The Texas Supreme Court adopted new rules for expedited actions that apply to cases filed on or after March 1. Personal-injury lawyers must be aware of the way these rules will change how they file pleadings, plan discovery and try cases.
Under Texas Rule of Civil Procedure 47(c), every pleading now must include a statement of how much monetary relief the plaintiff seeks, broken down into five categories:
• monetary relief only of $100,000 or less;
• monetary relief of $100,000 or less and nonmonetary relief;
• monetary relief of more than $100,000 but not more than $200,000;
• monetary relief more than $200,000 but not more than $1 million; and
• monetary relief of more than $1 million.
Failure to state the monetary relief sought bars a plaintiff from conducting discovery until she amends her pleading to comply.
If a plaintiff states that she is seeking only monetary relief of $100,000 or less (including damages of any kind, penalties, costs, attorney fees, expenses and prejudgment interest), her suit must proceed under the new expedited-actions rules.
If there is any chance — even if it is a long shot — that a jury or judge will award the plaintiff more than $100,000, she should not plead her way into the expedited-actions rule. The reason is simple. Under Rule 169(b), a party who pursues an action under the expedited-actions rules cannot recover a judgment in excess of $100,000 (excluding post-judgment interest) — regardless of what the jury or judge awards.
A plaintiff choosing to pursue an action under the expedited-actions rules should take full advantage of the rule's speeded-up nature.
First, counsel should make sure to serve discovery with the original petition. Under Rule 190.2(b)(1), this will automatically set the discovery period for the next 180 days.
Next, counsel should move the court to set a trial date. Under Rule 169(d)(2), the court "must set" the case for a trial date within 90 days after the discovery period ends. If a plaintiff serves discovery simultaneously with her petition and requests a trial date, she should expect to get an initial trial setting within 270 days (nine months) of when she first filed suit.
The court may continue the trial setting twice but not for a total of more than 60 days. Per the new rules' plain language, a plaintiff should get to trial within 11 months of filing her petition if she immediately serves discovery. The rules do not address how a court is to handle ensuring that this is accomplished in light of all of the older cases on the trial docket.
When moving the court for a trial setting, counsel for the plaintiff also should move the court to enter a docket-control order setting deadlines for expert designations, joinder, responsible third party designations, dispositive motions and amendments to pleadings. This will help a plaintiff prevent litigation and trial by ambush.
Because the expedited-actions rules limit the amount of discovery, a plaintiff should begin with only requests for disclosure. But counsel should not simply serve the standard form of requests for disclosure. Rule 190.2(b)(6) now allows a party to 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."
It is critical for plaintiffs lawyers to add this category to their standard Rule 194 requests for disclosure. Receiving these responsive documents should help in drafting future discovery. Further, if a defendant attempts to introduce something at trial that it should have disclosed in response to this new category but didn't, the plaintiff has a better chance of excluding it.
After receiving and reviewing the documents produced in response to this new request for disclosure, a plaintiff carefully should draft and serve other discovery. Subsections of Rule 190.2 limit a party to 15 requests for production, 15 interrogatories and 15 requests for admission.
Rule 190.2(b)(2) limits examination and cross-examination of all deposition witnesses to six hours per side, unless the parties agree to an extension to 10 hours per side. If plaintiff's counsel knows she will need more than six hours for depositions, she should reach out to opposing counsel early to try to reach an agreement. If that's unsuccessful, she should move the court for additional hours in depositions.
A plaintiff should not spend her time preparing a pretrial challenge to the opposing side's experts under the U.S. Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals and the Texas Supreme Court's 1995 decision in E.I. du Pont de Nemours and Co. Inc. v. Robinson. That's because Rule 169(d)(5) provides that the judge cannot hear such a challenge until trial, unless the party offering the expert agrees to an earlier challenge or the challenge relates to an objection to summary judgment evidence. If a defendant challenges a plaintiff's expert pretrial, plaintiff should move to continue any setting on the challenge until trial, per the plain language of the new rules.
Rule 169(d)(3) only allows each side eight hours to complete jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing. If the trial setting nears and a plaintiff realizes that she will need more than eight hours to pick a jury, open, present her case, cross-examine and close, she should move the court immediately for more time.
The rules allow a maximum of 12 hours total per side upon showing of good cause. The new rules are unclear about how and whether the time limits can be allotted. But a plaintiff must be conscious of the time she has used to avoid a scenario in which she only has 10 minutes left to close and the opposing side has two hours.
Whether attorneys like it or not, the final versions of the expedited-actions rules are in place. Counsel will have to wait to see their full effect.