Author: Jeff Elliott Law Admin

Three Tools Texas Tort Reform Gave Defendants — and How to Actually Use Them

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| General, Torts

Texas has spent the last several decades building one of the most defendant-friendly tort frameworks in the country. The reforms did not happen all at once; they accumulated through legislation in 1995, 2003, 2011, and other years, and the protections they provide are real. But they are also conditional. The tools only work for defendants who know how to invoke them, and timing matters as much as substance.
Here are three of the most useful tools in the modern Texas tort defense arsenal — and a few notes on how to actually use them.

1. The Texas Citizens Participation Act.
The TCPA, codified at Chapter 27 of the Civil Practice and Remedies Code, is sometimes called the Texas anti-SLAPP statute. It is one of the most powerful early-dismissal mechanisms in American civil practice, and it sweeps far more broadly than most defendants realize. If a claim is based on, relates to, or is in response to a defendant’s exercise of free speech, the right to petition, or the right of association — broadly defined — the defendant can file a TCPA motion to dismiss within sixty days of being served. The plaintiff then has the burden of producing clear and specific evidence supporting each essential element of every challenged claim. If they cannot, the case gets dismissed, and the defendant is awarded mandatory attorney’s fees.

The trap is the deadline. Sixty days from service. Miss it, and the tool is gone. The TCPA has also been narrowed over the years — particularly in the 2019 amendments — and the analysis of whether a particular claim falls within its scope requires careful work. But for cases involving online reviews, statements about public concerns, employer references, business communications, and a wide range of other speech-adjacent disputes, the TCPA is often the single most valuable thing a defense lawyer can do in the first two months of a case.

2. Proportionate responsibility.
Chapter 33 of the Civil Practice and Remedies Code does two important things at once. First, it bars any recovery by a claimant whose responsibility for an occurrence exceeds fifty percent. Second, it allows fault to be apportioned to non-parties — people or entities who are not in the lawsuit but whose conduct contributed to the harm. The combination is powerful. A defendant who can convince a jury to assign meaningful percentages of fault to the plaintiff, to a co-defendant, or to a designated responsible third party can dramatically reduce or eliminate exposure.

The practical key is identifying responsible third parties early and designating them within the statutory window. The Chapter 33 designation process has its own procedural requirements, and missing them forfeits the ability to ask the jury to allocate fault to people who really should bear part of the blame.

3. The exemplary damages cap.
Punitive damages — what Texas calls exemplary damages — used to be the wild card in tort cases. A jury could award almost any number, and the consequences for the defendant were unpredictable. Chapter 41 of the Civil Practice and Remedies Code changed that. With limited exceptions, exemplary damages in Texas are capped at the greater of two times economic damages plus an amount equal to non-economic damages up to $750,000, or $200,000. The math gets a little involved, but the point is that the upper bound on punitive exposure in most cases is now calculable from the start of the case.

The cap matters most in case valuation. A demand that ignores the statutory cap is a demand that does not understand Texas law. Defense counsel who walk into mediation having already worked out the maximum possible exemplary award have a meaningful advantage in the negotiation.

These tools work — when they are used.
Tort reform did not turn Texas into a defendant’s paradise. Plaintiffs still win cases. Juries still award substantial verdicts. But the framework gives defendants real tools, and the difference between using them and overlooking them often determines how a case ends.

If you are facing a tort claim — defamation, fraud, business tort, intentional tort, or otherwise — in Texarkana, Bowie County, or anywhere in the surrounding region, Jeff Elliott Law Firm handles tort defense across Northeast Texas and Southwest Arkansas, and we are glad to discuss the specifics.

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You’ve Been Served. The First Thirty Days of a Personal Injury Lawsuit Matter More Than You Think

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| General, Personal Injury Defense

A process server knocks on the door, hands over a stapled set of papers, and walks away. The papers are a citation and a petition. The petition says that someone — a person you may not even recognize — claims that something you did, or something that happened on your property, or something that one of your employees did, caused them serious harm. The damages section asks for a number large enough to make your stomach drop.

What happens next, in the first thirty days, often determines how the case ends.

