Letter from Joe Jamail to Chief Justice Phillips
Re: [Summary Judgment] Proposed Amendments to Tex. R. Civ. P. 166a

May 9, 1997

Via Federal Express

Honorable Thomas R. Phillips
Chief Justice, Supreme Court of Texas
P.O. Box 12248
Austin, Texas 78711

Re: Misc. Docket No. 97-9067; Amendments to Tex. R. Civ. P. 166a

____________________________________________________

Dear Mr. Chief Justice:

The Court’s Order of April 16, 1997, invites public comment upon the tentative revisions to the current summary judgment procedures established in Tex. R. Civ. P. 166a ("Rule 166a"). I respectfully make the following comments and observations.

SUMMARY

It generally appears that the revisions to Rule 166a are intended to "codify" the "no evidence" summary judgment practice adopted by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548 (1986). Preliminarily, it is noted that the federal rules themselves have no specific verbiage similar to paragraph (i) of the proposed revisions. In summary, I suggest that the revisions to Rule 166a are unnecessary and unwise, procedurally, substantively and as a matter of policy, as your opinion in Casso v. Brand, 776 S.W.2d, 551, 555-57 (Tex. 1989), holds.

The history of summary judgment practice has followed distinctly different paths in the federal and state systems. Each is premised upon different philosophies. The essential distinction between the two rests in large measure upon different procedural and substantive contexts. To begin with, it must be remembered that, constitutionally, the federal system, which is administered by life-time Article III appointees, is one of intentional limited jurisdiction. State courts are not. Implanting the federal procedural into our state procedure without the multitude of procedural and decisional safeguards which have developed in the federal system in the last 60 years will jeopardize, constitutionally and otherwise, that judicial open door paradigm which pervades and characterizes the Texas constitutional system.

The Texas Constitution, more than the federal Constitution, gives more deference to juries as the ultimate finders of fact and arbiters of the credibility of evidence. Our state Constitution is more mindful of allowing citizens their day in court. Even a brief historical sketch of federal and state summary judgment practice bears this out.

The new rule has not had appropriate time for public comment from the bench and bar. The end result of the revisions to Rule 166a will not just be a more "defense-oriented" justice system, but a judicial quagmire which will impose upon non-Article III trial judges an onerous spate of new mini-trials filled with prat-falls and unnecessarily over-technical pre-trial litigation shenanigans.

DISCUSSION

I. General Nature of the Changes.

The Rule 166a revisions set forth in the Court’s April 16, 1997, Order create a new form of "no evidence" motion for summary judgment patterned on, but surpassing, the federal summary judgment system. The new "no evidence" motion can be made after an undefined "adequate time for discovery" has elapsed, and need not be supported by traditional summary judgment, although such evidence is necessary to refute the new motion.

The Court has rejected certain safeguards recommended by the Supreme Court Advisory Committee, such as attorney fee shifting for meritless motions and full-disclosure certificates by the movants’ attorney. The new streamlined summary adjudication process has the very real potential of becoming a draconian railroading device.

II. History of Texas Summary Judgment System Since Implementation in 1950.

As observed in this Court’s opinion in City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 675 (Tex. 1979), summary judgments are relatively new to the Texas judicial system. Summary judgment provisions were not made in the first promulgation of the Texas Rules of Civil Procedure in 1940, although the federal courts had implemented summary judgments in 1937. Rule 166a was adopted in 1950 as a way to eliminate delay and expense. Hittner & Liberato, "Summary Judgments in Texas," 35 S.Tex.L.R. 9, 12 (1994). From the time of adoption to Justice Franklin Spears’ opinion in City of Houston v. Clear Creek Basin Authority, however, the summary judgment procedure was fraught with problems even in light of the 1978 revisions to Rule 166a. Id.

