Article of Interest

Expedited Rules Decoded: Things You Need To Know About TRCP 169
By: Barbara M. Pelaez

As you may know, Texas created an expedited trial process applicable to cases filed on or after March 1, 2013. These Expedited Rules are still relatively new and can cause confusion for those used to dealing with the more flexible rules governing other cases. For this reason, understanding the scope and limitations of actions filed under the Expedited Rules is essential.

Scope:

The expedited process should be used to resolve smaller cases in a quicker and more effective manner. In fact, a case automatically falls under the Expedited Rules when plaintiffs plead damages of $100,000 or less. This will not apply in cases where a party is seeking non-monetary relief or for claims governed by the Family Code, Tax Code, Property Code, or in medical malpractice cases.

Limitations Imposed:

For cases under the Expedited Rules, the plaintiff may not recover in excess of $100,000, excluding post-judgment interest, regardless of the verdict. Significantly, the plaintiff cannot avoid this limitation by amending the pleadings to conform the damages sought to the amount awarded by the jury.¹

Discovery:

Discovery will close 180 days after the first discovery request is sent.

Discovery is also limited to 15 requests for (a) Admissions, (b) Production, and (c) Interrogatories each. However, to offset this significant limitation, the Expedited Rules provide for an extra required topic under Request for Disclosure. Under TRCP 190.2(b)(6), a party may request, and the responding party must produce, "all documents, electronic information, and tangible items that the disclosing party has in its possession, custody or control that support its claims or defenses."

Strict limitations are imposed on time allowed for depositions as well—no more than six hours total to examine and cross-examine all witnesses—although the parties may agree to extend this time to 10 hours total.

Experts:

The time to designate experts is quick and crucial under the Expedited Rules. Under Rule 195, the party seeking affirmative relief must designate experts 90 days before the discovery ends, while all other experts must be designated 60 days before discovery ends. It is possible the plaintiff's expert(s) designation will be due 90 days from when the defendant is served with the lawsuit. Therefore, each party needs to know and identify as early as possible, if, and what type of expert(s) to designate.

In addition to a shortened designation deadline, the Expedited Rules impose limitations on challenges to expert testimony.  Under TRCP 169(d)(5), the admissibility of expert testimony may only be challenged: (1) as an objection to summary judgment evidence under Rule 166a or (2) during trial on the merits unless requested by the party sponsoring the expert. Therefore, a party who files a Motion for Summary Judgment utilizing expert testimony as evidence is opening themselves up to an expert's challenge by the other side. A party is still allowed to file a Motion to Strike for late designation.

Mediation:

Interestingly, the rules do not force the parties to conduct mediation. The default rule for mediation is: (a) less than a half day, (b) the price may not be twice the filing fees, and (c) must be done 60 days before the initial trial setting. However, the parties may opt out of the default rules.

Trial:

A case must be set for trial within 90 days after the close of discovery. This means that the case must be set for trial within 270 days after the first request for discovery is sent. Older cases can be "bumped" off a court's trial docket to comply with the expedited process. Additionally, the Texas Supreme Court has declared that a case under the Expedited Rules may be continued only twice, and such continuance cannot exceed 60 days.

Trial is also limited to a total of eight hours per side. Objections, bench conferences, and challenges for cause to a juror are not included in this timeframe.

Conclusion:

Expedited cases are still new and we as attorneys are still learning how to navigate the potential pitfalls. Be vigilant, and do not let the shortened timeframe and limitations on discovery derail your case.

Barbara M. Pelaez is an associate at The Bassett Firm in Dallas. She can be reached by email.

^{[1] See Greenhaigh v. Service Lloyds Ins. Co., 787 S.W. 2d 938, 941 (Tex. 1990); see also Tex. R. Civ. P. 169 cmt. 4.}

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