What Are Fast Track Rules?
While litigation is generally understood as a longer process, there are certain steps that can be taken to expedite proceedings. When the process moves more forwardly than expected, this is referred to as the fast track. While the fast track is sometimes seen as an option for settling suits like medical malpractice, it is also a route many clients must navigate to get through a lawsuit of any kind within a reasonable amount of time.
Fast track rules originated from the growing concern of lengthy court proceedings. Many parties understood that the extent of lawsuits and the length of retention of counsel was wasteful in many instances. In general , the goal is to resolve a suit as quickly as possible. Fast track involves curtailing matters within suits so they are brought to resolution more expeditiously.
However, in any suit, there are certain factors that control. Time limits cannot be imposed when the matter at hand will require a great deal of time to investigate. For example, the discovery process must be allowed to play out. Deadlines can be set, but these have to be seen as practical by courts. And, most importantly, all parties must understand that deadlines can and do change. When unexpected circumstances arise, it is not uncommon for the entire schedule to be revised.
Advantages of Fast Track Procedures
The advent of fast track rules in civil litigation has brought with it a range of benefits, not only for the parties whose matters they govern, but for the courts and tribunal making determinations in under 60 days.
A key advantage of using fast track rules, and perhaps the primary motivating force behind their introduction is reduction of legal costs. The simple reality is that the faster a case can be resolved by the court, the less cost to the parties, and therefore the less legal expense. Witnesses are not required in fast track matters to attend at a court or tribunal hearing; affidavits and other documentary evidence can be tendered without lengthy cross examination; and on the whole there are fewer interlocutory issues to be tried. Moreover, the costs incurred in making and defending interlocutory applications under fast track rules is not extensive; the disposition of one or possibly two affidavits and some modest amount of oral evidence, as opposed to several interlocutory applications, full cross examination of multiple witnesses, and lengthy preparation time, often amounting to months -, even years – before an issue is heard by a judge.
Apart from costs savings, fast track procedures can also result in quicker disposition of issues in dispute that arise between parties to a matter. The obvious benefit to this is that where the courts for example create a timeline for the resolution of a dispute, it is more likely to adhere to that time line and afford the parties the ability to plan and re-plan their cases accordingly. As a general rule (albeit one which an experienced lawyer may be tempted to mythically undertake) the sooner a case can be resolved, the more likely the parties will have certainty going forward as to what needs to be done to bring the matter to an end.
There is of course the corollary to the above point, which is that fast track procedures engender efficiency, and efficiency is beneficial to the courts and parties alike. Efficiency means the judiciaries caseload remains manageable; which means the courts can meet the expectations of the parties, that is the expectations that their matters will be dealt with in a prompt and timely manner. It also is a mechanism that ensures the courts best use the resources available to them, and avoids unnecessary allocation to one case as against another.
Eligibility for Fast Track
Not every case is eligible for fast track processing under these rules. The Rules Committee of the U.S. Courts has recognized the need to differentiate between cases that would benefit from these expedited rules and cases (most of them) that would not. Therefore, the rules set out specific situations in which a case is eligible for fast track treatment, as well as criteria used to determine whether a case qualifies:
The considerations for particular cases include:
- The number of parties (i.e., the more parties, the longer time needed for discovery and trial preparation);
- The nature of, and the number of, the claims, defenses, or counterclaims made (i.e., the more claims and defenses, the longer time needed for discovery and trial preparation);
- The nature of the relief sought (i.e., the more extensive the anticipated data or documentary requests, the longer the time needed for discovery and trial preparation);
- Any allegations of fraud or mistake (e.g., fraudulent transfers or allegations of accounting fraud (e.g. false books entries) may require extensive document requests, witnesses identified in discovery, and narrowed alleged transactions with applicable equitable remedies, such as an accounting); and
- Any allegations of special damages (i.e. personal injury claims may require expert witnesses and reports regarding any injuries, as well as the effect of those injuries on livelihood (e.g. unable to complete assigned work at normal work pace, possible layoffs).
The types of cases that qualify for fast track processing include:
- Cases that involve a limited amount in controversy and are unlikely to be complex. Examples of cases are simple employment discrimination cases involving only a few witnesses. These cases are generally resolved before trial due to the inappropriate nature to multiply the proceedings;
- Cases that by their very nature can be resolved without the need for extensive discovery and trial preparation. For example, a straightforward action for an accounting of partnership income by only one of the partnership partners. All accounting records are at the partnership location and material witnesses are willing to meet to resolve the outstanding issues of income. There are no claims of mismanagement or fraud.
- Lastly, a timely filed case. Any case that, if not timely filed, (i.e., within the time limits prescribed by the rules, case management plan, or court order); may fall into this category.
Conducting a Fast Track Trial
The concluding feature of fast track proceedings is the hearing. In these circumstances the Court will usually list the matter for a directions hearing to give the parties an opportunity to identify any matters they may want to bring to the Court’s attention.
The Court will then list the matter for trial; the recommendations for the timetable are set out in UCPR 31.16. As a guide, the Court will make directions that the parties be ready on a date fixed by the Court not less than 12 weeks after the date of service of the statement of claim. The Court will also recommend that the pleadings close approximately 6 weeks before the scheduled trial date.