A. Purpose of Summary Judgments Under Current Texas System.

The function of summary judgment is not to deprive a litigant of the right to trial by jury, but to eliminate patently unmeritorious claims and untenable defenses. Rule 166a is not intended to deprive a litigant of a full hearing on the merits of any fact issue. Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952). The present basis for a motion for summary judgment is that no genuine issue exists for any material fact and that the movant is entitled to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c); Hittner & Liberato at 13. Summary judgment is limited to the issues expressly placed before the trial court by motion and response. McConnell v. Southside I.S.D., 858 S.W.2d 337, 340-41 (Tex. 1993).

B. Harsh and Unfavored Procedure.

The specificity requirements of Rule 166a are a due process safeguard. See, Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex. 1978). Nevertheless, summary judgment is a harsh remedy that courts should deny unless the movant clearly establishes a right to summary judgment as a matter of law. Casso v. Brand, 776 S.W.2d 551, 557 (Tex. 1989).

1. Pre-City of Houston v. Clear Creek Basin Authority.

After Rule 166a was made effective in 1950, the intended streamlining effect of the summary judgment procedure failed to materialize. Trial courts were reluctant to grant summary judgments, and a vast majority of summary judgments granted were reversed on appeal. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d at 675. A major obstacle to success was the lack of clarity of the procedure. Id.

2. Post-1978.

As a result, the Supreme Court revised Rule 166a in 1978, and with its 1979 opinion in City of Houston v. Clear Creek Basin Authority, substantially increased the efficacy of Rule 166a while maintaining adequate due process safeguards. Admittedly, however, a number of summary judgments are still reversed on appeal, at least at the intermediate level. Nobles, "Reversals of Civil Judgments by Texas Appellate Courts," Appellate Advocate (Spring 1990); Hittner & Liberato, at 12 n. 6. Yet I respectfully submit that the reversal rate of summary judgments has decreased substantially in this decade, because the number of summary judgments granted has significantly increased in the same period. At the same time, the Supreme Court has provided increasing guidance as to proper summary judgment practice. See, e.g., McConnell v. Southside I.S.D., supra; Casso v. Brand, supra.

III. Purpose of Federal System 1937 through Celotex.

Summary judgments were introduced into federal practice in 1937. The purpose of the federal summary judgment rule is to pierce the pleadings and to assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986). To accomplish this, summary judgment procedure is designed ideally to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553 (1986). The federal system is designed to further the goal of Fed. R. Civ. P. 1 to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. at 327, 106 S.Ct. at 2555. Such noble ideals do not necessarily translate easily into Texas summary judgment procedure practice, however.

IV. Comparison of Present Texas and Federal Summary Judgment Systems.

The most noticeable distinction between the Texas and federal summary judgment systems is the allocation of the burden of proof elucidated in Celotex Corp. v. Catrett. Unlike present-day Texas procedure, federal practice now permits a movant to seek summary disposition of the case if it makes an unchallenged prima facie showing that the non-movant can garner no factual support as to one or more essential elements of the non-movant’s claim or defense upon which it would carry the burden of proof at trial. 477 U.S. at 2552, 106 S.Ct. at 322-23.

Notably, unlike the proposed revisions to Rule 166a, this "no evidence" form of summary judgment is not specifically written in to Fed. R. Civ. P. 56, but it finds expression in the Celotex Corp v. Catrett plurality opinion. However, as the concurrence and dissents in Celotex underscore, the "no evidence" summary judgment format is not without its due process problems. More important, the Celotex plurality, concurring and dissenting opinions together place the role of "no evidence" summary judgment in a more constitutionally palatable context within the whole federal procedural scheme.

Given the significant philosophical, jurisdictional and procedural differences between the federal and Texas court systems, however, the federal concept of a "no evidence" motion for summary judgment does not translate well into Texas procedure. "No evidence" motions for summary judgment are better suited for disposition by Article III judges within the federal procedural framework (especially since the advent of Fed. R. Civ. P. 26 initial disclosures) than elected state court judges faced with heavier dockets and less law clerk and staff attorney support.

