St. Mary's Law Journal


L. Wayne Scott


When lawyers are well prepared, know the law, present the law, and have it ignored by judges who interpret the law in their own way, it can be frustrating. When courts publish opinions embodying this attitude, students, too, become frustrated or conclude that the law is whatever judges decide it should be. This Article does not focus on unethical judges who decide cases with wrong motives but, rather, it focuses on ethical judges who are faced with “hard” cases and have the dilemma of deciding the case, either by the rule or by the judge’s concept of fairness. In both instances, the judge may ignore or refuse to apply a plainly written rule. The purpose of this Article is to propose a set of standards that may be used in difficult cases and demonstrate the impropriety of ignoring the rule when the case is not truly difficult. This Article presents the proposition that the Texas Rules of Procedure should be interpreted as written and clarified over time by decisions that make the rules fair and functional. The application of certain rules presents dilemmas, because literal application may result in perceived injustice. Both the trial and appellate levels have methods of solving these dilemmas of interpretation. At the trial level, if the matter is not one of jurisdiction, the judge has discretion to give the fairest interpretation possible. At the appellate level, if the issue is one of jurisdiction and the dilemma is caused by internal factors attributable to the party, the courts should enforce the rules as written. However, if the dilemma is caused by external events, it is more proper to do justice in such a way that it prevents injustice being done. It is proposed that the Texas courts avoid ad hoc application of secondary rules. Secondary rules should not be used to alter the direct language in primary rules except in the most extraordinary of circumstances, which do not result from fault of the party.


St. Mary's University School of Law