As to evidence, UCPR 31.14 provides that a party is not entitled to call evidence not already disclosed unless the Court gives leave; leave shall not be given other than on grounds which but for this rule, a party would be not be entitled to lead any evidence on the matter.
In addition, under UCPR 31.15, there are no rights to call expert evidence. The parties must agree upon any questions of expert evidence; if the parties are in dispute they are to refer the question to the registrar who may give directions about expert evidence and advise whether the parties may produce expert reports.
UCPR 31.18 will apply as to the qualifications, content and form of expert reports.
Problems and Boundaries
Despite the many advantages to utilizing a fast track rule, there are potential challenges and limitations. Some judges may be reluctant to use fast track rules with parties unrepresented by counsel because of the complexity involved in guiding a pro se litigant through unfamiliar legal proceedings. Additionally, under certain rules, a party not "in default" may move to opt out of fast track procedures. There also may be certain judicial qualifications, such as a minimum monetary threshold to be eligible for a fast track rule. For example, New York’s Fast Track Commercial Division standard calls for a minimum monetary threshold to be eligible for the program as follows: [C]ommercial Division justices will determine, upon application by a party, whether a case meets the criteria for the Fast Track Commercial Division standards set forth below. In consideration of such application, the court will focus on cases that present a minimum amount in controversy of $100,000.00, exclusive of punitive, incidental, consequential, indirect or other special damages or attorneys’ fees. This threshold amount should be used as a rough, but not absolute, guideline . The court has the discretion to consider lesser amounts when it deems such discretion to be in the interest of justice. Here Professor Andrew Schwartz provides a helpful list of some of the main criticisms of these types of rules: It is hard to learn the law quickly in a compressed timeframe. It is often difficult to provide adequate time for motions, pleadings, discovery, etc. in a compressed timeframe. Rather, cases may be handled more quickly by standard procedures. The rules are bad social policy – for example, when they require opponents to agree in advance to position statements of fact as undisputed. The rules make it difficult for lawyers and clients to change their strategies once they are in motion (besides the fact that most lawyers do not know how to handle a condensed and expedited process). Clients may not want to follow the rules, especially when they are faced with serious issues (such as a long-term relationship). These rules create more litigation. The rush to submit evidence expeditiously (in an expedited format) often creates more post-discovery motions practice (to exclude evidence)
While fast track rules have many benefits when used appropriately, it is important to be aware of the potential issues that can arise.
Fast Track in Other Legal Systems
Fast track rules differ from one jurisdiction to another based on legislative changes and local court procedures. The fast track rules can be found in all the provinces of Canada. Most jurisdictions introduce specific fast track rules in a piecemeal approach based on the prevailing case flow problems. For example, fast track rules are more prevalent in large urban centres since those areas have most of the case flow. In Canada, fast track rules are found at various civil levels to deal with minor complex civil cases. Each province has their own set of rules (e.g., Ontario Superior Court, Alberta District Court, British Columbia Supreme Court and Alberta Court of Queen’s Bench). In England, the fast track rules are found in the Civil Procedure Rules (Appendix A) of the England and Wales to standardize and regulate time standard for processing civil cases. In China, the fast track rules are seen as a judicial reform to eliminate mere idle judicial proceedings by allowing the courts to establish a 2-month trial period for minor cases, and a 4-month time limit for complex civil cases.
The Future of Fast Track Rules
As the legal landscape continues to evolve, a closer look at fast track rules reveals a blend of evolution and opportunity. Changes to the rules governing these mechanisms, as they adapt to both prevailing and emerging legal issues, can be expected in numerous sectors. Currently, fast track systems remain focused on streamlining cases typically characterized by lower values and risk. However, emerging technologies and artificial intelligence in the legal field may shift this focus to low-risk, high-volume disputes that remain within current or predictably ascertainable legal frameworks. Such issues might include product recalls and cases involving regulatory compliance concerning retail goods. Over and above the proposed reforms, fast track rules across jurisdictions are subject to change as their respective Judiciaries wield both the power and expertise to introduce even further advances. Tailored solutions may yet emerge that will see cases escape costlier tier systems, such as management process/dedicated division systems, fast track systems , and simplified procedures/small claim divisions. This evolution will only further the benefits already demonstrated in the successful deployment of fast track rules across the globe. Not surprisingly, uniform standards with regard to procedural efficiency and consistency within e-communications technology may yet emerge. Particular emphasis should be placed on such potential emerging best practices since they provide lawyers (and client bodies) with opportunities to invest in the relevant technology required for streamlined access to Post Office Box and bulk file uploads. Furthermore, maintaining a uniform set of standards across jurisdictions may prove beneficial to governments and regulators globally as disparities, in both size and volumes, abound within the pre-trial processes already in place across various jurisdictions. Indeed, the future of the fast track appears bright, with numerous jurisdictions already having demonstrated their proclivity towards the alternative now that the well-tested small claims track no longer suffices. Even with regards to small claims cases, the provision of additional technological support will only serve to strengthen the legal community.