Javier Espinoza has made a name for himself in San Antonio and all of Texas as one of the leading experts in work injury law and on the job injury lawsuits. He is a friend of our firm, a very giving and sharing member of the San Antonio bar and a great attorney. We were lucky to get him on the show to share some of his wisdom.
Justin Hill: Welcome to Hill Law Firm Cases, a podcast discussing real-world cases handled by Justin Hill and the Hill Law Firm. For confidentiality reasons, names and amounts of any settlements have been removed. However, the facts are real and these are the cases we handle on a day to day basis.
Justin Hill: All right, this is another episode of Hill Law Firm podcast as I have Javier Espinoza here with me today who has been kind enough to do an episode of the Alamo Hour. I’m holding him over to discuss work injury cases with me. Javier is one of the best lawyers in our city, one of the best lawyers in the state. He is really chosen to focus, not exclusively, but in a big way on work injury cases. Our law firm has worked multiple cases with his law firm and even when we don’t involve them, they’ve been an invaluable resource to myself and others in the city, and others around the state who have questions about representing injured workers.
Javier, thank you for being here and I just want to start, why did you get so focused into work injury cases in your career and in your practice?
Javier Espinoza: Well, the main reason is because I came to a new city from El Paso and when I got here, I was relatively unknown. I pretty quickly had to develop a niche, and number one, it was a niche that I really, really liked. Having come from a working-class family, I think it was a real natural fit to represent workers, but the bigger, I guess, business sense of it is it’s very difficult to compete with everybody. I very quickly developed, I needed to pick a niche. When I started picking the work injury niche, I just fell in love with it because I fell in love with clients and I fell in love with the type of law, and it’s so different than your regular average case that it really gave me a leg up, I felt.
Justin: Yes, and that’s important to talk about. Everybody that advertises, advertises as though a widget is a widget and a case is a case, and it’s all the same. One of the biggest surprises to me as I started building my own practice and seeing more cases was the prevalence of arbitration agreements in work injury cases, work injury situations. What are some of the nuances to work injury that make it a little different than say, a car wreck or an 18-wheeler wreck?
Javier: Sure. Well, there’s three very specific types of work injuries. Number one, somebody gets injured at work. If they have workers’ compensation, then you can’t sue the employer, you’ve got to go follow workers’ compensation claim and that is administrative, that is through the state of Texas, it’s regulated. It is a whole other world from any type of lawsuit. If the employer does not have workers’ comp, then it’s considered a non-subscriber, they don’t subscribe to workers’ comp. You have to file a claim directly against the employer.
The difference between a work injury non-subscriber claim and let’s say, a car wreck case, is that a lot of times you file a lawsuit in a non-subscriber case and the employer has paid all their wages, has paid all their medical. They say, “What are you suing for?” Versus a car wreck where you’re suing for past medical, future medical, impairment, all that stuff. Well, in a work injury case, that’s essentially what you’re suing for, is the intangibles, the mental anguish, impairment, pain and suffering, and if there’s any evidence of future medical that is not covered by the employer or any difference in pay, the lost wages.
Damages wise, they’re very, very different. Liability wise, they are completely different. In a non-subscriber case, you cannot take the employee’s negligence into account. You’re not supposed to because the statute specifically says, “You can’t take their negligence into account.” However, the Texas Supreme Court has scaled that back a lot under the guise of no duty. I know you and I have talked about that where the Texas Supreme Court has held if somebody falls from a ladder, for example, used to be I could get out there and say, “Well, the employer chose not to have workers’ comp.”
If the employer’s 99% at fault, they didn’t train them properly, they should have had somebody holding the ladder. It was an old ladder that rocked on him, anything. 1% negligence, the employer bought it all. Now, what the Texas Supreme Court has said is, “If the employee knew that it was rickety, if the employee knew it was old, if the employee knew that he should have somebody holding the ladder, then he was aware of the danger and the employer owes no duty to the employee.”
If an attorney takes one of these cases and thinks, “Oh, easy. 1%,” the nuances is where they get you, because once they go take your client’s deposition, they tumble, “You knew the ladder was old. You knew that you could fall. You knew you should have had somebody hold the ladder, right?” “Yes, yes, yes.” Here comes to summary judgement, judge. We have no duty to this person because he was aware and he chose to get up there.
