July News from Fletcher Farley Shipman & Salinas LLP

Fletcher Farley Newsletter

July 2022

"Do not withhold good from those to whom it is due, when it is in your power to act."

Proverbs 3:27

Greetings from Derreck Brown

Greetings from the Austin office! Happy Fourth of July!

I can’t believe we are already halfway through 2022. Summer is in full swing. My kids are out of school on summer break, and people are traveling like crazy again. This is a great time to spend that valuable time with family and friends, which is so important. With everyone traveling and out on the roads, I thought it would be good time to remind everyone about Fletcher Farley’s RapidResponse^TM program. Don’t forget that this service is available 24/7, and we will send a legal forensic team to the scene of a loss, usually within a matter of hours, which can make all the difference in gathering crucial evidence. So, as you enjoy your vacations and traveling, you can rest assured that we are ready to step in when needed. Please have a fun and safe summer, and don’t forget the sunblock!

Compelling a plaintiff

to answer the

hard questions

by David Solomon

Getting all the relevant facts behind an accident is key to successfully defending a claim. However, this may be problematic at times when a plaintiff refuses to provide key and relevant information related to his or her activities at the time of an accident during the claim process or even during litigation. However, the discovery process in Texas is extremely liberal and just because a party doesn’t want to provide the information, doesn’t mean they can withhold the information if asked directly. It is well established that the purpose of discovery is “to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed.” Jampole v. Touchey, 673 S.W.2d 569, 573 (Tex. 1984). The Texas Rules of Civil Procedure allow discovery of “any matter that is not privileged and is relevant to the subject matter of the pending action.” Tex. R. Civ. P. 192.3(a). The question of admissibility is for the Court to decide, not the plaintiff or counsel.

Over the past year, our office has seen an increase in Plaintiffs’ counsel instructing their clients not to answer questions during their deposition. The most recent example involved a plaintiff’s counsel instructing his client not to answer over twenty-five questions that related to her daughter. That case involved a double traffic fatality where Plaintiff’s daughter was a passenger in a vehicle that ran a red light and struck a truck. Plaintiff brought suit alleging negligence against the driver of the truck, despite evidence to the contrary. The bulk of the questions posed related to her daughter’s medical history and drug and alcohol use, including on the day of the incident. Counsel contended that this line of question was harassing and abusive and that the daughter’s medical history and drug use were irrelevant to the case, as she was the passenger in the vehicle. We challenged the objection in Court, as we felt the questions were relevant since they could provide a clearer understanding of what may have occurred, potential parties that may have been involved, and Plaintiff’s overall damage model. The Judge agreed. The Court held that these questions were relevant and ordered Plaintiff to pay all costs associated with continuing the deposition. One of the key factors in obtaining this ruling was that all of the questioning was documented and could be directly connected to information legitimately needed to defend the claims. Plaintiff’s counsel felt that he had sympathetic client who had lost her daughter and therefore we would not challenge his objections, and if we did, the Judge wouldn’t compel her to answer.

Simply accepting a claimant’s refusal to answer questions or allowing them to remain silent just because there is a sympathetic plaintiff is never the answer, especially once litigation is filed. The discovery process is there to assist in the defense of any claims and, if necessary, the Court can be brought in to order a party to provide the information.

Trial Victory:

Bar Fight Meets

Johnny and Amber

Summary by Kristi Kautz

Doug Fletcher and Kristi Kautz prevailed in a jury trial in Henderson County, Texas on a case that truly had it all, a bar fight caught on video, an alleged related assault in a parking lot, and a claim of allegedly devastating defamation of the victim of the assault. The Plaintiff was a patron of the bar on the night in question and alleged that she was assaulted in the parking area by the same persons who had been involved in the fight. She claimed that Fletcher Farley’s client, the bar and its owner, was liable to her for negligence in failing to remove the perpetrators of the fight from the premises, for assisting in the assault on her by allowing the perpetrators to be at the bar, and- as to the bar owner- for defaming her by allegedly expressing disagreement with her version of the events outside when she returned to the bar and claimed to have been assaulted.

Doug and Kristi argued to the jury that the bar owner had properly stopped the bar fight inside (in less than three minutes), the Plaintiff was not injured by the fight, the bar owner had not assisted the perpetrators in any way, Plaintiff was possibly intoxicated, and that Plaintiff had instigated the interaction outside the bar by following the alleged participants and verbally and physically provoking an altercation. The jury agreed and found Plaintiff 100% negligent in causing the incident outside and that no assault occurred. The jury also agreed that the bar owner did not make the statements attributed to him by Plaintiff and therefore did not defame her.

The jury’s findings resulted in a complete victory for Fletcher Farley’s client and drinks on the house for life for Doug and Kristi at a certain bar Texas!

Blue Goose Golf Tournament

Our firm had a great time playing a little golf, seeing old and making new friends (and passing out a lot of cold drinks and cooling towels in that scorching Texas heat!) at the

Blue Goose Golf Tournament last month.