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									 Trial Preparation
From Start to Finish
Tuesday, March   12 th   – Ft Worth
Thursday, March 14th – Dallas
 Institute of Paralegal Education
Tracie Rogers
 Morgan & Gotcher
2610 Stonewall Street
  Greenville, Texas
   1 Horizon Court
    Heath, Texas
   866 KNOW LAW
9:00 to 10:00 – Jack - Getting Started & Privileges
10:00 to 11:15 – Tracie – Discovery Techniques
10:30 to 10:45 – Morning Break
11:15 to 1:30 – Jack – Privileges and Effective
Document Control & Organization
12:00 to 1:00 – Lunch
1:30 to 2:30 – Tracie – Evidence & Exhibits

2:30 to 2:45 – Afternoon Break

2:45 to 3:45 – Jack –Witnesses
3:45 to 4:30 – Tracie – Settling the Case
If you do not fail
it’s a sign you’re
    not taking

   Woody Allen
Getting Started
  Goal No. 1
Your Role
In Getting
Trying Cases To Win
      Requires A
  Commitment To
    Finding And
The One Who
   The Best
Is The One
Who Makes
 The Best
  Making Good
Decisions Leads To
   Good Things
Happening In Your
Getting Started
  Goal No. 2
Organizing is
what you do
before you do
something, so
that when you
do it, it is not
all mixed up.
     A.A. Milne
No Right

   What Is The Key To
Successful Organization?
  Why Is
• Proper Case Evaluation
• What Must Be Done
• Who Can Do What
• Establishing Timelines

• Accountability
  Why Is
Do You Want To Look Like
     These Guys?
Do You Want These
Guys to Get You?
• Case Evaluation
• Decisions
•   Advice
• Trial Preparations
• Trial
     How Do We
    Get Better At
Gathering & Organizing
    This Is Not
The Right Attitude!

            Me Worry?
•   What kind of cases do you
•   What kind of information
    is important to your
•   What are your sources for
    the information you need?
•   Who can provide the
    information you need?
•   How do you decide if you
    have the quality of
    information you need?
•   How can we efficiently
    organize the information?
•   What systems are
    available to maximize our
    use of the information we
•   Who do we have that can
    use these systems?
•   Are we using these
Which one are you?
 A Good Start
Means A Greater
Likelihood You
 Will Succeed
  The Brave
  New World
    A seminar on the
   changes to pretrial
discovery because of the
   new discovery rules
Are the changes
   Are the new rules a
   complete re-write of
    the former rules?

Are the changes in the new
  rules more procedural
     than substantive?
          The goal of
        the rules is to:

eliminate EXCESSIVE discovery

allow NECESSARY discovery
Brief Overview
    of the

Major Changes
   The scope
  of discovery
    has been
expanded slightly
      More information is
      discoverable under
         the new rules
•   How a fact witnesses is
    connected to the case
•   Identity of trial witnesses
•   Witness statements
         Request for
•   A new discovery tool to replace
    written interrogatories as the
    standard vehicle for "core
•   It contains a laundry list of
    commonly discovered information
    that must be produced without

      All cases filed after
     December 31, 1998
  will be placed into one of
the Discovery Control Plans
    Each plan dictates what
discovery will occur before trial
Each discovery control plan includes:

A "discovery period" during which
all discovery is to be conducted

Hourly limits on total deposition
time for Levels 1 and 2
Limits on the number of written
interrogatories for Levels 1 and 2
   No witness can be deposed
for more than 6 hours by a SIDE

    Abusive tactics used to
      disrupt depositions
       coach witnesses
  Delay in responding to all
written discovery just because
     you object to portions
      of the discovery is
You must respond to the portion
to which you have no objection.
 If you have any information at
   the time a response is due,
you must provide what you have
   It is not a valid objection
 that investigation is on-going
and supplementation will occur
      You have a duty to
   continue supplementing
  as you get new information
     The day of the
  objections are gone
Objections may only be
   made when there
    is a good faith
factual and legal basis
Privileges are not preserved
by objection but by:

•   withholding the information at the
    time it would otherwise be provided
•   notifying the the other party
    of the claim and the nature
    of the information being withheld
•   Unless there is a valid basis
    for the claim, you are
    FORBIDDEN from making it.

