The Slow Road to the Courthouse -- Life Under the Current Rules
Civil cases are subject to extensive discovery procedures which are designed, in theory, to permit parties and their attorney an opportunity to best prepare for trial. Trials by ambush are, under these, rules, largely a thing of the past. Of course, with extensive discovery and the costs associated with discovery, trials are themselves becoming a less common event. For years, a party reluctant to proceed to trial could delay a trial for years. Additionally, cases that lacked any colorable claim or were factually ridiculous were difficult to have dismissed until some level of discovery was conducted. And, if a dismissal was obtained, the costs (attorneys' fees) were usually not recoverable.
Rule 47 -- Plaintiffs Must Disclose A Range of Recovery Sought
Plaintiffs in newly-filed cases will be required to state the type of relief that they seek, whether it by monetary compensation, non-monetary relief (i.e., an injunction), or a combination of both. If party seeks in its pleadings monetary relief under $100,000 and is subject to the Expedited Action rules, then recovery will be capped at $100,000, except for post-judgment interest. A party that designates a different range does so to "provide information regarding the nature of cases," but "does not affect [their] substantive rights." TRCP 47, cmt.
Rule 169 -- Parties Can Speed-Up the Process On Smaller Cases
If a party seeks less than $100,000.00 under new Rule 47, the party may be able to limit discovery and proceed to trial relatively quickly. The number of written discovery is reduced substantially, time for depositions are limited, the ability to challenge expert witnesses is limited to certain times, the length of the trial is capped, and a trial setting can be requested within 90 days of the end of discovery.
While this sounds promising to those wanting a "rocket docket," there are limitations. While a court must set a case within 90 days of a party's request and the end of discovery, the court can reset the trial. The defendant can revert to other discovery control plans "upon good cause" shown to the court, which is a fairly liberal standard. The expedited action process also does not apply to suits governed by the Family Code, Property Code, Tax Code, or Chapter 74 of the Civil Practice and Remedies Code (medical liability).
The Shrinking Role of Mediation?
Cases subject to the expedited action rule (Rule 169) cannot be ordered to mediation by a court, whether directly or through any existing local rules. Because mediation has become a critical component of the modern litigation process, parties should expect courts to continue to urge the use of mediation to alleviate the court's docket. I suspect cases that have attempted mediation will move to the top of the court's trial docket faster that expedited actions where the parties have failed to mediate. No rules appear to prohibit a court from providing a preference as between expedited actions on that basis.
Courts are in tune with the costs of mediation using attorney-mediators. While a good argument exists that the use of an attorney-mediator more quickly focuses the litigants and their counsel on a critical issues needed to resolve a case, the costs are higher. I suspect we may see more "suggested referrals" to less expenseive, local DRCs run by non-attorneys.
Dismissing Baseless Claims Under Rule 91a -- A Tool or a Political Statement?
Texas' tort reform process has prompted a variety of procedural changes in the last 10 years. Those procedural changes have affected the landscape of litigation in Texas, particuarly medical malpractice claims. Rule 91a is designed to give court's a mechanism for dismissing "baseless" claims, which include claims for which there is no relief based on the facts pleaded or where the pleaded facts could not be believed by any reasonable person. The last standard should be interesting to see evolve, especially where so many cases involve situations that seasoned attorneys find "unbelievable." Claims for which no relief can be provided will be treated much like cases subject to FRCP 12b. Look for state courts to borrow precedent from that body of law.
This rule has received lots of press because it requires courts to assess costs against a prevailing party on motion made under the rule. The rule gives parties an opportunity to dismiss the claim before being assessed costs/fees.
The New Litigation Landscape?
Don't look for much to change when thinking about huge lawsuits or those types of case excluded from the expedited action rules. Those cases will continue to take time to work through the system and will still require substantial attorneys' fees to prosecute and defend.
For smaller cases, it is hard to tell whether cases will get to trial faster. We may find that cases subject to the expedited process are cheaper to prosecute and defend but difficult to settle because mediation cannot be ordered. If cases do not settle, then we may see a backlog of expedited settings that court's simply can't hear.
From a lawyer's persepctive, the lost art of trying cases may be found again. The rules should make two-day trials more common place. Some parties will appreciate getting to trial, although it will still should take over a year to get there. And, some may resent the literal rush to judgment for cases that call for more time.
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