Three sections of the State Bar of Texas submitted letters to the Texas Supreme Court after the Bar’s board of directors on Jan. 25 gave the green light for them to oppose a recently proposed rule of procedure governing expedited actions in low-dollar cases.
The sections join a growing cadre of legal organizations that oppose the proposed Texas Rule of Civil Procedure Rule (TRCP) 169, which expedites cases in which a plaintiff seeks $100,000 or less. The rule mandates a quick timeline, limits on discovery and a short trial, among other things.
The State Bar Policy Manual requires sections to seek the board’s approval before advocating for a position. The three sections oppose the expedited-action rule for different reasons. The Litigation Section says an expedited action should be voluntary, not mandatory; the Alternative Dispute Resolution (ADR) Section claims the rule’s prohibition of ADR will increase court congestion; and the Family Law Section raises technical concerns with two rule amendments about pleading requirements and discovery.
Texas Supreme Court Justice Nathan Hecht, the court’s liaison to the Supreme Court Advisory Committee, says, “I’ll defer comment and wait and discuss it with the court. . . . We’ll look at all comments. That’s what the comment period is for, is to get feedback.”
State Bar president Buck Files didn’t return an email seeking comment.
The Litigation Section‘s concerns echo those of groups such as the Texas Chapters of the American Board of Trial Advocates, the Texas Association of Defense Counsel and the Texas Trial Lawyers Association, among others. [See, " $100,000 Bar: Plaintiff, Defense Groups Join Forces to Oppose Mandatory Rule for Expedited Actions," Texas Lawyer, Jan. 14, 2013, page 1].
Michael C. Smith, a partner in Siebman, Burg, Phillips & Smith in Marshall who chairs the Litigation Section, says, “We believe that a voluntary rule is more consistent with what the Legislature intended, and it will be in the broader interest of justice for litigants, because the litigants will have the ability to determine whether or not the limited discovery is appropriate for their case, rather than have limitations imposed on them without the parties having agreed to it.”
As of presstime on Jan. 31, Smith writes in an email that his section hasn’t submitted its letter to the court but that it will do so before the Feb. 1 deadline.
The ADR Section opposes a part of the expedited-action rule that says a court could not refer cases to ADR unless the parties agreed to it or a contract between them required it.
“We believe that ADR has greatly impacted the congestion of the courts, and to employ a rule that says a judge does not have discretion to designate mediation in a case of any type, whether it’s $100,000 or more than $100,000, we have concern that creates a step backwards,” explains Alvin Zimmerman, who chairs the ADR Section.
The rule also will “provide an excuse for parties not to discuss settlement,” wrote Zimmerman, chairman of the board, director and shareholder in Zimmerman, Axelrad, Meyer, Stern & Wise in Houston in a Jan. 25 letter to Supreme Court Rules Attorney Marisa Secco.
Diana Friedman, who chairs the Family Law Section, noted a couple of technical concerns in Jan. 29 letter to Secco. Among other things, Friedman discussed an amendment to TRCP 190.2, establishing discovery procedures for expedited actions, which also applies to divorce cases seeking less than $50,000. Friedman wrote that the rule limits written discovery but keeps the “current language” for deposition times. But depositions are expensive, wrote Friedman.
“It makes sense to be able to do the written discovery, and that increases the chances you don’t have to do depositions,” Friedman, a Dallas family law solo, says in an interview.
Secco writes in an email that the court already has received 300 public comments regarding the expedited-action rule.