The "tort reform" movement in Texas over the past two decades has had a devastating effect on the rights of Texas citizens. At almost every opportunity the Legislature and the Supreme Court have taken away long-standing rights of consumers, and given more immunity to insurance companies, corporations, and medical providers.
A side-effect of these changes, or perhaps it's the actual intended result, is that Texans are steadily losing their rights to trial by jury. This was detailed in an excellent article this week in the Dallas Morning News. I encourage you to read the entire article, but here are some excerpts:
Civil jury trials are becoming rare in Texas.
The right to have disputes decided by a panel of fellow citizens is cited in the Declaration of Independence and explicitly confirmed in the constitutions of Texas and the United States.
But new statistics show that the right to “trial by jury” is quietly and steadily disappearing thanks to a mixture of tort reform laws and Texas appellate court decisions that have made it more difficult for parties in a lawsuit to have their disputes decided by juries. In addition, lawyers and judges say the expenses of litigation, including discovery and increased attorneys’ fees, have made getting a lawsuit to a jury cost prohibitive.
The result is that the system has made it so procedurally and financially onerous that individuals and even many companies can no longer have their peers judge their disputes.
It’s not a new phenomenon. The 1,195 jury trials conducted in 2011 are one-third the number held in 1996, according to the Texas Administrative Office of Courts. During the same period, the number of lawsuits filed rose 25 percent.
In 1996, juries decided one out of every 48 lawsuits filed. Last year, only one in 183 new civil complaints resulted in jury verdicts.
The trend is true in every metropolitan area across the state.
Legal experts say the state courts were hit with the trifecta:
The Texas Legislature passed significant tort reform measures, making it more difficult for plaintiffs to prevail in certain kinds of lawsuits and less likely to claim large damage awards if they do win.
At the same time, the Texas Supreme Court became more pro-defense, or at least less pro-plaintiff, according to legal observers.
The justices also issued a series of procedural decisions that shifted several key legal questions previously considered questions of fact to be decided by juries, to questions of law to be decided by judges, lawyers say.
The result, according to statistics, was a dramatic increase in the number of cases decided by judges on motions to dismiss or motions for summary judgment.
Texas District Judge Ken Molberg said that judges in Dallas are concerned that the state’s own policies involving alternative dispute resolution and tort reform are blocking access to the courthouse for real people.
“Binding mandatory arbitration has been driving cases out of our court system and toward rent-a-judges,” Judge Molberg said. “And tort reform has discouraged or impeded people’s right to jury trials. Some people may think that is a good thing, but it means that real people are not getting their claims heard — at least not by a jury of their peers.”