ADVANCED CYA FOR THE FAMILY LAW ATTORNEY
J. STEVEN KING HEATHER L. KING CURRAN S. KUBES
The King Firm
2900 Airport Freeway Fort Worth, Texas 76111
(817) 838-3338 / 838-3545 fax
*Reprinted from The Ultimate Trial Notebook: Family Law 2004 Course Book
State Bar of Texas THE ULTIMATE TRIAL NOTEBOOK: FAMILY LAW
December 7-8, 2006 New Orleans, LA
CHAPTER 15
J. Steven King The King Firm
2900 Airport Freeway Fort Worth, Texas 761 11
(817) 838-3338 1 838-3545 fax 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 American Academy of Matrimonial Lawyers, President - Texas Chapter Member, International Academy of Matrimonial Lawyers Member, Texas Academy of Family Law Specialists Council Member, Family Law Section of the State Bar of Texas, 1996 to 2002 Past Director, Tarrant County Bar Association Past Director and President, Tarrant County Family Law Bar Association Member, College of the State Bar of Texas Member, Who's Who Among Outstanding Americans
A wards & Recocrnition
Recipient, Eva Barnes Award for Significant Contributions to Family Law 2001 Selected in The Best Lawyers In America 1999 through 2006 Selected as a Super Lawyer by Texas Monthly Magazine in 2003 through 2006
Law Related Seminar Publications & Participation
AuthorISpeaker, of numerous articles, presentations and/or seminars primarily related to family law, from 1991 to present.
Law Related Periodical/Magazine Publications
Author, "Beating Out The Big Firms1', Texas Lawyer, Vol. 18, No. 21, July 29, 2002.
Heather L. King The King Firm
2900 Airport Freeway Fort Worth, Texas 761 11
(817) 838-3338 1 838-3545 fax [email protected]
www. king familylaw.com
Education/License B.A., Texas Christian University, 1987, J.D., Texas Tech University School of Law, 1995 Board Certified - Family Law, Texas Board of Legal Specialization, December of 2000
Professional Activities President, Tarrant County Family Law Bar Association, 2002 Member, State Bar of Texas, Family Law Section Parenting Plan Committee 2005-2006 Officer, Tarrant County Bar Association, 2005 to Present Director & Officer, Texas Academy of Family Law Specialists, 2003 to Present Council Member, Family Law Council, State Bar of Texas, 2004 to Present Member, Texas Family Law Bar Foundation 2004 to Present Fellow, American Academy of Matrimonial Lawyers, 2005 to Present
A wards/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, 2004,2005 & 2006 Who's Who in Executives and Professionals 2003 Top Attorneys 2003 featured in Fort Worth, Texas Magazine 2003,2004 & 2005 Top Fifty Female Attorneys in Texas, Texas Monthly Magazine 2004, 2005 & 2006 Top Fifty Female Super Lawyers, Texas Monthly Magazine 2006 Top 100 Lawyers in Dallas Fort Worth, Texas Monthly Magazine 2006 The Best Lawyers In America 2007
Law Related Seminar Publications & Participation Author and/or Speaker and/or Director of over fifty articles, presentations and/or seminars primarily related to family law, from 1997 to the present
Law Related Periodical/Magazine Publications Author, "Beating Out The Big Firms", Texas Lawyer, Vol. 18, No. 21, July 29, 2002. InterviewedIQuoted "Divorce 1011', Fort Worth Magazine, July 2003 edition. Author, "Basic Internet Searches for Persons and Assets", The College Bulletin, News for Members of the College of the State Bar of Texas, Summer 2006
Law Related Books Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, ldeas & Outlines, Heather King, Bruce Beverly & Syd Beckman (Imprimatur Press 2000). Author, Texas Family Law: Direct & Cross Examination, Suggesfed Questions, ldeas & Outlines, A Focus on Children, Heather King, Bruce Beverly & Syd Beckman (Imprimatur Press 2002). Author, Texas Family Law: Direct & Cross Examination, Suggested Questions, ldeas & Outlines, A Focus on Propetty, Heather King, Bruce Beverly, Syd Beckman & Randal Wilhite (Imprimatur Press 2004).
Curran S. Kubes The King Firm
2900 Airport Freeway Fort Worth, Texas 761 11
(817) 838-3338 1 838-3545 fax www.kingfamilylaw.com
Education B.S., Texas Christian University, 2001 J.D., Texas Wesleyan university School of Law, 2004
Professional Activities Member, Eldon B. Mahon Inn of Court, 2006-present Member, Tarrant County Family Law Bar Association, 2005present Member, Tarrant County Bar Association, 2005-present Member, Tarrant County Young Lawyers Association, 2005-present Member, State Bar of Texas - Family Law Section, 2005-present Member, American Bar Association - Young Lawyers' Division, 2005-present Member, American Bar Association - Family Law Section, 2006-present
Graduate & Undergraduate Activities Vice President of Programs, Women Law Students1 Association, 2002-2003 1 L Representative, student Bar Association, 2001 -2002 Member, Student Bar Association, 2001 -2004 Member, Women Law Students' Association, 2001-2004 Member, Law Student Division of the State Bar of Texas, 2001-2004 Member, Delta Theta Phi law fraternity, 2001 -2004 Secretary, TCU Criminal Justice Society, 1999-2000 Member, TCU Criminal Justice Society, 1998-2001
Work Ex~erience Student Attorney, Texas Wesleyan Law Clinic, 2004 Pro Bono Work, Beaumont District Attorney's Office, 2003 Street Law Program (Volunteer outreach),-2003 Law Clerk, Richard Alley, 2002-2003 Intern, Internal Revenue Service, 2003 Intern, 371" District Court, 2002 Intern, Fort Worth Federal Public Defender's Office, 2001 Runner, Fillmore Law Firm, 2000-2001 Copy Editor, Port Arthur News, 1999
Table of Contents
........................................................................... Who's Running the Show? 1
......................................................................................... APPENDIX A 4
......................................................................................... APPENDIX B 8 APPENDIX C ......................................................................................... 9
......................................................................................... APPENDIX D 10 ......................................................................................... APPENDIX E 11
Advanced CYA for the Family Law Attorney:
................................................................................... I . Introduction -12 ........................................................................... I1 . Preventative Action 12
................................................................ A . Efficient Calendaring 12 ............................................................... 1 . Attentive Staff 12
.............................................. 2 . Pre-Date Tickle Calendaring 12 ........................................................ . 3 Backup Calendaring 13
.............................................. B . Written Communication with Client 13 ............................................................. 1 . Welcome Letter 13
............................................. 2 . Introduction to Lawsuit Letter 13 3 . Get Ready for Court 1 Rules for Testifying Letter ..................... 13
C . Be Prepared, or at Least Look that Way ......................................... 1 4 .................................................................. D . Save Compliments 14
............................................................... I11 . Discovery Response Failures 14 ................................................................. A . Discovery Calendar -14
B . Discovery-Related Letters ......................................................... 14 1 . Initial Discovery Letter .................................................... 14
............................................................ 2 . Reminder Letter 15 3 . Client Waives Discovery, the CYA Letter .............................. 15
........................................................... 4 . Deposition Letter 15 C . Dealing With Discovery Failures ................................................. 15
............................................................. 1 . Early Detection 15 ................................................ . a Rule 1 1 Agreement 15
b . Motion to Extend Time to Respond ............................. 15 2 . Last Minute Panic - Avoiding the Exclusion of Evidence ............ 15
................................................. . a Opposing Counsel 15 b . Move for Continuance ............................................ 15 c . Understand the Rules of Sanctions .............................. 16
................................................. 1) TRCP 215 16 2) Application of TRCP 2 1 5 ............................... 16
a) Death Penalty Sanctions ........................ 16 b) Suits Affecting the Parent-Child
...................................... Relationship 16
.................................................................. 3 . Good Cause 17 a . Cases Where Good Cause is Found to Exist ................... 17
.............. . b Cases Where Good Cause is Not Found to Exist 17 ........................... c . Make a Good "Good Cause" Record 17
....................................................... 4 . Deemed Admissions 18 a . Express the Import of Timely Admission Responses
...................................................... to Your Client 18 b . Ask for an Extension ............................................. 18
.......................... c . Respond Without Your Client's Input 18 ............. d . Dealing with Your Client's Deemed Admissions 18
..................... 1) Move to Extend Time to Respond 18 2) Move to Withdraw or Amend Deemed Admissions .. 18
.................................. a) Form of Motion 18 .............................. b) Burden & Analysis 19 ............................. c) Standard of Review 19
