New discovery rules going to Texas judges

Changes meant to give cash-strapped litigants equalfooting with wealthy in filing civil suits

Mark Curriden
The Dallas Morning News © 1998

AUSTIN - After seven years of study and debate, the Texas Supreme Court has approved new rules intended to make it easier, faster and less expensive for individuals to pursue lawsuits.

The new procedures, which are officially being delivered to trial judges around the state this week and go into effect Jan. 1, are designed to give cash-strapped litigants more equal footing with wealthier opponents who can spend more to fight a lawsuit.

The rules significantly restrict the amount of court-mandated research and interviews - known as discovery - that the two parties in a lawsuit can do.

Legal experts estimate that nearly 80 percent of all litigation costs are derived from pretrial discovery and that much of it is unnecessary and abusive.

The changes are being applauded by groups that aim to make it easier for poor to middle-income individuals to seek damages from companies and wealthier defendants.

Most trial judges also favor the new rules, saying the regulations will give them increased power to move cases more quickly through the civil justice system.

"The cost of getting a case to trial has become so exorbitant that ordinary people can no longer afford to bring a lawsuit," said state Supreme Court Chief Justice Tom Phillips.

"The promise of equal justice for all means that all people should have access to the courthouse to resolve their disputes.

"But civil discovery has become so expensive and so slow that large segments of our society quite simply cannot afford to pursue their legal claims all the way to a judge or jury," he said.

The concept of discovery surfaced 60 years ago as a means of allowing both sides in a lawsuit to exchange evidence prior to trial.

Judges believed that discovery would enhance efforts to determine what really happened and thus promote justice and fairness.

The reforms eliminated the old "trial-by-ambush" or surprise technique enjoyed by legendary lawyers such as Clarence Darrow and William Jennings Bryan.

But in recent years, legal analysts say that the discovery process has become less about seeking the truth and more about wealthy litigants trying to bury economically disadvantaged opponents in mountains of records requests and demanding to take scores and scores of sworn depositions.

"I had a medical malpractice case where emergency room doctors didn't properly diagnose a heart attack," said Paula Sweeney, a Dallas trial lawyer.

"But during discovery, lawyers for the doctors and hospital went on a wild fishing expedition by demanding the client's gynecological records and a whole slew of things that had absolutely nothing to do with the issues in the case.

"The new procedures should cut out those kinds of abuses," said Ms. Sweeney.

Specifically, the rules will limit the amount of discovery according to the amount of money the plaintiff is seeking.

For example, people suing for less than $50,000 in damages will be restricted to only two or three depositions, and their cases will be put on a fast track for trial. Even in bigger-money cases, the number of depositions will be limited.

The new rules also eliminate the need for dozens of motions and procedures, prohibit lawyers from coaching witnesses during depositions and give judges more authority to crack down on lawyers who abuse the discovery process.

"But these changes will work only if we trial judges enforce them," said Dallas County District Judge Merrill Hartman. "At the same time, we must realize that justice will not be done in some cases if we do not remain flexible in the more complicated cases."

A beneficiary of the change is the family court system, said Mary Jo McCurley, a Dallas lawyer who specializes in family law.

Child custody disputes in which one side wants to conduct a lot of discovery often cost more than $50,000 to litigate - an amount that many single parents cannot afford, said Ms. McCurley.

"I see cases all the time where one party who's making a lot of money wants to modify the terms of child custody or visitation, and the other party, usually a single mother, does not have the money to pay a lawyer to fight it, so they have to settle for an unsatisfactory result," she said.