ࡱ> 79456q bjbjt+t+ AA]8L2%(('''''''$#)+'-'  ''  ~&0'Y۳ '$TEXAS CIVIL PROCEDURE--Albright IntroductionThe Changing in TX Courts (?) Sea Change Philosophical and Partisan (all TXs judges are elected and campaign contributions, i.e. less coming in from P lawyers) Shift from P ( D (more D winning then before) Limiting awards Reform (Tort) Started in legislature Judges legislating? TX SpCt chooses cases so chooses cases with big awards that they may want to lower Result Oriented? View of worldinfluences judgments Most follow what they think law should be Pre-Trial (why important) Most decisions are not reversible error on appeal ( HAVE to convince trial judge (initial hearing) Trial Judge Politicselected by counties or district (narrower politicslocal concerns) Home TowningKnown L, judge loyalty to home L ($ and reputation) City v. Rural TX Civil Procedure = POLITICS Partisan politics especially in bigger cities (smallerall R or D) Juries Demographics, culture (cant always predict) County reputationsBountiful jurors Tort reformtarget jurors not to grant large awards Trust issues, Limited role, credibility (??) Subject Matter Jurisdiction Note--Rule 21, 5, 4 Complexmany statutes and bandaid approach to fixing problems Safety Kleen Motion to compel judge to set date for motion Discretionnone exists if trial court is required to hear motion Interlocutory appeal Appeal before final judgment; any order before final judgment Most are always appealable Writ of Mandamus Extraordinary situation Trial against judge Commands public official to act Writ of Mandamus (see guest speaker notes) Review Jurisdictional Venue Pretrial issue Affect settlement value Discoveryordering of classified materials Must have No adequate remedy at law Must have been harmed Who is on SpCt effects how mandamus law is made Client must be willing to docost, time Suing trial judgemay upset (now not named) Vehicle to describe what law needs to be (unclear which cases it applies too) Walker v. Parker misapplication of law Error Factsno second guessing judge view of facts in light of the record of conflicting evidence; only if clearly arbitrary (seldom mandamus issue) Lawno discretion, must apply the correct law (may cure misarticulation of law) Remedy Previously made appellate remedy inadequate (waiting for final judgment is expensive and delay and may be a waste of resourcesnot sufficient excuse) Added expense not enough Canadian Helicopter will have adequate remedy; personal jurisdiction wrong so will get reversed on appeal settle early to avoid wasted trial? SpCtcant take all so only take those that are sooooo far off the mark Extraordinary situation NISA v. Gibson Really wrong Toxic tory CRS v. Link (asbestos) vast number of cases but not class action need to get issue solved b/c mass tort litigationextraordinary situation (judicial efficiency) Subject matter jurisdictionquestion of power does court have power to hear if not then fundamental error (VOIDS everything done on that trial) Patterson (standing and ripeness) Judicial Disqualification and Recusal Rule 18a and b Disqualification Fundamental error if dont excuse when should Cant waive by not bringing up (no limit, similar to SMJ) Constitutional and Rule Basis Reasons: when in practice was on case; interest in outcome, related to party w/in 3 degrees Consequences: Order, decisions = void (MEANS DOESNT HAVE POWER TO HEAR CONTROVERSY) Mandamusused to review if judge wont step down; waste of judicial resources as all decisions are void [odd result b/c doesnt happen in like situations, i.e. SMJ] Recusal 18bcan be waived Means problem with judge (includes personal bias, and reasonably questioned impartiality) [some overlap with disqualification] Consequences: 18amotion judge to excuse self, have hearing, appt judge if original wont hear; if denied improperly MAY NOT USE MANDAMUS (adequate remedy at appeal on abuse of discretion standard) DIFFERENCE Interest = matter of degree Disqualification limited to DIRECT financial interest Most situations = recusal [difficult b/c if dont get judge may be angry; cant get relief until appeal] Personal bias and impartialityharder to determine a standard for this and when it happens If dont have reason to know of problem initially and find out later may bring motion then Pleadings Frivolous Pleadings Rule 13 Cant file groundless, bad faith, or harassing law suits (may sanction if do) Presumption of good faithburden to overcome is on sanction seeking party Standard of reviewabuse of discretion (very deferential standard, just cant be arbitrary or unreasonable or have NO evidence) HOFCA Abuse of discretion standard Motive is hard to dispute; trial courts finding are deferred to Summary judgment does not automatically = sanctions (something starting out okay may turn into something groundless); Dont get sanctioned for all things that dont Pan Out Punishment Rule 13, Chapter 10 Monetary damagesreasonable expenses caused by the failurecompensatory Judicial discretionappropriate sanctions under 215-2b PURPOSE: deterrent to opponent and future opponents; punative Chapter 10 (motive element missing) 10.004cdirective to perform or refrain from, pay a penalty and/or compensatory 10.004bfor deterrence (limit sanctions to accomplish this) 10.002ccompensatory and if no due diligence is shown the money for inconvenience, harassment, time spent (ct can award large damages) Both 10 and Rule 13 provide lots of discretion to the trial court Sufficiency of the Pleadings Pset forth cause of action; facts that give rise; law Ddefend against P and affirmative defenses, and counterclaims FAIR NOTICE STANDARDminimal standard (reasonable would allow a reasonable L to prepare a response) Fair notice of claim being set forth in the particular cause of action (also applies to motions) Sepulveda Petition Original petition = originates the lawsuit See book Noteliquidated damages v. unliquidated damages (unknown amount)47b just state w/in jurisdictional limits of the court (publicity control for both sides to leave damages unspecified) GUEST SPEAKERS Professional responsibility of L Mandamus (SpCt Justice) Pleadings (general) Sepulveda v .Afghan Whips 2 different types of pleadings (one lots more specific, one very general, advocate v. just getting on record) AUDIENCE CONSIDERATIONwho is reading, sophistication of D (encourage settlement if sounds bad), PRpress releaseis a public record so press may get; in fact making a statement Fair Notice Would reasonable L be able to discern claim so as to form response Fair notice pleadingsuse discovery to disclose details (some judges require more specificity, but most allow for just fair notice) Leave broad b/c dont know fully detailsthen conduct discovery (allege generally to get before court and open door for discovery) [DISCOVERYtailor case and trial is then limited to what was found during discovery] Contention interrogatoriesfind out why case was filed Still have ability to force P to plead in more detail (rareusually find out what need to know in discovery) Problemsfishing v. getting thrown out b/c not detailed enough Fishing even more of a concern now b/c of cost of litigation of just general allegations Paramount Pipe Establishes fair notice pleadings as norm Pleading Error No fair notice (rare) Insufficient detail (defect b/c not enough detailsobject to pleadings and ask for more specificity) Easier to appeal on abuse of discretion b/c of fair notice standard Judges therefore dont usually grant these ground of special exception (b/c if deny to amend then will be dismissed an may be appealed) Failure to state a claim on which relief can be granted (12b6) ZeidTX doesnt recognize emotional distress for the death of a pet (cant recover) Special exceptionassume everything is true, does it state a viable claim? Omit part of claim (errors can be corrected) Negate Subject Matter Jurisdiction (affirmatively negates in pleadings, i.e. too low for damages, etc) Failure to state jurisdiction Except to pleading error (Erin Brokovich example) Olddemurrertaken as true, there is no remedy for this Assuming proofno recoverable claim/cause of action Only goes to merit so far as to decide if law has a remedy (no discretion on judges part to decide if meritorious claimjust look to see if there is a remedy for it) Object to something in pleadingdont tell which error to fix (gives appeal avenue/raise all defects for 1st time on appealnot efficient so no longer do) NOT A SUMMARY JUDGMENT MOTION (not looking at the facts) Special Exceptiontakes place of demurrers Challenge to pleadings (90not use demurrer; 91special exception) Point out specific problem Procedure Exception Sustained by judge(amend or will be stricken) Amend Refuse to amend Dismiss w/prejudice and appeal (good way to test out new cause of actionappeal immediately w/o trial) Summary Judgment Motionno evidence entitling P to trial