Mandamus Review Of Orders Granting New Trials: What's The Standard?

It used to be that orders granting new trials were effectively not reviewable. But the Texas Supreme Court has started to rein in the discretion of the trial court to grant a new trial. First, the court required a trial court to give "reasonably specific" reasons for granting a new trial; formulaic recitations of "in the interest of justice" were no longer enough. In re Columbia Medical Center of Los Colinas, 290 S.W.3d 204 (Tex. 2009). Then, the court allowed an appellate court to review the stated reasons for granting a new trial to see if they were supported by the underlying record. In re Toyota Motor Sales, 407 S.W. 3d 746 (Tex. 2013). The underlying policy driving these decisions is to preserve the right of trial by jury by ensuring that trial courts do not impermissibly substitute their judgment for that of the jury.

So what is the proper standard of review when a new trial has been granted for reasons related to factual sufficiency? For mandamus relief, the required standard is abuse of discretion. But Toyota Motor Sales allowed the appellate court to review the entire record for factual sufficiency. So does a reviewing court give deference to the trial court's decisions on the sufficiency of the evidence or make its own determination?

The Texas Supreme Court will soon resolve this question. On November 4, 2015, the court heard oral argument in In re Brent (No. 14-1006). There, an insured sued its insurer for not paying claims timely. The...