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.

This is the second 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.

The new Expedited Action Rules adopted by the Texas Supreme Court have brought major revisions and limitations to discovery in cases which fall under them.  The changes have been incorporated into the Level 1 discovery control plan set forth in Rule 190.2 of the Texas Rules of Civil Procedure.  In an expedited action, now the discovery period is 180 days in length, and begins on the date the first request for discovery of any kind is served on a party under Rule 190.2(b)(1).  This can be contrasted with Level 2 discovery under Tex. R. Civ. 190.3(b)(1), because the time period is shorter than the 9 months allowed under Level 2, which begins on the earlier of the date of the first oral deposition or the due date of the first response to written discovery.  Discovery in expedited actions must progress quickly under Level 1, because Level 1 is specifically excluded from Rule 190.5 which allows litigants to modify the discovery control plan in cases outside of Level 1.

Although the forms of discovery have remained consistent for expedited actions (with the exception of an expansion of the request for disclosure practice, discussed below), significant limitations have been placed on the amount of discovery available in an expedited action.  The total time afforded a party to conduct oral depositions in an expedited action, including both direct and cross examination of witnesses, is six hours under Rule 190.2(b)(2).  The parties may agree to expand the limit up to 10 hours in total without court intervention, but not more than that except by court order.  The new rule does give a court power to modify the deposition hours so that no party is given an unfair advantage.  This provision suggests that a court may be allowed to “equalize” deposition hours in a multi-party expedited action, similar to the manner in which a court is allowed to equalize preemptory strikes in a jury trial.

Written discovery has been significantly limited for expedited actions as well.  Parties may only serve 15 interrogatories, excluding those asking a party to identify or authenticate specific documents, under Rule 190.2(b)(3).  Similarly, requests for production and requests for admissions are limited to 15 items each, under Rules 190.2(b)(4) and (5).  The one area in which expedited trial has expanded written discovery is with respect to requests for disclosure.  In addition to the content which is already subject to disclosure under Rule 194.2, a party to an expedited action, under Rule 190.2(b)(3), may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody or control, which it may use in support of its claims or defenses.

All of these limitations mean that litigants in an expedited action must economize in their use of written discovery and depositions.  Written discovery must be narrowly tailored to the major issues in the case.  Depositions must get straight to the point.  Getting proper discovery responses will also be paramount in expedited actions, and it will be interesting to see whether an attendant increase in discovery motions will accompany practice under the new Expedited Action Rules.  The next post in this series will consider changes which will be seen at trials of expedited actions.

This is the first 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.

In May of 2011, the 82^nd Legislature amended Texas Government Code § 22.004(h), to require the Texas Supreme Court to adopt rules “to promote the prompt, efficient, and cost effective resolution of civil actions” in which the amount in controversy, inclusive of all claims for damages of any kind (including actual and exemplary damages, penalties, attorney’s fees, expenses, costs or any other type of damage of any kind), does not exceed $100,000.  Following this mandate, the Texas Supreme Court issued Miscellaneous Docket No. 12-9191 on November 13, 2012, amending Rules 47 and 190 of the Texas Rules of Civil Procedure, and adopting new Rule 169, in order to accommodate the legislature’s directive.  This order was to be effective on March 1, 2013, but allowed for additional amendments to be made in response to comments received on or before February 1, 2013, by any interested party.  Having received and considered comments, on February 12, 2013 the court issued Miscellaneous Docket No. 13-9022 entitled “Final Approval of Rules for Dismissals and Expedited Actions,” incorporating amendments based on those comments.

As would be expected, the new rules for expedited actions involving cases under $100,000 brought with them key changes in procedure.  However, not all of these changes were limited to cases involving amounts in controversy under $100,000.  Indeed the new rules have changed all civil litigation in Texas, in some significant respects.  For example, in order to properly define for courts those cases which would proceed under the Expedited Action Rules, the Supreme Court amended Rule 47(c) to provide that each pleading setting forth an affirmative claim for relief in any case must contain a statement that the pleading party seeks:

(1)       only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest and attorney’s fees; or

(2)       monetary relief of $100,000 or less, and non-monetary relief; or

(3)       monetary relief over $100,000 but not more than $200,000; or

(4)       monetary relief of over $200,000 but not more than $1,000,000; or

(5)       monetary relief over $1,000,000….

This change to Rule 47(c) is significant, not only to define those cases which will proceed under the Expedited Action Rules, but to all litigants in Texas courts, because the amendments to Rule 47 also made compliance with subsection (c) a pre-condition to a litigant conducting any discovery in the suit.  As a practical matter, this means any Texas plaintiff (or counter-plaintiff or cross-plaintiff) who fails to comply with the requirements of Rule 47(c) in the petition can expect to be met with objections rather than responses from his opponents to any discovery which is due prior to the time that the plaintiff amends the petition to comply with the rule.

Although all cases will be affected by this change to Rule 47, the main features of the new Expedited Action Rules set forth in Rule 169 are directed at cases under the $100,000 threshold, with certain exceptions.  New Rule 169(a)(2) provides that medical liability cases are excluded, as are cases brought under the Family Code, Property Code and Tax Code.  One significant, and potentially problematic, aspect of Rule 169(a)(1) governing the application of the Expedited Action Rules is the fact that the value of a counterclaim is excluded from the calculation of the amount in controversy.  This means that in a two-way dispute where one party has a claim it values over $100,000 and the other has an opposing claim it values at under $100,000, a literal race to the courthouse may be the determining factor in whether the party with the larger claim will be forced to litigate it under the significant limitations presented by the Expedited Action Rules.  For cases proceeding under the new Expedited Action Rules, there are significant changes to discovery, deposition, trials and available recovery in these cases.  In the next installment in this series we will examine changes in discovery procedure in expedited actions.