or discovery (happens a bit after b/c have to allow for some discovery w/fair notice pleading) TXany evidence then no summary judgment File after opponent refuses to amendTXno motion to dismiss so must use this Use if other side pleads self out of court (no way to amend to make a valid cause of actionrare): always use special exception first to cover all bases and prevent waste of time TX POLICY Allow to amend pleadings Dont dismiss b/c of defect, rather give opportunity to amend or fix Default Judgment P gets, D waives if dont raise UNLESS HAVE DEFAULT JUDGMENT ENTERED AGAINST YOU May then timely attach if defective pleadings for # 1, 3, 5 Paramount Pipe Certain pleading defects may be waived if dont file before default judgment Some pleadings are so bad that wont stand up even if waivesmay attack later Notice pleadingsdont have to be perfect (so certain defects we dont care about, should have objected initially) Waiver Of pleading defects 90must be waived before jury is charged or it is waived Pleadings Focus entire procedure Narrows down discovery Effects how jury question is phrased First time may object is pre-trial, when pleadings are filed Some defects may not become apparent until get to trialobject then [i.e. evidence is there and jury question framed around BUT wasnt in pleadingsoutside scope so cant use] Error never brought up67trial by consenttrial outside scope of pleadings, not objection, not hear for the first time on appeal Amended Pleading (Defective Pleadings) Trial by consentpretend that is in pleadings; is a substitute for an amendment Must object when issue comes up or waive (dont have to bring up at first time happens ( waive only after has gone to jury) May object during trialmust amend pleadings to cure defect (is reversible error to have jury question not supported by the pleadings) STANDARD FOR AMENDING PLEADING TXliberal pleading rules and amendment rules (dont have to have permission if outside time limit) Want people to correct mistakes DONT WANT CASE TO BE DECIDED ON PLEADING IRREGULARITES Court must allow unless opponent proves surprise or prejudice Ct has discretion once admit evidence of surprise or prejudice Factors: (1) time of the amendment (earlyless likely to cause surprise, etc.) (2) type of amendment (procedural v. substantive) (3) Waiver Substantivein and of itself is evidence of surprise and kicks in judicial discretion; changes the nature of lawsuitnew cause of action or defense (BIG DEAL) Proceduraldoesnt make much difference but usually just to conform to a rulejust changing form to what everyone knows is going on Also eventually new discovery deadlines may come into play Waiverdidnt object to initially; should object at first opportunity so not to get notice that later allows for amendment (less likely to find surprise if should have know was going to come up) Implied consentnot allow objectiongoing to allow amendment CONTINUANCE Combats surprise (judges grant to avoid reversal) Dont always like b/c quickest way to get to settle is to send to trial Object and file motion for continuance (preserves error) Motion to strike (want to go to trial but cant b/c of surprise but no want continuance) FILE BOTH AMENDMENT PROCEDURE <= 7 days then must ask permission (TX probably would grant most times) > 7 daysjust file amendment Judge may use pretrial order to change timeline to give more timemake ask permission if over 30 days, etc, Amended pleadings supercede other pleadings so must put everything in Supplemental pleadingsonly adds to original filing (rare) TX protects L from mistakes (can correct); protects client from Ls mistakes (dont want trial dismissed on technicality and want to try as much as can in one claim) P and D Pleadings P Pleadings Fair notice standard of claim (can plead most things generally) Specific Rules (some things need to be pled certain ways) Other side must object if P pleads wrong, otherwise stands as is Damagesmay do generally or specifically Usually allege specific b/c if plead only general then may only recover natural and necessary injuries (limits) BUT if dont plead specifically and special damages goes to jury and they award then it stands B/C D DIDNT OBJECT( otherside must object if something is done wrong (usually then court gives leave to amend pleadings by standard set forth for judicial discretion, etc) Prayerask for general (limits to monetary) or specific (injunction, etc) Interestpre-judgment; injury till judgment; statuteinterest on breach of K, wrongful death, injury, property damages Statutemay recover w/o pleading Common lawmust plead Costs of CourtCt reporter fees, etc. D Pleadings Fair notice about what wish to put into issue May issue to defend against merits of lawsuit denial affirmative defense inferential rebuttals Denial Places in issueP must then prove each issue in dispute [92] TXgeneral denialput into issue P pleadings by generally denying everything [efficiency concerns; P must meet BOP on everything] Otherwise would just go through and deny everything (dont force D to do this) General denial wont work = SpCtneed more to put at issue (look at: usually not an issue, expensive if otherside has to prove, usually stipulated) Specific Denials 93 Conditions Precedent 54if P claims all have been satisfied and D wants to challenge then MUST BRING IT UP (otherwise P does not have to prove that the conditions have in fact been met) AGAINneed objection if D presents evidence w/o challenging pleadings (otherwise stands) Affirmative Defenses D has burden of pleading and proof Avoid liability even if everything P says is true, D is not liable b/c of an affirmative D Gets jury question Greathouse Who has to plead/prove commercial reasonableness of sale of collateral? Look at: who has this info? issue in every case? Want P to have BOP but want D to have to bring it up-- 54 If D disagrees then have to challenge on condition precedent rules Waite Hill Services (lack of diligence) Places court in discretionary zone (still use undue surprise or prejudice test) Lack of diligence fosters surpriseadequate test to protect interest Inferential Rebuttals P must negate when D brings up New facts that deny one of Ps allegations by inference [not that didnt do it but that something else happened that means D is not liable, negates element) P must prove element was by D, not by facts D raised No jury question BUT JURY INSTRUCTION IF IN PLEADINGS (otherwise may still bring up but no jury question) Pleas in Abatement Not defense; delay (good for D) Put on hold (case is not ready to go forward) Do until something happens or further order of the court (then case may continue) [P has burden to notify court that can go forward] Typical P hasnt joined all necessary parties Statutory cause of actionhavent gotten required notice Another proceeding is already in process w/these parties on this claim TXmany countries 1st filed determines venue (fight over who gets to court first so may have more then one proceeding filed at a time) 1st court has dominant jurisdiction (probably forever abated b/c have final judgment in other proceeding) Wyatt v. Shaw Plumbing Bring up what could be brought in one law suit (arguenot exactly the same) TESTcould be brought all in one suit Joinder Permissive JoinderP or D can add additional claims and parties 1 P v 1 D51P and D may bring as many claims as have against the other party dont have any relationok generallyjoin whatever ya got 97 only exception Multiple parties limitation on joinder (51 is limited by 38, 40, 43) 38necessary parties 43interpleader 40main limitjoin as parties if same transaction or occurrence (only join if) NOT MATTERmost parties dont want to put non-same transaction issues in one lawsuit; make confusing lawsuit RemedyNOT DISMISSAL but severance 1 lawsuit becomes 2 (so no real harm) sever if properly joined if judge thinks proper to do so (judicial discretion) Tyman v. Tyman Argue if same occurrence (but 1 v. 1 so dont care) OR One big transaction [either way properly joined] SpCtjudicial efficiencydistrict court decide (discretion) Severanceseparation2 trials Separate trialseparate hearing for some facts but one judgment HOW JOIN ALL CLAIMS P (easy) Amend petition to add more claims or D or P 60interventionnonparty wants in (allege claim so part of same transaction b/c intervention makes multi-parties so have to be w/in same transaction) TESTallow b/c avoid multiplicity of suits (if could have brought in own name or if brought against then he could defend successfully) no permission required in TX but makes a multi party suit D (more difficult) Can enter against existing party Counter claimagainst opposing party Cross claimagainst same side of docket (become opposing) may add parties in counter or cross b/c D becomes as P (so see P above) 38Impleader3rd party practicebring in 3rd party if liable for all or part of injury contribution