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Pleadings and pretrial matters


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Pleadings and pretrial matters

Pleadings and pretrial matters

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  • 1. Pretrial Matters: Pleadings & Motions © Professor Mathis-Rutledge
  • 2. After the client interview
    • Analyze facts – determine duties of parties
    • What are the provable facts
    • What was the harm or injury
    • What remedies are you seeking
  • 3. Need More Info.
    • Discovery Before the Lawsuit
    • Rule 202 of the Texas Rules of Civil Procedure
    • File a petition for deposition
      • Purpose: to investigate potential claim
  • 4. The Civil Process
    • A lawsuit is filed – “the complaint”
    • An answer must be filed by the respondent
    • Discovery process – interrogatories, depositions, request for production
    • If case not disposed of – summary judgment:
    • Trial
  • 5. The Criminal Process
    • The prosecution begins – the information or indictment
    • Arraignment in front of judge or magistrate defendant answers guilty or not guilty
    • No formal discovery process
    • The defendant is allowed to file discovery motions
    • If motion to suppress or quash indictment is not granted: trial
  • 6. Criminal v. Civil Law Beyond a Reasonable Doubt Preponderance of the Evidence or Clear and Convincing Evidence Burden of Proof Guilt Liability Defendant’s Loss Punishment Damages to Compensate for Loss Penalty Indictment/Information Petition/Complaint Initiating Document whether one party has violated the laws meant to protect society as a whole whether one party has harmed another Nature of the Case Government & Individuals or Businesses Prosecutor/Defendant Individuals or Businesses Plaintiff/Defendant Petitioner/Respondent Parties Involved Criminal Civil
  • 7. Going to court & filing suit
    • Which court(s) have jurisdiction
    • Prepare the petition
      • Caption (name of case and court)
      • Residences and names of parties
      • Statement of facts to give notice
      • Demand for relief sought (in alternative or combination)
      • Signature of attorney of record, state bar #, address & phone number
        • In Texas, the firt signature is included “the attorney in charge”
  • 8. Submit to court
    • Original petition
    • Copy of petition for each defendant
    • Check for filing fee
  • 9. Before the answer
    • Before entering an appearance – certain responsive pleadings should be filed
    • Challenge to jurisdiction – special appearance
    • Motion to Transfer venue
  • 10. The Answer
    • Challenge jurisdiction
    • Specific denials
    • General denials
    • Affirmative Defenses
    • Signature by attorney of record, telephone, address, state bar number
    • Certificate of service
  • 11. Sample Documents
    • Form books
    • Procedure books
    • Firm pleading banks
  • 12. Pre-Trial Motions & Memoranda
    • Filed in the trial court (district court)
    • Motion – device to request an order
      • Motion to compel; motion for sanctions; motion for continuance
  • 13.
    • After a motion is filed, the other party may respond
    • Each party must file a brief – or memorandum of law
    • The memo should explain why the party should prevail
      • Describes & analyzes legal authorities
      • Includes the parties’ arguments
  • 14. When Filed?
    • Motions can be filed at almost any point during the litigation.
    • Motions before the trial are generically called “pretrial motions.”
  • 15. Who Files?
    • Any party may file
    • The party who files is called the movant
    • The other party is the respondent or non-movant
  • 16. Audience
    • Primary is the trial judge
    • Secondary audience:
      • Judge’s clerk
      • Opposing counsel
      • Other attorneys in your firm
      • Your client
      • Possibly an appellate court
  • 17. Purposes
    • Persuade the court
    • Educate the court
    • Inform opposing counsel of position
    • Show client work performed on its behalf
  • 18. Parts of a Pretrial Memorandum or Brief
    • Caption
    • Title
    • Introductory statement
    • Facts
    • Issue(s)
    • Arguments & authorities
    • Conclusion
    • Signature block
    • certificate of service
    • affidavits & evidence
  • 19. Pretrial motions
    • Motion to Dismiss
      • 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
      • Federal (Rule 12(b)(6) – failure to state a claim
  • 20. Summary Judgment
    • 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
      • 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
  • 21. Summary Judgment
    • Summary Judgment
    • Texas
      • No evidence under Rule 166a
        • Alleging no evidence to support one or more of the specified elements
      • “Regular” Motion for Summary Judgment
  • 22. Local Rules
    • Always consult local court rules.
    • Surfing assignment:
    • Look practice/ judge’s procedures