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LITIGATION ALERT: EXPEDITED TRIALS IN TEXAS: Analysis of Proposed Legislation

Litigation Update, Articles / February 10, 2012 / Michael A. Logan

EXPEDITED TRIALS IN TEXAS:
Analysis of Proposed Legislation

October, 2012

Authors:
Mike Logan
Kevin Perkins

It is widely thought that the civil jury trial is dying a slow death in the American legal system.  The cause of death is largely attributed to the high price tag associated with the modern jury trial.  In the hopes of curbing this trend, the Texas Legislature passed House Bill 274 ("HB 274"), as part of tort reform, which directs 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 does not exceed $100,000, inclusive of all damages, court costs and attorney's fees. The rules are to address the need to lower discovery costs and to shorten the time to trial in smaller cases.

HB 274 proposes an expedited jury system.  The bill has gone through reviews by an appointed working group, a task force, and the Rules Advisory Committee. The proposed rules are now awaiting approval before the Texas Supreme Court.

The task force submitted the proposed frame work for an expedited jury trial under HB 274, as follows:

  • Scope of Discovery: Because the cost of discovery is responsible for most of the costs and delay in civil litigation, the proposal is that these cases will proceed with limitations in order to reduce the amount of discovery permitted.  In addition to the limitations currently dictated by Level 1 in Rule 190.2, the parties will be limited to 15 interrogatories, 15 requests for production; 15 requests for admission; and 6 hours of total deposition time per side (unless the parties agree to expand to 10 hours).  It is recommended that the discovery period be shortened to 180 days after the first request for discovery is served.
  • Disclosures: Similar to Federal Rule 26, which provides for voluntary disclosure, the recommended rules will require that the parties disclose all documents in their possession, custody, or control and any document a party may use to support its claims or defenses.
  • Proof of Medical Expenses: The recommendation is that the parties be allowed to prove up medical expenses without live testimony through an affidavit which meets the "actually paid or incurred" standard addressed in Haygood v. Escabedo, 2011 WL 2601363 (Tex. 2011).
  • Expedited Treatment: Courts shall give preference to the scheduling of an expedited trial.
  • Maximum Recovery Cap:  The maximum recovery in an expedited jury trial will be $100,000, including attorneys' fees and pre-judgment interest.
  • Alternative Dispute Resolution: Courts will be prohibited from ordering the parties to mandatory mediation. It is believed that the expedited form of this procedure duplicates any cost savings offered by mediation in a traditional trial structure.
  • Length of Trial: The parties will be limited to a total of 5 hours of trial presentation.
  • Structure of the Jury: The jury will be composed of 6 people. Each side will be required to waive the right to a 12 person jury.  The case can also be tried as a non-jury trial.
  • Appellate Rights: As proposed, the parties will have no right to appeal an expedited jury verdict.
  • Mandatory v. Voluntary: The major debate concerning HB 274 is whether the rule should be mandatory or voluntary.  The Task Force could not agree, and competing recommendations came from the Task Force on this issue.

Conclusion.  Once adopted, the expedited jury trial could serve to achieve the goal of making the jury trial affordable in small cases.  Currently, the cost of litigating is a major impediment to litigating small matters.  This may also serve as an alternative to arbitration in smaller cases, and allow the parties to have a jury trial if desired.

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This Litigation Alert is a summary of recent developments in the law and is provided for informational purposes only.  It is not intended to constitute legal advice or to create an attorney-client relationship.  Readers should obtain legal advice specific to their situation in connection with topics discussed.

Copyright © 2012 Kane Russell Coleman & Logan PC.  All rights reserved.  Unless otherwise indicated, the authors are not certified by the Texas Board of Legal Specialization.