or indemnity Cant bring in 3rd D for injury to original Dcant sue on own injury if party isnt already in Must have connection to claim already in suit once brought in then is a free for all [multi party suitsonce D cross claims or counterclaims then may bring in party for injuries to D (cant just bring in if not suing someone already party to suit) and once in then anyone can bring suit against anyone else as long as same transaction or occurrence] Interpleader Claim to single sum or property (different people are all claiming right) Stateholdermay place in registry of the court and then it is courts business to determine who ultimately gets (may or may not be interested party; usually disinterested as interested not likely to give up possession) Try everything together? May wish or may not Misjoinderproper remedy is severance, not dismissal Why separate? Strategy P wants at least on deep pocket D for J and S liability (J and S rules may allow P to determine who to sue, control issue) D may want empty chair to blame (put big % of liability on person not present) Settlementwant to get certain person out of lawsuit so can settle with them and move to bigger Cost More trialsmore expensive and increased settlement value (D wants delay and cost) Place May want different venue Prejudice One cause of action may present evidence that is prejudicial to others Guidelines for severance (Guaranty Federal) Articulated in Jones v. Ray More then one cause of action Severed cause must be proper subject if independently asserted **severed cause not so intertwined as have same facts and issues CaseError Abuse of discretion Intertwined test Single Injury = cant walk (all contribute to problems) ALL ACTS CONTRIBUTE TO SINGLE INJURY Important Issuelook at pleadings (P CONTROLS); P pleads as single injury Could have pled together but doesnt (P didnt elect to sue separately) P chooses to bring together; lots of similar facts (P has right to bring together) Prevent empty chair problemscenarioP recovers nothing OvercompensationP gets two awards [NOTE: cant collect twice b/c of single injury rulecredit to other D) Separate Trialsdifferent issues or cause under same cause #--get one judgment Of issuesBifurcationsame jurydecide certain issues to see if other becomes relevant (not in TX: exception punitive) Cant bifurcate liability and damages (even at appellate levelremand and try both together) Class actionsclass issueliability; individual issuedamages (problem: cant do in TX) Severanceget 2 different lawsuits w/different judgments (usually after default or summary judgment to get that personal as final judgmentstart collecting) CONSOLIDATIONput cases together (usually D tries to do) same county (venue question); same questions and issues [save on judicial resources] Judicial Administration RuleCourt can consolidate for pretrial Venue, discovery, etc. can all be decided pretrial Compulsory Joinder Have to join or lose Law of Judgments Res judicata: Claim preclusionres judicatajudgment bars all causes of action that were actually litigated and all that could have been [when asserting a claim AGAINST someone else] Issue preclusioncollateral estoppel COULD HAVE BEEN LITIGATED (?) Same transaction or occurrence (must bring everything that you can in multi party lawsuits) Compulsory counterclaim97a When have claim assert AGAINST you W/in jurisdiction claim against opposing party if can be brought in this court Cross claim (permissive) Choose to exercise then opens up to compulsory rule (which would then bar if dont assert something) Dont force D to get everything together to become P in suit if doesnt so desire at that time FAILURE TO BRING PARTIES Dont bring in original suit THEN when sued again, claim res judicata or as affirmative D to being sued Joinder of Parties When may proceed w/o all parties Incentive to bring up initially Not jurisdictional (cant go through and then say court didnt have jurisdiction) Complain in first for plea in abatement Court works around in 2nd if not dismissed initially No one notices No effect on first judgment Only effect may be collateral estoppel (old lawno jurisdiction to hear case so initial was thrown out) NOW may decide the issues that are before the court (2nd suitoriginal decisions remain in place for previous parties; tailor so dont butt heads) COMPLEX LITIGATION In Re Ethyl Corp. Mass tort litigation Lots of P v. 5 D (one law suit) Ct. chosen to separate cases w/in categories Manageable trial unitwhich cases are they going to try together Consider: jury confusion, jury charge, etc. BREAKonly thing in common is that they have settled with the manufacturer SpCt. Maryland factors (p.171) Injustice, manageability [balance justice and fairness against efficiency and manageability] Not sacrifice first for latter Mature tortcourt have lots of experience here Courts knows what to expect, predict what may happen, easier to break these Must be clear abuse of discretion to overrule Dissent No evidenced to support judge (majorityD has burden of establishing why wrong so up to party fighting to prove why judge was wrong) RECORD D should put evidence in record why something is unfair or unjust (cant just talk about it, must be in record) Once trial begins court must reassess to make sure commonality is there and wont overwhelm jury Settlement Broad group early on (take settlement into account) BUT must have workable group when date of trial arrives Balance = pressure of date (encourage settlement) but not too much so that settle b/c scared of organization that court prescribed Bristol Myers Not mature tort Messagemake sure record has some evidence to support decision Alternate to mass tort = class action Like injury and representatives stand in staid for class Limited use initially envisioned - GUIDANCE PROBLEM (cant appeal to SpCt in many instances) 42TX: little guidance about how to apply b/c SpCt rarely has jurisdiction to overhear class certification Statutory Interlocutory Appealeither can appeal class certification (but SpCt may only hear if a dissent in court of appeals or conflict between decision and past or SpCt decisions) Dissent rare; conflictnarrow and must be direct CLASS ACTIONS 42 Similar to federal rules of civil procedure Not joining everyone individually (only joining representatives who are representing the class WHICH IS THEN BOUND BY THE JUDGMENT Prerequisites Must have ALL 42a Numerosityjoinder is impracticable (number isnt always determinative; best managed as multi joinder or class action); lots of judges say a large number satisfy this requirement Commonalitycommon question of law or fact (at least one) Typicalityrepresentative claims representative of the class (same issues, injuries, concerns, no conflicts of interest) Representativenessadequate resources to prosecute action Must have at least on from 42b risk of: inconsistent judgment that creates incompatible standards for D (D can invoke action); would create situation where courts tell D to do two different things that cant do both limited fundsD only has $X; people trying to get, not left for later suits injunctionsP uses to get general injunctive relief propertylimited funds (only one person can get) efficiencymost common, show predominance of common issues over individual and superiority of class actions Efficiency: Allows more creativity but also harder to satisfy Inconsistent damages, etctry to get out of 42b4 use something else if can 42cnotice and opt out (1-3 are mandatoryclass bound by judgment; 4opt out b/c not worried about D not being able to satisfy class judgment; P may opt out and preserve right to sue in own right) Movantburden of establishing class certification Appealable under abuse of discretion Interlocutory appealmay do immediately Southwestern v. Bernal Current SpCt thoughts Limit class action Change presumption from when in doubt certify (can always decertify later) to must prove why should have class (show why it is more efficient and workable: may force to have trial plan to evaluate) PLAN: (Moriel requirements: get common out first then fewer issues in individual trials) liability and harm (common) punitive damages (common) causation and individual harm (individual) SpCt (Moriel = award individual damages and THEN punitive; proportionality is vital for birfurcation) MUST have damage calculation before punative DissentIlley v. Hughes Cant have different jury decide liability and damages, especially in personal injury Dont know about other types of case Easier trial b/c can do hard liability stuff in class for all (but Illey says that in personal injury may not bifurcate injury and damages) RULE: must give trial plan to show class issues predominate and superior way to try the case (Works well when individual issues are just formulaadministrative tool to dispense) Harder to certify now (doubt = NO!!) Settlementmost certified classes