1. Opposing counsel may be long-winded, eating through the time allotted for the hearing. When setting a matter on the Travis County District Court docket, counsel must estimate the amount of time necessary for the hearing. This sounds straightforward, but it’s not.

Counsel must estimate the amount of time needed for the entire hearing, not just his own argument. It’s wise to set the matter for more time than anticipated (even regarding the opposing side’s time) to ensure as much time as needed is provided.

If the hearing wraps up in less time than originally estimated, the court will be more than happy to have that unused time back on the docket. However, the opposite isn’t true if the hearing risks running long. The court will limit the parties to the time requested, even if counsel needs more time to make proper argument. Attorneys always have the right to request a specific amount of time, but that power creates responsibility; the court will limit them to the time requested.

Additionally, the court will not necessarily divide the time for the hearing conveniently and neatly down the middle and then keep track of each side’s time usage. On the contrary, the clock may run out with one side not getting exactly one-half of the estimated time allotment. Filing a reply protects the client’s interests by outlining counsel’s reply to any new issues the respondent raises.

Further, if the judge does not rule immediately, the court and staff attorney will have counsel’s reply handy for review before issuing a ruling.

2. Responding to new issues raised in the response to the motion for summary judgment is advantageous. A few months ago, I was preparing for a hearing on my client’s motion for summary judgment. The opposing party filed a response, including evidence. I was debating whether it would be worthwhile to draft a reply.

I had already drafted my necessary objections to the respondent’s evidence, so I had already started a written document. But I couldn’t decide whether it would be worthwhile to draft a response to argue against newly raised legal issues or simply point them out orally in court. My client would appreciate the cost savings of foregoing a written reply and likely would have preferred that I make my points in oral argument instead.

However, I erred on the side of outlining my arguments in a reply, along with supporting case law. The judge assigned to the hearing had a chance to review the file prior to the start of the hearing. That’s rare in the central docket system, since the judges often receive the material only moments before the hearing begins.

Because the judge had that advance time, he only had some pointed questions related to the legal arguments. He saw no need to open the hearing to full argument, as he seemed undecided on only a couple of issues. Thus, we were able to streamline the hearing, focusing only on those issues and supporting case law. During the brief hearing, I pointed the judge to my supporting case law, but he also had the opportunity to review my reply earlier, letting him see the outline of anything the short oral argument may have missed.

The judge took the issues under advisement and later granted my motion in its entirety, to my client’s delight. I can only assume that having the reply, with case law attached and highlighted, provided the judge and staff attorney with the support needed to grant my motion.

3. Protecting the client’s appellate interests is key. The judge is not required to provide a court reporter or oral record for a summary judgment hearing. A court of appeals’ review of the trial court’s decision may be limited to the motions, responses and replies in the clerk’s record. Accordingly, a reply available for review in the record further assists the appellate court.

Should counsel file a reply when in receipt of a response to a motion for summary judgment? When practicing in Travis County District Court, the answer is “Yes, always.”

Reprinted with permission from the March 4, 2013 edition of Texas Lawyer. © 2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.

“A failure to plan on your part does not constitute an emergency on my part.” That saying applies to lawyers in Travis County district courts who attempt to use the emergency docket, which is called the duty docket, and are sometimes turned away. The duty docket can be an attorney’s saving grace, or it can be riddled with pitfalls. Understanding the duty docket can be an attorney’s greatest asset in an emergency.

Each week, a different judge is assigned to the duty docket, which handles emergency matters, such as temporary restraining orders, and routine matters, such as uncontested and agreed orders. An uncontested docket occurs twice daily for agreed orders, uncontested divorces and other matters upon which the parties have agreed that require a judge’s signature. The duty judge also handles motions for continuance on Thursday mornings on a first-come, first-served basis.

Here are three pointers to follow when client needs arise on an emergency basis.

• Do not assume the duty judge will grant a hearing on the duty docket. Pursuant to the local rules, the duty judge will hear emergency matters such as temporary restraining orders. By definition, TROs are mostly emergencies. However, not all requests for a hearing to appear on the duty docket are actually emergencies, and the judge will not grant all requests for a hearing. The staff attorney and judge review most requests first to determine whether the matter is appropriate for the duty docket or whether the parties instead should have set it on the central docket.

For example, when I was a staff attorney in the Travis County District Court, I would sometimes get calls from counsel who had waited until the last minute prior to trial to ask a judge hear a pretrial matter; then, they would request a hearing on the matter from the duty judge. Again, a failure to plan on a lawyer’s part does not constitute an emergency on a judge’s or court staffers’ part; therefore, the duty judge will not necessarily hear the matter.