•   It is unnecessary to claim
    privilege for trial counsel’s
The automatic exclusionary rule
embodied in former Rule 215(5)
The question is now decided by
   using a more flexible rule
  based on the presence or
     absence of surprise.
All cases will be governed by a
     Discovery Control Plan
     Plaintiff must plead in the
     first numbered paragraph
    of the original petition what
 discovery plan the case will be in
      All suits filed after
     December 31, 1998
 Discovery Control Plan
Level-by-Level Application
             Level 1
      $50,000.00 or less
  Limit does not include costs,
      pre-judgment interest
       and attorney's fees
    Good for cases where a
  party wants to limit discovery
 Discovery Control Plan
Level-by-Level Application
           Level 2
         Default level
  If you do make a choice
 This is the level you are in
  This is the level for all
 cases not in Level 1 or 3
 Discovery Control Plan
Level-by-Level Application
           Level 3
 Must have a court order which
   provides a discovery plan
         just for that case.
     Litigants should submit
   agreed orders on how the
  discovery is to be conducted
 Discovery Control Plan
   Discovery Periods
The "Discovery Period" creates
 a discovery cut-off deadline.

    The Discovery Periods
        in Levels 1 & 3
 do not change the discovery
   period from the old rules
Level 1 Discovery Period ends
 30 days before a trial setting

  Level 3 Discovery Period
   must be prescribed in
      the court-ordered
   Discovery Control Plan
  Discovery Control Plan
Discovery Periods - Level 2
  The Discovery Period ends
        9 months after
     discovery first begins
The Discovery Period ends on the earlier of:

30 days before trial
9 months after the earlier of the
      the date of the first
      the due date of the
      first response
      to written discovery
In order to avoid getting
unexpectedly cut off from
discovery disaster in Level 2
cases, you must:
conduct all discovery
within the 9-month period or
agree to modifify
the discovery period
        Discovery Control Plan
    Time Limits on Oral Depositions
                 Level 1

            6 hours per party

Parties may agree to allow up to 10 hours

 Any additional time requries court order
                Level 2

   50 hours per side (not per party)

Limit applies only to examination of the
   opposing side their experts, and
      persons under their control

  For each expert after the first, the
   other side gets 6 more hours of
      deposition time per expert
      Discovery Control Plan
 Limits on Written Interrogatories
  No limit on the SETS
of written interrogatories
   that you can send
     There are limits
    on the NUMBER
    of interrogatories
       Levels 1 & 2

     Limit of 25 written
 interrogatories per party

No limit when you are only
asking a party to identify or
 authenticate documents
    There are no limits on the
     number of interrogatories
that can be sent in a Level 3 case

   Rule 190.4 requires that the
discovery in any Level 3 case be
specifically tailored for the case.
           Rule 191
191.3 - who can sign discovery

191.3(b) & (c) – Signing discovery is a
certification which, if false, may be
subject to sanctions.
191.4 - Makes clear what discovery
material needs to be filed
191.4(d) -How long you must retain
discovery materials
   No major substantive changes but
   a couple of interesting provisions:
    191.3 - who can sign discovery
191.3(b) & (c) - When you sign discovery,
   it is a "certification" which, if false,
       may subject you to sanctions.
  191.4 - Makes clear what discovery
         material needs to be filed
   191.4(d) -How long you must retain
   discovery materials
   Rule 192
     Exh. A - P. 22

Permissible Discovery
  Forms and Scope
 Discovery Privileges
  Protective Orders
Creates the new discovery device
   "Requests for Disclosure"

     You may combine any
  acceptable form of discovery
     into the same request
         Rule 192.3
    Scope of Discovery
How a fact witness is connected to
a case
Who will testify at trial
Witness statements are
         Rule 192.3(c)
an expert is a person with
knowledge of relevant facts only if
he has: knowledge

knowledge not obtained in
preparation for trial or in
anticipation of litigation
       Rule 192.3(d)
        Trial Witnesses
Learn who will be a witness at trial
Does not apply to rebuttal or
impeaching witnesses "whose
testimony cannot reasonably be
anticipated before trial"
Trial witnesses, unlike fact witnesses and
expert witnesses, are not subject to a Rule
194 Request for Disclosure
You must use another discovery tool to get
this information
Written interrogatory
a court order requiring lists of trial witnesses
be exchanged 30 days prior to trial
or a stipulation to that effect.
       Rule 192.3(e)
    Scope of Discovery
Testifying and Consulting Experts

