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Arthur Kirkland was right, if often misquoted. The whole [dang] court is out of order.

If you don't remember off the top of your head, Kirkland was the public defender Al Pacino played in … And Justice for All. The case that prompted his memorable indictment of the judicial system and its highest-ranking officials involved a torn-from-the headlines sexual assault by a too-protected judge and the misapplication of rules of evidence.

With a shift in time to the present day, this 1979 movie scene would not be out of place or untrue if it occurred in many courtrooms in Texas (TX).

I came to this realization when reading this description of a recent truck accident and brain injury civil lawsuit in the Lone Star State:

Consider the case of Michelle Gaines, who in June 2006 was a popular Palestine teenager with a bright future when an 18-wheeler hauling an oil rig smashed into her car, causing severe brain damage. A Tyler jury ordered the driver who caused the wreck and a businessman involved with the oil rig to pay her $8 million – money Gaines' family desperately needs to provide for her rehabilitation and care for the remainder of her life.

A Tyler appeals court overturned the jury's decision, claiming there was no evidence to support the verdict, and the Texas Supreme Court recently declined to consider Gaines' appeal.

And yet trial testimony showed that the men had destroyed crucial evidence demonstrating joint ownership of the rig and that the driver had been bribed to alter his story. Gaines' attorneys say the court's decision violates precedent that evidence should be construed in a light favorable to a jury's verdict.

I'm quoting this summary from a Houston Chronicle editorial written by Patricia Kilday Hart in order to give the Gaines family a tiny bit of the justice appellate courts in Texas refuse to provide.

Hart notes that as egregious as the decisions were to disregard proof of evidence and witness tampering are, the real injustice lies in state courts' denial of basic constitutional rights to the plaintiffs. She cites several other instance in which conservative, elected appeals court judges and state Supreme Court justices ignored any and all evidence in order to rule in favor of corporate defenders. Hart calls those jurists "activist judges." She is right.

The Seventh Amendment is an important safeguard America’s founding fathers included in the Bill of Rights to the U.S. Constitution. It exists explicitly to keep wealthy individuals and companies from denying common men and women their rights to securing justice and compensation through the courts. Our country’s founders had lived under the rule of the monarchs and the judges they appointed; as a result, they enshrined a U.S. citizen’s right to have civil disputes decided by juries of their peers.

Today, corporations pay royal sums to support the election and appointment of judges who embrace their philosophical views that corporate profits are good for society, strict regulations are barriers to success, and the civil justice system should not produce results or decisions that restrict corporations’ ability to make ever-greater amounts of money.

It is, of course possible and necessary to balance protection of people’s safety with enabling corporate profitability. It is difficult to see courts and judges in Texas even trying to strike that balance. What we are seeing, time and again, is that state’s highest court setting aside jury verdicts that impact companies’ bottom lines.

There is no other way to view what the Texas Supreme Court justice are doing when they consistently declare civil jury decisions wrong as anything other than ignoring precedent and violating plaintiffs’ Seventh Amendment rights.

I’m writing about the ongoing injustice in Texas because I see similar trends in Virginia (VA) and North Carolina (NC), where my personal injury, wrongful death and medical malpractice attorney colleagues and I do most of our work. Even though Virginia recently raised the noneconomic damage (i.e., pain and suffering) cap on malpractice awards, the very existence of any cap is unconstitutional. I won’t rehash that argument here, but I will note that the Missouri (MO) Supreme Court recently ruled that its state’s malpractice cap could not stand because it denied plaintiffs’ rights.

I urge all plaintiffs’ attorneys across the country to take every opportunity to remind lawmakers and appellate judges of the rights guaranteed by the Seventh Amendment. Maybe if they hear the truth enough times, they will act accordingly.

As Hart noted in her column, even tea party conservatives are becoming uncomfortable with courts that hold the Constitution itself in contempt. “Former Harris County District Judge John Devine, who recently defeated Texas Supreme Court Justice David Medina with tea party support, has criticized the court's willingness to overturn jury verdicts,” she wrote.

When a far-right politician and I agree something wrong is happening with activist judges usurping the role of juries, it means there is smoke and fire.


About the Editors: The Shapiro, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.


  1. Gravatar for Carrie Pfleeger

    Thank you for this support/reference to Michelle's case. I know she appreciates it!!!

  2. Gravatar for George Bortz

    You are right on about texas. The state neglects it's citizens in favor of corporate greed. It is the seedbed of guardianship abuse by probate courts and exploitation of the elderly and disabled. Worldwide! I wish I'd know before I was attacked by the probate court, and my entire estate was stolen. I would have lived somewhere else.

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