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ADVANCED CYA FOR THE FAMILY LAW ATTORNEY

J. STEVEN KING HEATHER L. KING

Law Offices of J. Steven King & Heather L. King 2900 Airport Freeway

Fort Worth, Texas 76111 (817) 838-3338

(817) 838-3545 Fax www.kingfamilylaw.com

State Bar of Texas THE ULTIMATE TRIAL NOTEBOOK: FAMILY LAW

December 9-10, 2004 Dallas

CHAPTER 7

Heather L. King LLaaww OOffffiicceess ooff JJ.. SStteevveenn KKiinngg && HHeeaatthheerr LL.. KKiinngg

2900 Airport Freeway Fort Worth, Texas 76111

(817) 838-3338 / 838-3545 fax [email protected]

www.kingfamilylaw.com

Education/License B.A., Texas Christian University, 1987 J.D., Texas Tech University School of Law, 1995 Qualified Mediator in accordance with TEXAS CIVIL PRACTICE & REMEDIES CODE, 1995 Board Certified – Family Law, Texas Board of Legal Specialization, 2000

Professional Activities Counsel Member, Family Law Counsel, State Bar of Texas, 2004 to Present Director, Texas Academy of Family Law Specialists, 2003 to Present Director, Tarrant County Bar Association, 2003 to Present President, Tarrant County Family Law Bar Association, 2002 Director/Officer, Tarrant County Family Law Bar Association, 1998 to 2003 Member, College of the State Bar of Texas, 1999 to Present Member, Tarrant County Bar Association, 1996 to Present Member, Tarrant County Young Lawyers Association, 1996 to 2002 Associate Member, Barrister & Officer, Eldon B. Mahon Inn of Court, 1997-98, 2001-Present Senior Counsel, American College of Barristers, 2001 to Present Member/Chairperson, Fee Arbitration Committee, Tarrant County Bar Association, 2001-02 Member, State Bar of Texas, Family Law Section Checklist Committee, 2002-2003 Fellow, Texas Bar Foundation 2002 to Present Member, Texas Family Law Bar Foundation 2004 to Present

Awards/Recognition Friend of the Inn for outstanding contributions to Eldon B. Mahon Inn of Court, 2002 President’s Certification of Outstanding Achievement from Tarrant Co. Bar Assoc., 2003 Texas Super Lawyer, Texas Monthly Magazine 2003 & 2004 Who’s Who in Executives and Professionals 2003 Top Attorneys 2003 featured in Fort Worth, Texas Magazine 2003 Top Fifty Female Attorneys in Texas, Texas Monthly Magazine 2004

Law Related Seminar Publications & Participation • Author, An Attorney Ad Litem Is Really A Lawyer, Attorney Ad Litem Training Seminar 1997. • Author, Trial Preparation & Planning, “Nuts & Bolts” Protective Order Seminar 1997. • Author, Challenging Characterization Issues: Characterizing Trusts, Employee Stock Options, Workman’s

Compensation Claims, And Intellectual Property, Advanced Family Law Course 1997. • Author, Some Changes In The Texas Family Code, Blackstone Seminar 1998. • Author/Speaker, Uncontested Divorce Outline, Pro Bono Family Law Seminar 1998. • Author, Factors Affecting Property Division & Alimony, Family Law Basics From the Bench, Tarrant County

Bar Association Brown Bag Seminar 1998. • Speaker, Practice Tips On Procedures At The Courthouse and Communicating With Court Personnel,

Advanced Family Law Trial Skills Seminar 1998. • Author, The Potential Effect of The New Texas Family Law Legislation Regarding Proportional Ownership,

Equitable Interests, Division Under Special Circumstances, & A Look At New Legislative Provisions For Transmutation Agreements, Advanced Family Law Course 1999.

• Speaker, Recent Cases in Child Support, Possession & Access, 1999 Annual TADRO Conference, Fort Worth, Texas 1999.

• Speaker, Filing Pleadings, Obtaining Settings, and Interacting With Court Coordinators and Clerks, Family Law Trial Skills Seminar, West Texas Legal Services PAI Program, 1999.

• Author, Discovery In Property Cases Under The New Rules, Advanced Family Law Course, Houston, Texas 1999.

• Author/Speaker, Drafting Family Law Pleadings: It’s Almost All In The Manual, “Nuts & Bolts” Family Law & Advanced Trial Law Trial Skills, Fort Worth, Texas 2000.

• Author, Deciding When You Need A Jury & Conducting Voir Dire, “Nuts & Bolts” Family Law & Advanced Trial Law Trial Skills, Fort Worth, Texas 2000.

• Author/Speaker, Proper Drafting and Filing of Pleadings, 26th Annual Advanced Family Law Course, Boot Camp, San Antonio, Texas 2000.

• Author, Discovery Gotta Haves: Essential Ideas for Discovery in Property and SAPCR’s, Marriage Dissolution Institute 2001, Corpus Christi, Texas 2001.

• Author, Discovery, Advanced Family Law Trial Skills, West Texas Legal Services PAI Program 2001, Fort Worth, Texas.

• Author/Trainer, “Proper Drafting and Filing of Pleadings”, “Nuts & Bolts” Family Law Seminar, West Texas Legal Services PAI Program 2001, Fort Worth, Texas.

• Trainer, “Why Lawyers Lie”, “Nuts & Bolts” Family Law Seminar, West Texas Legal Services PAI Program 2001, Fort Worth, Texas.

• Presenter, Winning Trial Techniques in Property Cases, Texas Academy of Family Law Specialists Annual Trial Institute, Cancun 2002.

• Author/Trainer, “Proper Drafting and Filing of Pleadings”, 2002 Family Law Seminar, West Texas Legal Services PAI Program, Fort Worth, Texas.

• Trainer, “Why Lawyers Lie”, 2002 Family Law Seminar, West Texas Legal Services PAI Program, Fort Worth, Texas.

• Author/Speaker, Discovery & Mediation, 28th Annual Advanced Family Law Course, Family Law Boot Camp, Dallas 2002.

• Panel Member, Use and Abuse of Legal Assistants, 28th Annual Advanced Family Law Course, Dallas 2002.

• Speaker, Use and Abuse of Legal Assistants, Panhandle Family Law Bar Association November Luncheon, 2002.

• Author/Speaker, Drafting Trial Documents With An Eye Toward Winning, Advanced Family Law Drafting Course 2002, New Orleans, Louisiana 2002.

• Author/Speaker, Discovery: Tools, Techniques & Timebombs, Texas Academy of Family Law Specialists Annual Trial Institute, Cancun 2003.

• Author/Player, Associate Judge Do’s & Don’t’s, Tarrant County Family Law Bar Association, Fort Worth 2003.

• Author/Speaker, Evaluating A Custody Case, 26th Annual Marriage Dissolution Institute, Houston 2003. • Co-Director, Family Law Boot Camp, 29th Annual Advanced Family Law Seminar, San Antonio, Texas

2003. • Author, Discovery in Hard Places, 29th Annual Advanced Family Law Seminar, San Antonio, Texas 2003. • Speaker, Practicing Law For Fun & Profit, 29th Annual Advanced Family Law Seminar, San Antonio, Texas

2003. • Author/Speaker, Internet Searches for Financial & Personal Information Useful in Family Law Litigation,

Texas Academy of Family Law Specialists Annual Trial Institute, New Orleans 2004. • Moderator, Effective Courtroom Advocacy, Tarrant County Bench Bar Seminar, Lake Travis 2004 • Author/Speaker, Internet Investigation of Personal Information & Assets, Marriage Dissolution Institute, Fort

Worth 2004. • Director, Family Law Boot Camp, State Bar of Texas Annual Meeting, San Antonio 2004. • Author/Speaker, Drafting 101, Basic Drafting of Pleadings, Family Law Boot Camp, State Bar of Texas

Annual Meeting, San Antonio 2004.

• Author/Speaker, Investigation of Personal Information & Assets, Tarrant County Family Law Bar Association, Summer Bar Seminar 2004.

• Author/Speaker, Investigation of Personal Information & Assets, State Bar College “Summer School”, Galveston 2004.

• Author, The Life of a Grievance & The New Disciplinary Rules, What You Don’t Know Can Hurt You, 30th Annual Advanced Family Law Seminar, San Antonio 2004.

• Director, Family Law Boot Camp, 30th Annual Advanced Family Law Seminar, San Antonio 2004. • Author/Speaker, Drafting 101, Basic Drafting of Pleadings, Family Law Boot Camp, 30th Annual Advanced

Family Law Seminar 2004. • Director, Family Law Boot Camp, 30th Annual Advanced Family Law Seminar 2004.

Law Related Periodical/Magazine Publications • Author, “Beating Out The Big Firms”, Texas Lawyer, Vol. 18, No. 21, July 29, 2002, J. Steven King &

Heather L. King. • Interviewed/Quoted “Divorce 101”, Fort Worth Magazine, July 2003 edition.

Law Related Books • Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, Ideas & Outlines, Heather

King, Bruce Beverly & Syd Beckman (Imprimatur Press 2000). • Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, Ideas & Outlines, A Focus

on Children, Heather King, Bruce Beverly & Syd Beckman (Imprimatur Press 2002). • Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, Ideas & Outlines, A Focus

on Property, Heather King, Bruce Beverly, Syd Beckman & Randal Wilhite (Imprimatur Press 2004).

J. Steven King LLaaww OOffffiicceess ooff JJ.. SStteevveenn KKiinngg && HHeeaatthheerr LL.. KKiinngg

2900 Airport Freeway Fort Worth, Texas 76111

(817) 838-3338 / 838-3545 fax [email protected]

www.kingfamilylaw.com Education B.B.A., University of Texas at Arlington, 1971 J.D., South Texas College of Law, 1974 (Member Order of the Lytae; South Texas Bar Journal, 1973-74) Board Certified – Family Law, Texas Board of Legal Specialization 1988 (Re-certified in 1998; 2003) Professional Activities Charter Member, Texas Family Law Foundation Fellow of the American Academy of Matrimonial Lawyers Officer, American Academy of Matrimonial Lawyers, Texas Chapter Member of the International Academy of Matrimonial Lawyers Member of the Texas Academy of Family Law Specialists Council Member and Member of the Family Law Section of the State Bar of Texas, 1996 to 2002 Past Director of the Tarrant County Bar Association Past President of the Tarrant County Family Law Bar Association Past Director of the Tarrant County Family Law Bar Association Member of the College of the State Bar of Texas Member of Who’s Who Among Outstanding Americans Member, Texas Family Law Practice Checklist Committee 1997 – 1999 Awards& Recognition Recipient, Eva Barnes Award for Significant Contributions to Family Law 2001 Selected in The Best Lawyers In America 1999, 2000, 2001, 2002, 2003 and 2004 Selected as a Super Lawyer by Texas Monthly Magazine in 2003 and 2004 Law Related Seminar Publications & Participation

• Author/Speaker, Role of the Ad Litem In Allegations of Sex Abuse, Annual Advanced Family Law Course 1991.

• Author/Speaker, What To Do After A Temporary Hearing, Annual Family Law Seminar on Practical Approaches to Divorce Law 1992.

• Author/Speaker, Discovery Trends: Objections, Sanctions, and Supplementation, Advanced Family Law Course for Legal Assistants 1995.

• Author/Speaker, Preparation For The Cross-Examination of A Mental Health Expert In A Sex Abuse Allegation Custody Case, Annual Advanced Family Law Course 1996.

• Author/Speaker, An Attorney Ad Litem Is Really A Lawyer, Attorney Ad Litem Training Seminar 1997.

• Author/Speaker, Trial Preparation & Planning, “Nuts & Bolts” Protective Order Seminar 1997.

• Author/Speaker, Challenging Characterization Issues: Characterizing Trusts, Employee Stock Options, Workman’s Compensation Claims, And Intellectual Property, Advanced Family Law Course 1997.

• Author/Speaker, Some Changes To The Texas Family Code, Blackstone Seminar 1998.

• Participant, Trial of JMC vs. Sole MC & Disputed Allocation of Rights and Duties, Advanced Family Law Course 1998.

• Moderator, The New Rules of Discovery, State Bar of Texas, Dallas 1999. • Author/Speaker, The Potential Effect of The New Texas Family Law Legislation

Regarding Proportional Ownership, Equitable Interests, Division Under Special Circumstances, & A Look At New Legislative Provisions For Transmutation Agreements, Advanced Family Law Course 1999.

• Author/Speaker, Discovery In Property Cases Under The New Rules, Advanced Family Law Course, Houston, Texas 1999.

• Author/Speaker, When A Jury Is Needed; Voir Dire, Nuts and Bolts, Family Law Seminar, Fort Worth, Texas, 2000.

• Speaker, Business Valuations, 26th Annual Advanced Family Law Course, San Antonio, Texas 2000.

• Author/Speaker, Discovery Gotta Haves: Essential Discovery Ideas for Property and SAPCR’s, Marriage Dissolution Institute 2001, Corpus Christi, Texas.

• Author/Trainer, Discovery, Advanced Family Law Trial Skills, West Texas Legal Services PAI Program 2001, Fort Worth, Texas.

• Panel Speaker, Closing the File, Including Closing Documents, 27th Annual Advanced Family Law Court, San Antonio, Texas 2001.

• Speaker, Winning Trial Techniques in Property Cases, Texas Academy of Family Law Specialists Annual Seminar, Cancun 2002.

• Speaker, ”The Child’s Voice”, A Symposium On The Child’s Involvement In Parenting Plan Orders. September 27, 2002.

• Author/Speaker, Drafting Trial Documents With An Eye Toward Winning, Advanced Family Law Drafting Course 2002, New Orleans, Louisiana 2002.

• Author/Speaker, Discovery: Tools, Techniques & Timebombs, Texas Academy of Family Law Specialists Annual Trial Institute, Cancun 2003.

• Player, Associate Judge Do’s & Don’t’s, Tarrant County Family Law Bar Association, Fort Worth 2003.

• Speaker, Evaluating A Custody Case, 26th Annual Marriage Dissolution Institute, Houston 2003.

• Speaker, Evidence, 29th Annual Advanced Family Law Seminar, San Antonio 2003.

• Speaker, _______________________________, Texas Academy of Family Law Specialists Trial Institute, New Orleans 2004.

Law Related Periodical/Magazine Publications

• Author, “Beating Out The Big Firms”, Texas Lawyer, Vol. 18, No. 21, July 29, 2002.

