2. Pretrial Matters: Pleadings & Motions © Professor Mathis-Rutledge

3. After the client interview Analyze facts – determine duties of parties Analyze facts – determine duties of parties What are the provable facts What are the provable facts What was the harm or injury What was the harm or injury What remedies are you seeking What remedies are you seeking

4. Need More Info. Discovery Before the Lawsuit Discovery Before the Lawsuit Rule 202 of the Texas Rules of Civil Procedure Rule 202 of the Texas Rules of Civil Procedure File a petition for deposition File a petition for deposition Purpose: to investigate potential claim Purpose: to investigate potential claim

5. The Civil Process A lawsuit is filed – “the complaint” A lawsuit is filed – “the complaint” An answer must be filed by the respondent An answer must be filed by the respondent Discovery process – interrogatories, depositions, request for production Discovery process – interrogatories, depositions, request for production If case not disposed of – summary judgment: If case not disposed of – summary judgment: Trial Trial

6. The Criminal Process The prosecution begins – the information or indictment The prosecution begins – the information or indictment Arraignment in front of judge or magistrate defendant answers guilty or not guilty Arraignment in front of judge or magistrate defendant answers guilty or not guilty No formal discovery process No formal discovery process The defendant is allowed to file discovery motions The defendant is allowed to file discovery motions If motion to suppress or quash indictment is not granted: trial If motion to suppress or quash indictment is not granted: trial

7. Criminal v. Civil Law CivilCriminal Parties Involved Individuals or Businesses Plaintiff/DefendantPetitioner/Respondent Government & Individuals or Businesses Prosecutor/Defendant Nature of the Case whether one party has harmed another whether one party has violated the laws meant to protect society as a whole Initiating Document Petition/Complaint Indictment/Informati on Burden of Proof Preponderance of the Evidence or Clear and Convincing Evidence Beyond a Reasonable Doubt Defendant’s Loss LiabilityGuilt Penalty Damages to Compensate for Loss Punishment

8. Going to court & filing suit Which court(s) have jurisdiction Which court(s) have jurisdiction Prepare the petition Prepare the petition Caption (name of case and court) Caption (name of case and court) Residences and names of parties Residences and names of parties Statement of facts to give notice Statement of facts to give notice Demand for relief sought (in alternative or combination) Demand for relief sought (in alternative or combination) Signature of attorney of record, state bar #, address & phone number Signature of attorney of record, state bar #, address & phone number In Texas, the firt signature is included “the attorney in charge” In Texas, the firt signature is included “the attorney in charge”

9. Submit to court Original petition Original petition Copy of petition for each defendant Copy of petition for each defendant Check for filing fee Check for filing fee

10. Before the answer Before entering an appearance – certain responsive pleadings should be filed Before entering an appearance – certain responsive pleadings should be filed Challenge to jurisdiction – special appearance Challenge to jurisdiction – special appearance Motion to Transfer venue Motion to Transfer venue

11. The Answer Challenge jurisdiction Challenge jurisdiction Specific denials Specific denials General denials General denials Affirmative Defenses Affirmative Defenses Signature by attorney of record, telephone, address, state bar number Signature by attorney of record, telephone, address, state bar number Certificate of service Certificate of service

12. Sample Documents Form books Form books Procedure books Procedure books Firm pleading banks Firm pleading banks

13. Pre-Trial Motions & Memoranda Filed in the trial court (district court) Filed in the trial court (district court) Motion – device to request an order Motion – device to request an order Motion to compel; motion for sanctions; motion for continuance Motion to compel; motion for sanctions; motion for continuance

14. After a motion is filed, the other party may respond After a motion is filed, the other party may respond Each party must file a brief – or memorandum of law Each party must file a brief – or memorandum of law The memo should explain why the party should prevail The memo should explain why the party should prevail Describes & analyzes legal authorities Describes & analyzes legal authorities Includes the parties’ arguments Includes the parties’ arguments

15. When Filed? Motions can be filed at almost any point during the litigation. Motions can be filed at almost any point during the litigation. Motions before the trial are generically called “pretrial motions.” Motions before the trial are generically called “pretrial motions.”

16. Who Files? Any party may file Any party may file The party who files is called the movant The party who files is called the movant The other party is the respondent or non- movant The other party is the respondent or non- movant

17. Audience Primary is the trial judge Secondary audience: Judge’s clerk Opposing counsel Other attorneys in your firm Your client Possibly an appellate court

18. Purposes Persuade the court Persuade the court Educate the court Educate the court Inform opposing counsel of position Inform opposing counsel of position Show client work performed on its behalf Show client work performed on its behalf

19. Parts of a Pretrial Memorandum or Brief Caption Caption Title Title Introductory statement Introductory statement Facts Facts Issue(s) Issue(s) Arguments & authorities Conclusion Signature block certificate of service affidavits & evidence

20. Pretrial motions Motion to Dismiss Motion to Dismiss Texas: something wrong with the lawsuit that entitles defendant to dismissal if problem is not cured Texas: something wrong with the lawsuit that entitles defendant to dismissal if problem is not cured Failure to prosecute, lack of jurisdiction, failure to comply with discovery Failure to prosecute, lack of jurisdiction, failure to comply with discovery Federal (Rule 12(b)(6) – failure to state a claim Federal (Rule 12(b)(6) – failure to state a claim

21. Summary Judgment General General Filed if there is an absence of a genuine issue of material fact and movant is entitled to win as a matter of law Filed if there is an absence of a genuine issue of material fact and movant is entitled to win as a matter of law Standard – evidence must be construed in the light most favorable to the non-movant. Standard – evidence must be construed in the light most favorable to the non-movant. Based on depositions, affidavits of admissible facts, interrogatories, other discovery responses, stipulations and public records Based on depositions, affidavits of admissible facts, interrogatories, other discovery responses, stipulations and public records

22. Summary Judgment Summary Judgment Summary Judgment Texas Texas No evidence under Rule 166a No evidence under Rule 166a Alleging no evidence to support one or more of the specified elements Alleging no evidence to support one or more of the specified elements “Regular” Motion for Summary Judgment “Regular” Motion for Summary Judgment

23. Local Rules Always consult local court rules. Always consult local court rules. Surfing assignment: Surfing assignment: http://www.txs.usco urts.gov/ http://www.txs.usco urts.gov/ http://www.txs.usco urts.gov/ http://www.txs.usco urts.gov/ Look practice/ judge’s procedures Look practice/ judge’s procedures