3) Argue Deemed Admission is Outside Scope of Discovery .................... 20
................ 4) Argue Reliance on Admission Waived 20 ......................................................... 5 . Sending Discovery 20
............................................. a . Uncontested Divorce -20 ...................................................... b . Pro Se Parties 20
....................................................... IV . Suppressing Deposition Transcripts 20
................................................... V . Inventories. the Double Whammy CYA 20
.................................................................. VI . Suppressing Social Studies 21
.............................................................................. VII . Pleading Failures 21 ............................................ A . Mandatory Pleadings in Family Law -21
.................................................................. B . Trial Amendments 22 .................................................. 1 . Move for a Continuance -22
......................................... 2 . Seek Admission of the Evidence 22 ................................................... 3 . Make a Written Motion -22
................................................................. C . Burden & Analysis -22 ....................................... 1 . Non-Mandatory Trial Amendment 22
.......................................... 2 . Mandatory Trial Amendment 2 2
.............................................................................. VIII . The Lying Client 23
................................................................. IX . Withdrawing from the Case 23 ............................................................... A . Timing of Withdrawal 23
....................................... 1 . Proper Form of Motion and Order 23 3 . Request Continuance or Extension if
.................................... Near Deadline Prior to Withdrawing 24 ............................................. . 4 Notice of Intent to Withdraw 24
5 . Make a Record .............................................................. 24
X . Accidental Disclosure of Confidential Information 1 Snap Back Rule ................ 24
XI . Make a Good Record ....................................................................... -25
XI1 . Closing CYA .................................................................................. 25 A . Get Your Closing Documents Done .............................................. 25 B . Bankruptcy .......................................................................... -25
.................................................................... C . Outside Contracts 25
.................................................................... D . Thirty-Day Letter 25 ................................................................. E . Closing File Letter -25
............................................ F . Filing Documents with Deed Records 25 .......................................... 1 . Real Estate Closing Documents 25
................................................................... 2 . Judgments 26
XI11 . Conclusion .................................................................................... 26
APPENDIX # 1 ......................................................................................... 27
APPENDIX #2 ......................................................................................... 29
APPENDIX #3 ......................................................................................... -30
APPENDIX #4 ......................................................................................... 31
APPENDIX #5 ......................................................................................... 34
APPENDIX #6 ........................................................................................ -36
APPENDIX #7 ......................................................................................... 37
APPENDIX #8 ......................................................................................... 38
APPENDIX #9 ........................................................................................ -39
APPENDIX # 1 0 ...................................................................................... -40
APPENDIX #11 ...................................................................................... -42
APPENDIX # 1 2 ...................................................................................... -43
APPENDIX # 1 3 ...................................................................................... -44
APPENDIX #14 ...................................................................................... -45
...................................................................................... APPENDIX # 1 5 -47
APPENDIX # 16 ...................................................................................... -48
....................................................................................... APPENDIX # 1 7 49
....................................................................................... APPENDIX # 1 8 50
...................................................................................... APPENDIX # 1 9 -51
APPENDIX #20 ....................................................................................... 55
...................................................................................... APPENDIX #2 1 -56
....................................................................................... APPENDIX #22 57
....................................................................................... APPENDIX #23 58
...................................................................................... APPENDIX #24 -59
WHO'S RUNNING THE SHOW?
The client has the same obligation as the attorney to "properly present [his] case and to not abuse the system for [his] own gain or the gain of others."'
We, as lawyers, have a duty to our clients and colleagues to uphold the integrity of our profession to the highest standard. The Texas Lawyer's Creed outlines and defines our ethical obligations to our legal system, our clients, our opposing counsel, and to the judge. [Appendix A.] The Creed states:
"I will be loyal and committed to my client's lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice. I will advise my client that civility and courtesy are expected and are not a sign of weakness.. . A client has no right to demand that I abuse anyone or indulge in any offensive conduct."
For example, if a client persists in his endeavor to maliciously leak information unrelated to his case to the public through filing a frivolous pleading, it is our responsibility as that client's attorney to advise against such action. If the client refuses to accept our objective and independent advice, then it is our ethical obligation as that client's attorney to withdraw from the case and uphold the Texas Lawyer's Creed.
The aforementioned example recently occurred in the 325th District Court of Tarrant County, Texas. An irrelevant, groundless, and improper pleading was filed in one of my divorce cases for the sole purpose of distributing private information about an unrelated party to influence an upcoming judicial election.
Rule 13 of the Texas Rules of Civil Procedure states that the "signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of hara~sment."~ Bad faith exists not when a party "merely exercises bad judgment or is negligent," but rather when the party consciously commits "a wrong for dishonest, discriminatory, or malicious purposes."3
In Judge Wells's ruling, she gave the following admonishment to the attorney who filed the groundless pleading:
1 Judge Wells, excerpt from judgment given in the 325th District Court, June 12,2006. 2 TCRP 13. 3 Appleton v. Appleton, 76 SW3d 78, 86-87 (Tex. App.- Houston [14' Dist.] 2002, no pet.)
"You, sir, are counsel of record. You have a duty not only to your client, but to the Court and to the profession to advise your client how to best present his case. It is not your duty to be his puppet by drafting his version of a John Grisham novel and putting forth in court or on paper anything that pops into his head, and if he insists that you do, it is your duty to withdraw in the case."
It seems that this type of behavior would not be an issue among our colleagues. When we practice law adhering to our own code of ethics, we expect the same from our fellow attorneys. However, as a practical matter, situations like this do occasionally arise where the client's andlor the opposing counsel's behavior is questionable. When this occurs, if we perceive the damage caused to be egregious, we have the duty to seek punishment by sanctions.
The Texas Lawyer's Creed states to only seek sanctions if "it is necessary for protection of [our] client's lawfbl objectives or is fully justified by the circumstances." [See Appendix A.] In this particular case, I felt obliged to protect both my client and all other parties involved by filing a motion for sanctions against both the opposing attorney and his client (who is an attorney himself.) The Fort Worth Star Telegram published widespread editorials throughout Tarrant County describing the events of the sanctions hearing. [See Appendices B,C,D, & E.] Judge Wells sanctioned both the attorney and the client in her judgment.
To the attorney, she stated:
"At best, you allowed yourself to be used not only to the detriment of yourself, but to the detriment of this Court and to the profession. At worst, you conspired with your client to commit an unspeakable wrong in the name of justice."