Advanced CYA For The Family Law Attorney Chapter 7

Table of Contents

I. Introduction …………………………………………………………………….. 5 II. Preventative Action ……………………………………………………………... 5

A. Efficient Calendaring …………………………………………………… 5 1. Attentive Staff ………………………………………………….. 5 2. Pre-Date Tickle Calendaring …………………………………… 6 3. Back Up Calendaring …………………………………………… 6

B. Written Communication With Client ……………………………………. 6 1. Welcome Letter …………………………………………………. 6 2. Introduction to Lawsuit Letter …………………………………... 6 3. Get Ready for Court / Rules for Testifying Letter ………………. 7

C. Be Prepared, Or At Least Look That Way ………………………………. 7 D. Save Compliments ………………………………………………………. 7

III. Discovery Response Failures …………………………………………………….. 7 A. Discovery Calendar ……………………………………………………… 7 B. Discovery Related Letters ……………………………………………….. 8 1. Initial Discovery Letter …………………………………………. 8 2. Reminder Letter ………………………………………………… 8 3. Client Waives Discovery, The CYA Letter ……………………. 8 4. Deposition Letter ………………………………………………. 8 C. Dealing With Discovery Failures ……………………………………….. 8 1. Early Detection …………………………………………………. 8 a. Rule 11 Agreement …………………………………….. 8 b. Motion to Extend Time to Respond …………………… 8 2. Last Minute Panic – Avoiding the Exclusion of Evidence ……... 8 a. Opposing Counsel ……………………………………… 8 b. Move For Continuance …………………………………. 9 c. Understand the Rules of Sanctions ……………………... 9 1). TRCP 215 ……………………………………... 9 2). Application of TRCP 215 ……………………… 9 a). Death Penalty Sanctions ………………. 9 b). Suits Affecting The Parent-Child Relationship ……………... 10 3. Good Cause ……………………………………………………… 10 a. Cases Where Good Cause Found To Exist ……………... 10 b. Cases Where Good Cause Found Not To Exist ………… 10 c. Make a Good Cause Record …………………………….. 11 4. Deemed Admissions ……………………………………………… 11

a. Express the Import of Timely Admission Responses To Your Client …………………………………………… 11

b. Ask for An Extension ……………………………………. 12 c. Respond Without Your Client’s Input …………………… 12 d. Dealing With Your Client’s Deemed Admissions ……….. 12

1). Move to Extend Time to Respond ………………. 12 2). Move to Withdraw or Amend Deemed Admissions …………………………….. 12

a). Form of Motion ………………………… 12 b). Burden & Analysis ……………………… 12 c). Standard of Review ……………………… 13


3). Argue Deemed Admission Outside Scope of Discovery …………………………………….. 13 4). Argue Reliance on Admission Waived …………. 13

5. Sending Discovery ………………………………………………… 13 a. Uncontested Divorce ……………………………………… 13 b. Pro Se Parties ……………………………………………… 14

IV. Suppressing Deposition Transcripts ………………………………………………… 14 V. Inventories, The Double Whammy CYA …………………………………………… 14 VI. Suppressing Social Studies ………………………………………………………….. 14 VII. Pleading Failures …………………………………………………………………….. 15

A. Mandatory Pleadings in Family Law ………………………………………... 15 B. Trial Amendments …………………………………………………………… 15

1. Move For a Continuance ……………………………………………. 15 2. Seek Admission of The Evidence …………………………………... 16 3. Make a Written Motion ……………………………………………… 16

C. Burden & Analysis …………………………………………………………… 16 1. Non-Mandatory Trial Amendment ………………………………….. 16 2. Mandatory Trial Amendment ………………………………………... 16

VIII. The Lying Client …………………………………………………………………….. 17 IX. Withdrawing From The Case ………………………………………………………… 17

A. Timing of Withdrawal ……………………………………………………….. 17 1. Proper Form of Motion and Order ………………………………….. 17 2. Request Continuance or Extension if Near Deadline Prior

To Withdrawing …………………………………………………….. 18 3. Notice of Intent to Withdraw ………………………………………... 18 4. Make a Record ………………………………………………………. 18

X. Accidental Disclosure of Confidential Information / Snap Back Rule ……………….. 18 XI. Make a Good Record ………………………………………………………………….. 19 XII. Closing CYA ………………………………………………………………………….. 19

A. Get Your Closing Documents Done ………………………………………….. 19 B. Bankruptcy ……………………………………………………………………. 19 C. Outside Contracts …………………………………………………………… 19 D. Thirty Day Letter …………………………………………………………….. 19 E. Closing File Letter …………………………………………………………… 19 F. Filing Documents With Deed Records ………………………………………. 19

1. Real Estate Closing Documents ……………………………………… 19 2. Judgments ……………………………………………………………. 20

XIII. Conclusion …………………………………………………………………………….. 20 APPENDIX #1 [Welcome Letter] …………………………………………………………….. 21 APPENDIX #2 [Introduction to Lawsuit Letter] ……………………………………………… 23 APPENDIX #3 [Get Ready for Court Letter] …………………………………………………. 24 APPENDIX #4 [Rules for Testifying Letter] …………………………………………………. 25


APPENDIX #5 [Initial Discovery Letter] …………………………………………………….. 28 APPENDIX #6 [Reminder Letter] ……………………………………………………………. 30 APPENDIX #7 [Client Waives Discovery, the CYA Letter] ………………………………… 31 APPENDIX #8 [Deposition Letter] …………………………………………………………… 32 APPENDIX #9 [Rule 11 Agreement] …………………………………………………………. 33 APPENDIX #10 [Motion to Extend Time to Respond] ………………………………………. 34 APPENDIX #11 [Order on Motion to Extend Time to Respond] …………………………….. 36 APPENDIX #12 [Admission Letter] …………………………………………………………. 37 APPENDIX #13 [Admission Reminder Letter] ……………………………………………… 38 APPENDIX #14 [Motion to Withdraw or Amend Deemed Admissions] ……………………. 39 APPENDIX #15 [Order on Motion to Withdraw or Amend Deemed Admissions] ………….. 41 APPENDIX #16 [Motion to Suppress Deposition] …………………………………………… 42 APPENDIX #17 [Request for Amendment to Pleading] ……………………………………… 43 APPENDIX #18 [Order on Request for Trial Amendment] …………………………………… 44 APPENDIX #19 [Motion for Withdrawal of Counsel] ………………………………………… 45 APPENDIX #20 [Order on Motion for Withdrawal of Counsel] ……………………………… 49 APPENDIX #21 [Bankruptcy CYA Letter] …………………………………………………… 50 APPENDIX #22 [Outside Contract CYA Letter] ……………………………………………… 51 APPENDIX #23 [Thirty Day Letter] …………………………………………………………… 52 APPENDIX #24 [Closing File Letter] …………………………………………………………. 53


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ADVANCED CCYYAA FOR THE FAMILY LAW ATTORNEY

J. Steven King & Heather L. King

I. Introduction. Remember all those malpractice nightmares

that flashed through your mind while lying awake on sleepless nights during which your noggin would not otherwise shut down? You’ve been called to trial and simultaneously realized that your discovery responses are incomplete and time has run out to supplement. Will you suffer through sanctions? Will your case survive exclusion of the evidence that was not supplemented? You’ve failed to list your most important expert witness. Can he or she still testify? You’re not prepared and your client isn’t willing to pay for the cost of preparation. Is there still time to safely withdraw? You’ve inherited deemed admissions from your prior counsel or ill-advised previously pro se client. Are you stuck with them? A client whose divorce you completed years ago has called complaining that she cannot collect the funds awarded to her because her ex-spouse has filed for bankruptcy. She blames you for not warning her of this possibility and claims that she would have never agreed to the payoff method has she been aware of the dangers. Could this problem have been avoided? Your client’s spouse agreed to pay off the Mastercard in both parties’ names, but now has failed to do so. Your client doesn’t understand why she might be stuck with this bill in light of the language in her divorce decree, and she now holds you responsible. Could this misunderstanding have been averted?

The purpose of this Article is to enable you not only to protect your law license, but to avoid such problems in the future by covering the part of your back on which you rest in sitting (the politically correct term for your behind). If you are smart, you will begin covering yourself early in the case. On the other hand, if you or your predecessor counsel are not so smart or not so lucky, there are ways you can attempt to dig yourself out of the legal quagmire known as sanctions (particularly in the form of evidence exclusion) and proceed with your case. There are ways that you can warn your client of the potential side effects of divorce and the potential ineffectiveness of a divorce decree. You too can survive, if you learn to CCYYAA. II. Preventative Action

As we’ve been taught since childhood, in all things in life, the best defense is a good offense. Plan ahead. See the writing on the wall before it hits you in the face. Your client should be made aware immediately of your responsibilities and his or her

responsibilities. Your staff should be constantly reminded of the import of organization and preparation to your law license, and how if you don’t have a license, they won’t have a job. If you don’t see the kind of urgency in your staff’s conduct as you personally feel about the case, then you should give strong consideration to re-evaluating who is working for you. A. Efficient Calendaring

Most attorney problems arise from failing to timely meet deadlines, either due to their own calendaring problems or their client’s lack of timely response or understanding of the import of the task given the client. This problem can be easily resolved, or at least you can protect yourself, with an efficient calendaring system. An efficient calendaring system is not just about great software. It’s about attentive staff and an effective system of keeping track of deadlines and self-warning when deadlines are fast approaching. 1. Attentive Staff

The person who opens your mail should be responsible for calendaring every date, of any kind, that is found on any document that arrives at your office. They should be trained to find dates that otherwise might be obscured, by thoroughly and completely reviewing all documents from front to back. For example, a pre-trial order or other order or Associate Judge’s recommendation may contain a new hearing date, or other deadline or trial date within the document, that is not otherwise readily visible. Your staff should be trained to look through everything to make certain that nothing is missed. The person(s) handling your calendar should be well educated in calculating a discovery deadlines based upon the manner and date of the discovery documents service on your client1, as well as trial related deadlines, such as deadlines to amend pleadings or complete discovery. (Discovery calendaring has been set out separate in the Discovery section below). Finally, this person should keep you aware of all pending deadlines.

1 Thirty days from date of receipt if by fax or hand delivery. TRCP 196.2(a); Thirty-three days from date of receipt if received by mail. Wheeler v. Green, 119 S.W.3d 887, 891 (Tex.App.-Dallas 2003, pet. filed); and fifty days if served on the client concurrently with the original petition. TRCP 194.3, 196.2, 196.7, 198.2.

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=119&edition=S.W.3d&page=887&id=8422_01



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2. Pre-Date Tickle Calendaring Calendaring the due date is not enough.

Always give a tickle date at least a week in advance for important deadlines, to make certain your office is not stuck in a last minute hustle to get something done. We all know in everything in life, including your divorce practice, last minute work tends to be of lower quality, thus carrying with it higher risks of mistakes. Additionally, if the client is remiss in timely gathering the information, they need to be notified of pending deadlines well in advance, as opposed to a last minute phone call the morning of the due date. Clients tend to think of us as being able to solve all problems in their case, particularly deadlines. If the client is in denial of the urgency of addressing his or her family law litigation, the client may just avoid his or her responsibilities completely, assuming you will cover his or her back. It’s imperative that you make clear to the client the risk of an untimely response. 3. Back Up Calendaring

There should be a back up calendaring rule in your office comprised of two very important rules. First, any person (regardless of that person’s job description or work responsibilities) who comes across a document that has a deadline or due date of any type should automatically double-check and make certain that the date has been properly recorded in the calendaring system, including pre-date tickle calendaring discussed above. For example, if legal secretary #1 is in charge of opening your mail and calendaring deadlines, and paralegal #2 is then given the paperwork to begin preparation of a response, paralegal #2 should also double check your calendar to make certain all dates are calendared. If paralegal #2 discovers that a date has been missed, then it will be paralegal #2’s responsibility to not only calendar the date, but also let legal secretary #1 know that the date has been missed, so he or she can send the appropriate letters, if applicable. Second, a family law attorney’s calendar is in constant liquid motions, with hearings being set and postponed and re-set constantly. From one day to the next, if you are like most family law attorneys, your calendar is probably never the same. If your computer calendaring system fails, your Palm Pilot is worthless to you, unless you’ve kept it synchronized religiously. If you haven’t joined the world of computer calendaring yet (Come on people!), there is still always a risk that the calendar might be misplaced the next time you take it to the courthouse. Thus, there should always be a paper calendar to back up your computer (or primary paper) calendar, helping to avoid panic when your computer system goes down. This is an excellent job for the office receptionist.

B. Written Communication With Client Another type of preventative action is written

communication with the client. Some lawyers disagree on how much we should put in writing. One side of the argument being that writing it down just gives the client more ammunition to attack you later, and the other side being that it strengthens your defense against them. It’s a decision you have to make on your own, based upon the way you run your practice. One inarguable benefit of letter writing is that it definitely keeps your client satisfied that you are working on and/or thinking about his or her case on a regular basis. Below are some examples of written communication that can occur early on in the case. These types of communications should be automatically sent, without your instruction. 1. Welcome Letter [Appendix # 1]

Immediately upon your being hired, you should forward your client a welcoming letter, letting your client know about how your office is run. It should include information about your office hours (including holidays and reference to the occasional vacation and seminar) and policies, and most important, it should address your preferred methods of communication. Warn your client in advance if you are a busy litigator and in court often. Let them know that they will be communicating frequently with your staff, and assure them that such communications will be forwarded to you quickly and efficiently. This will reduce the frequency of client complaints of failure to communicate directly with the lawyer. Most clients are satisfied with passing messages through staff, particularly because the cost to them is less, so long as the occasional client to lawyer phone call or meeting occurs. Alert your client to the importance of leaving thorough messages, and following up on emails, voicemails, faxes or letters directed to you, to make certain they’ve been received. Most importantly, tell your client to make certain he or she conveys to your staff when they need a face to face or personal phone call, instead of letting anger or resentment grow. Such anger in lack of communication is often misplaced and can be avoided if addressed right from the beginning. Your staff should be trained to send this letter immediately, without instruction. 2. Introduction to Lawsuit Letter

[Appendix # 2] Once the suit is filed (or once you’re made

aware of where the case is pending), if the case is in it’s initial phases, send a letter to the client outlining the Court in which the case is pending, who the presiding judge and associate judge are, as well as where the Court is located. If this particular Court has any special local rules or traits the client should be


7

aware of, include this information as well. You should have a canned letter prepared for each court, and, like the welcoming letter, your staff should be instructed to send this letter immediately, without further instruction.