settle Hesitancy to certifynot as much pressure to settle Certification does provide vehicle to quickly remedy outside court system; administrative remedy to settle (P gets remedy and D gets assurance that it is over) Settlement COURT RESPONSIBILTY (didnt have any before) D want to settle for less and get rid of all in class (if pre-certification will get good settlement then D will start pushing) Bloyed Someone has to challenge settlement for court to review 42ecourt must decide to allow to settle or compromise must protect unrepresentative members (absent class member) MUST STILL DECIDE IF SHOULD BE CERTIFIED (in pre-certification settlement court must analyze if certification is proper before looking at settlement) Prevent D from encouraging certification b/c gets good deal with all class members being bound Attorney fees Noticemust give to class members (usually reason people will challenge) Not come out of settlementpaid on top Calculation % of recovery (more if controversial); lodestone (more if just routine) PERSONAL JURISDICTION Includes: Power over D by the state Service of process = notice to D Service of process D must be served before can get judgment PURPOSE = to give D notice (Standard = actual or reasonably calculated) Must comply with statute Citation99 commands appearance and answer Methods of service: 106 In had personal Certified mail (return receipt requested) Favored forms b/c leaves PROOF that D was in fact served Alternatives (must file motion and get order to allow for substituted service) Publication (very disfavored and D has 2 years to appeal default judgment) For both alternative and publication must be REASONABLY CALCULATED to provide notice Who do you serve? Sue individual then serve individual Sue entitystatute provides who to serve (entity required to appoint agent for service of process) D outside of state (is TX process valid across state lines???) 108 Out of state by same method Long arm statuteCh. 1717.44pre 108: give in state method for serving out of state Doing business results in opening person up to full extent of due process [cant serve in state but done business in state then Secretary of State is agent for service] Secretary of stateGOOD = easy to serve; not going to evade; must mail but doesnt effect service standard (once give to Secretary then has been served); BAD = dont get actual notice for some reason (easier to get default judgment overturned if no actual notice) Who can serve process? 103 Sheriff, constable, clerk by certified mail (state employee) Private processor server > 18 years old W/O INTEREST IN SUIT (dont have to exhaust other methods to use this but must have order to use, doesnt have to have motion to get just ask for) Return of service 103 Affadavit that appropriate service was done Must be ON FILE 10 days before default judgment can be entered Answer Must be filed on the Monday 20 days after service Not properly served Respond to petition AND object to service of process w/motion to quash service122 Motion is worthless b/c service will be issued at time appear (all does is delay for answer requirement) Most dont do b/c would have been easier to deny Answerwaive defect in service and generally appear in suit--120-21 MOST Default judgmentbad idea b/c admits liability [P just has to prove unliquidated damages and does w/o D evidence so P gets what asked for] Becomes final judgment if dont appeal Collateral attackattacking validity in proceeding other then one where awarded Usually saved for when court entering had no power to do so CANT attack service of process this way Therefore if this is only problem this wont work (default judgment says duly served and cant contradict b/c not in record) Directly attack judgment Note: default judgment (right to file Motion for new trial and special appearance; unsuccessful or dont do then may file bill of review) Motion for new trial Equitable or legal grounds w/in 30 days (absolute) Easiest b/c court still has power over judgment and can grant for any reason or no reason at all Denythen may appeal default judgment on error that didnt grant motion (reversible if legal grounds that statutory rules, i.e. service, werent followed by ANY ERROR ON RECORD; or equitable to grant) Equitable if: D mistake or accident that didnt show up; meritorious defense (dont need if no notice from service); P not harmed by delay Restricted appeal Special made up to 6 months Cant file new trial or appeal so restricted appeal (limited to someone who didnt appear in 1st AND error in the record) Record: dont have way to get additional evidence in so have to depend on record Insufficient pleadingsno power over D by pleadings No serviceno motion for substituted service etc. Zuyus (served through Secretary of State but returned unclaimed, default judgment (finalized), damages. Gets notice of damages, special appearance denied and goes home) Files restricted appeal b/c has allowed time to file motion for new trial to lapse and didnt appeal special appearance judgment (left with restricted appeal and bill of review) MUST BE IN RECORD TO GET RESTRICTED APPEAL Most focus on error in service which examine petition and citation w/return (if didnt get notice but not in record too bad) Unclaimed is not an error b/c followed long arm statute procedure; only concerned with procedure in RA (cant bring in lack of notice through no fault of D b/c no vehicle for admitting new evidence) No notice casesuse motion for new trial or bill of review (court has hearing to admit additional evidence) Damages award does not comply with pleadings (in excess of what was asked) so remand for damages award purposes only Bill of review Equitable proceeding up to four years Only get if didnt have legal remedy (didnt avail self of motion for new trial and was around to do may not be able to use this) New proceeding in trial courtequitable grounds to overturn (in same court that rendered judgment) Look for: Extrinsic fraud, official mistake, or lack of notice Caldwell (Processor didnt serve after all) No Notice through no fault of D Enforcement action clues in to lawsuit (other state recognizes filed judgment as final then file collection motion in that state to get $--Full Faith and Credit Clause allows) BORfile lawsuit in same court that issue judgment Mini hearingjury for BOR says yes then get trial on cause of action Summary judgmentany disputed evidence on notice??? If so then must have hearing The Special Appearance Used to raise Constitutional issues of due process for personal jurisdiction (amenable to process question only) Texas vehicle: other states use motion to quash Due Order of Process Must be first thing heard and filed before the court Distinguish from General Appearance Held to agree that are subject to power of the court SA must be 1st motion filed and may not act in contrary manner otherwise risk waiving SA (cant make motions inconsistent) TX interprets narrowlyvery easy to waive (until) Dawson-Austin v. Austin (divorce case) Error in filing S.A. Didnt verify Make general appearance prior to amending after hearing (didnt make other motions subject to the SA) Motion for continuance inconsistent with objection to jurisdiction After SA decided, argued motion to quash Court says: May amend so not a problem Rule doesnt force use of magic words and makes all subsequent motions subject to automatically Was to prepare for SA so may file motion for SA hearing L was railroaded into by judge and other L Discoveryindicates that must be limited to SA hearing otherwise is general appearance Discovery Doesnt waive SA (does not constitute general appearance) May be general if outside scope of SA hearing (agreement with other L may take care of but depends on trustworthiness of other L) Hearing D has BOP to negate all basis for jurisdiction Evidentiary hearing (must prove by evidence, including live witnesses, affidavits, etc) Negate: P pleadings which form basis for jurisdiction None pled then D just show non resident P SHOULD ALWAYS ALLEGAE A BASIS AND GIVE FAIR NOTICE OF JURISDICTION (otherwise D has easy time negating) Allegeservice of process, statute that permits alternative service, basis for jurisdiction (can plead in alternative as special or general) TSI v. Bill Pepper Contacts with forum sufficient? Shape facts so appears so if P or not if D Negate specific jurisdiction (only thing pled) BUT didnt object to admission of general jurisdiction evidence so try it by consent MUST OBJECT AS OUTSIDE THE PLEADINGS Appellate treatment Every SA can be brought by interlocutory appeal (to SpCt only if dissent or conflict with current decisions) Definitions General jurisdictionsystematic and continuous contacts to warrant trying in state for whatever Albrightshould be very significant to warrant availing self of state to drag into this forum no matter what done and where done But court usually