Texas Law360
August 28, 2013
The Texas Supreme Court recently promulgated new rules that require plaintiffs to bracket the damages sought in their initial pleadings and provide an expedited trial process for cases where less than $100,000 is in dispute.
The rules became effective and only apply to cases filed on or after March 1, 2013.[1] The expedited trial process limits discovery, confines the court’s ability to require alternative dispute resolution, mandates quick trial settings and provides for abbreviated trials.
While the new rules were intended to address an overload of the Texas court system, many of the new provisions seem at odds with the ultimate goal — to aid in the prompt, efficient and cost-effective resolution of cases.[2] With the discovery period ending in the first cases governed by the expedited trial process, and trials soon to follow, a review of the new rules and their potential effects is warranted.
Pleadings
Under the new Texas Rule of Civil Procedure 47, plaintiffs must bracket their damages in their original pleadings.[3] The bracket choices are incorporated into the new Civil Case Information Sheet that must be filed with the original petition.
If a plaintiff does not bracket her damages in her pleadings, the court must require amendment upon special exception filed by the opposition, and the plaintiff cannot conduct discovery until her pleadings are amended to comply.[4]
The new TRCP 47 may surprise many practitioners because the old TRCP 47 specifically prohibited plaintiffs from pleading a specific amount of unliquidated damages.[5] Two uses for the new pleading requirements are clear.
First, a plaintiff arguably limits her recovery to the top of the chosen bracket. The expedited trial process found in TRCP 169, applicable to one particular bracket, specifically provides that a plaintiff cannot recover more than the top of that bracket.[6] The same statement is not made in TRCP 47, or elsewhere, regarding the other brackets but it would arguably be the case.
Second, the new pleading requirements may make removal to federal court based on diversity jurisdiction more streamlined.
Under the old rules, removal was often challenged because a defendant had to prove by a preponderance of the evidence that the $75,000 amount-in-controversy requirement was satisfied — often a difficult feat when no specific dollar amount was pled.[7] The new damages brackets will provide defendants with evidence of the amount in controversy and straight from the horse’s mouth.
Expedited Trial Process
The new expedited trial process provided in TRCP 169 applies to suits in which all claimants, other than counterclaimants, affirmatively plead that they seek only monetary relief aggregating $100,000 or less, including damages of any kind, penalties, costs, expenses, prejudgment interest and attorneys’ fees.[8]
A claimant who prosecutes a case under the expedited trial process cannot recover more than $100,000, excluding post-judgment interest.[9] Cases must be removed from the expedited process upon a motion and showing of good cause or if any claimant files a pleading, amended pleading or supplemental pleading seeking relief outside of that allowed under TRCP 169(a)(1).[10]
The comments to TRCP 169 offer guidance as to what is required to prove “good cause”:
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whether the damage sought by multiple claimants against the same defendant exceed in the aggregate the relief allowed under TRCP 169(a)(1);
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whether a defendant has filed a compulsory counterclaim in good faith that seeks relief other than that allowed under TRCP 169(a)(1);
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the number of parties and witnesses;
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the complexity of the legal and factual issues; and
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whether an interpreter is necessary.[11]
Expedited Trial Process — ADR
Cases in the expedited trial process are governed by special ADR rules. The court cannot force the parties engaged in the expedited trial process to ADR if the parties agree not to engage in ADR.[12] If the parties have not made such an agreement, the court may refer the case to an ADR procedure, but the procedure must:
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not exceed a half day in length,
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not exceed a total cost of twice the amount of the applicable civil filing fees, and
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be completed no later than 60 days before the initial trial setting.[13]
However, the parties may agree to participate in ADR governed by rules other than the default rules provided above.[14]
Limiting the court’s ability to mandate ADR prior to trial is a trivial part of the new expedited trial process. While it may reduce mandatory costs on litigants, it arguably does not serve the overall purpose of reducing the current load in the court system — a goal met by forcing litigants to at least attempt to resolve disputes outside of trial.