3. Get Ready For Court / Rules for Testifying

Letter [Appendices # 3& 4] The typical family law attorney (especially in

larger jurisdictions) is in court on a daily basis, often with multiple hearings set concurrently. This leaves little time to woodshed clients on a regular basis, particularly for temporary hearings. Certainly, bringing your client in for one-on-one preparation is the best bet. They feel better and you feel better. However, if you don’t have time, at least send a letter outlining what the client should expect from you and the court system, and what’s expected of them. Let them know if an in-chambers conference is the most likely occurrence, so they can begin to digest the idea that they will not be privy to what is happening in the judge’s office. Explain to them the import of a judge’s “recommendation” or “wisdom”, and the ill-advisability of challenging it. Discuss a bench conference or hearing versus an evidentiary hearing. If an evidentiary hearing is a possibility, send a separate letter outlining rules for testifying [Appendix # 4]. Have your client prepare and send to you a time line of events that they deem significant as having lead up to the current status. These are extremely useful in cross-examination, and make the client feel like they’ve participated in the litigation process. Finally, make sure your client provides the necessary documents to you to allow you to prepare for court. Simple written communications can address all of these matters, and the client will have no one left to blame but him or herself for failure to provide you the requested information.

C. Be Prepared, Or At Least Look That Way

The emotional impact of family law litigation is cause for a larger than normal number of attorney substitutions. Rarely does a party “win” in family law court, and most often both parties leave the courtroom dissatisfied to a certain extent. It’s not all that uncommon for a person to change lawyers at least once, often twice, during the pendency of a family law case. Ninety-Nine percent of the time, the perceived mis-direction of the case is due to the client’s actions, not the lawyers. Nonetheless, the client will blame the lawyer. One of the chief complaints of clients during interviews with potential replacement lawyers is that the client felt their lawyer was not prepared at the hearing (“The other guy had a bunch of notebooks, and all my lawyer had was a legal pad. He was obviously not prepared.” “The other lawyer kept objecting, and

my lawyer didn’t say a thing.”). We all prepare differently, and we all have our own special style of litigation. Some of us shoot from the hip, and are great at it… and at the other end of the spectrum are those of us who write every single word down, including a noted “pause for effect.” Some of us object repeatedly, and some of us think when a record is not being made and a judge is losing patience with objections, we need to shut up. Whichever type you are, or if you fall somewhere in between, make sure that you at least give an appearance of preparedness. Make certain your file appears organized and you know where to locate documents. If your litigation schedule does not permit you the usual time necessary to review a file to make certain your familiar with its contents, bring the paralegal who put the file together. He or she can find the items for you. Bring your rule books, and the Family Law Toolkit produced and sold by the State Bar of Texas, Family Law Section is a most valuable trial aid, assisting in objections and predicate. No matter what the outcome of the hearing, if your client thinks you’ve done your best, they shouldn’t have a complaint about you. D. Save Compliments

Finally, if your client sends you a note or email, or leaves you a voice mail thanking you for your good work, save it! Keep it in the file. You might need it later. Clients tend to be rather schizophrenic about their satisfaction levels during the pendency of family law litigation, especially divorce. III. Discovery Response Failures

Clearly, failure to timely respond to discovery may be devastating to your case as a result of exclusion of evidence, striking pleadings and even dismissing the case, not to mention costs and attorneys fees.2 Although issues relating to the parent-child relationship might receive some slack from the harshness of sanctions (discussed at length below), don’t count on it to save you or your client (at least not completely) from discovery response failures. A. Discovery Calendar

As stated above, it is imperative for every attorney to have an efficient calendaring system. In order to avoid confusion of discovery deadlines with other deadlines, discovery matters should also be kept on a separate calendar (in addition to the primary calendar and back up calendar). An excellent method of keeping track of discovery is using a four month large dry erase wall calendar used for discovery deadlines only, color-coded for the various types of

2 TRCP 215.


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dates (such as a discovery response deadline, discovery completion deadline, and discovery due dates to your office). If you can afford it, a separate paralegal (part or full-time) who specializes only in monitoring, preparing and responding to outgoing and incoming discovery is an extremely valuable asset to the office. B. Discovery Related Letters

There are few letters more important to CCYYAA than the letters that accompany discovery. A clients failure to timely provide you with the information you need to respond is one of the most common cause of discovery response failures. 1. Initial Discovery Letter

[Appendix # 5] When discovery is first received at your office,

it should be immediately sent to the client with a special form letter outlining the definition of what the client is receiving, what the client’s responsibility is, when the discovery is due (to your office and to the opposing party), and, most importantly, why completing the discovery within the designated time period is so important to the case. 2. Reminder Letter [Appendix # 6]

A discovery reminder letter should be sent if the client does not comply with the first response deadline (of providing the information to your office), strongly emphasizing the importance of a timely response and the potentially devastating effect on the case if discovery responses are not timely sent. 3. Client Waives Discovery, The CCYYAA Letter

[Appendix # 7] If your client decides to proceed forward in

finalizing his or her divorce without the benefit of conducting formal discovery, make certain they sign correspondence clarifying the rights they are waiving before the decree is entered. Keep the letter in your file for future protection from complaints of existing assets that were misvalued, or not discovered and thus not divided. 4. Deposition Letter [Appendix # 8]

If your client is noticed for deposition, send a letter explaining the basics of a deposition to your client. Make certain they understand the limited availability of depositions and client conferences. Explain that they may be asked to respond to questions that might otherwise not be admissible in trial, but they must do so anyway. Clarify the possibility of your instruction not to answer the question, and the extremely limited availability of this option. In other words, make it known to them that the deposition is a much freer forum for obtaining information than most

folks who watch too much lawyer television or haven’t been deposed since 1999 might expect. C. Dealing with the Discovery Failures 1. Early Detection

If discovery failure was a disease, early detection would be the best chance for a cure. Your best bet is to deal with the problem well before the matter is called to trial. a. Rule 11 Agreement

The minute you realize that you are not going to be able to respond to the discovery, ask your opponent for an extension. If they agree, immediately prepare and fax to them a Rule 11 agreement firming up the extension and new deadline. [Appendix # 9]. The minute you get it back, file it with the Court. Do not rely on your opponent’s oral agreement, not because they are not trustworthy (as most of our opponents are), but rather because another attorney may eventually substitute in the current attorney’s place who will not honor or recognize the informal agreement. Then you will be stuck, as oral agreements to extend discovery are insufficient to save you from sanctions.3 b. Motion to Extend Time To Respond

If your opponent refuses to agree to an extension, prepare and file a motion for such extension, and make certain the same is considered and ruled on before the discovery deadline passes. [Appendices # 10 & 11] A first request within a reasonable time prior to trial will probably be granted. If this is not your first request, or trial is looming, don’t count on it. 2. Last Minute Panic – Avoiding The

Exclusion of Evidence If you do find yourself in the unfortunate

position of being called to trial without having complied with the discovery process, there are a few actions to consider before the panic phase ensues: a. Opposing Counsel

If you think that your opposing attorney may consider sparing you from being dropped in the frying pan during trial, talk to him or her. Can you reach a gentlemen’s agreement to allow in certain essential evidence? If that’s not possible because your opponent’s back is against the wall, would he or she consider an in-chambers conference to deal with the

3 Rendon v. Avance, 67 S.W.3d 303 (Tex.App.-Fort Worth Dec 06, 2001), review granted, cause remanded May 9, 2002.



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matter? These scenarios are yet another reason why you should always give as much consideration as possible to your opponent when he or she is in a similar position. Some day you may need assistance (what comes around goes around). Often matters that might otherwise be devastating to your case can be dealt with in a manner that is fair to both clients, without ethical violations. Regardless, make certain that the minute you discover the information that should have been provided to opposing counsel, you provide that information, regardless of the timeframe. b. Move for Continuance

The minute you become concurrently aware of a trial setting and your discovery failure file a written motion for continuance, and keep in mind that it must be verified, or denial of it is presumed not to be an abuse of discretion.4 Trial courts are not without the power to avoid injustice.5 When a party fails to identify evidence in response to a discovery request in a timely manner, the trial court has the discretion to postpone the trial by continuance.6 Sanctions for failure to supplement a discovery request do not survive if the trial is continued.7 Make certain to request sufficient time to cure your discovery failure within the designated discovery completion time period. If a trial setting is moved more than thirty days from the date of the original trial date, the automatic exclusion of evidence provided for in TRCP 215(5) does not continue beyond the resetting of the trial date, unless the exclusion of such evidence is based on a trial court’s ruling or some other sanctionable conduct of the party.8 c. Understand the Rules of Sanctions

If all else fails and you find yourself defending an objection to admission of information based on your discovery failure, know the law and be prepared to use the law to argue in your favor.

4 Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). 5 Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911 (Tex. Mar 11, 1992), rehearing of cause overruled (Mar 11, 1992). 6 Id. At 915. 7 H.B. Zachry Co. v. Gonzalez, 847 S.W.2d 246 (Tex. Feb 03, 1993), rehearing of cause overruled (Mar 03, 1993). 8 Id. At 246.

1). TRCP 215

Rule 215 of the TEXAS RULES OF CIVIL PROCEDURE invests Texas courts with power to impose sanctions for failure to comply with the discovery process.9 Rule 215.2 allows the imposition of sanctions for failure to comply with a trial court’s order or a party’s discovery request.10 Rule 215.3 gives a trial court the authority to impose sanctions for abuse of the discovery process.11 Finally, Rule 215.5 authorizes court to impose sanctions against a party that fails to properly respond to or supplement discovery requests.12 2). Application of TRCP 215

There is a four prong test to determine if discovery sanctions are just under Rule 215(2). First, a direct relationship must exist between the offensive conduct and the sanction imposed.13 The sanction must be directed against the abuse and toward remedying the prejudice caused the innocent party, and should be visited upon the offender.14 Second, a just sanction should not be excessive.15 A sanction for discovery abuse should be no more severe than necessary to satisfy it’s legitimate purposes.16 For example, a sanction to strike pleadings should not be imposed absent a party’s flagrant bad faith or counsel’s callous disregard for discovery.17 a). Death Penalty Sanctions

When dealing with the dreaded death penalty sanction (striking pleadings), a third and fourth prong are added to the test, that being the lack of availability of a lesser sanction and the sanction being more severe than necessary.18 Keep in mind that the Court should

9 TRCP 215. 10 TRCP 215.2. 11 TRCP 215.3. 12 TRCP 215.5. 13 TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. Jun 19, 1991). 14 Id. At 917. 15 Id. 16 Id. 17 Id. At 917-918. 18 Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex. Oct 14, 1992), rehearing of cause overruled (Dec 31, 1992), rehearing dismissed (Jan 27, 1993).








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not use death penalty sanctions to adjudicate the merits of a party’s claim or defenses, unless the party’s failure to comply with the discovery process creates a justification that the party’s claims within the case totally lack merit.19 b). Suits Affecting The Parent-Child

Relationship As we all know, in family law, the court’s

primary consideration is always the best interest of the child.20 This best interest of a child is something that you should always urge the court to consider when discovery sanctions are in the air. Case law states that compared to the best interest of the child, technical rules of pleading and practice are of little importance in determining child custody issues.21 This is also true with Rule 215 discovery sanctions.22 The exclusion of essential evidence, like the striking of pleadings, may often equate a death penalty sanction, and should not be used without considering whether a lesser sanction would be adequate.23 In applying this rationale to cases involving the best interest of a child, the court’s decision must be as well informed as the law will allow.24 “A decision on custody, possession or access can rarely be well informed without consideration of the evidence and perspectives of both parents.”25 Thus, it has been held that the exclusion of important evidence can only produce a less-informed decision contrary to the best interest of the child.26 Such a sanction should only occur where a lesser sanction is impracticable or after already having been attempted, has proven unsuccessful.27

19 Transamerica at 918. 20 In re P.M.B., 2 S.W.3d 618 (Tex.App.-Hous. (14 Dist.) Aug 31, 1999) citing Tex. Fam. Code 153.002. 21 Id. At 624 citing Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.1967); Cohen v. Sims, 830 S.W.2d 285, 288 (Tex.App.-Houston [14 th Dist.] 1992, writ denied). 22 Id. citing Saxton v. Daggett, 864 S.W.2d 729, 735 (Tex.App.-Houston [1 st Dist.] 1993, no writ). 23 Id. citing In re Striegler, 915 S.W.2d 629, 643 (Tex.App.-Amarillo 1996, writ denied). 24 Id. at 624-25. 25 Id. 26 Id. at 625. 27 Id.

3. Good Cause When a litigant fails to timely designate a

witness or expert witness in response to an appropriate interrogatory, the trial court must exclude evidence form the witness or expert unless the offending party can demonstrate good cause. Thus, if a litigant can show good cause for failing to timely respond to a discovery request, the litigant can still introduce the late evidence at trial.

a. Cases Where Good Cause Found to Exist 1). Testimony of unnamed but clearly identifiable witnesses may be allowed when the identity of the witness is certain, and when his or her personal knowledge of relevant facts has been communicated to all other parties through pleadings and timely response to other discovery.28 2). A deposed witness whose identity is not included in discovery responses may still be allowed to testify.29 3). A witness who is clearly identified in one discovery response, but not another in which he or she should have been included may still be allowed to testify.30 4). A witness who is designated as soon as practicable may still be allowed to testify.31 b. Cases Where Good Cause is Not Found to

Exist 1). Late discovery of a witness is not good cause sufficient to excuse the duty to supplement.32 2). Absence of surprise does not equate to good cause.33

28 Smith v. Southwest Feed Yards, 835 S.W.2d 89 (Tex. Jun 24, 1992). 29 Henry S. Miller Co. v. Bynum, 836 S.W.2d 160 (Tex. Jul 01, 1992), rehearing of cause overruled (Oct 07, 1992). 30 Rogers v. Stell, 835 S.W.2d 100 (Tex. Jul 01, 1992). 31 Forman v. Fina Oil and Chemical Co., 858 S.W.2d 373 (Tex. Jun 30, 1993) (NO. D-3564), rehearing of cause overruled (Sep 10, 1993). 32 Yeldell v. Holiday Hills Retirement and Nursing Center, Inc., 701 S.W.2d 243 (Tex. Dec 11, 1985).













