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PRESIDENT'S MESSAGE
The State of Trial Work – 2007 It’s a New Year and time to re-examine everything we do. Since I happen to do trial work in Houston, an examination of the status of that work is in order. Charles Bacarisse reports that filings at the Harris County courthouse are down in 2006, but you do not need statistics to know that trial lawyers around town are less busy than usual. In fact, I am told every week by my fellow trial lawyers, the mediators and the judges that litigation is slow. In a word, we are down right now, but hopefully not out. In my experience, trials are still the fairest way to resolve disputes that cannot otherwise be resolved. We may not always like the result, but juries usually get it right and no one has ever devised a better system of justice. Then why are there fewer and fewer jury trials? Is it the economy, the cost, alternative dispute resolution, tort reform, or some other reason? I suspect it’s a bit of each, but I will examine them all in order. The economy has never been better. Many have postulated that Americans will sue each other in good times and in bad, but litigants are apparently more reticent to sue when times are good. Indeed, one plaintiff’s lawyer recently commented to me that one of his good clients just passed on filing a lay-down case worth about 15 million dollars against a solvent company because it was making so much through ongoing business with that same company. Markets are at an all-time high, venture capital from around the world is more plentiful than ever, and mergers and acquisitions in 2006 are close to record levels. Our corporate brethren should be making hay while the sun shines and hopefully they can carry the litigation sections of many of the firms in town until the business cycle changes. That will not help the solos or the pure litigation firms, however, and we all have to look for creative ways to increase our business when times are tough. Many will look for different kinds of litigation that can be filed, others will retool, and some will simply ride it out until things turn around, but what if they never do? Another reason often cited for a reduction in litigation is the cost. Many clients will say that it has simply become too expensive to continue a piece of litigation all the way through trial. This must, in part, be true as less than five percent of all cases filed get tried to verdict, and some studies suggest it’s actually less than one percent. The cost can indeed be prohibitive due to all of the discovery, hearings and experts. Our rules of procedure are starting to limit the amount of discovery that can be done in state court, and federal court judges and magistrates have been limiting the number of depositions that can be taken for some time now. Filing unnecessary motions can also cause a litigant to quickly lose credibility. As for experts, courts should be more willing to throw out experts on Daubert challenges. Most veteran trial lawyers will tell you that experts do not make much difference anyway, and juries usually tend to discount them, especially if they are paid some obscene amount in connection with their opinions. In any event, we should all be receptive to ways to reduce the cost of people having their day in court. Many have argued that alternative dispute resolution has been too successful and has reduced the number of trials. It does seem that as the number of mediators has gone up in recent years, the number of trials has gone down, but even the mediators are less busy as the overall number of cases is down. That is not the mediator’s fault. One could blame the arbitrators as well, although they cannot help the fact that more and more businesses have put arbitration clauses into their contracts to avoid jury trials. Courts have also readily enforced these clauses, thus ensuring their effectiveness. For the real trial lawyer, mediation and arbitration are anathema. Arbitrators usually split the baby after each side pays them their exorbitant fee. By contrast, our judges will try your case for free. Mediations usually result in one party paying more than they want to pay and the other party receiving less than they expected so that no one is satisfied. I have heard many a mediator spout the pabulum that a good settlement is where no one is happy, but if you really want to pour someone out or hit them hard, take them to trial. The final culprit, and frankly the one that everyone likes to blame, is tort reform. Many have argued that the tort reformers in Texas have already taken it too far, but they are far from finished and have an even more ambitious agenda. Their next target is the make-up of the jury pool and limitations on voir dire. A good judge knows how to limit voir dire and place appropriate limits, however, and no one should be denied a jury of their peers. Many of us are already traveling outside Texas to handle litigation in other states that have not been hit as hard by tort reform as Texas. Nevertheless, jury trials started to vanish long before tort reform, and that cannot be the only reason for fewer trials and less litigation business here in Houston. Another often overlooked reason for the vanishing jury trial is the fact that trials are hard on both the litigants and the lawyers. Indeed, they don’t call them trials for nothing. Maybe we all have gotten a little soft in this unprecedented time of convenience and we are just not up for the fight. I hope that is not the case, as competition brings out the best in each of us and confidence is the key to every game, including trial work. In the final analysis, we all have to do what we can to preserve and protect our right to a jury trial. It’s not just our livelihood that is at stake. It’s our system of justice and, indeed, our access to that justice in its purest form.
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