A. Different Philosophies.

Your opinion in Casso v. Brand, supra (a First Amendment defamation case) underscores the policy and procedural differences between the Texas and federal summary judgment systems. In Casso, you observed that in the federal system, summary judgments are not regarded as a disfavored procedural short-cut, as they are in Texas, but are viewed as a way of expediting the disposition of cases:

Texas law, of course, is different. While the language of our rule is similar, our interpretation of that language is not. We use summary judgments merely "to eliminate patently unmeritorious claims and untenable defenses," City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 n. 5 (Tex.1979), and we never shift the burden of proof to the non-movant unless and until the movant has "establish[ed] his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law." Id. at 678.

Casso v. Brand, 776 S.W.2d at 556. As a policy matter, your opinion went further:

Moreover, we see no overriding policy reasons for modifying our summary judgment standards under the common law. . . . we believe our own procedure eliminates patently unmeritorious cases while giving due regard for the right to a jury determination of disputed fact questions. Tex. Const. art. I, § 15, art. V, § 10.

Id. at 556-57. The Court’s April 16, 1997, Order reflects an inexplicable wholesale retreat from that pronouncement and your cogent observations.

B. Different Jurisdictional Bases.

Federal courts have no inherent subject matter jurisdiction. They are courts of limited jurisdiction by origin and design. Oliver v. Trunkline Gas Co., 789 F.2d 341, 343 (5th Cir. 1986). Texas trial courts, however, are basically courts of general jurisdiction. See generally, Tex. Const. art. 5.

The federal presumption against assuming jurisdiction, especially where the dual federal/state judicial system presumes that state courts would otherwise have original general jurisdiction over cases not pre-empted by federal law, coupled with the narrower constitutional guarantee of jury trials in federal court, carry over into the Celotex philosophy of expedient disposition of cases without jury trials by Article III judges. On the other hand, the express "open door" guarantee found in the Texas Constitution (however politically and philosophically distasteful that provision might be to tort reformers) gives greater expression to the general jurisdictional nature of Texas trial courts. Tex. Const. art. I, § 13.

C. Safeguards in Federal Procedural Practice Designed to Prevent "Railroad" Effect.

I do not believe that it can be overemphasized that paragraph (i) of the proposed revisions codifies Celotex out of context. In so doing, this Court is unwittingly creating a procedural trap which can be used to "railroad" lawsuits out of the court system. The Court has deleted several safeguards recommended by the Advisory Committee, and has failed to take into account the backdrop of the federal procedural rules and decisional law which serve to prevent such railroading. In fact, it is respectfully suggested that without wholesale revision of the entire Texas Rules of Civil Procedure to mirror the federal rules, paragraph (i) will place due process rights at serious risk.

1. Federal Procedures Require Defendants to Admit or Deny Plaintiffs’ Allegations.

Although both federal and Texas courts follow the "notice" pleading rule which dispenses with the need for detailed factual pleading, the federal rules require that a defendant specifically admit or deny each allegation in a petition. Fed. R. Civ. P. 8(b). The general denial under Texas practice stands in stark contrast. The lack of specific admissions or denials, together with the lack of Federal Rule 26 full disclosure requirements as discussed in the next section, present a danger to due process under the proposed "no-evidence" summary judgment procedure.

2. No Fed. R. Civ. P. 26(a) Analogue to Prevent "Railroad" Effect.

One of the most profound reasons that Celotex "no evidence" summary judgment motion practice should not be introduced into the Texas Rules of Civil Procedure is the lack of a state analogue to the full disclosure requirements embodied in Fed. R. Civ. P. 26. Litigants in federal court are required to make extensive discovery disclosures at the commencement of the case, without formal discovery requests, with a continuing duty to supplement their initial disclosures. The full-disclosure requirements of the federal discovery rules provide an additional safeguard to the potential "railroad" effect of "no-evidence" summary judgment motions. In this regard, the Court’s deletion of the Advisory Committee’s full-disclosure certificate requirement is disturbing.