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3). Availability of a valid objection to discovery object is not good cause for failing to supplement.34 4). “Great harm” in excluding testimony does not create good cause not to exclude it.35 5). An expert witness’s “special knowledge” of the facts does not create good cause sufficient to allow late supplementation of discovery.36 6). Difficulty in locating a witness does not mean good cause in failing to identify the witness in your discovery responses.37 7). Inadvertent failure to supplement is not good cause, nor is just telling the other lawyer who will be testifying (without writing it down).38 c. Make a Good “Good Cause” Record

If you find yourself attempting to prove good cause, make a record that establishes good cause for the failure to timely or fully supplement the discovery response. Rule 215.5 requires a showing of good cause on the record.39 Immediately begin creating evidence to show the trial court that opposing counsel was apprised of the information as soon as possible. When trying to establish good cause, focus on the two controlling factors: lack of surprise and lack of prejudice. 4. Deemed Admissions

Rule 198 of the TEXAS RULES OF CIVIL PROCEDURE governs requests for admissions and provides that a matter is deemed admitted, without the necessity of a court order, unless a written answer or

33 Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. Jul 16, 1986). 34 Gutierrez v. Dallas Independent School Dist., 729 S.W.2d 691, 39 Ed. Law Rep. 898 (Tex. May 13, 1987). 35 Boothe v. Hausler, 766 S.W.2d 788 (Tex. Mar 08, 1989). 36 Clark v. Trailways, Inc., 774 S.W.2d 644 (Tex. May 31, 1989). 37 Id. 38 Sharp v. Broadway Nat. Bank, 784 S.W.2d 669 (Tex. Feb 14, 1990), rehearing of cause overruled (Mar 21, 1990). 39 TRCP 215.5.

objection is timely filed.40 Thus, no action is required on the party of either party for an admission to be deemed admitted. If you fail to respond, object, or ask for more time to respond or object, the admission is deemed admitted by operation of law, and under such circumstances, the trial court has no discretion to decide otherwise.41 The effect of a deemed admission may be devastating, conclusively establishing the facts deemed admitted against the party who did not respond, thus supporting summary judgment or prohibiting the introduction of evidence controverting the deemed admission.42 a. Express the Import of Timely Admission

Responses to Your Client The original correspondence accompanying the request for admissions when first sent to the client should clearly point out the danger of failing to give the matter the attention it deserves. [Appendix # 12]. The caveat here is that such a letter also points out to the client the severity of the matter should you drop the ball. You have to weigh your own priorities when deciding how to address this matter with your client. If, despite your initial warning, your client is the cause of a potential delay in responding to admissions, make certain to send another letter to the client explaining the severity of the potential result of your client’s inattentiveness to the request for admissions propounded upon him or her (same caveat as above). [Appendix # 13]. All your efforts notwithstanding, if your client continues to ignore the import of his or her discovery responses, you should give strong consideration to withdrawing from the case.

40 TRCP 198.2(c); also generally, thirty days from date of service is the required response time. TRCP 198.2(a). However, service of admissions by mail allows 33 days to respond. See TRCP 21a & 198.2(a); Wheeler v. Green, 119 S.W.3d 887, 891 (Tex.App.-Dallas 2003, pet. filed); and service of admissions along with the original lawsuit and citation allows 50 days to respond. TRCP 198.2(a). 41 Gonzales v. Surplus Ins. Servs., 863 S.W.2d 96, 99 (Tex. App. – Beaumont 1993, writ denied); Barker v. Harrison, 752 S.W.2d 154, 155 (Tex. App. – Houston [1st dist.] 1988, writ dism’d w.o.j.); Curry v. Clayton, 715 S.W.2d 77, 79 (Tex. App. – Dallas 1986, no writ); Cartwright v. Mbank, 865 SW.2d 546, 550 (Tex. App. – Corpus Christi 1993, no writ); Sattrfield v. Huff, 768 S.W.2d 839, 840 (Tex. App. – Austin, 1989, writ denied); Pathfinder Personnel Serv., Inc. v. Worsham, 619 S.W.2d 475, 476 (Tex. App. – Houston [14th Dist.] 1981, no writ). 42 Gonzales at 99; Marshall v. Vise, 767 S.W.2d 699, 700; Resolution Trust v. Thurlow, 820 S.W.2d 51, 53 (Tex. App. – San Antonio 1991, no writ).




















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b. Ask for An Extension If you become aware that an extension may be

necessary, make sure to request the same from opposing counsel before filing a formal motion, and if he or she agrees, prepare a letter commemorating the agreement via Rule 11 of the TEXAS RULES OF CIVIL PROCEDURE. [Appendix # 9]. Even if your opponent is trustworthy (and most are), an oral agreement is most likely not sufficient by itself to set aside deemed admissions. c. Respond Without Your Client’s Input

If a requested extension is denied and/or your client does not timely provided suggested responses within a time frame to request a court-ordered extension, and you do not have the time (or desire) to withdraw from the case, it may be advisable for you to prepare your client’s admission responses without the benefit of your client’s input. In some instances, an across the board denial may be your only alternative (but beware of sanctions for making such a response without a darn good excuse). d. Dealing with Your Client’s Deemed

Admissions 1). Move To Extend Time to Respond

If you are within your designated time period to respond to the admission43 but cannot timely answer. Immediately file a written motion to extend your response time. [See Appendices # 10 and # 11]. A request for extension of time to respond or object to a request for admissions must be filed within the original response time period.44 The court has discretion to allow as much additional time as the court deems reasonable under the circumstances of the case. 2). Move To Withdraw or Amend Deemed

Admissions a). Form of Motion.

If your time to respond has expired, first file a motion to withdraw or amend the deemed admissions [See Appendices # 14 and # 15], and such motion must be filed in order for the Court to give any discretion in making a decision related thereto.45 Since the court will consider prejudice to the opposing party in ruling in the motion, it should be filed as soon as the moving party could have or should have know that such 43 See Footnote 1 supra. 44 Cudd v. Hydrostatic Transmission Inc., 867 S.W.2d 101 (Tex. App. – Corpus Christi 1993). 45 Pathfinder Personnel Serv. Inc. at 476.

admissions were deemed admitted, as opposed to laying behind the log until the time of trial.46 b). Burden & Analysis

The burden rests on the party seeking to withdraw or amend the deemed admissions to prove to the trial court that:

i. Good cause exists for failure to timely respond

to the admissions; and ii. The opposing party is not unduly prejudiced in

his or her cause of action by withdrawing or amending the deemed admissions; and

iii. Withdrawal or amendment of the deemed

admissions serves presentation of the merits of the case.47

These claims are not independent of each other, and each of the three elements must be proven true in order to allow withdrawal or amendment of the admissions.48 The court should consider all circumstances, including, without limitation, evidence of discovery evasion, bad timing and bad faith on filing the motion (not only on the part of the party, but also the party’s lawyer).49 The failure to respond must not be a result of intentional or conscious indifference.50 Good cause relies heavily on timing. “Where the motion for relief is filed promptly and results in no undue prejudice and no purposeful delay, the deemed admissions should be withdrawn. On the other hand, a motion filed either on the day of trial or a significant time after the responses are due, will generally not be considered timely, and good cause will not exist for withdrawing deemed

46 Employers Ins. Of Wausau v. Halton, 792 S.W.2d 462, 464 (Tex. App. – Dallas 1990, writ denied). 47 TRCP 198. 48 Tinney v. Team Bank, 819 S.W.2d 560, 562 (Tex. App.-Fort Worth 1991, writ denied); Boone v. Texas Employers Ins. Ass'n, 790 S.W.2d 683, 689 (Tex. App.-Tyler 1990, no writ); Fiberboard Corp. v. Pool, 813 S.W.2d 658, 682 (Tex. App.-Texarkana 1991, writ denied), cert. denied, 113 S. Ct. 3037 (1993).; Matelski v. Matelski, 840 S.W.2d 124, 128 (Tex. App.-Fort Worth 1992, no writ). 49 Esparza v. Diaz, 802 S.W.2d 772, 776 (Tex. App.-Houston [14th Dist.] 1990, no writ); Birdo v. Holbrook, 775 S.W.2d 411, 413 (Tex. App.-Fort Worth 1989, writ denied); North River Ins. Co. v. Greene, 824 S.W.2d 697, 701 (Tex. App.-El Paso 1992, writ denied). 50 Employers Ins. Of Wausau at 466; Tinney at 562.








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admissions.”51 The most common cases where good cause was not found occurred when the request to withdraw or amend the deemed admissions was filed on the day of trial, and oral agreements for extensions of time will not support a finding of good cause.52 c) Standard of Review It is always wise to keep in mind the appellate standard of review when making any type of argument that might otherwise negatively effect evidentiary presentation of your case. Attempt to incorporate the proper standard into your argument to the trial court in such a manner as to convince the trial court that the court’s decision may be susceptible to reversal. The standard of review when challenging the refusal to withdraw deemed admissions is abuse of discretion, and in the case of North River Ins. Co. v. Greene, the El Paso Court of Appeals succinctly sets forth the applicable analysis: (1) The objective of every rule of practice is to obtain a just, fair, equitable and impartial adjudication of the rights of the litigants under a liberal construction of such rules. (2) The primary purpose of Rule 198 is to simplify trials and eliminate matters about which there is no real controversy. It is not to be used to require a party to admit that he has no cause of action or ground of defense. (3) The rules should not be used as a trap and should not be construed in such a manner so that they prevent a litigant from presenting the truth to the trier of facts. (4) In deciding whether a failure to timely answer was the result of an accident or mistake, the controlling issue is the absence of a purposeful or bad faith failure to answer which reflects a conscious indifference. Consequently, even a slight excuse will suffice, 51 Renee H. Tobias, Deemed Admissions: Tool, Trap or Both?, 46 Baylor L. Rev. 709, 716 (1994) citing Esparza at 776; Reyes v. International Metal Supply Co., 666 S.W.2d 622, 624 (Tex. App.-Houston [1st Dist.] 1984, no writ). 52 Texas Employers' Ins. Ass'n v. Bragg, 670 S.W.2d 712, 715 (Tex. App.-Corpus Christi 1984, writ ref'd n.r.e.); Trevino v. Central Freight Lines, Inc., 613 S.W.2d 356, 358 (Tex. Civ. App.-Waco 1981, no writ); Tinney v. Team Bank, 819 S.W.2d 560, 562 (Tex. App.-Fort Worth 1991, writ denied); Reyes v. International Metal Supply Co., 666 S.W.2d 622, 625 (Tex. App.- Houston [1st Dist.] 1984, no writ); Agristor Credit Corp. v. Donahoe, 568 S.W.2d 422 (Tex. Civ. App.-Waco, 1978, writ ref'd n.r.e.); Reyes v. International Metals Supply Co, 666 S.W.2d 622, 624-25 (Tex. App.-Houston [1st Dist.] 1984, no writ).

especially where delay or prejudice will not result against the opposing party. (5) An accident or mistake upon the part of counsel may constitute negligence upon his part, but it will not necessarily constitute conscious indifference so as to preclude granting a motion for leave to file.53 3). Argue Deemed Admission is Outside Scope

of Discovery If, despite every effort, you find yourself in the

unenviable position of being stuck with a deemed admission, if the argument is reasonably available to you, argue that the deemed admission is outside the scope of permissible discovery, and request the Court ignore it.54 4). Argue Reliance on Admission Waived

If the deemed admission is within the scope of permissible discovery, look for or seek waiver by the opposing party of said party’s right to rely upon the deemed admission. This waiver generally occurs when either party introduces or seeks admission of evidence that directly controverts the issue deemed admitted without objection.55 5. Sending Discovery

Just like your opening letters, sending discovery should always be on your checklist of things to always do during a case (unless discovery is waived as mentioned above). a. Uncontested Divorce

Even when working towards an uncontested divorce, should your trial (and thus discovery) deadlines approach, it is best to at least send general discovery (at minimum a Request for Disclosure) with an accompanying letter that it is not your intent to hinder settlement negotiations, and obviously responses won’t be necessary if the case is settled, but you must protect your client should the case go to trial. Indeed, the onslaught of the expense and time related to responding to discovery is a great motivator to settle. The most important reason to send the discovery is to protect yourself and your client if the case should end up litigating. If you client insists on

53 824 S.W>2d 697, 701 (Tex. App. – El Paso 1992, writ denied). 54 Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. App. – Amarillo 1977, writ ref’d n.r.e.); Texas General Indem. Corp. v. Lee, 570 S.W.2d 231, 233 (Tex. App. – Eastland 1978, writ ref’d n.r.e.). 55 Marshall at 700.














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refraining from discovery, make sure to send a CYA letter explaining the benefit of discovery in the trial process. b. Pro Se Parties

Discovery is a very effective tool against pro se parties, who often do not understand the importance of a timely response or the availability of sanctions. In particular, admissions, which could ultimately result in facts being deemed admitted, can have a blistering effect on a pro se party who fails to answer them. Prepare a set of admissions tracking your lawsuit from beginning to end, as well as including the specific facts supporting your case. However, the deemed admissions may not be relied upon solely to support a complete default.56

IV. Suppressing Deposition Transcripts Should your client (or your staff) fail to timely return your client’s requested changes to the Court Reporter prior to the production of the official deposition transcript, there still may be a way to deal with inaccuracies. You can still object to any errors and irregularities in the manner in which the testimony is transcribed, signed, delivered, or otherwise dealt with by the deposition officer by filing a motion to suppress all or part of the deposition.57 [Appendix # 16]. If the court reporter complies with TRCP 203.3 no less than one day before the case is called to trial (for deposition transcripts), or 30 days before the case is called to trial (for non-stenographic recordings), then you must file and serve your motion to suppress before the trial commences to preserve the objections.58 V. Inventories, The Double Whammy CCYYAA

Inventories require twice your attention in the CCYYAA process. Not only are inventories discovery, thus falling within the rules of sanctions for failure to timely respond59, but they can also be considered judicial admissions of the content and characterization of the 56 Osteen v. Osteen, 38 S.W.3d 809 (Tex.App.-Hous. (14 Dist.) Feb 08, 2001) (Putative husband's failure to answer did not operate to admit the material allegations in putative wife's divorce petition, which alleged all the facts necessary to establish a common law marriage, precluding entry of default judgment of divorce based on deemed admissions). 57 TRCP 203.5. 58 TRCP 203.5. 59 Ismail v. Ismail, 702 S.W.2d 216, 224 (Ct. App. – Houston [1st Dist.] (Inventories are a specie of discovery, thus 215 sanctions are available).

marital estate.60 Therefore, you must not only be certain they are timely filed, but also they are totally accurate in their representations of the characterization of the marital estate. Do not rely on your paralegal to understand the ins and outs of separate property, reimbursement and economic contribution. Certainly, any competent typist can transfer a client’s completed inventory form to a formal document, but can you rely on the client or the preparer to understand what may and may not be separate property? Certainly not. This is one of those times where the lawyer must personally review the inventory to make certain the representations are correct. You can assist yourself, and thus save time, by making certain that your inventory form given to the client asks the right questions. “Was this asset purchased with any money that you or your spouse had prior to the marriage, or that was received by you or your spouse by gift or inheritance? If so, please explain: …”. When you review the formal inventory, compare it to the client’s responses to those important questions to make certain that the nature of the claim as a claim for economic contribution or reimbursement or separate asset is included. If you cannot (or do not have time) to discern the exact character and nature of the claim, leave it open. Do not specify the asset as separate or community, merely refer to it as a “marital asset.” It’s not the most helpful inventory, but it’s better than a judicial admission at time of trial (better to make your claim separate from the inventory than be tied down by an admission within the inventory).

