© 2013 The Texas Lawbook.
By Mark Curriden
Senior Writer for The Texas Lawbook
The right of trial by jury shall remain inviolate. – Texas Constitution
Webster’s Dictionary defines inviolate as undisturbed; not infringed; free from substantial impairment.
(April 23) – By any definition, the federal and state constitutional rights to have your civil disputes decided by a jury of your peers are in grave danger in Texas.
The number of civil jury trials in Texas district courts hit a four decade low in 2012, according to new statistics obtained by The Texas Lawbook.
Last year, 1,202 civil disputes were decided by juries in Texas district courts – down nearly one percent from 2011 and down nearly 300 percent from 1996, when there were 3,369 jury trials.
“This means justice in Texas is at a forty year low,” says Dallas trial lawyer Frank Branson, who represents individuals and businesses.
The dramatic drop in jury trials doesn’t mean there are fewer disputes or even fewer lawsuits filed. In fact, the number of complaints hit a record high three years ago and is more than 20 percent higher than in 1996.
Instead, legal experts say that the ability to have disputes decided by a jury has been severely curtailed by a combination of efforts during the past two decades, including tort reform, appellate court decisions that shift decision-making authority from juries to judges and the high cost of litigation. They also say that thousands of civil complaints that were once heard by juries are now resolved pretrial in mediation or have been pushed into the private world of arbitration.
While plaintiff’s lawyers have cried foul for more than a decade, lawyers representing businesses are increasingly sounding the alarm.
“There’s this distrust of juries, which I truly don’t understand,” says Jeff Lowenstein, a partner at Dallas-based Bell Nunnally & Martin. “Nobody works harder or feels more deeply about dispensing justice than 12 of our fellow citizens.
“So many lawyers counsel their business clients to avoid juries because they are too risky, and that’s just not true,” says Lowenstein. “This is one of those situations where we don’t realize what we had until it’s gone.”
Dan Worthington, president of the Texas Association of Defense Counsel, an organization comprised of lawyers who represent insurance companies, manufacturers and other businesses in the state, says the decline in jury trials is “profoundly negative” for individuals and businesses.
“This is an unhealthy trend for those seeking justice,” says Worthington, a partner at Atlas Hall & Rodriguez in McAllen. “Unfortunately, I predict this trend is going to continue.”
Texas juries decided 12 percent fewer personal injury and medical malpractice cases, 15 percent fewer business disputes and 50 percent fewer products liability cases during the past year compared to 2011.
Statistics show that juries in 2012 sat in judgment of 800 percent fewer products liability claims, including cases of faulty medical devices, dangerous prescription drugs, defective tires or accident-prone cars than they did in 1996.
For the second year in a row, there were no asbestos cases tried by a jury in Texas District courts.
“Texas went from one of the most jury-friendly states in the country and known for allowing our citizens to decide the biggest disputes we face, but that is certainly not the case anymore,” says Joseph Ahmad, a partner at Houston-based Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing.
“People get very upset when other constitutional rights are taken away or limited, but we are witnessing our Seventh Amendment right to a civil jury severely attacked and people don’t seem to care,” says Ahmad, who represents businesses in employment law-related disputes.
State district judges in nearly every major metropolitan area – the exception being Dallas – conducted fewer jury trials in 2012 than they did the previous year or any of the previous 16 years, although the annual slope downward seems to be leveling out.
• Harris County District judges conducted 240 civil jury trials in 2012, an 11 percent drop from a year earlier.
• Travis County District courts recorded only 15 jury trials to verdict, a 17 percent decline.
• Tarrant County witnessed a three percent drop in 2012.
• Dallas County District judges actually conducted two percent more trials in 2012 than they did a year earlier.
In 1996, Harris County citizens resolved 616 civil disputes, compared to only 240 in 2012.
“You could throw a hand grenade into most Harris County courtrooms just about any day of the week and not hit a single person,” says famed Houston trial lawyer Joe Jamail. “Our founders gave us the right to a trial by jury to protect us from tyranny, but our state leaders have shredded those constitutional rights and no one seems to give a damn.”
Victor Vital, a litigation partner at Greenberg Traurig in Dallas who represents large corporations, said the high cost of taking a lawsuit to trial has made jury trials cost prohibitive.
“The number one culprit is the extraordinary cost of discovery, especially e-discovery,” he says. “Business clients evaluate the financial risks and the costs.”
Vital says judges need to be more of a gatekeeper on the discovery demands of the lawyers, which he says will keep the cost of litigation lower and encourage more clients – be they individuals or businesses – to want to go to trial.
To address the issue, the Texas Supreme Court implemented its new “expedited trial” rules for cases where $100,000 or less is in dispute. The new rules limit discovery and push cases to trial quicker.
But many lawyers say the Texas appellate courts are a significant part of the problem. They say the justices have widened the “no evidence review standard” by shifting issues that were once considered questions of fact decided by juries and made them questions of law decided by judges.
Even many lawyers who represent corporations think the appellate courts have gone too far in second-guessing jury verdicts and thus sending the message that juries are not to be trusted.
“The appellate courts in Texas have become so conservative and so favoring defendants that I have advised my business clients who have a rock solid case that we should file the lawsuit in another state,” says Adam Schiffer, a partner at Houston-based Schiffer Odom Hicks & Johnson.
“I know that if I get a good jury verdict for my business clients – a verdict that is fully supported by the facts and the law – that there is a significant chance that the Texas Court of Appeals or the Texas Supreme Court is going to take it away from us,” says Schiffer.
When the Texas Supreme Court and the intermediary appellate courts reverse so many jury verdicts, the lower courts take it as a strong signal that they should be more aggressive in tossing cases before the evidence even makes it to a jury.
“The Texas appellate courts have all but told trial judges that they need to grant more motions for summary judgment and let fewer cases go to trial,” says Steve McConnico, a partner at Scott, Douglass & McConnico.
“We write motions for summary judgment today for our corporate clients that we would have laughed at only a few years ago,” says McConnico, whose clients include large energy and pharmaceutical companies. “The Texas Supreme Court has made proving causation and damages in all kinds of cases much more difficult.
“It is sad that this valuable and effective constitutional right is going away and people are not more outraged,” he says.
McConnico, Schiffer and other lawyers say that during the same time period that the appellate courts were limiting access to juries, the courts were endorsing – evening promoting – the rise of binding mandatory arbitration as a cheaper, more efficient and more effective means of resolving disputes.
“When it comes to many of the large business disputes, especially those involving the global energy companies, an increasing number of those disputes are now being tried by international arbitration panels,” says Schiffer.
Corporate executives view arbitrators as subject matter experts who are better able to interpret complex contracts and various international treaties.
Even so, some lawyers still choke at the binding mandatory arbitration clauses that many companies include in their business contracts.
“I know personally a few plaintiff’s lawyers who force their clients to sign arbitration contracts as part of their engagement letter,” says Jamail. “These are the same lawyers who are supposed to be protecting our constitutional rights to trial by jury.
“I have no damn use for them either,” he says.
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