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Judicial Tort Reform in Texas

Regular readers and visitors to our website certainly know our views that the Texas Supreme Court often seeks results-oriented decisions to favor insurance companies and big businesses (we’ve previously written about this here, here and here).  Our opinion has been reinforced by a law review article, Judicial Tort Reform In Texas, by Professor Dave Anderson at the University of Texas School of Law in the recent issue of the Texas Review of Litigation.

For the article, Professor Anderson surveyed Texas Supreme Court decisions for 2004 and 2005 to determine whether the Supreme Court is conducting its own version of Tort Reform.  Professor Anderson’s startling findings including the following:

Defendants won 87% of the tort cases decided with opinion.

In the years from 1998 to 2005, the Texas Supreme Court decided twelve cases in which Wal-Mart was a tort defendant.  In the rest of the country, state courts of last resort decided eighty-one such cases in the same time period.  Wal-Mart won all twelve of its cases in the Texas Supreme Court, but only 56% of its cases in the rest of the country.  Professor Anderson notes that there does not seem to be any significant difference between the Wal-Mart cases in Texas as opposed to the rest of the country.

Professor Anderson also tried to pinpoint the methods in which the Court was using to find for defendants.  The most controversial method was the Court’s use of “no evidence” findings.  In that situation, the Court looks at the evidence presented at the trial court and finds, despite jury findings to the contrary, that there is no evidence to support the plaintiff’s win.  In the 2005 term, the Court sustained 79% of the no-evidence claims presented.  Professor Anderson compares that with the Court’s 1986 and 1966 terms which each sustained only 25% of the no-evidence claims.  Professor Anderson also notes that the Supreme Court has been active in adopting procedural rules that favor defendants.

Our criticism of the court isn’t alone.  The article notes, “The authors of a law review article reviewing the court’s work say ‘politically motivated courts have taken up the task [of undermining the jury] by casting aside decades, even centuries of common law precedent to limit the role of lay jurors in deciding societal norms.’  An appellate judge has written that ‘the appearance of bias [in favor of defendants and insurance companies] leads one to the conclusion that the current Court favors its judgment over that of a jury.'”

Professor Anderson even quotes James Baker, a Republican Texas Supreme Court justice from 1995-2002 as saying that what the court is now doing with its no-evidence reviews “cannot be reconciled with the Texas Constitution’s prohibition of the Texas Supreme Court weighing evidence and judging credibility.”

Unfortunately, the full article is not yet available online (with the exception of a Lexis, Westlaw, or similar library).  However, we encourage anyone interested in civil justice issues to contact the Review of Litigation and order a copy of the full article.

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