Vt. R. Civ. P. 80.11
Vt. R. Civ. P. 80.11
Order Continuing Addition of Rule 80.11 to the Vermont Rules of Civil Procedure
That Rule 80.11 of the Vermont Rules of Civil Procedure as originally adopted by order of June 15, effective August 15, 2016, as amended in 2016 and 2018, and as continued by order of April 30, 2018, until August 31, 2022, in the absence of further order of the Court, is made permanent, to be effective in any civil action to which it is applicable.
Reporter's Notes-2022 Order
Rule 80.11, originally adopted by the Supreme Court's order of June 15, effective August 15, 2016, with a sunset date of August 16, 2019, is now made permanent.
The original sunset date applied only if the Court took no further action. By order of April 30, 2018, the Court ordered the rule, as amended, to be continued and directed the Advisory Committee on the Rules of Civil Procedure to continue to review its operation and to advise the Court whether it should be further revised or made permanent. If the Court did not order otherwise, the rule would be void and inapplicable in any action commenced after August 31, 2022. See Rule 80.11, History, Editor's note.
The Committee discussed the rule at several recent meetings. A Vermont Bar Association membership survey conducted on behalf of the Committee, indicated that, although the expedited action procedure provided by Rule 80.11 is not used extensively, it is generally viewed as useful and effective, with no significant suggestions for revision. After review and discussion of the survey results, the Committee voted unanimously to recommend to the Court that V.R.C.P. 80.11 as presently constituted be promulgated as a permanent rule effective not later than August 31, 2022.
This Order was promulgated April 30, 2018; effective immediately. Rule 80.11 of the Vermont Rules of Civil Procedure added on June 15, 2016, and amended on July 11, 2016, has been continued, and the sunset date of August 16, 2019 set in the Court's order of June 15, 2016 is void. The Advisory Committee on the Rules of Civil Procedure has been directed to continue to review the operation of this rule and to advise the Court not later than August 31, 2021, whether the rule should be further revised or made permanent. It the absence of further order, the rule will be void and of no further effect in any civil action commenced after August 31, 2022.
Reporter's Notes-2018 Amendment
Rule 80.11(e)(3)(B) is amended to change its 15-day time period to 14 days consistent with the simultaneous "day is a day" amendments to V.R.C.P. 6.
Reporter's Notes-2016 Amendment
Rule 80.11 as added June 15, effective August 15,2016, is amended to reflect the abrogation and replacement ofV.R.C.P. 16.3. New Rule 16.3 significantly simplifies the procedure of the former rule and provides only for mediation, rather than for a variety of alternative dispute resolution methods. The present amendments are intended to reflect those changes by substituting "mediation" for "alternative dispute resolution" wherever it appears and replacing cross-references to former Rule 16.3 with references to the appropriate provisions of the new rule.
For clarity and convenience, the paragraph of the original Reporters Notes to V.R.C.P. 80.11 referring to "ADR" under former Rule 16.3 is repeated here with references corrected to substitute "mediation" for the former term and correct cross-references:
Unless the parties stipulate as to the matters listed in V.R.C.P. 16.2 and the provisions of Rule 80.11(d) for scheduling mediation, Rule 80.11(b) requires a scheduling conference and scheduling order early in the case to address those matters. Under Rule 80.11(c), there are important limitations on motion practice, including a requirement that the party filing a nondispositive motion must certify that the party has made a good faith attempt to obtain the opposing party's agreement to the requested relief. Rule 80.11(d) requires parties who have not voluntarily undertaken mediation to engage in mediation in accordance with V.R.C.P. 16.3 but on a tight schedule and under other limitations. Paragraph (d)(4) requires the court to make a specific determination as to whether to require mediation if either or both parties cannot pay its cost.
Reporter's Notes
Rule 80.11 is added to address the widely recognized problem that the cost and time needed to litigate civil claims are often disproportionate to the value of the cases. Currently, simple nonmonetary claims and any case exceeding the small claims threshold of $5000 must be brought as a civil action under the Vermont Rules of Civil Procedure. As a result, the pursuit of potentially meritorious claims and defenses may be discouraged because of the cost entailed, or litigants may represent themselves-a course that is ineffective and imposes significant costs on opposing parties and court resources.
The new rule is designed to provide an effective, efficient, and predictable case management process for lower-value or lesscomplicated cases. Its intent is to make it economically feasible for lawyers to take on these cases and for litigants to be able to afford to hire lawyers. Rule 80.11 will also result in the more efficient conduct of litigation in cases where litigants are self-represented or have limited representation under V.R.C.P. 79.1(h). Making representation both more economical and less time-consuming will increase access to justice.
