TIPS FOR A COMMERCIAL LAWYER IN TRIAL · 2013-10-17 · Tips for a Commercial Lawyer in Court Chapter 16 1 TIPS FOR A COMMERICAL LAWYER IN COURT I. SCOPE OF ARTICLE Statistics tell

TIPS FOR A COMMERCIAL LAWYER IN COURT

Moderator

HONORABLE SHAROLYN WOOD, Houston

Senior District Judge

Panelists

HONORABLE TONYA PARKER, Dallas

Judge, 116th District Court

HONORABLE JENNIFER RYMELL, Fort Worth

Judge, Tarrant County

Court at law #2

HONORABLE MARK B. GREENBERG, Dallas

Judge, Dallas County

Court at Law #5

Author

HONORABLE SHAROLYN WOOD, Houston

Senior District Judge

State Bar of Texas

10TH

ANNUAL

COLLECTIONS AND CREDITORS’ RIGHTS COURSE

May 3-4, 2012

Dallas

CHAPTER 16

HON. SHAROLYN WOOD is a Senior Judge in the Second

Administrative Judicial Region of Texas, sitting by assignment in the district and county courts. She also serves a mediator, arbitrator, and special judge in the Harris County area. Judge Wood served as a State District Judge in Harris County over twenty-five years in the 127th and the 295th Judicial District Courts. Judge Wood was a partner in a law firm with extensive courtroom experience when appointed to the bench in 1981. She has received many honors including being named Trial Judge of the Year by the Texas Association of Civil and Appellate Specialists and Honorary Barrister by the Order of the Barristers, University of Houston Law Center. Judge Wood and her husband Judge Mike Wood are graduates of Rice University (1970) and the University of Texas School of Law (1973). Judges Sharolyn and Mike Wood have been married over 40 years and have three children. In addition to her court duties, Judge Wood served on Supreme Court Task Forces on judicial issues, taught trial advocacy for twelve years at University of Houston Law Center, served as Administrative Judge for the Civil Courts, and served on the Harris County Juvenile Board, and the Texas Judicial Council. Judge Wood is a frequent speaker at legal education programs.

3/2012

HON. TONYA PARKER

Judge Tonya Parker was elected in 2010 to serve as the presiding judge of the 116th Civil District Court. While in private practice, she earned partnership at two downtown Dallas law firms, where she was a civil litigator and trial attorney for plaintiffs and defendants in complex commercial and tort matters. She received her J.D. from Southern Methodist University Dedman School of Law, where she excelled in trial advocacy and was selected by the faculty as one of only ten students in her graduating class to be inducted as a member of the National Order of the Barristers. Judge Parker is the 2011 recipient of the Hon. Sam A. Lindsay Award for Professionalism and Ethics from the J.L. Turner Legal Association (JLTLA). She has been recognized by her peers as one of the top young lawyers in Texas by being voted a Super Lawyers’ Rising Star three years in a row from 2006 to 2008, and again for a fourth time in 2010. Also in 2010, she received outstanding mentor awards from the JLTLA and the Dallas Association of Young Lawyers (DAYL). For her proficiency as a practitioner, exemplary professionalism, and commitment to community service, Judge Parker was also named Outstanding Young Lawyer of Dallas in 2006 by the DAYL. Prior to that, the Dallas Bar Association (DBA) recognized her with its Outstanding Minority Attorney Award and an Award of Excellence. Judge Parker is also a former American Marshall Fellow, which allowed her to travel throughout Europe for a period in 2005 to promote transatlantic relations.

Mentorship is Judge Parker’s passion. This is evidenced by her long-held rule to at all times actively mentor a high school, pre-law and law school student, as well as a new or younger lawyer. She has done this for more than a decade informally and through formal mentorship programs like the DBA’s Transition to Law and E-mentor programs, DAYL’s Mentor-Match Program, JLTLA’s Law Student Mentor Project, the Education Is Freedom/Big Brothers and Big Sisters program, and countless other programs designed to positively influence young people and/or promote competency and professionalism in the bar.

Judge Parker is a current member of the DBA’s Business Litigation Section Council, as well as the Interfaith Peace Chapel’s Advisory Committee. She has also served on numerous legal and civic boards and commissions, including as chairperson of Dallas Arts District Alliance’s Board of Directors in 2009, commissioner on the City of Dallas Community Development Commission from 2007 through April 2009, at-large director for the DBA in 2006 and 2007, and a two-term board member for JLTLA in 2004 and 2005.

Her professional and personal mantra is “shrink from no sacrifice.” It is a charge she passionately pursues each day.

HON. JENNIFER RYMELL

Jennifer Rymell has served as Judge of Tarrant County Court at Law #2 since 2003.

Judge Rymell presides over a general civil litigation docket and received her certificate in

Civil Trial Law from the Texas College for Judicial Studies in 2008. She has been a

faculty member for the Texas Municipal Courts Association and the Texas Center for the

Judiciary. From 1997-2001, she served as Judge for the City of Fort Worth Municipal

Court and presided over the city’s first Truancy Court. Prior to serving on the bench,

Judge Rymell was an Assistant Disciplinary Counsel for the State Bar of Texas and an

Assistant County Attorney in Parker County.

She is the current Vice Chair of the ABA General Practice, Solo and Small Firm Division

and has been appointed by the current ABA President to serve as a member of the ABA

Standing Committee on the Independence of the Judiciary. She is a Trustee for the Texas

Bar Foundation, Chair of the website committee for the Judicial Section of the State Bar

of Texas, and a member of the curriculum committee for the Texas Center for the

Judiciary. Judge Rymell was also named as the Outstanding Young Lawyer of Texas in

2004.

BIO

Judge Mark GreenbergCounty Court at Law 5600 Commerce Street, 5th FloorDallas, Texas [email protected]

Education:Bachelor of Arts, University of Texas at AustinDoctor of Jurisprudence, Texas Tech University School of Law

Board Certification:Board Certified, Civil Appellate Law, Texas Board of Legal Specialization

Professional Experience:Presiding Judge, Dallas County Court at Law 5 (2003 to present)Court Master, Dallas County State District CourtsStaff Attorney, Fifth District Court of Appeals in DallasAttorney, Payne & Blanchard LLP (formerly known as DeHay & Blanchard)Briefing Attorney, Fifth District Court of Appeals in DallasIntern, Texas Supreme Court

Community Involvement:Board of Directors, Dallas Bar Association Community Service Fund (2002 to present)

Honors:Honored by the Dallas Chapter of the American Board of Trial Advocates as “Trial JudgeOf the Year”

Tips for a Commercial Lawyer in Court Chapter 16

i

TABLE OF CONTENTS

I. SCOPE OF ARTICLE ....................................................................................................................................... 1

II. GOING TO COURT .......................................................................................................................................... 1 A. Be Ready “With the Law” ........................................................................................................ 1

1. Read the law ............................................................................................................................. 1 2. Be prepared on the substantive law .......................................................................................... 1

B. Be Prepared for Non-Jury and Jury Trials ............................................................................... 2 1. Proposed Findings of Fact and Conclusions of Law ................................................................ 2 2. Post-ruling findings and conclusions ....................................................................................... 2 3. Court’s Charge ......................................................................................................................... 2 4. Jury instructions ....................................................................................................................... 3

III. PROFESSIONALISM IN COURT ................................................................................................................... 3 A. The Call for Professionalism Is Not New ................................................................................ 3

B. Professionalism Is Not Old Fashioned ..................................................................................... 4 1. Present day example and advice .............................................................................................. 4 2. Words of wisdom ..................................................................................................................... 4 3. Don’t be “bad news” when things go bad ................................................................................ 5

IV. POINTERS FOR DRAFTING AND PROOF ................................................................................................... 5 A. QUESTION: What is an affidavit in Texas? ........................................................................... 5

1. ANSWER: Unsworn Declaration ........................................................................................... 5 2. Applicability ............................................................................................................................ 5 3. Timing ...................................................................................................................................... 5 4. Legislative history .................................................................................................................... 5 5. The Statute and the Bill ............................................................................................................ 6

B. Drafting Orders and Judgments ................................................................................................ 6 1. Dating orders ............................................................................................................................ 6 2. Approval by counsel ................................................................................................................ 6 3. Date signed .............................................................................................................................. 6 4. Signature for the judge ............................................................................................................. 6 5. Blanks in orders and judgments ............................................................................................... 6

C. Drafting Summary Judgment Motions, Responses, and Judgments ........................................ 6 1. Summary judgment motions and responses ............................................................................. 6 2. Orders on Motions for Summary Judgment ............................................................................. 7

D. Electronic Court Records (eCourts) and Electronic Filing (eFiling) ....................................... 7 1. On-line records ......................................................................................................................... 7 2. Paperless Court Dockets: eCourt ............................................................................................. 7 3. eFiling in Texas Courts ............................................................................................................ 7 4. eFiling in Harris County .......................................................................................................... 7 5. Tips to expedite your eFiling ................................................................................................... 7

E. Proving Damages ..................................................................................................................... 8 1. Pleadings under TEX. R. CIV. P. 185 ........................................................................................ 8 2. Proof of damages ..................................................................................................................... 8 3. Faulty damage affidavits .......................................................................................................... 8

F. Proving “Reasonable and Necessary” Expenses for Services .................................................. 8 1. Using the § 18.001 affidavit at trial ......................................................................................... 8 2. Attorneys fees in default judgments and motions for summary judgment .............................. 8

G. Admissibility of Written Documents ....................................................................................... 9 1. Pre-trial methods to establish admissibility of records ............................................................ 9 2. Admitting documents in a hearing or at trial ........................................................................... 9


ii

V. LOOKING GOOD IN YOUR HEARINGS AND AT TRIAL ........................................................................ 10 A. Admitting Exhibits ................................................................................................................. 10

1. Disclosure .............................................................................................................................. 10 2. Authentication ........................................................................................................................ 10 3. Predicate ................................................................................................................................. 10 4. How ........................................................................................................................................ 10

B. Exhibits in the Courtroom ...................................................................................................... 11 1. The Judge ............................................................................................................................... 11 2. Witnesses ............................................................................................................................... 11 3. The court reporter .................................................................................................................. 11 4. Introducing exhibits in a jury trial.......................................................................................... 11 5. Admissible exhibits created during a hearing or in trial ........................................................ 11 6. Do not mark on opposing side’s exhibits ............................................................................... 11 7. Demonstrative exhibits in trial ............................................................................................... 11

C. Common Issues for Managing Exhibits ................................................................................. 12 1. Numbering system ................................................................................................................. 12 2. Eliminate duplicates ............................................................................................................... 12 3. Redact in advance of your hearing or trial ............................................................................. 12 4. Handling voluminous exhibits ............................................................................................... 12 5. Inspect all exhibits prior to delivery to jury room.................................................................. 12 6. “Undiscussed” exhibits .......................................................................................................... 12

VI. THE FUTURE IS HERE: TECHNOLOGY AND INNOVATION .............................................................. 12 A. Paperless Courts (eCourts) and Electronic Filing (eFiling) ................................................... 12

1. Internet access to court records .............................................................................................. 12 2. Paperless state court dockets: the eCourt ............................................................................... 13 3. eFiling in Texas courts ........................................................................................................... 13 4. Tips for eFiling ...................................................................................................................... 13

B. Technology and Courthouse Innovations ............................................................................... 14 1. Court information ................................................................................................................... 14 2. Wireless computer connections ............................................................................................. 14 3. Trial rooms ............................................................................................................................. 14 4. Testimony and presentation system ....................................................................................... 14

C. Jury Trial Improvements and Innovations ............................................................................. 14 1. Amended Rules of Procedures. .............................................................................................. 14 2. Jury trial innovations .............................................................................................................. 15

VII. CONCLUSION ................................................................................................................................................ 16


1

TIPS FOR A COMMERICAL

LAWYER IN COURT

I. SCOPE OF ARTICLE

Statistics tell us that less than 2% of the cases

filed actually go to trial—jury or non-jury. That

statistic is constant across the nation and has been

consistent for more than 3 decades. This means that

98% of the cases filed will be disposed of by default

judgment, summary judgment, settlement, or court

dismissal.

