FROM THE EDITOR

By RYAN J. MAIERSON Baker Botts L.L.P.

Keeping Up

As lawyers, we must keep pace in an ever-changing legal environment. We constantly have to hone our practice skills and increase our knowledge of the corpus of the law while maintaining our workloads, developing client relationships, managing the myriad administrative tasks of our practices, and providing service to each other and to our community.
The Houston Lawyer, in my view, has two goals: to help us stay current in our practices and to provide us with a window into the state of the profession. In this issue, we touch upon both of those goals. First, articles from practitioners Georgia Akers, Shawn Stephens, and Victor Thomas offer important insights into four diverse substantive and procedural areas of the law; our “Keeping Up With” column continues to update us on recent court decisions of interest; and our “Media Reviews” describe new publications that may help us in our practice. Columns such as “Off the Record” tell us more about who we are and what we are doing, as a group and as individuals.
For the remainder of this bar year, we strive to fulfill The Houston Lawyer’s dual purposes by offering four special issues, two related to substantive areas of the law and two devoted to the lawyers of the Houston Bar Association and the practice of law in Houston. Our substantive issues will focus on recent developments in the civil rights arena and in insurance law. Our practice-oriented issues will be dedicated to the 40th anniversary of this magazine and to the many Houston lawyers who give generously of their time and talent in service to others.
I hope that you, like me, will learn something new—either about the law or about ourselves
as lawyers—with each issue of The Houston Lawyer.



Letters to the Editor
Taking Exception to “Tort Reform”


Editor:
I was very disappointed when I read [“Texas Legislature Hammers Out Massive Tort Reform Bill,” Vol. 41., Number 1, July-August 2003] to discover that The Houston Lawyer would take a position on the tort reform issue. Specifically, the authors, one of whom is an associate editor of The Houston Lawyer, state on page 13 that the new proportionate liability section “…should lead to much fairer apportionment of fault, and thus, fewer instances of imposing joint and several liability on deep-pocketed defendants with little culpability.” Such a statement demonstrates a lack of appreciation for the tort system as it now exists.
It is not surprising that the authors take this view as both work for defense firms. I would suggest that in the future when The Houston Lawyer decides to publish such a synopsis, it do so without taking sides on the issue. Remember, this is The Houston Lawyer, not The Defense Law Journal.

John P. Venzke
The Venzke Law Firm, L.L.P.



Editor:
… I read with particular interest the article entitled “Texas Legislature Hammers Out Massive Tort Reform Bill.” As an active participant in the Houston Bar Association, I am aware of the leadership’s recent emphasis to include all segments of the bar — including the plaintiff’s bar. There is the reputation that the HBA is a big firm, defense lawyer association whose interest is to serve the big firms and their clients. I have personal knowledge that this belief is unfounded, but the reputation exists nonetheless. The bar is doing its best to dispel the reputation.
In that regard, the “tort reform” article contained a statement under the “Proportionate Liability” section of the article that caused me (as a plaintiff’s lawyer) concern. In discussing legislative changes, the authors indicate the changes “should lead to much fairer apportionment of fault and, thus, fewer instances of imposing joint and several liability on the deep-pocketed defendants with little culpability.” Besides being a misstatement of the law and facts, this type of statement deepens the chasm that the bar leadership is aggressively trying to close.
Legally, under the old law, “defendants with little culpability” are not subject to joint and several liability unless the defendants were found responsible under a toxic tort liability set of facts. Section 33.013 allows joint and several liability only as to a defendant whose percentage of responsibility is greater than 50 percent. By definition, that would not be one with “little culpability.” The authors have no basis for making this inaccurate statement.
Although this one sentence does not ruin the entire article, it does not represent a fair assessment of what HB4 was all about. HB4 was pushed through by business and insurance special interest groups. It was not and is not something that ordinary Texans requested, much less demanded.

Randall O. Sorrels
Abraham Watkins Nichols Sorrels Matthews & Friend



The authors respond:
Distilled to its essence, the proportionate responsibility section of House Bill 4 levels the playing field between defendants who are sued and potentially culpable entities who are not sued.  Under previous practice, the jury could never determine the culpability of a bankrupt entity or an employer with workers’ compensation insurance, even if these non-parties were largely or entirely at fault for the plaintiff’s injury.  See Tex. Civ. Prac. & Rem. Code § 33.011(6)(B) (former section).  As such, “deep-pocketed defendants with little culpability” - as the only parties sued and, thus, listed on the jury charge - would be found jointly and severally liable.
Under the new legislation, the jury will determine the respective culpability of each named party and any “designated” non-parties.  This includes a bankrupt company, a workers’ comp employer, and any other potentially culpable entity except a seller eligible for indemnity under TCPRC section 82.002.  As such, the new scheme eliminates the situation in which only solvent defendants are sued and other potentially culpable entities are excluded from the jury charge because of bankruptcy, the workers’ compensation bar, or because they are otherwise absent

The Houston Lawyer welcomes letters to the editor on issues discussed within the publication. Letters must include the author’s name and letters may be edited to fit space requirements. Send letters to: Editor in Chief, The Houston Lawyer, 1001 Fannin, Suite 1300, Houston, TX 77002.

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