THE NEOPHYTE LAWYER, DAY 308: TWO HOSPITAL VISITS AND A BABY

THE NEOPHYTE LAWYER, DAY 308: TWO HOSPITAL VISITS AND A BABY

 

It’s been a busy month in the land of the Neophyte Lawyer. In addition to the usual, day-to-day routine of preparing and filing pleadings, notices of intent, applications for hearings, and the other fun parts of a legal practice, there have also been two stays in the hospital. In fact, today (Tuesday, March 20) was my first day back in the office in a week. One hospital was scheduled, one was not. The planned visit was much more enjoyable, in my humble opinion.

 

The unplanned visit to the emergency room was for me. I had an unwelcome visit from a 4 mm kidney stone. For those who have never had a kidney stone, I highly recommend avoiding it if at all possible. On a scale of 1 to 10, I give this experience a definite “Not Fun.” When the E.R. doctor found out I was a lawyer, he asked if I sued doctors for medical malpractice. I replied, “Generally not E.R. doctors.” He seemed relieved.

 

The planned hospital stay was much more pleasant and much less painful (for me, at least; my wife may differ). My wife gave birth to the bundle of joy in the picture below, via C-section. Mother and daughter are both home and doing well, although Baby Lily wants to sleep all day and stay up all night. She’ll figure it out eventually, I’m sure.

 

 

Neophyte Lawyer and Daughter

 

 

For those who are interested in such things, she came in at 7 pounds, 13 ounces, and 20 inches long. For those not interested in such things, she still came in at 7 pounds, 13 ounces, and 20 inches long.

 

Now to get caught up on all the work that has piled up in my absence….

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PRACTICE POINTERS: NEW UTAH RULES OF CIVIL PROCEDURE, PART II

PRACTICE POINTERS: 2011 AMENDMENTS TO THE UTAH RULES OF CIVIL PROCEDURE, PART II: THE COMPLAINT

 

As I mentioned in my last post, some major changes to the Utah Rules of Civil Procedure went into effect on November 1, 2011. The previous post went over the new rules for initial disclosures. This post will focus on the required changes in the complaint.

 

DAMAGE TIERS

 

The biggest change in the complaint is that plaintiffs are now required to identify the range of the damages they expect to recover. The new rules outline 3 separate tiers of damages. Tier 1 contains cases with damages of $50,000.00 or less. Tier 2 cases have either: (1) damages between $50,000.00 and $300,000.00; or (2) non-monetary relief. Tier 3 cases are valued at greater than $300,000.00. If the complaint does not specify a tier, the case becomes a tier 2 case by default.

 

EFFECTS OF TIER SELECTION

 

The first major effect of tier selection is the limits on recovery. For example, if a case is identified as a tier 1 case, the plaintiff can receive no more than $50,000.00. This will force the plaintiff and his or her attorney to have a fairly clear view of the worth of the case from the outset.

 

The second major effect of the tier selection process is the limitation on discovery. The goal of the new rules is to streamline the discovery process, and to ensure that the amount of discovery in any given case is proportional to the value of the case (“proportionality” is a big deal in the new rules; I’ll come back to that idea in a future post). Under the old rules, the standard fact discovery period for all cases was 240 days. Unless otherwise agreed to, each party was allowed 10 depositions, and the length of each deposition was capped at 7 hours. Each side was allowed 25 interrogatories, including discrete subparts. There was no limitation on requests for production of documents or requests for admissions.

 

One of the reasons the new amendments were proposed was to reduce the cost of discovery, especially in lower-value cases. As a result, the available discovery options are limited by tier, as indicated in the following table:

 

Tier
Aggregate Amount of Damages
Total Fact Deposition Hours
Rule 33 Interrogatories
Rule 34 Requests for Production
Rule 36 Requests for Admissions
Days to Complete Standard Fact Discovery
1
$50,000.00 or less
3
0
5
5
120
2
Greater than $50,000.00 and less than $300,000.00 or non-monetary relief
15
10
10
10
180
3
$300,000.00 or more
30
20
20
20
210

 

NEOPHYTE LAWYER’S THOUGHTS

 

A question that I have about the tier selection process is this: What if you choose the wrong tier? For example, let’s say that you identify your case as a Tier 1, but as the discovery process proceeds, you determine that the damages exceed $50,000.00? The Advisory Committee’s advice is that in these situations, you should immediately amend the complaint to change the tier. In the vast majority of cases, that shouldn’t be a problem. But what if amending the complaint isn’t possible? Does the attorney leave him- or herself open to a malpractice suit or a Bar complaint?

 

Also, if the goal is to reduce expensive discovery, why are interrogatories, requests for production and requests for admission so limited in Tier 1 cases? Those are the least expensive forms of discovery. Again, the Advisory Committee envisions that the new Initial disclosure rules will provide both parties with more information than in the past, making this additional discovery in the lower-value cases unnecessary. I’m still not sure that I buy that completely.

