Stop Those Pesky Collection Phone Calls for Someone Else!

Even though I have my cell phone and personal phone on the "Do Not Call" list, I still get phone calls from collection agencies. I suppose when one gives out his cell phone number on a business card or over the internet for business purposes, that anyone could use that number for their own purposes.

　
Business phone numbers CANNOT be registered on the "Do Not Call" registry.

　
As an attorney, I want clients and contacts to have my cell phone number so that they have access to me 24 hours per day, particularly since I must be available in the event that a trucking client needs me to supervise the investigation of a catastrophic accident.

　
In the meantime, what should I do to avoid those pesky calls?

　
Obviously, the first thing I need to do is make sure that my phone lines ARE registered with federal "Do Not Call" list. If you are not aware of this registry, go to www.donotcall.gov

　
You can register up to three numbers at a time.You will receive a separate confirmation email for each number you wish to register online. You must open each email and click on the link in each one to complete the registration process. If you have more than three personal telephone numbers, you will have to go through the registration process more than once to register all of your numbers.


Also, you can file a complaint if necessary. Yet, there are certain callers that are exempted from the "do not call" list. Because of limitations in the jurisdiction of the FTC and FCC, calls from or on behalf of political organizations, charities, and telephone surveyors would still be permitted, as would calls from companies with which you have an existing business relationship, or those to whom you’ve provided express agreement in writing to receive their calls.


However, if you ask a company with which you have an existing business relationship to place your number on its own do-not-call list, it must honor your request. You should keep a record of the date you make the request. Recently, I received ANOTHER call from a collection agency, but he threatened not to take my name off the list if I did not give him detailed answers about my phone, the debtor he was trying to reach and more.


He made me angry, but frankly, I was not exactly sure what to do other than to call his company back , report the harassment and demand that my number be removed. It worked.

So what else can you do? I did a little research and discovered: very little.

Truck Driver as Independent Contractor or Employee in Texas? A Distinction Without a Difference

Like in most other states, under Texas Law, the difference between an independent contractor an employee generally boils down to the right to control the work done by the person.

The Texas Supreme Court established a test whether the employer has the right to control the progress, details, and methods of operations of the work. The court asks whether the employer has the right to control the progress, details, and methods of operations of the work by inquiring about:

1. the independent nature of the worker’s business;

2. The worker’s obligation to furnish necessary tools, supplies, and materials to perform the job;

3. The worker’s right to control the progress of the work except for the final results;

4. The time for which the worker is employed; and

5. The method of payment, whether by unit of time or by the job.

Federal courts interpreting Texas law consistently find the federal statutory definition of who is an "employee" trumps the traditional common law "right" to control" doctrine.

The federal government Legislatively created a surety obligation under the MCS-90 and related statutes. One of these federal regulations define who constituted an " employee" in interstate trucking for purposes of liability. 

Federal trucking regulation define an "employee" as follows:

"Employee means any individual, other than an employer, who is employed b an employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and freight handler."

Most trucking liability policies contain an Employee Exclusion, which operates to eliminate coverage for claims made by injured employees against their employers. Although the exact language may vary somewhat, most liability policies contain an exclusion for coverage that generally reads as follows:

"This policy excludes coverage for:

Bodily injury to:

An employee of the insured arising out of and in the course of employment by the insured; "

The Fifth Circuit of Appeal recognized long ago the primary purpose of an employee exclusion clause in a public liability policy is "to draw a sharp line between employees and members of the general public."

Even though most trucking liability insurance policies exclude coverage for claims by employees, injured truckers still attempt to make claims against the trucking carrier by arguing they work as independent contractors, not as employees.

The Fifth Circuit stated:

"In sum, we conclude that the district court properly relied on § 390.5 to determine that Paillet [the driver in the sleeper portion] was an employee of PWS for Purposes of the policy’s employee exclusions. Because Paillet is an employee under § 390.5 regardless of whether he would have been considered an employee or an independent contractor at common law, the policy’s employee exclusions apply to preclude coverage in this case."

Consumer County Mut. v. PW & Sons, Trucking, Inc., 307 F.3d 362 (5^th Cir. 2002).

In the case of Ooida Risk Retention Group, Inc. v. Williams, 579 F.3d 469 (5^th Cir. 2009), the Fifth Circuit reinforced the decision of PW & Sons, holding that the claims of a "statutory employee" against the trucking company insured were barred by the fellow employee exclusion.

