New Texas Rule of Civil Procedure 169 and Employment Cases

On February 12, 2013, the Texas Supreme Court approved Rule 169 of the Texas Rules of Civil Procedure, which provides for expedited proceedings in cases that involve less than $100,000.00 (including damages, penalties, pre-judgment interest, and attorneys’ fees).  The new rule applies only to cases filed on or after March 1, 2013.  An accompanying change to Rule 47 will require plaintiffs to specifically plead whether they are seeking $100,000 or less in monetary relief, and if so, whether they are also seeking non-monetary relief (for example, an injunction).

The maximum judgment that a court can enter in a Rule 169 case is $100,000.00 plus post-judgment interest.  If Rule 169 applies to a case, then its provisions are mandatory unless the one of the parties can show good cause to remove the case from the expedited process, or unless the plaintiff amends the petition to state a claim for relief in excess of $100,000.00 or for non-monetary relief.  If the plaintiff wishes to amend the petition to remove the case from the expedited process, then the plaintiff must do so within 30 days after the discovery period ends, or 30 days before trial, whichever is earlier.  Otherwise, the plaintiff must obtain leave of court to amend.

If Rule 169 applies, the a series of expedited procedures will apply to the case:

(1) Discovery. Discovery is governed by Rule 190.2.

(2) Trial Setting; Continuances. On any party’s request, the court must set the case for a trial date that is within 90 days after the discovery period in Rule 190.2(b)(l) ends. The court may continue the case twice, not to exceed a total of 60 days.

(3) Time Limits for Trial. Each side is allowed no more than eight hours to complete jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing arguments. On motion and a showing of good cause by any party, the court may extend the time limit to no more than twelve hours per side.

  (A) The term “side” has the same definition set out in Rule 233.

  (B) Time spent on objections, bench conferences, bills of exception, and challenges for cause to a juror under Rule 228 are not included in the time limit.

(4) Alternative Dispute Resolution.

  (A) Unless the parties have agreed not to engage in alternative dispute resolution, the court may refer the case to an alternative dispute resolution procedure once, and the procedure must:

     (i) not exceed a half-day in duration, excluding scheduling time;

     (ii) not exceed a total cost of twice the amount of applicable civil filing fees; and

     (iii) be completed no later than 60 days before the initial trial setting.

  (B) The court must consider objections to the referral unless prohibited by statute.

  (C) The parties may agree to engage in alternative dispute resolution other than that provided for in (A).

(5) Expert Testimony. Unless requested by the party sponsoring the expert, a party may only challenge the admissibility of expert testimony as an objection to summary judgment evidence under Rule 166a or during the trial on the merits.  This paragraph does not apply to a motion to strike for late designation

Rule 190.2 was amended to provide the following discovery limitations:

• The discovery period runs from the filing of the lawsuit until 180 days after the service of the first discovery request
• Depositions are limited to a total of six hours per side (which the parties can extend to ten hours)
• Each party is limited to 15 interrogatories, 15 requests for production, and 15 requests for admissions
• Each party can serve a request for disclosure, which (unlike requests in other cases) can require the production of all documents, electronic information, and tangible items that a party may use to support its claims and defenses

So what does all of this mean?

1. If the plaintiff’s petition invokes the expedited process, and if the petition includes a request for disclosure (which triggers the discovery period), then the discovery period ends 180 days from the filing of the lawsuit.
2. The case must be set for trial no later than 90 days after the end of the discovery period, or as soon as 270 days after the filing of the lawsuit.
3. The trial court can continue the case only twice for a total of 60 days, so the case must be called for trial as soon as 330 days after the filing of the lawsuit.
4. Discovery is greatly limited, but the parties can be required to turn over all documents that they intend to use in support of their case.
5. The trial itself is limited to 8 hours per side, including jury selection and closing argument.
6. Unless the parties agree otherwise, any mediation must be short and inexpensive.
7. There are no separate hearings about expert witnesses.

This sort of procedure is designed so that small cases will be fast and relatively inexpensive to litigate.  This may have particular application to certain types of employment cases.  Many (perhaps most) discrimination cases will be too large to use this procedure.  If the plaintiff chooses to seek reinstatement (which is non-monetary relief), then the procedure is unavailable because the case does not qualify under Rule 169.

However, this procedure could provide a significant benefit in other types of cases, including (1) claims for unpaid wages and benefits, (2) overtime claims that do not involve multiple plaintiffs, (3) discrimination cases in which the plaintiff has found a new job and does not have a large claim for compensatory damages, and (4) claims under employment contracts.  If a case is litigated under this procedure, the reduced expenses should be beneficial to both the employer and the employee.

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes