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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 firstname.lastname@example.org www.jackrobinson.com 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 occasionally, it’s a sign you’re not taking chances Woody Allen Getting Started Getting Started Goal No. 1 Information Your Role In Getting Started? Trying Cases To Win Requires A Commitment To Finding And Organizing Information The One Who Gathers Information The Best Is The One Who Makes The Best Decisions Making Good Decisions Leads To Good Things Happening In Your Case Getting Started Goal No. 2 Organization 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 Way! No Wrong Way! What Is The Key To Successful Organization? Flexibility Why Is Information Important? • Proper Case Evaluation • What Must Be Done • Who Can Do What • Establishing Timelines • Accountability Why Is Organization Important? 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 Information? This Is Not The Right Attitude! What? Me Worry? • What kind of cases do you handle? • What kind of information is important to your cases? • 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 have? • Who do we have that can use these systems? • Are we using these systems? 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 evolutionary or revolutionary? Are the new rules a complete re-write of the former rules? or 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 Disclosure • A new discovery tool to replace written interrogatories as the standard vehicle for "core discovery" • It contains a laundry list of commonly discovered information that must be produced without objection. DISCOVERY CONTROL PLANS 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 and coach witnesses ARE FORBIDDEN Delay in responding to all written discovery just because you object to portions of the discovery is FORBIDDEN 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 prophylactic objections are gone Objections may only be made when there is a good faith factual and legal basis MAJOR CHANGES IN PRIVILEGES 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 file The automatic exclusionary rule embodied in former Rule 215(5) is abolished 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 EFFECTIVE DATE: 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 automatically and without warning 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 deposition 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 NO DEPOSITION CAN LAST MORE THAN 6 HOURS REGARDLESS OF THE DISCOVERY LEVEL 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 Major Changes 192.1(a) Creates the new discovery device "Requests for Disclosure" 192.2 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 discoverable Contentions Rule 192.3(c) an expert is a person with knowledge of relevant facts only if he has: knowledge first-hand or 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" MALPRACTICE WARNING 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 192.3(e)(5) 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 192.5(b)(1) "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 193.1 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 unreasonable 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 193.3 193.3 - 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 document): withheld The request to which the withheld material relates The privilege(s) asserted 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 item 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 privilege 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 supplementing. 193.5(a)(1) 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 promptly." "Reasonably promptly" is not further defined except that supplementation less than 30 days before trial is "presumed" to be not reasonably prompt. 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 verified. 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 experts. 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 rule. 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 Interrogatories 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 contention, 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 Interrogatories 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 procedures 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 MAJOR CHANGES Rule 199.5(f) - Instructions not to answer are orohibited except for very specific reasons 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 45. 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 changes. Privileges Recognizing Them Managing Them Protecting Them What Are Privileges? The Right To: • Not Testify • Withhold Information Balancing Test: Right to Know vs. Right To Privacy Texas Rules of Evidence recognizes a general duty to disclose relevant evidence with limited exceptions Privileged Communications Include: • Attorney & client (TRE 503) • Married persons (TRE 504) • Physician & patient (TRE 509) • Psychotherapist & patient (TRE 510) • Clergy & penitent (TRE 505) Privileged Information Includes: • Statutorily privileged reports (TRE 503) • Voting (TRE 506) • Trade Secrets (TRE 507) • Informant’s Identity (TRE 510) • Hospital Committee Reports (Health & Safety Code Sec. 161.031-161.003) Other Types Of Privilege: • Self-Incrimination • Work Product Waiving Privilege • Voluntary Waiver • Procedure • Refresh Memory • Sword • Subsequent Assertion • Fact Witness/Expert Discovery Expect the best; Plan for the worse; Prepare to be surprised! Three Stooges You can take control of the discovery process • Initiate • Keep it on track • Process it • Procedure Discovery • Informal discovery • Formal discovery Informal Discovery • Sharing information • Internet • Reported cases Formal Discovery • Texas Rules of Civil Procedure • Federal Rules of Civil Procedure Are the rules evolutionary or revolutionary? Are the new rules a complete re-write of the former rules? or Are the changes in the new rules more procedural than substantive?
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