VI. Suppressing Social Studies If you hate the results of the social study on your client, and your certain it means the end of your custody case, check the special Texas Family Code rules as they relate to introduction of a social study.61 Like all documents, the report is subject to the rules of evidence (such as hearsay, etc..), meaning that all of the things that everyone else said about your client in the report constitute hearsay, and thus subject to objection.62 The caseworker is required to provide you with a copy of the social study no later than the seventh day after the report is completed, or the fifth day before

60 Lee v. Lee, 43 S.W.3d 636 (Tex.App.-Fort Worth Mar 22, 2001 n.w.h.); Dutton v. Dutton, 18 S.W.3d 849 (Tex.App.-Eastland May 04, 2000), review denied (Aug 24, 2000); Tschirhart v. Tschirhart, 876 S.W.2d 507 (Tex.App.-Austin Apr 20, 1994), rehearing overruled (Jun 01, 1994); Roosevelt v. Roosevelt, 699 S.W.2d 372 (Tex.App.-El Paso Oct 30, 1985), dismissed (Mar 05, 1986). 61 TEX. FAM CODE §107.055. 62 TEX. FAM CODE §107.055(a); TRE 801.








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commencement of trial.63 If any of these rules are violated, you might at least have a chance of keeping out part or all of the social study. VII. Pleading Failures A. Mandatory Pleadings In Family Law

Various statutes and case law require we plead certain issues in order to obtain the relief requested, subject only to waiver by our opponent.64 Some of the most common pleadings that family law attorneys often let slip by include separate property, reimbursement, economic contribution, primary conservatorship, written agreements between spouses affecting property (such as pre-marital property agreement, marital property agreement, partition or exchange agreement, or agreement to convert to community property), retroactive child support and attorneys fees). There are mixed opinions as to requiring a pleading for fault in a divorce case, because “even if fault has not been pleaded as a ground for divorce, factual or evidentiary matters that embrace issues that would support cruelty, or other fault related issues may be introduced to support a request for a disproportionate division of property”.65 Obviously, the safest measure is to plead for it. Some not so common pleadings that many family law attorneys rarely plead, but must be plead include additional causes of action (such as suits involving assault/intentional infliction of emotional distress66, transmitting sexual disease67, unlawful interception of communication68, tortious interference with business relations69, tracing, corporate alter egos70, wrongful

63 TEX. FAM CODE §107.055(b)(1)-(2). 64 When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. TEX. R. CIV. P. 67. 65 Texas Family Practice Manual (3d. ed) Form 3-01; Murff v. Murff, 615 S.W.2d 696 (Tex. 1981) and Young v. Young, 609 S.W.2d 758 (Tex. 1980). 66 Suggested language is contained in Form 3-31 of the Texas Family Practice Manual. 67 Suggested language is contained in Form 3-33 of the Texas Family Practice Manual. 68 Suggested language is contained in Form 3-34 of the Texas Family Practice Manual. 69 Suggested language is contained in Form 3-35 of the Texas Family Practice Manual.

interference with contract71, interference with custody against a spouse, a third party or both72, parentage (paternity)73, third-party co-tenant74, third-party financial institution75, third-party fraudulent transfer76, voiding obligation to third-party77, relief from third-party trustee78, and even civil conspiracy against a spouse or third party.79 B. Trial Amendments

A trial amendment is a modification or addition to a pleading allowed to correct mistakes or add inadvertent omissions in pleadings that are not discovered until the time period to amend (seven days prior to the commencement of trial80) has passed. A trial amendment does not necessarily have to constitute an entire pleading, but rather it supplements or adds to the existing live pleading of the party seeking amendment.81 1. Move for a Continuance

When you realize that you have forgotten to plead for certain relief, don’t panic. If the trial has not started, make a written motion for a continuance. Your motion for continuance should also be supported by an

70 Suggested language is contained in Form 3-39 of the Texas Family Practice Manual. 71 Suggested language is contained in Form 3-36 of the Texas Family Practice Manual. 72 Suggested language is contained in Form 3-37 of the Texas Family Practice Manual. 73 Suggested language is contained in Form 3-38 of the Texas Family Practice Manual. 74 Suggested language is contained in Form 3-40 of the Texas Family Practice Manual. 75 Suggested language is contained in Form 3-41 of the Texas Family Practice Manual. 76 Suggested language is contained in Form 3-42 of the Texas Family Practice Manual. 77 Suggested language is contained in Form 3-43 of the Texas Family Practice Manual. 78 Suggested language is contained in Form 3-44 of the Texas Family Practice Manual. 79 Form 3-46 of the Texas Family Practice Manual. 80 TRCP 63. 81 Garcia v. TDHS, 721 S.W.2d 528 (Tex. App. – Corpus Christi 1986).





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affidavit.82 Failure to include your affidavit creates a presumption that there is no abuse of discretion by the trial court in denying it.83 2. Seek Admission of The Evidence

If the trial has already started, try to get the evidence in anyway. It’s possible that opposing counsel has not checked your pleadings, does not know that the particular pleading is mandatory, or otherwise does not desire to object, and thus you may be allowed to get your evidence in via waiver. (Note that failure to plead may not be waived in some instances. For example, a trial court’s jurisdiction to render a judgment for attorney’s fees must be invoked by pleadings.84 If you fail to plead for attorney’s fees, you will not and cannot get them, as an award of attorney’s fees not supported by the pleadings is void.85 Attorneys disagree if trial by waiver is available in this context. Don’t risk it.).

3. Make Written Motion

If you discover the error in pleading prior to the commencement of trial or if the opposing party objects to your evidence coming in during the trial because it has not been properly plead, file a written motion for trial amendment, and have a proposed order available for the Court’s signature. [See Appendices #17 and #18]. Oral requests for trial amendment are generally insufficient86, but courts have permitted them if properly dictated into the record or later filed in writing.87 When making your amendment in writing or 82 Tex. R. Civ. P. 251; Tenneco, Inc. v. Enterprise Prods. Co., 925 s.W.2d 640, 647 (Tex. 1996)(“When a party contends that it has not had an adequate opportunity for discovery before summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance). 83 Villegas v. Carter, 711 S.W2d. 624, 626 (Tex. 1986); Side note: If your continuance is denied and you are otherwise unable to make your trial amendment prior to the commencement of trial, make certain to announce “not ready” when the trial court asks on the record. 84 R. Conrad Moore & Associates, Inc. v. Lerma, 946 S.W.2d 90, 96 (Tex. App. – El Paso 1997, writ denied). 85 State v. Estate of Brown, 802 S.W.2d 898, 900 (Tex. App. – San Antonio 1991, no writ). 86 City of Fort Worth v. Zimlich, 29 S.W.3d 62 (Tex. 2000); see TRCP 66. 87 Pennington v. Gurkoff, 899 S.W.2d 767 (Tex. App. – Fort Worth, 1995), writ denied (Sept. 4, 1997); Huber v. Oshman, 700 S.W.2d 694 (Tex. App. – Corpus Christi 1985).

orally, make certain to clearly specify the particular pleading being amended.88

C. Burden & Analysis

Case law states that trial courts should liberally allow trial pleading amendments89, but there are limits. 1. Non-Mandatory Trial Amendment

Generally, a court will not allow a late amendment that’s prejudicial on it’s face because: 1) it asserts a new substantive matter that reshapes the nature of the trial itself; 2) a party could not have anticipated it in light of the prior development of the case, and 3) the opposing party’s presentation of the case would be detrimentally affected.90 2. Mandatory Trial Amendments

A court must allow a trial amendment when presentation of the merits of the action will be served by the amendment, and the objecting party fails to satisfy the court that permitting a trial amendment would be prejudicial to maintaining the action or defense on the merits.91 Check your discovery, does your inventory list certain property as your client’s separate property, even though you didn’t plead for it? Has it been discussed in settlement negotiations? Has documentation been produced by you in support of the position? Was the claim made during a deposition? Keep searching for any indication to assist in your argument that the amendment is not prejudicial. If the court allows the amendment, it may also postpone the trial to allow the other party to prepare to address the newly amended issue.92 88 10 TEX. JUR. PL. & PR. FORMS 2d § 196:14 citing TEX. JUR. 3D, PLEADING §234. 89 Whole Foods Market Southwest v. Tijerina, 979 S.W.2d 768, 775-76 (Tex. App. – Houston [14th Dist.] 1998 writ denied. 90 See Smith Detective Agency v. Nightwatch Serv., Inc., 938 S.W.2d 743, 748-49 (Tex. App. – Dallas 1996, writ denied). 91 10 TEX. JUR. PL. & PR. FORMS 2d §196:14. 92 Id. citing TRCP 66, TEX. JUR. 3d, PLEADINGS §§227 et. seq,, Mcdonald and Carlson, Texas Civil Practice (2d ed.) §10:11.











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VIII. The Lying Client It is an unfortunate truth that divorce court is often referred to as “Liar’s Court”, because those going through family law litigation full of emotional distrust and negativity towards no only the opposing party, but the court system as well. A parent will say, deny or accuse of just about anything when it comes to gaining custody of a child, and the scorned spouse is even more capable of embellishing the facts when testifying about the character and actions of the opposing party. Thus, we family law attorneys must always be on alert to protect ourselves from our client’s lies. The TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT forbid a lawyer from assisting or counseling a client to engage in conduct that the lawyer knows is criminal (such as perjury).93 Thus, in preparation for any type of sworn testimony from your client, advise them that they cannot and must not lie under oath, because it is not only illegal, but being caught in a lie will result in a lost of the Court’s trust in the client’s testimony throughout the duration of the case. If your client chooses to ignore your admonitions and informs you that he or she intends to lie, it is your duty to make reasonable efforts under the circumstances to dissuade your client from doing so.94 If, despite your best efforts, your client commences committing perjury, request a break, take your client aside and advise him or her of the consequences of lying under oath95, and further that you cannot assist the client in his or her lie.96 It is at this point that you responsibility to yourself and to your client becomes extremely delicate.97 Under most circumstances, you cannot reveal your client’s wrongdoing but you must also avoid furthering your client’s unlawful purpose. Withdrawing from representation may be required, but must be done so in such a manner as to not reveal the client’s impropriety.98

93 TEX. R. PROF. CONDUCT 1.02(c). 94 TEX. R. PROF. CONDUCT 1.02(d). 95 TEX. R. PROF. CONDUCT 1.02 cmt.7 (a lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client’s conduct. 96 TEX. R. PROF. CONDUCT 1.02(f) (When a lawyer knows that a client expects representation not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations of the lawyer’s conduct. 97 TEX. R. PROF. CONDUCT 1.02 cmt. 8. 98 TEX. R. PROF. CONDUCT 1.02 cmt. 8.

IX. Withdrawing From The Case

A few times throughout this presentation, the possibility of withdrawal has come up, such as withdrawing when your client refuses to cooperate with the discovery process. Obviously, if your clients inactions or bad acts are the primary source of your troubles, withdrawing is the safest way to CCYYAA. The necessity or choice to withdraw should be considered and addressed as early as possible. If you are currently being paid, anticipate that you will continue to be paid, and (most important) if the problems going on within the case are clearly not due to your actions or inactions (and your client understands and agrees with this), or, if you’re just a glutton for punishment, then feel free to suffer through the agony of evidentiary exclusion, etc… during the trial. On the other hand, if you see the writing on the wall and don’t want to go down with the ship (especially without getting paid), give strong consideration to getting out while the getting’s good. A. Timing of Withdrawal

Of course, we are sometimes faced with the necessity late in the game, either because we procrastinated in making the decision, or we did not discover the necessity until the last minute. The timing of your request to withdraw could be essential. If your client can prove your withdrawal would prejudice his or her rights, then the trial court has a duty to deny your motion.99 1. Proper Form of Motion and Order

[Appendices # 19 and #20] Make sure your motion and the subsequent

order are in the proper form, providing the client’s last known address as well as any and all deadlines in the case.100 A trial court abuses its discretion when it grants a motion to withdraw that does not comply with the mandatory requirements of Rule 10.101 Rule 10 requires a motion to withdraw to state that the party has been notified of his right to object and whether the party consented to the motion.102 The motion also is required to list all pending settings and deadlines.103 Typically, error in the form of the motion is harmless if

99 TRCP 10. 100 TRCP 10. 101 Gillie v. Boulas, 65 S.W.3d 219, 221 (Tex.App.-Dallas 2002, pet. denied); Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 114 (Tex.App.-Waco 1999, no pet.). 102 TRCP 10. 103 TRCP 10.




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the party has sufficient time to find new counsel to investigate the case and prepare for trial.104 2. Request Continuance or Extension If Near

Deadline Prior to Withdrawing If you withdraw near any deadline or hearing

always request an extension of the deadline or file a motion for continuance of the hearing or trial, and have the court consider and rule on this request before granting your motion to withdraw. When a trial court allows an attorney to withdraw, it must give the client time to secure new counsel to investigate and prepare for trial.105 Before allowing an attorney to withdraw, the trial court should see that the attorney has complied with the CODE OF PROFESSIONAL RESPONSIBILITY, insuring that the attorney has taken reasonable steps to avoid prejudice to the rights of the client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.106 Only if the trial court allows the unrepresented pary time to secure new counsel and time for that counsel to prepare for trial, may failure to comply with Rule 10 be rendered harmless error.107 3. Notice of Intent to Withdraw

If at all possible, give sufficient notice of the motion, allowing time for the green card to be signed and returned, and even allowing a few extra days (for those clients who won’t sign the green card) for the failed delivery attempts to be noted and returned. Of course, the best scenario that affords the greatest amount of protection is obtaining your client’s signature on the order allowing you to withdraw.108

104 Walton v. Canon, Short & Gaston, 23 S.W.3d 143, 148 (Tex.App.-El Paso 2000, no pet.); Williams, 15 S.W.3d at 114. 105 Villegas v. Carter, 711 S.W2d. 624 (Tex. 1986); 106 Id. at 626. 107 Walton v. Canon, Short & Gaston, 23 S.W.3d 143 (Tex.App.-El Paso Jun 15, 2000) (NO. 08-99-00173-CV), rehearing overruled (Aug 02, 2000). 108 Hardin v. Hardin, 2004 WL 1404484 (Tex.App.-Hous. (14 Dist.) Jun 24, 2004) not yet released for publication, (Attorney filed motion two days before court granted motion. Client’s signature was on the order. Error was therefore waived by client’s conduct. The Court further goes on to state that client failed to complain of any alleged irregularity in the timing of the withdrawal to the trial court prior to appeal, thus waiving any error) citing GTE Mobilnet of S. Tex., Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 620 (Tex.App.-Houston [14th Dist.] 2001, pet. denied); TRAP 33.1(a).

