New Expedited Rules by Texas Supreme Court

Here is the link to Texas’ new expedited rules for lawsuits under $100,000.00:

ADOPTION OF RULES FOR DISMISSALS AND EXPEDITED ACTIONS

Rule 91a Dismissal of baseless cause of action:  There is a new dismissal rule – 91a – Dismissal of baseless cause of action.   Not sure this was needed, as most cases can be dismissed on MSJ’s anyway if they don’t state a cause of action, or if there is no evidence – seems like the same thing.

On first reading I was worried that on every case Defense lawyers would make a 91a motion, but on further reading there is a part that will keep Defense lawyers from making frivolous motions –  91a.7 will probably keep most people from using this rule very often, as it says the court “must” award the prevailing party its costs and reasonable attorneys fees on the motion.

Rule 47:  Says that a Plaintiff’s lawyer must plead if the damages sought are more than $100,000.00 or not.  This is the trigger of whether it will be treated as an expedited case or not.  The comments section states that this rule is for the Plaintiff to plead into or out of the expedited trial process.

Rule 169:  If you plead into the expedited trial process, you may NOT recover more than $100,000.00.  (My comment:  Which means that if a jury wants to award you more than you thought your case was worth – due to something that comes up at trial possibly – then they can’t.  Seems like a deal-breaker on most cases – you never know what a jury will do, or what will happen at trial – evidence, testimony – that may affect the value of a case). 

Discovery is governed by Rule 190.2 if using the expedited trial process.  Each side is only allowed 5 hours to complete jury selection, opening statements, presentation of evidence, examination, cross examinations, and closing arguments.  (My comment:  This seems awfully low time limits.  You may have an auto accident that you don’t “think” will ever go above $75,000.00.  Example: a 4 car chain reaction with the police who came to the scene, your client is 60 years old and had a bad back before but had recovered and was no longer needing treatment, but this accident caused his back to be reinjured – he now needs surgical injections and expensive pain management treatment, but he recovers back to where he was within 4 months – assume the medical bills are about $15,000.00.  This is a very common scenario.  How do you try a case like that in 5 hours?  Jury selection will take about 45 minutes a side (on the low side) – you have 36 jurors to select from, talk to about the issues, confirm whether they can follow the law.  Opening maybe 20 minutes – assuming that it is a simple case to describe.  Direct – you must put on 1) your client, 2) the other 2 drivers and cross exam of Defendant driver, and any passengers (as they are witnesses involved in the accident, and the jury will want to hear from them too), 3) the police officer who conducted the investigation, 4) Your doctor that can confirm the injury (since there was a prior injury – expert testimony will likely be needed to differentiate and explain the need for treatment), 5) one or two lay witnesses (friends, family, co-workers) that can confirm what they witnessed about how the injury affected the Plaintiff – so the jury knows that the Plaintiff isn’t just “claiming” he was hurting (almost a must in cases nowdays). 

Time Added Up (the following is extremely fast for most cases, and only if everything goes perfectly – no hiccups – which we all know that everything always goes as planned during trials, right? Because there is nobody there opposing you and trying to trip you up, isn’t that the case at trial?):

Voir Dire – 45 minutes
Opening – 20 minutes
Direct & Cross:
Plaintiff – 1 hour
Witness Driver 1 – 30 minutes
Witness Driver 2 – 30 minutes
Witness Passenger – 30 minutes
Cross Exam of Defendant – 40 minutes
Police Officer – 45 minutes
Doctor – 1 hour
Lay Witness 1 – 30 minutes
Lay Witness 2 – 30 minutes
Total time: 7 hours

This is a very abbreviated time for each witness above too – depending on what all needs to be discussed.   I don’t see how many cases, even if you think they are below $100,000.00, can be plead into the expedited rules when you know you won’t have the time to present your case. 

The other problem with it, is that it puts a “cap” on what you can get.  This erases all fear from the insurance company that the amount “may” be greater.  If you plead $100,000.00 or under, they will know that is the TOP you can get, and they will NEVER offer $100,000.00 or even close to it, because they know that will be their worst day at trial.  If you ask for $90k, they will tell you to jump in the lake, even if everyone agrees that is what your case is worth.  They will tell you to “prove it” – since there is not much downside (only another $10k if they are wrong). 

Rule 190.2:   Discovery in expedited cases.  No more than 6 hours of depositions – for ALL witnesses.  (Again, big problem if this is a multiple car accident – even if the damages are small, you might need 5-6 depositions, other drivers, police officers, passengers, witnesses).  No more than 15 interrogatories total.  No more than 15 requests for production.  No more than 15 requests for admissions.

Rule 902(c):  This looks like the Texas Supreme Court decided to make a Rule for an affidavit that comports with the requirements of 18.001 of the CPRC (the Code).   The first problem is that this is a Rule, and the Court cannot make a Rule that breaks Texas law.  CPRC 18.001 is a Code – meaning the Texas Legislature passed it as law.  Anything in 902(c) that takes away from 18.001 is not legal.  In other words, the court cannot legislate.  They can only interpret the laws.  This Rule, although I understand they are trying to help in light of the Escobedo case.  The problem is that attorneys will try to use this Rule to get around 18.001 requirements.  New can of worms.

Here is what the affidavit looks like:

Affidavit of Records Custodian of

STATE OF TEXAS                                                                                                      §

COUNTY OF ___________________                                                            §

     Before me, the undersigned authority, personally appeared ______________________, who, being by me duly sworn, deposed as follows:

     Mv name is ___________________. I am of sound mind and capable of making this affidavit, and  personally acquainted with the facts herein stated.

     I am a custodian of records for _____________________. Attached to this affidavit are records that provide an itemized statement of the service and the charge for the service that ___________________ provided to  ___________________ on _______________. The attached records are a part of this affidavit.

     The attached records are kept by ________________ in the regular course of business, and it was the regular course of business of _________________ for an employee or representative of ______________________, with knowledge of the service provided, to make the record or to transmit information to be included in the record. The records were made in the regular course of business at or near the time or reasonably soon after the time the service was provided. The records are the original or a duplicate of the original.

     The services provided were necessary and the amount charged for the services was reasonable at the time and place that the services were provided.

     The total amount paid for the services was $________ and the amount currently unpaid but which _______________ has a right to be paid after any adjustments or credits is $_______ .

_______________ Affiant

SWORN TO AND SUBSCRIBED before me on the____________ day of ______________________.

___________________

Notary Public, State of Texas

Notary’s printed name:

My commission expires:

Comment to 2013 Change: Rule 902(c) is added to provide a form affidavit for proof of medical expenses. The affidavit is intended to comport with Section 41.0105 of the Civil Practice and Remedies Code, which allows evidence of only those medical expenses that have been paid or will be paid, after any required credits or adjustments. See Haygoodv. Escabedo, 356 S.W.3d 390 (Tex. 2011).

By Doug Goyen, douggoyen@gmail.com 

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