This is the third post in a series discussing the new rules for Expedited Actions in Texas mandated by the 2011 Amendments to Texas Government Code § 22.004(h) and implemented through the Texas Rules of Civil Procedure, including amendments to Rules 47 and 190, and the addition of new Rule 169.
As previously discussed, Rule 169(a)(1) provides that the expedited actions process will apply to a suit in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney’s fees. The amount of monetary recovery available to a party who prosecutes an expedited action is capped at $100,000, excluding post-judgment interest, under Rule 169(b). Initial trial settings in expedited actions are governed by Rule 169(d)(2), and requires a court to set the case for trial within 90 days after the discovery period ends on any party’s request. Under this rule, the court may continue the case twice, but not exceeding a total of 60 days from the initial trial setting.
Rule 169 provides significant time limits in trial on expedited actions. Under Rule 169(d)(3), each side is allowed no more than 8 hours to complete its entire trial presentation, including jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing arguments. On a motion showing good cause, a court may extend each side’s presentation to a maximum of 12 hours. The term “side” has the same definition as set forth in Rule 233, dealing with preemptory strikes, so that in a multi-defendant case, each party defendant, if interests are aligned with the other defendants, could be looking at putting on its entire case in something less than the full time allotted in the rule.
Alternative dispute resolution is governed by Rule 169(d)(4). Except where the parties have agreed not to engage in ADR, this provision allows a court to refer the case to ADR once, not later than 60 days before the initial trial setting, and the procedure cannot exceed a half day in duration, or exceed a total cost of twice the amount of the applicable civil filing fee in the court. However, the parties may also agree to engage in ADR outside of the rule. This gives a lot of flexibility to the litigants to attempt to resolve their claims, or to recognize the futility of settlement discussions, allowing them to focus on preparing for a short trial on the merits in their expedited action.
Finally, the procedures for challenging the methodology and qualifications of expert witnesses have changed significantly for expedited actions. Under Rule 169(d)(5), such challenges are limited to objecting to an expert’s testimony or work product used in a summary judgment proceeding under Rule 166(a), or during a trial on the merits. Traditional motion practice in this area is precluded in an expedited action. A litigant who has a firm belief that the opposing party’s expert is not qualified, or has used methodology which is unsound, may be forced to use valuable cross-examination time taking the witness on voir dire on these issues.
Obviously, trial practice in an expedited action will be significantly differently from that in other cases. As with discovery and depositions, a party must put a premium on focus and efficiency in the trial presentation. Direct and cross-examination of witnesses which are traditionally more time consuming, such as the named parties and experts, will need to be paired down to the most important points in order to meet the time limitations under the new Expedited Action Rules. However, the Texas Supreme Court did not craft these rules as completely inflexible in all cases. The final post in this series will examine methods afforded for removing a case from the expedited actions process, as well as other practice considerations.