4. Make a Record

If there’s any possibility that your motion to withdraw might be denied, make certain that you make a record of the hearing, and state clearly not only in your motion, but also on the record your reasons for withdrawing. A motion to withdraw that does not clearly offer specific facts to support your assertion to withdraw, as well as no evidence on the record of your reasons for seeking to withdraw, will not result in an abuse of discretion of the trial court if denied.109 X. Accidental Disclosure of Confidential

Information / Snap Back Rule When large amounts of production documents are involved, we often find ourselves lacking in the time to review each and every item that is found in the disorganized boxes of information provided to our office by our client. Should you find yourself having involuntarily provided information to the opposing party that would otherwise fall within a privileged exception, take advantage of the “snap back rule.”110 This rule (TRCP 193.3(d)) is specifically denied for such dilemmas, allowing a party to claim a privilege on inadvertently produced information.111 The purpose of the snap back provision is to reduce costs and risks in large document production.112 In order to take advantage of this rule, it must be used correctly. To claim privilege after inadvertent production, you must, within ten days of discovering the accidental production, serve on all parties an amended discovery response that: 1) identifies the information inadvertently

produced; 2) identifies the privilege asserted for that

information; and

109 In re Edwards, 2003 WL 22439641 (Tex.App.-San Antonio Oct 29, 2003) Memorandum Opinion citing See Green v. State, 840 S.W.2d 394, 408 (Tex.Crim.App.1992), abrogated on other grounds by, Treviño v. State, 991 S.W.2d 849, 853 (Tex.Crim.App.1999); Frazier v. State, 15 S.W.3d 263, 265-66 (Tex.App.-Waco 2000, no pet.); Boston v. State, 965 S.W.2d 546, 552 (Tex.App.-Houston [14th Dist.] 1997, no pet.). 110 TRCP 193.3(d); In re Monsanto Co., 998 S.W.2d 917 (Tex.App.-Waco Aug 31, 1999). 111 TRCP 193.3(d). 112 TRCP 193.3(d) cmt. 4.















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3) requests that all copies of the privileged information be returned.113

XI. Make a Good Record

Even if you’re absolutely certain that a case will never be appealed, make a record like it will. You never know when your client will decide unexpectedly to appeal. Preserving the record is beyond the scope of this Article, but is certainly a CCYYAA subject in and of itself. For example, if one of your witnesses is not allowed to testify, and you fail to make an offer of proof, there is no record of the testimony that would have been for the court of appeals to consider.114 If you make an objection and don’t obtain a ruling, you have waived the right to appeal the court’s (inferred) ruling on the objection.115 XII. Closing CCYYAA A. Get Your Closing Documents Done Just because a final order is entered, does not mean you can take your attention away from the file. Make a checklist. Is the wage withholding order done? The QDRO’s? The real estate closing documents and other transfer documents? Attorneys risk exposure by failing to properly attend to these items. Start work on your QDRO’s early on in the case. It may take weeks or even months to get approval from the legal department of the employee party’s company. If worse comes to worse and time runs out, plenary power may expire, prepare a generic QDRO in the form provided by the Texas Family Practice Manual, get it signed and submit it to the employer. An additional measure of protection is to include QDRO language within the decree itself. B. Bankruptcy

If any property award within the decree may be affected by bankruptcy, make sure your client understands this before entering into the agreement. It is strongly advised that this admonition is acknowledged by the client in writing, and then kept in your files in case a need to protect yourself should arise in the future. [Appendix # 21]

113 TRCP 193.3(d). 114 Ludlow v. DeBerry (App. 14 Dist. 1997) 959 S.W.2d 265, rehearing overruled; Chubb Lloyds Ins. Co. of Texas v. Kizer (App. 2 Dist. 1997) 943 S.W.2d 946, rehearing overruled, writ denied, rehearing of writ of error overruled; TRE 103. 115 TRAP 33.1.

C. Outside Contracts If any debt within the decree is subject to a

superceding outside contract, such as a mortgage or credit card obligation, make sure your client is well aware of the consequences of non-payment as it affects your client. Again, it is always wise to obtain your client’s written acknowledgment that you have given this advice and they have chosen to act with this knowledge. [Appendix # 22] D. Thirty Day Letter [Appendix # 23]

When you send the certified copy of the final order to your client, make certain it is accompanied by correspondence fully explaining the thirty days of plenary power remaining, as well as the option to file motion for new trial and/or appeal. It might further be advisable to mention the appellate deadline for requesting a finding of fact and conclusion of law (twenty days from date the order is entered116), as this deadline comes up quickly and many are not aware of it. E. Closing File Letter [Appendix # 24] Once all of your work on the file is done, and the court’s plenary power has expired, let your client know that he or she can come and pick up the file, or it may go into storage and require a fee to retrieve and eventually be destroyed. F. Filing Documents With Deed Records 1. Real Estate Closing Documents

If your client is receiving the real estate, make certain to immediately file the Special Warranty Deed with county records upon finalization of the divorce. If you have trouble obtaining a Special Warranty Deed, file the decree as a back up measure. The standard form language within the decree expresses that it will operate as muniment of title. Take caution, however, as current technology generally results in all documents filed with the county clerk being available for anyone to view on the internet, and that includes all of those account numbers, social security numbers, addresses, etc… a dream come true for an identity thief. If your client is not the real estate recipient, but his or her name remains on the mortgage documents, it is your duty to see that the Deed of Trust to Secure Assumption is filed. Failure to do so could result in your client having no right to protect himself from foreclosure and it’s accompanying credit problems.

116 TRCP that gives deadline for filing FOF/COL.





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2. Judgments A decree that contains a judgment must also be

abstracted with the district clerk, and then filed with the county clerk. Expedience is imperative, as most judgments are taken first in time. Thus, failing to file your client’s judgment against his or her spouse’s property might put you or your client in line behind a larger creditor, basically eliminating any possibility of utilizing the subject property for collection and turn over of the judgment. Your client should also be advised that judgments last for ten years at which time it will be your client’s responsibility to renew the judgment, no yours.117 XIII. Conclusion Because our clients are always on edge and rarely satisfied, CYA is a daily consideration in family law practice. Keep your client satisfied during the case by keeping in constant communication. Make your client aware of the import of his or timely responses when information is requested, and keep your client’s confidence high by being prepared and showing the appropriate amount of zealousness in the courtroom. The ramifications of divorce can last well into a client’s future. So, although you may forget about the case, your client will not. Make certain, before the order is signed that your client understands all of the possible outcomes of the terms and conditions contained within the decree. Before you close your file, verify that all closing documents are complete, all judgment and real estate documents have been filed with the proper deed records, and your client is aware of any post-trial deadlines that may apply to his or her case.

117 Find this rule


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Appendix # 1

[Attorney letterhead] [Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] Thank you for retaining the services of our firm for your legal representation in the above matter. Following is a little information about my office, myself, my staff, and our court system that you should be aware of [select applicable paragraphs]:

1. Our regular office hours are from [time office opens] until [time office closes] Monday through Friday. We closed for lunch from [time office closes for lunch] until [time office opens after lunch] and we are closed on most county and federal holidays.

2. I am a trial attorney and as you would expect, I am in court or participating in other types of

litigation related activities almost every day. My very able staff always keeps in contact with me and continuously updates me on the status of my cases via digital email, paging & cell phone.

3. On rare occasion, I am out of the office for extended periods of time due to lengthy trials, teaching

and/or attending seminars (and yes, I do take an occasional vacation). It is thus extremely important for you to communicate directly with my staff, particularly, my paralegal, [name of your paralegal]. Although no member of my staff, other than an attorney, can provide you with legal advice or opinions, my staff can take a detailed message, convey the message to me and then convey my response back to you. During these times, I would request your patience and understanding. When it’s time for your case to be litigated, I will request the same patience from my other clients.

4. Unfortunately, delays, cancellations, resets and rescheduling are very common in the business of

family law. You should expect that your hearing or trial may be continued, reset or rescheduled at least once, probably twice, and possibly more. Often, because of the nature of the court’s docketing system, several cases may be scheduled simultaneously. Hearings or trials will run over or take longer than anticipated. Attorneys will be scheduled in two different Courts. Cases are thus postponed or continued, appointments moved around, meetings and conferences rescheduled. The result is often extremely frustrating to clients and counsel, as prompt resolution is understandably very important. You must prepare yourself for this eventuality, and try your best to understand if it happens in your case.

5. If your case requires a final trial for resolution, it may take time, many months, even a year or more

before a final trial date, depending upon the county and the court in which your case is pending. Each court has a different trial setting process, some more complex than others. Again, I would request your patience in this regard.

6. If you need to communicate information, questions or concerns to me, my voice mail [voicemail

extension], email [email address] and fax [fax number] are available 24 hours a day. However, I will not receive my email and voicemails when I am out of the office, so any matters that you


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believe require attention should be directed to my paralegal, [Name of paralegal], or [his/her] voice mail [voicemail extension] or email [Paralegal’s email address].

7. Please do not expect me to personally respond to your emails (or other written inquiries) or

personally return your calls within a certain time frame. Often, I am not in the office when such inquiries are received, and I may be out of the office for several days thereafter. It is thus imperative that you direct any urgent matters to the attention of my staff, so that such matters may be prioritized and dealt with appropriately. I may not be available to personally respond to your inquiries, but the same will be dealt with through my staff.

8. As your case progresses, you may find yourself communicating with my staff frequently. Please

keep in mind that, upon your request, I will make every effort to be personally available for a telephone conference. Should you ever feel that you need to speak directly to me for whatever reason, please tell my staff and they will schedule a conference at the earliest possible convenience depending upon our respective schedules and the urgency of the matter that needs to be discussed.

9. Our billing usually goes out [time when your office sends out billing]. Billing information is posted

and produced by our bookkeeping department. Although we all do our very best to make certain that billing statements are accurate, on rare occasion, as software problem or other event may cause a billing error. Therefore, it is very important that you review your bill completely and contact us if you believe there is a mistake on your bill.

10. Finally, there may be occasions when opposing counsel will request additional time to meet Court

set deadlines. I reserve the right to determine whether it is advisable to agree to such request. Those are just a few very important things to keep in mind during your case. My staff and I look forward to assisting you in your family law matter, and will keep you informed as your case progresses. Sincerely, [Name of attorney]


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Appendix # 2

[Attorney letterhead] [Date] [Addressee/Client] [Re: Style of Case] [Dear Counsel:] Please find enclosed a file-marked copy of the [name of petition that was filed] filed in the above styled and numbered cause on [date petition was filed]. Please note, your case is now pending in the [Court assigned to your client] of [County where case is pending presided over by [Name of District Judge] and [Name of Associate Judge]. If you should have any questions regarding this matter, please feel free to contact me and/or any member of my staff. Sincerely, [Attorney’s Name]


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Appendix #3

[Attorney letterhead]

[Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] Soon you will be receiving by separate correspondence a notice of hearing in regard to the above styled and numbered cause. Please note, that your case is pending in the [Court assigned to your client], presiding over by [Name of District Judge] and [Name of Associate Judge]. Their Courtroom’s are located on the [floor their Courtroom is located on] of the [Name of County Courthouse where Case is pending], [Courthouse address]. Accordingly, I will need for you to complete the following tasks in the time frame given:

1. Please forward any documentary evidence such as income tax returns and pay check stubs to my office at least three business days prior to the date of the hearing;

2. Please prepare a timeline of significant events leading up to the separation in chronological order,

and return this document to me at least three working days prior to the date of the hearing;

3. Please prepare a list of persons who might testify on your behalf (either by testifying in your favor or testifying against your husband), including their names, addresses, telephone numbers, a brief statement of the testimony they could offer and whether they will require a subpoena. I will need this information as soon as possible. Preferably a week prior to the date of hearing.

4. Please fill out the Income and Expense List, which I have enclosed and return to my office one week

prior to your hearing. I appreciate your prompt attention to this matter. If you should have any questions, please feel free to contact me or speak with my Paralegal. Sincerely, [Name of attorney]


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Appendix # 4


[Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] For your review and information, please find enclosed Rules for Testifying and Other Important Things To Know About Testifying And Trial. This is by no means an all-encompassing list, but rather this is merely a little information to assist you in your personal preparation to testify. If you should have any questions regarding this matter, please feel free to contact me and/or any member of my staff. Sincerely, [Name of attorney] Enclosure


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Rules for Testifying

1. Always tell the truth. 2. Do not exaggerate – be precise in your answers.

3. Listen carefully to the question.

4. If necessary – repeat the question to yourself.

5. Make certain you understand the question asked.

6. Ignore the voice inflection or demeanor of the opposing attorney.

7. Do not feel rushed – take your time when answering.

8. If you forget the question – ask for it to be repeated.

9. Answer only the question asked – stay focused on the question.

10. Do not answer questions with questions.

11. Answer orally, distinctly and loud enough for all to hear.

12. Be confident and firm in your answer.

13. Do not guess unless specifically asked to guess.

14. Don’t box yourself in – questions such as “all” and “every.”

15. Always be courteous – do not argue with the opposing attorney.

16. Remain calm – remember to take deep breaths.

17. Never testify that your attorney told you to do something, or as to what you and your attorney discussed,

unless your attorney has requested you do so. This information is privileged, and you may waive that privilege if you attempt to testify to such information, thus opening the door to opposing counsel’s further inquiries.

18. Never testify as to what occurred at settlement negotiations, mediations, or the contents of any settlement

offers, unless your attorney has requested you do so. This information is confidential, and may also open the door to further undesired testimony.


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Other Important Things To Know About Testifying And Trial:

1. If an attorney stands to object to a question, do not answer it, wait for the judge to make a ruling (“overruled”

or “sustained”). If the objection is “overruled”, you may answer the question. If the objection is “sustained” you may not answer the question. Once the judge has ruled, if you are not sure whether you can answer the question, just ask. If you have forgotten the question by the time the Judge has ruled, ask that it be repeated.

2. There are two types of witness examination. Direct examination and cross-examination. Direct examination

is generally directed to non-hostile witnesses. Cross-examination is generally directed to hostile witnesses. There is no specific required order. For example, your spouse’s attorney may call you as a witness and cross-examine you before your attorney takes you on direct.

3. Opposing counsel may ask you “leading” questions on cross-examination. A leading question is a question

essentially puts words into your mouth that counsel wants you to echo back, suggesting to you the answer they desire, and not allowing you to explain your answer. Leading questions can sometimes be frustrating to the witness and create a feeling of helplessness. Listen carefully to these questions and give the appropriate truthful response. Stay calm and try not to get trapped.

4. Your attorney cannot ask you leading questions on direct examination. This means that your attorney will

ask you direct and open questions that you must already know the answer to. Your attorney cannot tell you the answer and cannot stop you from giving the wrong answer.