When did I Become an "Old Codger Lawyer?"

Taken from "Five Signs You’ve Become an Old Codger Lawyer" by C. Hank Peters on September 27, 2011 from "Bitter Lawyer"

Crimeney! I'm only 50 years old, but I feel like a friggin' old timer! It seems like I just started doing this stuff, but I realize that I am still practicing law after 25 years. When will I get adept at it?

Every now and then, I take a little time to view some ideas from Linked In, so I am pretty hip, I think. When I am really bored (which is rare), I take in some of the stuff from "Bitter Lawyer." The following are some thoughts shared about a year ago from C. Hank Peters. Perhaps, you see yourself (or me) in some of these examples of when the lawyer became an "old codger."

1. Uses  Latin Phrases as If they Mean Something

Even within the last week, I was throwing around "res ipsa loquitor" as if it was recent slang such  "Groovy" or "far out." What? Those are out of fad too? Holy Toledo! When did things change on me?

I think I may have even recently used the phrase "mens rea". Some other obvious phrases are uno flatu, nunc pro tunc, and magna carta. Res ipsa, though, is still annoyingly acceptable so long as lawyers continue to name their softball league teams with some variation of the phrase.

2. Serving Papers by Facsimile and U.S. Mail, Postage Prepaid

Old codger lawyers use the overkill method of sending routine letters by fax and U.S. mail. But they announce it in all caps on their letterhead, as in “SENT BY FACSIMILE AND U.S. MAIL.”  Apparently,  if you still include the original by mail after already faxing it, then you are incurably old.

3. Consulting the Urban Dictionary Before Talking to Associates

Old codger lawyers are not always so blissfully unaware of our being out of touch. I worry that someone is going to  relegate me to the "old codger scrap heap." I can't stand when summer law clerks still call me "Mr. Perkins" after being here for several weeks.   So,  naturally I do what all old codgers do: try to talk the talk. As  Peters said in his original post, do that, twe do two things: 1) add an “O” to the end of your name, as in “Bill-O”; and 2) consult the online Urban Dictionary each day in an attempt to throw out a crunked word here and there. Worse, in desperation, some old codger lawyers like to string several Urban Dictionary words together, as if misused slang has exponential power, like “Hey, Steve-O, your memo was like some mad shiat, ya know what I’m sayin?” If confronted with this, just nod slowly and think of it as a linguistic comb-over for the legally aged.

4. Recalling Scenes from LA Law

I was really sad to see that this really put me in the category of "old codger" until I realizewd that it's been almost  30 years since LA Law was broadcast. Is broadcast an outdated word too?

Apparently, dropping names like “Arnie Beckman” or asking associates “What Would Markowitz Do” is a solid sign you have old codger disease. Even if you were the biggest LA Law fan in the show’s heyday in the late 1980s, don’t talk about it in mixed company. Letting a giddy phrase slip out ages you instantly (e.g., “It’s time you people remember whose name is at the top of the letterhead!”).  Same goes for mentioning Harry Hamlin and wondering wistfully where he is today. It’s all off limits.

5. Recalling ALL The Things that Weren't Around 25 Years Ago

This is not one that Peters used. It's all mine. Now that I have been in practice for 25 years, I CAN recall all things that we didn't have "back in the day" so I am officially an "old codger." Plus, now that I am AARP eligible, why not start making the list. Here goes:

Deposition Objections?

Unless a deposition is being taken for trial purposes, lawyers typically reserve all objections except as to the form of the question. Yet, we know that many attorneys STILL make  objections that are NOT proper in a discovery deposition.

Many lawyers have not done their homework and make deposition objections that are improper and interrupt the flow of information. Other lawyers, who have done their homework, make objections simply to interrupt that flow and to intimidate opposing counsel.

I will let that kind of silliness go on for a little while, but often times, I will ask what is wrong with the "form of the objection." Often times they don't know what is wrong with the form and they are actually making a "relevance" objection. The tactic will backfire on them because they usually don't expect me to confront them about their stupid objection.

The purpose of a deposition is to gather information, not to show off.

The permissible scope of discovery is whether the information you are seeking is reasonably calculated to lead to the discovery of admissible evidence. The standard is not whether it will be admissible.