To the attorney-client, she stated:
"...As a lawyer, you have the same duty as [your attorney] to properly present your case and to not abuse the system for your own gain or the gain of others. It is your duty to this Court and to the profession to do so.. ."
In summary, it is important not only to provide your clients with a copy of the Texas Lawyer's Creed at the beginning of your relationship with them, but to uphold the Creed and abide by ethics for which it stands. In particular, you should inform your clients of the ethical standards we are all expected to uphold and the consequences of disregarding these standards. If, like in the aforementioned case, the client insists on a certain course of unethical action, it is your duty to CYA and withdraw from the case.
The following article, "Advanced CYA for the Family Law Attorney," was previously presented at the 2005 State Bar College "Summer School" and reprinted from
The Ultimate Trial Notebook: Family Law 2004 Course Book. It not only contains advice for dealing with unethical clients, but comprehensive CYA advice for the practice of family law.
I will leave you with this: Like Judge Wells stated in her judgment, the courtroom is not the place to act out our own versions of a John Grisharn novel. And as I always say, we are not lackeys for our clients.
Appendix A
The Texas Lawyer's Creed
I am a lawyer; I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.
Our Legal System
A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.
1. I am passionately proud of my profession. Therefore, "My word is my bond." 2. 1 am responsible to assure that all persons have access to competent
representation regardless of wealth or position in life. 3. 1 commit myself to an adequate and effective pro bono program. 4. 1 am obligated to educate my clients, the public, and other lawyers regarding
the spirit and letter of this Creed. 5. 1 will always be conscious of my duty to the judicial system.
Lawyer to Client
A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate legal means to protect and advance the client's legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.
1. I will advise my client of the contents of this creed when undertaking representation.
2. 1 will endeavor to achieve my client's lawful objectives in legal transactions and in litigation as quickly and economically as possible.
3. 1 will be loyal and committed to my client's lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.
4. 1 will advise my client that civility and courtesy are expected and are not a sign of weakness.
5. 1 will advise my client of proper and expected behavior. 6. 1 will treat adverse parties and witnesses with fairness and due consideration.
A client has no right to demand that I abuse anyone or indulge in any offensive conduct.
7. 1 will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.
8. 1 will advise my client that we will not pursue tactics which are intended primarily for delay.
9. 1 will advise my client that we will not pursue any course of action which is without merit.
10. 1 will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client's lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.
11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.
Lawyer to Lawyer
A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.
I will be courteous, civil, and prompt in oral and written communications. I will not quarrel over matters of form or style, but I will concentrate on matters of substance. I will identify for other counsel or parties all changes I have made in documents submitted for review. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are canceled. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected. I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or
acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.
11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel's intention to proceed.
12. 1 will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.
13. 1 will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.
14. 1 will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.
15. 1 will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.
16. 1 will refrain from excessive and abusive discovery. 17. 1 will comply with all reasonable discovery requests. I will not resist discovery
requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.
18. 1 will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.
19. 1 will not seek sanctions or disqualification unless it is necessary for protection of my client's lawful objectives or is fully justified by the circumstances.
Lawyer and Judge
Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.
1. I will always recognize that the position of judge is the symbol of both the judicial system and the administration of justice. I will refrain from conduct that degrades this symbol.
2. 1 will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.
3. 1 will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.
4. 1 will be punctual. 5. 1 will not engage in any conduct which offends the dignity and decorum of
proceedings.
6. 1 will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.
7. 1 will respect the rulings of the Court. 8. 1 will give the issues in controversy deliberate, impartial and studied analysis
and consideration. 9. 1 will be considerate of the time constraints and pressures imposed upon the
Court, Court staff and counsel in efforts to administer justice and resolve disputes.
' Wemust do better,
. .. .. . . . . .. . . . .. . .. . - . .. . .- - APPENDIX B . -. .. .. . - . ZE I Sunday. AV!II 23. Z F . . T ' wwwstar-telegram.com
.a. . wes~~r R.'RIRN~R; ~m+kant APUWB~BT . Sm.%legFm o p l ~ ~ . , ~ K . ~ , m ~ a n d ~ h JIM ~~~ senior ~ ~ d e n t ~ b J ~ c u ~ & ~ I t o r hotha - - m - o & o m o f k ~ as determined - by membeqof lem18 to the the editoripl board '
. . . . B he ~epubllcan pririrary battle for atteipt to alert voters abo the 324th Dlstrlct Couri was as . ~ s p e r s o u a l shortaomings
om M L S S I ~ : Earning the ~eo~le's Trust Daily
ugly a s a mud tepee -and a strong EbiEy were injected into a k c e case piece of evidence agalnst partisan uoxelated tQ the race. judlclal races. . . On.Aprg3, aa6meyJ guitls . . . W'Y. an a ~ l m o ~ e ~ i b - . I
AMON h CARTBR POUndbPubliBh~ 19061855. ' - the oplnions of the indiddud ~vriters and artists. AXON G CAR~UR JU., ~ t ~ b h e r 10551~82 m ~ r n . a . * m ~ 1 ~ ~ . 1 ~ r . ~ ~ ~
Some of the dispute that'agonize their way h u & T b m t Cowty's
. family c o w &e bitter p q d attacks to levels of ~ k i o l bwond
,I .mi ~ e n y S p ~ s ~ ~ v ~ ~ c t a c l e b . 'But who would have h o r n thnt a
. zab for family court
For instance, his campaignmailed out postcards that loolooked and sound- ed as if they were sent by Re ubUm prechtt c h a i ~ ~ ~ e n backing&, However, swenl ofthost recinct leaders neitlier endorse&Dor agreed to let him use theu nnmes and addresses on his mailers.
fellow precinct chairs about bis die
z " f P whcise &mail said that 9 court race,"was notmen
on niy radar" before helearned of the misleading endowment cards. also
civil court judge. Some 0th supporters knew about it. which was , - - notarized in Wet V '
~eanwhile, pnUg?Naipportel put up a Web site asking qutstions a b o u t p 1993 bankiuptcy and an al wrth a legal assistant
rimoff - sode vo*16&&@( &$ gfter.the voting,- %SSL it. cam~airign had little
e m Gray and her atttd6y;E~Wen Wg, asked *st 1w.W~ :~rd- be sanctioned for iikig.p&0ti06 &if was "groundless 4 ~ 3 , M P n Z ::! served absolutely n o ' ~ ~ t b p b ~ " g i l ~ : ~ purpose whatsoevei."$a'$&~: ' !-; ~ipy'sfiliMdPimed thit g&ahe and~ay GS had used q t : and that drug use led w b$
t h a n ~ 1 0 0 , ~ ~ ~ f ~ c e ~ . ~ m - j ~aignlEioa aave two tlo~p%lbn6bfi
paign finannmponi: t: Y" ' Reports show
' " ~ t a r - l b l ~ & l & r d determined tha best candidate jn snce based on his ejrperience and ciedenWi-
w h o ~ l o s t a ~ e l + t i o q ~ d for i . c d court in 2002;b doiiciittle
family law in ~ c e d t @fs...;: ' i
Lawyers who regalodfp&i& family law prqbably &e.&e best,
'
sense of which &hdi&teil$ve b e howledge a d tempdrament to han- dle the thorny and emotional disputes in familv court.
Still, ibe Editorial Board has long argued that it's unseemly for judicial races to be f m c e d Lui?tl~ by Law- - . ... yers who practice before the iudges they help elect. .