Justin: I look at some of the cases I’ve done now on the job and I thought, “How did we get what we got?” Because if the defense, which I think is also a fair point that some defense lawyers don’t really know how to defend these either and think that same way. They ignore that really solid defense that they have, and sometimes it works out in our favor.
Javier: For sure. We had a really, really good arbitration result on a case where we thought they had a defense and they stipulated to liability.
All right, we’re not going to fight you on it because they come in thinking the same, 1%, right? 1%. And if they don’t normally practice in the non-subscriber world, they’re not aware of these cases that have come up from a texture court that have scaled it back. They remember still from 20 years ago, 1% and you pretty much have bought it all.
Justin: We have to tell clients and you have to do it more than I do, that we have an unfriendly Supreme Court. We currently have an unfriendly legislator. If you think you’re going to take your case up and win the day on making new law or making a exception for yourself, that’s just not going to happen right now.
Javier: There’s not been a positive Texas Supreme Court case on non-subscriber law come out probably in the last 15 years.
Justin: We’re about as low as you can get in terms of worker safety, as high as you can get in terms of worker fatality and about as bad in terms of worker protections from the core. This is a really bad trifecta.
Javier: It even gets worse whenever [unintelligible 00:06:10] makes the arbitration provision.
Justin: Sure. Let’s talk about that.
Javier: Sure. What the Texas Supreme Court has done, and not just the Texas Supreme Court, but it came down from the federal government, the American Arbitration Act way, way back in the early 1900s. They decided that if two companies are going to fight and they’re going to have this big multi-million dollar spat, it’s probably better to go to an arbitrator or arbitrators that are familiar with the systems, that are familiar with the trade, and that makes sense.
Justin: It was created for specialized types of disputes.
Javier: Exactly, but it’s poured over probably around 2003, 2004 is when we first started seeing them spill over into the employment context. Where if you worked for HEB, if you worked for Whataburger, if you worked for Lowe’s that are all non-subscribers, they would make you as part of your orientation, sign an arbitration agreement saying that you were agreeing to not ever sue in state court but go to an arbitrator. We fought those tooth and nail and through probably mid-2005 through about 2010, it was pretty well-settled law from the Texas Supreme Court that if you sniffed arbitration, you were stuck in arbitration.
Even if you died at work, it even could bind your kids and your spouses that were bringing a claim for your death. It’s very fruitless now to fight arbitrations. We’ve just embraced them.
Justin: Taking one step back, I think a lot of people don’t realize that in Texas, you used to either have workers’ comp and if you didn’t, you could get sued in the courts. Then Texas, and I think just Oklahoma, created this weird in-between where they said, “We’re not going to carry comp, but we also don’t want to get sued. We’re going to create this Kwazii comp, but we manage its system and if you do sue us, you have to sue us in arbitration. Really, Texas is unique in that we have this third rail for employers to avoid having to go in front of a jury, I guess is the best way to put it.
Javier: Well, we didn’t talk about that but Texas truly is the only state in all of the United States that does not have mandatory comp. Oklahoma has a mixers’ comp but Texas is truly the only one that if you want to open up a roofing company and we want to have 1,000 employees sitting on roofs and doing whatever they want, we don’t have to have workers’ comp.
Justin: I didn’t know that.
Javier: We are very, very unique in that sense. I think what was happening is they were just getting a lot of big jury verdicts. They said, “Well, why don’t we go to this arbitration system,” and here is the kicker, that a lot of attorneys call me sometimes and they tell me, “What? How do I explain this to my client?” Because if the American Arbitration Association is the association that was picked by the employer when they made this contract between them and the employee, we have to go to the American Arbitration Association and we pick a arbitrator randomly and by, we can agree to this one, we can agree to that one, and whoever they can agree.
If there’s one that we both don’t strike, that ends up as our arbitrator, but the employer pays $100– Well, we pay a $200 filing fee. The employer pays all the arbitrator costs, all the arbitrator fees every time there’s a hearing, the arbitrator charges and I can tell you that we’ve had one to two-day arbitrations where the arbitrator made $22,000 to $25,000.
Justin: I think that’s a great point because, say, you’re injured at Fortune 500 company and you’re John Doe. Well, John doe has one day in front of this arbitrator and triple-A, the American Arbitration Association, and Fortune 500 company maybe has 500 arbitrations over a 10-year period, where they’re paying them $22,000. They know where their bread is buttered, the system is stacked against these injured employees. I think that’s why it’s important that people, when they’re injured on the job, hire lawyers that know what they’re doing. What makes your firm different in terms of how you work a case for a injured worker?
