January 12, 2015
By Angela Morris
The much talked about tort reform bill of 2011 called on new court rules for speedy trials in low-dollar cases, motions to dismiss frivolous or meritless claims and more. The changes hit the legal community in 2013, when the Texas Supreme Court published the new procedural rules.
How has House Bill 274 impacted the legal community since then? To find out, Texas Lawyer emailed questions to a district judge and lawyers on both sides of the bar. David Chamberlain, who typically represents defendants, helped to negotiate HB 274 and to draft the resulting procedural rules. Paul Wingo has represented personal injury plaintiffs in expedited action cases, and 68th District Judge Martin Hoffman has presided over cases in which lawyers used the new rules. Below are their answers, edited for length and style.
Texas Lawyer: Under what circumstances—and how frequently—do litigants use HB 274’s expedited actions provision (and resulting procedural rules)?
Texas Lawyer: What’s your opinion about trying cases as expedited actions?
Chamberlain: I would like to see the expedited actions rules utilized much more frequently. In the appropriate case, the rules deliver a better product at a better price. It gives new lawyers a chance to try cases and more experienced lawyers opportunities to keep their trial skills sharp. Juries appreciate a clear and concise presentation of the case. It forces lawyers and judges to laser-focus on the important issues and evidence. And these rules provide a very attractive and less expensive alternative to arbitration. The rules also control the cost and length of mediations. Daubert/Robinson motions are limited. These are all great things. Whenever we can, we ought to take advantage of it.
Wingo: We have tried a few, but it feels more like a hassle than a system that truly speeds up the litigation process.
Texas Lawyer: Under what circumstances—and how frequently—do litigants use HB 274’s motion-to-dismiss/loser-pays provision (and resulting procedural rules)?
Chamberlain: Rule 91a motions to dismiss are appropriate for attacking claims that have no basis in law or fact. Frequency of use has been the big surprise of HB 274. Those of us who were involved in the HB 274 legislative process did not think this procedure would be utilized much, mainly because the trial court is mandated by the statute and rule to award attorney fees to the prevailing party on the motion. We just didn’t think many defendants would risk having to pay fees, particularly when there is always a summary judgment motion available that doesn’t carry that fee-shifting risk. We were wrong.
Hoffman: I have seen a number of motions to dismiss baseless causes of action. … They are filed in cases where the plaintiff pleads every possible cause of action available under the sun without regard for the merits of each individual cause of action.
Wingo: I have seen a few of these filed, but they have always been worked out before the point of no return. It operates to narrow the issues a bit early on and weed out the more egregious claims.
Texas Lawyer: What is your opinion about these motions to dismiss?
Chamberlain: Used properly, I think it is certainly appropriate to knock out a truly baseless claim; that saves time and expense for everyone involved. And I do believe more specific pleading, if not overdone, can be helpful to moving the case forward and ultimately getting it resolved. On the other hand, there is potential for abuse. It adds another, potentially expensive step to pretrial litigation (and appeals), and we don’t need much more of that.
Hoffman: They can be a useful tool to clear up the pleadings, but they should be used sparingly due to the mandatory fee-shifting provision.
Wingo: It is a tool to have in the tool bag. Not used in every situation, but nice to know you have it if someone is really trying to abuse the system.