Lawyers flooded the Texas Supreme Court with comments about a proposed procedural rule governing expedited actions in cases with less than $100,000 at issue. As a result, the court made changes in a Feb. 12 final rule. But some attorneys say the revisions don’t go far enough.
Supreme Court Rules Attorney Marisa Secco says the total number of comments approached 600 "at last count," and they’re still coming in.
Texas Lawyer reviewed 386 comments. Among those, 327 expressed opposition for the proposed expedited-action rule, while only three comments clearly expressed support. Some comments suggested changes without expressing support or opposition.
Among the opposing comments, the most commonly cited main reason was the prohibition of alternative dispute resolution (171 of 386); secondly, people opposed the rule’s mandatory nature (109 of 386). Among other reasons, many opposition comments cited the proposed rule’s limits on discovery and trial time.
Starting on March 1, the rule applies to cases seeking only monetary relief of less than $100,000.
The final rule remains mandatory but includes significant changes to the ADR provision: Now judges may order ADR subject to limits, unless the parties have agreed not to participate in ADR.
The final rule increases the trial time from five to eight hours per side, while allowing an extension to 12 hours for good cause. The discovery limits remain the same.
Responding to other concerns, the court also gave more guidance for trial courts to determine when to remove a case from the expedited process. [For more on the substance of the final rule, see " After tsunami of feedback, Texas Supreme Court revises and issues rule for expedited actions," Tex Parte blog, Feb. 15, 2013.]
Texas Supreme Court Justice Nathan Hecht says the court read the comments as they came in.
"You get a better product when you hear what more people think. . . . I think Scripture says wisdom comes through many counselors. You look at it, you look at it, then you hear another view, and it’s useful," says Hecht, the high court’s liaison to the Supreme Court Advisory Committee, which drafts and reviews changes to the Texas Rules of Civil Procedure.
New ADR Provision
The Texas Attorney-Mediators Coalition submitted a proposal that influenced the change to the ADR provision, Hecht says.
"We were just very pleased we were able to be heard. The Supreme Court listened," says Mike Amis, co-chairman of the group. But Amis notes he’s concerned that the rule sets a cap on ADR fees.
Hecht says the court added the cap on fees to curb costs, and it agreed with other arguments.
"The mediators, many of them pointed out: Sometimes parties who are reluctant to dance need to be brought together and have a serious and unemotional conversation about the litigation. We thought that was right," Hecht says, adding, "Often it saves expense and helps make civil litigation better for people."
Tom Fuller, formerly the judge of Dallas County Criminal Court No. 5, wrote in a comment to the court that he opposed the proposed rule’s prohibition of ADR because it would "clog the dockets" and "extend trial settings," among other things.
He says in an interview the revisions to the rule will reduce that impact, but he’s talked with lawyers and judges who think the expedited action rule could still affect courts’ dockets.
"The concern is, by setting up these mandatory deals, you’re putting a preference to these types of cases over cases that have more money involved. By pushing expedited, I think some larger case are going to be worried they are going to be pushed back," says Fuller.
Mandatory v. Voluntary
Legal groups that wanted voluntary expedited actions are disappointed that the final rule is still mandatory.
"We certainly did have some impact around the edges, but this main issue, compulsory versus voluntary, we didn’t get where we needed to go yet. I suspect we will keep trying," says Texas Association of Defense Counsel president Dan Worthington.
Texas Trial Lawyers Association president Brad Parker says, "I’m not aware of any trial group, attorneys who practice in the area of trying lawsuits, who were in favor of the mandatory provision. I’m real disappointed."
David Chamberlain, treasurer-secretary of the Texas Chapters of the American Board of Trial Advocates, says he thinks the court "did the right thing" in extending the trial time and allowing mediation. A voluntary rule "could do so much more," but a mandatory rule must eliminate many "features," he says.
"I think the watering down is necessary. All cases under $100,000 just aren’t going to fit the pattern. There’s going to have to be flexibility," says Chamberlain, senior partner in Chamberlain McHaney in Austin.
