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Court Procedures

 

Court Procedures:   

   
Pre-trial Procedures and Motion Practice 

 

  1. GENERAL MOTION PRACTICE

  1. AGREED AND UNOPPOSED MOTIONS

Agreed or unopposed motions do not have to be placed on the courts oral hearing or submission docket.  All unopposed or agreed motions should be titled as such. 

In addition, ALL continuance or reset motions (whether agreed, unopposed or opposed) MUST state what number continuance motion is being filed (i.e. Plaintiffs First or Defendants Second or Third Agreed Motion, etc.).  If a motion is actually agreed, the motion and order should contain signature blocks for all parties that are agreed to the relief requested, and should state AGREED AS TO SUBSTANCE AND FORM AND ENTRY REQUESTED above the signature block.

  1. CERTIFICATES OF CONFERENCE

A certificate of conference is required for all motions, pleas and special exceptions except:

  • Summary Judgments

  • Default Judgments

  • Agreed Judgments

  • Motions for voluntary dismissal or non-suit

  • Post-verdict motions; or

  • Motions involving service of citation

The movant must confer person-to-person with opposing counsel before the
Court will consider a motion that requires a conference. The Court will pass
motions that do not have a certificate stating (1) that the movant has actually
talked to opposing counsel, or (2) why counsel have not been able to discuss
motion.

A certificate of conference stating that you sent a letter or email to opposing
counsel and received no response is not a proper certificate of conference

  1. ORDERS

File proposed orders with all motions and responses. The Court will pass motions filed
without proposed orders. On occasion, the Court may require parties to email
longer or more complex proposed orders in Word format to the court clerk.
When submitting a proposed order, you must include a cover letter and
indicate whether the order is agreed to as to form.

  1. MOTION RESPONSES

E-file motion responses at least 48-hours before the hearing and include a
proposed order.

  1. COURTESY COPIES

The Court accepts courtesy copies of motions over 30 pages. Courtesy copies
should include the motion and all exhibits. If possible, include any response and
responsive exhibits in the same binder.

  1. DISCOVERY MOTIONS

The Court expects that parties will make every effort to resolve all discovery
issues without court intervention. If such attempts prove unsuccessful, litigants
may request an oral hearing on a motion to compel. The complaining party should file a
motion containing:

  • A brief description of the dispute;

  • The date, time, and place the parties have had out-of-court discovery discussions;

  • The names of all counsel participating in the discussions; and

  • A copy or verbatim reproduction of the discovery requests and responses at issue.

After filing the motion, call the Court about a hearing. The Court will then determine the need for briefing and/or a conference on the matter.  Proposed orders should list each discovery issue separately. Both the movant and non-movant need to submit a proposed order.

  1. SPECIFIC MOTION PROCEDURES

  1. Motions to Withdraw as Attorney of Record

Because motions to withdraw as attorney of record usually impose the burden of a pro se case on opposing parties and the court, they will be granted only when absolutely necessary.  Motions to Withdraw must be set for oral hearing.  The following must be filed before any such motion will be considered:

1. Notice of hearing.

2. A statement of the particular circumstances and disciplinary rules requiring withdrawal.  A general statement such as “irreconcilable conflicts” is not enough.  Confidential matters may be filed under seal.

3. A certificate by the attorney of record of the client's name, address, and telephone number, and the statement whether such information is current, or if not current, when it was last known to be correct.

  4. A copy of a letter from the attorney of record to the client giving notice: (a) that the attorney is withdrawing; (b) that the client is deemed to have knowledge of and is required to abide by the Texas Rules of Civil Procedure if the client proceeds pro se; (c) that all notices from the Court to the client's current address will be deemed to have been received unless the client notifies the Court of any change of address; (d) that no continuances or extensions will be granted to the pro se client in order to obtain other counsel; and (e) notice of the hearing at which the motion to withdraw will be considered.

  5. A signed acceptance of the terms of the letter described in item 4, if the client has agreed to the withdrawal.  If the client has not agreed to the withdrawal, proof of service of the letter described in item 4 must be filed.

