Last year, controversial pro se divorce forms prompted Texas family law groups to criticize the Texas Supreme Court. A new fight is taking shape for 2013, pitting plaintiff and defense-side trial lawyers against the high court.

The dispute concerns the Supreme Court’s proposed rule for expedited actions in cases seeking less than $100,000. The 2011 tort reform law, House Bill 274, required the court to create the expedited-action rule.

A diverse coalition of legal groups thought expedited actions should be voluntary. But on Nov. 13 the court proposed a mandatory expedited-action rule and opened a public-comment period that lasts through Feb. 1. The court could amend the rule based on public comment before it becomes effective March 1.

Proposed Texas Rule of Civil Procedure Rule 169 would apply to suits seeking $100,000 or less, including all damages, attorney fees, costs and interest. If a plaintiff sought $100,000 or less, he would trigger a mandatory expedited action, imposing limits on discovery and trial time.

Texans for Lawsuit Reform support the court’s decision to make the rule mandatory. But many other legal organizations criticize it and voice support instead for a voluntary version that requires both plaintiff and defendant to agree to an expedited action: the Texas Association of Defense Counsel, the Texas Trial Lawyers Association, the Texas Chapters of the American Board of Trial Advocates, the Texas Civil Justice League, and at least seven other local and specialty bar associations.

Some opponents say a mandatory rule won’t accomplish the Legislature’s goal of decreasing litigation costs and delays, the rule isn’t fair to defendants, and plaintiffs purposely may sidestep mandatory expedited actions.

But proponents say the Legislature intended expedited actions to be mandatory and it’s the only way to decrease litigation costs and move smaller cases quickly through the justice system.

David Chamberlain

David Chamberlain, treasurer-secretary of Tex-ABOTA, explains that Tex-ABOTA, TADC and TTLA representatives met in summer 2011 to draft an expedited action proposal. The groups “ardently support” the voluntary approach.

“It’s just not a good idea to take a cookie-cutter approach,” says Chamberlain, senior partner in Chamberlain McHaney in Austin. He says he’s spoken with lawyers who say an expedited action “ought to require client consent, not just a rule of civil procedure that tells them what they are going to do.”

George Christian, senior counsel for the Texas Civil Justice League, says he followed HB 274 closely and he doesn’t think the Legislature called for a mandatory rule. The league thinks it won’t work.

“I’m not sure it’s a good policy to treat some defendants differently than others simply because of an arbitrary number that’s assigned to the case: $100,000. If $101,000, you get a different defense than if you get $99,999.99,” explains Christian, an Austin solo.

But Texas Supreme Court Justice Nathan Hecht says the court had to make expedited actions mandatory to meet the Legislature’s directive to “resolve people’s disputes with affordable costs and a reasonable time.” Hecht says a voluntary approach wouldn’t achieve the goal.

Texas Civil Justice
League Senior Counsel
George Christian

“Lawyers can always agree. They can always agree that, ‘We will do things this way.’ Nothing is changing that. But it is the inability of lawyers to agree, when they don’t see their interest aligned — which frequently happens when you are on opposite sides of a lawsuit,” Hecht says.

Lee Parsley, speaking on behalf of Texans for Lawsuit Reform, says he respects Tex-ABOTA, TADC and TTLA, but he says lawyer groups have “different interests” than the Supreme Court and the public.

“The question is: Is the overall policy in the best interests of the state of Texas? We think it is,” says Parsley, an Austin solo and outside counsel to TLR. “The fact that groups of lawyers can find ways to pick at the details doesn’t mean the overall policy isn’t a good policy that should be implemented.”

The Rule

The Supreme Court approved the rule for expedited actions in a per curiam order that says, when passing HB 274, the Legislature and governor “have directed that a more determined effort be made to reduce the expense and delay of litigation, while maintaining fairness to litigants. Small measures cannot achieve that directive. These rules are a significant effort to improve the efficiency of the Texas court system while protecting the rights of litigants.”

The proposal also includes a change to TRCP 47 to require parties to include a statement in original pleadings to specify the amount they seek in damages: $100,000 or less; $100,000 or less and non-monetary relief; between $100,000 to $500,000; between $500,000 to $1 million; or over $1 million.

Proposed Rule 169 lays out the expedited action procedure. A plaintiff in an expedited action would never be able to recover more than $100,000. Any party could file a motion for good cause asking a court to remove a case from the expedited action process. A court would also remove suits from the process if the plaintiff amended his pleading to seek more than $100,000.

The court’s proposal amends TRCP Rule 190 to include the discovery limitations for expedited trials. Discovery would last 180 days. Depositions would involve six hours per side unless both parties agreed to extend the limit to 10 hours. Parties would get 15 each of interrogatories, requests for production and requests for admissions.

Proposed Rule 169 says any party could request the court to set a trial date for 90 days after discovery. At trial, each side would get five hours total for jury selection, opening statements, presenting evidence and witnesses, cross-examination and closing arguments.

A court could not refer cases to alternative dispute resolution unless the parties agreed to it or a contract between them required it.

Hecht has high hopes for the expedited action rule.

“It’s a way for the civil justice system to do what it’s supposed to do best: resolve people’s disputes with affordable costs and a reasonable time. I hope it will bring trial lawyers back into the courthouse. . . . I hope it will rejuvenate the civil justice system,” Hecht says.

