For the Record

Everything is bigger in Texas, including the Tort Tax, which costs Texas families an extra $3,904 annually, both more than the national average and up from 2018.

A lot has been in the news about the recent verdict in the Alex Jones/Sandy Hook trial. Much of the reporting discusses whether Jones will have to pay the full amount awarded by the jury, or whether Texas’ cap on punitive damages will limit the plaintiffs’ recovery.

Texas ports are thriving today, but in the early 2000s, abusive personal injury lawsuits threatened to shut them down. As the Port of Houston begins a long-awaited expansion, read more about the common-sense lawsuit reform in 2007 that saved our state’s shipping industry in this week’s TLR blog, For the Record.

Specialized business courts like the Delaware Court of Chancery can be an important addition to a state’s economic foundation. These courts quickly and expertly handle complex business litigation, freeing up other courts to handle other types of cases.

Ah, the murky, wild world of attorney advertising, where it pays to be the loudest, the most outrageous and the least transparent. Watch any amount of daytime television and you’ll get the picture. Attorney advertising was prohibited for many years, viewed as in indirect form of barratry (“ambulance chasing”), until a U.S. Supreme Court decision deemed it acceptable speech under the First Amendment. Since then, attorney advertising has largely been regulated by the State Bar of Texas, which implements rules enacted by the Texas Supreme Court. These rules govern the content of advertising and are meant to protect the public by ensuring attorney ads are not deceptive. They also require that the State Bar of Texas pre-approve attorney ads.

TLR is particularly interested in restoring the public nuisance doctrine to its historic domain, rather than allowing it to be a catch-all cause of action used to impose one person’s political views on society as a whole.

Product liability reforms are part of the landmark lawsuit reforms Texas passed in 2003, including a “government standards” defense for manufacturers that comply with all state and federal standards or regulations applicable to their product. This is especially important for manufacturers of highly-regulated products, like vaccines, which are regulated by the U.S. Food and Drug Administration.

A report in the San Antonio Express-News last week about a civil lawsuit caught our attention. The 2018 lawsuit centered around the sexual assault of a minor and was only recently publicized in a string of billboards up and down the IH-35 corridor. What makes this story unusual is not the unexplained delay in publication of the judgment, but the judgment itself—an unprecedented $1.25 billion, none of which has been (or ever will be) collected by the plaintiff.

As we roll into the holiday season, America has one thing on its mind: logistics. Well, more specifically, turkeys and pumpkin pies and Christmas presents… or the lack thereof on store shelves. The Great Toilet Paper Shortage of 2020 may seem like a distant memory today, but nearly two years later, the pandemic-triggered disruptions to our supply chain linger on.

During the 87th Session, the Legislature passed a number of measures that require approval by Texas voters before going into effect. Two of these measures deal with issues TLR has long advocated for—improving the experience, competence and quality of Texas’ judiciary. 

On Oct. 21, 2021, Texas’ Third Court of Appeals confirmed that Paxton is, in fact, an employee of the state of Texas. The court also found that the whistleblowers made a good-faith report of criminal conduct, allowing the former OAG officials’ whistleblower lawsuit to move forward.

Texas is home to one of the largest, most active law firms in the nation, with more than 4,000 employees in 38 divisions and 117 offices across the state. Its 750 attorneys handle more than 30,000 cases each year, many of them among the most complicated and high-profile legal issues facing the state. This isn’t a new patent practice. It’s not a real estate practice. It’s not even an oil and gas practice. It’s the Texas Attorney General’s Office.

On Wednesday, September 1, House Bill 19 takes effect, clarifying the rules for how commercial vehicle lawsuits are tried in courtrooms across the state and ensuring juries have the necessary facts to arrive at a fair verdict.

The 14th Court of Appeals in Houston recently decided to take up one of the largest nuclear verdicts in the state. The case involves Werner Enterprises, a trucking company that was involved in an accident in West Texas that resulted in a $90 million judgment against the company. 

“If an accident like this is the fault of the driver who was hit by the out-of-control vehicle, think about what that means for every motorist on the roads,” Werner Enterprises said in a statement.

The Texas Supreme Court recently issued a ruling in a products liability case that puts one of Texas’ early tort reforms in the spotlight. In its 5-2 decision, the Texas Supreme Court ruled that Amazon can’t be held liable for the third-party seller’s product under Texas’ 2003 products liability law, which was a TLR initiative.

The pandemic and recent winter storms have highlighted a stark reality: Commercial vehicles are essential for disaster preparedness, response and recovery. Whether they’re carrying life-saving medicine, water supplies or critical fuel, or providing necessary services like plumbers and contractors, Texans depend on commercial vehicles.