 

  1. RULE 106 MOTIONS FOR SUBSTITUTED SERVICE

All motions for Substituted Service under Rule 106 must be accompanied by an affidavit that includes the following information:

  • Efforts taken to verify that defendant actually lives or works at the subject address;

  • Each attempt at service, with date and time;

    • Identity of persons who were present at the subject address and what was said;

    • Identity of cars in the driveway or other indications that defendant resides at the subject address;

    • Any other information that will give the Court assurance that the defendant will receive notice through the requested substituted service.

Additionally, the following must be referenced and attached as an exhibit to the order:

 

EXHIBIT A

 

It is further

                   ORDERED that service shall also comply with the following provisions:

 

(a) a copy of the citation and petition shall be mailed by both certified mail, return receipt requested, and regular mail to the Defendant at the same address at which service is authorized above;

(b) the return of service shall not be made until 30 days after mailing or until the process server receives back the green card from the post office, whichever is earlier;

(c) the return of service shall include a statement setting out the date of mailing and the result of the mailing by certified mail and the date of mailing and the result of mailing by regular mail (i.e., whether the envelope was returned by the post office, or the green card came back signed, or whatever happened as a result of the mailing); and

(d) a copy of any envelope or green card returned by the post office shall be attached to the return of citation.

 

The return of service of the person executing service pursuant to this order shall otherwise be made in accordance with Rule 107 of the Texas Rules of Civil Procedure.

 

Service will be complete upon compliance with this Order regardless of whether Defendant signs the certified mail receipt. 

 

Motions for Substituted Service may be set for submission or an oral hearing. 

 

C.        MOTIONS FOR DEFAULT JUDGMENT

 Default judgments asking for liquidated damages may be set for submission or oral hearing.  Default judgments asking for unliquidated damages require an oral hearing. 

When proving damages in a motion for default judgment, show the court how you calculated the damage figure and provide evidence to support your calculation.  For instance, if you are suing for breach of a credit card or mortgage agreement, provide the court evidence as to how you calculated the amount due by the defendant/debtor.

When proving attorney's fees in a motion for default judgment, in your affidavit provide the court with evidence to support your claim for attorney's fees. At a minimum you should show (1) your experience, (2) the work you did on the lawsuit, (3) how long it took you to do it and (4) your hourly rate. 

 

The Court requires the movant to give the defaulting parties (as well as any other parties who may have made an appearance in the case) 10 days notice of the hearing and of the default motion by regular and certified mail, and to certify that this has been done in a certificate of service.
 

If the defaulting party was served at an address other than the address for which the citation was issued, the Court requires the movant to file a Motion to Amend Citation, requesting that the citation be amended to reflect the address at which valid service was actually accomplished, along with a proposed Order to Amend Citation.

D.        MOTIONS FOR SUMMARY JUDGMENT: 

Motions may be set for the first available hearing 21 days after the motion is filed.  Contact the court clerk for a hearing date.  Generally, Motions for summary judgment are heard on Mondays at 11:00 AM.  Motions may also be set on the submission docket at 8:00 a.m. on the first Monday following 21 days following filing the motion.  Plan ahead and do not wait until the last minute to file a MSJ or request a hearing.

File motions sufficiently in advance of the trial setting to be heard before the case is called to trial.  Summary judgments must be set for hearing at least one month before trial.  Late-filed summary judgments will not delay a trial setting and will be set at the Court’s discretion. 

“No evidence” summary judgment motions should not be set for hearing more than 30 days before the first trial setting; unless the non-moving party does not contest that an adequate time for discovery has passed. 

If a motion for summary judgment involves complex issues or lengthy debate, ask the clerk to set the motion for a special setting to allow additional time for oral argument.  Provide courtesy copies of any response or reply papers directly with the clerk of the 234th on the 13th floor if the hearing is less than a week away.  Copies of relevant cases are appreciated.  Highlighting is acceptable as long as all counsel are provided with highlighted versions.  Please call the Court Clerk and all counsel to pass a hearing.

E.        MOTIONS TO SEVER: 

Motions for Severance should be set either on the submission docket or for for oral hearing. The motion must state the basis for the severance.

The order of the severance must contain the following information:

  • Style of the case;

  • Case number, i.e. 2006-32041-A;

  • Parties to be included in the severed case;

  • Documents to be included in the severed case;

  • Whether the severed order disposes of the severed case or if the case
    shall remain active; and

  • The party paying for the costs of court and severance.