Attorneys seek the best outcome possible for their

clients. Professionalism will be your friend in

accomplishing this result. Periodically review the The

Texas Lawyer’s Creed—A Mandate for

Professionalism, promulgated by the Texas Supreme

Court and the Court of Criminal Appeals, which is

attached as Appendix A.

Be professional at all times. Professionalism in

your office practice means being prepared. Gathering

client information to determine the appropriate

pleading is critical. Get the client’s facts straight from

the beginning. File legally sufficient pleadings.

Know the law involved in the client’s case. Prepare

proper motions and orders. This will lay the proper

frame work for success.

Presenting a professional “face” to the judge and

the court staff will make your job easier.

Be mindful of the procedural and evidentiary

issues in your case. Frequently used evidence and

procedure rules and a handy statute are set out in

Appendix B.

Embrace technology that best fits your practice.

The former clerks of the 127th District Court compiled

a list of eight tips for “eFiling” set out in Appendix C.

This paper will discuss the steps for the

successful, professional handling of cases filed in state

or county courts in Texas from the point of view of

the courtroom judge. The advice and viewpoint

presented are based on years of observing how cases

play out in court.

II. GOING TO COURT

A. Be Ready “With the Law”

1. Read the law

Actually read the applicable statutes and study

any points of law involved in your case.

Don’t guess.

Don’t expect the judge to do this job for

you.

Don’t accept summaries of the law from

secondary sources at face value.

Be wary of research by “word search”.

a. Bring your rule books to court.

When procedural or evidentiary issues arises in

hearings or at trial, if you do not have a rule book, you

will be standing in front of the judges, and possibly

your client or a jury, when you have to admit to not

being prepared to discuss the law with the judge.

Some judges will lend you a book. That, too, is not a

pleasant prospect.

b. Read the Rules of Evidence.

Judge David Hittner recommends that a lawyer

read the Rules of Evidence, out-loud, three times, just

before a major evidentiary hearing or trial. By

following this ritual, you will have the rule numbers

on the tip of your tongue and will have analyzed the

Rules in the context of your case.

c. Review the Rules of Procedure.

Know the rules of procedure. Objections that a

conditional precedent was not plead or that an

affirmative defense was not verified may decide your

case. Know the rule that supports your position or

that will defeat an objection.

Consider applying Judge Hittner’s useful tip to the

Rules of Civil Procedure by reading over the “Rules”

when drafting pleadings, motions, or discovery.

Having these rules fresh in your mind will highlight

for you those rules which will have applicability in

each particular case. For example, TEX. R. CIV. P. 54

(pleading conditions precedent) and TEX. R. CIV. P. 95

(pleading payment of a debt).

Tip: If faced with an objection by opposing counsel

that your pleadings are deficient, request leave of

court to amend or supplement your pleadings. Leave

should be liberally granted.

In Hearing/At trial: Immediately dictate the

trial amendment into the record. Follow- up

with a written trial amendment, together

with an order granting the amendment. A

hand written order and written trial

amendment prepared at the first break work

fine.

Summary judgment: Promptly file the

amended pleading, together with an order

granting the supplementation.

2. Be prepared on the substantive law

a. Case law and statutes.

If the judge’s ruling will be based on an

interpretation of case law or a particular statute, have

the key case or statute ready to hand to the judge.


2

b. Legal memo or brief.

On a critical legal point, have a short, one-page

memo prepared. Set out the issue presented and give

the short answer with argument and authorities.

Attach the key case or statute. Have a copy available

for opposing counsel.

Legal memos or briefs may be pre-filed or

presented at the time of the hearing or trial. You

should consider your case strategy as to the best

timing of your filing. Be sure to check with the court

staff on any preference in a particular court.

Tip: The brief filed with pre-trial motions and

summary judgment motions will be in the file with the

court and will, most likely, be reviewed by the judge

prior to trial. Consider this dual purpose when

preparing your pre-trial briefs.

c. Secondary authorities.

Use one of the various proprietary books with

annotated headnotes as research tools. Analysis by

authors on key points can be helpful to understanding

a tough issue. Read and understand the cases cited by

the author if you are representing the accuracy of the

legal point to the judge.

Be wary of reading an annotated headnote to the

judge as an authority on a disputed legal point without

having read the case cited. Your credibility with the

judge is on the line. While the case cited will, no

doubt, have the language quoted, the words “however

in this case” can spell doom. You should know in

advance if the ruling in the cited case supports your

position.

B. Be Prepared for Non-Jury and Jury Trials

1. Proposed Findings of Fact and Conclusions of

Law

In non-jury trials, prepare your findings of facts

in advance. These finding should encompass all of

the elements of the cause of action or defense-- that is,

all the elements that would be jury questions in a

Court’s Charge. Secondary authorities and the State

Bar Pattern Jury Charge are good reference sources to

ensure that you cover all necessary factual elements of

your case.

Evidentiary recitations are not necessary and

should be avoided. Proposed findings of fact and

conclusions of law should be tendered at the time of

trial to the judge in any non-jury case.

In a non-jury trial, discuss the law in your opening

statement, presenting your well-prepared

“Conclusions of Law” as part of your opening

statement to the judge. These conclusions of law will

help organize the facts for the judge as the evidence is

presented.

Tip: Prepare your findings and conclusions in

advance of trial, checking your pleading to ensure it is

sufficient to support your findings. In complex cases,

I recommend that you prepare findings and

conclusions at the time you prepare the original

petition or answer.

2. Post-ruling findings and conclusions

The prevailing party should prepare post-trial

proposed findings of fact and tender to the court if the

non-prevailing party files a request or an appellate

court orders findings filed. It is in your best interest to

get these prepared correctly.

Post-ruling findings and conclusions are a

challenge for judges due to the number of other cases

heard by the judge since your hearing or trial, the

preparation involved, the press of the ever-moving

trial docket, and the lack of law clerk or secretarial

assistance in most trial courts. If permitted by the

judge, tender proposed findings and conclusions in

electronic format.

3. Court’s Charge

Prepare straight-forward “Jury Questions” that

address the key fact issues. The Pattern Jury Charge

and secondary authority books on elements of causes

of action are good resources. All elements to support

the case of action or an affirmative defense should be

included in the Jury Questions.

Properly condition the Jury Questions to avoid

conflicts. Most judges will condition damage

questions. Be aware of those issues which require a

“clear and convincing” burden of proof or a

unanimous finding by the jury.

In 2011, the Texas Supreme Court amended the

“boiler plate” portion of the Court’s Charge. The

rewritten jury instructions are discussed on page 15.

a. “Charge Bank”.

Do you have a standard charge bank? If not,

create one for the standard cases you routinely handle.

Include the questions to the jury as well as the

standard definitions and instructions. Consulting this

“charge bank” as you prepare your pleadings will help

ensure that your pleadings are in order.

b. Complex cases.

In any contested case going to trial, you should

prepare your jury charge at the time you prepare the

trial pleadings. In complex cases or cases, prepare

you proposed charge to ensure that your pleadings

cover all elements necessary to support your causes of

action or your affirmative defenses.


3

4. Jury instructions

Analyze each case to prepare individualized

instructions to be included in the Court’s Charge on

any area of the law that your lay jury should know to

properly decide your case.

Whether agency law or contract law or another

area of the law that seems straight-forward to you,

basic legal principals may run head-on with a lay

jurors’ preconceived idea on the law. The judge’s

instructions in the charge are “your friend” to keep the

jury on track in its deliberations.

Remember that legal concepts that might seem

clear to you should be explicitly set out for the jury.

We need to explain to the jury what we all know. For

example, we may know a principal is bound by the

terms of a contract if his agent signs the contract.

Consider what might happen if we do not tell the jury:

A party's conduct includes the conduct of

another who acts with the party's authority

or apparent authority. [See: PJC § 101.4

for the remainder of the instruction.1]

A judge is unlikely to grant a new trial if you find

out in a juror-exit-interview that the “no” answer to

the breach of contract question was because of an

incorrect legal assumption by the jury concerning who

was bound by the signature on a contract.

A few more examples follow.

Attorney’s Fees.

Consider an instruction to properly segregate fees

incurred from causes of action which do not support

an attorney’s fee award. Tailor the standard attorney’s

fees instructions to fit the evidence in your case.2

You are instructed that the following factors may be

considered in determining the reasonableness of an

attorney's fees:

1. the time and labor involved, the novelty and

difficulty of the questions involved, and the

skill required to perform the legal services

properly;

2. the likelihood that the acceptance of the

particular employment will preclude other

employment by the lawyer;

3. the fee customarily charged in the locality

for similar legal services;

4. the amount involved and the results

obtained;

5. the time limitations imposed by the client or

by the circumstances;

1 Id. § 101.4.

2 Texas Pattern Jury Charges—Business, Consumer,

Insurance & Employment § 110.43, 2006.

6. the nature and length of the professional

relationship with the client;

7. the experience, reputation, and ability of the

lawyers performing the services; and

8. whether the fee is fixed or contingent on

results obtained or uncertainty of collection

before the legal services have been

rendered.

Contract construction.

When the judge has ruled to construe the terms of a

contract or other written document in your case, the

judge’s ruling should be provided to the jury in

instructions when the meaning of the contract is

involved in the jury’s evaluation of evidence.

Contract formation.

If there is an issue for the jury as to the formation of

an agreement, the factors involved in the

determination should be set out in instructions. An

example of an instruction from the Pattern Jury

Charge is:

You are further instructed that in deciding

whether the parties reached an agreement,

you may consider what the parties said and

did in light of the surrounding circumstance,

including any earlier course of dealing. You

may not consider any unexpressed thoughts

or intentions.3

III. PROFESSIONALISM IN COURT

A skilled advocate understands that his or her

credibility in front of the judge and the jury are

essential for a successful outcome. As one very direct

admonition states:

You're never going to sneak a pork chop past a

wolf, and if you try to trick people you're not going to

do very well.

A. The Call for Professionalism Is Not New

A NOTES HAS BEEN PUBLISHED WHICH

WERE FOUND IN PRESIDENT ABRAHAM

LINCOLN’S PAPERS AFTER HIS DEATH.

SCHOLARS DO NOT KNOW IF ABRAHAM

LINCOLN, ESQUIRE, A HIGHLY

SUCCESSFUL TRIAL ATTORNEY, EVER

DELIVERED THIS LECTURE.

In his Notes for a Law Lecture, Lincoln

called for attorneys to have standards of

diligence and honesty, and he had sharp

3 Id. § 101.3.


4

words for the dishonest and unscrupulous

members of the bar. His advice went so far

as to recommend that “if in your own

judgment you cannot be an honest lawyer,

resolve to be honest without being a

lawyer.”4

President Lincoln wrote that an attorney should

discourage litigation, should never stir-up litigation,

and should be fair in his fees. He also encouraged

attorneys to practice extemporaneous speaking. He

obviously took his own advice.

In a trial practice that deals primarily with

collecting or defending debt or collection cases, you

will have opportunities to think on these words.

Settlements, compromising the principal amount of a

debt, collecting your attorneys fees, or taking steps

that might harass or humiliate either a debtor who

owes a debt or a creditor seeking to recover a just debt

are some of the actions that can trap an attorney into

taking short-cuts or failing to put his clients’ interests

first.

Be scrupulous in your clients’ accounts. If any

opposing attorney is dishonest in handling the case,

see that these actions are brought to the attention of

the proper authorities. Do not compromise the rights

of your client for an easy resolution. Full candor with

your client is always best.

