The new expedited trial rules (specifically, amendments to TRCP 47, 169, 190.2 and 190.5) will go into effect on MARCH 1, 2013.
Virtually every faction of the litigation community has opposed the mandatory nature of the rules. The Plaintiffs’ bar does not like the rules because they discourage novel litigation by forcing a rigid and cookie-cutter approach. The Defense bar does not like them because the rules lump any compulsory counterclaims over $100,000 under the expedited trial rules as long as the plaintiff’s claim is $100,000 or less. The judiciary is not thrilled about the rules because they take away the discretion from the bench and force the judges to act as timekeepers. Finally, the mediators are worried that without the judge-ordered mediation, most litigants will choose to forego it. Regardless of the objections, the Texas Supreme Court has decided to implement the rules. Thus, the practice of law for most us as we know it is about to change. Here are some ideas on what to expect.
Texas Rule of Civil Procedure 47 – Claims for Relief
Damages statement: Under TRCP 47, plaintiffs and counter-plaintiffs must include within their pleading a statement that the claims sought either: (1) are less than 100K; (2) are less than 100K without a claim for non-monetary relief; (3) are between 100k-500K; (4) are between 500K and 1 million; or (5) exceed 1 million. These statements are inclusive of all damages except post-judgment interest.
No discovery may be conducted until the pleading contains the above damages statement.
Although it is not clear whether TRCP 47 applies retroactively or not, expect that come March 1, 2013, defendants will be filing motions to stay discovery until the petitions are amended to include the damages statement. If a new petition is filed after March 1, 2013, as a plaintiff’s attorney, make sure you include the language or you will not be able to conduct discovery. On the defense side, make sure the petition includes the language, and if it does not, file a special exception and/or a motion for protective order to prevent discovery.
On the plaintiff’s side, unless you want to be governed by the expedited trial rules, there is really no reason to plead damages under $100K. The rules do not provide defendants with any special tools to challenge the amount of plead damages, thus, pleading over $100K , will not bear any adverse consequences. In contrast, pleading less than $100K in damages, will ensure that the plaintiff cannot recover more than $100K, even if the jury awards a larger sum. Such result, could lead to some unhappy clients, and, arguably, malpractice claims.
Some of Dallas judges estimate that 50-60% of district court cases will be filed under this expedited trial rules. The percentage might reach 80-85% in the county-court-at-law cases. For example, most of the debt collection and auto-collision cases are expected to fall under the expedited trial rules.
Texas Rule of Civil Procedure 169 – Expedited Actions
Under TRCP 169, the expedited trial process applies to:
(1) suits in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees.
(2) The expedited actions process does not apply to suit in which party has filed claim governed by the Family Code, the Property Code, the Tax Code, or Chapter 74 of the Civil Practice Remedies Code.
Discovery: The discovery in the expedited actions is governed by TRCP 190.2 (see below).
Trial Setting: The court mus set the case for a trial date that is within 90 days after the discovery period ends. Nothing, however, prevents the judge from resetting the case at a later point in time after the original trial date is reached. If, on March 1, a court has a backlog of pre-expedited trial procedure cases, expect the newly filed Rule 169 cases to be reset for trial several times after the original 90-day period ends before they actually go to trial.
Removal from the expedited trial procedure: A plaintiff can remove the case from the expedited procedure by amending the pleading to show damages exceeding $100K. S/he can amend the pleading without leave of court within 30 days of the close of discovery or 30 days before the date set for trial. Otherwise, the plaintiff must seek leave of court and establish that good case outweighs the prejudice to the defendant. The good case standard is pretty low and the judges are not likely to deny the motion to leave as long as some reason for a late amendment is presented to them.
If multiple plaintiffs seek the monetary relief allowed under TRCP 169(a)(1) against the same defendant, the defendant may move to remove the case from the expedited trial procedure.
If a suit is removed from the expedited actions process, then the court must continue the trial date and reopen discovery under Rule 190.2(c).
Trial time: Each side (not party) is allowed five hours to complete all of the following: jury selection, opening statements, presentation of evidence, examination and cross-examination of witness, and closing arguments. If you have a co-defendant or co-plaintiffs, you need to make sure you agree on how to split that time. The judges have no discretion to allow for a longer trial under the rules. They do, however, have discretion in determining how much time within the 5-hour window should be spent on voir dire or opening/closing arguments.
It is not clear under the rules as to who is supposed to keep the time.
The drastic time limitations will force the parties to pick and choose what evidence to present to the jury. A party should strive to get in as much evidence as possible and hope that it will preserve some grounds for appeal.
Expert Testimony: A party may only file Daubert/Robinson motions during the trial; not before. Presumably, the time spent on expert challenges during trial is included in the five-hour trial time limit.
Alternative Dispute Resolution: Unless the parties have agreed to engage in the ADR or are required to do so by contract, the court may not order them to engage in such process. Nevertheless, some judges may issues standing orders requiring “settlement conferences” or “recommend” that the parties engage in mediation.
TRCP 190.2 – Discovery Control Plan (also applies to divorces involving $50K or less)
Under this rule, all discovery must be conducted within 180 days after the date the first request for discovery of any kind served on a party.
Deposition Time: Each party gets no more than six hours to examine & cross-examine all witnesses in oral depositions. Thus, for example, if a plaintiff sues three defendants, the plaintiff gets six hours in deposition time, while defendants get 18 hours. The parties may agree to expand the time to ten hours in total.
RFPs, RFAs, Interrogatories and RFDs: Each party gets 15 RFPs, 15 RFAs, and 15 interrogatories. Additionally, each party is allowed to request a disclosure of all documents, electronic information,a and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. Such an RFD is NOT considered a request for production (although it, technically, is).
Reopening of Discovery: If a suit is removed from the Rule 169 proceedings, the discovery reopens under Rules 190.3 or 190.4, whichever is applicable. Any person previously deposed may be redeposed, and, on a motion of any party, the court should continue the trial date.
TRCP 190.5 – Modification of Discovery Control Plan
Discovery Plan Modification: The court may modify a discovery plan at any time when the interests of justice require. Once again, this standard is pretty low, so expect to see a lot of modification motions in the expedited trial cases.
TRCP 91a – Dismissal of Baseless Causes of Action
Under this rule, a party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. As of now, it appears, that this rule will only help to dismiss the truly frivolous lawsuits and is not likely to change the motion practice significantly. Moreover, the requirement that a judge rule on the motion within 45 days also does not speak in favor of many of such motions being granted.
CONCLUSION: If you do not have a good reason, do not file under TRCP 169. If you end up in an expedited action, remember that the judge can modify the discovery plan and give you more discovery for “good cause.” If you need to get out of the expedited trial procedure, amend the pleading to assert damages over $100K and move to remove the case. Finally, if you end up in an expedited trial, understand that the five-hour limit will probably be enforced rather strictly, so plan accordingly.
Leiza Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP in Dallas, Texas and a Co-Chair of the firm’s Trade Secrets and Non-Compete Disputes national practice. His practice includes commercial, intellectual property and employment litigation. You can contact her directly at Leiza.Dolghih@LewisBrisbois.com or (214) 722-7108.