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| Advanced Procedural Tactics |
I. Scope of Paper
This paper compiles and discusses various procedural approaches relating to discovery and evidentiary issues. We have attempted to describe some of the most effective techniques we have seen in practice. Portions of this paper are adapted from "Discovery Management: What To Do With What You Get," a presentation written with Michele Boerder and presented at the Advanced Evidence & Discovery Law Course (2005). Judge Cox contributed most of the court-room tips contained in this paper.
II. Pre-trial Approaches
A. Case Management
Case management is becoming more important and more sophisticated. Each case is different, and it is possible to customize the case managment system for each particular case. Issues to consider when formulating a case management plan include:
(1) The number and type of expected documents. Logistical details such as imaging, indexing and storage of documents need to be planned. Using scanned/imaged documents allow information tbe quickly and efficiently exchanged and transported.
(2) Items such as audio or video tapes can be converted and played from a computer. Again, computerized storage of this evidence will allow an attorney flexibility in how (and when) the information is used.
(3) Court-room use of the evidence. With the advent of computers in the courtroom, it makes perfect sense to integrate the document storage/retrieval system with the system which will be used in front of the jury.
Technology has decreased the price of computerized case management while increasing the quality of the courtroom presentation. For the most part, imaging a document is as inexpensive as photocopying, and when done as part of an integrated case management/courtroom presentation may actually save copying costs.
B. Depositions
The Rules require that experts' depositions must be supplemented when the answers change: "If an expert witness is ...under the control of a party, that party must amend or supplement any deposition testimony or written report by the expert, but only with regard to the expert's mental impressions or opinions and the basis for them." Tex. R. Civ. P. 195.6. The Rules define those areas which must be supplemented, and were intended to conform with prior case law. In re Colonial Pipeline Co., 968 S.W.2d 938 (Tex. 1998); Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993). Nevertheless, this obligation to supplement the deposition should not be overlooked, as it may be a source of problems (and exclusion) at trial. See Garcia v Spahn Health Systems Corp., 19 S.W.3d 507 (Tex. App.- Corpus Christi 2000, pet. denied); Foust v. Estate of Walters, 21 S.W.3d 455 (Tex. App. - San Antonio 2000, pet. denied).
C. Interrogatories
1. Planning the First Wave
The first wave of interrogatories must be sufficient to identify necessary parties and to lay the groundwork for defenses. There may be no real need for the "standard set" of interrogatories. The basic questions relating to the identity and existence of persons with knowledge of relevant facts and expert witnesses are contained within the required disclosures under Tex. R. Civ. P. 194.2(e). While there may be a desire to generate a set of questions with impeachment quality answers, American Maintenance and Rentals v Estrada, 896 S.W.2d 212, 226 (Tex. App.- Houston [1st Dist.] 1995, writ dism'd), many attorneys are now incorporating their disclosure responses into the interrogatory answers.
2. Interrogatories Concerning Insurance
Under Tex. R. Civ. P. 192.3(f) and 194.2(g), parties are entitled to know of "indemnity and insuring agreements". There may be no need to send interrogatories asking about this information, but consider questions concerning reservation of rights and the "eroded" amounts available. In re Senior Living Properties, L.L.C, 63 S.W.3d 594 (Tex. App.- Tyler 2002, orig. Proceeding).
In light of Excess Underwriters at Lloyd's v. Frank's Casing Crew and Rental Tools, Inc., ___ S.W.3d ____ (Tex. 2005)(May 27, 2005), you may want to consider making sure that all of the available insurance information is obtained. Complete policies and reservation of rights letters should be considered.
3. Verification of Answers
Rules regarding verification of interrogatory answers (including supplemental answers to interrogatory answers) have been relaxed. The client need not verify answers listing the identity of individuals with knowledge of relevant facts, trial witnesses, and legal contentions. Tex. R. Civ. P. 197.2(d)(2). Supplementation should be much easier because the client need not verify the supplemental answers unless the original answers required signature under oath. Tex. R. Civ. P. 193.5(b); 197.2(d).