B. Professionalism Is Not Old Fashioned

The public administration of justice by our civil

litigation system is under attack today. Just as the

public became highly skeptical of the criminal justice

system in the last half-century, the perception of high

jury verdicts and unscrupulous attorneys are only

heightened in today’s media world.

Shady lawyers stealing settlements from clients

are news, not fiction. Discovery battles over

documents which are clearly discoverable escalate

attorney fees. Claims of privilege, when none exist,

cause hard feelings in the bar and a lack of credibility

with the bench.

1. Present day example and advice

Resistance to required discovery, overly broad

discovery requests, global objections, claims of

privilege when none exist are but a few of the daily

discovery battles fought by litigators. Consider the

issue of producing photographs in response to a

Request for Production.

“[P]hotographs or electronic images of underlying

facts”...“are not protected from discovery”...“even if

4 Abraham Lincoln’s Notes for a Law Lecture,

http://showcase.netins.net/web/creative/lincoln/speeches/la

wlect.htm.

made or prepared in anticipation of litigation or for

trial.” The rule specifically gives “photograph of the

accident scene” as an example of photographs which

are not privileged. TEX. R. CIV. P. 192.5 (c) (4)

Judges are routinely seeing objections and claims

of privilege to photographs. If this happens to you,

consider completing your discovery with assistance

from the judge as needed. Then, you have two

avenues open to you.

One, prior to trial, set a hearing to document to the

judge the time and expense to your client for such

inexcusable conduct as withholding photographs

which are clearly not protected, necessitating motions

and hearings and requiring rulings from the judge. A

money sanction can be awarded by the judge.

Second, if an abuse of discovery occurs in a

commercial case where reasonable and necessary fees

are due your client, you will have the opportunity to

testify to the jury about the time and expense involved

if you choose to seek to recover your discovery

expense in your attorney fee award.

2. Words of wisdom

Here are two recommended resources. Review

these standards of professionalism when a difficult

situation presents itself as a reminder of why you

became a lawyer and of the unique position of trust

we are all honored to hold.

The Texas Lawyer’s Creed—A Mandate

for Professionalism [Adopted by the Texas

Supreme Court.]

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.

Professionalism: A Lawyer’s Mandate

[Adopted by the Houston Bar Association]

The conduct of a lawyer should be

characterized at all times by honesty,

candor, and fairness. In fulfilling his or her

primary duty to a client, a lawyer must be

ever mindful of the profession’s broader

duty to the legal system.

http://showcase.netins.net/web/creative/lincoln/speeches/lawlect.htm

http://showcase.netins.net/web/creative/lincoln/speeches/lawlect.htm


5

3. Don’t be “bad news” when things go bad

A wise trial lawyer shared this analysis about tort

lawyers:

If a plaintiff’s lawyer is really good, he

starts out with cases he can’t win and works

his way up to cases he can’t lose.

If a defense lawyer is really good, he starts

out with cases he can’t lose and works his

way all the way up to cases he can’t win.

Although this observation is in the tort context, you

can see the lesson in these words. This lawyer was

sharing with me the reality that the facts of a case are

what control the outcome. A good lawyer must

effectively present his client’s facts. But the facts

should, and usually do, control. Sometimes a lawyer

gets good facts, sometimes she does not.

A lawyer gets in ethical trouble is when he or she

tries to “help” the facts of a case. Whether—

(1) withholding documents in discovery-and

then trying to use them at trial, or

(2) the outright destruction of damaging

documents, or

(3) intimidating or abusing witnesses, or

(4) repeatedly and intentionally violating a

judge’s motion in limine ruling, the judge

and justice should win in the end.

As judges, we must ensure that litigants have access to

the courts, to ensure that the rules are being followed

and that the facts at trial are fairly presented. If the

facts are not fairly presented and the judge determines

that over-zealousness, over-reaching, or outright

misconduct tainted the trial, the ultimate sanction of

the trial judge is the granting of a new trial.

IV. POINTERS FOR DRAFTING AND PROOF

A. QUESTION: What is an affidavit in Texas?

1. ANSWER: Unsworn Declaration

TEX. CIV. PRAC. REM. C. § Section 132.001 was

amended by the Legislature in 2011 to create the use

of unsworn declarations in lieu of affidavits

subscribed and sworn to before a notary public.

(c) An unsworn declaration made under this

section must be:

(1) in writing; and

(2) subscribed by the person making

the declaration as true under penalty of

perjury.

(d) Except as provided by Subsection (e),

an unsworn declaration made under this

section must include a jurat in substantially

the following form:

"My name is ________ _______

_______, (First)(Middle)(Last), my date of

birth is _________________, and my

address is __________, ________,

________, ______, (Street)(City)(State)(Zip

Code) and _________ (Country). I declare

under penalty of perjury that the foregoing is

true and correct.

Executed in ____ County, State of

_____, on the ___ day of________, _____.

(Month)(Year)

____________________

Declarant"

TEX. CIV. PRAC. REM. C. § 132.001(c) and (d) (2011).

2. Applicability

The amended statute provides that “an unsworn

declaration may be used in lieu of a written sworn

declaration, verification, certification, oath, or

affidavit required by statute or required by a rule,

order, or requirement adopted as provided by law.”

TEX. CIV. PRAC. REM. C. § 132.001(a) (2011). While

practitioners may debate, and even litigate, the impact

of this amendment, there is a good argument that

affidavits are no longer required to be sworn to before

a notary public.

3. Timing

The Unsworn Declaration bill as adopted by the

2011 amendment “applies only to the unsworn

declaration executed on or after the effective date of

this Act. An unsworn declaration executed before the

effective date of this Act is governed by the law in

effect immediately before the effective date of this

Act, and that law is continued in effect for that

purpose.” Acts 2011, 82nd Leg., R.S., Ch. 847, Sec 1,

eff. Sept 1, 2011

4. Legislative history

TEX. CIV. PRAC. REM. C. §§ 132.001-132.003, as

originally enacted, allowed prison or county jail

inmates to execute an unsworn affidavit for use in

their court papers without a notary subscribing and

signing the affidavit. The public policy behind this

“short-cut” is readily apparent. The inmate portion of

the Unsworn Declaration statute is now TEX. CIV.

PRAC. REM. C. § 132.001(e).

The 2011 amendment to TEX. CIV. PRAC. REM. C. §

132.001 extended this practice to all affidavits in

Texas.


6

5. The Statute and the Bill

See Appendix B-vii for the statute as it appears in

the Civil Practice and Remedies Code. See Appendix

C for the House Bill, tracking the changes made in

2011.

B. Drafting Orders and Judgments

1. Dating orders

When there has been a hearing or a trial, draft the

order or judgment to set out the date of the hearing or

the first day of trial. Example:

“On February 9, 2012,”

Do not include a blank space for a date at the

beginning of the order or judgment if there was no

hearing. Stating directly the action taken or using the

traditional “On this date” opening will convey that the

action recorded in the order occurred on the signing of

the order. Examples:

Plaintiff’s motion to substitute counsel was

presented.

On this date, Plaintiff’s motion to substitute

counsel was presented.

2. Approval by counsel

The rules are the same for an order and a

judgment. Use the heading “Agreed” if the order or

judgment is agreed to by all parties. If the motion or

order is one that is not agreed, yet “unopposed”, use

that in your title.

If the order is not agreed and reflects a ruling of

the judge or the outcome of a trial, the attorney who

agrees with the substance of the order or judgment

should sign as “Approved” and the attorney who does

not agree with the substance of the order, yet agrees

that the form is correct, should sign as “Approved as

to Form Only.”

A hearing to enter the order or judgment will be

necessary if all counsel do not approve the form of the

order or judgment. Sending a copy of a proposed

order or judgment to opposing counsel will not

suffice.

3. Date signed

Include a date line at the left margin, before

judge’s signature.

“Signed _______________, 2012.”

“Signed this the __ day of ________, 2012.”

In state court, do not use--Done, Entered, Sealed,

Rendered, or Sitting in Houston.

Tip: The attorney should not write in a date on the

order. Leave it blank for the judge to date when the

order is signed.

4. Signature for the judge

Leave a place on the order for the judge to sign--

on the right margin of the paper. It happens!

Examples:

_________________________

Judge Presiding

_________________________

Hon. [Name of Judge]

[Name of Court]

5. Blanks in orders and judgments

Avoid leaving any blank in an order or judgment.

If you must do so, make the purpose of the blank very

clear in your cover letter. It is very possible that the

judge will sign the order or judgment with the

blanks—still blank.

Attorney’s fees. One exception to the “no

blank” rule may be attorney’s fees which are

to be set by the judge after review of an

attorney’s fee affidavit. Even then, check

with the clerk as to the judge’s preference.

Pre-judgment interest. Particularly, do not

leave a blank for the amount of pre-

judgment interest. Judges will not calculate

the amount of your interest. Because the

attorney will not know the exact date the

judge will sign a judgment, my suggestion is

to use a formula for pre-judgment interest

similar to one of these:

$5,000, together with pre-judgment interest

thereon at the rate of 5% per annum from

March 1, 2010, to date.

or

$5,000, together with pre-judgment interest

to March 1, 2010, in the amount of $134.32

and at the rate of 5% per annum from

March 1, 2010, to date.

C. Drafting Summary Judgment Motions,

Responses, and Judgments

1. Summary judgment motions and responses

Attorneys should clearly set out the grounds on

which summary judgment is sought—up-front, in the

first two or three pages of the motion. Then, continue

with your additional argument and authorities.

Responses should also clearly set out the contested

points—up-front. Judges will appreciate not having to


7

search your motion or response for the ruling you

seek.

Overly lengthy motions with extensive

discussions and authorities have become standard in

state and county courts. Motions which do not

clearly set out the grounds sought in the summary

judgment make filing a targeted response by opposing

counsel difficult, leading to overly lengthy responses.

These developments are not looked on favorably by

trial court judges.

Restraint should be exercised. Lengthy motions

may be due to the word processor phenomena, may be

in response to perceived appellate scrutiny of

summary judgments, or may be the attorneys’

response to the practice of courts deciding summary

judgments without oral hearings. If it turns out that an

oral hearing is not permitted, a legal memo or brief

can be filed to add additional argument.

Tip: An index to the exhibits attached to a motion or

response is helpful in locating your summary

judgment evidence.

2. Orders on Motions for Summary Judgment

Prepare a judgment or order which reflects the

ruling sought in a motion for summary judgment,

tendering the judgment or order at the time the motion

or response is filed.

In the event a partial summary judgment is

granted, memorialize the ruling as soon as possible.

Submitting an order granting partial summary

judgment can create problems if not presented to the

trial judge at the time of the ruling. Judges hear many

cases, and returning a week later with a dispute

between the lawyers as to the meaning of the judge’s

ruling may result in a rehearing.

Tip: Bring an “Order Granting Partial Summary

Judgment” if that is the likely outcome of your

hearing. If another form of the order is necessary,

redraft the order and get the judge’s signature before

the attorneys are excused by the judge.

D. Electronic Court Records (eCourts) and

Electronic Filing (eFiling)

Court papers may be filed by several different

methods in Texas courts:

o electronic eFiling;

o fax filing, as available in an county;

o mail, paper filing; and

o in-person, paper filing.

Filing methods vary from county to county and

sometimes within a county. Some Texas courts

permit only eFiling. Check with your particular court

for filing information.

1. On-line records

Many court records are available on-line through

open access or through a subscriber system in Harris

and other Texas counties. In the future, all court

papers will have some degree of internet access.

Expect that your filing and any exhibits will be on-line

for public viewing when drafting pleadings and

motions.

2. Paperless Court Dockets: eCourt

Paperless courts arrived in Harris County in

2006. Given the large segment of civil court litigation

in the Harris County District Courts and other

counties with electronic courts, law offices should

consider how to “work well” with the new technology.

