State Bar of Texas Advanced Personal Injury Law Course

State Bar of Texas

Advanced Personal Injury Law

Course

New Rules for Expedited Jury Trials:

How Each Side Can Use Them

Amy Witherite Dan Worthington

Eberstein & Witherite, LLP Atlas, Hall & Rodriguez, LLP

3100 Monticello 818 Pecan Ave.

Dallas, TX 75205 McAllen, Texas 78572

214.378.6665 956.632.8293

What Cases Are Not Covered?

• Cases brought under the Family Code, Tax Code, Property Code, Chapter 74 of the Civil Practice and Remedies Code and barratry claims brought under Section 82.0651,

Government Code are excluded;

• Cases which include claims for non-monetary relief (unless brought as a counter claim) are excluded;

• Cases in which an individual claimant’s claims for monetary relief (unless brought by a

counter-claimant) exceed $100,000 (inclusive of all damages, except post-judgment interest) are excluded; and

• Cases in which the trial court finds “good cause” exists to remove the case from the expedited process.

Strategic Considerations on Removing

a Case from the Expedited Process

• Will the Plaintiff’s counsel agree?:

• Is there a co-defendant against whom you can assert a cross-claim for non-monetary relief? (injunctive relief to preserve evidence?)

• No deadline on filing a motion to remove.

– If based on discovery, file a motion to modify discovery control plan first. – Reassert motion during trial.

• Be prepared to offer, in writing, as much evidence or summation of evidence, as possible to make a record on what is being kept out as a result of the time

limitations and why its material. Include all potential grounds supporting why good cause existed for the court to remove the case.

Discovery Overview

•

What discovery is permitted?

– Requests for Disclosure

• Add Request for all documents and tangible items to be relied upon in proving claim or defense.

– Interrogatories

• Limited to 15

– Requests for Production

• Limited to 15

– Requests for Admission

• Limited to 15

– Oral Depositions

• Aggregate limitation of 6 hours per party. May be expanded up to 10 hours per party by agreement.

Discovery Issues

•

How can Trial Court modify?

–

Trial Court MAY:

• Modify discovery control plan at anytime;

• Modify discovery control plan if there is newly pleaded facts or discovery added so late as to deprive the

requesting party of needed discovery; and

• Adjust oral deposition aggregate per party limitation “to prevent unfair advantage.”

Discovery Issues

•

How can Trial Court modify?

–

Trial Court MUST:

Discovery Issues

•

Strategic Considerations:

–

Always include a “justice requires” component to the

“motion to modify.”

• There are no reported cases when a trial court was found to have abused its discretion in denying a motion to modify a discovery control plan based upon the mandatory “justice requires” component of Rule 190.5.

• However, none of the reported cases involve the discovery limitations set out for matters subject to Rule 169. Consider the use of the “good cause” factors set out in the comment to Rule 169 pertaining to the removal of a case from the

expedited process. (i.e. numerosity of witnesses, complexity of issues, etc.)

Discovery Issues

•

Strategic Considerations:

–

Always file a motion to modify the discovery

control plan as a precedent to the filing of a

motion to remove.

• A court could find that good cause to remove a case from the process did not exist (to the extent that it is based on the discovery limitations) because a party failed to first seek a discovery modification from the trial court.

Discovery Issues

•

Strategic Considerations:

–

There is no limitation on:

• Document requests attached to a deposition notice; or • Depositions on written questions.

–

Rule 91a Motion:

• Draw a response and withdraw the motion more than 3 days before the hearing.

–

Motion for No Evidence Summary Judgment.

–

Coordinate discovery with co-parties.

• Discovery answers to any party’s discovery can be relied upon by any other party.

Trial Overview

•

Trial Setting.

– Upon request, a court must set a case for trial within 90 days after the end of the discovery period.

•

Continuance.

– Limited to two continuances with aggregate cap of 60 days.

•

Mediation.

– A court may order one ½ day mediation to be completed at least 60 days prior to trial with a fee cap of 2 x filing fee.

•

Time for presentation of evidence.

– Limited to 8 hours “per side”; and

Trial Issues

•

Continuance.

– Rules 251 and 252 discuss a continuance in the context of a request from a party. It appears as if a trial court may have the inherent authority to “not reach” or “pass” a case and not violate the Rule 169 limitation.

– If all parties were to agree on a continuance, it appears as if there would be a waiver of error even if the requested continuance exceeded the Rule 169 limitation.

•

Mediation.

– Parties can agree to vary from the Rule 169 mediation limitations.

Trial Issues

•

Time “per side” limitation.

–

The trial court has two discretionary rulings

related to this issue.