    A minor expansion in
   what can be discovered
   Any bias of the witness
                 Rule 192.4
   Limitation on the Scope of Discovery
Courts can limit discovery based
on the following factors:
 burden and expense of the proposed discovery in
 relation to the amount in controversy
 the parties' resources
 the importance of the issues
 at stake in the litigation
 Whether the proposed discovery
 will help resolve the issues
          Rule 192.5
   Work Product Privilege
Combines the case law definition of

Aattorney work product"
with the previous rules regarding

Aparty communication@
There are two kinds
 of work product:
       "Core work product"
       attorney's mental processes
    privileged under all circumstances

       "Other work product"
Discoverable upon a showing of "substantial
       need" and "undue hardship."
             Rule 192.5(b)(2)
             Rule 192.6
            Protective Orders
Do not file a motion for protection when an
objection to written discovery or assertion of
privilege is appropriate
If you seek protection regarding the time or place
for responding, you must state when and where
you will produce
 If you seek protection to part of a discovery
 request, you must respond to all non-
 objectionable portions unless it is unreasonable to
 do so under the circumstances before obtaining a
 ruling on the motion.
            Rule 193
             Exh. A - P. 28

Response to Written Discovery Requests

 Objections and Assertions of Privilege

   Supplementation and Amendment
 Cannot delay answers "until
discovery is complete" or "until
        further discovery"
     Must make a complete
   response on the due date
     based on information
      reasonably available
          at the time the
193.2(a) - If objecting, you must state the legal
and factual basis for the objection
193.2(a) - If objecting, you must clearly identify
the objectionable & unobjectionable part of the
discovery request
Rule 193.2 (b) requires you to respond to any
portion of a request that is not objectionable
unless circumstances make compliance
193.2(b) If you object to the requested time or
place of production, you must state a reasonable
time and place for production and comply
without further request or order
193.2(c) - Prohibits prophylactic objections -
Must have a valid factual and legal basis for
the objection at the time it is made

Rule 193.2(d) - Allows you to raise objections
later which were initially inapplicable or
unknown after reasonable inquiry

Rule 193.2(e) - A bunch stupid,unfounded or
untimely objections waives valid objections
193.2(f) - Prohibits objections based on
privilege - Comply with procedure outlined in
193.3 - The proper way to preserve a privilege
is to withhold the privileged
      information and
      make a withholding statement stating
      (either in the response or a separate
          That information or material has been
          The request to which the
          material relates
          The privilege(s)
Rule 193.3(b) - A privilege log must be
provided only if the party seeking
discovery serves a written request
If such a request is made, the withholding
party must serve a privilege log within 15
days. The log must contain the following:
    Sufficient description of what is being
    withheld to allow the party to determine
    whether the claim is correct
   List the privilege being claimed for each
               Rule 193.3(c)
Any materials created by trial counsel in
preparation for the litigation for which
discovery is sought is exempt from the need
to make a withholding statement and claim a
              Rule 193.3(d)
            The snap back rule
The right to "snap back" any inadvertently
produced material within 10 days after the
producing party discovers that such
production was made
        Rule 193.5
Duty to Amend or Supplement

There are new ways to supplement

     Are these new ways
        potential traps
       for the unwary?
    The duty under the
  new rules is generally
the same as the old rules.
  The choice on how to
  supplement depends
    on what you are
 identification of fact witnesses,
 trial witnesses, and expert witnesses
 requires formal supplementation
                Rule 193.5(a)(2)
For other information, formal
supplementation not required if the
information has been make
known to other parties either:
    in writing
   on the record at a deposition
  through other discovery responses
               Rule 193.5(b)
Supplementation must be done "reasonably

"Reasonably promptly" is not further defined
except that supplementation less than 30 days
before trial is "presumed" to be not reasonably
This requirement rejects the argument for
immediate supplementation as well as
allowing long delay
              Rule 193.5(b)
When supplementation is required, it
must be in the same form as the original
response. If verification was originally
required, the supplementation must be
The failure to verify is not a problem
unless the failure is followed by a refusal
to verify following a reasonable time after
the failure is pointed out.
                               Rule 193.5
                        Duty to Amend or Supplement
                     There are new ways to supplement
                   Is this a potential trap for the unwary?
Rule 193.6 - Failure to Timely Respond - Effect on Trial -The automatic
exclusionary rule of former Rule 215(5) is abolished. It is replaced with
an exclusionary rule based on surprise as the critical issue.