3. eFiling in Texas Courts

eFiling in Texas is through Texas On-Line. Here

is how it works.

An attorney transmits his eDocument to his

point of service provider.

The eDocument is transmitted using the

provider’s system to Texas On-Line.

The clerk’s office in the designated county

then retrieves each eDocument at the Texas

On-Line Portal, after checking each

individual eDocument.

The Clerk’s file stamp is automatically

affixed at this point with the date and time

the attorney sent the eDocument to the point

of service provider.

The eFiling is brought into the county’s

filing system.

4. eFiling in Harris County

Technology has changed how the clerk handles

your filings. In the Harris County District Courts,

your eFiling will be moved electronically from the

Texas On-Line Portal to the clerk’s office to the

electronic case file. Civil cases are available on-line

thru a subscriber system.

eFilings are generally received in the district

clerk’s office within minutes of filing. Since 2005,

the Harris County District Clerk’s Office has

committed significant resources to provide seamless

transmission of eFilings across the county firewall.

Since the implementation of these costly system

additions, any delay in eFiling is usually due to filling

errors by the law office with the point of service

provider that causes a delay at the Texas On-Line

Portal.

5. Tips to expedite your eFiling

Tips are set out in Appendix D so that you can

share them with your office.


8

Some of the common problems encountered with

eFiling are:

Failure to pay the proper fee. The eFiling

cannot be moved from the Portal to the court

file until any fee discrepancy is corrected.

Incorrect cause number. If you use an

incorrect cause number, your eFiling may

not be in the correct eCourt file. The

process to “correct” this error is time

consuming and delays other filings.

Courtesy copies. Courtesy copies of eFiled

documents are not necessary.

Highlighting. Yellow highlighting on an

eDocument disappears; other colors appear

“muddy”.

E. Proving Damages

1. Pleadings under TEX. R. CIV. P. 185

Damages liquidated in pleadings in compliance

with Rule 185 need no further proof for a default

judgment or for a summary judgment based on an

inadequate answer. Judges will review the affidavit

and the attached documentation to see that the account

is properly sworn to and itemized. You, too, should

check this before signing your motion for default or

summary judgment.

2. Proof of damages

Failure to properly answer by a defendant does

not relieve the plaintiff of the requirement to prove

unliquidated damages. Damages must also be proved

in any TEX. R. CIV. P. 166a (c) summary judgment

motion or at trial.

Proof may be provided by various sources of

evidence—

testimony by a witness;

affidavit based on personal knowledge or

business records which specifically itemizes

damages (default or summary judgment);

timely filed Business Records Affidavit;

reasonable and necessary attorney’s fees

affidavit with the affiant properly qualified

as an expert (default or summary judgment);

reasonable and necessary affidavit, timely

filed pursuant to TEX. CIV. P. REM. CODE §

18.001;

“Deemed” Requests for Admissions to

establish specific damages;

Note: Requests for Admissions will usually not be

accepted to establish intangible damages such as

mental anguish or exemplary damages.

depositions or depositions on written

questions.

Tip: Depositions are seldom used at default judgment

hearings. Keep this in mind for a challenging

situation where proof is not available by a local

witness or by a willing affiant.

3. Faulty damage affidavits

A recent, informal survey of judges cites faulty

damage affidavits as a common problem. If your

client’s damages are past rental, itemize and explain

the calculation. The cost and expense to relet

premises must be itemized and proven, e.g.

refurbishing that is not normal wear and tear,

commission to relet, or improvements to obtain a new

tenant.

The amount due and owning on an account or

promissory note must be itemized to reflect principle

amounts owed, payments, interest or other contractual

charges, and the resulting balance.

F. Proving “Reasonable and Necessary”

Expenses for Services

1. Using the § 18.001 affidavit at trial

This statutory method of proof is most commonly

used to prove medical expenses in tort cases.

Consider using this affidavit procedure if an element

of a plaintiff’s cause of action requires proof of the

reasonable value of services, including proof of

reasonable attorney’s fees. The burden of proof is met

by using an affidavit to establish sufficient evidence to

get a issue to the jury. TEX. CIV. PRAC. REM. C. §

18.001. Counsel should remember, that even with the

burden of proof met, the burden of persuasion remains

to obtain a favorable verdict from the trier of fact.

Some possible applications for this rule include:

Proving the reasonable expense for non-

liquidated banking services.

Establishing the “reasonable” price for

services, if the agreed price is contested.

Providing the proof as to the amount of

reasonable attorney’s fees.

For the opposing party, timely and properly

responding with a proper contesting affidavit is crucial

to shifting the burden of proof back to the plaintiff.

TEX. CIV. PRAC. REM. C. § 18.001(e), (f).

2. Attorneys fees in default judgments and motions

for summary judgment

For default judgments and summary judgments, a

personal knowledge affidavit by lead counsel should

be filed with your motion. Do not be shy about


9

valuing your services. Remember to provide proof as

to the value of post-judgment collection services.

An affidavit by opposing counsel may create a

contested issue as to attorney’s fees. In that situation,

the movant should obtain the partial summary

judgment ruling as to the recoverability of attorney’s

fees by the client, leaving the amount of reasonable

attorney’s fees as the only remaining issue.

When the amount of reasonable attorney’s fees is

the only remaining issue after a summary judgment

hearing, request an expedited trial setting, including

the trial date in the “Order Granting Partial Summary

Judgment”. Such a setting may be after 45 days

notice for a first trial setting or reasonable notice for a

subsequent trial setting.

While creating this fact issue will delay the final

judgment in the case, a prompt trial setting will force

the issue to resolve the amount of fees. In the rare

situation where the fees are not resolved, be prepared

to proceed to trial, ensuring that your side has

complied with all applicable discovery requests to

allow proper proof at trial.

G. Admissibility of Written Documents

1. Pre-trial methods to establish admissibility of

records

Use Requests for Admission, deposition

testimony, deposition on written questions, production

by the adverse party, and business record affidavits.

a. Business record affidavits and depositions on

written questions.

Business records kept in the ordinary course of

business must be authenticated and proved as an

exception to the Hearsay Rule to be admissible. TEX.

R. CIV. P. 803(6).

Using a personal knowledge affidavit from a

custodian or person with personal knowledge will

suffice for proof in pre-trial motions. At the time of

trial, an affidavit under TEX. R. EVID. 902 or a

deposition on written questions pursuant to TEX. R.

CIV. P. 200 are commonly used to establish

admissibility of the records.

A deposition on written questions to prove up the

elements of the TEX. R. CIV. P. 803(6) should be filed

with the clerk at the time of the hearing or attached to

a summary judgment as any other deposition used as

summary judgment evidence.

At trial, the affidavit and the deposition questions

and answers are not legally entitled to go into the jury

room. The contents of the affidavit and the deposition

are admissible by reading to the trier of fact—the jury

or the judge. Even though you will probably not be

required to read the predicate in front of the jury or the

judge, my recommendation is that you consider

reading the affidavit or the questions and answers to

the jury to lend credibility to the records. Some courts

require attorneys to mark and offer depositions into

evidence in non-jury trials. Check with the court staff

for individual court requirements.

b. Using requests for admission and

interrogatories.

A deemed or admitted request for admission is

evidence when attached to a summary judgment

motion or response or when offered as evidence at a

default judgment hearing or trial. An admission is

“offered into evidence” at trial or an evidentiary

hearing by reading the request and the response, not

by admitting the written response as an exhibit. A

document admitted into evidence on the basis of an

admission is marked as an exhibit and admitted into

evidence.

Procedure to prove a Request for Admission at a

trial or hearing:

(i) File the requests and the responses with the

clerk to be included in the Transcript if the

case goes up on appeal.

(ii) Mark the filed requests and responses for

purposes of identification with an exhibit

number.

(iii) Read the request and the response to the

jury.

Answers to Interrogatories are admitted by this same

procedure.

2. Admitting documents in a hearing or at trial

Plan how you intend to establish the authenticity

and lay the predicate for admission of your exhibits.

In addition to the affidavits and discovery procedures

which require pre-trial preparation and compliance

with deadlines, at the time of trial, you may use

stipulations with opposing counsel, as well as live or

deposition testimony by the custodian of the records

or the author of the document.

Some documents will not need proof for

admissibility. A promissory note or contract which is

properly attached for a petition and not correctly

denied, for example, may be marked as an exhibit and

offered as evidence on the basis of the status of the

pleadings.

Tip. Write out the questions necessary to prove up the

records to avoid the common difficulty of asking the

predicate questions correctly, particularly business

records questions.


10

V. LOOKING GOOD IN YOUR HEARINGS

AND AT TRIAL

In today’s courthouse, attorneys are utilizing

electronic document management and electronic

documents and deposition presentations in hearings

and at trial to persuasively present their case.

Your level of computer savvy will determine

whether you are still paper-bound and work off paper

copies, use your thumb-drive, or keep your scanned

exhibits on your server or the web. If any of you

maintain only papers copies at this time, consider that

your opposing counsel will most likely have electronic

presentations for the judge and jury.

A. Admitting Exhibits

Do not get caught with inadmissible documents.

Here are some categories you might consider for a

check list.

1. Disclosure

Ensure that you have complied with the

requirements for Disclosures, Requests for

Production, Interrogatories, and subpoena duces

tecum.

Failure to produce documents will result in

exclusion of the documents at trial. TEX. R. CIV. P.

193.6 (a).

Failure to produce documents prior a dispositive

hearing may result in a delay of the hearing, as a

requested continuance should be granted by the judge.

Failure to comply with an agreement in a

deposition to produce follow-up documents could

jeopardize admissibility at trial or result in a delay in a

dispositive motion hearing.

Tip: An organized system to calendar time deadlines

and identify the disclosure of your exhibits will make

it easier at trial to identify the source and proper

disclosure of any challenged exhibit.

2. Authentication

Documents are authenticated by many

methods—live testimony of a friendly or an adverse

witness, production by the adverse party, request for

admission, witness deposition, business record

affidavit, and deposition on written questions. For

summary judgment evidence, use a personal

knowledge affidavit, authenticated depositions, or a

true and correct copy of discovery response.

Applicable rules are: authenticating documents

when produced by an adverse party, TEX. R. CIV. P.

193.7; request for admissions, TEX. R. CIV. P. 198.1;

witness deposition, TEX. R. CIV. P. 199.2(b)(5);

business record affidavit/medical record affidavit,

TEX. R. EVID. 902(10); and depositions on written

questions, TEX. R. CIV. P. 200.1(b).

Be prepared to prove that the exhibit is the

original document or article, TEX. R. EVID. 1002, is a

true and correct copy of the original document or

article, TEX. R. EVID. 1001(4); TEX. R. EVID. 1003, or

accurately depicts what is reflected in the tape,

picture, video, diagram or drawing or other

representation. TEX. R. EVID. 1001. Reference books

can assist you in understanding how to authenticate

particular exhibits.

3. Predicate

The predicate for admitting documents may be

laid by witnesses as well as many of the same

procedures in the Rules of Civil Procedure and Rules

of Evidence that authenticate the exhibit (E.g. Request

for Admissions, Oral Deposition, Business Records

Affidavit, and a Deposition on Written Questions).

4. How

Plan how the exhibits necessary to prove your

case or your defense will be admitted.

a. Plan in advance.

Determine what procedures will “automatically”

admit the evidence you need to prevail on your motion

or have the evidence admitted at trial, such as business

records affidavit, requests for admission, or a Rule 11

agreement.

Tip: In planning for trial, if your opposing counsel

has generally agreed to admit all exhibits by

agreement, the careful trial lawyer will ensure that

exhibits are in admissible form.

b. How to introduce exhibits.

Professor Pat Hazel uses this reminder:

MIAO (pronounced “meow”)

Mark. Identify. Authenticate. Offer.

c. Asking the traditional questions.

