Pope, Jack

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St. Mary's Law Journal Manuscript 1794 Reasons for Case Reversal in Texas: A Preface. Jack Pope Follow this and additional works at: https://commons.stmarytx.edu/thestmaryslawjournal  Part of the State and Local Government Law Commons ST. MARY'S LAW JOURNALVOLUME 16 1985 No. 2ARTICLESREASONS FOR CASE REVERSAL IN TEXAS: A PREFACEJACK POPE*Equal justice under the law is the noble and unique promise thatthis nation made to the world. In my judgment, we are doing anacceptable job of keeping that promise. We are delivering more jus-tice to more people than has been achieved at any other time orplace in history. But for the most part, the public and our own pro-fession make negative and unstudied evaluations about the qualityof justice and the public's access to the courts. Recently, parts of thejustice system have been subjected to empirical research, and thesystem received better scores than expected.The School of Law of the University of Wisconsin published areport in March 1983,1 following a thorough empirical study of ourjustice system. I found the lengthy two-volume report bearing thetitle, Civil Litigation Research Project, as tedious and dull as it is* Retired Chief Justice, Supreme Court of Texas; B.A., Abilene Christian University;J.D., The University of Texas.1. D. TRUBEK, J. GROSSMAN, W. FELSTINER, H. KRITZER & A. SARAT, CIVIL LITIGA-TION RESEARCH PROJECT FINAL REPORT (Mar. 1983) (University of Wisconsin LawSchool).1Pope: Reasons for Case Reversal in Texas: A Preface.Published by Digital Commons at St. Mary's University,ST MARY'S LAW JOURNALcomplete and scholarly. The researchers' study of the supportingdata led to their surprisingly positive conclusions that our justicesystem is far better than what the unfavorable reports to which wehave become accustomed have led us to believe.Professor Marc Galanter, using a similar innovative researchmethod, published his study in October 1983, under the title thatcarries his message: Reading the Landscape of Disputes.- What WeKnow and Don't Know (And Think We Know) About Our AllegedlyContentious and Litigious Society.2 His conclusions, like those of theearlier Wisconsin study, show that we have been basing our evalua-tions of the justice system on popular myths, folklore, and legends.We are not, according to these studies, more litigious than we usedto be,3 nor are we more prone to engage in lawsuits than are theEnglish, Australians, and people of other common law countries.'The evidence shows that in almost all cases studied, both the plain-tiff and defendant regarded the court experience as financially suc-cessful.' Only twelve percent of the cases that are filed involve morethan $50,000,6 and half of the cases that reach the trial stage requireno discovery or pre-trial proceedings. 7 Ninety-eight percent of allcases filed and disposed of are handled by state courts rather thanfederal courts." These are samplings of many things we have notknown, because we have not done the research to unearth the truth.The National Center for State Courts published its report, TheBusiness of State Trial Courts, during 1983. 9 Chapter three is enti-tled "Myths About Court Business." Careful scholarship and truedata uproot our most cherished preconceptions about our legal ma-chinery. There is, for example, the public myth that criminal casesmake up the bulk of court business.' 0 The fact is that only fourteenpercent of the cases (not counting traffic and parking) in all trial2. 31 UCLA L. REV. 4 (1983).3. See id at 38.4. See id. at 55.5. See D. TRUBEK, J. GROSSMAN, W. FELSTINER, H. KRITZER & A. SARAT, CIVIL LITI-GATION RESEARCH PROJECT FINAL REPORT 15, 53-78 (Mar. 1983) (University of WisconsinLaw School).6. See id at 22.7. See id at 23.8. See V. FLANGO, R. ROPER & M. ELSNER, THE BUSINESS OF STATE TRIAL COURTS 5(1983) (National Center for State Courts).9. See id at 5.10. See id. at 24-28.[Vol. 16:2952Submission to St. Mary's Law Journalhttps://commons.stmarytx.edu/thestmaryslawjournalCASE REVERSAL: A PREFA CEcourts are criminal cases."I In Texas, only ten percent are criminalcases, and only seven percent of all filings are felony cases.' 2 Thereis the other popular myth that tort cases are flooding the courts.' 3Only ten percent of our civil filings concern personal injury.' 