By David Hendricks

That clean-air scent outdoors these days may not be entirely explained by the latest cool front or the summer rains.

Less stink is escaping courthouses.

Lawsuits have not disappeared, but their numbers are in retreat, especially in Texas. Even business-to-business litigation is declining.

The empirical evidence comes from this year's Litigation Trends Survey conducted for the Fulbright & Jaworski law firm. Seventeen percent of lawyers at 250 U.S. corporations said they had escaped the past year without having to defend a new lawsuit. That's up from 11 percent the year before.

Also last year, 70 percent of companies had filed a lawsuit, usually against other companies. This year, only 65 percent did so.

Only 22 percent of corporate lawyers think lawsuits will increase next year. A year ago in the same survey, 33 percent expected litigation to increase.

In Texas, these trends are even more pronounced, said lawyer John Weber, litigation partner for the San Antonio office of Fulbright & Jaworski.

Weber has a theory.

"The Texas economy is good now. When the economy is good, litigation goes down," Weber said. "I've practiced law for 34 years, and it's been that way the whole time."

He readily acknowledges another factor, though. A dozen years of tort reform in Texas have blunted the appetite of plaintiffs, the people who initiate lawsuits.

The most effective lawsuit reform act capped noneconomic medical malpractice damages at $250,000.

"That dropped lawsuits, not just those against nurses and doctors but against hospitals and nursing homes," Weber said. "That didn't apply to commercial litigation, personal injury or product liability cases. Those filings are down in the state, too."

Tort reform laws passed in Texas since the mid-1990s help account for the downturn:

A 15-year limit from the date of sale for product liability lawsuits.

Limits on punitive damages in negligence cases.

Refusals by judges to accept out-of-state disputes, which cuts down on "venue shopping," the search for friendly judges and juries.

A law that restricts class-action lawsuits. "It's hard to certify a class now," Weber noted. "It used to be a cottage industry."

Weber insists, though, on the overriding relationship between a thriving economy and lower litigation volumes.

"It makes sense," he said. "When there's less litigation, businesses can concentrate more on their business and less on defending themselves. Companies that otherwise would be plaintiffs are spending more on their own business than for lawsuits that they start. Businesses taking action against other businesses, whether for breach of contracts or defending patents and trademarks, all of that is down."

When the economy goes south, though, the legal atmosphere turns with it.

"What do companies do then? They sue somebody," Weber said. "Unfortunately, that's the way things are."

If Weber is right, one way to know if the economy is good would be to visit the courthouse.

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dhendricks@express-news.net

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