In an evidentiary hearing or trial, exhibits may be

admitted by agreements. A careful lawyer will be

prepared to ask the appropriate questions to admit his

exhibits. Plan your questions in advance.

As an example, here are standard questions to

admit a contract:

To the court reporter:

“Please mark this as Defendant’s

Exhibit No. 6.”

To the witness:

“Mr. Witness, can you identify

Defendant’s Exhibit No. 6?”


11

“Is this a true and correct copy of the

contract?

“Is this your signature on page four?”

To the Court:

“Your Honor, Defendant offers Exhibit

No. 6.”

Traditionally, the exhibit is passed to opposing

counsel. Using the modern presentation systems you

will find in courtrooms across Texas, until the exhibit

is admitted into evidence, the document is shown on

the presentation system to the attorneys, the witness

and the Court only.

B. Exhibits in the Courtroom

1. The Judge

In a hearing or a non-jury trial, it is important

that the exhibits be passed to a judge during the

testimony of the witnesses to allow the judge to follow

your evidence as the case proceeds. Most judges will

be reluctant to point out this deficiency to avoid the

appearance of helping either side of the case. Even in

jury trials, it is helpful to the judge to have a set of

exhibits in order to better follow the testimony and

respond to objections.

2. Witnesses

Attorneys should consider an exhibit book for the

witness on the stand. This will assist in preserving the

integrity of the original exhibits.

With state-of-the-art courtroom presentation

systems now appearing in courtrooms, witnesses are

able to view the screen to see an exhibit; yet, the paper

form of the exhibit is helpful for a witness who needs

to read the type written document and to testify from

different pages and different documents.

3. The court reporter

The original exhibits admitted into evidence in a

hearing or at trial are in the care and custody of the

Official Court Reporter. Do not remove these exhibits

from the courtroom. In a jury trial, the exhibits that

go into the jury room will be these original exhibits.

In the event of an appeal, these are the exhibits for the

appeal.

Using a large blow-up panel as the exhibit you

leave with the court reporter for the “official record”

is discouraged. Courts do not have storage. Oversize

exhibits do not do well when copied to attach to the

Reporter’s Record in the event of an appeal. If you

use a large foam board as your exhibit for presentation

to the jury, mark an 8 x 11 size copy as the exhibit for

the official record. If you have a three-dimensional

exhibit, bring a photograph for the record.

4. Introducing exhibits in a jury trial

In a jury trial, do not publish an exhibit to the

jury until it is admitted into evidence.

Traditionally, the attorney should address the

Court and request that an exhibit be published to the

jury. Also traditionally, the bailiff will come forward,

take the exhibit and pass it to the first juror. Some

judges will allow an attorney to pass an exhibit to a

juror. Be sure and know the practice in your court.

When using modern, courtroom technology

systems, until the exhibit is admitted into evidence,

only show the exhibit to the attorneys, the witness,

and the Court.

5. Admissible exhibits created during a hearing or

in trial

Admissible exhibits are often created in court

during the presentation of fact and expert witnesses.

Most courts have large note pads on which attorneys

and witnesses write. Examples are the drawings and

written mathematical calculations by an expert. If

properly proved, marked, and offered, the judge will

admit these original exhibits into evidence.

If calculations or drawings are created in the

courtroom by witnesses, these can be marked as

exhibits and admitted into evidence. If a witness

annotates or highlights a copy of an original exhibit,

that new exhibit may be offered and becomes an

original exhibit also.

Admissible exhibits may be produced by a

witness for the first time during questioning. One

example is a sheet of notes which the witness is using

while giving his testimony. Counsel is entitled to

review these notes. While often admissible, these

notes are seldom offered as exhibits.

6. Do not mark on opposing side’s exhibits

Counsel and witnesses should never alter, write

on, or mark on any exhibit or note of the opposing

side.

Theatrical actions such as writing a large red X

mark through opposing counsel’s notes on the Court’s

note pad or “wadding-up” up and throwing an exhibit

into the courtroom trashcan might seem like a good

idea to make a point with the jury, the judge will call

down such conduct.

Remember that movie and television scenes, such

as the accused eating the prosecution’s evidence from

the movie Justice for All, should remain in popular

fiction. In the real courtroom, counsel should ensure

that exhibits are safe-guarded.

7. Demonstrative exhibits in trial

A demonstrative exhibit is marked with an

exhibit number and should be admitted on the record

as a demonstrative exhibit. While not going back to

the jury room during deliberations, it is part of the


12

official record. These and other “aids” are allowed in

the courtroom for use in questioning witnesses and

closing arguments.

A note page written by attorneys while

questioning a witness is not an exhibit admitted as

evidence and, generally, is not a demonstrative

exhibit. For a clear record and easy reference with a

jury, these note pages are often marked with an

exhibit number, even though not admitted into

evidence.

C. Common Issues for Managing Exhibits

1. Numbering system

Use the numbering system established in your

pre-trial preparations. This is particularly important if

deposition testimony is offered which refers to an

exhibit. Having to halt your deposition testimony

with repeated recitations of “Deposition Exhibit No. 3,

Your Honor, is Trial Exhibit No. 15” should be

avoided.

2. Eliminate duplicates

An exhibit will only be admitted one time. If

both sides have listed a document as an exhibit, either

decide which exhibit will be admitted by agreement or

consider a list of Agreed Exhibits. Do not renumber

your exhibits because you might withdraw an exhibit

from your list because it is a duplicate. Just skip over

that number. The goal is to easily identify exhibits.

3. Redact in advance of your hearing or trial

Make all necessary redactions in your exhibits in

advance of your hearing or trial.

Make redactions with an opaque material.

Several commercial products are available. Avoid

black “Marks-A-Lots”. Felt tip pen lines do not

obscure the letters under the black marking. The

writing can be readily read. Copies can also be easily

read.

4. Handling voluminous exhibits

Exhibits come in many sizes—a one page invoice

in a suit for a debt; a five hundred page customer file

in which only twenty pages apply to the issue in your

hearing.

The invoices are easy. Mark and admit these as

your exhibit. It is not necessary to “admit” all pages

from the customer file. If you anticipate using

additional pages from the customer file, for example,

mark the entire customer file as an exhibit; get a

ruling as to admissibility. Then, mark the relevant

pages as you need them, maybe as an “A” to the main

exhibit number, and admit only so many of the pages

as apply to the issue at trial. This will keep it clear

where particular documents originated an ease your

presentation.

Know the contents of all documents you admit

into evidence. Anticipate that the judge or the jury

will read what you admit into evidence, even if not

discussed in testimony. Avoid being surprised by

information you have admitted that you did not intend.

5. Inspect all exhibits prior to delivery to jury room

Inspect to ensure that all your exhibits are

included, that exhibits have been properly redacted,

and that any exhibits not admitted are not included.

TEX. R. CIV. P. 281 provides that “where only

part of a paper has been read in evidence, the jury

shall not take the same with them, unless the part so

read to them is detached from that which was

excluded.”

Learned treatises and demonstrative exhibits do

not go into the jury room for deliberations.

6. “Undiscussed” exhibits

Beware of the impact of admitting documents or

parts of a tape recording as exhibits which are not

discussed with the jury. Whether it is the non-relevant

portions of voluminous documents, pages of an

admitted exhibit that was never discussed by the

expert witness, or the part of a longer video that was

not shown to the jury in the courtroom, do not admit

these as exhibits.

Consider in advance how the undiscussed parts

of an exhibit will play with the judge or the jurors.

Particularly in a jury trial, if such evidence is

admitted, never discussed, and sent to the jury room,

these “undiscussed” exhibits may be considered as

part of the verdict, whether the lawyers intended it or

not.

Juries have been known to deadlock, or worse,

over the jury’s analysis of non-relevant portions of

documents that were just “carried into evidence” as

part of a large exhibit that was only partially relevant.

VI. THE FUTURE IS HERE: TECHNOLOGY

AND INNOVATION

A. Paperless Courts (eCourts) and Electronic

Filing (eFiling)

When filing court papers, attorneys should use

the filing system allowed where your court papers are

being filed. Check on-line or contact the clerk of the

court if you are uncertain about eFiling requirements,

the existence of eCourts, or if you have special timing

or filing requirements.

1. Internet access to court records

Attorneys should be aware that in many counties, the

content of court records is available online through

open access or through a subscriber system. In the

future, expect all court papers to have some degree of

internet access.


13

2. Paperless state court dockets: the eCourt

Courts of the future will have electronic case

files, and the future has arrived in many Texas

counties. Given the large segment of civil court

litigation in the counties which either permit or

require eFiling, and have eCourts, all law offices

should consider how to “work well” with the new

technology.

Check with the clerk when you have a case in a

county that is new to you. In Harris County, attorneys

can search and purchase civil documents at the

District Clerk’s web site.

http://www.hcdistrictclerk.com/eDocs/Public/Search.a

spx Other counties in Texas also have paperless

courts.

3. eFiling in Texas courts

eFiling in Texas is through Texas On-Line. A

point of service provider is selected to transmit the

court paper, or eDocument, to Texas On-Line. The

eDocument is transmitted using the provider’s system

to Texas On-Line. The clerks’ office in each county

then retrieves the eDocument at the Texas On-Line

portal and brings the eDocument into each county’s

filing system.

Attorneys have expressed concerned about how

and when eDocuments are file stamped. Do not be

concerned. The Texas On-Line system affixes the

clerk’s file stamp to your eFiling, together with the

date and time the eDocument was sent to the point of

service provider, when the eDocument is retrieved

from the Texas On-Line portal by the clerk. Your file

stamp will be the date and time you transmitted your

eDocument for filing to your point of service provider.

The e-Receiver: If you are not filing

electronically, register to be an “e-Receiver”.

Attorneys who do not file electronically documents

using the Texas On-Line filing system, that is,

attorneys who do not have a point of service provider

for eFiling, may still participate in eFiling by

registering with Texas On-Line to be an “eFiling

Receiver”. There is no charge to register to receive

only.

4. Tips for eFiling

Technology has changed how the clerks handle

your filings. Here are some pointers which will

expedite your eFiling and assist the clerks in creating

the index in our paperless courts.

a. Use the correct cause number and case style.

This is a reoccurring problem which seems to

have two sources: typing error with transposed

numbers or word processing error from the failure to

change the cause number on a form. Both of these

errors were simply corrected by the clerks in the days

of paper filing. This error can be deadly for an eFiling.

At best, it is a time-consuming process for a clerk to

correct the eFiling. If the error is not noticed by the

clerk, your eFiling will go to the cause number you

specified and will not be in the correct eCourt file.

Tip: Establish an office practice to check and re-check

the cause number to ensure you do not create or

follow a “wrong cause number trail” in your case.

b. Properly title your eFiling.

The index in a paperless file is the key to a

useable eFile. The title used by the law office on an

eFiling is the title of the document as it appears on the

deputy clerk’s computer screen for filing in the

individual case. If a document is filed using a non-

specific title, such as “Motion”, the deputy clerk who

processes that eFiling must go into the system to give

the filing a distinct title. This is a time consuming

process.

Tip: Use the title in your eFiling which you want to

appear on the Judge’s eDocket.

c. File motions separately.

An eFiling with multiple motions or filings

arrives in the court as one eDocument and cannot be

split-up into separately filed and indexed motions or

documents in an electronic file. The document will go

into the eFile packaged as your office electronically

filed the eDocument.

Tip: Each pleading, motion, and other separate

document should be by a separate filing to be

separately filed and indexed when eFiling.

d. Create a “sub-doc” for eFiling exhibits,

proposed orders, and notice of hearings.

Use the “sub-doc” feature when eFiling pleadings

and motions which have supporting documents, such

as exhibits, a proposed order, and notice of hearing.

Even your cover letter can be eFiled as a sub-doc.

The clerks create these “sub-docs” for paper filings,

usually listing the cover later last. You might want to

adopt this for eFiling.

