So you are a party to a new civil litigation case, which means you have either sued someone or just been sued.  Your lawyer sends you an email that the Court has just set your case for a non-jury trial for a date in the future.  In the same email, your lawyer asks if you want to pay the jury fee, which usually is nominal, and have the matter set for jury trial, or whether you prefer to have the case remain as a non-jury trial.  It is, after all, the client’s decision on whether to have a jury trial or a non-jury trial.  What do you do?

Both types of trials – jury and non-jury – have advantages and disadvantages.  A non-jury trial, also known as a bench trial or a trial before the Judge, generally is more informal than a jury trial,  shorter than a jury trial, and less expensive to prepare for and conduct.   For example, in a non-jury trial, the lawyers do not have to draft a jury charge (the questions the jury will answer, such as who was responsible for the accident, and the percentage of responsibility each party), or have a “charge conference” with the Judge where each side argues that its proposed jury questions should be included in the jury charge.  The charge conference is conducted outside of the presence of the jury, and can last from several hours to an entire day or more, depending on the case.  After the jury charge is finalized, the Judge will read the jury charge to the jury, the lawyers will make closing arguments, and then the jury will retire to the jury room to deliberate.

None of these time-consuming jury charge issues are present in a bench trial.  However, one of the disadvantages of a non-jury trial is that one person – the Judge – hears all the evidence, weighs the credibility of the witnesses, decides which facts are true and not true, rules on evidentiary issues and objections, applies the law to the facts, decides who should win, and the amount of damages awarded, if any.  In a jury trial, the jury hears the evidence, weighs the credibility of the witnesses, decides which facts are true and which are not, decides who should win, and whether any damages should be awarded.  In a jury trial, the Judge’s role is to preside over the trial, rule on evidentiary objections, and apply the law to the facts after the jury has answered the questions on a jury charge – but in most cases, the Judge does get to decide by his-or-herself which party should win.

There are lots of other issues to be considered in deciding whether to have a jury trial or a non-jury trial.  Additionally, a litigant does not always have a choice regarding which type of trial.  We will discuss the additional factors in upcoming posts in this series.


The Texas Supreme Court has rejected the theory of defamation by compelled self-publication.  Say what? you ask?  Compelled self-publication occurs most often in the employment context, where a terminated employee is compelled to inform subsequent potential employers why the employee was terminated from the employee’s last job.  As the theory goes, if an employer gives untrue defamatory reasons for terminating an employee, it should recognize that such conduct creates an unreasonable risk that the defamatory matter will be communicated to prospective employers.  By rejecting the theory, the Texas Supreme Court was concerned about creating an actionable tort any time an employee disagrees with the employer’s reason for firing the employee.   By refusing to recognize a tort based on compelled self-publication, the Texas Supreme Court reemphasized Texas’s long-standing tradition of employment at-will.

I have been writing on this blog about how Dallas County juries have shifted over the years from pro-defense to pro-plaintiff, or at least to a point where most prospective jurors in Dallas County don’t necessarily consider lawsuits a bad thing.  In the era of tort reform, this attitude among prospective jurors in Dallas County is very interesting.  My previous posts are here, here, and here.

But why do we care about juries anyway?  There are the constitutional reasons, and the traditions in our legal system that are tied inextricably to the jury trial process.  There are the defenders of the jury trial as the last line of defense against oppression.  And these are good reasons to care about the juries.

But my focus on why juries matter is more practical.  In Texas, juries matter because once a jury renders a verdict it is extraordinarily rare for the jury’s verdict to be overturned.  It happens, but not very often.  This is because legal and factual sufficiency challenges to a jury verdict are judged against very high standards.

The Dallas Court of Appeals just released a decision in Adams v. Bellas affirming a jury verdict where the court went through the standards for legal and factual sufficiency challenges to a jury verdict.

To overturn a jury verdict on legal sufficiency grounds, the court must first credit any evidence favoring the jury verdict if reasonable jurors could disregard contrary evidence if reasonable jurors could not.  If more than a scintilla of evidence supports the jury’s verdict, then the court has to uphold the verdict.  There is no weighing of the evidence on one side or the other.  The court simply looks at whether there is some evidence that would “enable reasonable and fair-minded people to reach the verdict under review.”

To overturn a jury verdict on factual sufficiency grounds, the jury’s verdict must be against the great weigh and preponderance of the evidence.  This means that the jury verdict will be set aside “only if it is so contrary to the overwhelming weigh of the evidence as to be clearly wrong and manifestly unjust.”

Taken together, the high standards for legal and factual sufficiency protect the philosophical value that we place on the role of the jury in our legal system. We have assigned the jury the role of weighing the evidence and resolving any conflicts or inconsistencies in the evidence.  We then shield the jury’s verdict from second-guessing by creating high standards for overturning the jury’s verdict.

