Loser-pays provision in 2011 Texas legal reform

HB 274’s motion-to-dismiss/fee-shifting provision is getting more use than some foresaw at the time [Angela Morris, Texas Lawyer, quoting Austin attorney David Chamberlain]

3 Comments

  • Not in my experience. Both Hon. Hoffman and Wingo are more accurate: They get filed occasionally but they don’t get set or heard. The risk of fee switching to (and thereby funding) a Plaintiff you already think is frivolous is too much to stomach.

    To wit:
    Hon. Hoffman: “I have seen a number of motions to dismiss baseless causes of action.” [note: not hearings or orders]
    Wingo: “I have seen a few of these filed, but they have always been worked out before the point of no return.”

  • As a Texas lawyer, I have never invoked the new dismissal motion. Nor have I seen it invoked. The mandatory fee provision is a poison pill that ensures these motions seldom see the light of day in general and where they are most apt in particular. In a bad jurisdiction (which Texas still has many of), corporate defendants can count on these motions being denied even when they should not be. So, unless you’d like to give the plaintiff’s counsel some money, filing one makes no sense.

  • I’m just verifying… This article is behind a paywall for everybody, right? It’s not just me?