Helping Trial Lawyers Navigate the Appellate System

Certificates of Merit: Don’t Let Your Lawsuit End Before It Begins

9607147409_82d5f52659_oClients have called upon me with increasing frequency regarding certificate of merit issues. While somewhat innocuous, I have found that real danger lurks behind the certificate of merit requirements contained in Chapter 150 of the Texas Civil Practice and Remedies Code. Noncompliance, for example, may lead to dismissal with prejudice. Because of the potential harm and the frequency of interlocutory appeals concerning Chapter 150 issues, it makes sense to consult with an appellate professional with experience in these matters before filing a certificate.

In 2003, the Legislature enacted Chapter 150 as a threshold requirement to demonstrate merit in suits against professionals like engineers and architects. The Legislature made some notable changes to the statute in 2005 and 2009. Although the Legislature has diligently refined Chapter 150, it has never established the standard for a trial court to employ when deciding to dismiss the case with or without prejudice. And, appellate courts have yet to help guide trial courts in making these decisions.

Nonetheless, between the statute’s relatively frequent revisions, defending parties’ willingness to challenge a certificate’s adequacy, and the built-in interlocutory appeal of grants or denials of motions to dismiss, Chapter 150 jurisprudence is ever evolving. The law’s developing nature has also spawned some unresolved inconsistencies between different intermediate appellate courts that could trip up unwary filers.

In my experience, filers could avoid most pitfalls by making simple modifications to their certificates of merit before filing. Further, I believe involving appellate professionals early in the process can also provide the client with a jump on what often leads to defending against motions to dismiss and participating in interlocutory appeals. It also helps prevent leaving the suit’s fate in the trial court’s relatively unfettered hands to decide whether the court should dismiss your otherwise meritorious suit with prejudice.

Image courtesy of Flickr by Joe Haupt.

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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