Former Justice Douglas S. Lang, of counsel at Dorsey & Whitney. (Courtesy Photo)

The COVID-19 pandemic has created chaos in every facet of our lives, leaving everyone hoping the pandemic will subside and the affairs of everyday life can resume. But when? That's the looming question and no one knows the answer.

Similar questions are asked of lawyers by their clients every day. Clients ask some almost unanswerable questions such as:

  • "Will this lawsuit ever be done and over with?"
  • "The court has given us a trial date next summer. Is that going to happen or not?"

What kind of rational answer can lawyers provide? Lawyers and judges know that even though the courts are doing the best they can, there are limits to the technology and ability to schedule trial. So can a case be moved and now?

Yes, absolutely. In short, finish it. Use ADR-private judging.

There are many ways to move a case even in this chaos. The Texas Civil Practice and Remedies Code offers an assortment of alternate paths to resolution of cases. Each method employs the use of a neutral, an impartial third party, or a special judge. Any of the methods discussed below can be conducted by video or in person. The process can be scheduled when the parties want and need the procedure to take place. Importantly, the process can begin "now."

Choose one of these:

  • Trial by Special Judge.
  • The Motion. On motion by all parties, the trial court may order trial by a special judge. In the motion, the party must expressly waive a jury trial, state the issues referred, state the time and place agreed on for trial, and state the name of the special judge that has agreed to hear the case, the fee agreed to by the judge and the parties. Tex. Civ. Prac. & Rem. Code §151.001-.013.
  • The Judge. The special judge must be a retired or former judge of a district, statutory county court, statutory probate court, or appellate court. Further, that special judge must have developed "substantial experience" in the judge's area of specialty, was not removed from office or resigned under investigation for discipline or removal, and have completed at least five days of state bar or Supreme Court-approved continuing legal education. Tex. Civ. Prac. & Rem. Code §151.003. Generally, the special judge has the powers of the referring judge. Tex. Civ. Prac. & Rem. Code §151.006.  A record shall be prepared by a certified court reporter (Tex. Civ. Prac. & Rem. Code §151.008).
  • Right to Appeal. This is critical since the trial court could grant a new trial (Tex. Civ. Prac. & Rem. Code §151.012), or the special verdict rendered by the special judge (Tex. Civ. Prac. & Rem. Code §151.011) could be appealed as provided by the Texas Rules of Civil Procedure and the Texas Rules of Appellate Procedure (Tex. Civ. Prac. & Rem. Code §151.013).
  • Advantage Over Arbitration. In the opinion of many, this right to appeal is a distinct advantage over other ADR adjudicatory methods. Classic arbitrations allow extremely limited grounds for review by the trial court and appellate court. See Tex. Civ. Prac. & Rem. Code Ann. §171.088 (grounds include, among others: award procured by fraud, corruption, or other undue means; evident partiality, corruption, or misconduct of arbitrator; arbitrators exceeded their powers); Hoskins v. Hoskins, 497 S.W.3d 490, 494 (Tex. 2016) (the trial court shall confirm the award unless vacatur is required under an enumerated ground in §171.088).

There are at least three ways to pursue arbitration.

  • New Agreement. Even where the parties do not have an arbitration agreement before the suit is filed, they can agree to binding arbitration and take the case out of the lineup for trial in the district or county court.  Aguilar v. Abraham, 588 S.W.2d 599, 600-01 (Tex. Civ. App.-El Paso 1979, writ ref'd n.r.e.).
  • Joint Motion for Arbitration. On agreement of the parties, nonbinding arbitration before an impartial third party may be ordered by trial court. That impartial third party will render a specific award. Tex. Civ. Prac. & Rem. Code §154.027.
  • Move to Compel. A trial court can compel arbitration even over the objection of a party, where the parties entered into a valid agreement to arbitrate and the claims at issue fall within the scope of that agreement. T. Leach Builders v. Sapphire V.P., 458 S.W.3d 502, 525 (Tex. 2015). See Tex. Civ. Prac. & Rem. Code Ann. §171.088 (limited grounds for vacatur and appeal of award).
  1. Pursuant to Tex. Civ. Prac. & Rem. Code §154.021, a court may, on its own motion or on the motion of a party, refer a case to mediation before an impartial person. See also Tex. Civ. Prac. & Rem. Code §154.023.
  1. Minitrial. On agreement of the parties, the court may direct the parties to present their case either to "selected representatives of the parties," or an impartial third party. In this process, the issues can be defined and a basis can be crafted for "realistic settlement negotiations."  Tex. Civ. Prac. & Rem. Code §154.024.
  1. Moderated Settlement Conference. Each party and counsel will present its position before a panel of impartial third parties. The panel may issue an advisory, nonbinding opinion as to liability or damages or both. Tex. Civ. Prac. & Rem. Code §154.025.
  1. Summary Jury Trial. On agreement of the parties, in order to facilitate settlement, each party may present its case to a panel of six (unless otherwise agreed) jurors to issue an advisory, nonbinding opinion on liability, damages, or both. Typically, a retired or former judge will preside. The jurors need not be told that the process is not binding on the parties. Tex. Civ. Prac. & Rem. Code §154.026.

Conclusion: Choose a neutral and get it done!

To effect each of the above, the parties must agree on a neutral, third party who will preside.  Trust in the fairness of the process is critical. That can only be achieved if the "neutral" is experienced, knowledgeable, and recognized by the parties as being unquestionably fair and impartial.

Former Justice Douglas S. Lang, of counsel at Dorsey & Whitney, offers extensive litigation and appellate experience and expertise to clients. Lang served for over 16 years on the Fifth District Court of Appeals in Dallas. That 13-judge appellate court has the highest case volume of the 14 intermediate appellate courts in Texas. While on the court, Lang authored more than 2,100 opinions and participated in more than 6,100 case decisions. During that same period, Lang served for six years as a member of the Texas Multidistrict Litigation Panel and as chairman of the Texas Commission on Judicial Conduct. He can be reached at [email protected].