There must be a better way. We . have advocated a mtem of auuoint-
from alawfum. .' - . ' ments by the governor based-n rec- That information could be re1 pant ommendatiom from a bipartism.
to voters' judgment abou -I' ;;zisssse nonpartisan reten- fitness for &e h c y co Howe"er, the Web site owner deliber- Nutv volitics can't be eradicated 1
s c&paign made a last-&= waged in the . - - I
. . ' . . . . Two lawyen are fined by a'judge ,
, for fillrig dpcuments used tqsmear a judiclal~candidate.. . . . . . . . . .
B~MAXB.BAEER. . . . SUR-TElgdRAM JUIPP WRlTER
..... FORT WORT& - l k o ~ o a h T ~ S laivyers have l?een &t with $37,000 in' fines and fees for making embarrassing allegations in court'documents about a judicial candidate, which created politi- cal re~&t:ussions and plot twists wor-
contained diegations &out an af- fair by state ~is t r ic t ~udge-
%ose allegations were tben usedby
1 bv drafting his verdon of a John Grish: & novel &d forth-in court or on paper anything that pops into his head," state Diskrict Judge Judith Wells
More on FINES on 9B
:mom f?ark'. Weatherford . White Settlement I
APPENDIX C
retiring. state District Court 'Judge Brian Carper. He. does not have a Democratic oppo- nent h Novcnibu.
M y g h ends;
and t be t
about brPkruptciea msrltd problems rndquestionibIcp+ litrcal endorsements. But it
'Gny also sdd he was con- cerned about(.)'s impu- tidiry because Gny was ac- tively working for _'s opponent in the March COP
ent out in the'fmd
to the heuings in Welli' coutt,
I primary. h che same court docu-
ment, Cray also said he wiu in-
,
volved in the race between
. was bray quotin and* h m a.
ve stateDisCrict Judge emoved from p r ~ t - '
ing ovu Gray's divorcc. Gray made therequest afte said i d ~ g i have fried- mind, moon other thines.
I Iail rnd thzt she had a ~ ~ e u c d
ofice sdg legal' help but that she never spoke to her or
also testified tbat
he thought it k s an "absolute perversbn of the legal systerri"
hb~evei, told the ' . Star-2kIegra.m:earlier this year 1
' that he had had a "relativelv . . short n8& with the woman.'
ma& between Cny aud &were entered into eti- dence showhi. that
' ~ r k r d Gnv to dve hLnm davit concern& his conversa- tion w i ~ e s mismess. Grav sent hun a CODV of court docbents before -they were fded, saying, 'It is better that ii did not come from you but. &om a motion fded in another couh That way it .does not look like you slingbgmud"
Cray also testified rhat he was asked to talk to the miF-
ictiolrr.- 1 don't w d any-
thisg wrong,"- said "Public recor a DU c rec. arb" -
M- 2 un, w-r+rn; "Ybzbf l -uFm
. . . APPENDIX D
. . . . . . . . . . . . . . . . .
I
. .
:. .. . . . . . .,, .
C~ltugktr6~ mi~~inatlo~ns ?this Sega!draM' Is enouph to make pu .'
. . . , 'I& s6idp&p o& tlht Playid &$.in.wllrabt Co1mty's3~25th District' ' Court bt &had lit@e, ifan#bg, b.ho iAith the Bmorty case styled *
~ G m h Gray t h a t b r o d t about the :
stud; in &&orce case. .'-one'judge'b foJ mou&, mbth&s . .- f i d ~ e s s , r+duceiI a ' dd pawnomind a judicial . s d o n of Gray's court filing bn a I
AP
PE
ND
IX E
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Advanced CYA For The Family Law Attorney
ADVANCED CYA FOR THE FAMILY LAW ATTORNEY
J. Steven King, Heather L. King, & Curran S. Kubes 1. Introduction
Remember all of 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 had 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 CYA.
11. 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 jobs. If you don't see the kind of urgency in your staffs 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. He or she 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 nothing is missed. The person(s) handling your calendar should be well educated in calculating discovery deadlines based upon the manner and date of the discovery documents' service on your client,' as well as trial-related deadlines, such as deadlines to amend pleadings or complete discovery. (Discovery calendaring has been s e t out separately in the Discovery section below.) Finally, this person should keep you aware of all pending deadlines.
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
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.
Advanced CYA For The Family Law Attorney
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, he or she needs 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 cases, 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. Backur, 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 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 already been missed, then it will be paralegal #2's responsibility to not only calendar the date, but also to 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 motion, with hearings being set and postponed and reset 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 is that writing it down just gives the client more ammunition to attack you later, and the other side is that it strengthens your defense against the client. 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 # 11 Immediately upon your being hired, you should
forward your client a welcoming letter, letting him or her 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 importantly, it should address your preferred methods of communication. Warn your client in advance if you are a busy litigator and in court often. Let the client know that he or she will be communicating frequently with your staff, and assure him or her 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 e-mails, 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 he or she needs 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 its initial phases, send a letter to the client outlining the Court in which the case is pending, who the presiding judge is and associate judge is, as well as where the Court is located. If this particular Court has any special local rules or traits of which the client should be aware, 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 Readv for Court I 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
Advanced CYA For The Familv Law Attornev
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. The client feels 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 him or her. Let the client know if an in-chambers conference is the most likely occurrence, so he or she can begin to digest the idea that he or she will not be privy to what is happening in the judge's office. Explain to the client 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 he or she deems significant as having lead up to the current status. These are extremely useful in cross- examination, and make the client feel like he or she has 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 himself or herself for failure to provide you the requested information.
C. Be Prepared, or at Least Look that Wav 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 misdirection of the case is due to the client's actions, not the lawyer's. 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 his or her 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 you're familiar with its contents, bring the paralegal who put the file together. He or she can find the items for you. Bring your rulebooks; 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, he or she shouldn't have a complaint about you.
D. Save Compliments Finally, if your client sends you a note or e-
mail, or leaves you a voicemail 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.
111. Discoverv 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. Discoverv 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 backup calendar.) An excellent method of keeping track of discovery is using a four-month dry erase wall calendar used for discovery deadlines only, color-coded for the various types of 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 CYA
than the letters that accompany discovery. A client's failure to timely provide you with the information you need to respond is one of the most common causes of discovery response failures.
1. Initial Discovery Letter [Appendix # 5 ]
2 TRCP 215.
Advanced CYA For The Family Law Attorney
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 Discoverv, the CYA 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 he or she signs correspondence clarifying the rights he or she is 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. Deuosition Letter [Appendix #8] If your client is noticed for deposition, send a letter
explaining the basics of a deposition to him or her. Make certain the client understands the limited availability of depositions and client conferences. Explain that he or she may be asked to respond to questions that might otherwise not be admissible in trial, but he or she 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 the client 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 Discoverv Failures
1. Earlv Detection If discovery failure were 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 you are not going to be
able to respond to the discovery, ask your opponent for an extension. If he or she agrees, immediately prepare and fax to him or her 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 he
or she is 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 sanction^.^
b. Motion to Extend Time to Resuond 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 & #I I]. 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 - Avoidinv 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. Opuosing Counsel If you think 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 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 di~cretion.~ Trial courts are not without the power to
3 Rendon v. Avance, 67 S.W.3d 303 (Tex.App.-Fort Worth, Dec. 06,2001), review granted, cause remanded May 9, 2002.
4 Villegas v. Carter, 7 1 1 S. W.2d 624, 626 (Tex. 1986.)
Advanced CYA For The Family Law Attorney
avoid in j~s t ice .~ 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 c~ntinuance.~ Sanctions for failure to supplement a discovery request do not survive if the trial is continued.' 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.'
c. Understand the Rules of Sanctions If all else fails and you find yourself defending
an objection to admission of information based on discovery failure, know the law and be prepared to use the law to argue in your favor.
