Angela Morris
Texas Lawyer
February 6, 2012
Alan Waldrop and David Chamberlain
To meet a requirement in the 2011 loser-pays law, the Texas Supreme Court now must review two sets of rules for expedited trials. The high court’s task force couldn’t agree on whether expedited trials for low-dollar cases seeking $100,000 or less in damages should be mandatory or voluntary.
The Supreme Court Advisory Committee (SCAC) considered the question on Jan. 27, deciding 26-18 that expedited trials should be voluntary. That vote is not binding on the high court.
David Chamberlain, who served on the task force that drafted the rules, says he thinks expedited trials will be good for lawyers because they’ll bring more cases back to the courthouse — regardless of whether the court adopts the mandatory or voluntary versions.
“What I think it will do is provide an opportunity for young lawyers to gain trial experience,” says Chamberlain, a senior partner in Chamberlain McHaney in Austin who represents defendants. He says that expedited trials will also “give an opportunity for more experienced lawyers to knock the dust off.”
House Bill 274, the loser-pays law, says the rules for expedited trials are for cases with total damages not exceeding $100,000. The rules are supposed to lower discovery costs and ensure cases are expedited through the courts. The Supreme Court created the Task Force for Rules in Expedited Civil Actions to draft the new rules. The task force issued its final report on Jan. 25 and presented the rules to the SCAC on Jan. 27.
The Jan. 25 report says the task force agreed on many ways to expedite cases: limiting pretrial discovery; requiring parties to disclose documents that support their claims or defenses; setting time limits on oral depositions; requiring courts to follow a mandatory time frame to set cases for trial; and prohibiting judges from ordering expedited cases into mandatory alternative dispute resolution. The task force also agreed the $100,000 cap must include damages as well as costs and attorney’s fees. [See the Task Force for Rules in Expedited Civil Actions’ final report.]
Two Views
But the task force could not agree on the mandatory vs. voluntary question, so it created two sets of rules, one for each scenario.
At the SCAC meeting, task force members Alan Waldrop and Chamberlain explained the viewpoints of each camp.
“Some aspect is going to have to be mandatory, or it just isn’t going to be effective,” said Waldrop, a partner in Locke Lord in Austin who typically represents defendants and serves as outside counsel for Texans for Lawsuit Reform, an Austin nonprofit that advocates for civil justice reform. He said a plaintiff would face an expedited trial only if he sought damages of $100,000 or less in his pleading; to avoid an expedited trial, a plaintiff could claim more.
After an initial pleading triggered an expedited trial, Waldrop explained there would be two “escape hatches” for a plaintiff or a defendant to avoid an expedited trial: filing and winning a motion for good cause, or filing an amended pleading or a counterclaim seeking damages of more than $100,000.
But if a court denied either party’s “escape,” the defendant would get “stuck” with an expedited trial, and the plaintiff would have to accept a “trade-off,” Waldrop said. “The plaintiff cannot recover a judgment for more than $100,000, period.”
But Chamberlain told the advisory committee he thinks a mandatory rule would be “fundamentally unfair” for defendants, because in his pleading a plaintiff would choose the expedited trial, but the “defendant doesn’t have that option.”
He said a voluntary rule would achieve better results and “it’s just a matter of educating the bench and the bar about its benefits.”
Chamberlain said, “You can do a lot more with a voluntary rule” — for example, limiting the jury to six people, limiting the length of the trial to two days and limiting the types of appellate challenges. The U.S. and Texas constitutions and other statutes would prevent those restrictions under a mandatory rule, but the limits would be permissible if both parties voluntarily agreed to them.
“This is designed to be a procedure to be available to the parties that just want a quick answer. They want a ‘yes’ or a ‘no,’ and they want it in two days. Once they get their answer, they’re going to live with it,” Chamberlain said.
Justice Nathan Hecht, the Supreme Court’s liaison to the SCAC, says the court will consider all of the advisory committee’s comments about the task force’s draft mandatory and voluntary rules. If necessary, the court could send the rules back to the SCAC for further review. The court hopes to seek public comment on the rules this summer, leaving plenty of time to get feedback and make revisions before the 2013 legislative session.
David E. Chamberlain
Board Certified, Personal Injury Trial Law
Texas Board of Legal Specialization