Special note regarding bankruptcies.  Severance are not granted merely because of bankruptcy filings.  In such cases, the opposing party should either dismiss the bankrupt party in this Court and proceed in Bankruptcy Court, or move for relief from the bankruptcy stay in Bankruptcy Court and proceed in this Court.

F.     EMERGENCY MOTIONS:  Emergency motions may be scheduled through the court clerk with good cause shown.

  1. HEARINGS

  1. Oral Hearings

Oral hearings are given upon request.  Any party requesting oral hearing must call the Court Clerk to schedule the hearing, and must give at least 10 days written notice to all PARTIES and the COURT of the hearing.  Please call the Court Clerk and all counsel when any hearing is passed.  Appearances by telephone and hearings by teleconference may be arranged through the Court Clerk. 

  1. Submission Docket:  

Motions may be considered by written submission.  The submission docket takes place Mondays at 8:00 a.m. with ten days notice. If you set a matter on the submission docket file a notice of submission with the exact title of the motion or motions set for consideration and serve it on all counsel and self-represented parties.

If any party wants an oral hearing on a motion that has been placed on the submission docket that party should call the Court Clerk and request a hearing date and time. The party requesting the oral hearing must give notice to all parties of the hearing.  The Court may require an oral hearing on certain motions set for submission and will notify the parties of such a request.

  1. Trial Settings

All cases are automatically scheduled for trial pursuant to a docket control order.  If your case is a Level 3 case and you need special scheduling consideration  (e.g., a longer discovery period, a shorter trial setting), prepare an agreed scheduling order and submit it to the Court.  If you need to amend any deadline in the docket control order (except joinder, pre-trial conference, or trial setting), you may do so either by Rule 11 agreement or by moving for leave of Court.  Preferential settings will be granted only upon a showing of good cause (e.g., parties or witnesses reside outside the United States) and, absent other considerations, should be set for trial during the summer months with all parties waiving any vacation letters on file.

 

  1. Continuances

First continuances may be granted for good cause or upon agreement of the parties if a motion for continuance is filed sufficiently in advance of the trial setting.  If agreed, first continuances will not require a hearing unless after reviewing the motion the Court deems one necessary.  The proposed order granting the continuance shall provide a space for the new trial date to be inserted by the Court.  If the parties would like to amend the docket control order in addition to continuing the trial date, please note your request in the Motion for Continuance and include the statement that a new scheduling order shall be issued by the Court in the proposed order.  Alternatively, an amended scheduling order may be submitted.  Continuances after the first continuance must demonstrate substantial need for a delay of the trial setting and must be set for oral hearing whether agreed or opposed. 

Any lead counsel who is actively engaged in the litigation of a matter may seek an
automatic continuance of up to 180 days for any of the following situations:

  • the birth or adoption of a child;

  • care for an immediate family member (spouse, child, or parent) with a serious health condition; and

  • medical leave when the employee is unable to work because of a serious
    health condition.

     

  1. Pre-trial Conferences 

A pre-trial conference is typically held before trial begins.  The Court Coordinator will telephone counsel with the day and time to appear for the pre-trial conference.  The Court will entertain requests to hold the pre-trial conference farther in advance.  Cases generally will have at least one day’s notice before being called in for trial.  Docket positions are available by contacting the Court Coordinator.

  1. Jury Trials 

Before trial, parties should exchange the actual exhibits as well as exhibit lists, motions in limine, and proposed charge issues.  Have a copy ready for the judge as well.  All exhibits should be pre-marked, and an 81/2 x 11 size duplicate exhibit should be provided for any blowup exhibit.  Review the exhibits, exhibit list, and motion in limine filed by opposing counsel before trial and be prepared to advise the judge as to which exhibits and limine requests you have no objection.  Deposition excerpts must be provided to opposing counsel the week before trial.  Excerpts should be reviewed and objections made in writing by the day of the pre-trial conference.  Be prepared to advise the Court of your witness list and anticipated schedule.  The Court has a DVD player and VCR available for viewing videotaped depositions.  Other audio/visual equipment is also available.  If the Court is not in session, you may call to arrange a time to inspect the audio/visual equipment.  The Court Coordinator will telephone all parties at least one day in advance of trial to schedule the pre-trial conference.  Voir dire may begin immediately after the pre-trial conference in some cases, so be ready to pick a jury when called for the pre-trial conference.  Jurors are allowed to take notes during the trial and to use their notes during deliberations.