Javier: Well, here’s one point that I want to make in relation to that. There was a study and I can’t set it off the top of my head. There’s a study that was done as to the outcomes of arbitrations and they definitely went more for employers
that we’re regularly in front of arbitrators. It was almost equally well for firms that were in front of the arbitrators over and over.
I tell a lot of our referring attorneys, “Look, here’s a good non-subscriber case you’ve got, you can go follow the arbitration. I can show you how to do the arbitration and help you along the way, but understand, we probably have about 300 arbitrations in our firm at any given point. We see the same arbitrators over and over.” There’s certain arbitrators we’ve arbitrated with two or three times. I tell you what, if we’ve lost one and we felt like we’ve been treated unfairly, we will never agree to that arbitrator again.
Justin: He doesn’t make his $22,000 a day.
Javier: I know that the employers do the same thing. I’ll tell you, obviously, without disclosing names, but we had a really, really good hit against a big retailer at a CLE because these arbitrators are attorneys as well. Some of them were older attorneys. I saw this attorney at a CLE and just said, “Hello, how are you doing sir? Good to see you,” and just a very small chat. He said, “How’s the arbitration world treating you?” I said, “We’re fighting, kicking and screaming. How’s your arbitration practice going?” He goes, “It’s fine but I never been picked by that company again ever since we had that joint arbitration together.”
An arbitrator telling me, I’ve never been picked by a company that I issued an award against, do you think that they don’t have that on their mind-
Justin: Of course.
Javier: -whenever they’re issuing these awards and that’s the big company that may be another $22,000, $25,000 in three different cases for the year?
Justin: To be fair, you’re a qualified arbitrator, I think?
Javier: I am a qualified arbitrator, but I never get picked. I think my reputation is pretty well set that I represent plaintiffs and I’m pretty plaintiff-oriented. I don’t think any defense attorney has ever agreed to me.
Justin: I guess it works out like that. I see some of those panels, sometimes the lists of them and I honestly rarely have a clue who any of them are. I’ve seen my former aunt on it once or twice, and I’ll keep that to myself, what her name is. Your firm and my firm, we’re working on a case right now and I’m a one man shop, and I had a good on the job injury case came in, and I called Joan and I said, “I’m in depos in East Texas. I need somebody to come meet with this guy. We’ll work it this way if it’s regular lawsuit, we’ll work it that way if it’s arbitration. It turns out arbitration, we’re going to work the case together, but you are all going to show me some ropes on arbitration.”
Because it’s a little bit of a different process. You don’t pick a jury and you don’t– The filing system is different and how– It’s basically a hearing in a conference table. At the end of the day, is your trial, right?
Javier: It is. We work them up very similar to a trial in the sense that we send out discovery, we have discovery fights, we have motions to compel, we have depos, we have everything. If there’s any practitioner that’s listening to this right now, that if I can give them a golden nugget, a morsel, your arbitrator is your fact finder, is your judge, is your jury, bailiff, everything. This person is everything. Right?
Defense attorneys that are well versed in arbitration do and what we do, being well versed in arbitration, is we throw everything at the fact finder. If the defendant was accused of pedophilia, whatever, well, we throw it out there and they file a motion to strike that evidence or whatever, but once it’s heard, it’s difficult to unhear it. We had a client that had a long criminal history from way before, had no relevance to this injury, had no relevance to anything, but they asked him, “Have you ever been arrested,” and he goes, “I can’t remember.” That’s all he said. “I can’t remember. I don’t remember.” They said, “Well, are you sure?” “I don’t remember.”
They filed a motion to dismiss the arbitration because our client had lied under oath and then they attached the long list of criminal history he had.
Justin: You can dismiss an arbitration if somebody is dishonest?
Justin: Just made up.
Javier: All they want would do was they wanted to put all of the criminal history of our client in front of the arbitrator because that’s the fact finder. Same thing. We went back and said, “Judge, we asked them if there’s other lawsuits and they said no, or whatever. They weren’t truthful. Here’s all the others we have against them, here’s all the work injuries we had.” You throw everything at them, and of course, the judge says, “None of that is relevant on either side. Let’s hear this work injury,” but they’ve already heard it. Those are things that we do in arbitration, is we just throw everything out there.
Justin: Which you see people do in trial sometimes, but they risk a mistrial if the judge won’t give a limiting instruction or something. There are consequences doing it in front of a jury.
Javier: Well, not just that, but usually the judge is a gatekeeper. If you and I go try a case and there’s a big criminal history that is beyond the 10-year, is not relevant, whatever, we’re going to file a motion on alimony. Judge, this should never get out in front of the jury. The judge is the gatekeeper. Jury never hears that if they make the right call. When you’re going to the judge at any time, you should never hear this, you’re hearing it. We use that a lot to our benefit and we’ll file summary judgment.
Justin: The point is that there are specific strategies for arbitration that are separate apart from what we were all taught in law school or in our first few trials.
Javier: Oh sure, completely different. Whereas, a jury may be a little more sympathetic to your client that has a fractured ankle, because that’s the first time and maybe only time they’re going to hear about that on the [unintelligible 00:15:18]. When you go in front of an arbitrator, it’s pretty cut and dry because this guy or woman may have heard an arbitration three weeks ago about a guy that died, or then-
Justin: Or defended a hundred death cases.
Javier: Exactly. They don’t have a lot of that sympathy factor. Definitely, it is a very different strategy to arbitrate case versus trying a case.
Justin: Even when you have wins, there’s a lid on damages that’s not there sometimes in a jury case.
Javier: I evaluate cases. One of the big evaluations is, is that arbitration or is it trial? If it’s arbitration, you’re definitely knocking off a few points.
Justin: Two more questions and we’re going to finish this, and then people can hear the rest of what we’re going to talk about, because we’re going to really get into some of your more high-profile cases on the Alamo Hour. What types of cases are you all currently taking? Because you’ve recently, not super recent, but kind of recent, added a workers’ comp division. What are the cases you all are taking now?
Justin: We have strived to really be a full-service work injury firm. We have two attorneys that solely do workers’ compensation, Amanda Spencer, Jesse Bustillos. We have Steven Sachs who solely does some cars, but from the work injury standpoint, he does all of our 451s, which is somebody gets hurt at work, they follow worker’s complain, they get fired, 451 employment claim.
Then we’ve got Denique, Villaseñor-Hernandez, Lara Brock, Jade Heap and myself that are doing non-subscribers and third-party work injury cases. Those are the four cases that can come from a work injury. 451, non-subscriber, third party and straight workers’ comp, and now we’ve got attorneys that are dedicated to every type of case from a work injury.
Justin: One stop shop.
Javier: One stop shop.
Justin: Last question I want to ask you. You moved to San Antonio I think not long before me. You came from a different city where you’ve been practicing. Why did you choose San Antonio as your place to set up shop and really expand your practice?
Javier: Two reasons. Number one, we lived in El Paso and my wife and I had had a deal that I was going to go to law school, and then she was going to go to law school, and we lived in El Paso. There’s no law school in El Paso. It was either Texas Tech in Lubbock where I went, we’d go back to Texas Tech or we would come to San Antonio. Just looking at the long-term future and lay of the land, I loved San Antonio, I’ve always loved it. I said, “If we’re going to make a life decision, this is definitely the place where we want to be.” There’s a whole long backstory about Henry’s’ Nettles and why I’m here, but that’s way for another show.
Justin: That’s for the other show. Do you like practicing law in San Antonio?
Javier: I love San Antonio. I love San Antonio. It’s been very welcoming to me, the people are friendly, the legal community is small, the judges are great, it’s turning blue. It’s turned blue pretty much.
Justin: It’s blue. Yes, I think it’s blue now.
Javier: That’s great for us.
Justin: Well, thank you for coming on here. The point of this is I want to have local lawyers on here talk. You and I do a lot of the same types of cases. I don’t have pride of ownership like a lot of lawyers and don’t think I can’t learn for people. I really like working with you all from some cases. I’ve learned a lot, and Lara calls me on questions and I help her when I can. I want to have this conversation with just local lawyers talking about what we do and what we’re getting into next time you have a lock into her case or something like that. I want to get you back on to talk about it because that’s fascinating. We’re going to talk about it on the LMR, but thank you for being here.
Javier: Definitely. Thank you for having me.
[00:18:48] [END OF AUDIO]