Civil Justice Reform - Law Firms Dedicated To Their Clients: The Defense Bar And Civil Justice Reform

Thursday, December 1, 2005 - 01:00

Editor: Tell us about some of your organizational activities that have a bearing on civil justice reform.

Martin: I have been very involved with the Texas Association of Defense Counsel (TADC) since the 1980s. I have also been active for many years in DRI, which is the largest national organization of defense counsel with over 22,000 members. I am currently its first vice president and I will become president in October 2007.

I have served on the Texas Supreme Court Advisory Committee for the last six years. My term expires at the end of this year. I have served two three year terms in that position and have asked not to be reappointed due to my time commitments with DRI.

Editor: What was the involvement of the defense bar in the amendments to the Federal Rules for Civil Procedure regarding electronic discovery?

Martin: Working with Lawyers for Civil Justice (LCJ), DRI was a main player along with others in pushing for the passage of the amendments. I testified at the public hearing held in Dallas. Our current president, David Dukes, testified at one of the public hearings and several past presidents including Steve Morrison also testified.

Texas was the first state to have a specific rule that deals with e-discovery. I was able to explain at the Dallas hearing how well our Texas rule has worked - as demonstrated by the fact that most members of our trial bar (including the plaintiffs' bar) are very satisfied with it. I believe that the Texas experience and the input that was provided about it were important in convincing those making the federal rules that there was a need for separate rules addressing e-discovery.

Editor: What is the position of the defense bar on the use of "junk science" in the courtroom?

Martin: One of the basic precepts of our legal system is that every piece of evidence offered is not admissible simply because it is offered. Yet this principle was eroded when many judges in Texas and elsewhere determined that they should let so-called experts say anything whether or not it was grounded in sound scientific theory. Judge Patrick Higginbotham in one of the Pan American New Orleans windshear crash cases pointed out that this approach encouraged the submission of misleading testimony by so-called experts. In a strongly worded opinion, he stated that it was time for judges to take greater responsibility for the admission of expert testimony in civil trials. I and other members of the defense bar strongly advocated this position well before Daubert and its progeny. The Texas Supreme Court adopted the Daubert standard with a few tweaks and modifications in the Robinson and Havner cases, among others.

Editor: Is the defense bar helping to assure that judges are kept informed of developments in the law?

Martin: DRI created the National Foundation for Judicial Excellence for precisely that reason. The November issue of The Metropolitan Corporate Counsel reported on its First Annual Judicial Symposium which was attended by 136 appellate state court judges. The overriding issue discussed at the Symposium was Daubert and its application.

Editor: You have mentioned issues in which DRI and other defense bar associations have been involved. Please tell us a bit about the role that you and other defense counsel have played in issues arising in Texas.

First let me ask you about the concern that has been expressed about the judicial selection system in Texas. Has the defense bar been involved in efforts to reform it?

Martin: The number one problem with the civil justice system in Texas is that at all levels our judges are elected. Judges in our state run on a partisan ballot and this leads to large campaign contributions to sitting judges before whom parties and lawyers are currently appearing. This casts a dark shadow over the fairness of the Texas civil justice system.

The TADC has supported proposals for reforming judicial selection either by eliminating partisan elections of judges or by implementing an appointment and retention system. We have provided input to the legislature in private meetings and testimony before the state senate. We worked with Chief Justice Phillips when he was on the court to try to get corrective legislation passed. Our efforts failed, but by small margins. We will persist until reform becomes a reality.

Editor: Tell us about recent appointments to the Texas Supreme Court.

Martin: Governor Perry and before him Governor Bush have made some excellent appointments. The defense bar has strongly supported the improvements that have taken place in the quality of judges selected for our Supreme Court. The problem with the current system is that those appointees have to run in an election cycle to maintain their positions. For example, Justice Don Willett was recently appointed to replace Justice Priscilla Owen when she was confirmed to the Fifth Circuit. Nevertheless, he will have to run in a contested Republican primary next March and then in the general election in November. Although he has only been on the court sixty days, he has to spend a lot of time campaigning for potentially two elections next year.

