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Texas Pretrial Procedure
South Texas College of Law Houston
Carlson, Elaine A.





§ 1.01 Scheduling the Trial

A) Setting the Case for Trial in Accordance With Local Rules

1) Trial Settings

(a) Methods

(i) Cases can be set for trial on the motion of a party, on the courts own motion, or agreement of the parties.

(ii) Usually the attorney’s task

(iii) Judge will normally set a trial after a prolonged period on inaction on the case

(iv) Trial setting is governed by local rules

· Individualized Dockets – Case gets randomly assigned to a court. That judge is your judge for the entire case. Ensures judge is familiar with all aspects of the case.

* Judge may change based on elections

* Judges can bring in a visiting judge in certain circumstances (if you get a visiting judge, you get one preemptory strike, and you will get another judge)

· Central Dockets – Case is not assigned a presiding judge until just before trial.

(v) Time frames

· Dismissal for Want of Prosecution (DWOP)

* Always without prejudice

* If dismissed past the statute of limitations, the filing of the original suit does not toll the statute of limitations (when you re-file, opposing counsel can seek summary judgment on this basis).

· Scheduling Orders

* Judge is not required to give scheduling orders. They are the preferred method and govern the case timeframes.

* Scheduling orders are limited by mandated expedited case schedules.

· Unless given preferential scheduling, cases on the docket in a given time, are tried oldest cases first.

* Can be affected by settlement of cases, continuances, length of trials, etc.

* Causes cost concerns due to expert witnesses, trial preparation, etc.

(b) Consequences for Failure to Set Trial

(i) Case may be dismissed for “want of prosecution”

(ii) Case may be reinstated if failure was neither intentional, a result of conscious indifference (due to accident or mistake), or otherwise reasonably explained.

(c) Notice of Setting for Trial

(i) Parties are entitled to 45 days’ notice of the initial trial setting. Subsequent trial settings are not subject to same amount of notice.

(ii) Failure to provide notice, in accordance with the rules, is cause to set aside the judgment against the non-notified and non-appearing party. Results in a new trial.

(d) Preferential Setting (Gov. Code Chap 23)

(i) Certain cases are exempt from the normal time requirements

· Temporary injunctions

· Listed criminal actions

· Election contests or suits under the Texas Election Code

· Orders for family protection under the TX Family Code

· Appeals of final rulings under TX Worker’s Compensation Commission, Federal Employers’ Liability Act, and Jones Act

· Appeals of final orders of the General Land Office

· Specified Penal Code violations

(ii) More general exceptions

· Matters in which delay will cause physical or economic injury to either parties or public

· Matters involving substantial substantive or constitutional rights take precedence over permits, licenses, or privileges.

· Matters that greatly concern the public or materially affect public welfare.

(iii) Local rules may allow judicial discretion upon written motion or application. Written motion/application is a good idea even if rules do not require it.

2) Announcement at Docket Calls

(a) Generally

(i) After trial is set, counsel must attend docket call, “Sounding of the Docket” (usually the Thurs or Fri preceding trial date).

· Set by local rules and not uniform

· May be by phone call instead of in person

· May be no docket call (trial set without objection, opposing party is presumed ready)

(ii) Purpose is to ensure parties are ready for trial. Case will be called and counsel for each side will reply “ready” or “not ready”

(iii) Last chance for a motion for continuance as a matter of course (motion after docket call may be substantially more difficult and is at the discretion of the court)

(b) Consequences of failure to announce

(i) Local rules differ on severity and finality

(ii) Generally, failure to announce results in forfeiture of control over the trial date

(iii) Failure of Plaintiff to announce may result in dismissal (DWOP)

(iv) Most common rule when neither party announces “ready,” the case is taken off the docket. May result in case being reset only after a specified period.

(v) Other local rules

· Failure to announce may be treated as an announcement of “ready”

· “Ready” or “not ready” by appearing party may result in that parties announcement prevailing over non-appearing party

· Court may require attendance by an attorney with settlement authority. The judge cannot force you to settle, but they might indicate that it is a good idea.

3) Dismissals for Want of Prosecution (Plaintiff fails to act)

(a) Sources of court’s power to dismiss

(i) Rule 165(a) of TRCP – Trial court may dismiss for

(1) failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice or

(2) when the case is not disposed of within the time standards promulgated by the Supreme Court

· Civil Jury Trial – 18 months from appearance day

· Non-Jury Trial – 12 months from appearance

· Date of appearance is the date the answer is DUE (not when answer is actually filed)

(3) Court’s inherent power – Common law grants the power to dismiss independently of the rules when a plaintiff fails to prosecute his case with due diligence.