Tip: Learn how to create “sub-docs” when eFiling.

e. Mark your exhibits in eFilings.

Exhibits may be difficult to locate and navigate

in an electronic document in our paperless files. Add

identifier pages before your exhibit and include a list

of your exhibits to help the judge locate your exhibits

in an eDocument.

Tip: To help the judge locate your exhibits in an eFile

document, when filing:

http://www.hcdistrictclerk.com/eDocs/Public/Search.aspx

http://www.hcdistrictclerk.com/eDocs/Public/Search.aspx


14

use a cover sheet before each exhibit with

the description of the exhibit, and

include an index of exhibits to help locate

your exhibits.

f. Courtesy copies are not needed: Save the trees;

File once.

Clerks often receive an e-filing, courtesy copy,

and, if permitted, a paper original filed in the central

clerk’s office. As eFiling becomes routine, this double

and triple filing should lessen.

e-Filings are received in the individual court

within hours of filing—often within minutes. eFilings

will be delayed if a required filing fee is not correctly

paid. The eFiling cannot be moved from the Portal to

the Court until any fee discrepancy is corrected.

Tip: Call the clerk for advice if the timing of a motion

or response is critical.

g. Courtesy copies are advisable: Tabs;

Authorities. (When to ignore the advice in “f”)

A useful courtesy copy in a paperless court is not

a printed duplicate of the eFiling. A useful courtesy

copy provides tabs between numerous exhibits

attached to a lengthy motion. If it is helpful to submit

supporting authorities with a brief, consider providing

those authorities to the trial court in a courtesy copy.

Caveat: Make it clear in your cover letter if

authorities are being provided in a courtesy copy to

Chambers and provide a copy to opposing counsel.

h. Do not scan highlighted material for Paperless

Courts or for eFiling.

Avoid highlighting the key section of the

deposition, contract, and case important to your

motion. Highlighting does not scan well, if at all.

Yellow marker will disappear when scanned. Colored

markers create a muddy document which makes the

underlying type difficult to read.

Tip: Block with dark ink the portion of disposition

testimony or the section of a case which you wish to

highlight.

B. Technology and Courthouse Innovations

1. Court information

Check each county and court web page in which

your case in pending for available on-line information.

Court web pages provide access to information on

local rules and other court information.

In Harris County, attorneys can go to the district

court web page at www.justex.net. This site will

provide a link to the civil district courts for general

information, local rules, and other useful information.

From the civil court page, you can link to each civil

court for individual court contact information and

court policies including contact information for court

staff, hearing and trial docket information, pre-trial

and trial procedures, an order for standardized in

limine rules for trial, and a jury panel seating chart. In

Harris County, the county civil courts and probate

courts also post court information on the court web

site.

2. Wireless computer connections

In Harris County, a wireless computer network is

supplied in the Civil Courthouse. Court staff will

provide the information to connect to the wireless

network and how to connect your computer into the

courtroom presentation system.

3. Trial rooms

Each courtroom in the Harris County Civil

Courthouse has two trial rooms located in the entry to

each courtroom for use while in trial. The bailiff has

the key to the rooms and will lock and unlock the

rooms each day. Your papers and files may be stored

here during trial for easy access during the day and

security at night.

4. Testimony and presentation system

User friendly technology is available in the

Harris County district and county courtrooms for all

attorneys and pro se parties to use to present exhibits,

demonstrative exhibits, and video evidence and

testimony.

A visit the courtroom prior to trial is encouraged.

A short orientation by court staff will enable you to

use the document camera, the annotation system, the

DVD, the CD, and audiotape system, and to connect

your laptop computer into the presentation system.

Pictures of the courtroom showing the presentation

system can be seen at the District Judge’s web site at

www.justex.net.

C. Jury Trial Improvements and Innovations

1. Amended Rules of Procedures.

To aid jurors in understanding the evidence and

in conducting their deliberations, the Texas Supreme

Court has adopted new rules for jurors,

The Supreme Court order Misc. Docket No. 11-

9047 amending TEX. R. CIV. P. 226a, 281, and 284

can be located at the Supreme Court web site

http://www.supreme.courts.state.tx.us/.

The Supreme Court’s order and the text of the

amended rules may also be found in the April 2011

The Texas Bar Journal.

Portions of the amended rules discussed here are

set out in Appendix B-iii.

The complete text of TEX. R. CIV. P. 226a, § III.

Court’s Charge, is attached as Appendix E.

http://www.justex.net/

http://www.justex.net/

http://www.supreme.courts.state.tx.us/


15

a. Jury Instructions—Rule 226a.

Three sets of instructions are set out in TEX. R.

CIV. P. 226a: § I—instructions to the jury panel, §

II—instructions after the jurors are chosen, and § III--

the Court’s Charge read at the time of closing

arguments.

b. Catching up with the times.

The rewritten TEX. R. CIV. P. 226a (1) updates the

traditional instructions to jurors, (2) provides uniform

instructions for jurors taking notes, and (3) addresses

the issue of juror communications during trial. The

new instructions explain the prohibition of jurors

using electronic devices, cell phones, text messaging,

email messages, blogs, and social networking

websites in connection with the case on trial. Jurors

are clearly instructed not to photograph or record

proceedings and not to use electronic communications

to seek outside information relating to a case or

communicating with others concerning the case.

c. Trial notes for jurors.

TEX. R. CIV. P. 226a clarifies how jurors are

permitted to take notes during trial, setting out

procedures to be followed by jurors and courts to

ensure the security and privacy of jurors’ notes.

Jurors are to take notes on material provided by

the court and may not take notes on electronic

devices. Optional language instructs jurors on the

proper procedures if the jurors are allowed by the jury

to take their notes into the jury room during

deliberations.

Note: Jurors in my court first began taking notes

in April of 1982. This never caused a problem in any

trial. Jurors were allowed to take their notes into

deliberations, with proper instructions on their use.

When the verdict was returned, jurors were allowed to

take their notes with them. Any notes left were

destroyed by the bailiff. I found that these procedures

involved jurors in the trial, while respecting the jurors’

intelligence and commitment to our jury system.

d. Each juror to have Court’s Charge—Amended

Rule 226a.

Each juror is to be provided a copy of the Court’s

Charge before closing arguments begin. TEX. R. CIV.

P. 226a: § III.

e. Signing the Verdict—Amended Rule 226a.

The amended rule more fully explains how a jury

reports a 10-2 or a 5-1 verdict and adopts a new

verdict certificate format which includes a procedure

for the jury to list unanimous answers. TEX. R. CIV.

P. 226a: § III.

2. Jury trial innovations

Individual courts continue to seek procedures

which increase juror participation in the trial process

and help the jurors better understand the evidence as

presented.

Past innovations to aid jurors includes some

practices with which you may be familiar, such as

jurors taking notes and providing all jurors with a

copy of the Court’s Charge, which have now been

included in the recent amendments to the Rule 226a.

Other practices such as jurors being allowed to ask

questions and have exhibits lists and exhibit

notebooks may be new to you.

Attorneys should be alert to the jurors’ need to

follow your exhibits and understand the value of this

evidence. Using video screens to display exhibits and

play depositions are common.

Tip: Check with court staff to determine particular

court policies.

a. Juror notebooks

If requested, your judge may allow jurors to each

have a notebook for use in the courtroom containing

exhibits that are key to understanding the testimony

and evidence in a case. A notebook containing the

various contracts, letters, emails, or other written

records referred to in witness testimony can help

jurors focus on the evidence in the case. Generally,

these juror notebooks are compiled by the attorneys

prior to trial, with any additional exhibits

supplemented as the trial progresses, or the notebooks

are “built” as exhibits are passed to jurors during the

trial as the exhibits are used in testimony.

b. Exhibits and exhibit lists

Passing exhibits for the jurors to read at the

conclusion of a witness’s testimony is old fashioned,

yet still works, if jurors are not allowed to individually

keep exhibits during the trial. A final version of

admitted exhibits might be provided the jurors at the

time of closing arguments.

In a case with extensive exhibits, if key exhibits

are pre-admitted, both sides of the case should

consider providing exhibits lists to the jury to use

during trial. If your exhibits contain extensive

technical terminology, an agreed glossary of terms can

be provided the jurors.

In cases with extensive exhibits, attorneys should

consider preparing a list of the exhibits admitted

during trial to be distributed with the Court’s Charge.

Such a list aids the jurors in understanding the closing

arguments and assists the jurors in finding exhibits

during deliberations.


16

c. Juror questions

Some courts have formal procedures allowing

jurors to ask questions of the witnesses. Most other

courts have informal policies that allow such

questions when submitted in written form without the

name of the juror.

The concern about juror questions, of course, is

that jurors’ questions may not conform to the Rules of

Evidence. This should be explained to the jurors by

the judge.

Note: My practice for over 20 years was the

informal process. The bailiff was instructed to advise

any juror who inquired that any question was to be

written down without the name of the juror to be

given to the judge who would review the question

with the attorneys.

Only once did the attorneys ask me to read the

question to a witness. In all other instances of juror

questions, the lawyers took the request aboard and

made use of the question by going over that point in

their questioning of witnesses.

VII. CONCLUSION

Attention to pre-trial discovery and preparation

and knowledge of the Rules of Evidence and

Procedure will allow an attorney to effortlessly

present his client’s evidence to the jury, freeing the

attorney to concentrate on courtroom testimony and

presenting a more professional case to the jury.

Being prepared is key to success at trial.

Respect the process and opposing counsel. Be

respectful of the jury. It is an honor to be part of our

judicial system.

5-2012

A-i

APPENDIX A:

THE TEXAS LAWYER'S CREED

A Mandate for Professionalism

Promulgated by The Supreme Court of Texas and

The Court of Criminal Appeals November 7, 1989

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.

I. 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. I am responsible to assure that all persons have access to competent representation

regardless of wealth or position in life. 3. I commit myself to an adequate and effective pro bono program. 4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit

and letter of this Creed. 5. I will always be conscious of my duty to the judicial system.

II. LAWYER TO CLIENT

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate 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. I will endeavor to achieve my client's lawful objectives in legal transactions and in

litigation as quickly and economically as possible. 3. 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.

4. I will advise my client that civility and courtesy are expected and are not a sign of weakness.

5. I will advise my client of proper and expected behavior. 6. I 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. I 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.


17

A-ii

8. I will advise my client that we will not pursue tactics which are intended primarily for delay.

9. I will advise my client that we will not pursue any course of action which is without merit.

10. I 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.

III. 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.

1. I will be courteous, civil, and prompt in oral and written communications. 2. I will not quarrel over matters of form or style, but I will concentrate on matters of

substance. 3. I will identify for other counsel or parties all changes I have made in documents

submitted for review. 4. 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.

5. 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 cancelled.

6. 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.

7. I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond.

8. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.

9. 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.

10. 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.


18

A-iii

12. I 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. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.

14. I will not arbitrarily schedule a deposition, Court appearance, or hearing until a good faith effort has been made to schedule it by agreement.

15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.

16. I will refrain from excessive and abusive discovery. 17. I 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. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.

19. I 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.

IV. 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 administration of justice. I will refrain from conduct that degrades this symbol.

2. I will conduct myself in court in a professional manner and demonstrate my respect for the Court and the law.

3. I will treat counsel, opposing parties, witnesses, the Court, and members of the Court staff with courtesy and civility and will not manifest by words or conduct bias or prejudice based on race, color, national origin, religion, disability, age, sex, or sexual orientation.

4. I will be punctual. 5. I will not engage in any conduct which offends the dignity and decorum of proceedings. 6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or

authorities to gain an advantage. 7. I will respect the rulings of the Court. 8. I will give the issues in controversy deliberate, impartial and studied analysis and

consideration. 9. I 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.