 

My gut feeling is that it will take a lot of courage for plaintiff’s attorneys to identify their cases as Tier 1 cases. There is no penalty for saying the case is Tier 2, and they get the additional benefits of increased deposition time, interrogatories, requests for production and admissions, and an additional 2 months of fact discovery. And all clients should be aware that they risk the potential that the final verdict or settlement will be less than $50,000.00.

 

On the other hand, if the case is identified as Tier 1 from the outset, both the plaintiff and the plaintiff’s counsel run significant risks. The award is capped at $50,000.00, and it might not be possible to amend the initial complaint. Also, the available discovery is significantly limited. If the initial disclosures are lacking, and the available discovery is insufficient, the parties will have to move the court to grant additional discovery (I’ll discuss this process in greater detail in a future post).

 

All in all, I think we will see most cases, even the low-value cases, identified as Tier 2, out of an abundance of caution on the part of the plaintiff’s attorneys. Perhaps this will change, as we all get more comfortable with the new rules. But unless there is some disincentive in identifying a low-value case as Tier 2 instead of Tier 1, I just don’t see that happening.

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PRACTICE POINTERS: UTAH’S NEW RULES OF CIVIL PROCEDURE

PRACTICE POINTERS: UTAH’S NEW RULES OF CIVIL PROCEDURE, PART I: INITIAL DISCLOSURES

 

Effective November 1, 2011, the Utah Supreme Court adopted significant amendments to the Utah Rules of Civil Procedure. The purpose of these new amendments is, as stated in Rule 1, to achieve “the just, speedy and inexpensive determination of every action.” (Emphasis added) It was felt that the costs of litigation were getting out of proportion to the value of the cases involved. This has had the unwanted consequence that attorneys were refusing to accept smaller-value cases, because they were not cost-effective. As a result, these potential plaintiffs were effectively shut out of the courthouse.

 

The solution to this problem, according to the Supreme Court Advisory Committee that drafted the new rules, was to restore “proportionality” to the proceedings. Discovery is now limited to what is proportional to the stakes of the litigation. The stated goal is to restore greater access to the justice system to all members of society.

 

Changes were made to fourteen existing rules, and two new rules were added:

 

  • Rule 1. General provisions
  • Rule 8. General rule of pleadings
  • Rule 9. Pleading special matters
  • Rule 16. Pretrial conferences
  • Rule 26. General provisions governing disclosure and discovery
  • Rule 26.1. Disclosure and discovery in domestic relations actions (new)
  • Rule 26.2. Disclosures in personal injury actions (new)
  • Rule 29. Stipulations regarding disclosure and discovery procedure
  • Rule 30. Depositions upon oral questions
  • Rule 31. Depositions upon written questions
  • Rule 32. Interrogatories to parties
  • Rule 34. Production of documents and things and entry upon land for inspection and other purposes
  • Rule 35. Physical and mental examination of persons
  • Rule 36. Request for admission
  • Rule 37. Discovery and disclosure motions; sanctions
  • Rule 54. Judgments; costs

 

As is the case for all lawyers in Utah, neophyte or not, my colleagues and I are still working our way through all of these new rules and obligations. Rather than try to examine all of the changes at once, my plan is to break this discussion down into more manageable chunks. This post will focus on the new initial disclosure requirements, especially those in personal injury cases (It’s no coincidence that my supervising attorney and I are working on one of our first cases under the new rules, and our initial disclosures are due on Friday).

 

Initial Disclosure Requirements

 

Under the old Rule 26(a), both parties were to provide the following initial disclosures (I’ll paraphrase the rules to minimize the legalese):

 

  • The name and contact information of each individual likely to have discoverable information supporting the party’s claims or defenses, identifying the subjects of the information;
  • A copy of, or a description by category and location of, all discoverable documents, data, and tangible things in the possession of the party supporting its claims or defenses;
  • A computation of any category of damages claimed by the disclosing party, making available for inspection and copying all discoverable documents or other evidentiary material on which such computation is based, including materials bearing on the nature and extent of injuries suffered; and
  • Any applicable insurance agreement that could be used to satisfy a judgment.

 

Under these rules, initial disclosures often were just lists of categories of documents, with the statement “These documents will be made available for inspection and copying at a time mutually agreeable to the parties or their attorneys” or the equivalent. The actual documents themselves were not provided until later, often after a Request for Production of Documents and Other Tangible things was made.

