Reflections on the Practice of Law and the Jury System

Reflections on the Practice of Law and the Jury System

Phil Hardberger, Chief Justice

Fourth Court of Appeals

Delivered February 21, 2002

San Antonio Trial Lawyers Association

San Antonio, Texas

I was asked to speak to you about my thoughts on the law. Well, I do have a few, and a few stories to go with them. After 27 years of trial practice and eight more years on the appellate bench, it would be inconceivable not to have any. The stories are pretty good, but whether the thoughts have validity, you will have to be the judge. Experience probably has some relationship to knowledge, but there are enough old fools around to discourage taking this proposition too far.

My first thought is that it is a lot harder to be a day-to-day working lawyer than it is to be a judge. It does not take a Daubert qualified expert to figure a one-third contingency of “0", or what happens to all the money that was poured into a case when the jury turns its back or when the old summary judgment order comes thundering from the bench. Law is a series of crushing disappointments and soaring elation. You are the best lawyer in town (if not the world), or you are a complete loser not worthy of your bar card. It all depends on what day it is, and what issued forth from that Palace of Disappointment, that House of Dreams, known as the Bexar County Courthouse.

Before coming to San Antonio to practice, I worked as an associate for Warren Burnett in Odessa. Warren was a helpful mentor, not only to me but to other attorneys as well. For example, Broadus Spivey, the current president of the Texas Bar, recalls an occasion when he met up with Warren at a bar after taking depositions in Midland. After inviting Broadus to join him, Warren asked Broadus how things were going. Broadus responded things were not going very well because he had lost eleven cases in a row and was questioning whether he was cut out to be a trial lawyer. Warren responded, “My friend, you have not yet touched the hem of the robe of the Master.” Warren recalled that at one point in his career, he had lost 22 cases in a row and was beginning to doubt whether he would ever be a success in the courtroom. Then Warren stated that he won the next case, and suddenly forgot about all the losses.

I am glad Warren won because he became one of the best lawyers that Texas ever produced. He tried civil and criminal cases week after week, and if you worked with Warren, so did you. Warren believed that no lawyer should be in his or her office on Monday morning. All lawyers should be trying a lawsuit. Contrary to every CLE program I have attended in the last decade, where preparation, preparation and more preparation is inevitably given as the secret of success, we were generally assigned our cases for Monday morning about noon on Saturday. Most of the time we had never seen the file or met the client. Warren advised us lawyers that if we could find the client or the file–either one–announce “Ready.” I need not describe how most of our Sundays were spent.

But, at some point during the day, a conversation like this would go on:

“Hello Mr. Jones, This is Phil Hardberger calling.”

“Who? I have never heard of you.”

“I know you haven’t Mr. Jones, but I’m an attorney with Warren Burnett, and he asked me to call you.”

“Who did you say you are? I haven’t heard from Mr. Burnett in more than a year.”

“Well he’s been real busy, but he’s asked me to help you on your case.”

“Mr. Burnett is my lawyer. I don’t know anything about you. Ask Mr. Burnett to call me.”

“I know he would like to, but he’s tied up with another case, and your trial is coming up before too long, so it looks like we will be working together.”

“My trial! When is my trial coming up?”

“In the morning.”

“Oh my God!”

“I know it’s kind of sudden, but that’s the way these judges do things. Why don’t we meet down at the office at 7 a.m. and get to know each other before the trial. And, if you could bring your witnesses that would be good too.”

And then you’d hang up and start reading the depositions.

Warren had a great sense of humor, and an absolute disregard for whom he offended. In a periodic effort to establish better relations between lawyers and physicians, Warren was asked to be the speaker at a country club event of the joint Ector-Midland County Bar-Physicians Associations. Things went rapidly downhill though when Warren began his remarks by stating, “May I remind you that when your ancestors were bleeding George Washington to death in the name of medicine, my ancestors were breathing life into the noblest document known to mankind – the Declaration of Independence.”

On another occasion the community rivalry between Midland and Odessa reached a boiling stage over education. Midland had a college that was a branch of the University of Texas. Odessa, which is thirty miles away, thought they needed their own college. Midland objected, saying it was wasteful and undercut their college. Not surprisingly, most leading citizens supported their own town. The Odessa newspaper, the Odessa American, sought out Warren, a leading Odessa citizen, to get his opinion. He gave it. Warren said, “There is enough ignorance in Odessa to justify two colleges.” Warren’s statement made the headlines the next day. Strangely, it never hurt our business at all.