19

B-i

APPENDIX B – Selected Texas Rules and Statute

I. TEXAS RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

Rule 105. Limited Admissibility

(a). Limiting Instruction. When evidence which is admissible…for one purpose but not

admissible…for another purpose is admitted, the court, upon request shall restrict the evidence to

its proper scope and instruct the jury accordingly.

ARTICLE VI. WITNESSES

Rule 611. Mode and Order of Interrogation and Presentation

(a) Control by Court. The court shall exercise reasonable control over the mode and order of

interrogating witnesses and presenting evidence.

ARTICLE VII. OPINIONS AND EXPERT TESTIMONY

Rule 701. Opinion Testimony by Lay Witnesses.

If a witness is not testifying as an expert, the witness’ testimony in the form of opinions or

inferences is limited to those opinion and inferences which are (a) rationally based on the

perception of the witness and (b) helpful to…the determination of a fact in issue.

Rule 702. Testimony by Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact…may testify

thereto in the form of an opinion or otherwise.

ARTICLE VIII. HEARSAY

Rule 801. Definitions

(d) Hearsay. “Hearsay” is a statement…offered in evidence to prove the truth of the matter

asserted.

(e) Statements Which Are Not Hearsay…

(1) Prior statement by witness…

(2) Admission by party-opponent…

(3) Depositions.

Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial

(6) Records of Regularly Conducted Activity...record...made at or near the time by…a

person with knowledge, if kept in the course of a regularly conducted business activity, and if it

was the regular practice of that business activity to make the…record…as shown by the

testimony of the custodian.

(8) Public Records and Reports. [R]eports…of public offices or agencies setting

forth…matters observed pursuant to duty imposed by law as to which matters there was a duty to

report.

(18) Learned Treatises. [S]tatements contained in [publications] and established as a reliable

authority by the testimony or admission of the witness or by other expert testimony or by judicial

notice…may be read into the evidence but may not be received as exhibits.


20

B-ii

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

Rule 902. Self-Authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with

respect to the following:

(4) Certified Copies of Public Records.

(10) Business Records Accompanied by Affidavit.

(a) Any record…which would be admissible under Rule 803(6) or (7)…shall be admissible

in evidence…upon the affidavit of the person who would otherwise provide the prerequisites.

(b) Form of affidavit…an affidavit which substantially complies with the provision of this

rule shall suffice. [Suggested wording for the affidavit is provided.]

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1001. Definitions

(c) Original. An “original” of a writing or recording is the writing or the recording itself or

any counterpart intended to have the same effect.

(d) Duplicate. A duplicate” is a counterpart produced by… techniques which accurately

repro-duce the original.

Rule 1002. Requirement of Originals

To prove the content of a writing…the original writing…is required except as otherwise

provided in these rules or by law.

Rule 1003. Admissibility of Duplicates

A duplicate is admissible to the same extent as the original.

Rule 1005. Public Records

The contents of an official record…may be proved by a copy, certified as correct in accordance

with Rule 902 [Certified Copies of Public Records]. TEX. R. EVID. 1005.


21

B-iii

II. TEXAS RULES OF CIVIL PROCEDURE.

SECTION 9. EVIDENCE AND DISCOVERY

B. DISCOVERY

Rule 193.7 Production of Documents Self-Authenticating.

A party’s production of a document in response to written discovery authenticates the document

for use against that party…unless…the party objects to the authenticity of the document.

Rule 193.6 Failing to Timely Respond—Effect on Trial.

A party who fails to make, amend, or supplement a discovery response in a timely manner may

not introduce in evidence the material or information that was not timely disclosed…unless the

court finds that there was good cause…or the failure...will not unfairly surprise or unfairly

prejudice the other parties.

Rule 198.1 Request for Admissions.

[W]ritten requests that the other party admit…the genuineness of any documents served with the

request or otherwise made available for inspection and copying.

Rule 199. Procedure for Noticing Oral Deposition.

A [deposition] notice may include a request that the witness produce at the deposition documents

or tangible things.

Rule 200. Procedure for Noticing Depositions Upon Written Questions.

The [notice of a deposition upon written questions] also may include a request for production of

documents.

Rule 203.6(b)

“Same proceeding” is defined as “a proceeding in different court, involving the same subject

matter and the same parties.”

SECTION 11. TRIAL OF CAUSES

C. THE TRIAL

Rule 226a. INSTRUCTIONS TO JURY PANEL AND JURY

[From the rule as rewritten in 2011: excerpts dealing with technology and juror notes]

I.

That the following oral instructions, with such modifications as the circumstances of the

particular case may require, shall be given by the court to the members of the jury panel after

they have been sworn in as provided in Rule 226 and before the voir dire examination:

Members of the Jury Panel:

Thank you for being here. We are here to select a jury. Twelve [six] of you will be chosen for

the jury. Even if you are not chosen for the jury, you are performing a valuable service that is

your right and duty as a citizen of a free country.

Before we begin: Turn off all cell phones and other electronic devices. While you are in the

courtroom, do not communicate with anyone through any electronic device. [For example, do not


22

B-iv

communicate by phone, text message, email message, chat room, blog, or social networking

websites such as Facebook, Twitter, or Myspace.] [ I will give you a number where others may

contact you in case of an emergency.] Do not record or photograph any part of these court

proceedings, because it is prohibited by law.

. . .

These are the instructions:

. . .

3. Do not discuss this case with anyone, even your spouse or a friend, either in person or by any

other means [including by phone, text message, email message, chat room, blog, or social

networking websites such as Facebook, Twitter, or Myspace.] . . .

II.

That the following oral instructions, with such modifications as the circumstances of the

particular case may require, shall be given by the court to the jury panel immediately after the

jurors are selected for the case:

Members of the Jury:

You have been chosen to serve on this jury. Because of the oath you have taken and your

selection for the jury, you become officials of this court and active participants in our justice

system.

[Hand out the written instructions.]

You have each received a set of written instructions. I am going to read them with you now.

Some of them you have heard before and some are new.

1. Turn off all cell phones and other electronic devices. While you are in the courtroom and

while you are deliberating, do not communicate with anyone through any electronic device. [For

example, do not communicate by phone, text message, email message, chat room, blog, or social

networking websites such as Facebook, Twitter, or Myspace.] [I will give you a number where

others may contact you in case of an emergency.] Do not post information about the case on the

Internet before these court proceedings end and you are released from jury duty. Do not record

or photograph any part of these court proceedings, because it is prohibited by law.

. . .

4. Do not discuss this case with anyone, even your spouse or a friend, either in person or by any

other means [including by phone, text message, email message, chat room, blog, or social

networking websites such as Facebook, Twitter, or Myspace.] . . .

. . .

6. Do not investigate this case on your own. For example:

. . .

e. Do not look anything up on the Internet to try to learn more about the case.

. . .

10. During the trial, if taking notes will help focus your attention on the evidence, you may take

notes using the materials the court has provided. Do not use any personal electronic devices to


23

B-v

take notes. If taking notes will distract your attention from the evidence, you should not take

notes. Your notes are for your own personal use. They are not evidence. Do not show or read

your notes to anyone, including other jurors.

You must leave your notes in the jury room or with the bailiff. The bailiff is instructed not to

read your notes and to give your notes to me promptly after collecting them from you. I will

make sure your notes are kept in a safe, secure location and not disclosed to anyone.

[You may take your notes back into the jury room and consult them during deliberations. But

keep in mind that your notes are not evidence. When you deliberate, each of you should rely on

your independent recollection of the evidence and not be influenced by the fact that another juror

has or has not taken notes. After you complete your deliberations, the bailiff will collect your

notes.]

When you are released from jury duty, the bailiff will promptly destroy your notes so that

nobody can read what you wrote.

. . .

III.

Court’s Charge

Before closing arguments begin, the court must give to each member of the jury a copy of the

charge, which must include the following written instructions, with such modifications as the

circumstances of the particular case may require:

After closing arguments, you will go to the jury room to decide the case . . .

. . .

Remember my previous instructions: Do not discuss the case with anyone else, either in person

or by any other means. Do not do any independent investigation about the case or conduct any

research. Do not look up any words in dictionaries or on the Internet. Do not post information

about the case on the Internet. Do not share any special knowledge or experiences with the other

jurors. Do not use your phone or any other electronic device during your deliberations for any

reason. [I will give you a number where others may contact you in case of an emergency.]

[Any notes you have taken are for your own personal use. You may take your notes back into

the jury room and consult them during deliberations, but do not show or read your notes to your

fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely

on your independent recollection of the evidence and not be influenced by the fact that another

juror has or has not taken notes.]

[You must leave your notes with the bailiff when you are not deliberating. The bailiff will give

your notes to me promptly after collecting them from you. I will make sure your notes are kept

in a safe, secure location and not disclosed to anyone. After you complete your deliberations, the

bailiff will collect your notes. When you are released from jury duty, the bailiff will promptly

destroy your notes so that nobody can read what you wrote.]

. . .


24

B-vi

Rule 281. Papers Taken to Jury Room

With the court’s permission, the jury may take with them to the jury room any notes they took

during the trial. In addition, the jury may and on request shall, take with them in their retirement

the charges and instructions, general or special, which were given and read to them, and any

written evidence, except the depositions of witnesses, but shall not take with them any special

charges which have been refused. Where only part of a paper has been read in evidence, the jury

shall not take the same with them, unless the part so read to them is detached from that which

was excluded.

Rule 284. Judge to Caution Jury

Immediately after jurors are selected for a case, the court must instruct them to turn off their

phones and other electronic devices and not to communicate with anyone through any electronic

devices while they are in the courtroom or while they are deliberating. The court must also

instruct them that, while they are serving as jurors, they must not post any information about the

case on the Internet or search for any information outside of the courtroom, including on the

Internet, to try to learn more about the case.


25

B-vii

III. TEXAS CIVIL PRACTICE & REMEDIES CODE

TITLE 2. TRIAL, JUDGMENT AND APPEAL

§ 18.001. Affidavit Concerning Cost and Necessity of Services.

(b) Unless a controverting affidavit is filed…an affidavit that the amount…was reasonable at the

time and place that the service was provided and that the service was necessary is sufficient

evidence to support a finding of fact by judge or jury.

(e) A party intending to controvert…must file a counteraffidavit…not later than [a date

described in the rule.]

(f) The counteraffidavit must be made by a person who is qualified, by knowledge, skill,

experience, training, education…to testify in contravention…of the matters contained in the

initial affidavit.

TITLE 6. MISCELLANEOUS PROVISIONS

§ 132.001. Unsworn Declaration.

(a) Except as provided by Subsection (b), an unsworn declaration may be used in lieu of a

written sworn declaration, verification, certification, oath, or affidavit required by statute or

required by a rule, order, or requirement adopted as provided by law.

(b) This section does not apply to an oath of office or an oath required to be taken before a

specified official other than a notary public.

(c) An unsworn declaration made under this section must be:

(1) in writing; and

(2) subscribed by the person making the declaration as true under penalty of perjury.

(d) Except as provided by Subsection (e), an unsworn declaration made under this section must

include a jurat in substantially the following form:

"My name is ________ _______ _______, (First)(Middle)(Last) my date of birth is

_________________, and my address is __________, ________, ________, ______,

(Street)(City)(State)(Zip Code) and _________ (Country). I declare under penalty of perjury

that the foregoing is true and correct.

Executed in ____ County, State of _____, on the ___ day of________, _____. (Month)(Year) ____________________

________________________________

Declarant"

(e) An unsworn declaration made under this section by an inmate must include a jurat in

substantially the following form:

"My name is ________ _______ _______, (First)(Middle)(Last) my date of birth is

_________________, and my inmate identifying number, if any, is ________. I am

presently incarcerated in _________ (Corrections unit name) in ______, ______, ______,

_____, (City)(County)(State)(Zip Code) and _________ (Country). I declare under penalty

of perjury that the foregoing is true and correct.