3. Fed. R. Civ. P. 11 More Widely Enforced Than Tex. R. Civ. P. 13.

The Court has chosen to ignore the Advisory Committee’s recommendation that specific fee-shifting sanctions be provided in the revisions. Perhaps the Court feels that Tex. R. Civ. P. 13 suffices to prevent frivolous, routine, and harassing meritless "no evidence" summary judgment motions, similar to Fed. R. Civ. P. 11. The reluctance of Texas trial courts to grant (and the lack of appellate court support of) Rule 13 relief is magnified by the more general practice of Federal courts to enforce their Rule 11.

V. Proposed Revisions Will Create Havoc in the Court System.

Due process considerations aside, the codification of Celotex "no evidence" summary judgment motion practice with the added "must grant" requirement will impose substantial burdens upon Texas courts, rather than relieve them of putatively frivolous lawsuits.

A. Intended to Facilitate Trial Courts’ Responsibility as "Gatekeepers," Summary Judgments Will Overwhelm Trial Courts.

Adding a new summary judgment tool will undoubtedly increase pre-trial motion practice every bit as much as enhanced "dot the i and cross the t" discovery has already burdened trial courts. The new "no evidence" motions could well devolve into routinely filed, time-consuming, overly briefed mini-trials. Cf., Matsushita Elec. Inds. Co. v. Zenith Radio Corp., 475 U.S. at 599-600, 106 S.Ct. at 1363 (White, J. dissenting). The perceived need to "do something" in response to present day "tort reform" political sentiment by putting even more "gatekeeper" duties upon trial judges, as was done with expert testimony matters, will surely backfire as the trial courts (and ultimately the appellate courts) are deluged with "gatekeeping" motions.

The rush to substantially alter state summary judgment practice as reflected by the Court’s April 16, 1997, Order, reflects to some degree the unarguable need for this Court to retain judicial control over rule-making decisions, as evidenced by similar (but terribly drafted) bills presently pending in the Texas Legislature. See, e.g., H.B. 95. I stand committed, as always, to the belief that the Legislature should leave the promulgation and implementation of procedural rules to the Texas Supreme Court and Court of Criminal Appeals. It is on that premise that I respectfully submit these comments.

1. Routine Motions.

The commentary to the proposed rule contains the proviso that "paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent’s case." I respectfully submit that this commentary lacks sufficient teeth to prevent "no-evidence" summary judgment motions from becoming the norm. The lure for harassment and abuse is plainly too great.

2. Potential for Harassment and Abuse.

In 1941, the "general demurrer" practice was abolished by Rule 90. The introduction of "no evidence" summary judgment motions presents a very real potential for harassment and abuse of the same type general demurrers presented before 1941. See, Stayton, "The Scope and Function of Pleading Under the New Federal and Texas Rules: A Comparison," 20 Tex.L.Rev. 16 (1941), excerpted in General Commentary — 1966, Tex. R. Civ. P. 90 (West 1979). In many respects, the "no evidence" summary judgments resemble a new form of "speaking demurrers" which heretofore were alien to Texas practice. International Bank of Commerce of Laredo v. City of Laredo, 608 S.W.2d 267, 270 (Tex. Civ. App. — San Antonio 1980, writ dism’d).

B. Intended to Streamline Justice, a "Railroad" Effect Will Result in an Appellate Explosion.

The proposed additions to Rule 166a, which are intended to streamline justice, will have the opposite effect. Besides increasing the likelihood of creating a "railroad" effect in at the trial level, appellate issues, interlocutory and otherwise, will increase significantly. Even the United States Supreme Court recognized in Celotex the potential for railroading. See, Celotex Corp. v. 477 U.S. at 326, 106 S.Ct. at 2554.