(b) Case reinstatement requirements (Sec. 165(a)(3)) – Dismissals are without prejudice by default.

(i) The trial court shall reinstate a case within 30 days of dismissal, if the failure of the party was not intentional, due to conscious indifference, or otherwise reasonably explained.

(ii) When a plaintiff receives notice after dismissal has occurred, but in time to file a motion for reinstatement that could raise a claimed error, he waives any due process rights if he fails to file such motion.

(iii) If DWOPed, the statute of limitations is not tolled.

(c) Procedures dismissal and reinstatement

(i) A party must be provided with notice and an opportunity to be heard before a court may dismiss under either source of authority.

· Notice of the court’s intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record.

· If the notice does not advise the party of possibility of dismissal for want of prosecution, Rule 165(a)(1) contemplates a notice and opportunity to show good cause.

· Failure to provide adequate notice requires reversal.

(ii) A party must file a verified motion (motion supported by sworn affidavit) for a new trial. New statute allows an unsworn declaration in lieu of affidavit.

(iii) A party disputing notice must file a motion for new trial or a bill of review in the trial court. The party must show extrinsic evidence for their argument that notice was not given.

(d) General Requirements for any appeal to appellate court:

(i) Show Error

(ii) Preserve Error – Objections, offer of proof

(iii) Show Harm – Must show actual injury (error would have resulted in different outcome)

B) Continuances

1) Continuance for Absence of Counsel – The Scheduling Dilemma

(a) Conflicting Engagements

(i) If conflicting engagement is known to counsel, they should announce “conditionally ready”

(ii) Absence of counsel cannot be due to faul

a resetting would interfere with the handling of the court’s business, and

(iii) Whether a resetting would cause prejudice to other parties.

2) Absolute right to a jury trial by defendant:

(a) The defense only has an absolute right to a jury if the demand is filed by the appearance date.

(b) Appearance day is the date of service.

(c) Defense demand for jury SHOULD be filed with the answer.

3) Reversible error

(a) Denial of a jury trial is harmless error only if the record shows that no material issues of fact exist and an instructed verdict would have been justified.

4) Timeframe

(a) Required 45 day notice of first trial date

(b) 30 day notice gives presumption of timeliness

(c) This means 15 days to decide on jury or bench trial.

(d) If a continuance is granted, a demand for jury trial is timely if made 30 days prior to the new trial date.

5) Computation of time

(a) Day of act, event or default is not to be included

(b) If next day is a weekend, first day is next Monday

(c) If next day is on a holiday, the starting day is the day after the holiday.

(d) If the final day is on a weekend or holiday ???

6) Jury trial is waived:

(a) Demand for jury trial is not in writing filed with the clerk with payment.

(b) If parties contracted to waive jury trial.

(c) A party fails to appear on trial date.

(d) Jury trial is not waived for remand for retrial just because jury trial was waived in the first trial.

C) The Choice Between Trial by Jury and Trial to the Court – Considerations:

1) Whether jury or judge would have more sympathy for client’s contentions

2) Case is too complex for a jury to understand

3) Inclinations of the judge

4) Effect of decision on voting public (if judge is not elected, no political pressure to make a popular decision)

5) The type of trial (bench or jury) would make the judge inclined to push for a compromise

6) Good or bad reputation of the attorney with the judge vs. jury

7) Is client helped or hindered by inherent delay of jury trial

8) Increased cost of jury trial

(a) Research and draft jury charges

(b) Cost of visual or dramatized presentation to jury

(c) Cost of live testimony as opposed to depositions

§ 1.03 The Motion in Limine and Other Motions on the Eve of Trial

A) Nature and Use of the Motion in Limine

1) Optional, but preferably done before voir dire

2) Preserves no error – Objections must still be made at trial

3) Never reversible error to deny a motion in limine

4) Gives a preview of how the judge will rule on an objection

5) Forces opposing counsel to approach judge in absence of jury to refute (gag order)

6) Avoids prejudice caused by questions or statements of counsel rather than statements by witnesses

7) Refer to common law since this is not governed by the Texas Rules of Civil Procedure

8) Violations of a ruling may result in:

(a) Contempt

(b) Sanctions

(c) Declare mistrial