The duty judge is not required to hear a matter where counsel failed to take action in time to obtain a ruling prior to trial — or prior to any other deadline, for that matter. Counsel’s failure to plan is not an excuse to obtain an emergency hearing on the matter. However, if new evidence arises or circumstances change that are out of the parties’ control, then the likelihood that the duty judge will hear the matter increases.

Each week, a different judge handles the duty docket. Some weeks, several judges might split the duty docket. Either way, a lawyer trying to determine who to call for a hearing should check the Travis County District Court website to see who the duty judge is that week.

Typical emergency hearings are those seeking ex parte or contested TROs, writs of attachment of minor children or writs of habeas corpus to return minor children, for example. Each judge has the discretion to determine whether a matter is indeed an emergency and therefore needs a hearing on the duty docket.

• Respect the uncontested docket. The duty judge handles agreed orders during the uncontested docket, which occurs twice daily from 8:30 a.m. to 9:20 a.m. and again from 1:30 p.m. to 2:20 p.m. The duty judge also handles uncontested divorces during this docket, and Travis County provides a staff attorney to review paperwork for pro se parties seeking a divorce. Also at the uncontested docket, parties may provide evidence required to obtain a judge’s signature on a default judgment.

The local rules provide for these two daily time slots for the hearing of routine matters, and they are the only times attorneys should seek a signature from a judge for uncontested matters. Previously, the local rules simply outlined the times for uncontested matters. But, savvy and clever attorneys who were apparently not available during those daily docket times would find a judge in chambers for a signature — or even in the hallway. Judges tried to dissuade attorneys from seeking a signature outside the uncontested docket times, and they eventually changed the rules to require it.

Local Rule 7.4 now states that all agreed orders must be presented “only at the times allotted” for the uncontested docket. Attempting to hunt down a judge in the courthouse hallways is officially a violation of the local rules.

• Agree, agree, agree. When parties need a hearing on the duty docket, the setting will be one that might violate the notice rules. Generally, setting a hearing requires an attorney to give three days of notice to opposing counsel. However, by its very nature, the duty docket might require less notice. To avoid violating this rule, a lawyer’s best option is to notify opposing counsel that she is seeking a hearing and obtain agreement to the setting.

Counsel should contact court staff with the estimated time announcement for the matter (the parties’ estimate of the total amount of the judge’s time they will need for both sides) and obtain from the court staff at least three times when the judge is available to hear the matter. The lawyer seeking the hearing should relay the court’s available times to opposing counsel, so they can choose one that fits within their schedules. This avoids the setting itself distracting from the merits of the emergency matter.

A lawyer who cannot obtain an agreement from opposing counsel should make as much effort as possible to notify opposing counsel and should be prepared to show the judge the notification attempts. The judge may try to call opposing counsel from the bench during the hearing to try to get a response over the phone. I’ve seen it happen, so counsel would be well-advised to do due diligence in attempting to get an agreement from opposing counsel.

The duty docket is inherently hectic due to the emergency nature of the matters. Attorneys should understand how this docket works and how to obtain hearings on it for their clients. Having these tips on hand will help when the emergency arises and time is limited.

Reprinted with permission from the October 1, 2012 edition of Texas Lawyer. © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.

]]> http://foskittlaw.com/2012/10/dont-panic-tips-for-dealing-with-emergencies-in-travis-county-district-court/feed/ 0 http://foskittlaw.com/2012/09/for-the-record-practical-tips-for-preserving-the-record-in-travis-county/ http://foskittlaw.com/2012/09/for-the-record-practical-tips-for-preserving-the-record-in-travis-county/#comments Tue, 11 Sep 2012 19:30:58 +0000 Sara M. Foskitt http://foskittlaw.com/?p=449 As lawyers, we can certainly admit that we like to talk. We especially like to argue a motion when we know it’s likely to be granted. So I’m sure no one will be shocked when I say lawyers also have a tendency to talk too fast in court to have a clear transcript.

I’ve written many articles about my observations while I was staff attorney in Travis County District Court, and this one is no different. As lawyers we prepare for trial by organizing evidence and law. What I sometimes observe is lawyers failing to preserve this argument and evidence in case the matter is appealed.

I recently wrote about these observations and what to be aware of as trial lawyer to preserve the record in the Appellate Advocate, the State Bar of Texas Appellate Section Journal. Here is a link to this article and my tips: For the Record – Appellate Advocate.

What other tips would you add?

