Texas Supreme Court Chief Justice Nathan Hecht ()
Even as the Texas population and number of new lawyers increased over the past 10 years, the number of new civil lawsuits has dropped by 17 percent, from 610,355 cases in 2005 to 505,104 in 2014.
The downward trend is more striking in county-level courts, which saw a 10-year drop of 36 percent of new civil cases, compared with district courts, which experienced an 11 percent decline. Some case types—auto accident lawsuits, district court contracts cases and condemnation cases—actually increased over the 10-year period. But other case types—torts that don’t involve vehicles and debt cases—dropped more than others.
“You could say the lion is beginning to lie down with the lamb—but that may not be true,” said Texas Supreme Court Chief Justice Nathan Hecht. “Anytime there’s that kind of a shift, then you’ve got to wonder what is happening. But I think right now, I’m not sure what the answer is.”
Hecht said that eventually, judges, clerks, court reporters and others might notice there’s less work to do.
Lawyers might feel the pinch, too.
“There are a lot of lawyers out there who are trying to make a living, and more lawyers graduating from law school every day. When you see trends of fewer and fewer cases, the question becomes the sustainability of having cases to file for the lawyers to make a living,” said David Slayton, administrative director of the Texas Office of Court Administration.
Slayton said he began to study the declines in civil filings in the spring and summer of 2014.
“We noticed it with e-filing revenue coming in shorter than we anticipated by quarter. … As we began to look at the data, we really saw the true impact overall,” said Slayton, who has asked the Texas Legislature for an extra $8.5 million to make up the e-filing revenue shortfall.
OCA data covering fiscal years 2005 to 2014 shows that the total number of civil filings in Texas trial courts dropped by 17 percent, but the decline is more pronounced in county-level courts than in district courts.
The state’s county-level trial courts in 2005 saw 150,735 new civil filings—including family law—compared with just 96,954 in 2014, a decline of 36 percent. Meanwhile, the district courts saw an 11 percent drop: from 459,620 new civil filings in 2005 to 408,150 in 2014.
Interesting trends emerge when looking at specific types of cases.
For example, in the 10-year period, tort cases that involved a vehicle increased by 13 percent, from 31,152 to 35,202. But in the same period, there was a 38 percent drop in tort cases that didn’t involve a vehicle, from 20,051 in 2005 to 12,441 in 2014.
Among other trends, filings of suits on debt cases in county trial courts dropped by 53 percent, from 57,711 cases in 2005 to 27,078 in 2014. But a similar case type in district court—accounts, contracts and notes—climbed by 18 percent, from 35,996 cases in 2005 to 42,562 in 2014.
Searching for Answers
Slayton said that he doesn’t know what caused the trends, but he has a lot of questions. Did state policy changes dealing with tort reform cause the drop in non-vehicle tort cases? Why would the car wreck cases climb over the same period? Could a change in legal practice among the state’s lawyers explain any trends? Or changes in insurance company policies? Could the cost of litigation factor in?
Searching for answers, Texas Lawyer interviewed four attorneys who all blamed tort reform for the drop in non-vehicle tort cases.
“To put it bluntly, there’s been a rollback of individual rights and remedies over the last two decades. You can call it tort reform if you want—that’s the term everyone knows and understands—but it has had a clear effect on the cases that are filed, because a lot of the rights and remedies that existed at one time are no longer there or they have been diluted,” said Trey Apffel, president of the State Bar of Texas.
Bryan Blevins, president of the Texas Trial Lawyers Association, said that when he was an associate in 1993, he typically handled 80-100 cases at any given time. Now, associates at his firm might handle just 30, said Blevins, partner in Provost Umphrey Law Firm in Beaumont.
“Today, there are substantially less firms doing what most people think of as personal injury litigation,” he said. “There are fewer lawyers doing insurance defense. … There has been a migration of lawyers into other areas of practice.”
He said that people still get hurt, but now, they have “fewer rights and opportunities to recover.
“The reason they are not being filed today is either the law has eliminated their cause of action or the law has built such cost barriers to bringing an action that they are no longer economically feasible,” said Blevins.
But why would car wreck cases increase?
Blevins said that the population in Texas grew from 2005 to 2014, which means more drivers on the roads and more car accidents. The number of car wreck cases increased too, but he said when factoring in the state’s population growth, “the number of lawsuits that are being filed is not going up at all.”
But Apffel, a League City solo who represents plaintiffs in personal injury, auto accident and medical malpractice cases, said that insurance companies’ “unreasonable” stances on handling auto accident claims might explain why car accident litigation might increase.
He said that in his personal experience, in the past, a lawyer might wait to file a lawsuit and instead negotiate a reasonable settlement for a client. But now, reaching a good pre-suit settlement is “becoming more and more difficult to do. Rather than delay in filing suit, I think more suits are being filed shortly after they come in the door,” said Apffel.
Michele Smith, president of the Texas Association of Defense Counsel, said that arbitration might have played a role in the civil filing drop. Also, parties might opt for pre-lawsuit mediation to try to keep their costs down, said Smith, shareholder in MehaffyWeber in Houston.
“I think you’re seeing an overall movement in trying to resolve cases before they get filed in certain instances,” said Smith, who generally represents defendants but also handles commercial litigation for both plaintiffs and defendants.
Pat Weaver, chairwoman of the State Bar’s Litigation Section, agreed that mediation or arbitration clauses in contracts and employment agreements might factor into the drop in civil filings.
“You’re never going to be able to track those cases,” said Weaver, managing partner in Burleson in Midland, who represents defendants in some cases, as well as commercial litigants and energy companies.
Hecht said the state’s judiciary must delve further into the statistics to find answers.
“If it really is down, and if it’s down for some reason—and it’s a good reason—then we ought to try to make sure that we can improve on it. If it’s down because going to the courthouse is too expensive and people have just given up on trying to get there, then that’s a bad reason, and we should try to get the cost down,” Hecht said.