Judges & Lawyers Try to Explain High Appellate Reversal Rates

By Janet Elliott
Chief Justice Carolyn Wright doesn’t think the 5th Court of Appeals in Dallas tilts against plaintiffs despite a recent study that found her court is among the least likely to vote in favor of plaintiffs who appeal.
The Dallas appeals court stood out as particularly hostile to appeals filed by plaintiffs in personal injury and defective products cases, favoring only 14 percent of those cases compared to 25 percent statewide. The other large city appellate courts in Houston and San Antonio favored plaintiffs’ appeals at rates ranging from 23 to 34 percent.
“I don’t think there is any particular bias. I honestly think that it depends upon the cases and the applicable law that happens to come before the court,” Wright said.
The figures come from a recent article in the Houston Law Review by two Houston appellate lawyers who studied reversal rates at the 14 courts of appeals during a one-year period from 2010-11.

The report, “Reasons for Reversal in the Texas Courts of Appeals” by Lynne Liberato and Kent Rutter, found that appeals court judges in Texas are increasingly likely to overturn jury verdicts in civil cases, especially when the jurors rule in favor of plaintiffs. The lawyers did a similar study nine years ago.
Wright, a former trial judge who has been on the Dallas court of appeals for 17 years, said she doesn’t know why her 13-member court, which assigns different three-judge panels to hear appeals, reversed so few defense trial wins.
Michael Lynn, a partner at Lynn Tillotson Pinker Cox in Dallas, says the 2006 sweep of the Dallas County trial court by Democrats and subsequent wins in 2008 may be a factor. There may be some extra scrutiny of inexperienced judges by the all-Republican appeals court.
“Because we have a new bench of district judges and we have a court of appeals that is recognized as conservative there likely is more probability of reversal,” said Lynn.
Wright agrees that there can be more reversals following a partisan sweep.
“There were a significant number of new judges who came to the trial bench as of the 1st of January ’09. It is not unusual to have a higher number of reversals within the first few years after an influx of newly elected judges to the bench,” she said. “There are some real advantages for the public and the judiciary in maintaining qualified, experienced judges. Large and/or frequent turnovers of the judiciary are extremely costly.”
Advantage: Defendant
The report found that judges on the courts of appeals reverse more than one-third of all civil jury verdicts and that they are four to six times more likely to overturn jury verdicts that favor plaintiffs than verdicts favoring defendants.
Dallas trial lawyer Paula Sweeney, of counsel to Slack & Davis, said judges are disregarding the hard work of jurors, who sit through the trial, weigh witnesses’ credibility and make difficult decisions.
“It’s frustrating because it stands the constitution on its ear,” Sweeney said.
Wright said she doesn’t think her court’s reversal record has anything to do with a disregard for juries, “one of the cornerstones of our democracy.”
“If the jury verdicts were reversed because of charge error, insufficient evidence to support the qualifications of experts or insufficient evidence to support the verdicts, these are all legal errors attributable to the trial judges and attorneys, not the jury,” Wright said.
When speaking to lawyers, she advises them to retain appellate counsel at a much earlier stage in the pre-trial and litigation phases to avoid making mistakes that can lead to reversible error on appeal.
Former Texas Supreme Court Justice Scott Brister, who also served on both Houston courts of appeals and as a trial judge, said plaintiffs who are appealing defense verdicts must show an appeals court that they established all elements of their claim – standard of care, breach of care and causation of damages. A defendant can knock out a plaintiffs win by disproving any one element, said Brister, who heads the appellate section at Andrews Kurth.
Liberato and Rutter noted in their article that plaintiffs filed 39 percent fewer appeals than in the period before “tort reform,” when legislators passed laws that limited damages in medical malpractice cases and made it more difficult for plaintiffs to prevail in personal injury lawsuits.
Brister said he thinks fewer appeals are filed because appellate lawyers don’t take cases on contingency fees.
Texas Supreme Court Set Standard
The study found that the courts of appeals in Corpus Christi and San Antonio had reversal rates higher than the 36 percent statewide average and higher than most of the other courts. The Corpus Christi court reversed 46 percent of its cases and San Antonio reversed 43 percent.
When jury verdicts are broken out, the San Antonio-based 4th Court of Appeals reversed an astonishing 50 percent of its cases.
Chief Justice Catherine Stone said she doesn’t know why that figure is so high but noted that the study period did follow an influx of new judges who won election in 2008.
“One year doesn’t make a trend. This is just a snapshot,” she said.
Steve McConnico, of Austin’s Scott, Douglass & McConnico, said the lack of a clear standard of review for legal sufficiency of evidence needed to support a jury verdict makes it easier to overturn a jury finding. This can be traced back to the Texas Supreme Court, which initiated the departure from the “some evidence” standard set out in 1960 by then-Supreme Court Justice Robert Calvert in an influential Texas Law Review article, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error.”
“Ten years ago courts began to move away from that standard. It really opened up what areas could be reviewed. Once opened up, courts became much more aggressive at reversing jury findings for plaintiffs,” McConnico said.
Brister wrote the 2005 opinion in City of Keller v. Wilson, which adopted a “reasonable juror” standard. He said some law professors blame that case for the erosion of jury verdicts but he believes Texas is in the mainstream of other states and the federal government.
“Our standard is the same as what the federal standard is and what most other states do now,” he said.
David Beck of Houston’s Beck, Redden & Secrest, who does mostly defense work, said the reasons for the diminishing number of trials and the high reversal rates can be debated, but both trends have far-reaching consequences for the judicial system.
“We are spawning a whole generation of so-called litigators who are absolutely petrified of trying lawsuits,” Beck said. “If we have fewer trials, we need fewer trial judges, fewer courtrooms, and ultimately fewer appellate judges.”
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