W. Mark Lanier, founder of The Lanier Law Firm, is recognized nationally for winning big personal injury and product liability claims against major corporations. But he also has represented clients in fraud, breach of contract and other forms of business litigation, the type of lawsuits that could be steered to a new system of business courts being considered by Texas lawmakers this year.
Lanier has long supported Republican candidates. According to Transparency USA, Mark and Becky Lanier contributed $150,000 to Lt. Gov. Dan Patrick in 2021-2022. Patrick named the business court legislation as one of his legislative priorities. Lanier also financially supported a few members of the Texas House as well as the Texas Trial Lawyers PAC during the most recent election cycle.
Lanier recently discussed his decision to publicly oppose the business court bill with The Texas Lawbook.
Texas Lawbook: House Bill 19 would create a new system of business courts, overseen by appointed judges, to hear high-dollar disputes. What is your perspective as a Republican plaintiffs lawyer?
Mark Lanier: While I have not taken a public position on the two companion bills that would create specialty business courts at both the trial and appellate court levels for certain business disputes. I will be glad to do so now. This is a solution in search of a problem. Texas courts are working just fine.
I know Chief Justice Hecht supports the bill because he thinks it addresses the problem of businesses using arbitration to resolve their disputes. But I don’t think this bill addresses that problem; businesses use arbitration primarily because they want to avoid juries and want to suppress information about disputes. So I don’t think a system that creates specialty courts with seven judges appointed by the governor will address the excessive use of arbitration clauses. To my knowledge, there is no data that shows the number of state court cases that would fall within this court; many complex business disputes are in federal court and those courts have effectively handled the cases for decades without any specialty court.
In addition to the constitutional problem of creating a state-wide court and eliminating Texans right to elect their judges, big businesses should not be entitled to their own special court, as if they have more rights than other Texans. All Texans should have the same equal access to the courts.
Specialty courts would likely foment more motions. It’s like the saying, “if you build it, they will come.” My experience is that when judges make themselves freely available, the parties have less incentives to try to resolve discovery disputes and file more dispositive motions that are lengthier. That would be particularly true under this proposal which would require written opinions in certain cases, thus delaying the case. Litigation costs would be considerably higher in a specialty court.
The proposed court would have jurisdiction over many cases that aren’t complex. The law on bad faith and breach of fiduciary duty claims is not that complex; those cases don’t need some specialty court. And transactions that involve more than $10 million or claims between businesses that involve more than $10 million are no longer uncommon and aren’t bet-the-company cases in most instances.
The two-year term for the specialty judges would also make judges more susceptible to political pressure from business leaders. Why would a judge with a six-year term on the court of appeals or four-year term on the trial bench agree to a higher profile position with a much shorter term and more political pressure? That’s a bad idea.
I don’t think we need a specialty court because I have confidence in the duly-elected Texas trial judges and appellate justices in the state’s 14 intermediate appellate courts. And I think it is better for judges to see a wide variety of disputes. I also think using elected judges is better than appointed judges. Elections require judges to mingle with and hear from citizens about the Texas judicial system. Elections are an important part of accountability.
Lawbook: What opportunities do you have as a financial supporter of state Republican leaders to promote your message about the bill?
Lanier: While I financially support a number of state Republican leaders, I don’t pick up the phone or go to lunch with them to promote or oppose tort reform legislation. Indeed, since so much of my practice is nationwide, I rarely publicly comment on tort reform legislation in Texas. Let me give you an example. In 2021 the legislature passed a significant piece of tort reform for trucking accidents involving commercial trucks. It enacted a brand-new procedure, including bifurcating part of the trial and restricting the use of certain evidence. I did not take a public position on the issue nor did I contact any legislators regarding the bill.
Likewise, I haven’t publicly commented on the specialty court proposal or talked with any legislators about it. But maybe I should because it’s a bad bill! When the Texas chapter of the American Board of Trial Advocates, the Texas Association of Defense Counsel, and the Texas Trial Lawyers—who collectively represent over 4000 members—all agree that a bill would hurt Texans, that tells you just how bad the bill is.
Lawbook: What role, if any, do you think the emergence of Democrats winning judicial elections in urban areas plays in the momentum for sweeping tort reform this session?
Lanier: I suspect some Republicans think some Democrat judges aren’t fair, just like some Democrats think Republican judges aren’t fair. That’s not my experience. I find that the judges try hard to follow the law. Each judge has unique life experiences that influence how they react to the facts in a case, but they don’t just ignore the law or legal precedents. I think most of the tort reform is because certain legislators and their large corporate constituents don’t trust juries. I do. I think it’s invaluable to have the collective life experiences of twelve diverse people. Juries try incredibly hard to get the right result. It’s unfair to second-guess them based on a few snippets from the lawyers or the press. Certainly, they’re not perfect but Texas appellate courts have never shown much hesitation in reversing a jury when its award is not supported by the evidence.