Its an “open” secret in Texas jurisprudence: it does not matter what happens in the lower courts, an employer’s or large corporation’s best chance lies in the Texas Supreme Court. The Texas Supreme Court routinely overrules jury verdicts. See my prior post about the high court taking away jury verdicts here and here.

Gilbert Garcia of the San Antonio Express News acknowledges this reality when he talks about the city’s lawsuit against the police and firefighter unions. The city, no surprise here, is relying on appeals to win the lawsuit. See Mr. Garcia’s column here.

In the Nicholas v. SAWS case earlier this year, the Supreme Court actually changed law to reach its desired result. It changed the requirements for showing retaliation cases. Retaliation cases require that a person opposed discrimination in some way before retaliation could occur. Federal courts had required that a person “reasonably” believe his/her conduct opposed discrimination. The Texas Supreme Court added a new requirement that the opposition be tied to actual discrimination, not merely opposing conduct that could become discrimination. It is the difference between opposing possibly discriminatory conduct and actually discriminatory conduct. The higher court essentially chose to protect the latter and not the former.

In the Mission ISD v. Garcia case in 2012, the Texas Supreme Court imposed a new requirement, that a worker must be replaced by someone younger than 40 years old in an age discrimination case. The long-standing precedent in federal court had been that a person need only allege that the replacement worker was “substantially” younger, or that age was a factor in some way. The higher court’s new requirement is very simplistic – or result oriented.

So, sure, as the city seems to realize, the best trial tactic is to appeal.