Reprinted with permission from the April 08, 2021 edition of the Texas Lawyer© 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or firstname.lastname@example.org
Author Donald Delgado is a Partner at West Webb Allbritton & Gentry, P.C, in College Station, TX. He is a litigator and represents corporations and individuals, both as plaintiffs and defendants, across a broad range of industries.
Amendments to Texas Rules of Civil Procedure to Shorten Litigation Process and Reduce Cost
There are two main issues that are frustrating for clients who are involved in a lawsuit: the costs associated with a lawsuit and the time it takes to get the lawsuit resolved. This is understandable. Unfortunately, no matter how frustrating it is, any attempt by a lawyer to project the costs and length of a lawsuit to a client would be nothing more than a guess. In an attempt to help alleviate these two issues, the Texas Supreme Court made significant amendments to the Texas Rules of Civil Procedure that went into effect this year. The amendments govern lawsuits filed on or after January 1, 2021 and are aimed at speeding up the litigation process and mitigating the costs of litigation.
These amendments will change the way parties and attorneys approach and manage a lawsuit. In this article, I discuss how the amendments to Rule 169 are designed to help a party get their case to trial in a cost and time efficient manner.
What is Considered an Expedited Action or an Expedited Lawsuit?
Texas Rule of Civil Procedure 169 governs lawsuits that are considered “expedited actions” or “expedited lawsuits.” Before the amendments to Rule 169, cases where the amount in controversy was $100,000.00 or less (inclusive of interest, statutory or punitive damages, penalties, attorney’s fees, and costs) were considered to be expedited lawsuits. This meant that the most money a party could ever be awarded in an expedited lawsuit was $100,000.00, even if a jury awards more (either for interest, statutory or punitive damages, penalties, attorney’s fees, and costs).
The new amendments to Rule 169 dramatically expands the types of lawsuits that are considered to be “expedited” and that are governed by Rule 169. Under amended Rule 169, a lawsuit where the amount in controversy is $250,000.00 or less (exclusive of interest, statutory or punitive damages, penalties, attorney’s fees, and costs) is considered an expedited lawsuit. Not only does the amendment to Rule 169 increase the amount in controversy in expedited lawsuits, but it also allows a party to potentially recover a lot more than just $250,000.00—because interest, statutory or punitive damages, penalties, attorney’s fees, and costs are not calculated as part of the $250,000.00 cap.
Certain lawsuits can never be considered expedited lawsuits or be governed under Rule 169, such as lawsuits that are filed under the Family Code (i.e. divorces, child custody, etc.) and probate and guardianship cases that are governed under the Texas Estates Code.
Fast Track to a Speedy, Less Expensive Trial
Oftentimes, the costs of discovery is the most expensive part of a lawsuit. The new amendments to Rule 169 and Rule 190.2 (the discovery rule that governs expedited actions under Rule 169) are meant to limit discovery, thereby decreasing the costs of discovery. Specifically, the amendments to Rule 190.2, limits discovery in an expedited lawsuit in the following ways:
• the number of written interrogatories a party can send are decreased to 15;
• the number of requests for production a party can send are decreased to 15;
• the number of requests for admission a party can send are decreased to 15;
• requests for disclosures are now eliminated and replaced by mandatory disclosures (not just in expedited lawsuits but in all lawsuits);
• mandatory disclosures from every party are generally due within 30 days of the filing of the first answer in the lawsuit;
• the time a party can cross-examine witnesses in depositions is limited to just 20 hours; and
• all discovery must be completed 6 months from the date the mandatory disclosures are due.
Amended Rule 169 also allows expedited lawsuits to go to trial within a year after the lawsuit was filed. To accomplish this, the amended rule imposes the following deadlines:
• a trial must be set for a date within 90 days after the discovery period ends, if requested by a party; and
• only two continuances of the trial can be granted by the court; however, the continuances cannot exceed 60 days.
Rule 169 also shortens the length of a trial. Most lawsuits have no real limitations for how long a trial can last or how long a party can take for each portion of a trial. This sometimes causes frustration for clients, the jury, and the judge. While a judge will sometimes impose their own time limitations on a party, this is not always the case. In an expedited lawsuit, however, each side only gets a total of 8 hours to complete jury selection, provide opening statements, examine witnesses on the stand, present evidence, and provide closing arguments. Basically, each party has 8 hours to make and present their case. A court can extend the time limit to no more than 12 hours per side, but that still doesn’t give a party that much more time. Expedited trials governed by Rule 169 are thus likely to be completed within 2-3 days.
The goal for the new amendments to the rules was to promote the prompt, efficient, and cost-effective resolution of civil actions in lawsuits where the amount in controversy does not exceed $250,000.00. See Texas Government Code §22.004(h-1). Whether that will actually occur—particularly in light of the COVID-19 pandemic, which halted trials across the state—is something that will be difficult to track. Hopefully, the goal of the amendments is reached and the doors to the courthouse are made a little more accessible to everyone.