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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About W. Lewis Black

W. Lewis Black is an associate attorney at Dunn & Dunn, P.C., located in Salt Lake City, Utah. His practice focuses on personal injury, employment law, workers compensation, and Social Security Disability claims. He is a past member of the Ensemble at Pinnacle Acting Company in Midvale, Utah. He can be contacted at wlblack@dunndunn.com.
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One Response to PRACTICE POINTERS: NEW UTAH RULES OF CIVIL PROCEDURE, PART II

  1. Sorry about the table. You can’t see the last column (Days to Complete Fact Discovery), and I can’t seem to edit it to fit. Here’s the breakdown: Tier 1 cases have a 120-day fact discovery period, Tier 2 cases have 180 days, and tier 3 cases have 210 days.

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