4 TheNational Center discovered that only four percent of our civil trialsare tried before a jury.' 5 In Texas, only two percent of our civiltrials are jury trials.'6All of us delight in discussing, and the media loves to report, therare megacase that is so big it does not fit any system, or the horrorstory of the case that went awry. As these recent scientific studiesdemonstrate, we unjustly make the greatest justice system in theworld into our national devil. We do it by what Professor Galantercalls a "lack of scholarly development," a "pattern of repetition andcross-citation," and "the reappearance of the same atrocity sto-ries."' 7 Our false views about the judicial machinery, he concludes,reflect "the weakness of contemporary scholarship."'"The fact that three scholarly studies produced in 1983 reach simi-lar positive conclusions about our American system of justice raisesserious questions about our touted legal investigative methods. Per-haps the method employed in the new scholarship is as significant asthe lessons the studies produced. Why are we not asking penetrat-ing questions and pursuing research about the system itself? Goodinformation about the administration of justice in our courts wouldreveal the precise points at which delay and waste occur in the sys-tem. How long must a case be on the docket to be a part of a back-log? What is a backlog? What is the impact of legislation uponfilings? How many courts does it take to handle deceptive tradepractice cases, a class of cases that did not exist prior to 1977? Howmany new rights, remedies, and actions did the 68th Texas Legisla-ture create by its enactment of 7020 pages of new laws? Why is itII. See id at 24-28.12. See 55 TEX. JUD. COUNCIL ANN. REP. 89-91 (1984).13. See V. FLANGO, R. ROPER & M. ELSNER, THE BUSINESS OF STATE TRIAL COURTS30-35 (1983) (National Center for State Courts).14. See id at 31-32.15. See id at 53.16. See 55 TEX. JUD. COUNCIL ANN. REP. 89-91 (1984).17. See Galanter, Reading the Landscape of Disputes." What We Know and Don't Know(And Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L.REV. 4, 64 (1983).18. See id at 5.198513Pope: Reasons for Case Reversal in Texas: A Preface.Published by Digital Commons at St. Mary's University,ST MAR Y'S LAW JOURNALthat the law is the onily significant discipline that is open-ended as toperformance date? How long should it take to complete a misde-meanor, felony, juvenile, divorce, collection, personal injury, or nu-clear power case? Why do we not have realistic time standards forthe disposition of cases in trial and appellate courts? Why is it thatcourts in Kansas, New Jersey, Arizona, Ohio, North Dakota, and inmany other states are able to clear their dockets every year?' 9 Whatare they doing that is different from what we do or fail to do inTexas? What does it cost Bexar, Dallas, or Harris County everyyear to retry criminal cases that are reversed? Why are casesreversed?The legal establishment is mired in an intellectual bog. We min-utely dissect recent appellate opinions in notes, comments, and arti-cles. Assignments for research and writing are rather easy so long ascourts regularly produce "noteworthy" cases. We are sawing saw-dust. The plethora of writing about the law hides the vacuum oflearned attention devoted to the judicial machinery, judicial admin-istration, and the system. It is the system that must succeed. Soundadministration must accompany good laws in the delivery of highquality justice.We thank the editors of St. Mary's Law Journal for recognizingthese things and for embracing this broader approach to the im-provement of the law and the system itself. It may be that everyonealready has an answer to the question, "Why Are Cases Reversedon Appeal?" Easy answers, like so much of what we know anddon't know (and think we know), are usually a part of the folkloreabout our legal culture and are probably wrong. Susan Gellis hasdone this empirical study of one comer of our legal system. She hasfound some correct answers. We can perceive some patterns fromher charts that we did not realize before she did her work. We hopethat this effort will portend a greater and broader academic researchinterest in the strengths and weaknesses of the justice system gener-ally, and of the Texas system in particular.19. See Lipscher, Court Rules Have Limits: How New Jersey's Speedy Trial Program isMeeting with Success, 23 JUDGES' J. 37, 37 (1984); Schwartz & Broomfield, Delay.- HowKansas and Phoenix are Making it Disappear, 23 JUDGES' J. 22, 22-25 (1984).[Vol. 16:2954Submission to St. Mary's Law Journalhttps://commons.stmarytx.edu/thestmaryslawjournal

Reasons for Case Reversal in Texas: A Preface.