The "must grant" language contained in paragraph (i) textually strips trial courts of discretion and invites interlocutory appeal. More important, the ambiguity of the phrase "after adequate time for discovery" opens a whole new avenue of appellate points of error. Even the federal courts of appeal have been unable to uniformly decipher this issue. See, e.g., Fontenot v. Upjohn Co., 780 F.2d 1190, 1193 (5th Cir. 1986); Hittner & Liberato, at 85; Nelken, "One Step Forward, Two Steps Back: Summary Judgment After Celotex," 40 Hast. L.J. 52 (1988).

1. The Last Sentence of Paragraph (i) Creates a Mandamus Trap-Door.

The Court’s deletion of the "appellate review" proscription contained in the Advisory Committee’s January 27, 1997, report to the Court will, on top of other problems with the revisions, subject the appellate courts (including the Supreme Court) to a flood of mandamus petitions and additional points of error on traditional appeal. In this regard, the "must grant" language in the final sentence of paragraph (i) of the revisions not only strips the trial courts of any judicial discretion in handling summary judgment motions, but is as clear an invitation to interlocutory mandamus actions as anything I have seen in my legal career. Even the United States Supreme Court’s Celotex decision did not go this far.

2. Appellate Courts Will Be Faced With Dangerously Incomplete Factual Records on Appeals from "Premature" Dispositions.

Whether appeals are interlocutory (e.g., mandamus actions challenging the refusal to grant a "no evidence" summary judgment under the "must grant" theory) or from final judgments granting "no-evidence" summary judgments, the appellate courts will be increasing faced with incomplete records. Clearly, an unstated purpose of "no-evidence" summary judgments is to pretermit full scale trials. Yet, in the final analysis, it is only on trial before the ultimate fact-finder that complete records can be duly made for the benefit of appeal. It is only at trial that all admissible evidence is subjected to adversarial examination and critical review by the fact-finder, which can engage in common sense and general experience analysis of the proof, indulge in permissible inferences especially with regards to circumstantial evidence, and judge witnesses’ credibility and their answers unfettered (or unaided) by lawyer coaching. Crazy-quilt discovery records lack the completeness of trial records. Summary judgment motions are not designed to allow the trial court to weigh truthfulness, credibility or accurateness.

While the Court has left intact paragraph (g) of Rule 166a which arguably allows the trial court some discretion to grant a continuance for further discovery, the ambiguity of the "adequate time for discovery" language coupled with the "must grant" requirement of paragraph (i) (all of which is not "codified" in the federal rules) seriously impedes the continuance safeguard which is present in Fed. R. Civ. P. 56(f). See, Wichita Falls Office Assocs. v. Banc One Corp., 978 F.2d 915, 919-20 (5th Cir. 1992) (stating that "[t]he purpose of Rule 56(f) is to provide non-movants with a much needed tool to keep open the doors of discovery in order to adequately conduct a summary judgment motion"), cert. denied, 113 S.Ct. 2340 (1993).

Another critical distinction is that "[a]lthough nothing in Fed. R. Civ. P. 56, governing summary judgment, technically requires a statement of reasons by a trial judge for granting a motion for summary judgment, we have many times emphasized the importance of a detailed discussion by the trial judge." McIncrow v. Harris County, 878 F. 2d 835, 836 (5th Cir. 1989). In all but the easiest, most straight-forward case, such trial court memoranda are "not only helpful, but essential." Laird v. Integrated Resources, Inc., 878 F.2d 826, 829 n.3 (5th Cir. 1990).

The completeness and closure to appellate records which detailed written opinions, handed down in conjunction with federal "no evidence" summary judgments, provide will be absent if the Court adopts the Celotex rule as proposed. Unlike federal district courts, Texas trial courts rarely, if ever, issue detailed memorandum opinions in conjunction with orders to assist appellate courts. Texas trial dockets are simply too swamped, and trial judges simply under-assisted by court staff (such as law clerks), to permit issuance of federal court-style opinions.