just looks at if done for a long time, not significance of the contacts OPENS TO SUIT IN FORUM FOR ANY SUIT, not just those arising Very significant to have to defend in foreign state so should make sure have the contacts needed Specific Jurisdictionelement of claim arose in state Makes more sense to drag into forum if have actually availed self of forum to justify Corporationsimplicit consent (pg. 235, note 2) Must register w/state, defines doing business and if pay franchise tax, etc. have consented to jurisdiction Consent brings person/entity in no matter what Register and service agent then = consent Collateral Attack Attacking enforceability of judgment Usually trying to collect so attack and invalid or void judgment SMJ or personal jurisdiction to show court doesnt have power over D to issue judgment Cant have litigated jurisdiction in first suit ONLY GET ONE SHOT AT THIS SAcant collateral attack if used originally If never come to forum then preserve collateral attack Full Faith and Creditmust give in to original state decision on jurisdiction if appeared at all Forum Non Conveniens Initially common law, judicial discretionary tool to refuse to exercise a courts jurisdiction [has power over D but chooses not to exercise] Discretionary systemwhere judge leans will have huge impact Belief that should be inflicting our laws on other country or not (??) Reviewed as an abuse of discretion Declining in favor of another judicial system (state other then TX or country other then USA) Other forum besides TXcant force transfer (not removal or venue which can do within state but need to get it out of state) Public interest v. Private interest Publicstate in helping or keeping lawsuit in TX (why waste TX jury and resources on certain cases) Moussa Forum of the world (wants to ensure P gets relief, US better for that then other nations) STATUTE: Now may dismiss for FNC for wrongful death and personal injury ExceptionsD resident or substantial element took place in TX then cant file (or wont be granted at least) FNC Effect: Cases arent filed b/c know can get rid of General jurisdiction is importantno FNC then subject to TX regardless about hardship Public interestTX not courthouse for the world Private interestneed evidence to show FNC, trial judge to be arbitrary must ignore evidence in the record (important for appellate review purposes) Evidence: Vital for appellate review Not in record then cant show right for reversal Discretionary FNChard b/c will be upheld if evidence shows could have gone either way Venue (D must raise to preserveotherwise lose!!!) Determines: who jury is, who judge is, pretrial, MNTlots of discretion so who there people are is important Must have personal jurisdiction to get to this ISSUE: Which county are we going to try this in TXlots of little counties WITH LOTS OF VARIANCES AND DIFFERENCES peculiar to each Federal courtfrom district so good mix and differences are not as vast Proper venue Cant pick and choose Improper = county that is not proper under statute P may still choose and if D doesnt counter will waive venue rights Venue statute Chapter 15may be alternatives and P gets to choose among the proper Motion to transfer venuedue order motion Pre-everything but SA (similar to SA motion as far as inconsistent actions, motions, etc) D must protect right to prevent loosing Permissive venue v. mandatory venue Permissivegeneral rule that P may use this county [exception is mandatory] Mandatoryexception and P must file here (will trump permissive county) D can force from proper permissive to mandatory Proof Venue factsfacts needed to make venue proper in a certain county (D residence, etc) Person w/burden for venue must prove Alternatives D residence Substantial portion or element that gave rise to the claim Nothing elseP residence (last resort; must exhaust other possibilities) Principle office (for corporations) Decision makers of state conduct daily affairs of organization Historicallyanywhere had agent or representative (now not standard) Options may have more then one decisions makers = officials who run day-to-day7 mere agent or rep. is not enough **not clearly controlled or subordinate to other in state office Proof = person who is official (management authority) AND office hierarchy scheme to show not controlled or subordinate to other office Discovery may give this info but need both D has lots of control over where may be sued by how sets up control system (tweak hierarchy to only be sued in certain areas) Dealerships Principle office issue?? No in TX if have other offices in TX No other officesunsettledall equal in corp. hierarchy and people will be making management decisions (option: all principle offices v. none); fact specific based on responsibility of manager Exceptions K in writing15.035: May have agreement and designate a place for performance; if sue later then place where performance is supposed to take place is permissive 15.020agreement in major transaction (>$1M) may agree to venue and will be enforced as mandatory Venue Facts Prima Facie BOP for venue facts is satisfied by pleadings unless specifically deny (venue is waived if D doesnt do) D MUST CHALLENGE FOR THIS TO BE AN ISSUE Only thing looked at: no weigh or balance; only look to see if P has presented any evidence that venue is proper only see if P satisfied legal requirements In Re Mopac Lay out standards for principles office, did P meet? yes then venue is okay Convenience and Justice to transfer NOT REVIEWABLE completely discretionary Grounds: improper to proper permissive to mandatory permissive to permissive for C and J Unsettled standard for what is required evidence beyond affidavit??? nature of idea requires balance?? Dalways includeirreversible decision (dont want to transfer back); judge use if going to transfer b/c cant be reversed Summary Judgment effect (problem #2b) [think one D is only to establish venue, what do??] Marginal Ds joined for venue purposes (remember: venue proper over one D then proper over all D correctly joined) 87(3)(a); 15.046proofdont have to prove cause of action exists for venue (so summary judgment may not take care of b/c only get if prove no cause of action) file to transfer for C and J Get motion: File venue before (wont get but will preserve) file S.J (file for co-D if wont do) Get; file venue againmotion to rehear (still wont get but preserve for error) Rehearing 87(5)no further will be heard (apply to rehearing or just new) Late addedfile motion but wont be heard but have to do to preserve Appeal generally no mandamus but for mandatory transfer have exception otherwise generally not going to happen (special circumstances only) use mandamus so SpCt can have if wants later NO INTERLOCUTORY APPEAL AT ALL Appellate review in general trial court looks at one record; NO MERITS OF CASE appellate court looks at whole, INCLUDES TRIAL ON MERITS conceivable that one decision is correct pre-trail and another is correct after Appellate Review Venue is only issue on appeal (granted) If on C and J grounds then court of appeals cant look at (lesson if want transfer and are D PLEAD C & J and if judge who doesnt want to be reversed use it) Not know why the assume judge found everything favorable to order (including C and J if listed) If can uphold the motion willlook for grounds that would allow you to do No C and J option review entire record Review of entire record Look at what was pleaded for venue (i.e. Primary place of business) Trial courtprima facie evidence exists only then venue is proper Conico v. Ruiz some probative evidence to support trial judge Wilson Still look for some probative evidence to see if P choice was proper (transferred venue cant be proper unless Ps first choice was improper; only then may D choose) LOOK AT ALL EVIDENCE IN RECORD TO SEE IF PROBATIVE EVIDENCE MAKES PS CHOICE PROPER any prima facie evidence initially makes proper then must remand similar to prima facie standard of trial court Ds evidence only comes in if can destroy Ps prima facie proof and can discount (rare) NOTE: once ruled parties can supplement the record so that appellate court may be getting evidence that trial court didnt that proves probative evidence or destroys (this is where getting to use entire record comes in) Venue is never harmlessif wrong then remand (avoid by using, pleading C and J which cant be looked at) Intervening P Other P cant use to establish venue; must do on own Cant piggyback on other Ps choice of venue 15.003multi P = each P, INDEPENDENTLY, must establish venue Exception: 15.003if meet all elements Trial court has discretion to determine Reviewable on de novo standard Harder b/c must prove essential need Unfair Forum Cant get fair jury trial in this county (P or D) Open issue: type of evidence admitted, needed, allowed When have to file: may not know of problem till later P picks proper country. D