For Defendants, now is the time to go to trial in Texas!
Historically, risk managers and general counsel shudder at the thought of being sued in a State Court in Texas. Images of huge verdicts and punitive damages have caused more than one general counsel to develop an ulcer over Texas litigation. However, the current litigation climate in Texas is more favorable for defendants than it has ever been in the last twenty years. The 2005 Vioxx trial and the more recent litigation over the BP plant explosion notwithstanding, here is our countdown of the five reasons that now is the best time to try a case in Texas if you are a defendant in one of the major metropolitan areas:
5. Comprehensive tort reform legislation that greatly limits the ability to make a big strike, including:
- Restrictions on joint and several liability;
- Ability to name responsible third parties including immune employers and governmental entities;
- Restrictive standards and a higher burden of proof for punitive damages;
- Punitive damage caps;
- Limits on the recovery of medical expenses to the amounts paid or incurred;
- Earning capacity recoveries limited to after tax amounts.
4. Conservative trial courts. The majority of trial court judges currently sitting in Texas are Republicans. While individual judges can sometimes be difficult to deal with regardless of party affiliation, more and more of the judges sitting on the trial court bench in this state are young and conservative. They are generally more inclined to grant summary judgment, limit evidence at trial and grant a JNOV in the event of an unfavorable jury verdict.
3. Conservative Intermediate Courts of Appeal. Like the trial court benches, most of the intermediate courts of appeal in this state are populated by Republican judges. These judges tend to favor Defendants more often than Plaintiffs.
2. Texas Supreme Court. The most conservative supreme court in the history of Texas, the current court consists of nine judges all Republican and almost all appointed by a very pro-business governor. This court has shown itself over the last several years to be heavily pro-business and pro-insurance.
1. Texas juries. The main reason for the more favorable litigation climate of this State has been a fundamental change in the attitudes of most jurors. Regardless of the position one takes on tort reform issues, most lawyers in this State agree that the campaigns of the last decade have had a profound affect on jury attitudes. Although they can rarely articulate what a frivolous lawsuit is, most Texans today believe the courts of this State are inundated with them. Rather than sympathize with an injured Plaintiff, jurors tend to view all Plaintiffs with a measure of skepticism. Years ago, it was sometimes difficult to get a jury that could be fair to a large Fortune 500 company. Now, more often than not, it is difficult for trial judges to seat a jury that will commit to be fair to a Plaintiff, much less award damages for intangibles such as pain and suffering or mental anguish.