Discovery, Time Limits
Many comments complained that the limits on discovery were too restrictive and would prevent lawyers from fully developing their clients’ cases. Hecht explains why the court did not change the discovery provision, despite the opposition: "The single, chief complaint by lawyers and parties alike about the expense and delay of a civil case is discovery. That’s the only thing they always point to first. . . . Lawyers and judges alike have to do what they can to make sure time and expense are not spent unnecessarily in discovery," Hecht says.
Many comments expressed concern that the proposed rule’s time limits of five hours per side would prevent lawyers from introducing all their witnesses and evidence.
The court listened. In extending the time, the court still wanted a "reasonably short time," Hecht says, noting, "If you don’t constrain it some, you’re not working as you should be to expedite the trial. But if you constrain it too much, you’re not giving people a fair opportunity to present the case."
But Parker and Chamberlain both say that the new time limits won’t produce a very expedited trial. If each side gets eight hours, the trial could last three days; if a judge grants each side the maximum of 12 hours, the trial could last a week, says Chamberlain.
Parker says about the time extension, "I don’t see it being a great determining factor in deciding if you want to go the expedited route."
Parker, shareholder in Parker McDonald in Fort Worth, adds that he thinks plaintiffs will not want to plead into the expedited action rule and that, in any case where the recovery could be more than $100,000, a plaintiff’s lawyer is "really going to have to evaluate how you want to plead the case."
Hecht notes the court will monitor statistics from the Texas Office of Court Administration about the cases that go to trial under the rule; lawyers and judges may provide additional feedback. Considering all those sources, the court could amend the rule over time, Hecht says.
He says he hopes the expedited-action rule will make a civil trial more attainable for people.
"We hope, bottom line, that the courtroom won’t be out of reach for so many people, and they won’t have to hear from their lawyer: ‘You just can’t afford it, sorry,’" says Hecht.
What Lawyers are Saying…
These quotes represent the most common reasons cited in public comments about why people opposed the proposed rule for expedited actions. Those reasons, among others, included that the draft rule prohibited a judge from ordering alternative dispute resolution in expedited actions; that the rule was mandatory instead of voluntary; and that the limits on discovery and trial time were too restrictive. The final rule remains mandatory and leaves the discovery restrictions in place, but among other changes, it contains a complete revision to the ADR provision and it extends the trial time limits.
Dec. 20, 2012
"One of the difficulties I often encounter in my litigation practice is the unrealistic expectations of my clients. The mediation process is something I seek and support in all of my cases, not just to get the opposition to the bargaining table, but also to have the advantage of an experienced and skillful mediator who can assist in reframing my client’s expectations such that resolution of the case without trial is possible."
— Mark A. Salvato, attorney-mediator solo, Houston
Jan. 25, 2013
"These proposed rules deny a litigant the right to an open Court in Texas by restricting the ability of the litigant to put on sufficient evidence to sustain the burden of proof."
— Jerry Andrews, solo, Dallas
Jan. 29, 2013
"How many of us would be satisfied undergoing surgery where the government held a stopwatch on the surgeon, or told him the number of instruments he could use . . . . Our trial courts are in the best position to set limits on discovery and trial time, on a case-by-case basis, and our present system of doing so is not broken."
— Rob Hogan, Hogan Law Firm, Lubbock
Jan. 30, 2013
"For those lawyers who agree that their case should fit into the expedited process, let them pick their own fate. But to pick their fate in advance and place the burden on them to get out of it, for policy reasons that are already served by so many other pre-existing rules, codes, and laws seems too wrong for me to bite my tongue. If we are going to have to have the new rules, at least make them optional."
— Brad Bedwell, associate, Welsh LeBlanc, Houston
Jan. 30, 2013
"I have survived many, many amendments made to the Rules of Civil Procedure, but this last round…absolutely will produce disarray in my law firm. . . . Many of my cases will not have a value of $100,000.00, but since I have many cases, the burden of telling the client that I have to try the case within six months of filing suit and that I only have hours to present all of my witnesses and the doctors is unbelievable. . . ."
— William D. Bonilla Sr., president of The Law Offices Of William D. Bonilla, Corpus Christi