After working for Warren for three years, I decided to begin my own practice in San Antonio. Thirty-two years ago, Linda and I spent our first night in San Antonio as residents. We lived in a small motel that was located across the street from the Tower-Life Building for the first month. It is now a parking lot. I leased a barber shop in the Granada Homes, took out the barber chairs and sink, hung up a sign, and I was in practice. There were some disadvantages. We had no cases, no clients, no furniture, and no money.

One day, having nothing more productive to do, I went over to the courthouse to introduce myself to the judges. One gave me the friendly, but disheartening advice that I had made a big mistake in coming to San Antonio. “You’ll starve to death,” he said. He was wrong, but it was kind of quiet around Room “9" that night when I told Linda the story.

For the next twenty-three years of my life, I practiced trial law. I experienced successes and failures. The late federal judge, Lucius Bunton, and I tried several cases against each other. Once, when asked how a case came out, he said, “The jury went out and made an ass of itself.” Well, I am sorry to say it made an ass of itself from time to time with my cases too. As disappointing as some of those failures were, however, I have never wavered in my respect for the jury system. For those who have read my article “Juries Under Siege,” my defense of the jury system will come as no surprise.

For several hundred years, both in this country and in England, the jury was given a great deal of latitude in its task. Unfortunately, reform groups have made disparagement of juries a popular pastime today. The presumption is that our fellow citizens have not kept pace with the technological and scientific advances of our times: that they do not read, view or think all that well. This is wrong and dangerous.

In one recent survey, 97% of the federal judges stated they agree with the jury’s verdicts most or all of the time. Nevertheless, 27% stated that fewer cases should be decided by juries. This is even more alarming when you consider the number of federal cases actually considered by a jury. In March of last year, the New York Times reported that jury trials are a rapidly shrinking part of federal court caseloads, with only 4.3 percent of federal criminal charges now ending in jury verdicts, down from 10.4 percent in 1988. The number of federal civil cases resolved by juries has also dropped to 1.5 percent.

In those cases in which a jury actually reaches a verdict, the likelihood of the verdict withstanding appellate review has diminished. One analysis concluded that federal appeals courts reversed civil jury awards in injury and contract cases less than 20 percent of the time in 1987; however, over the next decade, reversals rose to nearly 40 percent.

In addition to the increased likelihood of reversals, the Dallas Morning News has reported that forty-one states have imposed some legislative limits on the type of cases juries can hear. Included are rules banning jury trials dealing with issues like consumer fraud and suits over adverse reactions to vaccines.

One of the biggest targets of tort reformists is punitive damages. Misinformation about the willingness of juries to award huge amounts of punitive damages abound. However, a study by the U.S. Justice Department reveals the fallacy of the tort reformists’ stance. That study shows only a tiny percentage of cases in state courts result in any punitive award. The study also contradicts the conventional assumption that juries are more likely than judges to award huge verdicts. Whether imposed by a judge or a jury, the majority of all punitive damage awards amount to less than $40,000. Bench trials resulted in punitive damage awards 7.9% of the time compared with 2.5% for jury trials. In addition, the median punitive damage award by a judge was $75,000, nearly three times the $27,000 median amount awarded by juries.

As the most visible part of the legal system, juries have been singled out as the symbol of problems, real or imagined, in the system. The attack launched by the reformers has initiated a national debate about the legal system, and, implicitly, a debate about the effectiveness of our juries. In Texas, where a broad constitutional right to trial by jury has always been recognized, the debate has been waged, as well, and has resulted in tort reform legislation, passed in 1995. This legislation put a cap on what juries could award in punitive damages; imposed sanctions for the bringing of frivolous lawsuits; and limited the applicability of some consumer laws.

The Texas judiciary, who should always support the jury system, in my opinion, has on occasion joined the fray against juries. This is regrettable. Since 1891, the Texas constitution has stated that no court above the court of appeals may reverse a jury’s determinations of the facts of a case. That means that, according to our constitution, the Supreme Court can review legal issues, but it may not question a jury on the facts. Indeed, even the court of appeals may overturn a fact determination only if it finds that the determination is against the overwhelming weight of the evidence. This is a strenuous standard, and it sends a strong message about our founders’ belief in the integrity of jury systems.

The Supreme Court, in recent years, has been encroaching on this constitutional provision. Legal tools finding “no duty,” “no proximate cause,” “no evidence,” “unreliable experts,” and “junk science” are being used to wipe out many jury verdicts. Justice Hecht complained in one opinion that whether an insurance company acted in bad faith was simply being decided by whatever a jury thought. My response to Justice Hecht’s complaint is, “What is wrong with that?” We have, as a state and as a nation, always valued juries for their ability to sift through various versions of the same story and to assess witness credibility. These advantages are particularly suited to determining whether someone acted in bad faith.

