April 29, 2011

In accordance with Sections 8.01.06, 8.017, and 8.01.10 of the State Bar of Texas Board of Directors Policy Manual, the Litigation Section Council unanimously approved the following motion at its meeting on April 2, 2011:

The Litigation Section of the State Bar of Texas requests permission from the State Bar Board to allow the Section to express its opposition to the Texas Legislature to certain concepts expressed in proposed legislation introduced under HB 274, HB 2031 and HB 2661. We also request that the State Bar take a similar position.

As a general rationale underlying the Section’s request, the first listed purpose of the State Bar of Texas is “to aid the courts in carrying on and improving the administration of justice.” The Council believes that these bills, as initially drafted, would undermine the orderly and efficient administration of justice; would limit Texas citizens’ access to justice; and would increase the cost of litigation—all impacting the rule of law and the Bar’s duty to protect the public, and undermining the Bar’s mission. The Council has these concerns:

HB 274, as introduced, created a cost-shifting mechanism for an “abusive civil action.” This would impose a chilling effect on persons seeking appropriate redress for wrongs. Further, it would have created satellite litigation affecting the orderly administration of justice in Texas courts by introducing additional factual inquiries and jury findings.

The original version of HB 2031 introduced the concept of a voluntary compensation plan and permitted the plan to constitute a settlement offer. Again, as drafted, this legislation would impede access to justice and increase litigation costs, and would potentially drain valuable court resources.

HB 2661, as initially framed, introduced formal procedural hurdles to litigation-settlement processes, inviting additional costs and any number of unintended consequences. In this regard, the Council notes that in the current economic climate in particular, clients —including corporate clients and their general counsel—have been asking their attorneys to consider alternate fee arrangements that lower overall legal fees, something this legislation would penalize.

The Litigation Council believed that these bills, as introduced, would adversely impact citizens’ access to justice, propound satellite litigation, and increase litigation costs, none of which is in the public interest. These bills would also force the courts’ attention to be redirected to ancillary matters and away from the merits of the cases before them, thus bleeding the court system of already scarce resources, and making it even more difficult to administer justice—a high purpose that the State Bar is statutorily pledged to aid.

The Council asked the State Bar Board for two separate things: First, it requested that the State Bar authorize the Litigation Section “to express its opposition to the Texas Legislature to certain concepts expressed in proposed legislation introduced under HB 274, HB 2031 and HB 2661.” Second, the Council asked that “the State Bar take a similar position” opposing these concepts. Mindful of the fast-moving and changing nature of the legislative process, the Council did not ask to oppose the bills in their entirety, nor, frankly, can it be certain that in the end the legislation should even be opposed altogether. Certainly, the legislative process lends itself to constant amendment of proposed legislation, and the Litigation Section, through its governing Council, seeks to be proactive in promoting positive amendments, speaking out in opposition only when certain concepts appear to present substantial risks to the administration of justice in Texas courts.

The Council does not believe that its request carried the potential of deep philosophical or emotional division among a substantial segment of the Bar membership. This request resulted from the unanimous vote of the Council of the Litigation Section, which comprises members of the plaintiff’s and defense bar, as well as government and commercial litigators, and judges. Moreover, the professional associations of both the plaintiff’s and defense bar in Texas have expressed similar concerns.

On April 18, the Section learned that the State Bar Board’s Emergency Legislative Response Committee granted the Section’s request to proceed in the Section’s name.

Between the approval of the Council’s original motion and the Bar’s authorization to proceed, the House passed compromise bills out of the committee that do not raise the same concerns that initially motivated the Council to act.

The compromise bills are not perfect. Many Council members disagree with different provisions of each. That disagreement does not, however, rise to the level of unanimous opposition within the Council as with the initial proposals.

At this point, the Council is monitoring the legislation. The Section stands ready to speak out if future legislative efforts resurrect the negative provisions.

The Section thanks the Bar for its confidence in authorizing the Section to proceed. If the Council takes further action, it will do so only in the entire Section’s interest, and on a prudential and judicious basis.

Finally, the Section is grateful to Council members Pat Long Weaver, Michael C. Smith, Craig Enoch, Linda McDonald, Christy Amuny, and Nina Perales, as well as our Section Liaison at the Bar, Tracy Nuckols, for their efforts.


Walker Friedman, Chair
Litigation Section