may transfer to proper if P picks improper. Also may force form permissive to mandatory and proper to proper for convenience and justice purposes (NEW IDEA) Venue Problem pg. 15.002 (generalD residence; substantial portion, nothing else then P residence) 15.033Breach of warrantygets to Ps residence (allege claim to include, can have other claims as well) 15.005Once P has proper over D then has venue over all others properly joined 15.015sue county 15.004whole case goes if transfer 15.064(3)file mandamus 15.064general appellate review 15.003intervening party DISCOVERY New rules Group of procedures used to get power of court into matters to get information processshouldnt be as expensive as can be Purpose: Increase efficiency Decrease costs Make trial ready to be tried on date (set out deadlines and limits to encourage readiness for trial) Agreements Ls may agree to proceed with discovery in certain waysno controversy and court doesnt have to get involved then will be okay Agree or get court to change Recognize need for cooperation so work togetherfriendlier bar?? Limitations Based on relevance to trial (not limit b/c not going to say what is relevant) Privileges exist Time (limit) Methods (limit) Methods Written 192.7, includes disclosure 194, production 196, admission 198, interrogatories 197 Organization Subpoena Rules 176 Limitations (emphasize limited nature immediately) 190 Modifies process and agreements (can change by agreement or court) 191 Scope 192 Responses 193 Specific methods of discovery 194-198 Depositions 199-203 Physical and mental exam 204 Non party 205 LIMITATIONS MORE GENERALLY Limit time and methods only, NOT SCOPE Make efficient and more effective Problemwindows are not fixed to trial date so may still set case aside for too long and have to review lots so not necessarily more effective Discrete and limited Interrogatoriesusually limited to 25 each question is an interrogatory discrete subparts considered separatenot logically or factually related to primary question Depositions ($$$) Costly and time consuming and irritating and inconvenient Limit time (not number)tons of time allowed, not usually have to agree to more you scratch my back system dont count time on own witness Reopenings Set and not reached, reset for later and party still has discovery time left 191.5 must reopen if set 3 months + after old discovery period end then must reopen for matters that have materially changed (hard testno discretion) can agree to more discovery so not an issue continuancenot ready so judge grants if period hasnt closed dont have to reopen BUT add to order that discovery will continue so it is settled Amendments How late allow? Free up to 7 days before unless surprise or prejudice Limited time when going from Level 1-2 (<45 days need leave of court) Does party amending show good cause that outweighs burden on other party Not taking out of plan then old standards still apply Control Plan 190 Every case has one Pretrial order put into effect by rule Will be limited and governed even if judge doesnt enter Default order Limits: Jury gives excess damages outside level then can only have up to level amount unless amend pleadings (standard is cause > prejudice) Binds pleader to maximum amount LEVEL 1 Plead level so subject self to limit purposefully P wants b/c not going to make much money and doesnt want to go broke on discovery (limit financial risk) D may be more willing to settle, no upward limits Small case w/o much of a plan Little discovery Not lot of concern Limited time and scope LEAVING LEVEL 1 Counterclaim of excess damages moves to Level 2 190.2bdiscovery reopens (everyone can be redeposed) PERIOD DOESNT START COMPLETELY ANEWcredit with time already used LEVEL 3 Mutli parties or very complex case No default, too many questions and variables JUDGE MUST SIGN ORDER or not in Level 3 Must have certain requirements met Cant be blanket order (must distinguish between cases) Managed casejudge involved in deadlines All order dont mean are in 3 (may just modify 2) Tailor to caseagreement and judge supplement if necessary Rules Time: day filed till 30 days pre-trial Depositions: 6 hours (agree up to 10, judge required for more) Interrogatories: 25 per party to each other party (no limit on sets) Reopen?: not generally Agreement? May but doesnt bind judge (court only bound if judge signs, may not agree to do if changes trial date) LEVEL 2 Default for everything else Family code cases to till 30 days before trial Adequate for most issues and cases Time = 9 months from 1st deposition taken or 1st answer due or 30 days pre-trial (so will be ready) start from time actually began acting on case, not when filed (otherwise badly frontloaded and doesnt accomplish goal of having case fresh for trial) Std. Disclosureefficient as have to get some info in every trial (almost always need X) Depositions (not much limit) 50 hours PER SIDE only depose other sides witnesses (bystanders, etc. dont count) Sue eachother (cross claims, etc) Antagonistic sideseach get 50 hours to use against each other on issue that are antagonistic on (if dont use all then lose, dont tack on to other) Contentious hoursif believe may be then before every deposition state which hours you are using PURPOSE = make L plan how to use limited depositions Can agree if reopens or get thrown into to make longer or court to lengthen Rules P must plead level anticipates discovery taking place under (affirmative requirement) No pleading and no damages = level 2 (default) Level 3 = still need court order so can state preference but this doesnt govern unless order is issued D should specially except if no level is pled protect from uncertainty amount in controversymust agree with level so plead both Counterclaimsfor level 1 must all meet damages requirement ($ and less then $50K) [P must meet in aggregate] Agreement or judge order may make discovery appropriate Scope of discovery 192.4 Proportionality limit (prevent requesting or giving too little info Allows judge to limit based on importance of the case Look at kind of case, issues, money Interrogatories 25 total authentication of documents doesnt apply (easy way to get into evidence) 193.7 Allows for self authenticationparty producing document means it is authentic (if not then have to object in timely manner) BOP on party producing, otherwise authentic for court This way dont have to have hearing Contention interrogatoriesspecial exceptionsfacts and legal grounds for basing suit on (use instead of special exception) Notice pleading requirement makes these useful Use to be too broad as needed ALL facts and ALL legal basis (forget or leave one out then not admissible) 194.2no in general requirement (NOT MARSHALL ALL EVIDENCE) dont have to tell entire basis for suit [gives flexibility] Responses Statement made under oath and signed by person making May object Issuing partynot think fully answer or improperly object then file motion to compel Admissions Admit or deny truthfulness of a matter Get documents in, discover real issue Fail to respond in timely manner then deemed admitted May w/draw admission (better to answer and w/draw then risk being taken as truth) Must establish good cause to do Duty to respond fully and completely w/reasonably available info in timely manner and timely supplement if changes 193.1 Failure to respond; punishment Discovery not provided will be excluded Court has discretion to allow if party establishes: (either) Good reason for failure Failure will not unfairly surprise or prejudice (no harm no foul) Alvarado Good cause = difficult or impossible circumstances that prevented from supplying requested discovery New rulesalso look at surprise and prejudice Witness list, knowledge of relevant facts Left offBUT D knows witness well and already deposed in other incident May object and if dont then may lose right to and must fully respond GOOD CAUSE ANALYSIS IS THE SAME BUT 2ND PRONGBOP ON PRESENTING PARTY TO SHOW NO SURPRISE OR PREJUDICE Trial judge has more discretion Must have evidence in record for trial judge to exercise any Reversible error?? Cumulativeno harm b/c just backing up evidence New evidence, effect on jury Judge has discretion to cure harm Walmart v. Tinsley Party didnt try to fix; didnt agree to work around (not really surprised or prejudice) Judicial tendency to work w/continue to allow to prepare as opposed to getting rid of completely Depositions Conduct Rulesmust be nice If one not asking questions is cant talk Only object, reason for, only explain if opposing party asks you too Cant use objections as teaching tool Noticerequest for depositions Supeonaperson not under control of any party (nonparty) Location: Partyin county where lawsuit is pending; all others must be in county of residence or business Corporation: May depose as person Appoint someone to speak for corp Just employee then