The legislature and judiciary are not alone in their distrust of juries. There is growing public dissatisfaction, as well. But public opinion is being shaped by a lack of information and, in some cases, unadulterated misinformation. The simple truth is that most people have not had much personal contact with the legal system. In one survey, only six percent of those responding mentioned actual jury service as a source of information about juries. The rest got their information from the media and from formal education, in that order.

Much of what the public believes it knows about juries, it has gotten from the skewed representations of politicians who are often backed by special interest groups. These groups, understandably enough, are interested in winning their cases, not in the abstract pursuit of justice.

The pool of citizens from which our juries is picked represents a cross-section of the community. The tools a jury brings to the deliberation process are many and useful: twelve lifetimes of experience. An average jury contains a mixture of community values and viewpoints: male/female; Democrat/Republican/Independent; conservative/moderate/liberal; religious/nonreligious; rich and poor. The jury has an advantage shared by no single person: pooled knowledge. The jury, in its deliberations, does what we do in real life. When someone is telling us something, we evaluate what we hear and decide what to believe. We look at the person’s face, watch the body posture, listen to what is said, and we evaluate that person’s credibility based on our own fund of knowledge and experience. We have been doing this our entire lives. There are times when someone may fool us, and we make a misjudgment. But if the mistake is significant, there is usually a friend or relative who points out that we may be believing something that is not true.

That is what a jury does in deliberations. It enjoys a community of knowledge, and it pools that knowledge in search of truth and justice. If judges are capable of understanding and evaluating scientific reliability, we should not look down upon juries and presume that they are incapable of doing the same thing.

In a recent law review article, one seventh circuit court of appeals judge questioned whether the Supreme Court’s “gatekeeping” standard really amounts to industry “safekeeping.” I admit, however, that many legal scholars approve of the Daubert opinion. One scholar wrote, “Under no circumstances should the Court retreat from Daubert, for it has had the beneficial effect of barring a great deal of suspect ‘science’ from courtrooms.” But what would the result have been if the juries had been allowed to weigh the reliability of excluded expert testimony for themselves? There is an assumption in these remarks that the juries are such nincompoops that they could not possibly know what to do with weak testimony. That has not been my experience. My hunch is that the jury would have reached similar results. Juries are hard to fool. I say this based on my own experience. It is not really logical to believe that an attorney’s forensic skills alone will carry the day.

Those who support the movement to eliminate or severely limit the right to trial by jury need to remember the societal gains resulting from jury verdicts. As one law professor stated, “When no one else has the courage to address the truly controversial issues and problems of our time, juries over and over have shown a willingness and ability to roll up their sleeves, study the facts and come to conclusions.” Legal analysts report that the 1980s was an era of “regulation by litigation,” meaning the use of civil lawsuits to force changes within big business. A few examples of such lawsuits reveals the tremendous societal gains these lawsuits achieved.

In 1982, Scottie Baldwin, an East Texas trial lawyer, sued Johns-Manville and Raybestos-Manhattan, two asbestos makers, over a client’s lung disease. Prior to that lawsuit, asbestos makers routinely denied liability for lung disease caused by asbestos. However, Scottie Baldwin convinced a jury to award more than $1 million to the worker, starting a flood of litigation. In 1982, when Johns-Manville sought bankruptcy court protection, more than 15,000 asbestos suits were pending against it. After six years, Johns-Manville worked out a plan to pay an estimated 500,000 victims, who would have been left uncompensated for their illnesses in the absence of an initial jury’s ruling against the asbestos companies. More importantly, the lawsuits brought an end to the widespread use of asbestos in manufacturing, and since then, workplace exposures have been strictly regulated by the government.

Another example is the change wrought by the tobacco lawsuits. For four decades, cigarette manufacturers blamed smokers for their illnesses. Then, in August 1996, a Florida jury awarded a smoker $750,000. That verdict started a trend. In March of 2000, a California jury awarded a $20 million verdict against the Philip Morris and R.J. Reynolds tobacco companies. Now, those companies seek to convince juries in pending litigation that they already got the message sent by the prior juries. Tobacco litigation has transformed the prospects for tobacco control, first in the United States and more recently worldwide. It has forced tobacco companies to sit at the bargaining table with tobacco control advocates, has produced settlements under which the industry is committed to paying about $10 billion each year to reimburse American states for healthcare expenditure caused by tobacco, and it has generally put the industry on the political defensive.