E-mail alert December 2003

The McTexLaw Email Alert for December, 2003

Well, I just made yet another trip to Austin, this time for a special seminar on the new Texas Residential Construction Commission. If you’re involved in residential construction of any kind, my special focus article on the TRCC is just for you, and the time to begin looking into the TRCC is now, because part of it went into effect September 1, and another big part goes into effect January 1, 2004. There’s also a case for business owners about a new weapon of plaintiff’s lawyers, the “grief expert.” This case is a great illustration of how a court goes about reviewing and revising, if necessary, the amount of a jury’s damages award, with some poignant insights into the world of litigation for business owners.

New on The McTexLaw Business Owner’s Resource Center:

Good Grief: Business Subjected to “Grief Expert” in Wrongful Death Trial

Wrongful death case. Horrific auto/truck accident tragically involving members of the Vogler family. Lawyer for surviving dad and father Vogler brought in a “grief expert” at trial to testify about Mr. Vogler’s future mental anguish and loss of society damages. The defense went nuts. This “grief expert” never even interviewed or evaluated any of the Voglers! Shockingly, the court allowed this “expert” to testify about “general theories of grief and recovery.” And it worked. The jury awarded damages of $1,500,000 for future suffering due to loss of wife, including loss of the wife’s future earnings, and $1,300,000 for future suffering due to the loss of his daughter. Defendants’ lawyers thought those numbers were a bit excessive, and that there’s really no such thing as a “grief expert.” Sorta right and very wrong. And so, I predict that now we may see more of these “grief experts” testifying in all sorts of cases. Click the headline to learn about the rules on experts and damages in injury cases against your business, and for several blinding flashes of the obvious from the Court. Vogler v. Blackmore, et al., Case No. 02-41527, U.S. Court of Appeals for the 5th Circuit, November 25, 2003.

New on The McTexLaw Commercial Real Estate Resource Center:

Special In-Depth Focus: the New Texas Residential Construction Commission

The new-in-2003-and-2004 Texas Residential Construction Commission Act (TReCCA), is an amazingly large piece of legislation, in all respects. And its effects are likewise broad, and huge, deep and wide. For residential construction projects that come within its scope, it will determine whether the construction was or was not faulty, it establishes a dispute resolution process, and it limits the types of damages available if the builder is at fault. While serving on the State Bar’s REPTL Legislative Affairs Committee–Real Estate Division, I watched the bill go through passage. And this past Friday, December 12, I spent the better part of an entire day in Austin listening to practicing lawyers–both those representing builders and those representing the homeowners/consumers–discuss and debate the effects of this new scheme. Click the headline for this “must read” article if you are in, or in any way related to (as in lenders, subcontractors, etc.) residential real estate.

NEW BUSINESS FAILURE RATE

Most of us have heard the old statistic, perhaps more of a legend in its own time, that 90% of new businesses fail in the first year of their existence. More recently, the Small Business Administration finished a study of 12,185 new businesses and found that 67% of them were still around at the end of a four year period.

Why is this important? Because the percentage of all U.S. workers who are self employed hit 50 year lows during much of 2002. And most new jobs aren’t created by the General Motors and Microsofts of the world, but by small business. And the SBA, for one, is hoping that this study and its findings will encourage entrepreneurs to get back in the market of starting new businesses, and generating jobs that will reduce our nation’s unemployment rate. Increased employment, in turn, expands the federal government’s income tax base, generating more income taxes without raising taxes. And yes, it is possible to tie everything into either death or taxes.

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