Bills

In every case, you should start with medical bills. This is the biggest indicator of whether you might want to look at damages. In Texas, computing those medical bills is interesting. You can’t go before a jury with the total charges for a hospital bills. What you can take before a jury is the amount you’ve actually paid or the outstanding balance. If the hospital wrote off charges, the court looks at those charges as if they never happened. This is called “paid vs. incurred”, and Texas is one of the only states that uses it.

Calculating the amount of medical bills that go before the jury is complicated using this method. But to put it as simply as possible, use the amount that was paid by the individual or insurance company, or what is left to be paid. Start with that number.

Another thing you should look at is whether the person needed surgery. Obviously, this means he or she was hurt pretty badly. Then, look at whether therapy was needed. Did the person require physical therapy and treatment after the accident?

Sometimes, you have people come in after an accident. When you ask what happened afterwards, they say, “Well, nothing”. If that’s the case, this person probably wasn’t hurt. Most of the time, you should tell that person, “Be thankful you weren’t seriously injured. A lawsuit isn’t worth your time.” If, however, the person went to the emergency room, that’s a big deal and requires further consideration.

That doesn’t mean that if the person didn’t go to the emergency room immediately, he wasn’t hurt. People feel okay all the time at the accident scene, due to shock or adrenaline, and then wake up the next morning sore or in pain. Then, they go later.

Those are the big indicators of how badly someone was injured. These are the questions you want to ask:

• Did you go to the emergency room?
• What was the treatment?
• What was the effect of the injuries?
• Did you have to miss time at work?
• Did the injury affect your well-being?

Remember that no one wants to have surgery. It’s the only option or a last resort. People don’t want to spend hours at physical therapy, away from their jobs or families, unless it’s going to help.

Timing

There is no magic time to make a judgment on a person’s injuries. Most people start looking at lawyers a couple of weeks after an accident. Then, they realize how big the process really is. This is when insurance companies start asking questions, wanting statements. When they come in, I always tell them to do what the doctor says. I wouldn’t make a judgment on the extent of injuries until a doctor says there’s nothing more that can be done. Unfortunately, sometimes that means the person still has something that can’t be fixed. Maybe it’s stiffness in the neck or a pain in the shoulder. More often than not, the doctor will eventually tell the person that they have to learn to live with that.

But I would not make the call until the doctor says one of two things: “You’re healed” or “This is as good as it gets.”

Settlement Offers

If you’re offered a settlement by an insurance company, in most cases, you shouldn’t take it. It’s different if you’re only dealing with property damage with your vehicle; that’s fine and pretty straightforward. For that, you don’t need an attorney. I always tell my clients that I’m happy to advise them on property damage, but I don’t want to have to get paid from that part of the accident. It’s not complicated and they don’t need me.

But, when you’re dealing with personal injury, you should always discuss it with a lawyer. Some insurance companies are fair; some are better than others about what they offer and pay. Sometimes it’s not very fair, but it’s usually pretty close. Just talk it over with the lawyer before you take whatever the insurance company says.

So those are the basics of dealing with personal injury. First, assess the medical bills and medical situation. Remember that Texas law only uses medical expenses that are paid or have an outstanding balance. Don’t figure anything for the case until the doctor signs off on the healing process. And always talk with a lawyer before taking a personal injury settlement.

You’re thinking about going into business with partners. That’s great, but there are some things to keep in mind as you form the business or partnership.

The Worst Advice

I hate to say this, but you need to understand that if you hire an attorney to represent you in drafting documents, that attorney represents you – not the business. If another partner hires an attorney, the attorney represents that partner – not you. A lot of attorneys aren’t good at disclaiming that.

Just remember – the attorney represents the person or entity who hired him, and only that person or entity. There may be a scenario where he’s representing more than one person, but there is absolutely not a scenario where he’s representing everyone involved. Understand that you are not represented when you don’t hire the attorney.

Sometimes, it doesn’t matter. Most partnerships don’t get nasty. Breakups aren’t bad. Lots of times, the fact that you aren’t represented when forming the partnership doesn’t matter at all. The thing is – you don’t know that in the beginning. You won’t know unless it happens, and that’s the main thing.

So the question becomes – do you need to have an attorney help you go over the basic partnership document? I don’t know. That’s a personal decision. But, I will say that if someone else is being represented, you definitely need to pause and consider that the attorney isn’t representing you.

Ensuring Equal Distribution of Responsibility, Risk, and Reward

Now, how do you keep the business going? How do you ensure that the talent, the financial backer, and anyone doing sweat equity all do what they say they’re going to do? A lot of times, there’s not really anything you do. You can put something in the agreement, but that doesn’t guarantee anything.