The deadline to answer is shorter than people realize.
In Texas, you generally have until 10:00 a.m. on the Monday following the expiration of twenty days after service to file an answer. Miss it, and the plaintiff can take a default judgment — a judgment entered without you ever having a chance to contest the case. Default judgments in personal injury cases can run into seven figures. They are exceptionally difficult to set aside. The very first thing that has to happen is that an answer gets filed, on time, properly drafted, with the right denials and affirmative defenses preserved.

Notify your insurance carrier immediately.
If the underlying incident might be covered by any insurance policy — auto, commercial general liability, homeowners, umbrella, workers’ compensation, professional liability — the carrier needs to know now. Late notice can void coverage. Carriers have specific notice provisions in their policies, and missing them can convert a defended lawsuit into a personally funded one. If you are not sure whether a policy applies, send the notice anyway and let the carrier and its counsel work it out.

Stop talking about the case.
This sounds obvious, and it is the rule that gets violated most often. Conversations with friends, social media posts, text messages, statements to other employees about what “really happened” — all of it can be discovered. Anything you say or write about the case may end up in front of a jury. From the moment a lawsuit is filed, the conversation about the underlying facts needs to happen between you and your lawyer, and almost nowhere else.

Preserve evidence right now.
Most useful evidence has a shelf life. Surveillance video gets overwritten on a thirty-day loop. Vehicle electronic data fades or gets lost when the truck goes back into service. Witness memories get worse, not better. Maintenance records, training files, and inspection logs get archived or discarded under routine retention policies. The first calls a defense lawyer makes after taking the case usually involve preservation — securing the video, downloading the data, photographing the scene, locating witnesses while they still remember.

Comparative responsibility is your friend.
Texas law under Chapter 33 of the Civil Practice and Remedies Code provides defendants with a powerful tool. A plaintiff who is more than fifty percent responsible for an occurrence cannot recover anything. A plaintiff who is less than fifty percent responsible has any recovery reduced by their share of fault. Building the evidentiary record that supports apportioning fault — to the plaintiff, to non-parties, to other defendants — is one of the most consequential strategic decisions in the case, and it starts with how the answer is drafted and what is preserved during early investigation.

The demand will probably be inflated.
Plaintiffs’ attorneys often open with a demand that bears little resemblance to what the case is actually worth. The right response is not panic, and it is not a counter-demand based on the inflated number. It is a careful evaluation of liability, damages, and exposure, followed by a measured response that reflects the real value of the case. Cases that resolve on the best terms for the defense are the ones where the defense team genuinely understood the case better than the plaintiff’s team did.

Being sued is stressful. The natural impulse is either to ignore the lawsuit and hope it goes away, or to overreact and accept the first settlement number that gets floated. Neither is the right move. The right move is to retain experienced defense counsel, do the work, and let the case get evaluated properly.

If you, your business, or your insured has just been served with a personal injury lawsuit in Texarkana or anywhere in the surrounding region, Jeff Elliott Law Firm handles personal injury defense across Northeast Texas and the broader Ark-La-Tex.

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The Stowers Letter: Why a Single Page Can Reshape an Entire Texas Lawsuit

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| General, Insurance Defense

There is a piece of paper in Texas litigation that does more than almost any other to determine how a case will end. It is sometimes one page long. It is usually unremarkable in tone. It typically arrives in the middle of a case, not at the beginning. And if a carrier mishandles it, the consequences extend far beyond the policy limits.

It is called a Stowers letter, and any insurance carrier doing business in Texas should understand exactly what it is and how to respond.

The doctrine in plain terms.
The Stowers doctrine takes its name from a 1929 Texas Supreme Court case, G.A. Stowers Furniture Co. v. American Indemnity Co. The rule that emerged from it has been refined for nearly a century, but the core proposition is straightforward. When a third party makes a settlement demand within the insured’s policy limits, and the demand is reasonable, and the carrier rejects it, and a judgment later exceeds those limits — the carrier may be on the hook for the entire judgment, not just the policy amount.

The reasoning is intuitive once it is stated. The carrier controls the defense and the settlement decision. The insured cannot settle the case unilaterally. So if the carrier gambles on trial when a reasonable settlement was available, the insured should not bear the cost of that gamble alone.