The rule was developed by a committee of the Vermont Bar Association (VBA) working in conjunction with the Civil Division Oversight Committee and the Court's Advisory Committee on the Rules of Civil Procedure. After an initial comment period and public presentation at the fall 2014 VBA meeting, a draft rule, revised by the VBA committee on the basis of extensive comments received, was sent out for comment at the request of the Court's Advisory Committee on Rules of Civil Procedure. The present rule incorporates further changes resulting from review by the Advisory Committee after the second comment period. With the adoption of Rule 80.11, Vermont will join several federal district courts and the courts of a number of other states that have developed rules to expedite procedures in less-complicated civil cases. See Inst. for the Advancement of the Am. Legal Sys., A Summary of the Short, Summary, and Expedited Civil Action Programs Around the Country (2015) http://iaals.du.edu/sites/default/files/documents/publications/summary chart of CUlTent sse programs.pdf [https://perma.ccIN56V-C4C5].
Rule 80.11(a) (1)(A) provides that the expedited procedures apply when a case is expressly designated as an "expedited action" in a complaint alleging that no more than $50,000 is in controversy, exclusive of interest, costs, and attorney's fees. Subparagraph (B) allows the parties to agree that an action will be commenced and calTied on as an expedited action regardless of the amount in controversy, or to agree that an action commenced under the ordinary provisions of the rules may subsequently be designated and calTied on as expedited. Subparagraph (C) allows the court, on any party's motion, to designate an action as expedited regardless of the amount in controversy if designation will advance "the just, speedy, and inexpensive determination" standard ofV.R.C.P. 1.
Rule 80.11(a)(2)(A) provides that a plaintiff, by filing an action designated as expedited, waives recovery of any damages in excess of $50,000. Subparagraph (B) makes similar provision for the filer of a counterclaim, cross-claim, or third-party claim in response to an expedited filing, subject to the provision of subparagraph (C) that if the filer of an ancillary claim, seeking relief beyond that allowed for application of the rule, so requests in the pleading, the judge will strike the expedited action designation and the action will proceed as an ordinary civil action.
Rule 80.11(a)(3) requires that all filings subsequent to designation, whenever and however it occurs, must be clearly labeled "EXPEDITED ACTION."
Paragraph (4) allows the court on motion to remove the action from the expedited process on a showing of good cause-for example that more than $50,000 is in controversy and there is no contrary showing of need for the expeditious process pursuant to subparagraph (1)(C), or that there is a demonstrable need for procedural steps not permitted by other provisions of Rule 80.11. Note that paragraph (6) provides that the comi, for good cause, may make exceptions to deadlines or other limits provided in the rule, subject to a showing of need based on excusable neglect if the request is made after the deadline. See also Rule 80.11(e)(5) (stipulation or motion for additional discovery). These provisions may address specific concerns that might otherwise require removal of the action from expedited status.
Rule 80.11(a)(5) provides that the general provisions of the Civil Rules apply to expedited actions unless otherwise provided in, or inconsistent with the rule; however, careful attention should be paid to the significant differences in key procedural areas.
Unless the parties stipulate as to the matters listed in V.R.C.P. 16.2 and the provisions of Rule 80.11(d) for scheduling ADR, Rule 80.11(b) requires a scheduling conference and scheduling order early in the case to address those matters. Under Rule 80.11(c), there are important limitations on motion practice, including a requirement that the party filing a nondispositive motion must certify that the party has made a good faith attempt to obtain the opposing party's agreement to the requested relief. Rule 80.11(d) requires parties who have not voluntarily undertaken ADR to engage in ADR in accordance with V.R.C.P. 16.3 but on a tight schedule and under other limitations. Paragraph (d)(4) requires the court to make a specific determination as to whether to require ADR if either or both parties cannot pay its cost.
Rule 80.11(e) imposes significant limits on discovery to minimize its time and cost. Under Rule 80.11(e)(1), all discovery except of retained experts must be completed within 180 days after the last answer is filed. Paragraph (2) requires that initial disclosures like those required under the federal rules must be made within 30 days after the last answer is filed. Similarly, under paragraph (3), automatic disclosures ofthe identity of retained experts and the substance of their testimony are required. Rule 80.11(e)(4) provides limits on specific forms of discovery: The parties are limited to 15 Rule 33 interrogatories, 15 Rule 34 requests to produce, and 15 Rule 36 requests for admission in each case including discrete subparts. Oral depositions other than of experts are limited to 15 hours total for each party. Expert depositions may be taken within 30 days after disclosure and are limited to three hours each. Rule 80.11(e)(5)(A) allows stipulations for additional discovery within existing deadlines. Under subparagraph (B), the court may extend deadlines or other limitations on additional discovery for good cause as provided in Rule 80.11(a)(6).
The foregoing provisions expediting all aspects of pretrial procedure culminate in the requirement of Rule 80.11(f)(1) that all cases must be ready for trial within nine months of the time the answer is filed. Once a case is ready, further provisions of subdivision (f) expedite the trial itself, requiring a pretrial conference covering issues pertaining to trial and mandating the exchange of witness and exhibit lists and copies of exhibits under penalty of preclusion of a witness or exhibit. Objections must be filed seven days prior to trial.
Rule 80.11(g) provides that the rule applies to all cases filed after its effective date and that parties to cases pending on that date may jointly stipulate that their cases may go forward under the rule. See subparagraph (a)(1)(B).