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." Rule 215.3 gives a trial court the authority to impose sanctions for abuse of the discovery process." Finally, Rule 215.5 authorizes the court to impose sanctions against a party who fails to properly respond to or supplement discovery requests.12
2) Av~lication 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 i rn~osed . '~ The sanction must
5 Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911, 915 (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.
9 TRCP 2 1 5.
10 TRCP 215.2.
I I TRCP 215.3.
12 TRCP 215.5.
13 TransAmerican Natural Gas Corp. v. Powell, 81 1 S.W.2d 913 (Tex. Jun 19, 1991).
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.I5 A sanction for discovery abuse should be no more severe than necessary to satisfy its legitimate purposes.I6 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."
a) Death Penaltv 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.I8 Keep in mind that the court should 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 Relationshiv As we all know, in family law, the court's primary
consideration is always the best interest of the ~hi ld .~ ' This best interest of a child is something 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 2 15 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
14 Id. At 9 17.
15 Id.
16 Id.
17 Id. At 917-18.
18 Chrysler Corp. v. Blackmon, 841 S.W.2d 844 (Tex. Oct 14, 1992), rehearing of cause overruled (Dec 3 1, 1992), rehearing dismissed (Jan 27, 1993).
19 Transamerica at 9 18.
20 In re P.M.B., 2 S.W.3d 618 (Tex.App.-Houston [14th Dist.] Aug 3 1, 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 [14th Dist.] 1992, writ denied).
22 Id. citing Saxton v. Daggett, 864 S.W.2d 729, 735 (Tex.App.-Houston [Ist Dist.] 1993, no writ).
23 Id. Citing In re Striegler, 915 S.W.2d 629, 643 (Tex.App.-Amarillo 1996, writ denied).
Advanced CYA For The Family Law Attorney
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 Such a sanction should only occur where a lesser sanction is impracticable or has proven unsuccessful after already having been attempted."
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 from 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 is 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 dis~overy.~'
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 te~t ify.~ '
24 Id. At 624-25.
25 Id.
26 Id. At 625.
27 Id.
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. Jul01, 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).
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). 33 Absence of surprise does not equate to good
cause.
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.13'
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.
32 Yeldell v. Holiday Hills Retirement and Nursing Center, Inc., 701 S.W.2d 243 (Tex. Dec 1 1, 1985).
33 Morrowv. H.E.B., Inc., 714 S.W.2d297 (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 Nut. Bank, 784 S.W.2d 669 (Tex. Feb 14, 1990), rehearing of cause overruled (Mar 21, 1990).
39 TRCP 215.5.
Advanced CYA For The Family Law Attorney
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 objection is timely filed.40 Thus, no action is required on the part 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 ~therwise.~ ' 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 admi~sion.~'
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 21 a & 198.2(a); Wheeler v. Green, 1 19 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 [I st dist.] 1988, writ dism'd w.0.j.); Curvyv. 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. Hufi 768 S.W.2d 839, 840 (Tex. App.-Austin 1989, writ denied); Pathfinder Personnel Serv., Inc. v. Worsham, 6 19 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 5 1, 53 (Tex. App.-San Antonio 1991, no writ).
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 n o t 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 provide 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. deal in^ with Your Client's Deemed Admissions
1) Move to Extend Time to R e s ~ o n d If you are within your designated time period to
respond to the admission4' but cannot timely answer, immediately file a written motion to extend your response time [See Appendices # l o and #I l l . 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 m u s t 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 on the motion, it should be filed as soon as the moving party could have or should have known that such admissions
43 See Footnote 1 supra.
44 Cudd v. Hydrostatic Transmission Inc., 867 S.W.2d 101 (Tex. App.-Corpus Christi 1993).
45 Pathjnder Personnel Sew., Inc. at 476.
Advanced CYA For The Family Law Attorney
were deemed admitted, as opposed to laying behind the log until the time of trial.46
b) Burden & Analvsis The burden rests on the party seeking to
withdraw or amend the deemed admissions to prove to the trial court that:
1. Good cause exists for failure to timely respond to the admissions: and
. . 11. The opposing party is not unduly prejudiced in
his or her cause of action by withdrawing or amending the deemed admissions; and
... 111. Withdrawal or amendment of the deemed
admissions serves presentation of the merits of the
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 admission^.^^ 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 indifferen~e.~' 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 admission^."^^ The most common cases where good
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 199 1, 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, 1 13 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 41 1,413 (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.
51 Renee H. Tobias, Deemed Admissions: Tool, Trap or Both?, 46 Baylor L. Rev. 709, 716 (1994) citing Esparza at 776;
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 the 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 or she 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 fact.
(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, 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
Reyes v. International Metal Supply Co., 666 S.W.2d 622, 624 (Tex. App.-Houston [Ist Dist.] 1984, no writ).
52 Texas Employers' Ins. Ass'n v. Bragg, 670 S. W.2d 712, 715 (Tex. App.-Corpus Christi 1984, writ refd n.r.e.); Trevino v. Central Freight Lines, Inc., 613 S.W.2d 356,358 (Tex. Civ. App.-Waco 198 1, 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, 624-25 (Tex. App.- Houston [lst Dist.] 1984, no writ); Agristor Credit Corp. v. Donahoe, 568 S. W.2d 422 (Tex. Civ. App.-Waco, 1978, writ refd n.r.e.).
Advanced CYA For The Familv Law Attorney
preclude granting a motion for leave to
3) Argue Deemed Admission is Outside Scope of Discoverv 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. send in^ 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 toward 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 your client insists on 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
53 North River Ins. Co. ofNew Jersey v. Greene, 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 refd n.r.e.); Texas General Indem. Corp. v. Lee, 570 S. W.2d 23 1, 233 (Tex. App.-Eastland 1978, writ refd n.r.e.1.
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. Suppressinp 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 deposition5' [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 objection^.^^
V. Inventories, the Double Whammv CYA Inventories require twice your attention in the
CYA process. Not only are inventories discovery, thus falling within the rules of sanctions for failure to timely respond,59 but they can also be considered judicial admissions of the content and characterization of the marital estate.60 Therefore, you must not only be certain that they are timely filed, but also that 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
56 Osteen v. Osteen, 38 S.W.3d 809 (Tex.App.-Houston [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 [lst Dist.]. (Inventories are a specie of discovery, thus 2 15 sanctions are available.)
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 0 1, 1994); Roosevelt v. Roosevelt, 699 S.W.2d 372 (Tex.App.-El Paso Oct 30, 1985), dismissed (Mar 05, 1986).
55 Marshall at 700.
Advanced CYA For The Family Law Attorney
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.)
V. suppress in^ Social Studies If you hate the results of the social study on your
client, and you're certain it means the end of your custody case, check the special Texas Family Code rules as they relate to introduction of a social Like all documents, the report is subject to the rules of evidence (such as hearsay, etc ...), meaning that all of the things everyone else said about your client in the report constitute hearsay, and thus are 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 commencement of If any of these rules are violated, you might at least have a chance of keeping out part or all of the social study.
