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The Changing Landscape of Civil Litigation in Texas with LexisNexis Author Corinna Chandler

June 09, 2023 (8 min read)
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Dorsaneo & Chandler's Texas Claims and Defenses

Dorsaneo & Chandler's Texas Claims and Defenses is a companion to and is derived from Dorsaneo, Texas Litigation Guide. It examines the major civil causes of action that may be brought in Texas courts of general jurisdiction, as well as the defenses to those claims. A new edition of Dorsaneo & Chandler's Texas Claims and Defenses is available for pre-order on the LexisNexis Store

LexisNexis spoke to Dorsaneo & Chandler's Texas Claims and Defenses Co-author Corinna Chandler about civil litigation trends and the changing landscape of civil litigation in Texas.

LexisNexis: What are key changes you have seen in the litigation landscape since starting your own practice?

Corinna Chandler: Technology has dramatically changed litigation practice over the last couple of decades. Most litigators have incorporated multiple forms of technology for case management, document review, trial presentation, and, of course, legal research. When I was in law school, and in my first years of practice, legal research often required a trip to the local law library. At that time, electronic research databases were more limited in scope and were often considered cost prohibitive.

Now, most attorneys rely primarily on electronic research. The scope of information available through legal research platforms like Lexis and Lexis+ allows most attorneys to complete their legal research without leaving their desks.

It is incredibly convenient to have access to so much information at the push of a button, but I often hear attorneys complain of information overload or the challenge of quickly finding the basic information needed to get started on a particular task.

LexisNexis: Your book, Dorsaneo & Chandler's Texas Claims and Defenses, was recently updated and will be available soon at LexisNexis. What challenges does this publication solve for practicing attorneys and law students?

Chandler: This publication addresses the challenge of quickly identifying the basic information needed to litigate causes of action commonly brought under Texas law. Reviewing the elements of applicable claims and related requirements, available remedies, and applicable defenses is critical at every stage of the litigation process, from initial client intake through trial and any subsequent appeal.

This single-volume publication is a readily accessible desk reference that can easily fit in a briefcase to be used during depositions, mediations, and in court. It can help guide client interviews; ensure pleadings address the required elements, remedies, and defenses; focus discovery requests and responses to satisfy evidentiary burdens; and respond to arguments made by opposing counsel. It also provides a starting point for additional legal research through citations to supporting law and cross-references to practice forms and corresponding chapters in the Texas Litigation Guide.

Law students face similar challenges. I remember working on a brief for a legal writing course and struggling to determine when I could stop researching, and instead focus on writing, because I was afraid I might miss something unless I read all relevant cases. Over my years of practice, I have gotten better at finding the right balance between research time and writing time, but I still tend to want to read everything I can find. This publication can help point law students in the right direction to both begin and focus their research. Additionally, because law school curriculum increasingly incorporates experiential learning components, law students are asked to draft pleadings, briefs, and discovery, and they can use this publication to help them accomplish those tasks.

LexisNexis: What are trends or emerging areas of concern you see for litigation attorneys, both in Texas and nationally?

Chandler: My co-author, Bill Dorsaneo, has warned for many years about the erosion of the right to trial by jury. See, e.g., William V. Dorsaneo, Reexamining the Right to Trial by Jury, 54 SMU L. Rev. 1695 (2001). I share his concerns and believe that the trend has become more dramatic in recent years.

Decades ago, concern about the erosion of the right to trial by jury focused primarily on the evolution of summary judgment practice and judicial review of jury findings. These issues continue to be an important part of the national discussion about the right to trial by jury. In 2021, for example, the Florida Rules of Civil Procedure were amended to relax the summary judgment standard in that state to align with the federal summary judgment standard. See Joseph W. Etter & Julia Kapusta, A Primer on Florida’s New Summary Judgment Standard, 95 Fla. Bar J. 38 (2021).

More recently, the right to trial by jury has been further eroded by contractual agreements, including arbitration agreements, class and collective action waivers, jury waivers, and limitations on damages. Consumer and employment agreements now routinely include such clauses, and courts often enforce these clauses even in cases where the consumer or employee unwittingly entered into the agreement.

After many years of forcing consumers and employees to arbitrate their claims, some companies have been forced to defend thousands of individual arbitration cases. DoorDash, for instance, faced over 5,000 individual arbitration actions in 2019, causing the company to reconsider its arbitration and collective action waiver clauses. See Abernathy v. DoorDash, Inc., 438 F. Supp. 3d 1062 (N.D. Cal. 2020). After DoorDash refused to arbitrate, the claimants brought an action to compel arbitration. The court compelled DoorDash to honor its arbitration agreements and pay millions of dollars in arbitration costs. Id. at 1066. The court also noted the irony that employers like DoorDash, after decades of forcing arbitration clauses and class-action waivers on employees, depriving them of their right to trial by jury and “their ability to join collectively to vindicate common rights,” would later “wish[ ] to resort to a class-wide lawsuit” to avoid incurring the cost of thousands of individual arbitration actions. Id. at 1067-68.