 The burden is on the offending party to prove the evidence should be
    admitted. The trial court is directed to exclude the evidence unless
    the court finds:
 a.good cause for the failure to timely make or supplement the
    discovery, or
 b.the failure will not unfairly surprise the other parties.

  The court is given the additional authority to grant a limited
    continuance to remedy the effect of the failure.
                       Rule 193.7
    Documents produced in discovery are self-authenticated

A party's production of documents
"self-authenticates" those
documents for use against the
party unless the party objects to the
authenticity of a document within
10 days of learning it will be used.
The objection must state the
specific basis for the objection.
                      Rule 194
           Requests for Disclosure
Rule 194.1 discovery requests must be stated in the
specific language required by the Rule:

"Pursuant to Rule 194, you are requested to disclose,
within 30 days of service of this request, the
information or material described in Rule [state rule,
e.g. 194.2, or 192.2(a), (c), and (f), or 194.2(d)-(g)]."
Rule 194.5 - The Request is not subject to objection
or assertion of work product privilege.
                              Rule 194
               Requests for Disclosure
Rule 194.2 - The information that can be obtained is:

a.Correct names of parties

b.Identification of potential parties

c.Legal theories and general factual bases for those theories

d.Calculations of economic damages

e.Persons with knowledge of relevant facts and their connection to
    the case
                         Rule 194
           Requests for Disclosure
Rule 194.2 - The information that can be obtained is:

f.Information about testifying experts

g.Discoverable insurance agreements

h.Discoverable settlement agreements

i.Discoverable witness statements

j.Medical records and bills in an injury case
                              Rule 194
               Requests for Disclosure
Responses are due within 30 days except that timing for disclosure of
expert information is governed by a special timetable under Rule 195.

Rule 194.4 - Production of documents is ordinarily to be made at the
time of the response.

Rule 194.6 - Because the supreme court wants to encourage early
responses that provide whatever information is available at the time of the
response and recognizing parties may change their legal theories and
damage calculations, the prior answers to items (c) and (d) are not
admissible and may not be used for impeachment.
                    Rule 195
       Testifying Expert Witnesses
What is discoverable has not changed but how
we discover it has changed dramatically

Paper discovery is limited. Detailed discovery of
opinions and their bases is obtainable only by
oral deposition.

Rule 195.1 - Only way to discover is to use a
Request for Disclosure, oral depositions and court
ordered reports
                        Rule 195
         Testifying Expert Witnesses
Rule 195.2 - Schedule for Designating Experts - Creates a
special schedule for designation of experts unless another
schedule is specified by court order. The schedule is:

90 days before end of Discovery Period for experts of
parties seeking affirmative relief;

60 days before end of Discovery Period for all other
Rule 194.2(f) - At designation date, you must furnish both a
written report of the opinions of retained experts and a
document production which must inclide the reviewed
materials, resume and bibliography.
                 Rule 195.3
      Testifying Expert Witnesses
            Scheduling Depositions
If you seek relief and furnish a report from
your expert, you do not need to make the
expert available for deposition until after all
other experts have been designated.
If you seek relief but do not provide a
report from your expert, you must make
your expert available for deposition
reasonably promptly. This means at least
15 days before the deadline for
designating other experts.
                       Rule 195.3
         Testifying Expert Witnesses
                 Scheduling Depositions
If you are not seeking relief, you do not need to make your
experts available for deposition until after the opposing
experts testifying on the same subject has been deposed.
Rule 195.4 - Oral Deposition - Unless the court orders that
experts provide a written report, any discovery of the details
of the expert's work and opinions beyond the standard
disclosure must be done by oral deposition.