 

The new Rule 26(a) had been amended to require the following initial disclosures (again, paraphrasing):

 

  • The name and contact information of each individual likely to have discoverable information supporting its claims or defenses, identifying the subjects of the information;
  • The name and contact information of each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony;
  • A copy of all documents, data compilations, electronically stored information, and tangible things in the possession or control of the party that the party may offer in its case-in-chief, except charts, summaries and demonstrative exhibits that have not yet been prepared and must be disclosed in accordance with pretrial disclosure rules;
  • A computation of any damages claimed and a copy of all discoverable documents or evidentiary material on which such computation is based, including materials about the nature and extent of injuries suffered;
  • A copy of any applicable insurance agreement; and
  • A copy of all documents to which a party refers in its pleadings.

 

The new Rule 26.2 imposes additional new requirements for plaintiffs and defendants in personal injury cases. The plaintiffs are required to produce the following additional initial disclosures:

 

  • A list of all health care providers who have treated or examined the plaintiff or the injury at issue, including the name, address, approximate dates of treatment, and a general description of the reason for treatment;
  • A list of all other health care providers who treated or examined the plaintiff for any reason in the 5 years before the event giving rise to the claim, including the name, address, approximate dates of treatment, and a general description of the reason for the treatment;
  • Plaintiff’s social Security number or Medicare health insurance claim number, full name, and date of birth;
  • A description of all disability or income-replacement benefits received if loss of wages or loss of earning capacity is claimed, including the amounts, payor’s name and address, and the duration of the benefits;
  • A list of plaintiff’s employers for the 5 years preceding the event giving rise to the claim if loss of wages or loss of earning capacity is claimed, including the employer’s name and address and plaintiff’s job description, wage, and benefits;
  • Copies of all bills, statements, or receipts for medical care, prescriptions, or other out-of-pocket expenses incurred as a result of the injury at issue;
  • Copies of all investigative reports prepared by any public official or agency and in the possession of plaintiff or counsel that describe the event giving rise to the claim; and
  • Copies of all written or recorded statements of individuals, in the possession of plaintiff or counsel, regarding the event giving rise to the claim or the nature or extent of the injury, except for protected trial preparation materials.

 

Rule 26.2 requires defendants to make the following additional initial disclosures:

 

  • A statement of the amount of insurance coverage applicable to the claim, including any potential excess coverage, and any deductible, self-insured retention, or reservation of rights, giving the name and address of the insurer;]
  • Unless the plaintiff makes a written request for a copy of the entire insurance policy to be disclosed under Rule 26(a)(1)(D), it is sufficient for the defendant to disclose a copy of the declaration page or coverage sheet for any policy covering the claim;
  • Copies of all investigative reports, prepared by any public official or agency and in the possession of defendant, defendant’s insurers, or counsel, that describe the event giving rise to the claim;
  • Copies of all written or recorded statements of individuals, in the possession of defendant, defendant’s insurers, or counsel, regarding the event giving rise to the claim or the nature or extent of the injury, except for protected trial preparation materials; and
  • Allocation of fault information required by Rule 9(l).

 

Timing of Initial Disclosures

 

Under the old Rule 26(a), both parties were required to submit their initial disclosures within 14 days after the attorneys discovery and scheduling conference. The scheduling conference itself was to be held within 46 days after the filing of the first answer in the case, per Rule 26(f).

 

One of the big changes in the rules is that there is no more attorney discovery and scheduling conference. Instead, the clock begins to run with the filing of the first answer in the case. Under the new Rule 26(a)(2), the plaintiff’s initial disclosures are due within 14 days after service of the first answer to the complaint. The defendant’s initial disclosures are due within 28 days after either the plaintiff’s first disclosure or that defendant’s appearance, whichever is later.

 

Neophyte Lawyer’s Thoughts

 

The major impact of these new disclosure rules for plaintiff’s counsel is the need to have your ducks lined up prior to filing the complaint. The new disclosures are more detailed than in the past. You have to name not just individuals who may have discoverable information, but also the fact witnesses you plan to use at trial, and what there testimony will be. You have to provide copies of all relevant documents, not just list them and summarize their contents.

 

Since the timing for fact discovery has also been reduced for smaller cases (more on that in another post), plaintiff’s counsel no longer has the luxury of filing the complaint and then examining the evidence as discovery proceeds. It is important the plaintiff’s counsel have a good handle on the case prior to filing the complaint.

 

The Advisory Committee’s idea is that if both parties provide more detailed information up front, costly discovery later on can be avoided. This will, ideally, keep the litigation costs low, and make it economically feasible for attorneys to agree to take on more smaller-value cases. Whether this will in fact be the case is still an open question.

 

For potential plaintiffs, it also means that as you look for attorneys to represent you, the more documentation you have to support your claim, the better off you will be. If you are serious about pursuing a claim, gather all of the documents you can first, so you can present them to your attorney. The more information he or she has at the beginning, the better he or she will be able to advise you about your options.

 

If any other attorneys out there have any insights as to the new initial disclosure rules, I’d be happy to hear them. As I said, all of us practicing law in Utah are still sorting through what these new rules mean.

 

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