4. Use and Non-use at trial
The new Rules changed the case law with regard to the use of interrogatory answers for impeachment, see American Maintenance and Rentals v Estrada, 896 S.W.2d 212, 226 (Tex. App. - Houston [1st Dist.] 1995, pet. dism 'd); Thomas v. International Insurance Code, 527 S.W.2d 813,819 (Tex. Civ. App.- Waco 1975, writ ref-d, n.r.e.), though some types of impeachment will still be possible. American Motorists Insurance Co. v. Evans, 577 S.W.2d 514 (Tex. App. -- Texarkana 1979, writ ref d. n.r.e). Interrogatory answers can be used only against the part answering them. ANA, Inc. v. Lowry, 31 S.W.3d 765 (Tex. App.- Houston [1st Dist.] 2000, no pet. h.).
5. Avoiding problems with Supplementation
Because most Requests for Disclosure contain requests to identify fact/expert witnesses, and because most Requests for Disclosure are sent before, or contemporaneous with, Interrogatories inquiring into the same matters, it makes good sense to respond to both sets with an identical witness list (or exhibit list). Supplementation becomes much more manageable, and inadvertent omissions are avoided. The interrogatory answer should refer back to the list of witnesses or items produced in response to requests for disclosure. Remember the obligation to timely supplement interrogatory answers (and other written discovery requests). Tex. R. Civ. P. 193.5. Consider a periodic letter such as:
Enclosed is an updated list of persons with knowledge of relevant facts. Please consider this a supplemental response to your request for disclosure and interrogatories asking for this information. Please let me know immediately if you prefer a more formal supplementation.
If you have generated one list of potential witnesses in response to interrogatories and requests for disclosure, you can supplement the list without fear of omitting a witness in one document or the other.
6. Interrogatories Concerning Experts and Consultants
The Rules themselves prohibit the use of Interrogatories inquiring into the identity and opinions of Expert Witnesses, Tex. R. Civ. P. 195.1, but allow the use of depositions to obtain the information. Consider using depositions on written questions to precede the oral deposition of the expert. This may allow you to obtain the expert's supporting data well before the deposition.
One area that should not be overlooked is the use of interrogatories inquiring into the existence, identity and work product of consultants whose material is reviewed or relied upon by expert witnesses. With the recent change to Tex. R. Evid. 703 and 705, interrogatories asking about these subjects may prove fruitful. See Stam v Mack, 984 S.W.2d 747 (Tex. App.- Texarkana 1999, no pet. h.)(Court of Appeals affirmed trial court's decision to allow a testifying expert to explain that he had spoken to/with another consultant).
7. Daubert/Robinson Challenges
With the increased use of Daubert/Robinson challenges, it may be helpful to use interrogatories to start laying the groundwork for responding to challenges to your expert witnesses. It makes sense to use interrogatories to identify those witnesses and opinions which your opponent may challenge. Sample interrogatories might ask:
INTERROGATORY NO. Please list those expert witnesses (if any) identified by whom you contend are not qualified to render opinions under the standards set forth in Robinson v. E.I. Dupont Denemours, 923 S.W.2d 549 (Tex. 1995), or in any subsequent opinion by the Supreme Court of Texas which you contend extends the holdings of Robinson.
INTERROGATORY NO. : If you contend that any opinion rendered by Dr. _____in his/her deposition is not "reliable" within the meaning of Robinson v E.I. DuPont Denemours, 923 S.W.2d 549 (Tex. 1995), or any subsequent opinion by the Supreme Court of Texas which you contend extends the holdings of Robinson, please state the substance of that opinion and describe the basis for your contention.
