TEXAS PRETRIAL OUTLINE – DAVIS; SPRING 2001
1. Chapter 1: The Texas Civil Justice System
1.1 Introduction
1.1.1 Pretrial Practice and the Texas Rules of Civil Procedure
1.1.1.1 Texas civil practice governed by TRCP – promulgated by the Supreme Court pursuant to rule-making power
1.1.1.1)1 Generally amended every 2 years
1.1.1.1)2 More rules in Texas than in federal practice
1.1.1.2 Texas civil practice also governed by CPRC and the Government Code (statutes)
1.1.2 The Adversary System and Civil Procedure
1.1.2.1 In adversary system, neutral, passive decision-makers adjudicate disputes after hearing evidence and arguments presented by both sides
1.1.2.2 System creates competition b/w parties
1.1.2.3 Governed by the TRCP – see Rule 1. Objectives of Rules
1.1.3 Overview of Texas Pretrial Procedure
1.1.3.1 Primary purpose – pretrial procedure is the process by which parties prepare for the trial in which their disputes will be resolved – usually consumes months or years
1.1.3.2 Plaintiff=s considerations – initially, is filing worth the time, effort, and expense? If so, what court has subject matter jurisdiction (governed by statutory scheme)? Which of the 254 counties is venue proper (governed by statutory scheme)?
1.1.3.3 Suit commenced when Plaintiff files Original Petition (as opposed to complaint in federal court)
1.1.3.4 Defendant brought within the power of the court when Defendant properly served with process and a copy of the Plaintiff=s pleadings – so if defendant is a non-resident, another question to address is whether the court has personal jurisdiction?
1.1.3.5 Defendant generally responds to Petition with an Answer; may be general denial in Texas or may set forth defensive allegations that the Defendant wants to rely on; Defendant may also want to attach Venue, Subject Matter Jurisdiction, or Personal Jurisdiction; Defendant may also want to assert its own claims against the Plaintiff or other parties
1.1.3.6 Discovery – the most time-consuming part of the pretrial process by which parties obtain information relevant to the lawsuit from the other parties to the suit and non-parties
1.1.3.6)1 Consists of things such as depositions, written interrogatories, requests for production, etc.
1.1.3.7 Within Texas, courts also have local rules which further define the practice before them
1.1.3.7)1 Rule 3(a) requires all local rules to be published and approved by the Supreme Court and prohibits local rules which alter the time periods imposed by the TRCP
1.1.4 The Reputation of the Texas Courts
1.1.4.1 Damage Control: A Special Report: Some Plaintiffs Losing Out in Texas War on Lawsuits
1.1.4.1)1 This article pertains to Texas lawsuit reform (Tort Reform) and the attempts to hold down the costs of civil suits and limit the size of jury awards
1.1.4.1)2 Texas had the reputation as the Alawsuit capital of America@ because juries in injury cases were overly generous
1.1.4.1)3 In 1980s, state began to make changes such as limiting punitive damages, etc. – now Texas is seen as one of the most aggressive states in efforts to curb civil suits
1.1.4.1)4 GW Bush is a backer for tort reform – sought passage in 1995 of new formulas for capping punitives and stopping plaintiff=s lawyers for selecting sympathetic courts in which to file suit; also made it harder to sue professionals, etc.
1.1.4.1)5 Opponents say it is a cutback in the legal protection for citizens; complain the Supreme Court, elected body, has been influenced by campaign contributions; say it undermines the jury system – making their verdicts meaningless
1.1.4.1)5)1 In 1980s, court ruled primarily for Plaintiffs, now rules against them 3/4 of the time
1.1.4.1)6 Reform as resulted in fewer personal injury suits; resulted in smaller settlements; proponents (generally big business) say it saves money in insurance premiums b/c insurers paying out less; opponents say insurers getting windfall
1.1.4.1)7 Proponents contribute to the republicans; opponents contribute to the democrats
1.1.4.1)7)1 Texans for Lawsuit Reform one of the largest PACs in state
1.1.4.1)7)2 Citizens Against Lawsuit Abuse – made up of small businesses, etc.