St Mary's University School of Law Digital Repository

St. Mary's Law Journal Volume 16 Number 2 Article 2 1-1-1985 Reasons for Case Reversal in Texas: A Preface. Jack Pope Follow this and additional works at: https://commons.stmarytx.edu/thestmaryslawjournal  Part of the State and Local Government Law Commons Recommended Citation Jack Pope, Reasons for Case Reversal in Texas: A Preface., 16 ST. MARY'S L.J. (1985). Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol16/iss2/2 This Article is brought to you for free and open access by the St. Mary's Law Journals at Digital Commons at St. Mary's University. It has been accepted for inclusion in St. Mary's Law Journal by an authorized editor of Digital Commons at St. Mary's University. For more information, please contact egoode@stmarytx.edu, sfowler@stmarytx.edu. ST. MARY'S LAW JOURNALVOLUME 16 1985 No. 2ARTICLESREASONS FOR CASE REVERSAL IN TEXAS: A PREFACEJACK POPE*Equal justice under the law is the noble and unique promise thatthis nation made to the world. In my judgment, we are doing anacceptable job of keeping that promise. We are delivering more jus-tice to more people than has been achieved at any other time orplace in history. But for the most part, the public and our own pro-fession make negative and unstudied evaluations about the qualityof justice and the public's access to the courts. Recently, parts of thejustice system have been subjected to empirical research, and thesystem received better scores than expected.The School of Law of the University of Wisconsin published areport in March 1983,1 following a thorough empirical study of ourjustice system. I found the lengthy two-volume report bearing thetitle, Civil Litigation Research Project, as tedious and dull as it is* Retired Chief Justice, Supreme Court of Texas; B.A., Abilene Christian University;J.D., The University of Texas.1. D. TRUBEK, J. GROSSMAN, W. FELSTINER, H. KRITZER & A. SARAT, CIVIL LITIGA-TION RESEARCH PROJECT FINAL REPORT (Mar. 1983) (University of Wisconsin LawSchool).1Pope: Reasons for Case Reversal in Texas: A Preface.Published by Digital Commons at St. Mary's University, 1984ST MARY'S LAW JOURNALcomplete and scholarly. The researchers' study of the supportingdata led to their surprisingly positive conclusions that our justicesystem is far better than what the unfavorable reports to which wehave become accustomed have led us to believe.Professor Marc Galanter, using a similar innovative researchmethod, published his study in October 1983, under the title thatcarries his message: Reading the Landscape of Disputes.- What WeKnow and Don't Know (And Think We Know) About Our AllegedlyContentious and Litigious Society.2 His conclusions, like those of theearlier Wisconsin study, show that we have been basing our evalua-tions of the justice system on popular myths, folklore, and legends.We are not, according to these studies, more litigious than we usedto be,3 nor are we more prone to engage in lawsuits than are theEnglish, Australians, and people of other common law countries.'The evidence shows that in almost all cases studied, both the plain-tiff and defendant regarded the court experience as financially suc-cessful.' Only twelve percent of the cases that are filed involve morethan $50,000,6 and half of the cases that reach the trial stage requireno discovery or pre-trial proceedings. 7 Ninety-eight percent of allcases filed and disposed of are handled by state courts rather thanfederal courts." These are samplings of many things we have notknown, because we have not done the research to unearth the truth.The National Center for State Courts published its report, TheBusiness of State Trial Courts, during 1983. 9 Chapter three is enti-tled "Myths About Court Business." Careful scholarship and truedata uproot our most cherished preconceptions about our legal ma-chinery. There is, for example, the public myth that criminal casesmake up the bulk of court business.' 0 The fact is that only fourteenpercent of the cases (not counting traffic and parking) in all trial2. 31 UCLA L. REV. 4 (1983).3. See id at 38.4. See id. at 55.5. See D. TRUBEK, J. GROSSMAN, W. FELSTINER, H. KRITZER & A. SARAT, CIVIL LITI-GATION RESEARCH PROJECT FINAL REPORT 15, 53-78 (Mar. 1983) (University of WisconsinLaw School).6. See id at 22.7. See id at 23.8. See V. FLANGO, R. ROPER & M. ELSNER, THE BUSINESS OF STATE TRIAL COURTS 5(1983) (National Center for State Courts).9. See id at 5.10. See id. at 24-28.[Vol. 16:2952St. Mary's Law Journal, Vol. 16 [1984], No. 2, Art. 2https://commons.stmarytx.edu/thestmaryslawjournal/vol16/iss2/2CASE REVERSAL: A PREFA CEcourts are criminal cases."I In Texas, only ten percent are criminalcases, and only seven percent of all filings are felony cases.' 2 Thereis the other popular myth that tort cases are flooding the courts.' 