Kent Rutter's Very Lonely Book Club

The first time clients walk into your office, they all have the same question: Can I win? It doesn’t matter whether you’re a plaintiff ’s attorney, a defense attorney or an appellate attorney. As a result, your very first job is to accurately evaluate the quality of the case. This is sometimes easier said than done, but Texas attorneys now have an additional tool at their disposal.

A couple of appellate attorneys out of Houston spent thousands of hours looking at all 1,832 civil cases heard by the Texas Courts of Appeals between September 2001 and August 2002. Why? “Simple. Curiosity,” says Kent Rutter, an associate with Haynes and Boone. “We had personal and anecdotal experience on what the courts did, but we wanted to know what kinds of cases were affirmed or overturned and why.”

“Our clients want to know whether they will win or not,” says Lynne Liberato, also of Haynes and Boone, who with Rutter did the research and co-wrote an article based on their findings that was published in the South Texas Law Review in 2003. Rutter adds, “Based upon our experience and backed up by statistical analysis, we wanted to give them the answer.”

Rutter should know. He was one of the driving forces behind this analysis that has caught the attention of a lot of lawyers and judges, including courts of appeals judges, across the state.

And what were the findings?

The Texas courts of appeals reversed 25 percent of jury verdicts. Twenty-five percent! Apparently, juries don’t get the last word one out of four times across Texas. Or consider this one: 22 percent of bench trials and 33 percent of summary judgments are also overturned on appeal.

There is more. In personal-injury cases, defendants successfully persuaded appellate courts to reverse 45 percent of the time. If you’re a plaintiff in a tort case, you’d better start looking harder at your cases. Defendants won reversal 51 percent of the time at the appellate level.

Liberato and Rutter even distinguished between the various courts to see if any trends existed. And they did. In the U.S. Court of Appeals for the Fifth Circuit, jury verdicts were rarely overturned (11 percent), while in the Fourth and 14th Circuits, the numbers were more than three times higher (36 percent).

As you can imagine, reaction from the legal community has been mixed. Says Rutter, “People may not like what they hear, but [they] can’t dispute the numbers.”

After looking at almost 2,000 cases, spending thousands of hours, what kinds of lessons can plaintiff ’s and defense attorneys learn? In typically organized appellate fashion, Rutter and Liberato fire off four points:

“First, we can now speak with more confidence about our chances of success,” Liberato begins. “Second, we will have concrete numbers to back up our assertions.”

Rutter picks up the case. “Third, we now have a very powerful tool in settlement negotiations at the pretrial stage, during mediation and even in post-trial negotiations. And finally, it highlights for appellate lawyers the issues that appellate courts are more likely to consider when overturning cases.”