VI. plead in^ Failures
A. Mandatory Pleadinps 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,
61 TEX. FAM CODE jj 107.055.
62 TEX. FAM CODE $107.055(a); TRE 801.
63 TEX. FAM CODE jj 107.055(b)(l)-(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. TRCP 67.
economic contribution, primary conservatorship, written agreements between spouses affecting property (such as pre-marital property agreements, marital property agreements, partition or exchange agreements, or agreements to convert to community property), retroactive child support and attorney's 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 distress;66 transmitting sexual disease;67 unlawful interception of comm~nica t ion;~~ tortious interference with business r e ~ a t i o n s ; ~ ~ tracing; corporate alter egos;70 wrongful interference with ~ont rac t ;~ ' interference with custody against a spouse, a third party, or both;72 parentage (paternity);73 third-party ~ o - t e n a n t ; ~ ~ third-party financial in~titution;'~ third-part fraudulent transfer;76 voiding obligation to third-party; $:
65 Texas Family Practice Manual (3d. ed) Form 3-01; Murff v. Mufj 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 3-3 1 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.
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.
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relief from third-party trustee;78 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 trial)" 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 affidavit.82 Failure to include your affidavit creates a presumption that there is no abuse of discretion by the trial court in denying its3
2. Seek Admission of the Evidence If the trial has already started, try to get the
evidence in anyway. 1t'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
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.
8 1 Garcia v. TDHS, 72 1 S.W.2d 528 (Tex. App.-Corpus Christi 1986).
82 TRCP 25 1; 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 at 626. 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).
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 a Written Motion If you discover the error in your 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 ins~fficient, '~ but courts have permitted them if properly dictated into the record or later filed in writing.87 When making your amendment in writing or orally, make certain to clearly specify the particular pleading being amended.88
C. Burden & Analvsis Case law states that trial courts should liberally
allow trial pleading amendment^,'^ but there are limits.
1. Non-Mandatorv 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 affe~ted.~ '
2. Mandatorv Trial Amendment
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. Zirnlich, 29 S. W.3d 62 (Tex. 2000); see TRCP 66.
87 Pennington v. GurkofJ; 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).
88 10 TEX. JUR. PL. & PR. FORMS 2d $ 196:14 citing TEX. JUR. 3d, PLEADING 4 234.
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).
Advanced CYA For The Family Law Attorney
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 merit^.^' 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
under oath,95 and further advise him or her that you cannot assist the client in his or her lie.96 It is at this point that your responsibility to yourself and to your client becomes extremely del i~ate .~ ' 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
IX. Withdrawinp 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 client's inactions or bad acts are the primary source of your
VIII. The Lving Client troubles, withdrawing is the safest way to CYA. The It is an unfortunate truth that divorce court is necessity or choice to withdraw should be considered
often referred to as "Liar's Court," because those going through family law litigation are often full of emotional distrust and negativity toward not 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 him or her that he or she cannot and must not lie under oath, because it is not only illegal, but being caught in a lie will result in a loss 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,
and addressed as early as possible. If you are currently being paid, anticipate that you will continue to be paid, and (most importantly) 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. Timinp 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
it is your duty to make reasonable efforts under the 1. Proper Form of Motion and Order circumstances to dissuade your client from doing so.94 If, [Appendices # 19 and #20] 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
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 'EX. R. PROF. CONDUCT 1.02(0. (When a lawyer knows that 91 10 TEX.. JUR. PL. & PR. FORMS 2d $196:14. a client expects representation not permitted by the rules of professional
conduct or other law, the lawyer shall consult with the client regarding 92 Id. citing TRCP 66, TEX. JUR. 3d, PLEADINGS (j$ 227 the relevant limitations ofthe lawyer's conduct.) et. seq,, Mcdonald and Carlson, Texas Civil Practice (2d ed.) $lO:11. 97 TEx. R. PROF. CONDUCT 1.02 cmt. 8.
93 TEX. R. PROF. CONDUCT 1.02(c). 98 TEx. R. PROF. CONDUCT 1.02 cmt. 8.
94 TEX. R. PROF. CONDUCT 1.02(d). 99 TRCP 10.
Advanced CYA For The Family Law Attorney
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.Io0 A trial court abuses its discretion when it grants a motion to withdraw that does not comply with the mandatory requirements of Rule 10.lO' 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.Io2 The motion also is required to list all pending settings and deadlines.'03 Typically, error in the form of the motion is harmless if the party has sufficient time to find new counsel to investigate the case and prepare for trial. '04
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.Io5 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.lo6 Only if the trial court allows the unrepresented party 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. lo'
3. Notice of Intent to Withdraw
100 TRCP 10.
101 Gillie v. Boulas, 65 S. W.3d 2 19, 221 (Tex.App.- Dallas 2002, pet. denied); Williams v. Bank One, Tex., N.A., 15 S. W.3d 110, 1 14 (Tex.App.-Waco 1999, no pet.).
102 TRCP 10.
103 TRCP 10.
104 Walton v. Canon, Short & Gaston, 23 S. W.3d 143, 148 (Tex.App.-El Paso 2000, no pet.); Williams at 114.
105 Villegas at 624.
106 Id. At 626.
107 Walton v. Canon, Short & Gaston, 23 S.W.3d 143 (Tex.App.-El-Paso Jun 15,2000) OIJO. 08-99-001 73-CV), rehearing overruled (Aug 02,2000).
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.lo8
1 14. 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.Io9
X. Accidental Disclosure of Confidential Information 1 S n a ~ 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 This rule (TRCP 193.3(d)) is specifically designed for such dilemmas, allowing a party to claim a privilege on inadvertently produced information.'" The purpose of the snap back provision is to reduce costs and risks in large
-- --
Io8 Hardin v. Hardin, 2004 WL 1404484 (Tex.App.- Houston [14th Dist.] Jun 24, 2004) not yet released for publication, (Attorney filed motion two days before the 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 eny 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.l(a).
109 In re Edwards, 2003 WL 22439641 (Tex.App.-San Antonio Oct 29,2003) Memorandum Opinion citing Greenv. State, 840 S. W.2d 394; 408 (Tex.Crim.App. 1992), abrogated on other grounds by Trevino 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.).
TRCP 193.3(d); In re Monsanto Co., 998 S.W.2d 917 (Tex.App.-Waco Aug 3 1, 1999).
111 TRCP 193.3(d).
Advanced CYA For The Family Law Attorney
document product i~n."~ 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 1 identifies the information inadvertently produced;
2) identifies the privilege asserted for that information; and
3) requests that all copies of the privileged information be returned. l3
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 CYA 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.ll4 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 ~b jec t ion . "~
X I . Closing C Y A
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 worst comes to worst 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
TRCP 193.3(d) cmt. 4.
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 #2 11.
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 he or she has chosen to act with this knowledge [Appendix #22].
D. Thirty-Dav 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 a 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), a s this deadline comes up quickly and many are not aware of it.
E. C l o s i n ~ 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 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 a 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
' I 3 TRCP 193.3(d). client is not the real estate recipient, but his or her name remains on the mortgage documents, it is your duty to
Ludlow v. DeBerry(App. 14 Dist. 1997) 959 S.W.2d see that the Deed of Trust to Secure Assumption is 265, rehearing overruled; Chubb Lloyds Ins. Co. of Texas v . filed. Failure to do so could result in your client having Kizer (App. 2 Dist. 1997) 943 S.W.2d 946, rehearing overruled, writ denied, rehearing of writ of error overruled; TRE 103.
