1 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 McAllen, Texas
2 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 , 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.
3 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.
4 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.
5 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.
6 Discovery Issues How can Trial Court modify? Trial Court MUST: Modify discovery control plan when justice requires.
7 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 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.)
8 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.
9 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.
10 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 Court may extend to 12 hours per side.
11 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.
12 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.
13 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.
14 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.
15 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.
16 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.
17 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 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 Grant a continuance if a case is removed from the expedited process.
18 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.
Small Claims Handbook A citizen s guide to handling small claims complaints in Kentucky Provided by the Kentucky Administrative Office of the Courts and the Kentucky Office of Attorney General Small Claims
Supreme Court Rule 201. General Discovery Provisions (a) Discovery Methods. Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination
PERMANENT COURT OF ARBITRATION OPTIONAL RULES FOR ARBITRATING DISPUTES BETWEEN TWO STATES 39 OPTIONAL ARBITRATION RULES TWO STATES CONTENTS Introduction 43 Section I. Introductory Rules 45 Scope of Application
South Dakota Parental Rights and Procedural Safeguards Special Education Programs Revised July 2011 Prior Written Notice... 1 Definition of Parental Consent... 3 Definition of a Parent... 3 Parental Consent...
Litigation Traps R ISK MANAGEMENT HANDOUTS OF L AWYERS MUTUAL LAWYERS MUTUAL LIABILITY INSURANCE COMPANY OF NORTH CAROLINA 5020 Weston Parkway, Suite 200, Cary, North Carolina 27513 Post Office Box 1929,
Supreme Court of Florida No. SC11-1542 IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE ELECTRONIC DISCOVERY. PER CURIAM. [July 5, 2012] The Florida Bar s Civil Procedure Rules Committee (Committee)
S. 3930 One Hundred Ninth Congress of the United States of America AT THE SECOND SESSION Begun and held at the City of Washington on Tuesday, the third day of January, two thousand and six An Act To authorize
A TENANT S GUIDE TO THE NEW YORK CITY HOUSING COURT The Association of the Bar of the City of New York Housing Court Public Service Projects Committee and The Civil Court of the City of New York Fern A.
Presidential Guidance General Case Management The Guidance is issued on the thirteenth day of March 2014 under the provisions of Rule 7 of the first schedule to the Employment Tribunals (Constitution and
Your Guide to Pursuing a Personal Injury Claim 2 Contents Introduction... 3 Important things that you must do... 3 In The Beginning... 4 Mitigating your loss... 4 Time limits... 4 Who can claim?... 4 Whose
Small Claims Handbook A Guide for Non-Lawyers Guide for Filing, Answering, Proving and Defending a Small Claims Court Case October 2007 Written by Alan Bucholtz This guide is intended to provide information
Resolving Your Case Before Trial This booklet explains how you can resolve your case before it goes to trial. Only a small percentage of cases go to trial, as most disputes are resolved before reaching
As Judges See It: Top Mistakes Attorneys Make in Civil Litigation Continuing Legal Education for Professionals For a//your continuing education needs visit us at www.nbi-sems.com I NBI NATIONAL %!TE TM
ESI: Federal Court An introduction to the new federal rules governing discovery of electronically stored information In September 2005, the Judicial Conference of the United States unanimously approved
FULTON COUNTY STATE COURT STATE OF GEORGIA JENNIFER GARRISON, vs. Plaintiff, MONTAG REALTY COMPANY, LLC d/b/a VERONA APARTMENTS, THE REALTY FUND III, L.P. and JOHN DOES 1-5, JURY TRIAL DEMANDED CASE NUMBER:
PERILS AND PITFALLS IN THE TEXAS CIVIL PRACTICE & REMEDIES CODE: HOW YOU CAN AVOID (OR EXPLOIT) THEM TO YOUR ADVANTAGE PAULA KNIPPA* SLACK & DAVIS LLP 2705 BEE CAVE ROAD, SUITE 220 AUSTIN, TEXAS *I would
TITLE 810. OKLAHOMA WORKERS= COMPENSATION COMMISSION EMERGENCY RULES as approved by the Commission 1/16/2014 CHAPTER 2 - Practice and Procedure Subchapter 1 - General Provisions Section 810:2-1-1 Purpose
WHAT HAPPENS IN A PERSONAL INJURY CASE From Negotiating With Insurance Companies To Trial By Michael A. Schafer, Attorney at Law 440 South Seventh Street, Ste. 200 Louisville, Kentucky 40203 (502) 584-9511
Personal Injury Personal injury accidents happen all the time. From sidewalk cracks to car accidents, when people are injured, the question of who is legally and financially responsible is inevitably asked.
NSW GOVERNMENT REVIEW OF THE DUST DISEASES CLAIMS RESOLUTION PROCESS Report and Proposed Dust Diseases Tribunal Regulation 2007 ATTORNEY GENERAL'S DEPARTMENT OF NSW & THE CABINET OFFICE Review of the Dust
Five Rules for Discovery of Electronically Stored Information Eastern North Carolina Inn of Court Spring Meeting New Bern, NC May 17, 2012 M ARK SCRUGGS C LAIMS COUNSEL L AWYERS MUTUAL 5020 Weston Parkway,
Special Education A service, not a place. Notice of Special Education Procedural Safeguards for Students and Their Families Requirements under Part B of the Individuals with Disabilities Education Act,