Texas Speedy Trial Rule Shafts Defendants, Groups Say

Interesting article by Jeremy Heallen on the new "Speedy Trial" rule here in Texas:

Law360, Houston (February 04, 2013, 4:35 PM ET) -- A national defense bar advocacy group on Thursday said a new procedural rule recently adopted by the Texas Supreme Court designed to streamline clogged court dockets will give an unfair advantage to plaintiffs by limiting defendants’ ability to present their cases.

In a letter to the high court, Defense Research Institute President Mary Massaron Ross argued that the “well-intentioned but flawed” Texas Rule of Civil Procedure 169 would speed up the trial process but give defendants less time to develop and argue counterclaims.

“[A]n expedited trial is a noble undertaking but only if that process places both parties on an equal footing and provides for the exercise of fundamental principles established for jury trials,” Ross said in a statement Thursday. “The process must be equitable and free from advantages to one of the parties.”

Adopted by the Texas Supreme Court in November, rule 169 restricts discovery and places a 10-hour time limit — from jury selection to closing arguments — on trials involving a plaintiff’s claim for $100,000 or less. The rule excludes from the “amount in controversy” calculus any sums being sought by a defendant’s counterclaim.

DRI says a party asserting a counterclaim of $1 million, for example, nevertheless would be forced into an expedited trial with limited time and discovery to present a full case — a result Ross claims is unfair.

“DRI supports expedited jury trials as a way of holding the line on costs and making the administration of justice more timely and efficient,” Ross’ statement said. “What we cannot support is efficiency at the expense of justice and fairness. We urge the Texas Supreme Court to reconsider its position.”

The high court adopted the measure in response to state legislation passed in 2011 requiring the court to create rules that promote the “prompt, efficient, and cost-effective resolution of civil actions.” The rule does not apply to actions brought under the family, property or tax codes or to medical malpractice cases.

Although the rule grants trial judges the discretion to move cases from the expedited procedure on a “showing of good cause” by any party, DRI said the rule provides for no appellate review of a decision to grant or deny a request to remove the case from the fast track.

DRI is not alone in its opposition to the rule. Supporters of the original 2011 legislation, the Texas Association of Defense Counsel Inc., said Thursday it also opposes Rule 169, noting that nearly all other jurisdictions that have implemented an expedited actions system have made such systems voluntary rather than compulsory.

“To develop a procedure which compels a defendant into a trial process where little discovery is permitted and only five hours per side is given to the defendants to complete voir dire, opening, direct examination, cross examination and closing based solely upon the amount in controversy is unfair, unjust and amounts to a denial of a fair opportunity for a defense,” TADC President Dan K. Worthington said in a statement Thursday.

Rule 169 is among several adopted or modified by the court to meet the Legislature’s demand. In November, the court also adopted Rule 91a, which provides a procedural mechanism for parties to seek dismissal of claims that lack any basis “in law or fact” before pretrial discovery is complete. DRI said Thursday its objection was focused only on Rule 169.

Both rules take effect March 1.

--Editing by Richard McVay