What makes a demand a Stowers demand.
Not every settlement letter triggers Stowers exposure. The demand has to propose to settle within the policy limits, cover all claims against the insured, provide an unconditional release, and come from a claimant who has the authority to make the demand. If any of those elements are missing, the demand may not actually open the carrier up to extra-contractual liability. The plaintiff’s bar in Texas is sophisticated, and most demands that show up these days are carefully drafted to satisfy the criteria. A few are not, and identifying the difference is one of the most consequential calls in insurance litigation.

The window matters.
A Stowers demand typically comes with a deadline — often thirty days, sometimes shorter. The carrier needs to evaluate the demand, the underlying liability, the damages picture, the witness availability, the policy language, and any coverage questions, all within that window. The decision-making process needs to be documented in real time, because the question a court will eventually ask is not “did the carrier make the right call?” but “did a reasonable carrier evaluating the demand have a reasonable basis for the response?”

Coverage questions complicate everything.
When a case involves a coverage dispute — a reservation of rights, a question about whether the loss falls within the policy, an insured who may have made misrepresentations on the application — the Stowers analysis becomes substantially more complex. The carrier may be defending under reservation while simultaneously evaluating whether to settle. The insured may be entitled to independent counsel. Communication between the carrier, defense counsel, and the insured needs to be careful and well-papered. These cases reward preparation and punish carelessness.

Why the doctrine still matters today.
Some carriers treat Stowers as a relic, an old case from a different era. That is a mistake. Texas courts continue to apply the doctrine, juries continue to hear evidence about pre-trial settlement opportunities, and bad-faith claims under Chapter 541 of the Texas Insurance Code routinely incorporate Stowers theories. A carrier that handles a within-limits demand carelessly faces the same exposure it would have faced in 1929 — adjusted, of course, for the kind of verdicts juries return today.

When a Stowers demand arrives, slow down. Pull defense counsel into the analysis early. Document the evaluation. Communicate with the insured. And make the call deliberately, with the full picture in view.
If you are a carrier or claims professional handling a matter in Texarkana, Northeast Texas, or anywhere in the Ark-La-Tex region, Jeff Elliott Law Firm has handled insurance defense and coverage work for decades and is glad to consult on Stowers issues, coverage questions, and bad-faith exposure.

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The Letter from the EEOC: What Texas Employers Should Do (and Avoid) When a Charge Lands on Their Desk

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| Employment Law, General

There is a particular kind of mail no business owner enjoys opening. It comes certified, in a thin envelope, with a return address from the Equal Employment Opportunity Commission or the Texas Workforce Commission Civil Rights Division. Inside is a Notice of Charge of Discrimination, a few pages summarizing what a current or former employee has accused the company of doing, and a deadline.
If you have just received one in Texarkana, the first thing to know is that this is the moment when defense decisions either get made carefully or get made badly. Here is what we tell employers when the certified letter lands.

Do not respond before you understand the case.
Charges arrive with a request for a position statement, and the temptation is to fire something off — to “explain what really happened” before the deadline runs. Resist that impulse. The position statement is the first piece of evidence the agency will see, and anything inconsistent with it later will be used against the company in front of an investigator, a mediator, or a jury. Take the time to investigate first. Pull the personnel file. Talk to the supervisors. Look at the timeline. Then write the statement.
Do not retaliate, and be careful about anything that could look like retaliation.

Once a charge is filed, the employee is in a legally protected category for retaliation purposes regardless of whether the underlying discrimination claim has any merit. A poorly timed performance review, a schedule change, a denied promotion — anything adverse that happens after the charge needs a clean, documented, pre-existing reason. Otherwise the company has just turned a weak claim into a strong one.

Texas at-will employment is a defense, not a magic shield.
“We could fire her for any reason” is true under Texas law as a starting principle, but it is not a defense to a discrimination charge. Title VII, Chapter 21 of the Texas Labor Code, the ADA, the ADEA, and a handful of other statutes carve out specific protected categories where “any reason” is not enough — race, sex, age, disability, religion, national origin, and a few others. The reason still has to be a permissible one, and the company still has to be able to articulate and document it.

Documentation written today is far more valuable than documentation written next year.
By the time a case reaches a jury, the employer is usually trying to reconstruct why a decision was made eighteen months earlier. Memory fades, supervisors leave, and contemporaneous notes become irreplaceable. The single most useful thing an employer can do — both in this case and in every personnel decision going forward — is to document the reasoning at the time the decision is made, not after a charge gets filed.

Most charges do not become lawsuits, but the ones that do tend to be expensive.
The EEOC dismisses or finds no cause in the majority of charges it processes. The right-to-sue letter follows, and many employees do not pursue further. But the cases that do go forward into federal court can run six figures in defense costs, and verdicts under federal employment statutes carry attorney’s fees that can dwarf the underlying damages. The work of defending well at the agency level is also the work of preventing the lawsuit, and it is almost always money well spent.

The strongest defense to most employment claims is built before the charge is ever filed — in the policies, supervisor training, and personnel documentation that exist in the company’s day-to-day operations. If a charge has just landed, do the careful work to defend it. If one has not, this is the moment to look hard at what would happen if one did.

If you are an employer in Texarkana, Bowie County, or the broader Ark-La-Tex region facing a charge or thinking about prevention, Jeff Elliott Law Firm is happy to talk it through.

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When a Business Dispute Heads to Court: What Texarkana Owners Should Know Before They File

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| Civil Litigation, General

Most civil lawsuits do not start as lawsuits. They start as a handshake deal that fell apart, an invoice somebody refused to pay, a contractor who walked off the job halfway through, or a partner who decided to take the client list with him on the way out. By the time a dispute lands in our office, the business owner across the table has usually spent weeks — sometimes months — trying to resolve things informally before reluctantly admitting that the other side is not going to come around without legal pressure.

If you are at that point in Texarkana or anywhere in Northeast Texas, here is what is worth understanding before you file.

Civil litigation is slower and more expensive than people expect.
Television compresses a two-year case into forty-five minutes. Real litigation does not work that way. Even a relatively straightforward contract case usually involves several months of pleadings and motion practice before discovery even begins, and discovery itself — depositions, document production, written interrogatories, expert designations — can run a year or longer in a complex matter. Trial dates get reset. Judges have crowded dockets. The lawyer who tells you the case will be over in six months is not someone you want representing you.

Texarkana’s location creates choices most lawyers never face.
The state line literally runs down the middle of the city. State Line Avenue is just that — Texas on one side, Arkansas on the other. A contract negotiated over lunch downtown might involve parties from two states, performance in two states, and witnesses scattered across both. Choice of law and venue selection in cases like these are not academic exercises. The wrong forum can change the outcome. Federal court in the Eastern District of Texas, Texarkana Division, sometimes makes sense; sometimes the better play is staying in Bowie County district court; sometimes the dispute belongs across the line entirely. These decisions get made early, and they matter.

Discovery is where most cases are won and lost.
By the time a civil case reaches a jury, the evidence has been frozen for months. The emails, contracts, messages, and financial records that exist on day one are the same ones that will end up in front of the trier of fact. The work of finding the documents, organizing them, and deposing the people who created them is what separates a case that resolves favorably from one that drags on at increasing expense. Settlement leverage comes from preparation, not from threats.

Settlement is the most common ending — and that is fine.
The vast majority of civil cases settle before trial, and that is not a failure. A negotiated resolution that ends the dispute, preserves capital, and lets a business get back to running itself is often a better outcome than a verdict two years later. The cases that settle on the best terms are the ones where the other side genuinely believed we were ready to try them. Bluffing into trial is how cases go badly. Preparing into trial is how they end well.

Every civil case turns on its own facts, and no general guidance replaces a real conversation about a specific dispute. If you are facing a contract dispute, a business breakup, a construction payment problem, or any other civil matter in the Ark-La-Tex region, an early conversation with a litigation lawyer almost always pays for itself — even if the recommendation that comes out of it is “do not file.”

If you would like to talk through a matter, Jeff Elliott Law Firm is in Texarkana and handles civil litigation across Northeast Texas and Southwest Arkansas.

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