Courts are encouraging litigants to make their Robinson challenges early in the litigation and thus these interrogatories may help with the early identification of problem areas. Maritime Overseas Corp. v Ellis, 971 S.W.2d 402, 414 (Tex. 1998)(Gonzalez, J., concurring); Hose v. Chicago Northwest Transportation Co., 70 F.3d 968, 973 (10th Cir. 1994); Webster v Fulton County, 85 F.Supp.2d 1375, 1376 (N.D. Ga. 2000)(Daubert challenge made at trial was not timely); Leaf v. Goodyear Tire and Rubber Co., 590 N.W.2d 524, 534 (Iowa 1999); DiPetrillo v. Dow Chemical Co., 729 S.2d 677, 687 (R.I. 1999); H. Brown, Procedural Issue under Daubert, 36 U.H.L.R. 1 133, 1142 (1999)(author is a Texas District Court Judge who strongly recommends Rule 104 pre-trial Daubert/Robinson hearings be scheduled early in the litigation). Evasive or non-responsive answers to legitimate interrogatories should prevent an opponent from mounting such a challenge. Tex. R. Civ. P. 193.6(a), and, at a minimum will help the trial court understand that the opponent is merely playing procedural games with the timing of the challenge.
D. Document Production Requests and Subpoena Duces Tecum Requests
As a general rule, these requests can ask for the production of items already in existence. Tex. R. Civ. P. 192.3(b); In re Colonial Pipeline, 968 S.W.2d 938 (Tex. 1998). Use them to ask for copies of contracts, Hoffman v. Trinity Industries, Inc., 979 S.W.2d 88 (Tex. App.- Beaumont 1998, writ dism'd.); medical records, Tex. R. Civ. P. 194.2(j); insurance agreements, Miller v. King, 736 S.W.2d 255 (Tex. App.- Beaumont 1987, orig. proceeding); witness statements, In re Learjet, Inc., 59 S.W.3d 42 (Tex. App.- Texarkana 2001, orig. proceeding); and personnel files, In re Laverina Nursing Facility, Inc., 12 S.W.3d 566 (Tex. App.- San Antonio, 1999, orig. proceeding).
One interesting case is In re Guzman, 19 S.W.3d 522 (Tex. App.- Corpus Christi 2000, orig. proceeding), which held that requests for production under Tex. R. Civ. P. 196 could not be used to force one party to sign authorizations for the release of medical records, workers compensation files, or employment records.
1. Objections to Document Requests
A party asserting a privilege to defeat a request for production of documents accompanying a deposition notice must comply with Tex. R. Civ. P. 193.3. Strict compliance is not required, according to the Supreme Court in In re University of Texas Health Center, 33 S.W.3d 822 (Tex. 2000), in which the objecting party responded to two (but not three) substantially identical document requests.
2. Damage Models are for Everyone
Under Tex. R. Civ. P. 194.2(d), a party seeking affirmative relief in the form of economic damages is required to summarize their damages model. Both the text of the Rule and its commentary make it clear that without an effective answer to this Request for Disclosure, the responding party is limited at trial.
A close reading of the Rule, however, reveals that all parties to the litigation must respond to the Request inquiring into the damages model. The Rule requires disclosure of "the amount and method of calculating economic damages." Tex. R. Civ. P. 194.2(d), but does not limit its application to those seeking damages. The comment makes it clear that the request for a summary applies irrespective of whether the party is seeking affirmative relief: "Paragraph (d) does not require a party ...to state a method of calculating non-economic damages. In the same example [of litigation arising from a car wreck], defendant would be required to disclose his or her denial of the speeding allegation and any basis for contesting the damage calculations." Tex. R. Civ. P. 194, Comment 2 (emph. added). Thus a party opposing a damages claim must describe its position with regard to economic damages with the same degree of detail and description imposed upon the party seeking affirmative relief. The failure to do so should severely limit the defense at trial. Tex. R. Civ. P. 193.6.
National Family Care Life Ins. Co. v. Fletcher, 57 S.W.3d 662 (Tex. App.- Beaumont 2001, pet. denied) is an example of how inadequate disclosures can result in disastrous consequences. The defense was based upon statements contained in a series of letters sent to an insurance agent. The letters themselves were identified in response to requests for disclosure, but the merits of the defense were not mentioned. The trial court excluded this defense and would not allow testimony on the subject. The Court of Appeals reversed, holding that the disclosure of the letters themselves was sufficient to put plaintiff on notice of the substance of the defense.
