Texas Trial and Appellate Procedure Outline/Fall 2016/Carlson
Ch. 1 Pretrial Preparation and Motion Practice
Scheduling the trial
Setting the Case for Trial in Accordance With Local Rules
Methods of Setting for Trial
Cases can be set for trial by: the motion of a party, on the court’s own motion, or agreement of the parties.
Consequences of Failure to Set Case for Trial: a case may be dismissed by the court for failure to set a trial, unless a party can show that the failure was neither intentional or by conscious indifference.
Notice of Setting for Trial: all parties are entitled to not less than 45 days notice of the first trial date.
Expedited Trial Settings
TRCP 169: Rocket Docket Rule: Civil cases where all claimants seek only monetary relief aggregating $100k or less are expedited. On a party’s request, the trial court must set a case for trial within 90 days after the Level 1 discovery period.
Preferential Settings: Preference is given to:
Certain criminal actions
Election contests and suits under the election code
Family protection orders under family code
Appeals of final rulings and decision of the Texas Worker’s Compensation, Federal Employer’s Liability Act, and Jones Act
Appeals of final orders of the commissioner of the General Land Office
Certain penal code violations
Precedence should be given to matters in which delay will cause physical or economic injury or harm to either the parties or the public
Matter involving substantial substantive or constitutional rights take precedence over matters involving permits, licenses, or privileges
Precedence should be given matters involving important issues that greatly concern the public or materially affect the public welfare
Announcements at Docket Calls
Generally: Purpose is to obtain accurate information from counsel as to whether the parties are ready for trial. This is usually the last point before trial where motions for continuance or amendments may be made.
Consequences of Failure to Announce
Plaintiff: Case may be dismissed
Defendant: Counsel may lose control over the date the case will be tried.
If neither party announces ready, the case is taken off the docket.
Dismissals for Want of Prosecution
Villarreal v San Antonio Truck & Equipment
RoL: A trial court may dismiss a case for failure of a party seeking affirmative relief to appear for any hearing or trial of which the party had notice, or if the case is not otherwise disposed of pre-trial. A party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution. (Civil jury cases must be disposed of within 18 months from the appearance date). Cases not disposed of within time standards shall be scheduled for hearing to show cause why they should not be dismissed.
Notes and Questions
If a party files a motion to reinstate and obtains a hearing, due process rights are satisfied.
Time standards for which cases are brought to trial or final disposition in district and statutory county courts:
Civil jury cases—18 months from appearance date
Civil non-jury cases—within 12 months from appearance date
Contested family law—within 3 months from appearance date OR from the expiration of the statutory waiting period
It is a requirement that notice of the court’s intention to dismiss for want of prosecution of the date and place of the dismissal hearing to be sent by the clerk to each attorney of record or party not represented by counsel.
Smith v Babcock
RoL: When a case is DWP, the court cannot dismiss “with prejudice.”
Notes and Questions
A require support by affidavit, typically verified by a notary public that statements in the motion are true.
AN unsworn declaration may be substituted for a written sworn statement.
Continuance for : The Scheduling Dilemma
RoL: Granting of a motion for a continuance due to absence of counsel is placed in the court’s discretion.
Reyna: a motion for continuance must be filed before an unconditional announcement of ready since such an announcement waives the right to seek subsequently a delay based upon any facts which are, or with proper diligence should have been known at the time.
Notes & Questions
IN a withdrawal, must notify all parties and state in motion on whether or not you have given the client deadlines, etc. Rule10
Withdrawal of Counsel
Villegas v Carter: When a trial court allows an attorney to voluntarily withdraw, it must give the party time to secure new counsel to investigate the case and prepare for trial. When the ground for continuance is the withdrawal of counsel, the movants must show that the failure to be represented at trial was not their fault or due to negligence.
Notes and Questions
An attorney may withdraw from representation of a party only upon written notice for good cause shown. If another attorney had been substituted, the motion shall state the attorney’s name, contact information, State bar number, that the party approves of the substitution, and that withdrawal is not sought for delay only.
Continuance for Want of Testimony
Burke v Scott: stands for the proposition that the court should grant a continuance for want of testimony, on good cause. 251 (good cause) or 252 (testimony)
No application for continuance shall be heard before a defendant files his defense. A continuance shall not be granted except for:
Sufficient cause supported by affidavit
Consent of the parties
Operation of law
If the grounds for continuance is for want of testimony, the party applying shall make:
affidavit that the testimony is material
showing the materiality
Due diligence has been asserted to procure the testimony
State the diligence
State the cause of failure, if known
That such testimony cannot be procured from any ot
y trial shall be had in a civil suit unless a written request is filed with the clerk of the court a reasonable time before the date of trial of the cause on a non-jury docket, but NO LESS than 30 days in advance. The 30 days includes Saturday, Sunday, and Holidays.
Do you really want to demand a Jury? The Choice b/w Trial by jury and Trial to the Court
William v Dorsaneo III, Texas Litigation Guide: Factors to consider when demanding or waiving a jury:
Sympathy for client
Complexity of case
Personal background of judge that would cause disfavor
Impact of a hoped-for decision on the public that may cause judge to disfavor or favor client
Would judge compromise
Reputation of client and/or attorney
Would delay in seeking jury help or hinder
Increased expenses such as attorney time, jury time, and cost of preparation of demonstrative testimony
Experience of attorney
Amount of doubtful admissible evidence
Who has the burden of proof
Concreteness of damages
1. I would not demand a jury trial in this fact pattern because of the negative impact environmental carelessness, whether founded or not, would have on the general public who would ultimately be serving on a jury. Also the cost of demonstrative evidence would be very expensive and time consuming to prepare.
2. I would recommend a jury here, because of the public outpouring of sympathy for the heirs and rage for the funeral home. Damages would be hard to justify with only a judge
3. I think this one could go either way, but I am inclined to lean toward a judge because a judge is versed in the law, and even though a jury gets specific instructions their sympathy for an injured plaintiff may play more into the process than it should. On the other hand, a jury may look at the plaintiff as someone that ignored instructions and not have much empathy for him at all. I think if the attorney is well known for winning cases like this it could play into the defendant’s favor with a jury because they will see an attorney who makes money off of other’s misfortune. It would play out better if the attorney was low-profile.
4. I would definitely want a judge and waive the jury because everyone has had run ins with unsavory collection agents and the economic downfall due to the banks lending habits, and I think a jury would have a preconceived notion of justice coming in.