TRCP that gives deadline for filing FOFICOL. 115 T R A P 33.1.
Advanced CYA For The Family Law Attorney
no right to protect himself or herself from foreclosure and its accompanying credit problems.
2. Jud~ments 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 turnover 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, not yours."7
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.
'I7 V.T.C.A., Property Code $52.006.
Advanced CYA For The Family Law Attorney
Appendix # 1
[Attorney letterhead]
[Date]
[Re: Slyle 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 froin [time ofice opens] until [time office closes] Monday through Friday. We closed for lunch fi-om [time oflce 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 nle on the status of nly 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 andlor 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 fistrating 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 conlmunicate infornlation, questions or concerns to me, my voice mail [voicemail extensiort], email [el?tail address] and fax Kc1.5 nuntber] 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
Advanced CYA For The Family Law Attorney
believe require attention should be directed to my paralegal, mame of paralegal], or Fisher] 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 fi-ame. 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 ofice sends out billind. 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]
Advanced CYA For The Family Law Attorney
Appendix # 2
[Attorney letterhead]
[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 andlor any member of my staff.
Sincerely,
[Attorney's Name]
Advanced CYA For The Family Law Attorney
Appendix #3
[Attorney letterhead]
[Date]
[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 l;foor their Courtroom is located on] of the [Nnme of County Courthouse where Case is penclind, [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 s~~bpoena. 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]
Advanced CYA For The Family Law Attorney
Appendix # 4
[Attorney letterhead]
[Date]
[Re: Style of Case]
[Dear Client:]
For your review and information, please find enclosed Rules for Teshfiing and Other Important- Things To Know About Testlfiing And Trial. This is by no means an all-enconlpassing 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 andlor any member of my staff.
Sincerely,
[Name of attorney]
Enclosure
Advanced CYA For The Family Law Attorney
Rules for Testifving
Always tell the truth.
Do not exaggerate -be precise in your answers.
Listen carefully to the question.
If necessary - repeat the question to yourself.
Make certain you understand the question asked.
Ignore the voice inflection or demeanor of the opposing attorney.
Do not feel rushed - take your time when answering.
If you forget the question - ask for it to be repeated.
Answer only the question asked - stay focused on the question.
Do not answer questions with questions.
Answer orally, distinctly and loud enough for all to hear.
Be confident and fm in your answer.
Do not guess unless specifically asked to guess.
Don't box yourself in - questions such as "all" and "every."
Always be courteous - do not argue with the opposing attorney.
Remain calm - remember to take deep breaths.
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 infornlation, thus opening the door to opposing counsel's further inquiries.
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.
Advanced CYA For The Family Law Attorney
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 hstrating to the witness and create a feeling of helplessness. Listen carefully to these questions and give the appropriate truthhl 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 attonley 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 nonnally.
Advanced CYA For The Family Law Attorney
Appendix # 5
[Attorney letterhead]
[Date]
[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 nle 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 fonnal 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 nunlber the documents belong to, (i.e. response to number 1, response to number 2, etc.). If the docun~ents requested are not in your possession or do not apply,
34
Advanced CYA For The Family Law Attorney
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
Advanced CYA For The Family Law Attorney
Appendix # 6
[Attorney letterhead]
[Date]
[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]
Advanced CYA For The Family Law Attorney
Appendix # 7
[ ~ t t o r & y letterhead]
[Date]
[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 econon~ic 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]
Advanced CYA For The Family Law Attorney
Appendix # 8
[Attorney letterhead]
[Date]
[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 sun 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,
[Nnme of attorney]
Advanced CYA For The Family Law Attorney
Appendix # 9
[Attorney letterhead]
[Date]
[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 ofextension].
If the arrangements set forth above are accurate according to your understanding, please sign this letter below and return to [insert f a number/address]. A copy of this letter of conf ia t ion 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 andor any member of my staff.
SIGNED AND AGREED TO
[Attorney S Name]
Attorney for Petitioner
[Attorney 's Name]
Attorney for Respondent
Sincerely,
[Attorney S Name]
Advanced CYA For The Fad lv Law Attornev
Appendix #10
CAUSE NO.
IN THE MATTER OF 0 IN THE DISTRICT COURT THE MARRIAGE OF 0
§ , PETITIONER 0
AND 0 JUDICLAL DISTRICT , RESPONDENT 0
0 AND IN THE INTEREST OF 0
CHILD [REN] 0 8 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:
[Following are some examples for reference. Insert reason for requesting extension]
[Petitioner/Respondent]'s, business requires [Izidzer] 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/RespondentJ I~as not had the opportunity to review such supplementations and verify
the truth to the same.
An extension of time to respond to discovery would not ham1 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.
Advanced CYA For The Family Law Attorney
Respecfilly submitted,
[Attorney information]
By: [Attorney's name] State Bar No. Attorney for [PetitionerlRespondent]
CERTIFICATE OF CONFERENCE
This certifies that on , the undersigned requested an extension of time to
respond to discovery fiom opposing counsel herein and opposing counsel did not agree or (as applicable), the
undersigned was unable to obtain a response fiom 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 andlor pro se
parties here, as applicable on ,2004.
[Attorney name]
Advanced CYA For The Family Law Attorney
Appendix #11
CAUSE NO.
IN THE MATTER OF THE MARRIAGE OF
, PETITIONER AND
, RESPONDENT
AND IN THE INTEREST OF 9
CHILD W N ]
8 IN THE DISTRICT COURT 0 8 0 8 JUDICIAL DISTRICT 8 8 0 8 8 TARRANT COUNTY, TEXAS
ORDER MOTION TO EXTEND TIME TO RESPOND TO DISCOVERY
On this day the Court considered [Petitioner/RespondentJ S Motion to Extend Time to Respond to Discovery
and ORDERS that [Petitioner/RespondentJ, [Client's Name], be granted an extension of 30 days from today to respond
to the discovery propounded upon [himher].
Dated [date]
[Signature of judge]
Advanced CYA For The Family Law Attorney
Appendix #12
[Attorney letterhead]
[Date]
[Re: Style of Case]
[Dear Client:]
Please find enclosed [Petitioner/Respondent] 's First Request for Admissions fiom [Petitioner/Respondent] filed in the above styled and numbered cause on Hling date] and forwarded to my office on [the date the admissions were received by your ofice]. 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 csrtain 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 y o ~ r 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 nly 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 andlor any member of my staff.
Sincerely,
[Name ofattorney]
Enclosure
Advanced CYA For The Family Law Attorney
Appendix #13
[Attorney letterhead]
[Date]
[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 hrther 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 ofice]. 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 andlor 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 andlor any meinber of my staff.
Sincerely,
[Name of attorney]
Advanced CYA For The Family Law Attorney
Appendix # 14
CAUSE NO.
IN THE MATTER OF THE MARRZAGE OF
, PETITIONER AND
IN THE DISTRICT COURT
- 6 JUDICIAL DISTRICT
, RESPONDENT 9 6
AND IN THE INTEREST OF 8 9
CHILD [REN] 8 6 TARRANT COUNTY, TEXAS
MOTION TO WITHDRAW OR AMEND AMMISSIONS
[Nnrne], [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/RespondentJ by [Petitioner/Respondentl, and would respectfully show the Court the following:
1. [Petitioner/Respondentl, when answering [Petitioner/Responden~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/RespondentJ's part.
2. Unless [Petitioner/RespondentJ is allowed to either withdraw or anlend [hidher] answers, [Petitioner/Respondent] will surely fail in the legitimate defense to [Petitioner/Respondenrs 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 occurre~.lce fro111 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.