C. Citizens’ Rights in Jeopardy.

The Celotex "no evidence" summary judgment language which the Court is engrafting upon Rule 166a is not expressly found in Fed. R. Civ. P. 56. Codification of Celotex at the state level is being done out of context of both the Federal Rules of Civil Procedure and case law interpreting and applying Celotex "no evidence" summary judgment procedures. This sudden transposition of Texas summary judgment practice jeopardizes the rights of litigants in several important respects.

1. Diminution of the Extensive Right to Jury Trials Guaranteed by Texas Constitution (Which Exceed Rights Under the Federal Constitution).

However unintended, the Rule 166a revisions are based upon an unsupportable premise that all lawsuits are presumptively bad, and thus unmeritorious. It goes without saying that the proposed revisions to Rule 166a are a progeny of the "tort reform" sentiment sweeping this state. But it should equally go without much debate that the institution of a "no evidence" summary judgment tool represents an unprecedented incursion into the jury’s domain as ultimate gatekeepers and constitutional fact-finders.

In Casso v. Brand, supra, you expressly recognized that current Texas summary judgment practice must give deference to the broad right to jury trials guaranteed by the Texas Constitution. I reiterate the quote from above:

[W]e believe our own procedure eliminates patently unmeritorious cases while giving due regard for the right to a jury determination of disputed fact questions. Tex. Const. art. I, § 15, art. V, § 10.

Id. at 556-57. I respectfully call upon the Court to refrain from instituting a new form of motion practice that values docket control over the right to trial by jury. Will judges, intent on controlling their dockets, use summary judgment as a "catch penny contrivance" to take unwary litigants into its toils and deprive them of a trial? See, Schwarzer, "Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact," 99 F.R.D. 465, 465 (1984).

2. Clogging Courts With A New Procedural "Tool" Will Delay Justice.

As I observed above, paragraph (i) of Rule 166a as proposed will create a new "tool" which lawyers will routinely use with fervor, and impose upon the trial courts new, time-consuming and burdensome gatekeeping duties. It will add "yet another complexity," Edmundson v. Leedville Concrete Co., 500 U.S. 614, 645, 111 S.Ct. 2077, 2096 (1991)(Scalia, J. dissenting)(race-based juror challenges), to the exploding pretrial litigation docket. This new form of motion practice will further clog the court system to the eventual delay of justice.

3. The New Dispositive "Tool" Will Increase Litigation Costs and Require More Expensive Discovery.

The amendments advanced by the Court’s April 16 Order are antithetical to the goals publicly stated by the Court for revising discovery rules, viz., to save litigants, plaintiff and defendant, from spending unnecessary time and expense in the judicial system. To date, there has been no empirical (or even anecdotal) evidence that the Celotex approach to "no evidence" summary judgments has saved litigants and the judicial system time and money through the noble aim of eliminating particularly frivolous lawsuits. To the contrary, I predict that the introduction of such motion practice in Texas will increase the overall cost of litigation.

As just one example, I refer to Justice White’s concurrence in Celotex, where he explained, under the present federal "no evidence" summary judgment practice:

A plaintiff need not initiate any discovery or reveal his witnesses or evidence unless required to do so under the discovery Rules or by court order. Of course, he must respond if required to do so; but he need not also depose his witnesses or obtain their affidavits to defeat a summary judgment motion asserting only that he has failed to produce any support for his case. It is the defendant’s task to negate, if he can, the claimed basis for the suit.

Celotex Corp. v. Catrett, 477 U.S. at 328, 106 S.Ct. at 2555 (White, J., concurring) (emphasis added). This observation would not apply under the Texas proposal which codifies to some extent the Celotex holding.