5. When sitting at counsel table, only speak in low whispers (and it is preferable to pass notes if time permits).

The Judge can hear everything you say. Additionally, your attorney is trying to listen to testimony, and may lose track or focus if you interrupt.

6. The Judge will be watching your behavior at trial, along with his court reporter & bailiff (who may report to

him later). Do not laugh at inappropriate times, stare down your spouse or the opposing attorney, or behave in any other such inappropriate manner, nor should you appear to be without emotion (after all, your are getting divorced). Be yourself, behave normally.


28

Appendix # 5


[Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] Please find enclosed [include all discovery documents propounded on your client] and accompanying correspondence dated [insert date], which I received from opposing counsel on [insert date] with regard to the above styled and numbered cause. Please note that the enclosed documents constitute what is commonly referred to as formal documentary discovery. Formal documentary discovery is a method by which one party “discovers” information about the other party through various methods of documentary inquiry, most commonly including, but certainly not limited to, questions (known as “interrogatories” or “disclosure”) and requests for production of documents. The due date for your discovery responses is set forth below. It is imperative that all discovery is responded to completely and in a timely manner, as failure to do so could result in certain sanctions, such as waiver of the ability to object to improper discovery requests, the court’s disallowing evidence at trial associated with incomplete responses to discovery requests or in a worst case scenario, the Court not allowing the party who has failed to respond to put on any evidence whatsoever. Thus, it is extremely serious that the discovery be responded to fully and in a timely manner. Generally, limited extensions may be obtained through agreement of counsel, but there are no guarantees. If you feel you might need an extension in time, please advise us immediately. In some instances, discovery requests may be legally objectionable. That is a determination for me to make. I would thus request that you answer all questions and produce all documents to the best of your ability, unless you feel that you cannot due to expense, availability or other issues you may have, in which case I would request you contact my office so that we may discuss and resolve the matter immediately. Finally, I may modify your responses as I deem appropriate to your case. Accordingly, we have a period of 30 days from the date that I received the document to formally respond. It will therefore be necessary for you to review this document and make your responses to me no later than [insert date you want client’s responses at your office], which will allow my staff sufficient time to type up and prepare formal responses. Please note that the more organized your responses are, the less work and organization we have to do, and therefore the less you have to pay us to do it. [Insert as applicable] Regarding your responses to the interrogatories, please legibly write or type your answers on a separate sheet of paper so that I may type up the formal responses. Do not leave any blanks. If the question does not apply to you, please indicate the same. Please make sure you identify the number of the question you are answering. [Insert as applicable] Regarding your responses to the requests for production, please correspond the documents you provide me with the number of the request you are answering. If possible, please do not furnish originals. It would be more cost effective for you to provide me two copies of each document, as my assistant will not be spending time copying documents. Additionally, please do not staple any documents. Ideally, the documents should be submitted to me in two separate stacks. Each stack should be identical. Each response to a specific number should be paper clipped together with a blank sheet of paper on top indicating which number the documents belong to, (i.e. response to number 1, response to number 2, etc.). If the documents requested are not in your possession or do not apply,


29

please indicate the same. Do not leave any blanks to any questions. Please rubber band the finished stack together so the two stacks of documents are easily identifiable. Please make sure you deliver the documents to my legal assistant. [Insert as applicable] Regarding the Request for Disclosure, please do not concern yourself with number 4 as I will respond accordingly. I look forward to your responses, and should you have any questions or need to go over them with me, please contact a member of my staff to schedule an appointment. I look forward to hearing from you. Sincerely, [Name of attorney] Enclosure


30

Appendix # 6

[Attorney letterhead] [Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] On [insert date of initial correspondence], I forwarded to you correspondence containing copies of certain discovery that had been propounded upon you by opposing counsel. I requested within said correspondence that you provide your responses to me no later then [insert date]. To date, I have received no responses from you. It is imperative that all discovery is responded to completely and in a timely manner, as failure to do so could result in certain sanctions, such as waiver of the ability to object to improper discovery requests, the Court disallowing evidence at trial associated within complete responses to discovery requests or in a worst case scenario, the Court not allowing the party who has failed to respond to put on any evidence whatsoever. Thus, it is extremely serious that the discovery be responded to fully and in a timely manner. Generally, limited extensions may be obtained through agreement of counsel but there are no guarantees. If you feel you might need an extension in time, please advise us immediately. Your prompt attention to this matter is greatly appreciated. Sincerely, [Attorney’s name]


31

Appendix # 7

[Attorney letterhead] [Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] I would kindly request that you read the following acknowledgment and sign the same. The purpose of this acknowledgment is to be certain that my file retains a record that I have advised you of your right to investigate the value and characterization of the marital estate, and that you have, at this point, chosen to waive these rights and pursue finalization of your divorce. Upon my receipt of the signed acknowledgment, I will file the same in your file at this office, as a matter currently within attorney-client privilege.

I acknowledge that I am aware and have been advised that under the law I have broad discovery rights of the opposing party’s finances, the contents and value of the marital estate (including, without limitation, property characterization, reimbursement and economic contribution rights, as well as marital debts), and facts surrounding and related to the parties’ divorce, including but not limited to, sworn net worth statements, sworn interrogatories, production of documents, admissions, oral depositions under oath, the right to have accountants and appraisers conduct appraisals, examine books, records, and other documents. I am hereby waiving such extensive and important rights.

READ AND ACKNOWLEDGED ON ________________________, 2004. ________________________________ [Client’s Name]

Please return the signed document to my office. Should you have any questions about these acknowledgments, please feel free to contact me at any time. Sincerely, [Attorney’s Name]


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Appendix # 8

[Attorney letterhead] [Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] As you are aware, your deposition is coming up, [insert date of deposition], at [insert time of deposition] at [insert location of deposition]. I just wanted to brief you on how depositions work. In 1999, our Supreme Court completely revised the rules of depositions. After the Court’s revision to the rules, there remain only three objections available. An objection as to leading, an objection as to the form of the question, an objection as to non-responsiveness to the answer (which would normally be asserted by the attorney taking the deposition). Under very limited circumstances, I can instruct you not to answer the question. I am not allowed to confer with you during the deposition, that is you cannot lean over and whisper in my ear and I cannot whisper instructions back to you in your ear. The only time we can confer with each other is at a break. This basically means that depositions are now a free for all. You can ask just about anything, and you have to answer every question. If either counsel objects, you will still have to answer the question (as there is no Judge there to make a ruling). I wanted to give you a heads up with regard to this, as, it is often difficult for the person being deposed to understand why objections are far and few between and the questions often seem irrelevant and unnecessary. If you have any question about this, give me a call. Otherwise, I will see you at the deposition. Sincerely, [Name of attorney]


33

Appendix # 9

[Attorney letterhead] [Date] [Addressee/Client] [Re: Style of Case] [Dear Counsel:] Pursuant to Rule 11 of the TEXAS RULES OF CIVIL PROCEDURE, this letter and our signatures below shall commemorate our agreement to extend time for [Client’s name] to respond to the discovery requests propounded upon him to [date of extension]. If the arrangements set forth above are accurate according to your understanding, please sign this letter below and return to [insert fax number/address]. A copy of this letter of confirmation will be filed among the papers of the Court upon my receipt of the same. If you should have any questions regarding this matter, please feel free to contact me and/or any member of my staff. SIGNED AND AGREED TO

_____________________________ __________________________

[Attorney’s Name] [Attorney’s Name]

Attorney for Petitioner Attorney for Respondent Sincerely, [Attorney’s Name]


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Appendix #10

CAUSE NO. __________________________________

IN THE MATTER OF THE MARRIAGE OF

§ §

IN THE DISTRICT COURT

§ ______________, PETITIONER § AND § _______ JUDICIAL DISTRICT ______________, RESPONDENT § § AND IN THE INTEREST OF ______________________, CHILD [REN]

§ § §

TARRANT COUNTY, TEXAS

MOTION TO EXTEND RESPONSE

DATE OF DISCOVERY TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, Moving party, [Name of Moving Party], Movant herein and files this Motion to Extend

Response Date of Discovery and would show the Court as follows:

I.

[Following are some examples for reference. Insert reason for requesting extension]

[Petitioner/Respondent]’s, business requires [him/her] to travel. Due to the schedule of

[Petitioner/Respondent] and [Petitioner/Respondent]’s attorney, [Petitioner/Respondent] and

[Petitioner/Respondent]’s attorney were unable to meet prior to the due date of said supplemental responses to

discovery. Therefore, [Petitioner/Respondent] has not had the opportunity to review such supplementations and verify

the truth to the same.

II.

An extension of time to respond to discovery would not harm the parties herein.

Prayer Movant requests the Court to grant a _____ day extension in which to respond to the discovery propounded

upon him.

Movant prays the Court grant this motion.

Movant prays for general relief.


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Respectfully submitted,

[Attorney information]

By: ___________________________ [Attorney’s name]

State Bar No. ______________ Attorney for [Petitioner/Respondent]

CERTIFICATE OF CONFERENCE This certifies that on ______________________________, the undersigned requested an extension of time to

respond to discovery from opposing counsel herein and opposing counsel did not agree or (as applicable), the

undersigned was unable to obtain a response from opposing counsel.

_________________________ [Attorney name]

CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was duly served on all attorneys of record and/or pro se

parties here, as applicable on ________________________, 2004.

_______________________ [Attorney name]


36

Appendix #11

CAUSE NO. __________________________________


§ §


§ ______________, PETITIONER § AND § _______ JUDICIAL DISTRICT ______________, RESPONDENT § § AND IN THE INTEREST OF ______________________, CHILD [REN]

§ § §


ORDER MOTION TO EXTEND TIME TO

RESPOND TO DISCOVERY On this day the Court considered [Petitioner/Respondent]’s Motion to Extend Time to Respond to Discovery

and ORDERS that [Petitioner/Respondent], [Client’s Name], be granted an extension of 30 days from today to respond

to the discovery propounded upon [him/her].

Dated [date] ________________________________ [Signature of judge]


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Appendix #12


[Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] Please find enclosed [Petitioner/Respondent]’s First Request for Admissions from [Petitioner/Respondent] filed in the above styled and numbered cause on [filing date] and forwarded to my office on [the date the admissions were received by your office]. Please note, you are required to respond to each request for admission by either admitting that the alleged facts stated in the request for admissions are true, denying that the alleged facts stated are true, or stating that you cannot admit of deny that the alleged facts stated in the request for admissions are true, followed by the reason why you cannot admit or deny that the facts stated in the request for admission are true. There are also certain legal objections available, which I will determine once I have received your suggested responses. Even if I believe that a response is objectionable and choose not to respond, I still want you to provide me with your suggested responses, so that I might maintain the same in my file. Your responses must be made within a specified time period. In your case, I must formally prepare and file your responses with the Court and provide them to opposing counsel not later than [insert due date]. Therefore, I must receive your suggested responses to my office no later than [insert a date that will provide you plenty of time to make a response]. Failure to timely file admission responses legally deems all requests for admissions having been admitted. Therefore, it could be devastating to your case if you do not give this matter the attention it requires and timely provide your suggested responses to my office. If you do not understand how to respond to any of the requests, please contact my office immediately. Please note, I will make myself available to answer your questions either directly or through my staff, and will gladly meet with you should it become necessary to assist you in making these responses. Once again, I appreciate your prompt and urgent attention to this matter. If you should have any questions regarding the contents of this correspondence, please feel free to contact me and/or any member of my staff. Sincerely, [Name of attorney] Enclosure


38

Appendix #13


[Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] On [date of original letter that accompanied admissions], I forwarded to you [Petitioner/Respondent]’s First Request for Admissions to [Petitioner/Respondent] by correspondence of the same date. Within said correspondence, I specifically advised you that your responses to the request for admissions were due to be filed with the Court and served on opposing counsel no later than [insert due date]. I further stated in said correspondence that your suggested responses should be supplied to our office no later than [insert date they were to be supplied to your office]. This date has passed, and I have yet to receive any type of information from you that will assist me in preparing your responses. Failure to timely file admission responses legally deems all requests for admissions admitted. Therefore, it could be devastating to your case if you do not give this matter the attention it requires and timely provide your suggested responses to my office. If I do not hear from you by [select a date], it will be necessary for me to file a motion with the Court seeking an extension time to make a response and/or prepare your response without the advantage of receiving the suggested information from you. Filing a motion for additional time to respond will obviously require my firm’s services, and therefore cause you to incur additional fees in this case. Further, there is absolutely no guarantee whatsoever that the Court will allow you additional time to respond. Therefore, it is imperative that you give this matter the prompt attention that it deserves. Please let me hear from you as soon as possible, and remember that I or any member of my staff are available to answer your questions regarding this matter. If you should have any questions regarding the contents of this correspondence, please feel free to contact me and/or any member of my staff. Sincerely, [Name of attorney]


39

Appendix # 14

CAUSE NO. __________________________________


§ §


§ ______________, PETITIONER § AND § _______ JUDICIAL DISTRICT ______________, RESPONDENT § §

AND IN THE INTEREST OF ______________________,

CHILD [REN]

§ § §


MOTION TO WITHDRAW OR AMEND AMMISSIONS

[Name], [Petitioner/Respondent] herein, files this motion that the Court permit [Petitioner/Respondent] to withdraw, or in the alternative to amend, certain of [his/her] answers to a Request for Admissions previously served on [Petitioner/Respondent] by [Petitioner/Respondent], and would respectfully show the Court the following: 1. [Petitioner/Respondent], when answering [Petitioner/Respondent]’s request for Admissions, admitted Item Nos. _______ and _______, through error and mistake of fact on [Petitioner/Respondent]’s part, although without any negligence, dereliction, or blame on [Petitioner/Respondent]’s part. 2. Unless [Petitioner/Respondent] is allowed to either withdraw or amend _________ [his/her] answers, [Petitioner/Respondent] will surely fail in the legitimate defense to [Petitioner/Respondent]’s action; [Petitioner/Respondent] has a good defense to [Petitioner/Respondent]’s claims which should be presented; and that it would be inequitable and a travesty of justice if [Petitioner/Respondent] were prevented by an unavoidable occurrence from presenting the defense to this action. The administration of justice will be best served by permitting [Petitioner/Respondent] to withdraw, or amend, the specified answers, and [Petitioner/Respondent] will in no way be prejudiced in maintaining and prosecuting [Petitioner/Respondent]’s action here.



By: _________________________________ Attorney’s name]

State Bar No. ______________ Attorney for [Petitioner/Respondent]



40

NOTICE OF HEARING

The above motion is set for hearing on [Date] ________________ at ________.m., in the _____ District Court. __________________________________ Judge Presiding

CERTIFICATE OF SERVICE

I, [name of attorney], the [capacity, such as: attorney of record for defendant], certify that on [date], a copy of this motion was sent by [method of recipient], the [capacity, such as: attorney of record for Petitioner], [address], [county], County, Texas.