We’ve recently taken a closer look at the abusive lawsuit cottage industry that is driving litigation against commercial vehicle operators. This litigation scheme started by targeting the trucking companies that are essential to Texas’ supply chain and to maintaining our status as the top exporting state in the nation. But it’s expanded since then, setting its sights on any vehicle of any size with a company’s logo on it.

“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” —U.S. Supreme Court Justice Louis Brandeis, New State Ice Co v. Liebmann

The men and women who will serve in the Legislature will face important tasks next year, as the pandemic continues to cast uncertainty over everything from the state budget to the logistics for committee hearings at the Capitol. One thing is certain—the decisions made by legislators in 2021 will have a lasting impact on our state’s economy, job creation and future opportunities for Texas families.

Texas judges matter. The decisions they make every day impact some of the most critical issues in our state, from the economy to public safety to our children’s education. Our state needs a judicial selection system that focuses on qualifications and experience, as the Texas Plan does. Our legal system is too important to leave these decisions to partisan political whims.

As the U.S. continues to deal with the widespread effects of COVID-19, it’s clear no industry is immune to the pandemic’s wrath—including law firms. But do all of these law firms really need to dig into the government wallet?

While everyone looks forward to the day when we can resume business as usual, we all understand that given the nature of the COVID-19 pandemic, its side effects will linger for many years to come. TLR has been working with state and federal leaders to determine if there is a way to give businesses some reassurance that they are not blindly approaching a liability cliff.

Any Imposition of Liability Related to the Coronavirus Must be Based on Standards that Recognize these Extraordinary Circumstances

In the past few weeks, we’ve seen these men and women run toward danger, working around the clock and putting their own lives on the line to help those affected by COVID-19. In Texas, Gov. Greg Abbott has created a task force to help ensure these professionals have the personal protection equipment they need and that their hospitals have the resources necessary to respond to a surge in coronavirus patients. But there’s an additional layer of protection that we should grant to the men and women on the frontlines of this pandemic: liability protection.

“If the freight’s there, it’s got to move. If people are going to eat, the trucks are gonna move. If they need medical supplies, the trucks are gonna move. If we stop, the world stops.” As COVID-19 has proven, that service is more critical now than ever. 

Over the past few weeks, we’ve highlighted the phenomenon of nuclear verdicts in Texas, and some of the questionable tactics used by personal injury trial lawyers pursuing trucking litigation in the Lone Star State. While trucking litigation has always existed, it seems a new cottage industry has sprung up in the last several years.

You’ve heard of nuclear explosions and the nuclear option. Nuclear verdicts? Maybe not. But as the name implies, we should all be wary of them. The widely accepted definition of a nuclear verdict is one that exceeds $10 million. But if that’s the threshold for nuclear, then Texas is quickly gaining a reputation as the home of the ultra-nuclear verdict in trucking litigation.

The Wall Street Journal recently highlighted a lawsuit issue that has increasingly become a problem in many states, including Texas: litigation against trucking companies. While it is not unusual for plaintiff attorneys to target trucking companies because of the companies’ insurance policies and assets, as the article notes, several factors have led to an increase in these lawsuits in recent years. At least one practice—used by lawyers in Texas and other states to refer potential clients for medical services—may expose the clients to “substantial risk” they may not fully appreciate.

It’s time Texas took a hard look at our antiquated system of electing all of our state’s judges. Texas is one of only six states to do so. It’s time we examine whether it’s right to force the men and women we want to administer justice in a competent and impartial manner into a system that forces them to be politicians and to raise campaign funds from interested parties to win elections.

Texas’ legal system got the late night talk show treatment last week when native Texan and Academy Award winner Matthew McConaughey cited Texans’ aversion to abusive lawsuits as one of the reasons why he chooses to live in the Lone Star State.

Texas is facing a fundamental question: should Texans continue to elect its judges, or is it time to move to a different method? Last session, the Texas Legislature created the 15-member Texas Commission on Judicial Selection with the express purpose of answering that question. With last week’s appointments to the commission by the governor, lieutenant governor and speaker of the House, the state is poised to take a close look at how we fill seats on our judiciary.

Texas is often considered a national example for lawsuit reforms because—through 25 years of diligent work—we have successfully addressed many of the lawsuit abuses that plague other states. But one person’s example is another’s cautionary tale. At least, that’s what some Louisiana personal injury trial lawyers want you to believe.

Opioid litigation is prominently in the news these days, with a recent judgment in Oklahoma and the ongoing conflict between states and municipalities in the federal multi-litigation process conducted by U.S. District Judge Dan Polster in Ohio. As we have said before, we don’t have an opinion on who is responsible for the nation’s opioid epidemic, but we remain concerned that the wave of litigation will do little to stop it—just as the tobacco settlement of the 1990s did little to stem cigarette consumption.

