Pretrial Matters: Pretrial Matters: Pleadings & MotionsPleadings & Motions

© © Professor Mathis-RutledgeProfessor Mathis-Rutledge

After the client interviewAfter the client interview

Analyze facts – determine duties of Analyze facts – determine duties of partiesparties

What are the provable factsWhat are the provable facts What was the harm or injuryWhat was the harm or injury What remedies are you seekingWhat remedies are you seeking

Need More Info.Need More Info.

Discovery Before the LawsuitDiscovery Before the Lawsuit Rule 202 of the Texas Rules of Civil Rule 202 of the Texas Rules of Civil

ProcedureProcedure File a petition for depositionFile a petition for deposition

Purpose: to investigate potential claimPurpose: to investigate potential claim

The Civil ProcessThe Civil Process

A lawsuit is filed – “the complaint”A lawsuit is filed – “the complaint” An answer must be filed by the An answer must be filed by the

respondentrespondent Discovery process – interrogatories, Discovery process – interrogatories,

depositions, request for productiondepositions, request for production If case not disposed of – summary If case not disposed of – summary

judgment: judgment:

TrialTrial

The Criminal ProcessThe Criminal Process

The prosecution begins – the information The prosecution begins – the information or indictmentor indictment

Arraignment in front of judge or Arraignment in front of judge or magistrate defendant answers guilty or magistrate defendant answers guilty or not guiltynot guilty

No formal discovery processNo formal discovery process The defendant is allowed to file discovery The defendant is allowed to file discovery

motionsmotions If motion to suppress or quash indictment If motion to suppress or quash indictment

is not granted: trialis not granted: trial

Criminal v. Civil LawCriminal v. Civil LawCivilCivil CriminalCriminal

Parties Parties InvolvedInvolved

Individuals or Individuals or BusinessesBusinesses

Plaintiff/DefendantPlaintiff/Defendant

Petitioner/RespondentPetitioner/Respondent

Government & Government & Individuals or Individuals or BusinessesBusinesses

Prosecutor/Prosecutor/DefendantDefendant

Nature of the Nature of the CaseCase

whether one party has whether one party has harmed anotherharmed another

whether one party whether one party has violated the has violated the laws meant to laws meant to protect society as a protect society as a wholewhole

Initiating Initiating DocumentDocument

Petition/ComplaintPetition/Complaint Indictment/Indictment/InformationInformation

Burden of Burden of ProofProof

Preponderance of the Preponderance of the Evidence or Evidence or

Clear and Convincing Clear and Convincing EvidenceEvidence

Beyond a Beyond a Reasonable DoubtReasonable Doubt

Defendant’s Defendant’s LossLoss

LiabilityLiability GuiltGuilt

PenaltyPenalty Damages to Damages to Compensate for LossCompensate for Loss

PunishmentPunishment

Going to court & filing suitGoing to court & filing suit

Which court(s) have jurisdictionWhich court(s) have jurisdiction Prepare the petitionPrepare the petition

Caption (name of case and court)Caption (name of case and court) Residences and names of partiesResidences and names of parties Statement of facts to give noticeStatement of facts to give notice Demand for relief sought (in alternative Demand for relief sought (in alternative

or combination)or combination) Signature of attorney of record, state Signature of attorney of record, state

bar #, address & phone numberbar #, address & phone number In Texas, the firt signature is included “the In Texas, the firt signature is included “the

attorney in charge”attorney in charge”

Submit to courtSubmit to court

Original petitionOriginal petition Copy of petition for each defendantCopy of petition for each defendant Check for filing feeCheck for filing fee

Before the answerBefore the answer

Before entering an appearance – Before entering an appearance – certain responsive pleadings should certain responsive pleadings should be filedbe filed

Challenge to jurisdiction – special Challenge to jurisdiction – special appearanceappearance