So why do juries matter?  Because under our system, once the jury delivers its verdict it is procedurally and practically very difficult to overturn the verdict.  Oh, and also for all those constitutional reasons and tightly-held traditions long associated with our legal system.

Late last month a federal judge in Texas issued a nationwide injunction against implementation of the Obama Administration’s new overtime rules under the Fair Labor Standards Act.  The new rules were supposed to go into effect on December 1, 2016, and would have resulted in substantially more employees becoming eligible for overtime under the FLSA.  Recently the United States Court of Appeals for the Fifth Circuit declined to interfere with the trial court’s injunction.

I previously wrote about the new rules here.  The new rules would have raised the salary threshold for the professional, administrative, and executive exemptions from $455 per week to $913 per week ($47,476 annually).  The new threshold would have been indexed so that it likely would have gone up every three years.  In my prior post, I speculated that the Texas federal judge would not enter an injunction.  I got that part wrong.

For six months I have been working with clients to evaluate how best to approach the new overtime rules.  The problem was that some positions at some workplaces have been entrenched for years. Some decided to redefine job positions with new responsibilities.  Others decided to accept the new rules and prepare for paying employees by the hour who previously were paid a weekly salary.  Some were unsure of how to proceed.  Even with the injunction in place, there is uncertainty about what will happen next.

The injunction does not invalidate the Obama Administration’s overtime rules.  It merely puts a hold on the implementation of the new overtime rules until the court reaches a final decision on the legality of the new rules.  The court has requested briefing on the issue and could render a final decision as early as January 2017.  If the court concludes that the Obama Administration acted appropriately in formulating the new overtime rules, then the effective date of the new overtime rules could roll back to December 1, 2016.  Yikes.  This would result in reclassification of employees as exempt or nonexempt, and make the classification retroactive to December 1, 2016.  Employees reclassified as nonexempt could be entitled to overtime dating back to December 1, 2016. Double yikes.

And also in January, the new administration takes over and Congress is back in session.  With Republicans occupying the White House and having the majority the House of Representatives and the Senate, Congress or the new administration could step in to make changes to the new overtime rules.  Given the rhetoric of the election season, I don’t know where the new overtime rules are on the Republicans’ list of things to undo from Obama’s Administration.

So we will watch and see if the Texas federal judge issues a final ruling. Or whether the new administration and Congress steps in to act. Stay tuned…

Previously I posted about Dallas County juries here and hereLast week a federal jury ordered Johnson & Johnson to pay $1.041 billion to six plaintiffs who received defectively-designed hip implants.   Of the total verdict, $32 million was for compensatory damages, and the rest was for punitive damages. The federal jury that ordered Johnson & Johnson to pay a billion dollars was made up of jurors from the Northern District of Texas, which includes more than just Dallas County.  But Dallas County is the largest county in the Northern District of Texas, and I believe that the jury’s verdict is further proof that Dallas County jurors believe that civil lawsuits are an appropriate way to monitor and police large corporations.

When I first started practicing law in Dallas in the early 1990s, the prevailing sense around the campfire was that Dallas County was a pro-defense venue.  Over the years there have been some huge verdicts out of Dallas County in business disputes and commercial matters, but it seemed to most observers that personal injury plaintiffs did not fair as well in Dallas County.  In my earlier posts I gave my two-cent opinion that Dallas County was no longer pro-defense, or even neutral, because of the increasing frequency of eye-popping verdicts in personal injury cases.  In September, Bloom Strategic Consulting published a report of a survey that it conducted of 1000 prospective Dallas County jurors.  I wrote about the survey’s results in my first post about Dallas County jurors, and I believe that this report should be required reading for any lawyer with a case pending in Dallas County.  Based on what I have been seeing lately, I think that Dallas County is pro-plaintiff.

For Johnson & Johnson, I expect that the federal judge will reduce the punitive damages award to confirm with Texas’ cap on punitive damages, especially considering that the award of compensatory damages ($32 million) is approximately three percent of the overall verdict.  However, the fact that Johnson & Johnson may never have to pay a billion dollars to the plaintiffs from last week’s verdict should not be confused with the message that the jury seemed to send to Johnson & Johnson, and what that message says about Dallas County juries.

48Copyright: nexusplexus / 123RF Stock Photo245026 - dollar banknote ship sinking in clear blue water
48Copyright: nexusplexus / 123RF Stock Photo245026

Loose lips sink ships!