Amicus curiae is Latin and literally translates to “friend of the court.” These briefs are provided by people who are not party to a lawsuit, but have an interest in its outcome. Amicus briefs are just one way TLR fights to preserve the hard-won lawsuit reforms passed by the Texas Legislature.

The fact that a judge under indictment for accepting bribes can run for higher office and win should be a major red flag for Texans. But unfortunately, many Texans simply don’t have enough knowledge about the candidates for judicial office to make informed decisions. Many voters cast their votes for judges based on party affiliation or name recognition, since they have no knowledge of the relative merits of the candidates.

In the past few months, we’ve spoken often about the ubiquitous presence of legal services advertising on the airwaves. In addition to your standard car wreck and mesothelioma ads, ads targeting specific products, medications or medical devices are designed to catch people’s attention and compel them to take action (specifically, to call a lawyer). But recently, there’s been a turn of events in one advertising cottage industry.

California has made quite a reputation for itself, and not in a good way. Case in point: the much ballyhooed addition of coffee to California’s recklessly broad Safe Drinking Water and Toxic Enforcement Act, known as Proposition 65. The proposition “requires the state to maintain and update a list of chemicals known to the state to cause cancer or reproductive toxicity.”

We all know better than to double dip. It is the epitome of bad manners. Highly frowned upon. And if you’re a county official in Texas, it’s also illegal. But that didn’t stop one county attorney.

The Legislature adjourned sine die, having accomplished a number of important priorities for Texans, including several important reforms to the legal system. Here’s an update on the status of some of TLR’s key bills.

We’ve shared with you a number of reforms the Texas Legislature is working on this legislative session to improve our legal system. Now with less than a month to go in the 86th Legislature, we’ve entered the point in session where bills begin moving, and moving quickly. Here’s an update on the status of where some of these important reforms stand in the process…

A lawyer is caught bribing a judge with cash and other gifts in order to secure favorable decisions, such as dismissing criminal charges against the lawyer’s clients. The judge is charged with a federal offense and is awaiting trial, and has been kicked off the bench. And the lawyer? You assume he’s been sent to jail, or at least lost his license to practice law. For one South Texas lawyer, that is not the case.

Every day, Texans are inundated with a relentless stream of advertising for legal services. As we’ve discussed before in this blog, personal injury trial lawyer advertising is neither new nor unique to a certain part of the country. If you’re watching TV, it seems these ads are inescapable.

Jury duty shouldn’t be thought of as, well, a duty. A chore carried out begrudgingly, like taking out the trash, only because you have to. Jury duty, rather, should be considered a privilege. Just like voting, it is one of the most fundamental ways we participate in our government.

We speak often about the mushrooming cost of litigation, both in terms of time and money. The fact is that for many Texans, hiring a lawyer is expensive, and quite often, cases are too risky or too time consuming for the average person to pursue. This has effectively shut a large swath of Texans out of the court system. We at TLR think there is a better way.

Unlike us here at TLR, most people don’t think about tort reform or the legal system on a daily basis (or even a monthly basis, for that matter). That is until lawsuit abuse flares up to impact something in their daily lives. Enter Apple and the Eastern District of Texas…

It’s time to make contingency-fee contracting consistent and transparent. The statutes and regulations in place for state contracts have successfully allowed the state of Texas to hire private attorneys when necessary, to keep more of the money from these legal awards and to bring more transparency to the process. What has worked for the state will work for its political subdivisions.

The TLR Foundation recently published its latest paper, The Texas Anti-SLAPP Statute: An Effective Statute, But is it Too Broad? The paper delves into the use of the Texas Citizens’ Participation Act (TCPA), which was passed in 2011 to protect the free speech rights of citizens.

Last week, Texas Supreme Court Chief Justice Nathan L. Hecht delivered an outstanding State of the Judiciary address to the governor, lieutenant governor, members of the legislature and guests. The chief justice’s speech, which is delivered every other year during the legislative session, addressed several areas of accomplishment for the Texas judiciary, several areas where challenges remain and several goals for the next biennium.

Technology is inseparable from modern life. It’s logical that the advances that make our daily lives more convenient would also be applied to industries like litigation. The question, though, is whether technology encourages additional litigation or discourages additional innovation? Read more.

There is a time and a place for local governments to partner with private attorneys to pursue claims in court. But some of these local lawsuits can actually interfere with efforts to address public policy challenges.

Can you do exactly what the government tells you to do and still get sued? TLR’s latest blog explores this question and the reforms Texas has enacted to address it.

Can you imagine living in a state whose legal system is so unfair, your livelihood depended on leaving? Texas has been there, done that. Once known as the Wild West of Litigation, it was a place job creators avoided because of the risks and costs of being sued. Today, Texas is the land of opportunity in America. But we shouldn’t take that for granted. Erosion in the quality of our legal system is an economic red flag that we would be wise not to ignore.

