The Supreme Court has just issued the latest batch of procedures that, beginning on March 1, 2013, will further restrict the right of Texans to be reimbursed for their damages.
New TRCP 169 requires that plaintiffs identify if they are seeking more or less than $100,000 in damages when they file their original petition for damages. However this is often unclear early in litigation, especially if the injured person might need surgery or a second one and the amount of medical bills, lost wages, disability, pain and suffering, and other damages are still unknown. A request for more than $100,000 is subject to challenge and dismissal. And if a plaintiff states that he is seeking damages less than $100,000 and the jury awards more than that, the excess amount is forfeited.
If damages less than $100,00 are pleasd, new expedited rules control the case. There will be extremely strict limits on pretrial discovery. Very little is allowed: only 15 interrogatories, requests to produce documents, and requests for admission of facts. This will obviously curtail the ability to garner evidence needed. At least the defendant insurance company will be required to produce all documents supporting its often bogus defenses.
And depositions of all witnesses cannot exceed six hours, regardless of how evasive they are or how many people are involved, unless all parties agree to extend the time to ten hours. For example, in a three car crash involving five people, a police officer, and a doctor, it is impossible to only use six hours to question seven people.
Trial dates will be accelerated: they must occur within 180 days from the first-served discovery request. I am hoping that this will end the endless gamemanship and delays many insurance company lawyers now employ and insure faster trials for my clients.
However the ability to conduct a fair trial will be hampered as each side willl be limited to only five hours to pick the jury, open, present evidence, examine witnesses and close which is unfair unless the case is extremely simple. I have been involved in cases where it took at least that long just to pick the jury, including challenges.
The justices also created new TRCP Rule 91a to encourage every one who is sued to immediately file a motion to dismiss. A judge — without knowing anything about a case, without seeing any evidence, or even holding a 10 minute hearing — will now be able to decide that a lawsuit has no basis in law or fact (whatever that means) and dismiss it. And worse, the court can award attorney’s fees and costs to the defendant opposing the lawsuit. However bogus defenses filed are not subject to the same motion to dismiss or recovery of attorney’s fees.
At least the Court finally straightened out the mess it created in its anti-plaintiff Escobedo decision issued last year by amending TRE 902. Now there will be a self-authenticating affidavit that we plaintiff attorneys can use to prove how much injured people’s medical bills are — but greatly reduced now that their own health insurance company’s payments and reductions are credited.
And at least mandatory alternative dispute resolution is no longer required. I have been to far too many mediations when the defendant insurance company appears but refuses to negotiate in good faith, so that waste of time and money will be eliminated.
The need to retained experienced legal counsel continues to grow. Please contact me if you have any questions about an automobile or truck accident that you have been involved in here in North Texas.