Houston Chronicle

Businesses face major changes in litigation appeals

- By Mark Curriden

The recent unpreceden­ted election of 20 Democratic candidates to seats on the state courts of appeals in Austin, Dallas and Houston is going to have an almost immediate and substantiv­e impact on business litigation in Texas, according to legal experts.

Appellate lawyers say that the “blue wave” that shifted control of those intermedia­ry appeals courts from Republican­s to Democrats means certain types of business disputes will be impacted because the new judges have different views on critical legal issues, such as enforcemen­t of arbitratio­n clauses, when cases should be dismissed before trial, and how much deference to trial judges and juries in large-dollar plaintiff ’s verdicts.

“There are clearly ways we are different,” Judge Ken Molberg, one of the eight Democratic candidates elected last week to the 5th Court of Appeals in Dallas, told The Texas Lawbook. “We will give a greater deference to jury verdicts and have a keener awareness and understand­ing of the actions of trial judges.”

The effect on the legal profession is also clear: The practice of appellate law in Texas is about to get super hot, as corporate plaintiffs and defendants will need increased legal advice to navigate an unknown or possibly even a treacherou­s appellate landscape.

“Businesses are going to need to get appellate counsel involved in their litigation matters much earlier in the process,” said Christophe­r Kratovil, an appellate law partner at Dykema, which has offices in Houston, Dallas and San Antonio. “This change impacts

the litigation strategy in numerous ways, including considerat­ions regarding settlement.”

For example, lawyers on the losing side of recent appellate court decisions in Austin, Dallas or Houston might wait until the new judges are sworn in to file their motions for a rehearing.

The shifts at the three intermedia­ry appellate courts also change the dynamics involving appeals from those courts to the Texas Supreme Court.

For two dozen years, Republican judges controlled the 1st, 5th and 14th courts of appeals in Houston and Dallas.

Those judges were viewed as conservati­ve, pro-business, pro-arbitratio­n, anti-large jury verdict jurisdicti­ons.

The shift in jurisprude­nce is comparable to the Republican takeover of the Texas Supreme Court in the late 1990s after decades of justices who were pro-plaintiff — only in reverse.

“Certainly attorneys representi­ng plaintiffs in employment, consumer and malpractic­e cases will be feeling more optimistic about their odds of prevailing on appeal on those types of cases,” said Chad Baruch, an appellate law partner at Johnston Tobey Baruch in Dallas.

Jeff Nobles, an appellate partner at Smith Nobles, says the 10 new Democratic justices joining the 1st and 14th courts in Houston will clearly have an impact.

“The difference­s in substantiv­e areas will be incrementa­l, not sweeping,” Nobles said. “But there is a human element to judging based on different experience­s. So, we might expect to see a better outlook for the accused in some criminal cases, for plaintiffs in business and personal injury cases, and for the underdog in many areas.”

Nina Cortell, a partner at Haynes and Boone, which has offices in Houston, Austin and Dallas, agreed that the “new voices” on the Texas courts of appeals will lead to difference­s of opinion.

“No doubt,” she says. “But I would be hesitant to prejudge what those difference­s will look like. The new justices have all committed to apply the law to the facts presented by the cases before them.” For a longer version of this story, visit TexasLawbo­ok.net.

 ?? Yi-Chin Lee / Staff photograph­er ?? Appellate lawyers say that the “blue wave” that shifted control of state appeals courts means certain types of business disputes will be affected.
Yi-Chin Lee / Staff photograph­er Appellate lawyers say that the “blue wave” that shifted control of state appeals courts means certain types of business disputes will be affected.
 ?? Yi-Chin Lee / Staff photograph­er ?? Christophe­r Kratovil, an appellate law partner at Dykema, said election changes also impact strategy.
Yi-Chin Lee / Staff photograph­er Christophe­r Kratovil, an appellate law partner at Dykema, said election changes also impact strategy.

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