Rule 195.5 - MAJOR CHANGE - You must supplement the
information regarding experts in disclosures and depositions
for any expert who is retained, or employed by, or under the
control of the party.
                         Rule 196
            Requests for Production
Rule 196.2 - Response - An objection to time, place or
manner of production must state when and where the
responding party will make production. If the responding party
has not identified any responsive documents after a diligent
search, the party's response must state these facts.
Rule 196.4 - Electronic or magnetic data - Must be specifically
requested. Responding party is to produce that which is
reasonably available in the ordinary course of business.

Rule 196.6 B Expenses - Unless otherwise ordered, expense
of production is borne by responding party; expense of
inspecting a copying is borne by requesting party.
              Rule 196.7
    Motion for Entry Upon Property
No significant change from old
The motion can be directed to
property under the control of a non-
party, as well as property under the
control of a party
                        Rule 197
Rule 197.1B Limitation on contention interrogatories,
  which under the new rules only requires the responding
  party to:

a.confirm a party is making a specific legal or factual

b.state legal theories, and

c.generally describe factual basis for claims or defenses
Rule 194.2(c) - The same contention information may be
  obtained by interrogatory may also be obtained by
  request for disclosure, without using an interrogatory.
                  Rule 197
The number of interrogatories is limited
to 25 per party at Levels 1 and 2
Rule 197.2(d) The verification provisions
have been modified to allow verification
based on information obtained from others,
and to eliminate party's signature to
interrogatories about persons with
knowledge of relevant facts, trial witnesses,
and legal contentions.
              Rule 198
      Requests for Admisssions
No changes
                   Rule 199
             Oral Depositions
            MAJOR CHANGES
6 Hour per side deposition time limit

Severe limitations on objections and improper
conduct during depositions

Notice has effect of subpoena where witness
is a party or under the control of the party
                    Rule 199
            Oral Depositions
          MAJOR CHANGES treated as
Subpoena duces tecum to party will be
a request for production under Rule 196

Motion for Protective Order does not stay the
deposition unless filed by the third business day
after service of notice

Creates mechanism for non- stenographic
recording in lieu of a court reporter
                        Rule 199
                Oral Depositions
               MAJOR CHANGES
Rule 199.1(b) - Deposition by Telephone - Clarifies

Rule 199.1(c) - allows a tape recorder instead of a court
reporter. Allows opposing parties to arrange for court
reporter. Fixes costs.

199.2(b)(5) - Subpoena duces tecum to party treated as a
Request for Production under Rule196. Must be served 30
days before deposition or it is not enforceable.
                           Rule 199
                  Oral Depositions
                 MAJOR CHANGES
Rule 199.3 - Serving the deposition notice compels
attendance not only for a party witness but any witness under
the control of a party.

Rule 199.4 - If you do not object to the time and place for the
deposition by the 3rd business after notice is served, you lose
your right to do so. If the objection is timely, the deposition is
automatically stayed. If it is untimely, the deposition goes on
as scheduled
                        Rule 199
                Oral Depositions
               MAJOR CHANGES
Rule 199.5(c) - Time Limitation - no side may depose a
witness for more than six hours.

Comment 6 to Rule 190 draws the distinction between
"party" and "side;" a "side" is a concept borrowed from
Rule 233 governing allocation of strikes, and may include
multiple parties.

Rule 203.2(f) requires the court reporter to certify the
amount of time used by each party during the deposition.
                   Rule 199
             Oral Depositions
            MAJOR CHANGES
Rule 199.5(d)--Conduct during deposition
testimony to be taken in the same manner as if
present at trial.

Private conferences between deponent and
attorneys improper except for the purpose of
determining whether to assert a privilege.
                        Rule 199
                Oral Depositions
               MAJOR CHANGES
Rule 199.5(e)--Objections--All objections are improper
except for the following objections to the form of the question
or responsiveness of the answer:

"Objection, leading"

"Objection, form"

"Objection, non-responsive"
                           Rule 199
                  Oral Depositions
                 MAJOR CHANGES
Rule 199.5(e) - Objections must be made in the language authorized
by the rules or the objection is waived.

Narrative objections or any objection worded other than as
authorized by the rules waive the objection.

Upon request, the objecting party must explain the ground of the
request in a non-argumentative and non-suggestive manner.