For watchdogs of the Texas legal system, the American Tort Reform Association’s annual Judicial Hellholes report provides some good news and some bad news. The good news is that Texas has successfully avoided being named the worst of the worst for the second year in a row, since storm-chasing lawyers propelled us to a Hellhole designation in 2016. The bad news is that two massive 2018 verdicts from Texas trial courts landed us on this year’s Dishonorable Mention list. And as they say, where there’s smoke, there’s fire.

With 2018 winding down, Texas managed to squeeze in one more big national economic ranking before the ball drops. This time, it’s Forbes’ annual ranking of best states for business, which puts the Lone Star State at #3 overall.

For those of us who only play lawyers on TV, the legal world and its jargon can be perplexing. Being deposed in the legal world doesn’t (usually) involve any sort of Game of Thrones-like coup. You might want to keep your Latin dictionary handy if you’re doing any light legal reading, and what’s with all this talk about barratry, anyway? Fortunately, we at TLR are here to help shed some light on the lesser known areas of the legal system that still deserve our close attention. One such area is third-party litigation finance.

You could pay for a couple of months’ rent in a nice apartment in Austin, Dallas or Houston. $3,535 gets you more than halfway through a semester of tuition at The University of Texas at Austin. It could also buy you more than 1,100 gallons of milk, more than 1,300 gallons of gas and nearly 600 gallons of Blue Bell ice cream.

September 1 marks the one-year anniversary of the enactment of House Bill 1774, the Texas Legislature’s solution to stop storm-chasing lawyers from taking advantage of property owners after natural disasters. After the explosion of unnecessary lawsuits against insurance companies following hail and wind events, property insurers in parts of the state were raising premiums and deductibles, or had stopped offering coverage in some areas all together. The Legislature acted decisively in 2017 to shut down this obvious lawsuit abuse and stop storm-chasing lawyers from hijacking our property insurance premiums.

Picture this: You are the defendant in a lawsuit. You spend thousands of dollars and months preparing to defend your case in a court of law. You hire an attorney to help navigate the web of legal issues created by this litigation.Then the day arrives. You show up to court, and sitting on the other side of the courtroom is the plaintiff…a monkey.

The New York Times recently looked into “defensive medicine,” or the practice of doctors ordering excessive medical tests in an attempt to stave off medical liability lawsuits. Testing out of an abundance of caution, many doctors believe, can potentially shield a physician from being sued in the event of an issue with a patient down the road.

But as it turns out, this understandable “CYA” by health providers is costing all of us big bucks.

A recent newspaper article spurred us to look into The Great Tuna Settlement of 2015. What we found, of course, was more evidence of client recruitment by enterprising plaintiff lawyers.

Texas is turning heads, yet again. The latest national recognition comes from CNBC, which recently named Texas the Best State for Business in 2018. This makes the Lone Star State the first to snag the top spot four times in the study’s 12-year history.

Personal injury trial lawyer advertising is not new. The U.S. Supreme Court deemed it a matter of free speech in 1977, opening the door to an estimated $1 billion in lawyer advertising in 2017. But just because it’s legal doesn’t mean it’s good.

TLR spent the 2015 and 2017 legislative sessions working to fix the problems storm-chasing lawyers were creating for Texas property owners. Fortunately, the Texas Legislature passed a common-sense solution in 2017 to make it harder for these lawyers to file unnecessary lawsuits, while maintaining the strongest insurance consumer protections laws in the United States for Texas property owners.

Barratry—more commonly known as ambulance chasing—is one of the biggest challenges currently facing Texas’ legal system. Barratry has been illegal in the Lone Star State for decades. But that small technicality hasn’t stopped the practice from flourishing.

The Texas Legislature last year overwhelmingly passed a common-sense lawsuit reform to keep storm-chasing lawyers from hijacking property insurance claims and making insurance coverage more expensive for us all. The TLR-inspired legislation passed with active support by Governor Greg Abbott and Lt. Governor Dan Patrick.

More than a year later, polling shows that Texans overwhelmingly support the Legislature’s actions.

The buck stops with Texas judges. Whether it’s upholding laws passed by the Legislature or deciding cases that have an impact on our economy, education and public safety, Texas courts of appeals judges are critical to our state.

By Mary Tipps

TLR is a small organization, but we’re one big family. So when our family grows, we like to celebrate it! This week, our senior chairman, Dick Weekley, hosted a reception to welcome our new president, Lilyanne McClean, and our two new board members, Marc Watts and Michael Weekley, to the team.

We want to share this video of Gov. Greg Abbott’s comments at a recent press conference. Members of the TLR staff were on hand to see the governor accept Site Selection Magazine’s Governor’s Cup for job creation and economic growth. The governor gave TLR and lawsuit reform a shout out for helping to grow Texas’ economy and create opportunity for families.