In a recent article in Texas Lawyer, one of the architects behind authoring a tort reform bill passed in 2011 says the use of the “loser pays” component of the law has been a “surprise.”

House Bill 274 went into effect in 2013, allowing trial courts to:

  • Dismiss frivolous lawsuits immediately;

  • Send questions of law directly to the appellate court; and

  • Allow plaintiffs seeking less than $100,000 to request an expedited civil action.

But one the biggest surprises of the law last year was the frequent use of the “loser pays” component, says attorney David Chamberlain, senior partner at the Austin law firm Chamberlain McHaney.

“Rule 91a motions to dismiss are appropriate for attacking claims that have no basis in law or fact. Frequency of use has been the big surprise of HB 274,” Chamberlain is quoted as saying in the article, entitled: Tort Reform Bill Caused Flurry of New Motions to Dismiss.

“Those of us who were involved in the HB 274 legislative process did not think this procedure would be utilized much, mainly because the trial court is mandated by the statute and rule to award attorney fees to the prevailing party on the motion. We just didn't think many defendants would risk having to pay fees, particularly when there is always a summary judgment motion available that doesn't carry that fee-shifting risk. We were wrong.”

According to the Texas rules of civil procedure, 91a motions are brought in baseless causes of action.

Chamberlain believes, if used properly, the new rule is certainly appropriate to knock out a truly baseless claim; saving time and expense for everyone involved.

“And I do believe more specific pleading, if not overdone, can be helpful to moving the case forward and ultimately getting it resolved,” Chamberlain is quoted as saying in the article.

“On the other hand, there is potential for abuse. It adds another, potentially expensive step to pretrial litigation (and appeals), and we don't need much more of that.”

Chamberlain helped negotiate HB 274 and draft the resulting procedural rules, the article states.

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