Argumentative, suggestive, or coaching objections may be grounds
for termination of the deposition.
                 Rule 199
           Oral Depositions
Rule 199.5(f) - Instructions not to answer
are orohibited except for very specific

Rule 199.5(g) - Establishes a procedure
for suspending the deposition for violation
of the rules.
              Rules 200 to 203
    Other Deposition Rule Changes
Rule 200.1(a) - Depositions on Written
Quesitons - 10 notice requirement has been
expanded to 20 days.
Rule 201 - Depositions in Foreign
Jurisdictions - makes it easier to take
depositions in foreign jurisdictions.

Rule 202 - Depositions before Suit -
Standardizes that procedure and makes it
simpler to use.
                      Rules 200 to 203
     Other Deposition Rule Changes
Rule 203 - Signing, Certification, and Use of Depositions

Rule 203 combines provisions from old rules 205, 206, and 207
without any apparent significant changes.

The new rule also provides for the use of depositions recorded
nonstenographically under new Rule 199.1(c) and further provides that
the deposition officer must now certify the amount of deposition time
used by each party.

Finally, without limiting a party's right to obtain a copy of a deposition
transcript from the deposition officer, the rules now provide that the
party receiving the original transcript must make it available to the
other parties for copying.
                          Rule 176
   Major Changes in Subpoena Practice
This Rule replaces Rules 176-178. Its language is drawn
from the old rules, and from Federal Rules of Civil Procedure

It applies to both trial and deposition subpoenas, as well as
to non-deposition subpoenas for the production of
documents and things under new Rule 205.3.

In addition to being issuable to the court, subpoenas may
now be issued by any attorney as an officer of the court.
                         Rule 176
  Major Changes in Subpoena Practiceof
Although notice is required for a court reporter's issuance
subpoenas under Rule 199 (oral depositions), Rule 200
(written questions) or Rule 205 (compelling production from
non-party), the same requirement is not specified for
issuance by the court or by attorneys

Notice to patient (or patient's attorney) required for obtained
medical records, but no such notice is required before the
subpoena may be used to obtain business, financial or other
personal records of a non-party for a custodian such as a
bank, accountant, school, brokerage house, etc.
                  The Home Stretch
   A brief discussion of some other changes
Rule 204 - Physical and Mental Examinations -clarifies some provisions
of the former rule but no apparent significant change.

Rule 205 - Production of Documents and Tangible Things from
Nonparty - This rules permits you to subpoena documents from
nonparties without a deposition.

Subpoenas issued to obtain records without a deposition will require ten
days notice to other parties prior to service of the subpoena and notice to
the nonparty from whom records are sought. If the records pertain to a
nonparty, the person whose records are sought is also entitled to notice.
Rule 215 - Abuse of Discovery; Sanctions - Former Rule
215(5), which provided for automatic exclusion based on the
failure to supplement has been eliminated because of Rule
193.6. Also, former Rule 203 has been incorporated into
Rule 215. Otherwise there are no apparent substantive
Recognizing Them
 Managing Them
Protecting Them
 What Are
The Right To:

• Not Testify

• Withhold Information
Balancing Test:
 Right to Know

Right To Privacy
Texas Rules of Evidence
  recognizes a general
    duty to disclose
 relevant evidence with
   limited exceptions
    Privileged Communications
•     Attorney & client (TRE 503)
•     Married persons (TRE 504)
•     Physician & patient (TRE 509)
•     Psychotherapist & patient
      (TRE 510)
•     Clergy & penitent (TRE 505)
    Privileged Information
•     Statutorily privileged reports
      (TRE 503)
•     Voting (TRE 506)
•     Trade Secrets (TRE 507)
•     Informant’s Identity (TRE 510)
•      Hospital Committee Reports
      (Health & Safety Code Sec.
Other Types Of Privilege:
• Self-Incrimination
• Work Product
Waiving Privilege
•   Voluntary Waiver
•   Procedure
•   Refresh Memory
•   Sword
•   Subsequent Assertion
•   Fact Witness/Expert
Expect the best;
Plan for the worse;
Prepare to be surprised!
You can take control of
 the discovery process
• Initiate
• Keep it on track
• Process it
• Procedure
• Informal discovery

• Formal discovery
• Sharing information
• Internet
• Reported cases
• Texas Rules of Civil
• Federal Rules of
  Civil Procedure
 Are the rules
   Are the new rules a
   complete re-write of
    the former rules?

Are the changes in the new
  rules more procedural
     than substantive?

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