SMU Law Review


The purposes of this paper are to evaluate the standard and scope of appellate evidentiary review of fact findings made by juries and trial judges under Texas law, and to describe and to criticize the recent treatment of the duty and causation issues in tort litigation by the Texas Supreme Court. The court has not acknowledged that the standards of evidentiary review applied to jury findings have been changed and one prominent scholar has concluded otherwise, but an examination of the court's recent jurisprudence reveals that significant changes have been made in the application of the no-evidence standard of review traditionally applied by Texas courts in assessing the probative value of evidence to support jury findings. During roughly the same ten-year period, the Texas Supreme Court has otherwise modified the respective roles of judges, juries, and reviewing courts in Texas by revising its treatment of the duty and causation issues in tort cases. These companion developments have shifted the locus of the decision-making process away from juries and ultimately toward the appellate courts. Both the methods for deciding the duty and causation issues in civil litigation and the standards of review applied by reviewing courts to jury verdicts are of fundamental importance to the operation of the litigation process because these subjects control the division of adjudicative power among trial judges, juries, and reviewing courts. This paper explores and explains these important matters.