  1. Non-Jury Trials: 

Follow the above guidelines for jury trial, but prepare and exchange proposed findings of fact and conclusions of law with all counsel and provide them to the judge.  In addition, prepare a proposed form of judgment.


Instructions for Trials in the 234th District Court

 Pretrial Conference

 In jury trials, a pretrial conference will usually be held a few days before the actual trial begins.  Before the pretrial conference (PTC), the following must be completedItems 1 (including the actual exhibits to be tendered to the Court Reporter), 3, 4 and 6 must be brought with you to the PTC:

 

1.  Exhibits.  All exhibits must be (i) premarked, (ii) redacted (e.g., insurance), and (iii) exchanged with opposing counsel prior to the PTC.  Opposing counsel must review the actual exhibits prior to the PTC to determine whether there are objections.  Any objections must be discussed with opposing counsel prior to the PTC.  An exhibit list must also be brought to the PTC.  

 2.  Witnesses.  Be prepared to name witnesses who will actually testify, and discuss the necessity for each.  Undesignated, cumulative, and unnecessary witnesses will be struck at this time.

 3.  Motions in Limine.  Be sure to exchange motions in limine with opposing counsel before the PTC to determine whether there are objections.  Any objections must be discussed with opposing counsel prior to the PTC.

 4.  Draft Jury Charge.  Draft Jury Charges must be exchanged with opposing counsel before the PTC.  Modifications may be submitted as the trial progresses.

 5.  Deposition Excerpts. Page/line designations must be exchanged before the pretrial conference to determine if there are any objections.  Any objections must be discussed with opposing counsel prior to the PTC. 

6. Timeline. Each party must prepare a 1 page chronological summary of the key case facts.

 Failure to comply with the foregoing may result in exclusion of exhibits, witnesses, or motions.  Failure to review items tendered by opposing counsel may result in waiver of objection thereto.

 

Voir Dire

 

1.  Introduction.  The judge will give introductory remarks, including expected length of trial, differences in civil and criminal cases, identity of all attorneys and parties, as well as the Rule 226a instructions.

 

2.  General Voir Dire.  Voir dire is limited normally to 30-45 minutes per side.  In complex cases, more time may be allowed. The rules of proper voir dire are strictly enforced (e.g., no opening statement, no argument).  Questions attempting to learn how jurors will vote based on an assumption of the facts, or to commit jurors to a specific finding, are strictly prohibited.

 

3.  Voir Dire at Bench.  Voir dire that anyone wishes to have conducted outside the hearing of the jury panel is postponed until the end of all other voir dire.  The panel will then be excused to the hallway, and individual jurors may be called in for questioning. 

 

4.  Strikes for Cause.  Motions to strike are taken at the end of all voir dire.  Comments regarding the acceptability of a juror should never be made in a juror's presence.
 

Settlements

 

          You do need not appear in court to announce a settlement; a phone call to the court coordinator is sufficient.  However, a plaintiff who announces settlement without an enforceable Rule 11 agreement does so at his/her own risk.  Cases are dismissed for want of prosecution if no judgment is filed within 14 days after the court is notified of settlement (this time may be extended where necessary).  Failure to obtain an enforceable settlement agreement will not be good cause to avoid dismissal or to reinstate the case.

Settlements Involving Minor Children 

 

          A Guardian Ad Litem will be required for all settlements involving minor children.  The parties are to submit an Agreed motion and order for appointment of a Guardian Ad Litem.  The Court will then select the Guardian Ad Litem for that case, and will inform the parties of the Court's decision.  Once a Guardian Ad Litem has been appointed, the parties may contact the Court Clerk in order to obtain a Minor Settlement hearing date.  At the time of the hearing, the parties are to present the proposed Judgment, as well as the Supreme Court ad litem fee report.

 

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