The unprecedented election last week of 20 Democratic candidates to seats on the state courts of appeals in Austin, Dallas and Houston is likely to have an almost immediate and substantive impact on civil litigation in Texas.
Legal experts say that this week’s “blue wave” that shifted control of those intermediary courts from Republicans to Democrats will undoubtedly lead to significant changes in how certain types of commercial and business cases are decided in the three busiest and highest profile jurisdictions in the state.
The reason, according to appellate law experts, is simple: The newly elected judges have substantially different views on critical legal issues such as enforcement of arbitration clauses, summary judgment criteria, excessive use of Anti-SLAPP laws by defendants and deference to trial judges and juries in large-dollar plaintiff’s verdicts.
“No doubt, we will look at some issues differently than our predecessors, but it is difficult to predict how much,” Dallas District Judge Ken Molberg, one of the eight Democratic candidates elected Tuesday night to the Fifth Court of Appeals in Dallas, told The Texas Lawbook in an exclusive interview.
“There are not Republican or Democratic ways to decide a breach of contract dispute of a car wreck case,” Judge Molberg says. “But there are clearly ways we are different. We will give a greater deference to jury verdicts and have a keener awareness and understanding of the actions of trial judges.”
While Judge Molberg declined to identify specific cases, legal experts say that there are major complex commercial disputes between two large corporations that were decided one way this year but will be judged differently next year.
“The election of these new judges changed things dramatically overnight,” says Dylan Drummond, an appellate law expert at Gray Reed in Dallas. “This changes the calculus for all sorts of litigation up and down the pipeline.”
The impact on the legal profession is also clear: the practice of appellate law in Texas is about to get super hot, as corporate plaintiffs and defendants will need increased legal advice to navigate an unknown or possibly even a treacherous appellate landscape.
“Because of Tuesday night’s results, going forward, businesses are going to need to get appellate counsel involved in their litigation matters much earlier in the process,” says Christopher Kratovil, Dallas office managing member at Dykema. “This change impacts the litigation strategy in numerous ways, including considerations regarding settlement.”
For example, lawyers on the losing side of recent appellate court decisions in Austin, Dallas or Houston might wait until the new judges are sworn in to file their motions for a rehearing. The shifts at the three intermediary appellate courts also change the dynamics involving appeals from those courts to the Texas Supreme Court.
“I think it will definitely increase the petition practice at the Texas Supreme Court,” Drummond says.
For two-dozen years, Republican judges controlled the First, Fifth and Fourteenth courts of appeals. The Fifth Court of Appeals in Dallas in particular has been viewed as one of the most conservative, pro-business, pro-arbitration, anti-large jury verdict jurisdictions in the state.
Dallas appellate judges were widely viewed as a great wall of safety protecting insurance companies and corporations against large damage verdicts.
All that changed Tuesday night when voters in metro Dallas elected the “Slate of Eight” Democratic trial judges and lawyers to a 13-member Fifth Court that has been all-Republican for two decades and under majority Republican control for three decades.
The unprecedented Democratic judicial election wave didn’t end in Dallas, but extended to Austin and Houston, where Democrats seized a majority control of the courts of appeals in those jurisdictions, too. Republican judges have dominated the First and Fourteenth courts of appeal since 1994.
The shift in jurisprudence is comparable to the Republican takeover of the Texas Supreme Court in the late 1990s after decades of justices who were pro-plaintiff – only in reverse.
“Certainly attorneys representing plaintiffs in employment, consumer and malpractice cases will be feeling more optimistic about their odds of prevailing on appeal on those types of cases,” says Chad Baruch, an appellate law partner at Johnston Tobey Baruch in Dallas.
Chad Ruback, also an appellate law expert in Dallas, says he has “no doubt” that there will be “real change” at the state courts of appeal, but it is “unclear just how dramatic that change will be.”
“When compared to their predecessors, I believe that the newly-elected Democratic court of appeals justices may be bit more skeptical of summary judgments, orders compelling arbitration and judgments favoring a corporation over an individual,” Ruback says. “Further, when compared to their predecessors, I believe that the newly-elected Democratic court of appeals justices may be a bit less skeptical of big-dollar jury awards.”
The Fifth Court’s stinginess on jury verdicts in favor of plaintiffs has been widely known.