dont have to supeona Apex depositionhigher executive Big player in corporationmakes known about litigation, doesnt want to doincreases settlement value Crown Central BOPunique or superior knowledge Conduct discovery through less intrusive means; still dont have, try to show unique or superior knowledge and court may grantlots of corporate protection In Re Alcatel USA Position = knowledge, relevant info (not enough if lesser ees have the same) Must be different, not just broad policy objectives Unique and superior = more then general knowledge gotten b/c boss Physical and Mental Examinations Very intrusive Must get judicial order Must show good cause Must be at issueP must put at issue (mental anguish is not enough) If P issues evidence about mental state, etc then can get impartial doctor to examine to make own determination RELEVANCE 192.3general scope of discovery Must be relevant to subject matter (not have to be relevant to particular issue) Need not be admissible as evidence Just reasonably calculated to lead to admissible evidence BROAD SCOPEP wantsmore likely D has info about what did wrong Often determined by examining the face of the pleadings Balancing Cost v. relevance (trial courtdiscretion; objecting party prove cost, requesting prove relevance) Need for info to seek the truth v. legitimate interest of opposing party (cost, burden, fundamental privacy issues) Effort of requesting party v. providing party (TX doesnt have automatic disclosure rulesdont need in most cases so keeps litigation down to not have to provide all the time) Some effort to figure out what need ON GOING PROCESSmore specific requests as learn more Jampole v. Touchy In-depth hearing to determine discoverable Judge managed Mandamus relief will be granted when judge overly limits Court indicating to trial courts danger of reversal if allow too little; safe thingallow discovery No mention of burden to D, etc. (OLD CASE) New court Conservativemore emphasis/mention of cost and burden to other party Must have limiting factor and proportionality (1999 Rules) Response Duty to respond partially if only objecting to portion (must object initially to preserve chance will want laterassume not objectionable at first, will it be later?) Once undertake duty to respond, must respond fully w/all info available and supplement when changes In Re Alford Chevy-Geo Losing party has BOP to show abuse of discretion Must be in record Control Not want many limit to scope; limit vehicle or use SpCt has restricted some Limit how object and unwilling to get involved except on edges (P cant get or D claims overly burdensome) Trial courts given lots of discretion Weigh/balance issues in discretion Kmart v. Sanderson Objections Overly broad Overly prejudicial (taken out of context, etc.); be carefulred flag that this is not something you want out b/c damaging Time line Range Type of crime involved Must respond as able Answer part can that not object to Respond as reasonable Detail what giving so P will know what have and what still needs to seek Court compares pleadings with request to find relationship P has BOP t show at hearing on relevance (expert testimony, etc to show need) must more limiting and P has BOP Get if directly tied to case (may get more if prove need) On-going theorynot grant all immediately; see what is there as go forward Need to limit to time, place, subject matter of litigation; expense (D may have to showbe ready to before make claim); specificity (not fishing expedition) Fishing expedition Dont want to let one party do all the work and other party just request Privileges Preventing Discovery EvidentiaryRules of evidence Protect confidential relationship Attorney-client privilege Trade secret privilege Cant compel to testify to privileged, confidential conversation or communication Procedural Work product 192.5 Consulting-expert Attorney-client Protects representatives communications with L (who is rep?) Lenientinfo of ees working at time of incident at issue can be protected) Exceptions (absolute except as follows) Crime-fraudif made in connection with crime or fraud Work Product Hickman v. Taylor Must be a communication or work w/facts (not just facts) Not absolute, circumstances where opponent is unable to get needed info so should give overpromote effective litigation (need and hardship) L and client get benefit of hard work, investigation, strategies, organizations, etc IN ANTICIPLATION OF LITIGATION (what L works on) Preserves competition and adversarial systemtruth comes out b/c have to gather more info (cant just take other sides) BOTH Protected generally but is discoverable if need or hardship is shown for attorney-client communications (take care to protect Ls mental process and thoughts) CORE WORK PRODUCT Evaluation/strategy of facts; mental processes, etc given/made in anticipation of litigation May be incidentally disclosed through discovery of ordinary but CANT GET TO HEART OF CORE PRODUCT (absolutely protected) DOES NOT PROTECT FACTS ORDINARY WORK PRODUCT Everything else Discoverable under need and hardship FACTS Not protected Only communication, thoughts about facts are subject to the privilege Ls file Not discoverable in and of itself b/c organization, etc (documents in file may be; cant protect document just by giving it to L) May have to give documents separate from file Client Idea may be applied to clients work in anticipation of litigation National Tank Anticipation of Litigation Reasonable person think litigation would happen (objective) Did this party believe substantial chance of litigation (subjective) Core work productabsolutely privileged Clients work not included All else discoverable under substantial need and hardship obtaining substantially same THE BRIEFCASE (prevents necessity for broad objection b/c dont automatically waive as to info later found in file or client briefcase) Response Object to part but tell what they are being given [specific so requesting party can tell what they are getting; give info so can make decisions on how to proceed and alerts them to material there may be controversy over] Withholding Statement Alert that are providing some but w/holding some that are responsive but privileged Exception = briefcase 193.3 [Ls litigation filekeep for case] May have some responsive but are privileged that dont have to mention Must be: Communication under attorney-client or work product (L must be involved) Timefrom time client consulted L about rendering advice about this incident (view towards obtaining L for representation in this incident) Need and hardship Some notes would be discoverable under this idea But must know existsif in briefcase then dont know that L has certain notes b/c didnt have to disclose Ask in interrogatories to get, etc knowledge about who L has talked with etc or who material witness has spoken with Privileges in Depositions Cant object and then let answer (destroys privilegeonce out there can not claim privilege) Waiving Privilege Failure to properly preserve it not objecting, listing in withholding statement, etc. new rules make this harder to do Offensive use (only against P) prevents P, who is seeking affirmative action, from using privilege claim to hide outcome determinative info TDPS v. Denton (changes somewhat) P may assert this privilege but to do so: (must suffer consequences depending on choice P makes) Claim and suffer sanctionincludes dismissal (but not coercion b/c is an option) OR Not assert privilege May not dismiss, may just abate Must be outcome determinative and not otherwise available D has need and hardship exceptionneeded to protect Ds interest at stake in litigation which P is affirmatively seeking something from D Voluntary Disclosure Voluntarily disclosed to 3rd partynot confidential anymore so not privileged Inadvertently?? Document productionaccidentally give something didnt mean too (pre-new rules: spent lots of money and time trying to make sure this didnt happen) Granada Corp. (193.3d changes) OLD = Must show wasnt voluntary and must show had procedures in place to prevent this from happening NOW = inadvertent doesnt waive if produced w/o intent to waive (obliterates voluntary disclosure) Reduces cost Snap back option10 days to snap back (from time learn of disclosure) encourages communication provide list of what otherside has given to start period refreshing recollection 612 used in testimony then have to produce document used; may be required to turn over one used to refresh pre-trial (judicial discretionwhy ask in interrogatoriesdid anything refresh your memory as to X; what have you seen??) Crime Fraud Exception If someone claims privilege and otherside can present prima facie proof that communication is in furtherance of crime or fraudprivilege is waived Broad Hits work product now Attorney client privilege cant use L to commit crimeL is not acting as an L at