• To what extent does each individual party constitute a separate “side”; and

• Should the “per side” limitation be extended from 8 to 12 hours. The trial court may not extend the “per side” time beyond 12 hours without removing the case from the expedited process upon a finding of good cause.

Trial Issues

• Time “per side” limitation.

– Motion to Establish Per Side Trial Time

• Rule 169 defines side as the term is defined in Rule 233 (Preemptory Challenge Rule)

– “Side” means one or more litigants who have common interests on the matters with which the jury is concerned.

• Ordinarily, this decision is made after the conclusion of the voir dire. However, as the voir dire is one of the items included within the expedited process time limitation, waiting until the conclusion of the voir dire could be too late. We suggest making the motion both before and after the voir dire.

– Motion to Equalize Trial Time

• Rule 233 allows the trial court to equalize the number of preemptory strikes so that no “litigant” or

“side” is given “unfair advantage.” It is not clear that this Rule 233 discretion follows the Rule 169 reference to the definition of “side” into the expedited process, but until there is more guidance, a party should consider an equalization request, to the extent permitted by Rule 169 based on a claim of unfair advantage.

– For both of these motions, be prepared to re-urge at any point during the trial. Rule 169

does not contain a time limitation. While Rule 233 motions are ordinarily required before jury selection, the Rule 169 limitations include everything through the closing and new arguments/evidence may be presented during trial supporting either a new definition of “side” or an expansion of the 8/12 hour limitation.

Trial Issues

• Strategic Considerations:

– Request that the Court not release any witness you may want to have the opportunity to recall if you have any additional time remaining; – Because the Court cannot extend the “per side” time to beyond 12

hours, if you “run out of time”, be prepared to:

• Move to remove the case from the expedited process for good cause;

• As a component of the motion for removal, have prepared a written record of all of the evidence you would have offered and its materiality to you claims or defenses, if you had the necessary additional time.

• If necessary, be prepared to concurrently file a motion for continuance to allow for additional discovery.

– Consider the use of deposition transcripts which should be subject to a faster presentation for those less critical witnesses;

– Consider the impact on your opponent if you agree to waive formalities in the presentation of the proof.

Trial Issues

•

Strategic Considerations:

– Motion to Remove Case from Expedited Process:

• Will other parties to the case agree?

– No deadline on when to file.

• Consider filing the motion each time facts change and support the discharge.

– Good Cause elements listed in Comment 3 to Rule 169 not exhaustive.

• Factors supporting a showing of good cause include, but are not limited to, whether there are multiple claimants whose claims aggregate over $100,000; whether a defendant has filed a

compulsory counterclaim in good faith that seeks relief other than that allowed in TRCP 169(a)(1); the number of parties and

witnesses; the complexity of the legal and factual issues; and whether an interpreter is necessary.

Trial Issues

•

Strategic Considerations:

– If it becomes apparent that adverse witnesses are

deliberately trying to exhaust your time, first seek to have the trial court instruct the opposing counsel and/or

witnesses to refrain from the conduct, if ineffective, request that the Court extend the “per side” limitation

from 8 to 12 hours, unless the 12 hour maximum has been granted or will be insufficient and if so, seek a discharge from the expedited process on the grounds that the

conduct of the adverse witnesses have deprived you of the ability to present the evidence necessary for your claims or defenses.

• Like the other discussion related to an “in trial” motion, be prepared to detail all of the evidence you are being prevented from offering as a result of the conduct.

Trial Court Discretion

– Modify the discovery control plan;

– Adjust the oral deposition aggregate time limits; – Determine which parties constitute a “side”;

– Determine whether the per side limit should be extended from 8 to12 hours per side;

• Unclear if the trial court could equalize the per side time limit so that one side received 8 hours and two or more litigants constituting the other side each received some other time limitation so long as the aggregate total was 12 hours or less.

– Upon motion and showing of good cause, remove a case from the expedited process;

– Determine whether a continuance should be granted if a case is removed from the expedited process;

– Within the 60 day/2 continuance limitation grant an opposed motion for continuance; and

Trial Court Discretion

• The trial court cannot:

– Upon request, refuse to set a case for trial more than 90 days after the end of the discovery period.

– Continue a case more than 2 times and with an aggregate time limitation of 60 days;

– Permit discovery if Claimant has not complied with Rule 47; – Refuse to reopen discovery after a case is removed from the

expedited process (but it does not have to grant a continuance); – Refuse to modify discovery is “justice requires”;

– Allow more than 12 hours per side in cases retained within the expedited process; and

– Order a case to mediation more than once. Mediation must be completed at least 60 days before trial date, cannot be longer than ½ day or cost more than twice the filing fee.