I had the privilege of being interviewed by Eric Torbenson
of the
Dallas Morning News about
a discussion held at a continuing education event called the
Bench
Bar Conference, which was hosted by the
Dallas
Bar Association. This discussion was on whether the
Texas
Supreme Court now favors corporate defendants in court rulings. Although
many of my colleagues shared my views, others did not. I believe
the tides have changed, and the Texas Supreme Court caters to big business
more often than not. In fact, data shows that over 87% of the
time, the court rules in favor of corporate defendants. Arguments
can be made that this trend is fair and just. I strongly disagree,
and believe that injured parties are receiving biased and unfair treatment
by the courts. But you decide for yourself by reading Eric's article in
its entirety below.
Critics: Texas Supreme Court favors big business
Court disagrees, pointing out opinions are often divided
08:45 AM CST on Sunday, November 25, 2007
By ERIC TORBENSON / The Dallas Morning News
etorbenson@dallasnews.com
Texas' Supreme Court justices aren't in the habit of defending
their judicial records, much less from lawyers grilling
them as they would an
uncooperative witness.
But that's just what happened in September at a continuing education event at Horseshoe
Bay Resort hosted by the Dallas Bar Association, where lawyers peppered two
justices with questions about their impartiality.
Sample query: Do the justices hunt for plaintiff victories in appeal courts just
so they can overturn them?
"To be honest, I've never seen anything quite
like that in a bar group," Justice
Paul Green told Texas Lawyer magazine
after the event.
The incident has added fire to a decade-long debate over whether Texas' highest
court favors big business in lawsuits.
The perception is bolstered by data showing that the court's rulings increasingly
favor defendants in lawsuits - upward of 87 percent of the
time, one study said.
However, the court's public information lawyer, Osler McCarthy, cautions that
viewing the court isn't as simple as counting up the wins and losses of a football
team.
"In any given decision, a win for a plaintiff
- whether it's a corporate plaintiff or an injured person - may involve a
development in the law that
actually favors the other side," he said.
"The court exists to assure that Texas law
is uniform and to decide among 14 courts of appeals that often rule differently
what the law should be, not whether X number of defendants win."
Still, a few recent rulings have stood out for some academics and plaintiffs'
lawyers as judicial activism in favor of big business.
In one case, they complain, the court seemed to cherry-pick state laws to find
a way to give a property owner the same protections from an injured worker's
lawsuit that a contractor has compared with an employer. The worker, hired by
a contractor, was injured in a plant owned by Entergy
Gulf States.
"It's just another door closing for folks
who are injured - at this point, it wasn't even that surprising," said Angel
Reyes, a Dallas injury attorney
who says workers' rights have eroded steadily in the state over the last three
decades. "The Texas Supreme Court has made the climb to get relief
so steep here that unless you have wrongful death and negligence, it's nearly
impossible to make a case."
Not all lawyers agree, of course.
"It's a reasonable ruling," said David
A. White of Thompson & Knight in Dallas,
who handles complex insurance matters. "I don't think it's a
sweeping ruling - it gives clarity to owners of property by extending the benefits
of being a general contractor in these kinds of situations."
For a long time, Texas had a reputation as a haven for large plaintiff verdicts.
But recent tort reform has taken much of the vigor from plaintiffs' lawyers.
Some call the Entergy ruling a low water mark.
"I'd say that right now Texas is on the forefront
of the business-friendly legal environment," said Rogge Dunn at Clouse
Dunn Khoshbin LLP in Dallas, who handles some workers' compensation cases. "If
you're an insurer here or a large company getting sued, you've got the Supreme
Court as your safety
net."
Handling civil matters
The Supreme Court is the last court of appeal in the state for civil matters;
the Texas Court of Criminal Appeals handles criminal matters.
The nine Supreme Court justices are elected on a rotating basis statewide for
six-year terms. All are Republicans. Three are up for re-election next year.
Alex Winslow of Texas Watch is tracking the court's rulings for its 2006-07 term,
as he has for the last decade.
By his count, civil defendants won favorable rulings in a relatively equitable
52 percent of cases in the court's 2000-01 term, but the number
has been soaring since then. In 2005-06, 82 percent of rulings went in favor
of defendants, he said.