In response, some companies have decided to forgo arbitration and class or collective action waivers in favor of jury waivers. If the jury waiver is enforced, the case will be decided by bench trial, allowing the company to avoid both costly arbitration fees and large jury verdicts.

The enforceability of these clauses varies by jurisdiction. They are not inherently problematic when they are included in contracts between parties with relatively equal bargaining power. The real concern is that these clauses are now routinely included in employment agreements and ordinary consumer transactions. Often, they are incorporated in the terms and conditions consumers are asked to agree to when using a product or service, including the “clickwrap” or “browsewrap” agreements consumers purportedly agree to when they install an app or complete an online transaction.

The Pennsylvania Superior Court recently noted that “internet contracts” make it “easier than ever for corporations to bind inexperienced, unaware, and unsuspecting consumers to arbitration agreements with the simple click or swipe of their finger…” Chilutti v. Uber Techs., Inc., 2022 Pa. Super. LEXIS 419, *20 (Pa. Super. Ct. Oct. 12, 2022). In that case, Uber argued that the consumers had agreed to the arbitration clause included in Uber’s terms of service when the consumers registered for the Uber app. Id. at **22-29 (consumers not required to and did not click on “terms and conditions” hyperlink to complete registration process). The court found that the consumers “were not informed in an explicit and upfront manner that they were giving up a constitutional right to seek damages through a jury trial proceeding” and held that the arbitration agreement was unenforceable. Id. at *39.

Given the importance of the right to trial by jury, contractual provisions that abrogate that right will continue to be hotly debated and litigated.

LexisNexis: Are there any potentially significant cases you are currently watching? What are the implications of those cases?

Chandler: Social media censorship has been an important topic for several years. During a special session in 2021, the Texas Legislature passed House Bill 20, which prohibits large social media platforms from censoring users based on their viewpoints (subject to several exceptions primarily related to unlawful speech). NetChoice and the Computer & Communications Industry Association challenged the law, arguing that HB 20 is facially unconstitutional because it infringes on social media companies’ First Amendment right to free speech. See NetChoice, LLC v. Paxton, 49 F.4th 439 (5th Cir. 2022). The Fifth Circuit Court of Appeals vacated the preliminary injunction granted by the District Court, finding that HB 20 “is constitutional because it neither compels nor obstructs the Platforms’ own speech in any way.” Id. at 494.

The Eleventh Circuit previously took the opposite approach, upholding a preliminary injunction as to provisions of a similar Florida statute because it concluded those provisions were “substantially likely to violate the First Amendment” rights of social media companies. NetChoice, LLC v. AG, Fla., 34 F.4th 1196, 1231 (11th Cir. 2022).

Petitions for writ of certiorari are pending before the Supreme Court in both NetChoice cases. On January 23, 2023, the Court invited the Solicitor General to submit briefing expressing the views of the United States regarding the constitutionality of the Texas and Florida statutes.

If the Court upholds either statute, social media users will be able to sue social media companies for viewpoint discrimination. The Texas statute creates a private right of action limited to declaratory and injunctive relief, with the potential to recover costs and attorney’s fees, in addition to an enforcement action by the Texas Attorney General. Tex. Civ. Prac. & Rem. Code §§ 143A.007—143A.008; see also Paxton, 49 F.4th at 451, 489-490 (distinguishing HB 20 from Florida statute). Under the Florida statute, successful plaintiffs could recover statutory and other damages. AG, Fla., 34 F.4th at 1207. The Texas and Florida statutes also differ in other significant ways, as the Fifth Circuit discussed more fully in its NetChoice opinion, which could result in one statute being upheld even if the other is declared unconstitutional.

About Corinna Chandler

Chandler is co-author of Dorsaneo & Chandler’s Texas Claims and Defenses published by LexisNexis Matthew Bender. Corinna Chandler received her J.D. in 2009 from Southern Methodist University, Dedman School of Law, her M.B.A. in 2013 from the University of Texas at Dallas, Jindal School of Management, and her B.B.A. in 2006 from Southern Methodist University, Cox School of Business. She is a life fellow of the Dallas Bar Foundation, a member of Phi Delta Phi, Beta Gamma Sigma, the William “Mac” Taylor Inn of Court, and the Texas Employment Lawyers Association (TELA), a member and past president of DFW-NELA, and currently serves as chair-elect of the Civil Liberties & Civil Rights Section of the State Bar of Texas.

Chandler is an experienced trial lawyer with an active civil litigation practice in Dallas, Texas. She has been recognized annually on the list of Texas Super Lawyers since 2019 and was previously recognized on the list of Texas Rising Stars from 2015 through 2019.