Skip to main content

5 Trends to Watch in 2023 Texas Appellate

  1. Guideposts for Soft Damages in Personal Injury Cases – A number of unprecedented personal-injury verdicts in Texas—largely consisting of record high soft-damage awards—have grabbed the attention of Texas appellate courts. The appeals raise concerns that common-law guideposts and reasonable proportionality among soft-damage awards are lacking. Several cases raising issues of first impression in damages jurisprudence are pending in the Texas appellate-court system. Expect the legislature to consider guidance on such damage awards.

  2. Oil & Gas Industry Issues Moving Through State Courts – Significant oil and gas appeals are making their way through the state court system. A number of these cases concern the interpretation of language in leases that define royalties and sums owed to mineral owners by oil and gas operators. Issues raised include challenges to fundamental concepts and terms that have long been embedded in Texas jurisprudence for the energy industry.

  3. ERCOT’s Immunity or Liability for Winter Storm Uri Damage – The Electric Reliability Council of Texas (ERCOT) manages the flow of electric power to millions of Texas customers through the Texas power grid. The electric-grid issues caused by 2021 Winter Storm Uri are pending in Texas appellate courts and concern, among other things, the immunity or liability of ERCOT for damages related to the power outages.

  4. Legal Guidance Sought for Mass Shootings Liability – Litigation in mass shootings call for legal guidance regarding bases for liability and the proportionate responsibility of entities and persons involved in the manufacture and sale of firearms as well as liability issues arising from potential duties of law enforcement organizations and employers to prevent injuries to victims of these incidents.

  5. Legislative vs. Executive Authority Still in Question – The boundaries between legislative and executive authority will remain an important topic in the legislature and in appellate litigation to clarify such authority, especially in addressing emergencies like those that arose from the COVID-19 pandemic, e.g., mask mandates.

About the Author

Dale Wainwright, co-chair of Greenberg Traurig, LLP’s National Appeals & Legal Issues Group, chair of the Texas Appellate Practice, and former Texas Supreme Court Justice and trial judge, has more than three decades of experience counseling clients in complex commercial, energy, health care, and administrative disputes in state and federal trial and appellate courts. He is frequently engaged to handle precedent-setting and high-stakes appeals, representing clients in briefing and oral argument in trial and appellate courts, and structures appeals and mandamus proceedings. In addition, he counsels clients on litigation strategy, error preservation at trial, jury charge preparation, post-verdict proceedings, and analysis of the trial record for appellate potential.