TRCP 169: Texas Creates a Litigation Fast Lane, But Makes the Lane Very Narrow

cw20_8_narrow_lanes_aheadJust over one year ago, the Texas Supreme Court promulgated sweeping changes to Texas pre-trial and trial procedure. The new rules fell into two very broad categories: (1) rules attempting to reduce the time and expense of unmeritorious claims, specifically Rule 91a; and (2) rules attempting to reduce the time and expense of claims that fall below a certain amount in controversy. Rule 47 is a procedural rule designed to triage cases based primarily on the amount in controversy. But the granddaddy of them all, Rule 169, completely upends both pre-trial and trial rules for the limited cases that end up on Rule 169’s fast lane. But after a year of implementation, it appears that while the lane may be fast, it is treacherously narrow.

According to Texas Rule of Civil Procedure 169(a)(1), the scope of the rule is limited 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 fees.” Rule 169(a)(2) further limits the expedited actions process by exempting “claim(s) governed by the Family Code, the Property Code, the Tax Code, or Chapter 74 of the Civil Practice & Remedies Code.” The comments to the rule state that “[t]he expedited actions process created by Rule 169 is mandatory; any suit that falls within the definition of 169(a)(1) is subject to the provisions of the rule.”

But even if you can get your case on the fast lane, Rule 169(c)(1)(A)-(B) provides that “[a] court must remove a suit from the expedited actions process: (A) on motion and a showing of good cause by any party; or (B) if any claimant, other than a counter-claimant, files a pleading or an amended or supplemental pleading that seeks any relief other than the monetary relief allowed by (a)(1).” Rule 169(c)(2) mandates that “[a] pleading, amended pleading, or supplemental pleading that removes a suit from the expedited actions process may not be filed without leave of court unless it is filed before the earlier of 30 days after the discovery period is closed or 30 days before the date set for trial. Leave to amend may be granted only if good cause for filing the pleading outweighs any prejudice to an opposing party.” As you can undoubtedly see, Rule 169(a) and (c) makes the new fast lane very narrow indeed.

For those cases that can navigate the pitfalls of the narrow fast lane, the speed of litigation is substantially increased. Rule 169(d) outlines, from initial discovery through trial, the limitations of the expedited action process.

Discovery

Rule 169(d)(1) provides that “discovery is governed by Rule 190.2.” A quick turn of the page over to Rule 190.2(b) uncovers the litany of restrictions governing discovery on the fast lane:

(b) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations:

(1) Discovery period. All discovery must be conducted during the discovery period, which begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party.

(2) Total time for oral depositions. Each party may have no more than six hours in total to examine and cross-examine all witnesses in oral depositions. The parties may agree to expand this limit up to ten hours in total, but not more except by court order. The court may modify the deposition hours so that no party is given unfair advantage.

(3) Interrogatories. Any party may serve on any other party no more than 15 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory.

(4) Requests for Production. Any party may serve on any other party no more than 15 written requests for production. Each discrete subpart of a request for production is considered a separate request for production.

(5) Requests for Admissions. Any party may serve on any other party no more than 15 written requests for admissions. Each discrete subpart of a request for admission is considered a separate request for admission.

(6) Requests for Disclosure. In addition to the content subject to disclosure under Rule 194.2, a party may 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. A request for disclosure made pursuant to this paragraph is not considered a request for production.

Experts

Rule 169(d)(5) Limits challenges to experts in expedited actions. Under the rule, “[u]nless requested a party may only challenge the admissibility of expert testimony as an objection to summary judgment evidence under Rule 166a or during the trial on the merits.” But this Rule does not apply to a motion to strike for late designation.

Mediation

Before the case reaches trial, Rule 169(d)(4) provides that “unless the parties have agreed not to engage in alternative dispute resolution, the court may refer the case to an alternative dispute resolution procedure once, and the procedure must: (i) not exceed a half-day in duration, excluding scheduling time; (ii) not exceed a total cost of twice the amount of applicable civil filing fees; and (iii) be completed no later than 60 days before the initial trial setting.” Rule 169(d)(4)(C) does allow for the parties to “agree to engage in alternative dispute resolution other than that provided for in (A).”

Trial Setting

Rule 169(d)(2) provides that “on any party’s request, the court must set the case for a trial date that is within 90 days after the discovery period in Rule 190.2(b)(1) ends. The court may continue the case twice, not to exceed a total of 60 days.” As seen above, the discovery period under Rule 190.2(b)(1) is “180 days after the date the first request for discovery of any kind is served on a party.” Adding the discretionary extension of 60 days, the fast lane statutorily mandates a case be set for trial no more than 11 months from the first discovery request. Very fast indeed.

Trial

Once the case reaches trial, Rule 169(d)(3) mandates that “each side is allowed no more than eight hours to complete jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing arguments. On motion and a showing of good cause by any party, the court may extend the time limit to no more than twelve hours per side.” Fortunately, “time spent on objections, bench conferences, bills of exception, and challenges for cause to a juror under Rule 228 are not included in the time limit.”

As shown above, the fast lane is indeed very fast. And narrow. And as is often the case with treacherous roads, there are pitfalls awaiting the unwary litigator. The first pitfall is in the pleading itself. Rule 169(a)(1) states explicitly that the scope of the rule is limited to “a suit in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief…” By the plain language of the rule, declaratory judgment suits, suits seeking injunctive relief, and suits seeking equitable relief (other than money) are excluded from the expedited action rules.

The next pitfall is that you can greatly increase the cost of litigation if you plead out of the expedited procedure. Rule 190.2(c) provides that “[i]f a suit is removed from the expedited actions process in Rule 169 or, in a divorce, the filing of a pleading renders this subdivision no longer applicable, the discovery period reopens, and discovery must be completed within the limitations provided in Rules 190.3 or 190.4, whichever is applicable. Any person previously deposed may be redeposed. On motion of any party, the court should continue the trial date if necessary to permit completion of discovery.”

Another pitfall involves expert disclosures. While the rules modify the discovery period, limiting it to a mere 180 days from the date of the first discovery request, the rules do not modify the expert disclosure rules. Rule 195.2(a)-(b) provides that experts must be disclosed “with regard to all experts testifying for a party seeking affirmative relief, 90 days before the end of the discovery period; with regard to all other experts, 60 days before the end of the discovery period.” Under the expedited rules, that means Plaintiff has less than three months from the first discovery request to designate experts, and defendants get four months. And as highlighted above, one of the only challenges allowed under the expedited rules is a challenge for late designation.

Undoubtedly, these are just a few of the pitfalls on Texas’s new expedited-actions process. But they are pitfalls that can be readily avoided by the informed litigator.

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