Again, while most seasoned litigators already know this, attorneys obviously must be reminded of this vital requirement since it still occurs.  One of my articles published in the Texas Lawyer is on exactly this issue, and is reprinted with permission.

Embrace Communication With Opposing Counsel

When I served as a staff attorney in Travis County district court, the question that seemed to come up most often in pretrial hearings was: “Have you discussed this issue with your opposing counsel?” Often, the response was negative — lawyers admitted they had never called or spoke to opposing counsel about the issues they needed to resolve — which did not bode well for an attorney trying to make a good impression on the judge. Here are a few practice pointers:

• Don’t waste the judge’s time. If a lawyer communicates with opposing counsel prior to the hearing, she could have discovered the matter was not opposed at all. The movant definitely should contact opposing counsel prior to the hearing to determine whether it could be resolved without court involvement. However, opposing counsel is equally at fault when an unopposed matter is set for hearing and counsel fails to notify the movant of this fact prior to the hearing. Showing up in court to face the judge and admit that, in fact, neither counsel had contacted the other is a quick way to waste the judge’s time.

I’ve written about using the judge’s time wisely before. Unless there is a valid dispute, Travis County district court judges do not need to hear about it. As a staff attorney, I would often scour the dockets hoping to see lawyers notorious for only bringing valid disputes, knowing the issue was one that could not be resolved, or could possibly be a novel legal issue that needed the judge’s assistance and ruling. It is imperative for counsel to communicate as to every issue in litigation prior to taking up the court’s time.

• Communication with opposing counsel is up to counsel, not the client. Some clients may believe communicating with opposing counsel to resolve issues shouldn’t happen, whether the communication is related to pretrial matters or even the merits of the case. Some clients may believe an attorney isn’t zealously representing their interests if they communicate with opposing counsel. This is incorrect.

Attorneys handling litigation matters should know their task is to resolve a dispute, and often that requires discussing the matters with opposing counsel. Travis County district court judges will probably not take kindly to the “strategy” of overlawyering rather than communicating to resolve a dispute. Attorneys who only litigate by motions and hearings are doing a disservice to their clients, the judges and their own reputations. Clients actually should appreciate the communication, considering resolving parts of the case through discussion is more efficient and economical than filing motions and sending letters. Clients will find overlawyering can be costly.

• Apply the Western District conference rule to state court hearings. Federal court judges in the Western District of Texas in Austin apply the communication policies I suggest counsel apply in state court. According to Local Rule CV-7(i):

[T]he court may refuse to hear or may deny a nondispositive motion unless the movant advises the court within the body of the motion that counsel for the parties have first conferred in a good-faith attempt to resolve the matter by agreement and, further, certifies the specific reason that no agreement could be made.

Local federal court judges have streamlined this rule into a required Certificate of Conference, which requires counsel to outline that they’ve spoken to opposing counsel and have determined whether the motion is opposed. I’ve heard a federal judge remind lawyers the rule does not allow the certificate to state merely the attempts at contacting opposing counsel, but only statements related to opposition after they’ve communicated. The rule further requires the title of the motion outline whether it’s opposed, for example, “Unopposed Motion to Exceed Page Limits.”

Lawyers practicing in state court should apply this principle as a “best practice” in Travis County district court litigation. Those who do will find a rewarding litigation practice, credibility with the judges and happy clients.

• Communication is especially vital prior to trial. Lawyers should always strive to streamline a trial to only the issues in dispute, regardless of whether it will be a bench or jury trial. Communicating with opposing counsel about which issues are in dispute is vital. As long as it would not adversely affect the client’s case, stipulating to admissible evidence such as exhibits will go a long way for jury attention and judge appreciation.

Counsel would be well-advised to agree to admissibility in advance of a jury trial to avoid distracting the jury with authenticating and proving up each document necessary for evidentiary support. Agreeing to a stipulation of facts also is necessary. Counsel can easily agree to facts not adverse to their case, and can disagree on the items that are factual disputes a jury needs to determine. Juries will appreciate the focus on only the facts in dispute, and the judges will appreciate the efficiency and time-savings.

Litigation attorneys should always focus on their main task — resolving disputes for their clients. That task is one that can easily be accomplished by frequent communication with opposing counsel. Lawyers who follow this suggestion will go far in the eyes of Travis County juries and judges, and most important, in the eyes of their clients who will appreciate the quick resolution and lower attorneys’ fees.