Expedited Trial Process — Discovery
Discovery under the expedited trial process is governed by TRCP 190.2.[15] The expedited trial discovery rules are as follows:
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Discovery Period: begins when suit is filed and ends 180 days after the date the first request for discovery of any kind is served on a party.[16]
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Total Time for Oral Depositions: Each party has no more than six hours total to examine and cross-examine all witnesses in oral depositions. The parties can agree to expand up to 10 hours, but not more without a court order. The court can modify this rule to eliminate any party’s advantage.[17]
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Interrogatories: Each party gets 15 interrogatories for each other party, excluding interrogatories only asking to identify or authenticate documents.[18]
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Production Requests: Each party gets 15 requests for production for each other party.[19]
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Admissions: Each party gets 15 requests for admissions for each other party.[20]
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Disclosure: In addition to the standard TRCP 194.2 disclosures, a party may request disclosure of all documents, electronic information and tangible items that the disclosing party has in its possession, custody or control, and may use to support its claims or defenses. A request for disclosure pursuant to this paragraph is not considered a request for production.[21]
While the rules governing discovery in the new expedited trial process limit the number of standard requests at each party’s disposal, they dispose of much of the need for specific, narrowly tailored production requests with the new disclosure request provided in TRCP 190.2(b)(6).
Similar to federal court requirements, this new disclosure procedure appears to require the parties to exchange many relevant documents triggered simply by the invocation of the disclosure rule. The need for many of the specific, narrowly tailored production requests necessary under the standard rules is somewhat relieved.
Perhaps more intriguing is the total of six hours allocated for depositions. This simply would not be enough time in many cases — regardless of whether they involve only fact witnesses or also experts.
Arguably, insufficient deposition time could provide good cause to remove a case from the expedited trial process if the case’s complexity warrants additional time. Such an argument should be raised early in the litigation.
Expedited Trial Process — Trial
On any party’s request, the court must set the case for a trial date that is within 90 days after the discovery period ends.[22] The court may continue the case twice, not to exceed a total of 60 days.[23] Each side has eight hours within which to present its case, which the court may extend to no more than 12 hours per side upon a motion and showing of good cause.[24]
In expedited trials, expert testimony can only be challenged as an objection to summary-judgment evidence or during trial on the merits, unless being challenged by the party sponsoring the expert.[25] This seems to mean that Robinson motions are not allowed before trial unless filed in connection with an objection to evidence filed in support of a motion for summary judgment, or at the request of the sponsoring party.
The inclusion of this rule also clearly indicates that the inclusion of an expert alone does not create enough complexity in a case to remove it from the expedited trial process — the rules clearly contemplate experts’ participation.
Summary
The expedited trial process only began in March 2013. The earliest possible discovery period ended Aug. 28, 2013, and the earliest trial deadline would be Nov. 26, 2013.
It is clear that there are wrinkles in the system that need ironing out, but because no expedited case has been completed, we expect many additional issues will surface. Case law will develop as these cases go to trial and perhaps, many of the visible wrinkles will be ironed out.
Expedited cases are currently unchartered territory, and knowledge of the language of the new rules in conjunction with an analysis of advantages/disadvantages created thereunder are currently the best weapons available.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Misc. Docket No. 13-9022 at p.1 (Tex. Feb. 12, 2013, order) (not applicable to cases filed in Justice Court).
[2] TRCP 169, comment 2.
[3] This rule does not apply to cases governed by the Family Code. TRCP 47(c).
[4] TRCP 47.
[5] TRCP 47(b) (amended 2013) (“An original pleading ... shall contain ... in all claims for unliquidated damages only the statement that the damages are within the jurisdictional limits of the court.”) (emphasis added).
[6] TRCP 169(b).
[7] See Mumfrey v. CVS Pharmacy Inc., 719 F.3d 392, 398 (5th Cir. Jun. 10, 2013) (acknowledging that “amount disputes” may become less common under the new TRCP 47).
[8] The new expedited trial rules do not apply to Justice of the Peace suits or cases governed by the Family Code, Property Code, Tax Code or Chapter 74 of the Civil Practice & Remedies Code (healthcare liabilities claims). TRCP 169(a)(1)-(2).
[9] TRCP 169(b).
[10] TRCP 169(c).
[11] TRCP 169, comment 3.
[12] TRCP 169(d)(4).
[13] TRCP 169(d)(4)(A)(i)-(iii).
[14] TRCP 169(d)(4)(C).
[15] TRCP 169(d)(1) and TRCP 190.2(a)(1).
[16] TRCP 190.2(b)(1).
[17] TRCP 190.2(b)(2).
[18] TRCP 190.2(b)(3).
[19] TRCP 190.2(b)(4).
[20] TRCP 190.2(b)(5).
[21] TRCP 190.2(b)(6).
[22] TRCP 169(d)(2).
[23] TRCP 169(d)(2).
[24] This includes jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing arguments. Time spent on objections, bench conferences, bills of exception and challenges for cause to a juror are not included. TRCP 169(d)(3).
[25] This does not apply to motions to strike for late designation. TRCP 169(d)(5).