that point (ethics) Confidentiality 192.6 protective order--protect own confidential information (only use when objection would not be appropriate) not object to production but protects from being given to the world (purpose) Sealing orderseal entire file at courthousetakes everything out of public knowledge 76a court records are presumed open and can be sealed only if that is overcome 76bdefines court record document filed in courthouse; discovery w/probably adverse affect on public safety (includes unfilled discovery); unfilled settlement CONCERNconfidential info becomes court record b/c of discovery??? Hearing to determine (public) Immediately appealable (decisions to hold) General Tire v. Kepple Limits 76aonly applies when court finds court record dont need public hearing to decide (threshold determinationmust decide outside 76a to determine if use) may have intervenors who want to show threat to public must have some nexus between document at issue and public safety must show by specific documentation that the document shows threat to public immediately appealable about court record determination Exceptionintervenors may come it at threshold and appeal if found not to be Trade secret General Tire BOP on requesting party to show that is fair or necessary for fair adjudication Mere relevance in not enough 76abecomes record? Cant protect? Courts consider idea that is trade secret when balancing to overcome presumption of openness Expert Witnesses Aid in strategy, calculating what happened, damages (L tool) anticipation of litigation = work product (much is privileged) Testifying192.7 may help jury not privileged exception to work productincludes anything they review (carefullots becomes discoverable); NOT RELY test anymore Very controlled 195 194request for disclosure, depositions, reports (no interrogatories) REPORTS doesnt not require experts to produce or make expensive to generate and discoverable IF DOESmust produce to other side IN DOCUMENT PRODUCTIONPRODUCE WHAT IS IN EXISTENCE ONLY Judge may order expert to generate Designation Identify under 194.2f must ask, otherwise opponent doesnt have to designate May not reassign as consulting to protect discoveryviolates rules Schedule 195.2 Party seeking affirmative relief must designate 90 days before the end of the period others60 days before IDEAD is mainly responding so need to know what P is doing first so not waste resources Retained v. Nonretained (testifying)194.2e if not retaineddocuments must reflect recognition that not in control if islots of documents providing background, etc hired so ee and have lots of control so can presumably get all that is required; harder to do when have no control party retaining usually pays all expenses during deposition (unclear in unretained who pays or if have too) SPCT MOST MICROMANAGED IN THIS AREA Supplementation higher level for retainedmust supplement DEPOSITION testimony as well as any written reportother side must be able to rely Exxon have duty but cause or nor surprise or prejudice factors in test to determine if testimony is excluded or not (only do so if other side is harmed or cant show cause to include) Scope Bias of testifying expertdiscoverable must be some facts or circumstances that raise it or make it an issue (cant just fish if have no reason to suspect) Consulting192.7dhelpernot going to testify use to explore possibilities not going to be discoverable not allow opponent to depose may hire if have negative opinions to prevent otherside from usinghide or bury damaging evidence DETERMINE: in anticipation of litigation only get privilege is YES cant designate to hide facts of evidence knowledge that comes from conversations, investigation outside of anticipation is discoverable (cant prevent from testifying to this by saying consulting expert) person involved in facts, incident, or transaction Yescant be consulting expert what is the factual knowledge (depose if have any, no need or hardship requirement in TX) personal or first hand is discoverable any obtained not in anticipation of litigation is discoverable obtained in communication then second hand or heresaynot discoverable IF IN ANTICIPATION OF LITIGATION (otherwiseyes) Facts and opinions distinction Reviewed consulting192.7(2) mental impressions and opinions have been reviewed by testifying expert ! everything is discoverable Discovery? allows for successful and efficient cross examination know where to hit too impeach otherwise huge advantage to other party b/c can t impeach even if wrong ro not accurate RULE = EXPERTS ARE DISCOVERABLE UNLESS PURELY CONSULTING GM v. Gaile Determine consulting or evidentiary before test is conducted Policyprotect pure consulting privilege Cant force designation if wont allow party to explore different theories w/o being subject to discovery No need and hardship exception Like core work product If has right info will be testifying witness and can discover what he will be using/reviewing so not hurt at trial Facts question not protect pure facts must identify all who may know (not just first hand) for consulting witness must be first hand knowledge heresay is communication and privileged Axelson v. McIlhanay Source of facts must come from consultation Employment must be in anticipation of litigation Doesnt include ee involved in transaction or incident (cant make consulting just to protect) Can be in company if get info not in conjunction with incidentget facts after the fact Fact v. Opinion Pure factmust disclose if asked Opinioncause, etc is privileged Sanctions 215 [may also use contemptlimited to violation of ct. order or disrespectful of court in courts presence; inherent powerhave some pre-rule] Discovery abuse Asking too much Giving too little Making things expensive or hard (rules meant to be efficient and reasonable) Not disclosing what needs to be disclose, not giving everything, half truths, etc. Should be able to trust what get (judge will hit this hard) Procedure Call courts attention to offense Motion (to compel or for sanctions) Now dont require motion to compel first May do so OR can ask for sanctions at same time as motion to compel ALLOWS FOR ENFORCEABLE DEADLINEOTHERWISE L WAIT UNTIL COMPELLED TO ANSWER Court grant motion to compelcourt must assess costs (215.1d)against client or L who advised Exception is when opposition is substantially justified or circumstances make unfair MAY ACCESS COST IF MOTION IS DENIED ( may be frivolously filed (want to discourage) Types 215.2 (b) orders are JUST ( list possibilities-not exclusive (hardcore sanctions) lots of judicial discretion to craft punishment judges dont have to agree on if was right just must be reasonable Abusive conduct Wide discretion to determine if constitutes abuse (judges abuse power) Transamerica Court sets standard for sanctions Direct relationship between sanction and conduct Must be directed at abuse Remedying harm to other party Visited on offender (L or clientconflict?) Not excessiveno more severe then to satisfy purpose Purpose may be compliance, deterrence, punishment Has court tried less severe sanctions to accomplish? Due process Concern with severe sanctions that serve to adjudicate the dispute on sanctions rather then merits ONLY ALLOWED TO DO IF ABUSE LEADS TO CONCLUSIONS THAT LACKS MERIT OR fine that makes it impossible to continue Review General ruleappeal sanctions after final judgment Exceptionsmandamus Severe sanctions situation and due process is implicated ( not force trial when issues are decided on sanctions Bradenhigh fine prevent party from pursing lawsuit Adjudicates as far as individual is concerned Remedy Making payment at time when can get appellate reivew (not reversal just alter date to later time) Give opportunity to appeal or have review b/c not have problem with fine Give up something that cant get back, i.e. time Again remedy is to postpone deadline till after appeal can take place (no review of if fair or not.) 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Cravens#A:\TX Civil Procedure--Albright.docComputer Information Center9\\COOP\SYS\USER\TROL\PUBLIC\OUTLINES\TX_CIVPR\albri00.doc z(V0*Dp@rJyVllV5"\>|d-"pa>x2 KA<eqSK&?9 \&tjd0BHk4#'wfgWW^W`o(.^`o(.^`.L^`L._ _ ^_ `./ / ^/ `.L^`L.^`.^`.oLo^o`L.88^8`o(.^`. L ^ `L.  ^ `.xx^x`.HLH^H`L.^`.^`.L^`L.^`o(.^`.L^`L.  ^ `.\ \ ^\ `.,L,^,`L.^`.^`.L^`L.0^`0o(.88^8`o(.^`o(.^`.L^`L.  ^ `.\ \ ^\ `.,L,^,`L.^`.^`.L^`L.^`o(.^`.L^`L.n n ^n `.> > ^> `.^`o(.^`.^`.~L~^~`L.^`o(.WW^W`o(.^`o(-^`o(.UU^U`.%L%^%`L.  ^ `.  ^ `.L^`L.ee^e`.55^5`.L^`L.^`o(.^`.L^`L.  ^ `.\ \ ^\ `.,L,^,`L.^`.^`.L^`L.WW^W`o(.''^'`.L^`L.  ^ `.^`.gLg^g`L.77^7`.^`.L^`L.WW^W`o(.eqS#'w?9 \ @X >(NN@ @GTimes New Roman5Symbol3& ArialG" HelveticaArial"1hSSQKf3(%u"0dgTEXAS CIVIL PROCEDUREAllison T. CravensComputer Information CenterOh+'0 $0 L X d p|TEXAS CIVIL PROCEDURE8EXAAllison T. 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