The Texas Fifth Court of Appeals at Dallas recently held that a settlement party’s loose talk about settlement terms violated the confidentiality provision of a settlement agreement and excused the other party from making the remaining settlement payments. Opinion

The case was recently featured in the Texas Lawyer. See Texas Lawyer

In ruling, the Court accepted the argument that the settlement agreement recited that the confidentiality provision was a material term of the contract.

My partner, Brett Myers has written a recent blog post featuring the importance to the Court of the recitation of materiality of the confidentiality term in the settlement agreement in this case.  Blog Post

But, the larger point? In Texas-contracts mean what they say.

If you sign a settlement agreement that states that its terms are confidential-keep your mouth shut!

Copyright: vladimirfloyd / 123RF Stock Photogesture
Copyright: vladimirfloyd / 123RF Stock Photogesture

While perhaps fun for kids, unusually heavy rain can cause problems for commercial property landlords, including flooding, mudslides, and mud buildup.

Copyright: chepko / 123RF Stock Photo
Copyright: chepko / 123RF Stock Photo

According to, October ties with April for the second wettest month in Dallas (not surprisingly, May is first). October averages 3.5 inches of rain for the month, which means that Dallas usually gets more rain in October than Seattle, Washington (3.27 inches according to

Under Texas law, premises operators owe a duty to keep their premises safe for business invitees against conditions on the property that pose an unreasonable risk of harm. This duty owed by premises operators, however, does not render the operator an insurer of the invitee’s safety.  According to the Texas Supreme Court, ordinary mud or dirt in its natural state can and often does form a condition posing a risk of harm, but not an “unreasonable” risk of harm. In other words, mud that accumulates naturally on an outdoor concrete slab, without the assistance or involvement of unnatural contact, is nothing more than dirt in its natural state and is not a condition posing an unreasonable risk of harm.

Copyright: Cole123RF / 123RF Stock Photo
Copyright: Cole123RF / 123RF Stock Photo

Plain dirt which ordinarily becomes soft and muddy when wet, or mud that accumulates due to rain and remains in its natural state, are not dangerous conditions of property for which a landlord may be liable.

One word of caution, however: if a premises operator undertakes to remove the mud, it must do so reasonably, and take care to avoid creating a dangerous condition during the removal.

According to Bloom Strategic Consulting, Dallas County juries distrust corporate America, believe that litigation is an effective way to police corporate abuse, and in general agree that juries award the right amount of damages.

Yesterday I came across this report published by Bloom Strategic Consulting, which I found fascinating.   Bloom asked approximately 1,000 prospective Dallas County jurors about their perspectives on litigation.  The results of the project showed that overall 70% the prospective jurors agreed that lawsuits are a good way to keep companies honest.  Interestingly, 80% of the respondents between the ages of 18 and 30 agreed that lawsuits are a good way to keep companies honest.

Among African Americans, 76% of the respondents agreed that company policies are not applied equally among all employees.

Three out of 4 respondents agreed that too many people are using lawyers to get away with wrongful conduct.

Among all respondents, only 34% agreed that people who file lawsuits against companies are just trying to get some money that they do not deserve.   Only 16% of the African American respondents agreed that people who file lawsuits are trying to get money that they do not deserve.  Consistent with these responses, 56% of the respondents felt that the monetary damages awarded by juries was “about right.”  Bloom further broke down the respondents to the damages question by sex and age.  Males felt that juries got it “about right” 49% of the time, while females trusted that juries awarded the right damages 62% of the time.  The respondents over age 65 felt that juries got the damages right only 35% of the time.

I love statistics like the ones reported in the Bloom report.  To me, the most important take away is that prospective Dallas County jurors in general tend to be more distrustful of corporate America than I might have expected.  Notwithstanding tort reform, Dallas County jurors believe that juries award the right amount of damages.  According to Bloom’s results, these trends are tied to age and sex, with younger jurors and female jurors believing that lawsuits are an effective way to reign in corporate America.




I look this up every time it comes up.  For once and for all, the beneficiaries under Texas’s Wrongful Death Statute are the surviving spouse, children, and parents of the deceased.    This includes adopted children and common law spouses, but does not include same-sex spouses (yet).  The class of plaintiffs also includes so-called “illegitimate” biological children.

Brothers, sisters, grandparents, grandchildren, aunts, uncles, nieces, nephews, and cousins do not have standing to bring a wrongful death action.

Also, the estate of the deceased does not have standing to bring a wrongful death claim.  The estate’s claims are covered by Texas’ Survival Statute.

The wrongful death plaintiffs can sue to recover the damages that they have incurred as a result of the death of the deceased.  These damages include pecuniary losses, mental anguish, loss of companionship, and loss of inheritance.  Surviving spouses and children can recover exemplary damages, but parents cannot recover exemplary damages in a wrongful death action.