If the business is doing great and everything’s rocking along, everybody will be happy. But there are situations where someone isn’t happy with the other partners. There are other situations where it’s a matter of ego. What I see the most is that someone in the partnership thinks they’re doing all the work. In that case, all the partners need to sit down and evaluate whether everyone’s pulling their own weight. Communication is key, no matter what business you’re in.

There are also cases where one partner, whether the talent or the business knowledge, feels that he’ll be better off on his own. When you’re forming your partnership agreement, think through this scenario. Make sure you include a good, sound way to buy that partner out or simply end his involvement. Keep your covenant to compete up to date, as well as confidentiality and nondisclosure provisions. Even if you think it’s impossible for anyone to ever want to leave the partnership, keep in mind that you may be happy now, but in a few years, egos or other things may change, and partners may want to move on. Businesses do sometimes break up, and you have to be prepared for that.

Other Considerations

Probably the three most important things to consider when forming your partnership agreement are noncompetes, confidentiality, and nondisclosures. Those three provisions protect your proprietary information. Now, when I say proprietary, I am not just talking about scientific data the company owns. This includes your price lists, market information, and research and development. I am talking customer lists and client information. These provisions protect all of that.

If you don’t have a good provision in your partnership agreement, your former partner could start reaching out to those customers and vendors. They could start talking with them about pricing. What most of those partners don’t realize is that yes, they were there and helped build the business and get the partners in, but that information belongs to the business, whether it’s a partnership, LLC, etc. It doesn’t belong to the partners individually. You need to make sure the partnership is protected in the beginning, and not when a situation like this actually happens.

So there you have it – protect yourself, protect your time, and protect the partnership itself. Make sure all those provisions are in place when you form the partnership, and communicate to keep the business going.

When we asked Rob why he might turn down a potential client, he gave some interesting reasons that provide some insights into how a lawyer decides who he will or won’t work with. Following are the three main reasons a lawyer might decline to take a case.

You Just Don’t Have A Case

First and foremost, if there’s nothing that can be done, a good lawyer doesn’t want to waste your time, or their own. It might sound a little bit harsh to tell someone they simply don’t have a case worth pursuing, but if that’s true, an honest attorney should tell you so up front.

Lawyers Offer Legal Advice, Not Business Advice

When it comes to working with businesses and/or business owners, many lose sight of the fact that a lawyer can only provide advice relating to the organization’s legal situation, not what is good or bad for the business itself. Once presented with the options and possibilities, the business owner needs to decide what will be the best course of action. If these roles are not understood, sometimes it’s better that the relationship ends.

A Personality Clash

It may sound a little oversimplified, but lawyers are people too, and not everyone gets along together. Sometimes it might become apparent that working with a particular client is just going to be a bad decision for everyone involved. In this case, it’s probably a better idea to decline to take the case and suggest the client seek the help of another qualified attorney.

In the end, it all comes down to not wanting to waste someone else’s time or money. A lawyer who ignores any of these factors and takes a case anyway is just going to be wasting the client’s time and taking their money in exchange for what they know will most likely turn out to be bad results.

So you’ve selected an attorney. At first, you’re happy with your choice, but after two years or so, things aren’t going well. The case isn’t moving along, you aren’t satisfied with the attorney’s performance in general, and you want to move on. But how do you break up with an attorney?

The first thing to remember is that you must take this decision very seriously. Don’t just rush into judgment of your lawyer. Litigation is a slow process; that’s just how the system is. It’s a good system, better than people tend to realize, but it is not perfect, and it is slow. So really consider why you’re not happy with how the case is (or isn’t) moving forward. It might be the kind of situation where there really isn’t a better way to proceed.

Secondly, be careful about talking to other lawyers regarding the situation. Lawyers are naturally very bad about second-guessing people, tending to play the role of Monday morning quarterback, and can be more critical than is necessary. Keep this in mind if you’re getting a second opinion about your case. If you’re upset it’s moving slowly, chances are there’s nothing that anybody can do, even other lawyers.

However, sometimes another lawyer really could do a better job, so if you’re ultimately not happy with your lawyer and want to let him or her go, be upfront with your current lawyer. These kinds of situations do happen; attorney-client relationships terminate all the time. It’s really not that big of a deal. Make sure you have another lawyer lined up to take the case, because if you walk away from your current attorney without another lawyer, that’s a huge red flag for any other attorney wanting to take on the case. It’s crucial to be certain you have another lawyer who’s ready to step in.