Respecthlly submitted,
[Attorney information]
By: Attorney's name] State Bar No. Attorney for [PetitionerlResponclent] [Attorney information]
Advanced CYA For The Familv Law Attornev
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 [capacily, such as: attorney of record for defendan8 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]
Advanced CYA For The Family Law Attorney
Appendix # 15
CAUSE NO.
IN THE MATTER OF 9 IN THE DISTRICT COURT THE MARRIAGE OF 9
, PETITIONER 9 9
AND , RESPONDENT
9 JUDICIAL DISTRICT 9 9
AND IN THE INTEREST OF d >
CHILD [REN] 9 9 TARRANT COUNTY, TEXAS
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/RespondentJ'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 faillwe 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/RespondentJ'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 andlor lack thereof, and such responses shall not be deemed admitted:
Dated [date].
[Signature of judge]
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Appendix #16
CAUSE NO.
IN THE MATTER OF 9 IN THE DISTRICT COURT THE MARRIAGE OF 9
, PETITIONER 9 0
AM) 8 JUDICIAL DISTRICT , RESPONDENT 0
9 AND IN THE INTEREST OF 9
? 0 CHED [REN] 9 TARRANT COUNTY, TEXAS
MOTION TO SUPPRESS DEPOSITION
[Petitioner/RespondentJ, by [hidher] 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 off 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 sewed 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/RespondentJ, therefore, prays that the Court set this motion for hearing and that at that hearing an order issue suppressing the deposition described above.
Respectfully submitted,
[Attorney inforination]
By: [Attorney's name] state B& NO.
Attorney for [PetitionerlRespondent]
CERTIFICATE OF SERVICE
I , [name of attorney], the [capacity, ssu11 as: attorney ofrecord for defendant], certify that on [date], a copy of this motion was sent by [tnethod of recipient], the [capacity, such as: attorney of record for Petitioner], [address], [county], County, Texas.
[Attorney's name]
Advanced CYA For The Family Law Attorney
Appendix # 17
CAUSE NO.
IN THE MATTER OF THE MARRIAGE OF
, PETITIONER A N D
, RESPONDENT
8 IN THE DISTRICT COURT § § 8 8 JUDICIAL DISTRICT 8 8
AND IN THE INTEREST OF 8 3 9
CHILD 8 TARRANT COUNTY, TEXAS
[MOVING PARTYI'S REQUEST FOR AMENDMENT TO [NAME OF PLEADINq
TO THE HONORABLE JUDGE OF THIS COURT:
Moving party, [Name of Moving Party], the [Petitioner/Respondent] in the above cause, inoves this Court for leave to file the following trial amendment to Paragraph [Paragraph Number] of the [Moving Party's] [SpeczJL Pleading, such as: First Amended Answer]: [set forth specific text of amendment].
[Moving party] requests this trial amendment for ale 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.
Respectfblly submitted,
[Attorney information]
By: [Attorney's name] state ~ a i NO.
Attorney for [PetitionerlRespondent]
CERTIFICATE OF SERVICE
I, [name of attorney], the [capacity, ssuch as: attorney of record for defendant], certify that on [date], a copy of this motion was sent by [method of recipient], the [capacity, ssuch as: attorney of record for Petitioner], [address], [couizty], County, Texas.
[Attorney S name]
Advanced CYA For The Family Law Attorney
Appendix # 18
CAUSE NO.
IN TI33 MATTER OF THE MARRIAGE OF
, PETITIONER AND
8 IN THE DISTRICT COURT 0 0 0 0 JUDICIAL DISTRICT
, RESPONDENT 0 0
AND IN THE INTEREST OF 0
CHILD hN] 0 8 TARRANT COUNTY, TEXAS
ORDER ON [PETITIONERIRESPONDENT] '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 ofjudge]
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Appendix #I9
CAUSE NO.
IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF 8
, PETITIONER § §
AM) 8 JUDICIAL DISTRICT , RESPONDENT 8
AND IN THE INTEREST O F § §
9 § ~ J ~ . I J . J D [REw § TARRANT COUNTY, TEXAS
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 [himher] 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 [heishe] 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 [himselfX~erselfl/[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 [hisher] 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 [hisher] 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 [hisher] right to object to this motion. [Name of client] [haskas 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 [hisker] 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:
Advanced CYA For The Familv Law Attornev
The discovery period in this suit will continue until [date].
Type of Hearing
No discovery requests have been served by either party in this case.
Petitioner has served Respondent with the following discovery requests and Respondent has sewed Petitioner with the following responses:
Date of Hearing
Respondent has served Petitioner with the following discovery requests and Petitioner has served Respondent with the following responses:
Transcript Requested?
Type of Discovery Request
Interrogatories
Request for Production
Request for Disclosure
Request for Admissions
[Other discovery requests]
There have not been any oral depositions in this case.
Transcript Received?
Type of Discovery Request
Interrogatories
Request for Production
Request for Disclosure
Request for Admissions
[Other discovery requests]
The following oral depositions have been held in this case and have been recorded by the court reporters set forth below:
Court Reporter's Name, Address, Tel. No.
Served by Petitioner?
Yes
Response Served by Respondent?
No Yes
Sewed by Respondent?
No
Yes
Response Served by Petitioner?
No Yes No
Advanced CYA For The Family Law Attorney
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 clientl's discovery responses and documents [name of client] has produced in response to discovery requests.
NOTICE TO CLIENT
Name of Deponent
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 attorneyl's withdrawal as your attorney, you nlay notify [name of attorney] in writing of your consent to this motion.
Transcript Requested?
Date of Deposition
[Name of movant] prays that the Court enter an order discharging [hiidher] as attorney of record for [name of client].
[Name] Attorney for [name of client] State Bar No.: [Address] [Telephone] [Telecopier]
Transcript Received?
Court Reporter's Name, Address, Tel. No.
Advanced CYA For The Family Law Attorney
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]
Advanced CYA For The Family Law Attorney
Appendix #20
CAUSE NO.
IN THE MATTER OF 8 IN THE DISTRICT COURT THE MARRIAGE OF 9
, PETITIONER 9 9
AND 9 JUDICIAL DISTRICT , RESPONDENT 9
9 AND IN THE INTEREST O F 8
9 § CXTILD [REN] 9 TARRANT COUNTY, TEXAS
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] [hashas 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 clientl'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 andor 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 doculllent to lily office. Should you have any questions about these acknowledgments, please feel free to contact me at any time.
Sincerely,
[Attorney 's Name]
Advanced CYA For The Family Law Attorney
Appendix #22
[Attorney letterhead]
[Date]
[Addressee/ClientJ
[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 partyl 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. Sllould you have any questions about these acknowledgments, please feel free to contact me at any time.
Sincerely,
[Attorney S name]
Advanced CYA For The Family Law Attorney
Appendix #23
[Attorney letterhead]
[Date]
[Re: Style of Case]
[Dear Client:]
Please find enclosed a certified conformed copy and a regular conformed copy of the [name offinal 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 [Courtlzouse where case was$Ied] 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 andor notice of appeal, and aperiod 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,
fName of attorney]
Advanced CYA For The Family Law Attorney
Appendix #24
[Attorney letterhead]
[Date]
[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, audiolvideo 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 flame of County Courthouse wlzere Case wasfiled], 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 fiee to give me a call.
Sincerely,
[Name of attorney]
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