Improper Deposition Objections.

• Irrelevant. If the question may lead to admissible evidence, it is proper. If the question is so far afield, a relevance objection may be warranted.
• Hearsay. While a hearsay objection is appropriate at trial, it is not appropriate in a deposition. For example, if you ask the deponent, “What did Jane tell you?” the answer can lead to the discovery of admissible evidence. You can determine based on the answer whether you should take Jane’s deposition and you can then ask Jane directly. If Jane’s testimony is important, you can call Jane as a witness to testify at trial.
• Assumes facts not in evidence. Since this is not a trial, it is okay to assume facts that are not in evidence.
• Calls for an opinion. You do not need to lay foundation to determine whether the deponent is qualified to give an opinion. It is appropriate to ask for an opinion and how he or she arrived at that opinion. Those answers can lead to discoverable evidence.
• Speaking and coaching objections. The lawyer defending the deposition is not supposed to be testifying. Nor should the lawyer coach the deponent with objections. Objections should be stated succinctly in a non-argumentative and non-suggestive manner.

Proper Deposition Objections

• Privilege. This is the big one. It must be made or it is waived. This covers any privilege such as attorney-client and physician-client. You can ask, “When you spoke with your lawyer about this case, was anyone else in the room? Who?” Based on the answer, the privilege may have been waived. Privilege is the one rare case in which a deponent should be instructed to refuse to answer.
• Form of the question. This objection is usually asserted to make a clear record. For example, if the question is compound and the person answers yes, what portion of the question are they agreeing with? A form objection should also be made to a confusing question, as well as a question that calls for the witness to speculate. Form questions are waived if they are not made during the deposition.
• Mischaracterizes earlier testimony. This is also to make sure there is a clear record.
• Asked and answered. This is a useful objection to make sure that your client doesn’t give a different answer than was given a few hours earlier. If you don’t make the objection and your client does provide differing information, your client has obviously lost credibility.
• Harassment. If the deponent is being harassed or bullied, object. If that behavior continues, state on the record that if the specified conduct continues, you will terminate the deposition. Make sure the record will be clear to an outsider (i.e. the judge) that the witness was being harassed.

Whether you are defending or taking a deposition, knowing how to make and respond to objections, will lead to a more productive process. Don't put up with shenanigans from attorneys!

Strange burning pressure...

I don't mean to be gross or inappropriate (well actually I do, but only for the sake of humor), but I just settled a case that was supposed to go to trial next week and I feel like I have a burning pressure in my anal area from some rulings from the judge.

All kidding aside, I really wanted to take this case to trial. As we all know, more than 95% of all the cases that are actually filed (not including all the ones that are settled before filing a lawsuit) get settled without going to trial.

I suppose that all in all, that may be acceptable to the client to prevent the costs of litigation and to ensure a guaranteed result. However, I get frustrated with the "non-biased" jurist not only rules against me on evidentiary issues, but actually TELLS the opposing counsel HOW to get the evidence in the record.

In other words, from the bench, the judge tells the plaintiff's attorney that there is more than "one way to skin a cat" and goes on to tell him how to ask the question, "For example, perhaps you could ask...." I can honestly say, that I have never had a judge tell me how to present a case. I have never asked a judge to tell me how to present a case, but in over 25 years of litigating bench and jury trials, I have had many judges tell me what I CANNOT do or that what I attempted to was  stupid (literally). Yet, no judge has been "kind enough" to tell me how to win a case.

Why is that?

I assume it is because they want the apparent "underdog" to have the best chance to win. Of course, not all judges are like that. In fact, there are very few who have ever taken over the case and told the attorney HOW to present his/her case (except in a few bench trials when it was obvious the attorney had no idea what to do).

Oh well, this is what I do. I defend companies that get sued. I do the best I can to aggressively defend their interests and look for ways to resolve disputes in the most cost-efective manner. Some of my clients may argue that I have not kept the costs down as much as they would like, but I genuinely try. Sometimes there a cases that are just very odd and require more work than others.

In defending cases, I have learned that judges are not always fair. There are times when the best I can do is make the objections, create a record and move on.

It's very frustrating, but this is  not going to be the last time that I feel like someone has inserted some foreign object in a place not designed to have something inserted.

Have a great day!