The most important thing is to be sure of your own intentions for breaking up with your attorney. Ask yourself, “Why am I not happy about where this is going?” If it’s because things are going too slow and you feel like your case isn’t moving along, hold back for a minute and consider that this may simply be the fault of the system, not the lawyer.

If, however, you don’t like the way the case is going because of the facts of the case itself, take a step back and try to look at the situation from the other side. It’s often really hard for clients to see that there are two sides to every story. Sometimes, the attorney does have valid reasons that the client can’t really see. If this is possible, ask yourself, “What’s going on here?” and try to think objectively about the case.

Overall, remember not to make hasty decisions. Litigation is a long, complex process. If you have doubts about your attorney, visit with another lawyer, but take what he or she says with a grain of salt. Try to be fair to your current attorney; try to see your case from all possible angles. And if you do ultimately decide to walk away, make sure you have another lawyer ready to go. With these steps, you can be sure you’re making the wisest decision for the situation.

One concern for business owners when you hire employees or contractors is the risk that your customer list will be stolen. You want to hire qualified and motivated employees, but you do not want to lose customers if those great employees decide to start their own business or offer their services to your clients directly.

You can secure your customer list by having each employee or contractor sign a written agreement. These contracts are usually referred to as Non-Compete Agreements or Non-Disclosure/Confidentiality Agreements. The purpose of these agreements are to keep employees or contractors from disclosing information about your customers. In this agreement, you may explicitly state that customer lists may not be shared or used outside of their job scope.

In addition, it is useful to add language that limits the employee or contractor’s ability to contact, solicit or communicate with customers after termination of their employment. Under Texas law the time limit must be reasonable. The longest a court will typically allow is five years. A more enforceable time limit is two years.

If you choose to have a longer time period, for example, ten years, it is unlikely the courts will enforce that length of time. While the courts will likely not throw the whole case out, they will modify the time down to what they think would be reasonable. For local companies operating in a few parts of the city, a reasonable time is usually no more than two years.

Another key to enforcing your non-compete agreement is by defining the geographic scope. This may be defined by region, city, or metropolitan area. For example, you may choose to define your geographic area as the Dallas-Fort Worth metroplex. Another example would be to define your geographic area as south Texas. As long as the geographic scope is reasonable and you have clients in that area, you should include the information in your agreement in order to support a case in court should the need arise.

In order to avoid trouble with your agreement, do not draft it to say that employees cannot compete with a nationwide geographic area. If the company is not competing nationwide, then that scope is unnecessary. The courts will not allow that.

The bottom line with these types of agreements are that they should be to protect your business. It is absolutely reasonable and smart to do so. However, courts do view these types of agreements as a restraint on trade and commerce because it limits competition.

You can protect yourself for a limited amount of time, but you must understand that at the end of the day, you want people to be able to start working again, even if it ended badly. A two to five year agreement allows you to protect your customer list while still maintaining a fair and professional business environment.

It is that time of year where many people think about volunteering and giving back. I’m personally involved with Tarrant County Young Lawyers Association. It’s a great organization in town, and we do lots of community service around Fort Worth. One of the organizations we deal with is Ronald McDonald House, and what a great organization it is.

People don’t realize this, but Fort Worth is very lucky to have such a great children’s hospital in Cook Children’s. It’s the primary children’s hospital for… I don’t even know how far. I would say up to Lubbock and Abilene. Honestly, it wouldn’t surprise me if you’d say it’s a 300-mile radius.

You have kids coming in getting serious treatment, and their parents and families don’t have any place to stay. So, what the Ronald McDonald House does is sets up a really nice facility for them.

They can come in and they’re not having to stay in a hotel room. It’s right by the hospital, and the kids who are sick can come over if they’re able to. Some, unfortunately, have to stay at the hospital all day while they’re here. It’s just a good little place for them to get a good break.

What we do is come in and help cook the meals for them. We’ve done supper, lunch, and breakfast. You cook a good meal for them, and then that way, they’re not having to just order pizza or eat fast food.

Typically we like to do lasagna or spaghetti or something like that, and they can get some good vegetables, broccoli, or a nice salad or what have you, and get them a good home-cooked meal. They come in and take their mind off of what’s going on there for a minute.

It’s always a neat experience because they’re all very grateful. When you see people going through that and you see those kids fighting and going through what they’re going through, it really helps to put things in perspective.

If you’re looking for a rewarding experience of helping others, I cannot recommend enough for you to get involved with the Ronald McDonald House. You will get so much more out of it than what you put in.