"This is an anti-consumer court," he
said.
He called the Entergy ruling "egregious" because
he thinks the court hunted for a way to rule for the company.
The Entergy ruling ignored the Legislature's previous actions on the issue that
were pro-worker. A ruling the previous week involving another energy company
cited legislative intent, Mr. Winslow said, "making them unbelievably inconsistent,
except for the fact that the energy company won both times."
But Mr. McCarthy disputes the notion of a Republican court
following a Republican agenda.
The cases that critics point to as showing the court's bias often are split 5-4
and feature vigorous dissents, Mr. McCarthy notes. "If the court is
seen as moving in lockstep to favor one side or the other, logic would insist
that it would, well, move in lockstep."
In a separate study, law professor David Anderson of the University
of Texas at Austin found 87 percent of lawsuit defendants received favorable
rulings in the 2004-05 term.
"I've heard from a lot of lawyers who told
me they're glad someone is saying what they're not able to say," he
said.
Whether the bias issue will come up in next year's elections isn't for him to
say. "I'm a scholar, not a politician."
Court's 'activism'
What's especially galling to critics of the court is what they see as the court's "activism," a
complaint more common from conservative politicians against liberal judges on
social issues.
In an antitrust lawsuit, Harmar Bottling Co. alleged that Coca-Cola
Co. tried to drive Harmar, based in Paris,
Texas, out of business in Texas and Oklahoma.
Writing for a 5-4 majority, Justice
Nathan Hecht overturned Harmar's jury award, writing that Texas' antitrust
law doesn't apply in other states and that Harmar hadn't proved damages in Texas.
The dissent from Justice
Scott Brister called the decision unprecedented and argued strongly that
Texas law applied throughout the case.
Critics have focused on Justice Hecht, who accepted $16,000 in contributions
from Houston home developer Bob Perry's political action committee to help defray
costs related to a judicial ethics investigation, as The Dallas Morning News
reported in April. The contribution was made as the court was about to hear a
case related to Perry Homes.
The conflict prompted Dallas attorney Ben C. Martin to file a motion Sept. 12
asking four justices - including Chief
Justice Wallace Jefferson - to recuse themselves from the medical malpractice
case he was bringing against Columbia
Medical Center of Las Colinas.
The case involved a plaintiff who had died from a drug overdose. Mr. Martin cited
Mr. Anderson's research showing the preponderance of defendant verdicts; the
court, minus the recused justices, denied the motion nine days later.
"The court is changing law that's been around
for 150 years, and they're changing it for good," Mr. Martin said. "Once
people and voters realize what's happening here and see the derogation of
the process, I believe they'll finally get what the court is doing."
THREE CASES
These Texas Supreme Court rulings in favor of businesses have been some of the
most talked about in the legal community recently.
Entergy Gulf States vs. John Summers
Mr. Summers injured himself at Entergy's Sabine Station plant while he worked
for a contractor hired by Entergy. Along with his worker's
compensation claim, he tried to sue the utility for negligence. The Supreme
Court overturned an appellate ruling in his favor, establishing that Entergy
- the "premises owner" - also qualified as a "general contractor" and
hence was immune from the injury suits.
Harmar Bottling vs. Coca-Cola
Harmar, a Royal Crown Cola distributor based in Paris, Texas, alleged that
Coca-Cola tried to drive it out of business by establishing preferential agreements
with grocers in nine Texas counties and three Oklahoma counties. A jury awarded
Harmar $16 million in damages and attorney fees, but the Supreme Court ruled
that the state's antitrust law doesn't apply in other states and that Harmar
hadn't proved damages in Texas.
Lamar Homes vs. Mid-Continent Casualty Insurance
Homeowners sued Lamar Homes for cracks in the walls of houses and for foundation
problems. Mid-Continent, Lamar's insurer, declined to cover the suit, and Lamar
sued, arguing that the work had been undertaken with the intention of doing
it correctly, making any defects "accidental" and
covered under the policy. Some consumer advocates praised the ruling as helping
homeowners in battles with builders, but others predict insurers' higher rates
will simply be passed on to homebuyers.
Eric Torbenson
©2007 Angel Reyes
www.ReyesLaw.com