Executed on the ____ day of________, _____. (Month)(Year)

________________________________

Declarant"


26

C-i

APPENDIX C: UNSWORN DECLARATIONS

H.B. 3674, as passed by the 82nd

Legislature (2011)

Acts 2011, 82nd

Leg., R.S., Ch. 847, Sec 1, eff. Sept 1, 2011

AN ACT

relating to the use of an unsworn declaration.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 132.001, Civil Practice and Remedies Code, is amended to read as

follows:

Sec. 132.001. UNSWORN [] DECLARATION.

(a) Except as provided by Subsection (b), an unsworn declaration [may be used in lieu of a

written sworn declaration, verification, certification, oath, or affidavit required by statute or

required by a rule, order or requirement adtoped as provided by law.

(b) This section [] does not apply to an oath of office or an oath required to be taken before a

specified official other than a notary public.

(c) An unsworn declaration made under this section must be:

(1) in writing; and

(2) subscribed by the person making the declaration as true under penalty of perjury.

(d) Except as provided by Subsection (e), an unsworn declaration made under this section

must include a jurat in substantially the following form: "My name is __________ _______

____________, (First)(Middle)(Last), my date of birth is _________, and my address is

__________, ________, ________, ______, (Street)(City)(State)(Zip Code) and _________

(Country). I declare under penalty of perjury that the foregoing is true and correct.

Executed in _______ County, State of ________, on the ____ day of________, _____.

(Month)(Year)

____________________

Declarant"

(e) An unsworn declaration made under this section by an inmate must include a jurat in

substantially the following form:

"My name is ________ _______ _______, (First)(Middle)(Last), my date of birth is

_________________, and my inmate identifying number, if any, is ________. I am

presently incarcerated in _________

(Corrections unit name) in ______, ______, ______, _____, (City)(County)(State)(Zip

Code) and _________ (Country). I declare under penalty of perjury that the foregoing is true

and correct.

Executed on the ____ day of_______, _____. (Month)(Year)

____________________

Declarant"

SECTION 2. Sections 132.002 and 132.003, Civil Practice and Remedies Code are repealed.


27

C-ii

SECTION 3. Section 132.001, Civil Practice and Remedies Code, as amended by this Act,

applies only to the unsworn declaration executed on or after the effective date of this Act. An

unsworn declaration executed before the effective date of this Act is governed by the law in

effect immediately before the effective date of this Act, and that law is continued in effect for

that purpose.

SECTION 4. This Act takes effect September 1, 2011.

[Note: Vote in the House on H.B. NO. 3674: Yeas 144, Nays 0, 1 present, not voting; Vote in

the Senate: Yeas 31, Nays 0.]

[Note: The repealed sections referred to in Section 3 of the 2011 bill:

132.002 Requirements of Declaration.

An unsworn declaration made under this Chapter must be: (1) in writing; and (2) subscribed

by the person making the declaration as true under penalty of perjury.

132.003 Form of Declaration.

The form of a declaration under this Chapter must be substantially as follows: “I, insure

name and inmate identifying number from Texas Department of Correction or County Jail),

being presently incarcerated in (insert Texas Department of Corrections Unit Name or County

Jail name) in ___ County, Texas, declare under penalty of perjury that the foregoing is true and

correct. Executed on (date). (Signature)”]

5-2012


28

D-i

Appendix D: Eight Tips for eFiling in Texas Courts

These pointers will expedite your eFiling and assist courts with electronic files. These tips are

particularly helpful in Harris County District Court paperless files.

#1. Use the correct cause number and case style. Establish an office practice to check

and re-check the cause number to ensure you do not create or follow a “wrong cause

number trail” in your case.

#2. Properly title your eFiling. Use the title in your eFiling which you want to appear

on the file index.

#3. File motions separately. Each pleading, motion, and other separate document

should be by a separate filing to be separately filed and indexed when eFiling.

#4. Create a “sub-doc” for eFiling exhibits, proposed orders, and notice of hearings.

Learn how to create “sub-docs” when eFiling in order to index the separate parts of one

filing. E.g. Use a “subdoc” for the cover letter, exhibits, and the proposed order.

#5. Mark your exhibits in eFilings. To help the judge locate your exhibits in an eFile

document, when filing: you can use a cover sheet before each exhibit with the description

of the exhibit and

#6. Courtesy copies are not needed: Save the trees; File once. Call the clerk for

advice if the timing of a motion or response is critical.

#7. When to ignore Tip #6. Use a courtesy copy to provide: Tabs; Authorities--

Provide a courtesy copy to tab extensive exhibits or to provide copies of authorities.

#8. Do not scan highlighted material for Paperless Courts or for eFiling. Yellow

high lighting disappears in a scanned eDocument. Block any specified testimony or case

language by drawing a line dark ink around the portion of disposition testimony or the

section of a case which you wish to highlight.

5-2012


29

E-i

APPENDIX E: RULE 226a, T.R.C.P, § III. Court’s Charge

(as amended August 2011)

* * *

Jury Instruction Prescribed by Order Under Rule 226a

[amendments are not redlined; brackets indicate optional and instructive text]

III.

Court’s Charge

Members of the Jury [or Ladies & Gentlemen of the Jury]:

After the closing arguments, you will go to the jury room to decide the case, answer the

questions that are attached, and reach a verdict. You may discuss the case with other jurors only

when you are all together in the jury room.

Remember my previous instructions: Do not discuss the case with anyone else, either in

person or by any other means. Do not do any independent investigation about the case or

conduct any research. Do not look up any words in dictionaries or on the Internet. Do not post

information about the case on the Internet. Do not share any special knowledge or experiences

with the other jurors. Do not use your phone or any other electronic device during your

deliberations for any reason. I have given you a number where others may contact you in case of

an emergency.

[Any notes you have taken are for your own personal use. You may take your notes back

into the jury room and consult them during deliberations, but do not show or read your notes to

your fellow jurors during your deliberations. Your notes are not evidence. Each of you should

rely on your independent recollection of the evidence and not be influenced by the fact that

another juror has or has not taken notes.]

[You must leave your notes with the bailiff when you are not deliberating. The bailiff

will give your notes to me promptly after collecting them from you. I will make sure your notes

are kept in a safe, secure location and not disclosed to anyone. After you complete your

deliberations, the bailiff will collect your notes. When you are released from jury duty, the

bailiff will promptly destroy your notes so that nobody can read what you wrote.]

Here are the instructions for answering the questions.

1. Do not let bias, prejudice, or sympathy play any part in your decision.

2. Base your answers only on the evidence admitted in court and on the law that is in

these instructions and questions. Do not consider or discuss any evidence that was not admitted

in the courtroom.


30

E-ii

3. You are to make up your own minds about the facts. You are the sole judges of the

credibility of the witnesses and the weight to give their testimony. But on matters of law, you

must follow all of my instructions.

4. If my instructions use a word in a way that is different from its ordinary meaning, use

the meaning I give you, which will be a proper legal definition.

5. All the questions and answers are important. No one should say that any question or

answer is not important.

6. Answer “yes” or “no” to all questions unless you are told otherwise. A “yes” answer

must be based on a preponderance of the evidence unless you are told otherwise. Whenever a

question requires an answer other than “yes” or “no,” your answer must be based on a

preponderance of the evidence unless you are told otherwise.

The term “preponderance of the evidence” means the greater weight of credible evidence

presented in this case. If you do not find that a preponderance of the evidence supports a “yes”

answer, then answer “no.” A preponderance of the evidence is not measured by the number of

witnesses or by the number of documents admitted in evidence. For a fact to be proved by a

preponderance of the evidence, you must find that the fact is more likely true than not true.

7. Do not decide who you think should win before you answer the questions and then

just answer the questions to match your decision. Answer each question carefully without

considering who will win. Do not discuss or consider the effect your answers will have.

8. Do not answer questions by drawing straws or by any method of chance.

9. Some questions might ask you for a dollar amount. Do not agree in advance to decide

on a dollar amount by adding up each juror’s amount and then figuring the average.

10. Do not trade your answers. For example, do not say, “I will answer this question

your way if you answer another question my way.”

11. [Unless otherwise instructed] The answers to the questions must be based on the

decision of at least 10 [5] of the 12 [6] jurors. The same 10 [5] jurors must agree on every

answer. Do not agree to be bound by a vote of anything less than 10 [5] jurors, even if it would

be a majority.

As I have said before, if you do not follow these instructions, you will be guilty of juror

misconduct, and I might have to order a new trial and start this process over again. This would

waste your time and the parties’ money, and would require the taxpayers of this county to pay for

another trial. If a juror breaks any of these rules, tell that person to stop and report it to me

immediately.

[Definitions, questions, and special instructions given the jury will be transcribed here.]


31

E-iii

Presiding Juror:

1. When you go into the jury room to answer the questions, the first thing you will need to do is

choose a presiding juror.

2. The presiding juror has these duties:

a. have the complete charge read aloud if it will be helpful to your deliberations;

b. preside over your deliberations, meaning manage the discussions, and see that you

follow these instructions;

c. give written questions or comments to the bailiff who will give them to the judge;

d. write down the answers you agree on;

e. get the signatures for the verdict certificate; and

f. notify the bailiff that you have reached a verdict.

Do you understand the duties of the presiding juror? If you do not, please tell me now.

Instructions for Signing the Verdict Certificate:

1. [Unless otherwise instructed] You may answer the questions on a vote of 10 [5] jurors.

The same 10 [5] jurors must agree on every answer in the charge. This means you may not have

one group of 10 [5] jurors agree on one answer and a different group of 10 [5] jurors agree on

another answer.

2. If 10 [5] jurors agree on every answer, those 10 [5] jurors sign the verdict.

If 11 jurors agree on every answer, those 11 jurors sign the verdict.

If all 12 [6] of you agree on every answer, you are unanimous and only the presiding

juror signs the verdict.

3. All jurors should deliberate on every question. You may end up with all 12 [6] of you

agreeing on some answers, while only 10 [5] or 11 of you agree on other answers. But when you

sign the verdict, only those 10 [5] or 11 who agree on every answer will sign the verdict.

4. [Added if the charge requires some unanimity] There are some special instructions

before Questions ____ explaining how to answer those questions. Please follow the instructions.

If all 12 [6] of you answer those questions, you will need to complete a second verdict certificate

for those questions.

Do you understand these instructions? If you do not, please tell me now.

________________________

Judge Presiding


32

E-iv

Verdict Certificate

Check one:

_____ Our verdict is unanimous. All 12 [6] of us have agreed to each and every answer. The

presiding juror has signed the certificate for all 12 [6] of us.

_________________________ __________________________

Signature of Presiding Juror Printed Name of Presiding Juror

_____ Our verdict is not unanimous. Eleven of us have agreed to each and every answer and

have signed the certificate below.

_____ Our verdict is not unanimous. Ten [Five] of us have agreed to each and every answer and

have signed the certificate below.

SIGNATURE NAME PRINTED

1. ____________________________ ____________________________

2. ____________________________ ____________________________

3. ____________________________ ____________________________

4. ____________________________ ____________________________

5. ____________________________ ____________________________

6. ____________________________ ____________________________

7. ____________________________ ____________________________

8. ____________________________ ____________________________

9. ____________________________ ____________________________

10. ____________________________ ____________________________

11. ____________________________ ____________________________


33

E-v

If you have answered any subpart of Question No.___ [the exemplary damages amount], then

you must sign this certificate also.

Additional Certificate

[Used when some questions require unanimous answers]

I certify that the jury was unanimous in answering the following questions. All 12 [6] of us

agreed to the answers. The presiding juror has signed the certificate for all 12 of us.

[Judge to list questions that require a unanimous answer, including the predicate liability

question.]

______________________ _________________________

Signature of Presiding Juror Printed name of Presiding Juror

5-2012


34