WHY SPECIALIZATION MATTERS
By Samuel B. Burke
It has been said that Texas government was set up to prevent new laws from being made. If that was the intent, at least as for changes to the administration in our courts, it has not been working. Since I was licensed to practice law in 1998, the rules of practice in Texas civil courts have been under constant change.
When I began my practice, Texas completely reformed the discovery rules for civil cases. Discovery Rules control the means and methods parties use to gather information from each other and third parties in lawsuits. Shortly thereafter, Texas enacted sweeping tort reform. These changes were directed at the liability of health care professionals. The method of calculating damages for medical expenses changed. As a result the practice of personal injury litigation significantly changed. The amount of punitive damages juries could award in almost all civil cases became limited. In addition, the right to appeal lawsuits before they were over was expanded, and procedures added that allow a Defendant to make offers of settlement which can limit or preclude a Plaintiff’s recover if unreasonably rejected.
More recently, Texas passed the “SLAP” Act. The “SLAP” Act provides a procedure for a quick dismissal of suits against people who have spoken out, associated with a group, or petitioned the government about matters of public concern. So far, the “SLAP” Act has been broadly interpreted. If this trend continues, the “SLAP” Act may apply to many forms of civil suits, including commercial and law suits.
Texas recently added a motion to dismiss procedure to almost all types of civil practice, created a new expedited discovery procedure for smaller suits, and modernized the rules of procedures to keep up with changing technologies. The new dismissal procedure provides an early exit for Defendants who can show the lawsuit filed against them was filed without adequate cause or investigation. The expedited discovery procedures apply to lawsuits over money where the amount in controversy is less than $100,000. The expedited procedures severely limit discovery in these suits. Finally, the rules of procedure now allow parties to file and serve papers in lawsuits electronically in certain Texas Counties.
While this list is incomplete, it illustrates that without a focus or specialization, it is difficult to keep up the pace of change in today’s practice of law. Litigation attorneys must have a firm grasp on both the rules which control how lawsuits are conducted and the law that applies to the case. For instance, in a breach of contract case involving real estate, a lawyer must have some mastery over the procedural rules that control how the case will proceed through the court system (procedural expertise), and the law applicable to contracts and those contracts involving real estate (substantive expertise).
I have heard an old saying that you should have an old lawyer and young doctor. The idea behind this bit of wisdom is that the practice of medicine is constantly changing while the law changes at a more leisurely pace. Today, nothing is further from the truth. When you have a legal problem you need to find a lawyer with the expertise, and work ethic to keep up with the current changes in the law. Specialization is a useful tool to assist with such a determination.
The Texas Board of Legal Specialization (TBLS) certifies lawyers in approximately eighteen different areas of law. The areas of specialization recognized by the TBLS include family law, real estate, civil trial, healthcare, personal injury trial law, employment, etc. If you are unsure what area of expertise your problem falls into, the TBLS website (www.tbls.org) has a brief description of what types of law each category of specialization includes. The TBLS website also allows you to search for lawyers that have met its certification criteria by area of specialization and narrow that search by city, county, or zip code.
Once you have found lawyer with expertise, another good resource is Martindale Hubbell (www.Martindale.com). This service conducts peer ratings of lawyers, and is less driven by the investment of advertising dollars than some other services that purport to “rate” lawyers. Martindale Hubbell has a BV Distinguished and AV Preeminent rating. AV Preeminent is the highest level of professional excellence.
Finally, when you begin the process of interviewing a lawyer, ask them if they have handled matters similar to yours, if the matter is in their area of expertise, and if they have recently handled a similar matter. If you have located a board certified lawyer in your area of need, who is AV Preeminent rated by Martindale Hubbell, and can answer yes to the above questions, you very likely have found a lawyer who can provide you with excellent representation.