Editor: What efforts have been made by the defense bar to improve the compensation of Texas judges?

Martin: Legislation has been adopted authorizing significant salary increases for all levels of our state judiciary. TADC really stepped up to the plate in helping to get the legislation passed.

Editor: Has the defense bar been supportive of the civil justice reform legislation that has been adopted in Texas?

Martin: One of the most constructive changes is that we now have a state multidistrict litigation practice which is not identical to the federal MDL practice, but it does have some similarities. That has streamlined the preparation of large toxic tort cases and has the potential for handling mass litigation as a result of a disaster. Many of the other reforms are extremely beneficial, such as limiting joint and several liability.

We would welcome greater opportunity to share our experience with those involved in shaping legislative proposals. This can help avoid unintended consequences. An example of unintended consequences occurred in connection with the enactment of House Bill 4 in Texas in 2003. Somehow an agreement was struck that resulted in the elimination of the ability of a defendant to elect a dollar for dollar credit for settlements paid by co-defendants. The last defendant in the case could no longer take a credit for the amount that had been paid by the other defendants that had already settled out. Under the new rule, the last defendant in order to collect had to prove liability and causation against the defendants who settled. Although the problem has now been corrected, we had difficulties for two years because someone did not understand the consequences of the provision they agreed to.

Editor: Why are trial lawyers helpful in bringing about civil justice reform?

Martin: Defense trial counsel bring to the table first-hand experience on how proposed reforms will work in practice. I mentioned how valuable that experience can be in the context of legislation. In the case of court rules, the judges on judicial rule making bodies are eager to hear from lawyers they respect. They know that defense lawyers can speak from experience about the application of the current rules and the need for new rules. This was illustrated in the hearings that preceded the approval by the Federal Judicial Conference of the e-discovery amendments.

Editor: What motivates defense counsel to help improve the system?

Martin: A defense lawyer may earn a bigger fee in a case because of some feature of the law that favors plaintiffs. However, if the problem can be fixed and that lawyer does not try to fix it, he or she is not going to benefit in the long run. Clients will seek out those lawyers who are willing to go the extra mile for them. Our clients take it for granted that we will make that extra effort to change the system and, depending on the circumstances, expect us to do it on a pro bono basis. For example, we used to have a flood of lucrative out-of-state law suits in Texas involving disputes with no connection to the state. In the 1990s, the TADC and I personally supported forum non conveniens legislation reform to get some of the non-Texas cases out of system.

Editor: You mentioned the need for close collaboration between the defense bar and those in the business community seeking civil justice reform. What is being done to facilitate such collaboration?

Martin: That is exactly what LCJ is for and I think it is doing a good job of achieving that goal. LCJ is a coalition of Fortune 500 corporations and the leadership of the organized national defense bar: DRI, FDCC and IADC. It provides an excellent forum for a constructive dialogue between defense counsel and corporate America about where our efforts can best be used. The success in the electronic discovery area is a great example.

Editor: Do you attempt to change the law by challenging outmoded and unfair legal principles in handling the cases you litigate or by filing amicus briefs?

Martin: When we see opportunities to benefit our clients by making an effort to improve the law, we will point this out to them - and if they wish we can take the issue up on appeal to try to make good law. A more realistic option for defense lawyers and defense organizations is to file amicus briefs in support of needed changes in the law. Both DRI and the TADC have active amicus committees that file several important briefs a year in cases that deserve attention and that have the type of issues where we think change in the law is needed. When I was in the leadership of TADC, we had an active interest in forum non conveniens and we filed several amicus briefs on that issue. TADC has also filed a number of briefs to limit the scope of bad faith causes of action against insurance companies.

Editor: Is there a place in DRI for corporate counsel?

Martin: Absolutely. DRI has a number of corporate members. We have a corporate membership program and individual in-house lawyers, as well, are members of the organization. We have had in-house counsel serve on our board of directors. Kelly Freeman with Noble International, is our new Secretary Treasurer.

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