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Right before our eyes. “Civil jury trials are becoming rare in Texas.”

“The right to have disputes decided by a panel of fellow citizens is cited in the Declaration of Independence and explicitly confirmed in the constitutions of Texas and the United States.”

“But new statistics show that the right to “trial by jury” is quietly and steadily disappearing thanks to a mixture of tort reform laws and Texas appellate court decisions that have made it more difficult for parties in a lawsuit to have their disputes decided by juries. In addition, lawyers and judges say the expenses of litigation, including discovery and increased attorneys’ fees, have made getting a lawsuit to a jury cost prohibitive.”

“The result is that the system has made it so procedurally and financially onerous that individuals and even many companies can no longer have their peers judge their disputes. Excerpted from: Civil jury trials plummet in Texas, By MARK CURRIDEN (The Texas Lawbook Dallas Morning News 4-3-12.

Corporate Stamp of Approval. “Whatever the cause, the result is a predominantly Perry-appointed Supreme Court that Alex Winslow, the executive director of the liberal consumer advocacy group Texas Watch, said upholds the governor’s “staunchly pro-defendant and anti-consumer” ideals…Winslow’s organization analyzed the Supreme Court’s decisions during the 2008-09 term and found it sided with consumers in 27 percent of cases involving an individual against a corporation or government agency — and it reversed jury verdicts in 72 percent of cases.” Excerpted from: Supreme Court is Elected, but Bears Perry's Stamp, by Beth Brown, Texas Tribune 8-12-11

Report that bed to the TMB! “…the Texas Supreme Court has narrowly ruled that hospital injuries seemingly unrelated to doctor error can still fall under the state’s stringent medical malpractice caps.”

“…The case centers on Irving Marks, who fell while recuperating from back surgery at Houston’s St. Luke’s Episcopal Hospital in 2000.  Marks alleged that a broken footboard on his hospital bed led to his fall and that he should be entitled to sue St. Luke’s for unlimited damages with a so-called “premises liability” claim.”

“Some legal observers say the Marks decision is a perversion of the intent of the Legislature’s health care liability reform. “If the Legislature had wanted to immunize doctors and hospitals from all tort liability, it could have done so," said David Anderson, a professor at the University of Texas School of Law. “But it didn’t.”
Excerpted from: Bed-Mal by Emily Ramshaw, Texas Tribune 9-22-10

What would Judge Roy Bean do?  “…our Texas Supreme Court more and more has demonstrated its contempt…for the judgment of citizens who hear the… facts related to legal disputes…In the recent case of Bennett v. Reynolds, eight…judges have sided with the judgment of their own over that of citizen jurors, all to the benefit of a cattle thief.”

“This Wild West story began in San Saba County where several of Mr. Reynolds’ cattle wandered over the line onto property belonging to a corporation run by Thomas O. Bennett, Jr.  Mr. Bennett directed employees…to gather up Mr. Reynolds’ cattle, take them to auction and sell them.

“The jury heard all of Mr. Bennett’s despicable conduct…they resorted to punishing Bennett and his corporation to the tune of $1,250,000 in punitive damages.”

“…Bennett promptly appealed to the Court of Appeals which dutifully upheld the judgment of the jurors and trial court.…Bennett appealed to our Texas Supreme Court.”

“After some mouthing about how Texas really didn’t like cattle rustlers, they [Texas Supreme Court] proceeded to reverse the jury verdict...  In effect, they let the cattle thief off the hook. Who would have thought it? A Texas high court deciding with the cattle rustlers against twelve jurors, tried and true!” Excerpted from: Senator Carl Parker: The Texas Supreme Court Sides with Cattle Rustlers Over Jurors, Carl Parkerisms Blog, August 12, 2010

Less risky in hindsight.  “A trial judge should not have cut the contingency fee in a personal injury case from $6 million to $600,000, the 4th U.S. Circuit Court of Appeals held this week.”

“The reduction in attorneys’ fees “was much too steep a decrease,” Wilkinson wrote [Judge J. Harvie Wilkinson III wrote for the 4th Circuit panel], remanding the case to the federal court in Raleigh, N.C.”

“Successful outcomes often make risks seem less risky in hindsight than they were at the time, and the court should not have ignored those risks merely because at some later point in litigation the defendant found it in its interest to settle,” the opinion said.” Excerpted from: 4th Circuit: Judge erred in slashing contingency fee, Baltimore Daily Record by Alan Cooper, May 19, 2010.

Riding roughshod. “…what we can know is that the public institutions that are supposed to protect Texans from the abuses of large corporations aren’t doing a very good job of it. Despite the supposed oversight of the state’s highest court and the responsible regulatory agency…giant companies are now allowed to operate in parts of Texas the same way they have operated in some Third World countries: exploiting the resources and moving on, without looking back.” 
Excerpted from: Below the Surface  by Mimi Swartz, Texas Monthly, November 2009

How far can it tilt without falling over? "The Supreme Court has embarrassed Texas with its demonstrable tilt toward insurers and other corporate defendants... the court has gone out of its way to protect businesses from lawsuits to a degree that even the Texas Legislature and the defense bar can't stomach." Excerpted from: Editorial -Texas Supreme Court's tilt toward insurers causes concern, Austin American Statesman, 12-1-08

Straight from the Horse’s Mouth.  An impressive survey of Texas district court judges, just published in the Baylor Law Review that addresses frivolous lawsuits, jury behavior and the need for “tort reform” found:

Over 83% of the Texas district court judges had observed not a single instance of a “runaway jury” verdict on either actual or exemplary damages during the preceding 48 months.

"The survey results confirm that most Texas trial judges do not see significant numbers of frivolous filings by people who have no business suing, and plaintiffs with legitimate suits are much more likely to be under compensated than to receive any windfall. Two primary goals for tort jurisprudence are for the victim to receive full compensation and to deter the tortfeasor, and when victims are not fully compensated and tortfeasors are not deterred, neither goal is met." 
Excerpted from: Straight from the Horse’s Mouth: Judicial Observations of Jury Behavior and the Need for Tort Reform, Baylor Law Review, [Vol. 59.2] 2007