“A rule of thumb has been that if you have an eight- or nine-figure judgment, you would be wise to settle before your case gets to the Dallas Court of Appeals because the judges there are so suspicious of large jury verdicts,” Kratovil says. “This shift at the court changes all that.”
Jeff Nobles, an appellate partner at Smith Nobles, says the 10 new Democratic justices joining the First and Fourteenth courts in Houston will clearly have an impact.
“The differences in substantive areas will be incremental, not sweeping,” Nobles says. “The new judges are experienced lawyers who will be interested in doing justice.
“But there is a human element to judging based on different experiences,” he says. “So, we might expect to see a better outlook for the accused in some criminal cases, for plaintiffs in business and personal injury cases, and for the underdog in many areas.”
Nina Cortell, a partner at Haynes and Boone and one of the most respected appellate lawyers in Texas, agreed that the “eight new voices” on the Fifth Court will lead to differences of opinion.
“No doubt,” she says. “But I would be hesitant to pre-judge what those differences will look like. The new justices have all committed to apply the law to the facts presented by the cases before them.”
The Texas Lawbook asked appellate law experts in Texas to provide their analysis and thoughts regarding the changes coming to the appellate courts as a result of the election. Here are their edited responses:
Chad Baruch: “I will be interested to see the effect of the new justices on the court’s view on briefing waiver. That has been very much at the fore over the past several months. I am hopeful the new justices will be much less inclined to decide cases based on waiver than their predecessors. I think there will be a little bit more consistency between the district courts and the court of appeals on civil matters.
Nina Cortell: “No doubt, with eight new voices on the Dallas Court of Appeals we will likely see some differences, but I would be hesitant to pre-judge what those differences will look like. The new justices have all committed to apply the law to the facts presented by the cases before them. Two of the new justices have the great benefit of decades of judicial experience on the trial court bench; because appellate justices are often called upon to assess how trials are handled, that type of experience is invaluable. Others of the new justices will bring to the court expertise in specific subject matter areas, including criminal law, employment law, personal injury law and public interest law. That expertise should prove very beneficial in those areas. Finally, five incumbents remain on the Dallas Court of Appeals, so their views will continue to play a role in the panels on which they preside.”
Chad Ruback: “Although I have no doubt that the election of Democratic judges will bring real change to the courts of appeal, it’s unclear just how dramatic that change will be. In 2006, when Democratic candidates swept the Dallas County trial court elections, many lawyers predicted that the newly-elected trial court judges would be issuing rulings which were dramatically different from those of their Republican predecessors. While there was a noticeable change in the trial courts’ rulings, that change was much more subtle than some had expected. I suspect that the 2019 turnover in the courts of appeal will be very similar to the 2007 Dallas County trial court turnover.
“I don’t believe that there will be a sea of change in substantive law stemming from the newly-elected justices. In many cases, the law is clear-cut, and there is no such thing as a Republican interpretation of the law or a Democratic interpretation of the law. In the newly-elected justices, we will see the biggest change in cases of first impression, in cases where the law is ambiguous, and in cases that present truly close calls.
Jeff Nobles: “In Houston, there are 10 new Democratic justices creating Democratic majorities on both our appellate courts—the biggest change at the First and Fourteenth Courts since the 1994 Republican sweep created the first Republican appellate majorities in our region. The differences in substantive areas will be incremental, not sweeping. The new judges are experienced lawyers who will be interested in doing justice. But there is a human element to judging based on different experiences. So we might expect to see a better outlook for the accused in some criminal cases, for plaintiffs in business and personal injury cases and for the underdog in many areas.
“[We are likely to see] greater deference to juries and jury decisions, fewer successful summary judgments, pleas to the jurisdiction and other dilatory pleas and more decisions extending procedural rights to the accused in criminal cases.
“It’s reasonable to expect that [reversal rates] will change in the Fifth Court, and in the Houston courts, too. Reversal rates went up after the 1994 sweep in Houston. But every case is different, every judge is different, and every panel is different. The appellate courts have experienced staffs and their involvement in the decision-making process will ensure continuity in most appeals. The appellate courts exist to make sure that the trial court decided the case correctly under rules of law that aren’t going to change, and they have the luxury of time to decide cases more carefully. So they will continue to reverse cases when they see reversible error.