By Bryan O. Blevins
The beginning of the 1990s saw the reunification of East and West Germany, the launch of the Hubble Space Telescope, the release of Nelson Mandela, and the world’s very first web page. So much has changed since then, and the practice of law is no exception. Three trends have dominated the practice of law, and personal injury law in Texas. These are tort reform, judicial activism, and technology.
Tort reform is more than legislative changes to our laws. It is a political movement driven by special interest groups, and it’s transformed not only the practice of personal injury law, but also the attitudes of jurors and judges.
Touted as the desire to rid the system of “frivolous cases,” tort reform was meant to free up the courts so that the truly deserving could receive justice in a timely and efficient manner. Yes, it’s true that there were some frivolous cases, but no one can seriously contend that the tens of thousands of suits no longer filed in this state were ALL frivolous. No. Tort Reform has resulted in many more deserving victims having the courthouse doors slammed shut than frivolous claims being denied. It’s the inverse of the criminal idea that 10 guilty persons should go free to prevent one innocent from going to jail. In this case, 10 victims are denied justice so that one frivolous case doesn’t slip through the cracks.
Some of the consequences of tort reform include Texas mesothelioma victims being forced to pursue justice in other states because we have the highest burden of proof in the country. In Texas, reform has given wrongdoers the benefit of the victim having insurance under “paid or incurred;” increased pre-suit costs in the form of experts and discovery; and eliminated workers-compensation and small personal injury cases as a training ground for young lawyers.
The public relations effort supporting tort reform has dramatically impacted juror perspectives towards certain elements of damages allowed by law, such as mental anguish. It has also contributed to the view, held by some, that lawyers are “ambulance chasers,” and clients are “lottery winners.” Oddly enough, in my experience, a client has yet to express to me that they had won the lottery by being hurt or losing a loved one.
Judicial activism can best be seen in the increase of appeals accepted and the almost universal reversal of trial judgments that favor plaintiff personal injury victims. In the last 20 years, we have seen the explosive growth of appellate courts substituting their own version of end-result oriented justice through the guise of “expert” qualification and testimony. The trial judge determines the admissibility of expert evidence, the jury hears the evidence, the jury finds for the plaintiff, but on appeal, the appellate court finds fault with the expert evidence, reverses the trial judge and jury’s decision and renders judgment in favor of the defendant. This makes the system a no-lose one for defendants. Maybe they win at the trial level, but even if they lose, they have another shot to win on appeal. Ultimately, the combination of tort reform and judicial activism has not only reduced the number of cases filed, but also the cases that are tried and the value of even the most deserving cases.
New technologies are forcing attorneys to rethink questions that, under other circumstances, may have been much simpler to answer. For example, if a driverless car crashes on the highway, who’s at fault? Is it the manufacturer? Is it the developer who designed the car’s software? What, if any, liability falls on the car’s owner? Driverless automobiles are still an emerging technology but could come into widespread use in just a few short years. Attorneys are having to think through these problems now because they’re close to becoming the new reality.
In addition, the internet and social media have changed the way lawyers are hired by clients, as well as the ways in which attorneys and clients communicate with one another. Email, texts, phone and car GPS data, social media, and other avenues of digital information have dramatically changed discovery in cases. All these areas must be identified, searched, and collected for keys to decision making and liability in any case. This has added a dramatically expanded level of discovery on top of traditional document discovery and depositions.
A lot has changed over the last several years. Like most of life, some of that change is good and some of it very bad. However, some things don’t change. One of those would be that good lawyers working good cases can still get good results. When the right case comes into the hands of lawyers with the expertise and the resources to fight multibillion-dollar insurance companies and other corporate giants, justice can still be served.
Bryan O. Blevins is an equity partner with Beaumont-based Provost Umphrey Law Firm, which is celebrating its 50th Anniversary this year. For more than 25 years, Bryan has prepared, tried and appealed numerous personal injury and civil litigation matters, including toxic tort, defective products, industrial negligence and contract actions. He is board certified in Personal Injury Trial Law from the Texas Board of Legal Specialization and a past-president of the Texas Trial Lawyers Association (2015 legislative year).