Under the revisions to Rule 166a, the movant need not proffer any summary judgment proof to support its contention that the non-movant cannot adduce admissible evidence as to one or more elements of a claim or defense. Despite the commentary’s statement that a plaintiff will not be required to marshal its evidence, the natural result will be that the plaintiff must, in an abundance of caution, bundle its entire case and deposit it on the trial bench soon before trial. Affidavits which would suffice under Celotex (as observed by Justice White) may be insufficient under the ambiguous wording of paragraph (i) of the revision to Rule 166a. Rather, non-movants will be required to depose their own witnesses, or at a minimum, engage in lengthy trial deposition cross-examinations at depositions noticed by the opponent. Instead of getting ready for trial, lawyers will be engaging in last-minute "no evidence" summary judgment skirmishes. Trial judges, instead of trying cases, will be presiding over an increased motion docket, all the while faced with reading the new volumes of summary judgment pleadings.

The likelihood increases exponentially that every "person with knowledge of relevant facts" identified in discovery, and every witness identified in pretrial orders, will of necessity be deposed at full "trial depositions," even in minor cases where cost containment considerations would not otherwise warrant depositions of persons who obviously will be called live at trial. The new rule revisions evidence an unfortunate conversion of our profession from trial lawyers to pretrial litigators. Discovery becomes not a search for truth and "putting our cards on the table," but an expensive, drawn-out substitute for trial before a tribunal of judge and jury.

Another example of which you may have already become aware may be found in Issacharoff & Lowenstein, "Second Thoughts About Summary Judgments," 100 Yale L.J. 73 (Oct. 1990), where it is noted that the "no evidence" Celotex motion for summary judgment practice has led to a decrease in settlements because of the disproportionate share of the overall expense of discovery and litigation to claimants. I respectfully suggest that this decrease in settlements goes beyond rhetorical allegations that settlements are "forced" like blackmail upon defendants to avoid expensive litigation under the present system, as Texans for Lawsuit Reform are fond of saying. Rather, there is a "point of no return" which claimants reach with regards to litigation costs that discourages pre-trial settlements (which often forego prejudgment interest and other "bumps").

4. The Lack of Safeguards Will Encourage Secreting of Evidence During Discovery Process.

As a practical matter, every party now objects to every meaningful discovery request on the basis that it is putatively over broad and a "fishing expedition." For the most part, these and similar objections are used to delay production of discoverable evidence, notwithstanding this Court’s opinion in Service Lloyds v. Harbison, 826 S.W.2d 930, 931 (Tex. 1991). Pretrial evasion will intensify, particularly before the filing of "no evidence" summary judgment motions. The Court’s removal of the Advisory Committee’s safeguards (such as sanctions and full-disclosure certificates) signal, however unintended, an encouragement to discovery evasion by parties most likely to have relevant evidence.

CONCLUSION

Aside from "McDonald’s coffee-cup" anecdotes, few lawyers or jurists can summarily define what a "frivolous lawsuit" truly is. Attempts to do so risk running dangerously afoul of the centuries-old domain of juries. While there is strong public and judicial sentiment to stem perceived "frivolous lawsuits," the present attempt to re-make Rule 166a into a new tool is counter-productive, and is counter-intuitive to the "open door" provisions of the Texas Constitution (however politically distasteful that provision might be). Adopting federal summary judgment practice without the context of other federal and judicial rules and restraints will trample Texans’ rights.

In conclusion, I respectfully urge the Court to reconsider approval of the proposed changes to Rule 166a for the reasons set forth in your studied opinion in Casso v. Brand, and above. I appreciate your consideration of my comments and observations, and I hope that they are received in the spirit intended.

I am providing the Clerk of the Supreme Court with 12 copies of this letter, as well as 21 copies to Mr. Luther Soules for distribution to members of the Supreme Court Advisory Committee.

Respectfully submitted,

Joseph D. Jamail
(State Bar No. 10536000)
Enclosures (12 copies)
xc: Luther Soules (Supreme Court Advisory Committee)
Soules & Wallace
15th Floor, Frost Bank Tower
100 West Houston Street
San Antonio, Texas 78205-1457