On this springy Friday, when the world looks new and everything again seems possible, Blawgletter offers a second installment to a thingy we’ve undertaken to pen for the Litigation Section of the State Bar of Texas in its new Hot Topics for Trial Lawyers:

Let’s take another stroll down memory lane, shall we? Back to when Texans knew more about tortas than torts. Before our legislature started winging personal injury torts and business torts with the same buckshot. 

Now we take up what UT Law Professor David A. Anderson calls “judicial tort reform” – specifically the Texas Supreme Court’s role in making tort cases harder for plaintiffs to win. See Judicial Tort Reform in Texas, 26 THE REVIEW OF LITIGATION 1 (2007). Gary P. Nunn’s London Homesick Blues will furnish our background music.

Putting ourselves back in that place again. A quarter-century ago – a mere decade after the Lost Gonzo Band recorded the epochal Viva Terlingua! album in the Luckenbach Dancehall – torts enjoyed a golden age in Texas, in large part because a let-the-jury-decide attitude prevailed on the Supreme Court. Holdings that reflect that view include:

• Reviewing courts must disregard all evidence that tends to negate a jury finding of gross negligence. Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex. 1981).

• A jury may award damages for any percentage of harm that defendants’ conduct caused – even if the plaintiff caused more than 90 percent. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984).

• If a defendant denies making a promise, a jury may find that he made the promise with intent to defraud. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432 (Tex. 1986). 

The Court also, um, neglected procedural matters that might hinder trial on the merits. Before 1995, for instance, the Court seldom rejected expert evidence. Despite a complete re-write of the class action rule in 1977, the Court didn’t reverse a single class certification order until 1996. And only in the following year did the Court revive forum non conveniens as a doctrine allowing dismissal of cases that involve foreign corporations as plaintiffs.

I’m leavin’ just as fast as I can. The 60 Minutes report in late 1987 on the coziness of some justices with the personal injury bar – that “Justice for Sale” thing – helped prompt a backlash. At that moment, Democrats – as they’d done since 1876 – held all the positions on the Court. Then the Dems commenced a not-entirely-voluntary exodus. Three Republicans sat on the Court in 1988-90, four during 1991-94, five in 1995, six in 1996-98, and nine since 1999.

When a Texan fancies, he’ll take his chances. Has the change in personnel made business tort litigation riskier for plaintiffs? Yes. Heavens, yes. As UT Law Professor Anderson found, defendants won a whopping 87 percent of tort cases in the Supreme Court of Texas during 12 months in 2004-05. 

Interestingly, the cornucopia of defense victories resulted mostly from the harsher way the Court interprets statutes, construes pleadings, applies procedural rules, and reviews evidence. “No evidence” analysis of verdicts has proven especially fatal for plaintiffs. See City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (holding that reviewing court must disregard evidence that court concludes “reasonable jurors” could not have believed even though they did). And, in the 15 or so decisions since Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d 425 (Tex. 2000), the Court has disallowed, affirmed disallowance, or substantially narrowed every class certification order it reviewed.

You can put up your dukes. The Court’s shift from a let-the-jury-decide ethos to a judge-centric approach coincided with, and likely contributed to, a decline in civil trials generally. Fewer cases got past pre-trial motions to jury trials, and the ones that juries did decide a lot more often died in post-trial proceedings. 

According to the “Jury Activity” reports by the Texas Office of Court Administration for 1996, Texas district courts tried 2,971 civil cases to verdict and directed verdicts in 253. Ten years later, the same courts put a mere 1,335 civil cases to juries while instructing verdicts in 459 cases. That comes to a 55 percent drop in jury trials and an 81 percent increase in taking cases out of jurors’ hands.

I want to go home with the armadillo. Party affiliation probably doesn’t define any justice’s judicial philosophy or determine justices’ votes in any particular case or on any specific issue. But balance does seem to improve the quality of decisions. A recent study of state supreme courts’ “influence” shows a fascinating – and in its way encouraging – phenomenon at the Texas Supreme Court: It wielded by far the most influence during the six years, from 1993 through 1998, when a mix of Democratic and Republican justices sat on it.  (See Don Cruse’s in-depth analysis on the Supreme Court of Texas Blog.)

Should we — dare we — hope for a return to balance?

Feedicon_2 Up Against the Wall Red Neck Mother doesn’t mean what you think.