Sara M. Foskitt is a former staff attorney for Travis County District Court Judge Darlene Byrne and now has her own firm, Foskitt Law Office. In addition to her civil litigation practice, Foskitt acts as local counsel in Travis County courts. She is the author of the Local Counsel Blog, which gives strategy ideas for lawyers practicing in Travis County.

Reprinted with permission from the July 2, 2012 edition of Texas Lawyer. © 2012 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.

Todd’s suggestion is a great one.  The Travis County District Court Local Rules have many (many!) different requirements, and out-of-town lawyers may fall into a trap without a clear understanding of the Rules.  However, Todd’s suggestion is a great one because the Rules don’t require that you bring a blank order to Court, but it is a really great idea to do so.

When I worked as a staff attorney for Judge Darlene Byrne, I discovered the typical procedure for entering an order for motions presented to the Judge was to call on the winning attorney post-hearing to draft it, request objections by opposing counsel, and enter the order as the Judge saw fit.  Wow, that’s three steps too many.  As the staff attorney, I decided to take away all of those steps and draft the orders myself, if the attorneys didn’t already bring one.  It turns out that after a ruling is obtained, the lawyers tend to move on to the next fire that needs to be put out, and getting an order entered to memorialize that previous ruling wasn’t a priority.  I’m sure attorneys reading this have discovered this phenomenon at some point.  An order should be entered into the clerk’s record the same day as, if not contemporaneously with, the ruling.  While that’s not the rule, it’s the ideal way of handling the record.

I have clients that hire me as local counsel, and I give this advice to each and every one of them:  go into every court hearing with the order you want to walk out with.  I would suggest only titling it “Order on Motion to _____,” rather than “Order Granting Motion” or “Order Denying Motion” so the title does not need editing, depending on whether the judge agrees or disagrees with your position.  Include the terms you want in the Order, and err on the side of inclusion so the judge can simply cross out unnecessary language rather than hand-write in language that is missing.  If you’re so inclined, you could even include either/or language: “It is therefore ordered, adjudged and decreed that the Plaintiff’s Motion is GRANTED/DENIED.”  The judge can then circle or cross out whichever language is needed to present an order reflecting the judge’s ruling.

The reason I always suggest this, and the reason I call it Pressing the Easy Button, is you’ve wrapped up the issue with a bow by walking out of the courthouse with your order in hand, after first stopping at the clerk’s office, of course, to get it in the clerk’s record.  The record reflects the date the order was entered into the clerk’s record, which is the same date as the hearing.  No lag time for counsel to agree on the language.  If the matter goes up to the Third Court of Appeals, the clerk’s record will accurately reflect order dates on the hearing dates. 

Finally, no orders will be forgotten or lost in the midst of arguing by counsel over the language in the order.  After counsel agrees to the language, an extra step is still required in obtaining a signature from the judge that heard your motion.  It would seem to me that bringing a form order to court with you is Pressing the Easy Button when it comes to wrapping up a pre-trial issue.

Remember CliffsNotes®?  CliffsNotes® are shortened, succinct outlines of well-known classic books which serve as a learning aid.  I have never used one, but I do think lawyers who practice in Travis County District Courts might benefit if there were CliffsNotes® for the Local Rules.  Since you can’t buy a CliffsNotes® version of the Local Rules, in my most recent Texas Lawyer article I outlined a few of my tips, tricks and strategies for Travis County District Court practice. 

My most recent Texas Lawyer article, “Practice Like a Pro in Travis County District Courts,” is free with registration here.  What are your tips and tricks for practice in Travis County District Courts?

If you think you can make a difference, then go for it – you can overcome the obstacles in your way.  This principle is what The Honorable Orlinda Naranjo believed as a young adult, and with this principle in mind, she put herself through school to become a lawyer.

I was very pleased to see an article about Judge Naranjo in the Texas Lawyer this week (article is free with registration here).  I had the honor of working with her briefly to assist her as a staff attorney several years ago, and knew then that she was inspiring.  But after reading this article, I realized she really did overcome obstacles. 

We have all overcome obstacles of some sort, but sometimes the obstacles can get the best of us, and we aren’t able to achieve what we’d like.  Judge Naranjo makes a good point – she thought she could make a difference as a lawyer.  That must have been the driving force behind her working as a waitress and later as a law clerk while putting herself through law school.  She believed she could do it, and she believed others would benefit from her efforts. 

She points out that there will be naysayers and difficult times, but that you need to focus on your goal.  She states that things won’t just come to you, but that you have to make things happen.  She’s outlining exactly what my favorite quote – and sometimes my mantra – really means: Don’t wait for your ship to come in… swim out to it! 

