For decades, I have been touting Chapter 151 of the Texas Civil Practices and Remedies Code, Trial By Special Judge, as a preferred alternative to arbitration. (See Trial By Special Judge: An Alternative to Arbitration Roulette, Construction Law Journal Vol. 11 No. 1 (2013); Trial By Special Judge, Texas Bar Journal, June 2005). Now it seems it may be an appealing alternative to a trial by a sitting judge given the trend in some judicial elections.

Uncertainty is stressful in life and bad for commerce, yet it is at the core of litigation no matter the forum. Arbitration is risky because, barring unusual circumstances, there is no appeal from a bad decision. The arbitrator is afforded wide latitude in deciding the case including whether the case is even arbitrable or not. But uncertainly of a different type has now crept into our judicial system.

The office of state judge is an elected position in Texas.  The Texas Constitution, Article V Section 7(b)(3) merely requires that the candidate has been a “practicing lawyer” for “eight years next preceding the judge’s election”. One can be a “practicing lawyer” and never set foot in a Texas courtroom.   There is no requirement that the candidates have any experience in trial or have any expertise in the substantive law that will govern the cases over which they will preside.  It takes less experience and knowledge to become a judge than it does to become a board-certified lawyer.  For example, to become board certified by the State Bar of Texas in civil trial law, the applicant must, among other things: (a) have tried at least 15 civil trials, 7 of which must have been as lead counsel and actually submitted to a jury, (b) have completed 60 hours of continuing legal education in civil trial law in the 3 years preceding the application, (c) have submitted the names of 5 lawyers as references who practice in the area of civil law, (one of whom must be a judge before whom the applicant has actually appeared), and (d) have successfully passed a 6-hour exam.  It is not difficult to imagine a civil trial proceeding in which the judge making all the rulings is nowhere near as knowledgeable as the lawyers seeking them.  In fact, this phenomenon has become far too common in recent years, making Chapter 151 an attractive option for litigants and far superior to arbitration.

Though chosen along party lines, a judge is not and should not be a politician and especially not one with an agenda. The public comes before them with life altering issues at stake and the outcome of those trials may well depend upon the judge’s understanding of the law, particularly the rules of evidence and procedure.  The wrong decision can be case determinative. Moreover, it is no comfort that the error may be corrected on appeal if the litigants have the time and money to mount that challenge. This competency risk can be eliminated through the use of Chapter 151.  The trade-off is that, like arbitration, one must give up the jury in exchange for the certainty of an experienced former judge selected by agreement of the parties. 

The benefits of Chapter 151 are discussed in detail in the two articles cited above and appearing on my website,  The significant points are as follows:

  1. The parties pick the judge.
  2. The Texas Rules of Evidence apply.
  3. The Texas Rule of Civil Procedure apply.
  4. The right of appeal is preserved.
  5. The case is effectively removed for trial from the court in which it was filed.

Lawyers should not learn how to try cases while serving as judges.  The bench is not the place for on-the-job training.  But if you find yourself in a jurisdiction where such is the case, consider Chapter 151.

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