Hecht is the liaison to the high court’s rule-drafting committee, the Texas Supreme Court Advisory Committee, which favored the voluntary rule. The committee’s vote isn’t binding on the court. [See "The $100,000 Question; Should Expedited Trials Be Mandatory Or Voluntary?"  Texas Lawyer, Feb. 6, 2012, page 1].

Defense Critique

TADC President Dan Worthington says the expedited-actions process isn’t fair, because a plaintiff would choose an expedited action by specifying damages of $100,000 or less, but a defendant doesn’t have any choice.

Texas Association of
Defense Counsel President
Dan Worthington

He says the rule treats cases the same based on the dollar amount, but in professional-malpractice cases, for example, the defendant is concerned about more than money.

“There’s an infinite number of factual scenarios where the stigma or the reputation would greatly trump the monetary amount,” says Worthington, partner in Atlas, Hall & Rodriguez in McAllen.

He also notes the dollar value shouldn’t solely determine if a case gets expedited, because some low-dollar cases are complicated and need full discovery and the time at trial to present numerous witnesses.

Instead of facing a mandatory expedited action, a defense lawyer should have a chance to tell his client, “‘Look, this is a case where the facts are simple. There are few witnesses. I think we will win a trial. Let’s agree to the expedited system,’” says Worthington.

He highlighted other concerns in a Dec. 6 letter to Texas Supreme Court Rules Attorney Marisa Secco, who accepts public comments for the court. Among other things, Worthington writes that a case would still be expedited if a defendant filed a $1 million counterclaim or a counterclaim for non-monetary relief, or if multiple plaintiffs filed cases for $100,000 against the same defendant.

Forcing a defendant to defend cases like that with limited discovery and a five-hour trial, “amounts to an unfair denial of a meaningful right to a jury trial,” Worthington writes.

But Hecht says such a defendant could show good cause and ask the trial court to relieve him from the expedited action rules.

“[T]he trial court should take all those things in account,” says Hecht.

He says during the public comment period, the court will “revisit” the concern that multiple plaintiffs could bring smaller claims against the same defendant, and the case would still be expedited.

A Plaintiff’s Perspective

TTLA President Brad Parker says he thinks plaintiffs’ lawyers will be careful before counseling clients to plead less than $100,000, triggering the expedited-action rule.

Texas Trial Lawyers
Association President
Brad Parker

Once a plaintiff is in the expedited process, he would never be able to recover more than $100,000, even if the jury returned a verdict of $130,000, for example.

“It kind of has ‘malpractice’ written on it,” says Parker, shareholder in Parker McDonald in Fort Worth.

He says he’d recommend that any plaintiff’s lawyer avoid entering an expedited action if a client’s economic damages exceed $50,000 and there’s a chance a jury would award more than $50,000 for pain and suffering or emotional anguish.

Parker says he thinks plaintiffs would use expedited actions more readily if the procedure were voluntary.

Chamberlain explains that a voluntary expedited-action rule could do more than a mandatory rule: reduce the size of juries from 12 to six jurors; reduce the number of pre-emptory challenges; limit appeals; and more. But including such limitations in a mandatory expedited action would violate statutory and constitutional rights, Chamberlain says.

Parker says he thinks plaintiffs would especially value the promise of no appeals under a voluntary rule. He says a plaintiff’s lawyer would tell his client about the tradeoff: The client’s damages would be capped at $100,000 but he’d quickly have a decision and closure, because there wouldn’t be an appeal.

Without eliminating appeals, Parker says, “I don’t know what the benefit to using the rule really is, quite frankly, from a plaintiff’s perspective.”

Responding to that critique, Hecht says, “If the plaintiff and defendant want to agree to no appeal, they can do that. They don’t need a rule to do that. They can agree to limits on recovery. They can agree to deposition times. They can agree to no appeals.”

But Hecht continues, “The problem with the so-called voluntary approach is nothing happens if the parties don’t agree. . . . It’s very unusual for opponents to think that the same thing is equally good for both of them and they should agree.”

Parsley also says he doesn’t think a plaintiff and defendant would agree to enter an expedited process.

Parsley says he thinks lawyers “are slow to change what they are comfortable with,” and he explains, “This is a new process. It limits discovery and requires them to try a case in a limited amount of time. That is an uncomfortable idea to lawyers who are used to a process that allows unlimited discovery and as much time as a judge will give them.”

Rule 47

The lawyers’ associations also raise concerns about the change to TRCP Rule 47 that requires a plaintiff to plead specific amounts in damages. Chamberlain says HB 274 didn’t require the change.

“That should be removed,” Chamberlain says.

Christian says the change will affect “traditional practice,” and he thinks the Legislature should be responsible for such things.

“A lot has sprung out of this general statutory directive,” Christian says. “I don’t know if changing the practice in this way was envisioned.”

Parker says he thinks the court made the change because it “wants to expand the mandatory rule to include cases higher than $100,000.”

Hecht explains that the Rule 47 change “will help us get better information about what cases are being filed.”

He says the Legislature may have chosen expedited actions for cases under $100,000 simply because that’s a round, six-figure number, but no one knows how many cases seek that amount.

“[I]f there were a whole lot of actions in the next group up, and some sort of expedited procedure would work for them, then we might consider expanding this procedure for different kinds of cases,” says Hecht.