With the new year brings new changes to the Texas Rules of Civil Procedure. Some of those changes, those to TRCP Rule 169 which creates and governs the process for expedited actions in Texas, are quite significant and could potentially result in an increased number of lawsuits being filed under the Rule.
Expedited actions under TRCP Rule 169 are essentially lawsuits that meet certain criteria and have special procedures and limitations. These procedures and limitations in turn allow for expedited actins to be fast-tracked to trial, hence the name. Indeed, expedited actions exist to “promote the prompt, efficient, and cost-effective resolution” of lawsuits that do not exceed a certain monetary value and do not seek any non-monetary relief. The key change to Rule 169 is what that monetary value is and, accordingly, what lawsuits can be brought as expedited actions.
Amendments to TRCP Rule 169 increase the monetary limit for expedited actions
As of January 1, 2021, TRCP Rule 169 allows plaintiffs to seek up to $250,000 in monetary relief and excludes interest, statutory or punitive damages and penalties, and attorney fees and costs. Before, the Rule only applied to actions where the plaintiff was seeking only monetary relief in the amount less than $100,000, including all penalties, costs, expenses, pre-judgment interest, and attorney fees.
This is a huge change. Obviously, the increase from $100,000 to $250,000 is significant on its own. However, the change to exclude interest, certain types of damages, and, most importantly, attorney fees and costs is even more significant. Excluding the recovery of attorney fees and costs from the monetary cap transforms expedited actions into a much more plaintiff-friendly tool. Accordingly, with these changes, Texas state courts may see a significant increase in the number of cases filed as expedited actions, including employment law case.
Pros and cons of filing a case as an expedited action
If a lawsuit meets the requirements for and is filed as an expedited action, it is treated differently than other lawsuits. Again, expedited actions must follow special procedures and are subject to special limitations under the Rules. It is important to understand these differences because they determine not whether the case can be filed as an expedited action, but whether it should be.
The biggest incentive to file a case as an expedited action is timeliness of getting to trial. Expedited actions must be set for trial, upon either party’s request, within 90 days of the close of the discovery period. Moreover, the court can only continue (i.e. postpone) the trial twice for a maximum of 60 days. Thus, after discovery closes, an expedited action should go to trial within 150 days max (about five months). Overall, it is possible for an expedited action to go from start (filing the lawsuit) to finish (trial) in under a year.
The biggest disincentives for filing a case as an expedited action are the limitations on discovery, time allowed for trial, and the inability to seek any non-monetary relief.
Under TRCP 169, expedited actions are subject to a Level 1 Discovery Control Plan. Accordingly, in an expedited action, both sides are more restricted in the time allowed for oral depositions and more limited in the number of requests they can make for written discovery. So, if a case will require a significant amount of written discovery or depositions, an expedited action may not be appropriate.
Similarly, trials for expedited actions are generally limited to eight hours per side (including jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing arguments). Thus, a complex case with lots of witnesses may not be right for filing as an expedited action.
Additionally, to qualify as an expedited action, a plaintiff cannot seek any non-monetary relief. This remains the same as it was prior to the recent amendments. In employment law cases, this means a plaintiff will still not be able to seek reinstatement if they want to file their case as an expedited action.
Overall, there are many factors to consider when determining if an expedited action is the best way to proceed. However, with the increase in monetary relief that can be sought and the exclusion of attorney fees from that cap, it is a tool that is now much more likely to be worth considering.