Tom Pittman's WebLog

2015 August 24 -- Only a Lawyer

I once heard a lawyer (or maybe it was only an actor playing a lawyer, but it sounded real) say,
If the facts are on your side, argue the facts. If the law is on your side, argue the law. Otherwise just argue.
Only a lawyer could come up with this. My friend was using the words "prima facie" in the context of Texas speed laws, and it didn't make any sense to me. "Prima facie" is a legal term that means "counts as proof, end of story." So he sent me the link.

This guy's domain name is "" and it says everything. He is in the business of getting people off who were in blatant violation of the letter and spirit of the law -- both Texas state law and also God's Law -- and got caught at it.

The "prima facie" clause of the Texas speed law, as quoted by this lawyer, is very clear:

545.352. PRIMA FACIE SPEED LIMITS. (a) A speed in excess of the limits established by Subsection (b) or under another provision of this subchapter is prima facie evidence that the speed is not reasonable and prudent and that the speed is unlawful.
If you drive faster than the posted speed limit, that is proof enough that you are driving in a reckless manner, endangering life and property, and therefore contrary to the law. That's what it means, and this lawyer knows it. That's why he quoted the whole text of that subsection of the law. Nevermind what my friend tried to tell me, this is not unique to Texas. Every state in the Union has speed laws, and if you drive faster than the posted or legal speed, you are in violation. There are no exceptions.

Well, actually, there are a few. A cop driving 100 mph while chasing a Bad Guy will not be sent to jail for it. The driver of an ambulance rushing to carry a person with a life-threatening health problem to the nearest hospital is not going to jail for it. Those drivers -- except the Wyle cops (or at least one of them) as I learned yesterday -- are specially trained so they know how to drive safely in emergency conditions. The rest of the Texas drivers have no such training. Just watch them on the highways, and you can tell.

Lawyers and judges in English common law (every state but Louisiana) have a long tradition of making special exceptions for hard cases. That's what this lawyer is trying to say, but in a way that makes it sound like there are no non-exceptions to the law. There are laws like that, like a law prohibiting abortion "except for the health of the mother" has no non-exceptions. Everybody knows that. Despite what my friend and every other Texas driver wants to believe, the Texas speed law is not one of those. If you exceed the posted (or statutory, if none is posted) speed limit, then you are in violation of the law. Maybe this or another lawyer can get you off on a technicality, but most likely he can't. Basically the term "prima facie evidence" clause means that exceptions are harder to prove than if the term is omitted, not the other way around as my friend tried to tell me. Whether that's true in practice or not is a matter of lawyer skill and judge incompetence. If a jury is involved, the law is irrelevant because the jury can decide anything they want for any reason they want; the principle is called "nullification" because the jury can nullify the law for any reason. So it depends all the more on the lawyer's (including the DA's) skill at persuading them.

As a lawyer, he is not required to get you off, he is only required to give you fair representation. If you come before an anarchist judge -- most Texans seem to be anarchists at heart, except when it's somebody else doing damage to them personally, but actually that's the human condition -- maybe arguing that you are one of the qualified exceptions might work, but it shouldn't. The lawyer gives his legally required "best effort" to get you off, and it probably won't work so you still pay a huge fine for recklessly endangering life and property, but he also gets his huge fee for representing you in court, win or lose. It's a dishonest business model, but who ever said lawyers are honest?

Let's say I'm driving 54 mph on a clear day like yesterday on a straight portion of Texas State Highway 66 where the limit is 55, and there are no other cars in sight. The "prima facie" clause tells the judge that a cop or his DA must try extra hard to convict me of speeding, because the law is on my side. Now suppose some bozo in a Texas-sized pickup comes barreling along at 80 behind me. The "prima facie" clause tells the judge that this guy's lawyer has the harder job to get him off.

Worse, when he gets close and slows down to 54 ten feet behind my bumper, he's still speeding, because the Texas law prohibits that too:

Sec. 545.351.  MAXIMUM SPEED REQUIREMENT.  (a)  An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.
(b)  An operator:
(1)  may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for actual and potential hazards then existing;  and

(2)  shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway in compliance with law and the duty of each person to use due care.

If I see an armadillo on the road (I saw one yesterday), I need to take evasive action to avoid hitting it, which means I need to slow down to not lose control of my car. Otherwise if I hit the poor critter, which has armor much bigger than the clearance under my car, the collision effect will suddenly slow me down. Either way, there's no way the pickup that close behind me can avoid ramming me from behind, so he is in violation of Section 545.351 by following too close, because it is not reasonable and prudent. As far as I know, every state in the Union has this law on the books. In California the left-wing bigots in government want people to believe they are for the common people, so they educate the drivers to know things like this; Texas drivers suffer under a right-wing government which in the common opinion favors corporate interests -- think insurance companies and car dealers and hospitals -- over the ordinary citizens, and in this case they are probably right. So Texas drivers are untrained and stupid and probably sociopathic. Oh wait, I already said that.

Worse yet, this guy is now threatening me with a lethal weapon, because when I slow down for that armadillo, his truck will ride up over the top of my car and take my head off. Yes, it's that kind of car, very reasonable (and fun, even ;-) where the drivers are trained and smart and courteous, but stupid in the State of Taxes where they are not. The only safe and prudent thing I can do under those conditions -- that is, so *I* will not be speeding under Texas law -- is to slow down very gently and slowly, until I'm going slow enough that his inevitable collision is merely an inconvenience, but not fatal. California law required me to do that, and drivers must know it in order to pass their license test, but like I said, Texans are anarchists. Anyway, my defensive driving makes him incredibly angry, and pretty soon he roars around me across the double yellow line, and then we are both happier. He hasn't done anything more unlawful than he already was doing. If he's too stupid to realize that -- after all, this is Texas -- then I look for a wide spot in the road and slow down even more, very gently, and pull off to let him pass without crossing the line. He'd actually get where he's going much faster if he'd just obey the law, but who ever said Texas drivers are smart?

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