That motivation obviously took her places, as she is now an elected, sitting judge in the 419th District Court in Travis County.  Needless to say, she’s come a long way, but she also sets a great example – it can be done.  Obstacles can be overcome.

As part of my series of articles for the Texas Lawyer, I decided a great topic would be based on what I saw after reviewing hundreds of motions over the years while a staff attorney in Travis County District Courts.  I learned a lot simply based on what I read and reviewed, and am happy to share some tips. 

One big thing I consistently noticed was that attorneys were outlining the entire case history first, then the issue at hand with the legal citations, then finally the conclusion, and hopefully what the attorney wanted from the Judge in the prayer.  Of course, I would imagine some attorneys are trying to outline the history of the case as a background for a Judge that may have never reviewed any part of the case since Travis County District Court is a central docket.  However, while that might be an important step, including a simple statement or prayer up front is going to put the Judge in the right frame of reference right from the start. 

Even for a simple motion, the best thing you can do in Travis County District Courts and for a central docket system is lay out exactly what you want up front.  Many times I had to flip to the last page to determine the purpose of the motion after reading through and not fully understanding where the motion was going. 

I absolutely loved motions that stated a brief, concise sentence or two outlining what the prayer was on the first page.  Since these judges and staff attorneys may only have a brief moment to review your material before a hearing, it’s best for you and your client to keep things simple.  Don’t make them jump through hoops to find out what you’re requesting – include it first!

In addition to the prayer up front, I include other tips as well: Why PIRAC? Tips for Motion Practice in Travis County. 

Let me know in the comments what other tips you would add!

My tips and suggestions are based on my experience observing the discovery docket in Travis County District Courts several years ago.  I worked as a staff attorney in the 126th District Court at the time the rules for the discovery docket were being written, and while the docket was conducted separately from the central docket.

I would love to hear any feedback.  What are your tips for resolving discovery disputes?

1.   Second-guess the Judge’s decision.

I’m not referring to a party’s right to file a Motion for Reconsideration of a Judge’s decision.  A party is purely within their rights to do so (but, maybe rethink filing more than one for the same decision).  No, I’m referring to becoming argumentative with the Judge during the ruling or after the ruling.  This is not a good idea.  It’s an even worse idea to question the Judge as if to question whether she understood your argument.  Yep, it’s happened.  Also, don’t argue with the Judge after she signed the order solidifying her ruling.  That’s happened, too.  Respect the decision, and move forward as needed, whether it be by motion for reconsideration or by appeal.

2.  Interrupt the Judge or talk over the Judge.

This simply goes without saying.  However, I think some attorneys are so comfortable in the courtroom that they forget where they are.  You shouldn’t, as this is not only disrespectful, but bad for you and potentially bad for your client.  Instead, be on your best behavior, and be aware of when the Judge is speaking.  Even if you have a powerful argument and the Judge has a multitude of questions, do not interrupt or argue with the Judge as to how the hearing is handled.  Just don’t.  I’ve seen it happen.  Plus, all you’ll do is distract from your meritorious argument, which is the last thing you or your client should want. 

3.  Stay seated while addressing the Judge.

You would think it’s common knowledge that you should stand when addressing the Judge.  Apparently, it’s not.  Try staying seated, and see how long the Judge takes to interrupt you and put you in your place.  I can almost guarantee it will be in record time.  If you have a long hearing, wear comfortable shoes.  Stand, stand, stand when addressing the Judge!  Yep, it’s happened.  If you need a refresher, and for other courtroom rules, read the Rules of Decorum in the District Court Local Rules, Chapter 12.

4.  Don’t bring courtesy copies of your documents.

We are an electronic world now, and that includes the clerk and the Travis County Courts.  While I still remember hard copy files at the clerk’s office, they have given way to electronic filing.  There’s a 99.9% chance the Judge for your hearing has never seen your motion, response, reply, pleadings, or briefing.  There’s a 100% chance the Judge doesn’t have a hard copy to follow along.  Before you leave your office, print three copies of everything you plan to present to the Judge.  Throw in an extra copy just for good measure.  Also print your opposing counsel’s pleading or brief.  You’ll look like a courtroom rockstar when you hand over a copy of what your opposing counsel forgot to bring.  The Rules actually require a courtesy copy for hearings, as outlined in the Procedures of the Travis County District Court Local Rules. 

Don’t be remembered for the wrong reasons.  While this list states the obvious, some attorneys must need a refresher based on my observations, because they still happen!  Seriously.  Sit through a short docket of several cases and you could probably come up with a list of your own.