Blawgletter recalls our horror, on a fall day in 1981, when the civil procedure professor revealed that appellate courts could — in fact usually must — delay correcting egregious trial court errors until after final judgment. But why, we wanted to know. Don’t the higher courts owe their very existence to the importance of fixing trial judges’ mistakes?
The professorial explanation didn’t give us much comfort. Most flubs don’t affect the merits, he said. Most in fact correct themselves. Plus the appeals courts would have no time to deal with actual final judgments if they routinely monkeyed with interlocutory complaints. Not to mention the disruption, expense, and delays to progress in the case from a mid-stream interruption.
Too bad, so sad, we thought. We want to get each and every ruling right, don’t we? Shouldn’t our system of justice at least act as if it aspired to perfection?
Our heart leapt at the discovery of ways to get around the "final judgment" rule. Things like the collateral order doctrine, grants by rule or statute of a right to an interlocutory appeal, and the mysterious writs of prohibition and mandamus. But then we learned the impossible rarity of success along those "extraordinary" avenues of pre-judgment review. Big frown.
And yet today our 1L dream came true. The Supreme Court of Texas announced that it will grant the extraordinary writ of mandamus whenever a majority durn well pleases.
The 6-3 court exercised its will in ordering dismissal of a medical malpractice case because the plaintiffs’ medical doctor expert didn’t prove, to the majority’s satisfaction, her expertise in judging a hospital’s decision to credential an allegedly incompetent physician. In re McAllen Medical Center, Inc., No. 05-0892 (Tex. May 16, 2008). Talk about judicial activism!
The dissent said:
A whole new world in mandamus practice, hinted by opinions in the last few years, is here. The Court’s heavy reliance on costs and delay to support its conclusion that the hospital has no adequate remedy by appeal marks a clear departure from the historical bounds of our mandamus jurisprudence. Because the Court’s opinion in this case does not follow the standards we established in the once-seminal case of Walker v. Packer, 827 S.W.2d 833 (Tex. 1992), for exercising our mandamus jurisdiction, notwithstanding the merits of the case, I respectfully dissent.
Our 22 year old self would have rolled our eyes. But, from the perspective of double 22 plus five, we lament the court’s decision to give itself power to rap trial judges’ knuckles any time the defendants lose a motion to kill a case before trial.
We might feel better had the court paddled a trial judge for erroneously rejecting an expert’s report and thus denying a jury the chance to settle the dispute. At least then we could see some balance. Because a rule that authorizes mandamus to avoid a trial always favors the status quo — which generally means the defendant, who thus dodges a status quo-changing trial and judgment.
[Our confidence didn’t get a boost from another of the court’s "weekly orders" today. This one, a per curiam opinion without oral argument, overturned a trial court’s and appellate court’s conclusion that the defendants waived their right to arbitrate the dispute by, among other ways, asking for consolidation of the case with similar ones so the parties could litigate them more efficiently. In re Citigroup Global Markets, Inc., No. 06-0886 (Tex. May 16, 2008) (per curiam). The decision follows hard on the heels of an opposite outcome for the husband and wife plaintiffs in Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008). We described the result in Perry Homes as "harsh and extreme" and wondered why the court has never held that a defendant waived its right to arbitrate.]
We still feel our 1L adoration for rigorous enforcement of principles. But neutrality, balance, and restraint matter more than rigor. Kudos to Justice Wainright, Chief Justice Jefferson, and Justice O’Neill for seeing that in their McAllen Medical Center dissent.