___________________________________ [Attorney’s name]


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Appendix # 15

CAUSE NO. __________________________________


§ §




CHILD [REN]

§ § §


ORDER ON MOTION TO WITHDRAW OR AMEND ADMISSIONS

On _______, the Court considered the Motion to Withdraw or Amend Admissions filed by [Petitioner/Respondent] and finds and orders as follows: 1. [Petitioner/Respondent], when answering [Petitioner/Respondent]’s Request for Admissions, admitted item nos.________ and ________ through error and mistake of fact on [Petitioner/Respondent]s part without any negligence, dereliction, or blame on [Petitioner/Respondent]’s part. 2. The Court further finds that unless [Petitioner/Respondent] is allowed to either withdraw or amend said admissions, [Petitioner/Respondent] will fail in the legitimate defense to [Petitioner/Respondent]’s cause of action, and that such failure would be inequitable and a travesty of justice. 3. The Court further finds that the administration of justice will best be served by permitting [Petitioner/Respondent] to withdraw, or amend, the specified answers, and [Petitioner/Respondent] will in no way be prejudiced in maintaining and prosecuting [Petitioner/Respondent]’s Cause of action here. 4. It is therefore ordered that [Petitioner/Respondent]’s Motion to Withdraw or Amend Admissions is hereby granted, and [Petitioner/Respondent] shall be allowed to withdraw or amend the following responses and/or lack thereof, and such responses shall not be deemed admitted: ______________________________________________________________________________ Dated [date]. _______________________________ [Signature of judge]


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Appendix #16

CAUSE NO. __________________________________


§ §




CHILD [REN]

§ § §


MOTION TO SUPPRESS DEPOSITION

[Petitioner/Respondent], by __________ [his/her] attorney, moves the Court pursuant to Rule 191.3(d), Texas Rules of Civil Procedure, for an order suppressing __________ [all of or page _____ line _______ through page _______line ________of or answers No. ________m ________, and ________ of] the deposition of _________, on ________[date], pursuant to ________ [a commission issued herein on, _________ (date), or an order issued herein on _________ (date) or a notice of taking deposition dated ________ (date), and served on ________(Petitioner/Respondent) on _________(date)]. The grounds for this motion are that the testimony above referred to given by deponent ________ [on oral examination or upon written questions] was transcribed incorrectly and as a result of which deficiency the deponent has not signed the deposition, and refuses to do so, all of which is more fully shown in the attached affidavit of _________, sworn to on _________ [date]. [Petitioner/Respondent], therefore, prays that the Court set this motion for hearing and that at that hearing an order issue suppressing the deposition described above.



By: _________________________________

[Attorney’s name] State Bar No. ______________

Attorney for [Petitioner/Respondent]


I, [name of attorney], the [capacity, such as: attorney of record for defendant], certify that on [date], a copy of this motion was sent by [method of recipient], the [capacity, such as: attorney of record for Petitioner], [address], [county], County, Texas.

___________________________________ [Attorney’s name]


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Appendix # 17

CAUSE NO. __________________________________


§ §




CHILD [REN]

§ § §


[MOVING PARTY]’S REQUEST FOR AMENDMENT TO [NAME OF PLEADING]

TO THE HONORABLE JUDGE OF THIS COURT: Moving party, [Name of Moving Party], the [Petitioner/Respondent] in the above cause, moves this Court for leave to file the following trial amendment to Paragraph [Paragraph Number] of the [Moving Party’s] [Specify Pleading, such as: First Amended Answer]: [set forth specific text of amendment]. [Moving party] requests this trial amendment for the reason that [describe grounds for amendment as permitted by Tex. R. Civ. P. 66, such as: it is necessary to conform the (Answer) to the evidence adduced at trial]. Therefore, [Moving Party] respectfully request that [he/she] be granted leave to file this trial amendment, as set for above.



By: _________________________________

[Attorney’s name] State Bar No. ______________

Attorney for [Petitioner/Respondent]


I, [name of attorney], the [capacity, such as: attorney of record for defendant], certify that on [date], a copy of this motion was sent by [method of recipient], the [capacity, such as: attorney of record for Petitioner], [address], [county], County, Texas. _________________________ [Attorney’s name]


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Appendix # 18

CAUSE NO. __________________________________


§ §




CHILD [REN]

§ § §


ORDER ON [PETITIONER/RESPONDENT]’S

REQUEST FOR TRIAL AMENDMENT

On [date], the motion of [Petitioner/Respondent] for leave to file a trial amendment to [indicate pleading being amended, such as: First Amended Petition] due to [state defect, fault, or omission in pleading, either in form or substance] was heard by this Court, with [name of Petitioner’s attorney] appearing for [Petitioner] and [name of Respondent’s attorney] appearing for [Respondent]. The Court, after reading the proposed amendment of [Petitioner/ Respondent] and considering the arguments of counsel for both parties regarding the proposed amendment, is of the opinion that the merits of this action will be served by allowing it, and as [Petitioner/Respondent] has failed to satisfy the Court that its allowance would prejudice [his/he][action/defense] on the merits, the motion is GRANTED. [Opposing party] is granted a continuance of [time period] to meet the allegations of the [First Amended Petition], as amended. Signed on [date]. ________________________ [Signature and title of judge]


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Appendix #19

CAUSE NO. __________________________________


§ §




CHILD [REN]

§ § §


MOTION FOR WITHDRAWAL OF COUNSEL

This Motion for Withdrawal of Counsel is brought by [name of movant], who is attorney of record for [name of client]. [Name of movant] requests the Court to grant [him/her] permission to withdraw as attorney for [name of client] in this case. In support, [name of movant] shows: Good cause exists for withdrawal of [name of movant] as counsel, in that [he/she] is unable to effectively communicate with [name of client] in a manner consistent with good attorney-client relations/[name of client] no longer wishes to retain [name of movant] and wishes to represent [himself/herself]/[state other reason for withdrawal]]. [Name, address, telephone number, telecopier number, and State Bar of Texas identification number of new attorney] has been employed to represent [name of client], as evidenced by [his/her] signature on this motion. [Name of client] has consented to the substitution of [name of new attorney] for [name of movant] as counsel, [and the written consent is attached to this motion as Exhibit [exhibit number/letter]/as evidenced by [his/her] signature on this motion]. This withdrawal is not sought for delay only. A copy of this motion has been delivered to [name of client], who is hereby notified in writing of [his/her] right to object to this motion. [Name of client] [has/has not] consented to the motion [include if applicable: , and the written consent is attached to this motion as Exhibit [exhibit number/letter]/, as evidenced by [his/her] signature on this motion]. The last known address of [name of client] is [address of client]. There are no pending settings or deadlines, including discovery deadlines, in this case. The settings and deadlines, including discovery deadlines, in this case are as follows: [specify all pending settings and deadlines]. There have not been any hearings in this case. The following hearings have been held in this case and have been recorded by the court reporters set forth below:


46

Type of Hearing

Date of Hearing

Transcript Requested?

Transcript Received?

Court Reporter’s Name, Address, Tel. No.

The discovery period in this suit will continue until [date]. No discovery requests have been served by either party in this case. Petitioner has served Respondent with the following discovery requests and Respondent has served Petitioner with the following responses:

Type of Discovery Request

Served by Petitioner?

Response Served by Respondent?

Yes No Yes No Interrogatories Request for Production Request for Disclosure Request for Admissions [Other discovery requests]

Respondent has served Petitioner with the following discovery requests and Petitioner has served Respondent with the following responses:

Type of Discovery Request

Served by Respondent?

Response Served by Petitioner?

Yes No Yes No Interrogatories Request for Production Request for Disclosure Request for Admissions [Other discovery requests]

There have not been any oral depositions in this case. The following oral depositions have been held in this case and have been recorded by the court reporters set forth below:


47

Name of Deponent

Date of Deposition

Transcript Requested?

Transcript Received?

Court Reporter’s Name, Address, Tel. No.

On entry of an order granting this motion and discharging Movant as attorney of record for [name of client], Movant will provide [name of client] with the originals of all of [name of client]’s discovery responses and documents [name of client] has produced in response to discovery requests.

NOTICE TO CLIENT You are hereby notified that this Motion for Withdrawal of Counsel is set for hearing at the time and place stated below. You do not have to agree to this motion. If you wish to contest the withdrawal of [name of attorney] as your attorney, you should appear at the hearing. If you do not oppose [name of attorney]’s withdrawal as your attorney, you may notify [name of attorney] in writing of your consent to this motion. [Name of movant] prays that the Court enter an order discharging [him/her] as attorney of record for [name of client].

____________________________________ [Name] Attorney for [name of client] State Bar No.: [Address] [Telephone] [Telecopier]


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Notice of Hearing

The above motion is set for hearing on ___________________ at ___________ __.M. in [designation and location of court]. SIGNED on ________________________________.

____________________________________ DISTRICT JUDGE

Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on [date].

____________________________________ [Name] Attorney for [name of client]

AGREED TO AND APPROVED:

____________________________________ [Name of client]


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Appendix #20

CAUSE NO. __________________________________


§ §




CHILD [REN]

§ § §


ORDER ON MOTION FOR WITHDRAWAL OF COUNSEL On [date] the Court considered the Motion for Withdrawal of Counsel of [name of movant]. The Court finds that good cause exists for withdrawal of [name of movant] as counsel. The Court finds that [name of new attorney] has been employed to represent [name of client], that the client has consented to the substitution of counsel, and that the withdrawal of [name of movant] is not sought for delay only. The Court finds that a copy of the Motion for Withdrawal of Counsel was delivered to [name of client], that [name of client] was notified in writing of the right to object to the motion, that [name of client] [has/has not] consented to the motion, that the last known address of [name of client] is [address of client], and that the pending settings and deadlines in the case are as follows: [specify]. IT IS THEREFORE ORDERED that [name of movant] is permitted to withdraw as counsel of record for [name of party] in this case. The Court finds that the last known mailing address of [name of party] is [address of party] and ORDERS that all notices in this case shall be either delivered to [name of party] in person or sent to [name of party] at that address by both certified and regular first-class mail. The Court recognizes [name, address, telephone number, telecopier number, and State Bar of Texas identification number of new attorney] as counsel of record for [name of party] in this case. The Court orders that [name of movant] immediately notify [name of party] in writing of any additional settings or deadlines of which [name of movant] now has knowledge and has not already notified [name of party]. The Court further orders [name of movant] to make available to [name of client], not later than [number] days after the date of entry of this order, the originals of all of [name of client]’s discovery responses and documents [name of client] has produced in response to discovery requests. [Specify any further conditions imposed.] SIGNED on ____________________________.

_____________________________________ DISTRICT JUDGE


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Appendix #21

[Attorney letterhead] [Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] I would kindly request that you read the following acknowledgment and sign the same. The purpose of this acknowledgment is to assure that my file retains a record that I have advised you of your right to investigate the value and characterization of the marital estate, and that you have, at this point, chosen to waive these rights and pursue finalization of your divorce. Upon my receipt of the signed acknowledgment, I will file the same in your file at this office, as a matter currently within attorney-client privilege.

I understand that existing creditor contracts, including without limitation, credit card company contracts, mortgage contracts, motor vehicle financing contracts executed by and between the parties, jointly and/or separately, and another person or entity, shall remain legally binding on the party, parties, persons or entities executing the contract despite language in this decree. A creditor of a party or parties herein is not legally obligated to honor terms contained within this decree that vary from the creditors contract with said party or parties herein.

READ AND ACKNOWLEDGED ON ________________________, 2004. ________________________________ [Client’s Name]

Please return the signed document to my office. Should you have any questions about these acknowledgments, please feel free to contact me at any time. Sincerely, [Attorney’s Name]


51

Appendix #22

[Attorney letterhead] [Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] I would kindly request that you read the following acknowledgment and sign the same. The purpose of this acknowledgment is to assure that my file retains a record that I have advised you of your right to investigate the value and characterization of the marital estate, and that you have, at this point, chosen to waive these rights and pursue finalization of your divorce. Upon my receipt of the signed acknowledgment, I will file the same in your file at this office, as a matter currently within attorney-client privilege.

I acknowledge that the filing of a bankruptcy by [Opposing party] or myself subsequent to this decree may affect the award of any judgment awarded in this decree to either party, may have the result of shifting contractual debt responsibilities despite how such debt are distributed in this decree, and may otherwise affect monetary and debt responsibilities set forth in this decree. I understand it is each party’s individual responsibility to consult with a bankruptcy attorney as to how bankruptcy may affect the property division contained herein.

READ AND ACKNOWLEDGED ON ________________________, 2004. ________________________________ [Client’s name]

Please return the signed document to my office. Should you have any questions about these acknowledgments, please feel free to contact me at any time. Sincerely, [Attorney’s name]


52

Appendix #23

[Attorney letterhead] [Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] Please find enclosed a certified conformed copy and a regular conformed copy of the [name of final order] entered in the above styled and numbered cause on [date order was entered with the Court]. Please note that the order has been certified. This means that it has a raised seal signed by the clerk next to the Judge’s signature. The Court only allows one certified copy per party for free. Thereafter, you have to pay one dollar per page. If you should require another certified copy, you will have to go to the basement of the [Courthouse where case was filed]] and they will provide you one for the fee. Therefore, you must use your certified copy wisely and do not give it to anyone unless it is absolutely necessary. Additionally, it is important for you to know that each party has a period of 30 days from the date the Judge signed the order to file a motion for new trial and/or notice of appeal, and a period of 20 days from the date the Judge signed the order to request findings of facts and conclusion of law (in anticipation of appeal). Although I do not anticipate this will happen in your case, should you discover some type of information, which would lead you to believe that different orders are necessary, then you must contact immediately. It was a pleasure to represent you. Sincerely, [Name of attorney]


53

Appendix #24

[Attorney letterhead] [Date] [Addressee/Client] [Re: Style of Case] [Dear Client:] I hope this letter finds you well. As your case has been concluded, I will begin closing out your file. If there are any original documents, audio/video tapes, photographs or other miscellaneous items you provided me which you need back, please let me know so I can get those to you before placing your file in storage. Once your file is placed in storage, it will cost [amount] to retrieve it, however, I do not anticipate your file being sent to storage for [months/years]. If, after your file is placed in storage, you find you require copies of any court orders, you can obtain the same at the Records Division of the [Name of County Courthouse where Case was filed], currently located at [Courthouse address]. Your file will eventually be destroyed. It was a pleasure to represent you in this matter. I wish you the best. As always, if you have any questions, please feel free to give me a call. Sincerely, [Name of attorney]