3Only ten percent of our civil filings concern personal injury.' 4 TheNational Center discovered that only four percent of our civil trialsare tried before a jury.' 5 In Texas, only two percent of our civiltrials are jury trials.'6All of us delight in discussing, and the media loves to report, therare megacase that is so big it does not fit any system, or the horrorstory of the case that went awry. As these recent scientific studiesdemonstrate, we unjustly make the greatest justice system in theworld into our national devil. We do it by what Professor Galantercalls a "lack of scholarly development," a "pattern of repetition andcross-citation," and "the reappearance of the same atrocity sto-ries."' 7 Our false views about the judicial machinery, he concludes,reflect "the weakness of contemporary scholarship."'"The fact that three scholarly studies produced in 1983 reach simi-lar positive conclusions about our American system of justice raisesserious questions about our touted legal investigative methods. Per-haps the method employed in the new scholarship is as significant asthe lessons the studies produced. Why are we not asking penetrat-ing questions and pursuing research about the system itself? Goodinformation about the administration of justice in our courts wouldreveal the precise points at which delay and waste occur in the sys-tem. How long must a case be on the docket to be a part of a back-log? What is a backlog? What is the impact of legislation uponfilings? How many courts does it take to handle deceptive tradepractice cases, a class of cases that did not exist prior to 1977? Howmany new rights, remedies, and actions did the 68th Texas Legisla-ture create by its enactment of 7020 pages of new laws? Why is itII. See id at 24-28.12. See 55 TEX. JUD. COUNCIL ANN. REP. 89-91 (1984).13. See V. FLANGO, R. ROPER & M. ELSNER, THE BUSINESS OF STATE TRIAL COURTS30-35 (1983) (National Center for State Courts).14. See id at 31-32.15. See id at 53.16. See 55 TEX. JUD. COUNCIL ANN. REP. 89-91 (1984).17. See Galanter, Reading the Landscape of Disputes." What We Know and Don't Know(And Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L.REV. 4, 64 (1983).18. See id at 5.198513Pope: Reasons for Case Reversal in Texas: A Preface.Published by Digital Commons at St. Mary's University, 1984ST MAR Y'S LAW JOURNALthat the law is the onily significant discipline that is open-ended as toperformance date? How long should it take to complete a misde-meanor, felony, juvenile, divorce, collection, personal injury, or nu-clear power case? Why do we not have realistic time standards forthe disposition of cases in trial and appellate courts? Why is it thatcourts in Kansas, New Jersey, Arizona, Ohio, North Dakota, and inmany other states are able to clear their dockets every year?' 9 Whatare they doing that is different from what we do or fail to do inTexas? What does it cost Bexar, Dallas, or Harris County everyyear to retry criminal cases that are reversed? Why are casesreversed?The legal establishment is mired in an intellectual bog. We min-utely dissect recent appellate opinions in notes, comments, and arti-cles. Assignments for research and writing are rather easy so long ascourts regularly produce "noteworthy" cases. We are sawing saw-dust. The plethora of writing about the law hides the vacuum oflearned attention devoted to the judicial machinery, judicial admin-istration, and the system. It is the system that must succeed. Soundadministration must accompany good laws in the delivery of highquality justice.We thank the editors of St. Mary's Law Journal for recognizingthese things and for embracing this broader approach to the im-provement of the law and the system itself. It may be that everyonealready has an answer to the question, "Why Are Cases Reversedon Appeal?" Easy answers, like so much of what we know anddon't know (and think we know), are usually a part of the folkloreabout our legal culture and are probably wrong. Susan Gellis hasdone this empirical study of one comer of our legal system. She hasfound some correct answers. We can perceive some patterns fromher charts that we did not realize before she did her work. We hopethat this effort will portend a greater and broader academic researchinterest in the strengths and weaknesses of the justice system gener-ally, and of the Texas system in particular.19. See Lipscher, Court Rules Have Limits: How New Jersey's Speedy Trial Program isMeeting with Success, 23 JUDGES' J. 37, 37 (1984); Schwartz & Broomfield, Delay.- HowKansas and Phoenix are Making it Disappear, 23 JUDGES' J. 22, 22-25 (1984).[Vol. 16:2954St. Mary's Law Journal, Vol. 16 [1984], No. 2, Art. 2https://commons.stmarytx.edu/thestmaryslawjournal/vol16/iss2/2

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Reasons for Case Reversal in Texas: A Preface.

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