1.1.4.1)8 Proponent Business View: bring awards under control or investments flee to other places that offer more protection from unpredictable verdicts
1.1.4.1)9 Function of the courts: protect business from frivolous claims or protect powerless individuals from big business
1.1.4.1)10 Result – personal injuries are worth less today than before reform
1.1.4.2 The Jurors are Bountiful:
1.1.4.2)1 Is justice for sale in Texas – friendship, politics, and money
1.1.4.2)2 Deals with a Plaintiffs lawyer – representing 2,000 non-residents – who decided to file suit in what may be considered the most pro-plaintiffs county in America; also questions his relationship with the trial judge
1.1.4.2)2)1 Plaintiff=s lawyer chose Eagle Pass (21,000 residents) for complex securities fraud case????
1.1.4.2)2)2 Plaintiff=s lawyer traveled country soliciting clients
1.1.4.2)3 New York judge said the same litigation would be merit less
1.1.5 Cases:
1.1.5.1 Polaris Investment
1.1.5.1)1 Case deals with the Mandamus – an original proceeding
1.1.5.1)2 Relator – brings a mandamus proceeding – challenged the trial courts selection of trial plaintiffs, abatement of discovery and the priority of venue
1.1.5.1)3 Mandamus:
1.1.5.1)3)1 This is an appeal which is brought before a final judgment – ordinarily, appellate review is only available from a final judgment
1.1.5.1)3)2 Granted only in limited circumstances – originally only for ministerial acts but now also for discretionary acts
1.1.5.1)3)3 Mandamus inappropriate even where trial judge erroneously selec
served by mail
1.2.1.2)3 Notes after Cases:
1.2.1.2)3)1 Counting Time: Rule 4 applies to any period of time prescribed by the TRCP
1.2.1.2)3)2 Motions and other Pleadings: parties request courts to act through pleadings, motions, and other requests (most covered by TRCP). For appeal purposes, important to make record of such and the rulings obtained – see TRAP 33.1(a)
1.2.1.2)3)2)1 Rule 21 – requires all pleadings, motions and other requests to the trial court (other than those made at hearing or trial) to be made in (1) writing, (2) stating the underlying grounds, (3) filed with the clerk, and (4) served on opposing counsel
1.2.1.2)3)2)2 2 records on appeal: (1) the clerk=s record (containing writing filed with court); and (2) the court reporter=s record (containing oral statements made before the court)
1.2.1.2)3)3 Filing Documents: filing is effective when clerk has Acustody and control@ of the document; noting the date and time of filing and inserting it into the court=s file – see Rule 21; see also Rule 74 (allows the judge to accept papers for filing)
1.2.1.2)3)3)1 Filing can be accomplished by mail, hand delivery, or fax (fax filing not available in all counties)
1.2.1.2)3)3)2 If document is sent by 1st class mail, filing is complete on the date of mailing – so long as the clerk receives within 10 days
1.2.1.2)3)3)2)1 Post mark date is prima facie evidence of the date of mailing
1.2.1.2)3)3)2)2 If there is a problem with the time period – file a Motion to Enlarge the Time Period pursuant to Rule 5
1.2.1.2)3)3)2)3 Can also get agreements from opposing party pursuant to Rule 11
1.2.1.2)3)4 Serving Documents: when you file something, must also serve it upon opposing counsel (different from service of process)
1.2.1.2)3)4)1 Rule 21 requires all filed documents to contain a Certificate of Service – certifying that it has been served on opposing counsel
1.2.1.2)3)4)2 If requesting a hearing – must also serve notice of such not less than 3 days before the hearing
1.2.1.2)3)4)3 Failure to serve is a sanctionable offense
1.2.1.2)3)4)4 Rule 21a sets forth the methods of service:
1.2.1.2)3)4)4)1 Delivery (complete when document delivered);
Certified or registered mail, (rrr) (complete upon deposit into the custody of the US Postal Service – Mailbox Rule); o
