Consumer lawyers have been trying to warn Texans for years now that our legal rights as residents of this state are slowly being taken away by the Legislature and the Texas Supreme Court. Sadly, most people either don’t believe us or don’t care. It’s just the classic situation of everyone thinking they’ll never need to bring a medical malpractice claim so they don’t care whether that right has been taken away. And then of course when they call us about making such a claim they’re shocked to learn the Legislature and the Courts have said they’ve lost that right.
One of the most basic legal rights that is being eroded is the constitutional right to trial by jury in civil cases. This issue was driven home in an article in the Dallas Morning News. I urge everyone to read the entire article. Here are the opening paragraphs:
Judge Patrick Higginbotham of the 5th U.S. Circuit Court of Appeals said in 1997 that civil jury trials were headed to extinction.
“There are certain elites in this country who don’t trust juries,” Higginbotham, a Reagan appointee from Dallas, said at the time. “The future of our jury system is very much in danger.”
Most lawyers and judges scoffed at the suggestion. After all, no state in the country trusted citizen juries to resolve personal and business disputes more than Texas.
Since Higginbotham’s warning, civil jury trials have plummeted to 40-year lows.
In 2012, there were fewer than 1,200 civil jury trials in state district courts in Texas. That’s only a 1 percent decline from 2011, but a 64 percent decline from 1997, when there were 3,369 jury trials.
The federal courts in Texas have seen an equally significant decline. U.S. district court judges conducted 360 civil jury trials in 1997 but only 135 last year.
“This means justice in Texas is at a 40-year low,” said Dallas trial lawyer Frank Branson.
Although plaintiff’s lawyers have cried foul for more than a decade, lawyers representing large businesses have suddenly started sounding the alarm.
Distrust of juries
“There’s this distrust of juries, which I truly don’t understand,” said Jeff Lowenstein, a partner at Dallas-based Bell Nunnally & Martin. “Nobody works harder or feels more deeply about dispensing justice than 12 of our fellow citizens.
“So many lawyers counsel their business clients to avoid juries because they are too risky, and that’s just not true,” Lowenstein said. “This is one of those situations where we don’t realize what we had until it’s gone.”
Dan Worthington, president of the Texas Association of Defense Counsel, an organization of lawyers who represent insurance companies, manufacturers and other businesses in the state, said the decline in jury trials is a “profoundly negative” trend for individuals and businesses alike.
“This is an unhealthy trend for those seeking justice,” said Worthington, who practices law in McAllen. “Unfortunately, I predict this trend is going to continue.”
Worthington and legal experts say the dramatic drop in jury trials isn’t the result of fewer disputes. Instead, they say the ability to have disputes decided by a jury has been severely curtailed by a combination of factors in the last two decades, including tort reform and appellate court decisions.
They also say thousands of civil complaints once heard by juries are now resolved pretrial in mediation or have been pushed into the private world of arbitration.
Texas juries decided 12 percent fewer personal injury and medical malpractice cases, 15 percent fewer business disputes and 50 percent fewer product liability cases in 2012 compared with 2011. Statistics show that juries in 2012 sat in judgment of 88 percent fewer product liability claims — including cases of faulty medical devices, dangerous prescription drugs, defective tires and accident-prone cars — than they did in 1996.
“People get very upset when other constitutional rights are taken away or limited, but we are witnessing our Seventh Amendment right to a civil jury severely attacked, and people don’t seem to care,” said Houston lawyer Joseph Ahmad.