Recent cases show that supplementation with regard to expert witnesses can still be problematic. In Snider v Stanley, 44 S.W.3d 713(Tex. App.- Beaumont 2001, pet. denied), the Court of Appeals affirmed the trial court's decision to exclude the defendant's only expert witness to contest liability. The Court held that the expert was not timely designated; he had been retained approximately 66 days before trial, but was not designated until the 30th day before trial.
In Elliott v Elliott, 21 S.W.3d 913 (Tex. App.- Fort Worth 2000, pet. denied), one party identified her health care providers in response to an interrogatory, but did not designate them as expert witnesses. The Court of Appeals held it was an abuse of discretion to prohibit the witnesses from testifying on these grounds; the state of the pleadings and the fact that the witnesses had been previously identified eliminated any surprise or prejudice. This case involved a failure to properly respond to, and to supplement interrogatory answers, but the same principal should apply with regard to Disclosures. Vingcard A.S. v. Merrimac Hospitality Systems, Inc., 59 S.W.3d 847 (Tex. App.- Fort Worth 2001, pet. denied) held that a discovery response identifying a potential expert witness and the topics of his opinions was insufficient under the disclosure requirements. The opposition was entitled to a summary of the opinions to be proffered, and the Court of Appeals held that the trial court erred in allowing the testimony at trial (though the error was harmless since other witnesses offered the same opinions).
III. Trial Procedures and Tips
A. Organization
When you come to court you should be organized and ready to proceed. Here are five tips to keep in mind when you go to trial:
(1) Know your rules of procedure and evidence before you go to trial. Make an outline or chart highlighting commonly used rules, and anticipated objections. You know the evidence you are going to put forth, make sure you can present your evidence according to the rules as well as defend your evidence.
(2) Be polite to the Court and the Jury. Remember you are an officer of the court and your actions in court reflect upon you, your firm and the profession as a whole. Further, being a zealous advocate for your client does not mean that you should be rude.
(3) Do not waste the jury's time. Try to be efficient in your use of tine during a trial.
(4) Organization is Key. Know where your exhibits are and what's in them.
(5) Being in court is a serious matter but bring your sense of humor.
B. Exhibits
Talking about the contents of an exhibit before it has been entered. See Tex. R. Evid 103 and 104. This prevents inadmissible evidence from being suggested to the jury by any means.
C. Best Evidence
Know the difference between the best evidence rule and a writing to refresh recollection. The "Best Evidence Rule" is use to prove the content...the original... is required except as provided in these rules by law. See Tex. R. Evid. 1002. However, "a Writing used to Refresh Memory" is used to refresh memory while testifying or in preparation to testify, then writing must be produced to other side and relevant portions can be introduced as evidence. Thus, beware this includes attorney's notes shown a witness if used to refresh recollection. See Tex. R. Evid 612.
D. Presenting Evidence
Texas Rule of Evidence 611, allows the court to control the mode and order of witnesses and presentation of evidence so as to get to the truth, avoid the needless consumption of time and protect witnesses from harassment or undue embarrassment. In addition, videotape depositions need not be played in the order in which they were taken. Jones v. Colley, 820 S.W.2d 863, 866 (Tex. App.- Texarkana 1991, writ denied). However, evidence needs to be presented in an orderly manner that makes sense. Thus, make sure your evidence is presented in a logical, chronological, memorable and comprehensible fashion. See Tex. R. Evid. 611.
E. Self-Authenticating Documents
"Self-Authenticating" documents can be another problem area. What really is a "Self- Authenticating" document? This question can be answered by Texas Rules of Evidence 902. In TRE 902, there is a laundry list of the items that are self-authenticating. This is especially important ruled to reference in your research due to the availability of documents accessible over the internet. Remember, a print off from the internet is not a self-authenticating document. See Tex. R. Evid. 902.
F. Offering Deposition Transcripts into Evidence
When offer deposition transcripts into evidence remember that they are not hearsay but that does not mean they can be marked as an exhibit.
G. Court Room Presentation
Here is a list of things not to do during your court room presentation:
(1) Use the phrase, " With all due respect your honor, ..."
