State Bar of Texas Advanced Personal Injury Law Course

State Bar of Texas
Advanced Personal Injury Law
New Rules for Expedited Jury Trials:
How Each Side Can Use Them
Amy Witherite
Eberstein & Witherite, LLP
3100 Monticello
Dallas, TX 75205
[email protected]
Dan Worthington
Atlas, Hall & Rodriguez, LLP
818 Pecan Ave.
McAllen, Texas 78572
[email protected]
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
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:
• Modify discovery control plan when justice requires.
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.
– Split up elements of the claims/defenses.
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
• 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
– Court may extend to 12 hours “per side.”
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
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
– Good Cause elements listed in Comment 3 to Rule 169 not
• 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
• 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
• The trial court can:
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
– 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
– Grant a continuance if a case is removed from the expedited process.
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.