Motion to Transfer venueMotion to Transfer venue

The AnswerThe Answer

Challenge jurisdictionChallenge jurisdiction Specific denialsSpecific denials General denialsGeneral denials Affirmative DefensesAffirmative Defenses Signature by attorney of record, Signature by attorney of record,

telephone, address, state bar telephone, address, state bar numbernumber

Certificate of serviceCertificate of service

Sample DocumentsSample Documents

Form booksForm books Procedure booksProcedure books Firm pleading banksFirm pleading banks

Pre-Trial Motions &Pre-Trial Motions &MemorandaMemoranda Filed in the trial court (district court)Filed in the trial court (district court) Motion – device to request an orderMotion – device to request an order

Motion to compel; motion for sanctions; Motion to compel; motion for sanctions; motion for continuancemotion for continuance

After a motion is filed, the other After a motion is filed, the other party may respondparty may respond

Each party must file a brief – or Each party must file a brief – or memorandum of lawmemorandum of law

The memo should explain why the The memo should explain why the party should prevailparty should prevail Describes & analyzes legal authoritiesDescribes & analyzes legal authorities Includes the parties’ argumentsIncludes the parties’ arguments

When Filed?When Filed?

Motions can be filed at Motions can be filed at almost any point during almost any point during the litigation.the litigation.

Motions before the trial Motions before the trial are generically called are generically called “pretrial motions.”“pretrial motions.”

Who Files?Who Files?

Any party may fileAny party may file The party who files is called the The party who files is called the

movantmovant The other party is the respondent or The other party is the respondent or

non-movantnon-movant

AudienceAudience

Primary is the trial judgePrimary is the trial judge Secondary audience:Secondary audience:

Judge’s clerkJudge’s clerk Opposing counselOpposing counsel Other attorneys in your firmOther attorneys in your firm Your clientYour client Possibly an appellate courtPossibly an appellate court

PurposesPurposes

Persuade the courtPersuade the court Educate the courtEducate the court Inform opposing counsel of positionInform opposing counsel of position Show client work performed on its Show client work performed on its

behalfbehalf

Parts of a PretrialParts of a PretrialMemorandum or BriefMemorandum or Brief CaptionCaption TitleTitle Introductory Introductory

statementstatement FactsFacts Issue(s)Issue(s)

Arguments & Arguments & authoritiesauthorities

ConclusionConclusion Signature blockSignature block certificate of certificate of

serviceservice affidavits & affidavits &

evidenceevidence

Pretrial motionsPretrial motions

Motion to DismissMotion to Dismiss Texas: something wrong with the Texas: something wrong with the

lawsuit that entitles defendant to lawsuit that entitles defendant to dismissal if problem is not cureddismissal if problem is not cured

Failure to prosecute, lack of jurisdiction, Failure to prosecute, lack of jurisdiction, failure to comply with discoveryfailure to comply with discovery

Federal (Rule 12(b)(6) – failure to state a Federal (Rule 12(b)(6) – failure to state a claimclaim

Summary JudgmentSummary Judgment

GeneralGeneral Filed if there is an absence of a genuine Filed if there is an absence of a genuine

issue of material fact and movant is entitled issue of material fact and movant is entitled to win as a matter of lawto win as a matter of law

Standard – evidence must be construed in Standard – evidence must be construed in the light most favorable to the non-movant.the light most favorable to the non-movant.

Based on depositions, affidavits of Based on depositions, affidavits of admissible facts, interrogatories, other admissible facts, interrogatories, other discovery responses, stipulations and public discovery responses, stipulations and public recordsrecords

Summary JudgmentSummary Judgment

Summary JudgmentSummary Judgment TexasTexas

No evidence under Rule 166aNo evidence under Rule 166a Alleging no evidence to support one or more Alleging no evidence to support one or more

of the specified elementsof the specified elements ““Regular” Motion for Summary Regular” Motion for Summary

JudgmentJudgment

Local RulesLocal Rules

Always consult Always consult local court rules.local court rules.

Surfing Surfing assignment:assignment:

http://www.txs.ushttp://www.txs.uscourts.gov/courts.gov/

Look practice/ Look practice/ judge’s judge’s proceduresprocedures