(2) Conduct your voir dire sitting down.
(3) Argue with the Court – there are three people the jurors like –in this order – the bailiff, the court reporter and the Judge.
(4) Arguing with witnesses on points that are not relevant to the issues in the case
(5) Be disorganized.
(6) Offering testimony or evidence on matters that are not relevant to the issues in the case.
(7) Playing video depositions longer than 20 minutes.
(8) Reading deposition more than 15 minutes.
(9) Being Repetitive.
(10) Being dishonest with your facts –trying to fool the jury.
IV. Conclusion
The above paper should be used as a guideline. Hopefully, it will provide you with some procedural approaches that you can use to help prepare your case more efficiently and successfully.
TABLE OF AUTHORITIES
Cases
American Maintenance and Rentals v Estrada, 896 S.W.2d 212, 226 (Tex. App.-
Houston [1st Dist.] 1995, writ dism'd) 3, 4
American Motorists Insurance Co. v. Evans, 577 S.W.2d 514 (Tex. App. --
Texarkana 1979, writ ref d. n.r.e) 4
ANA, Inc. v. Lowry, 31 S.W.3d 765 (Tex. App.- Houston [1st Dist.] 2000, no pet. h. 4
DiPetrillo v. Dow Chemical Co., 729 S.2d 677, 687 (R.I. 1999) 6
Elliott v Elliott, 21 S.W.3d 913 (Tex. App.- Fort Worth 2000, pet. denied) 9
Excess Underwriters at Lloyd's v. Frank's Casing Crew and Rental Tools, Inc., ___
S.W.3d ____ (Tex. 2005)(May 27, 2005) 3
Exxon Corp. v. West Texas Gathering Co., 868 S.W.2d 299, 304 (Tex. 1993) 2
Foust v. Estate of Walters, 21 S.W.3d 455 (Tex. App. - San Antonio 2000, pet.
denied) 2
Garcia v Spahn Health Systems Corp., 19 S.W.3d 507 (Tex. App.- Corpus Christi
2000, pet. denied) 2
Hoffman v. Trinity Industries, Inc., 979 S.W.2d 88 (Tex. App.- Beaumont 1998,
writ dism'd.) 7
Hose v. Chicago Northwest Transportation Co., 70 F.3d 968, 973 (10th Cir. 1994) 6
In re Colonial Pipeline, 968 S.W.2d 938 (Tex. 1998) 2, 7
In re Guzman, 19 S.W.3d 522 (Tex. App.- Corpus Christi 2000, orig. proceeding) 7
In re Laverina Nursing Facility, Inc., 12 S.W.3d 566 (Tex. App.- San Antonio,
1999, orig. proceeding) 7
In re Learjet, Inc., 59 S.W.3d 42 (Tex. App.- Texarkana 2001, orig. proceeding) 7
In re Senior Living Properties, L.L.C, 63 S.W.3d 594 (Tex. App.- Tyler 2002, orig.
Proceeding) 3
In re University of Texas Health Center, 33 S.W.3d 822 (Tex. 2000) 7
Jones v. Colley, 820 S.W.2d 863, 866 (Tex. App.- Texarkana 1991, writ denied) 10
Leaf v. Goodyear Tire and Rubber Co., 590 N.W.2d 524, 534 (Iowa 1999) 6
Maritime Overseas Corp. v Ellis, 971 S.W.2d 402, 414 (Tex. 1998) 6
Miller v. King, 736 S.W.2d 255 (Tex. App.- Beaumont 1987, orig. proceeding) 7
National Family Care Life Ins. Co. v. Fletcher, 57 S.W.3d 662 (Tex. App.-
Beaumont 2001, pet. denied) 8
Robinson v. E.I. Dupont Denemours, 923 S.W.2d 549 (Tex. 1995) 5, 6
Snider v Stanley, 44 S.W.3d 713(Tex. App.- Beaumont 2001, pet. denied) 8
Stam v Mack, 984 S.W.2d 747 (Tex. App.- Texarkana 1999, no pet. h.) 5
Thomas v. International Insurance Code, 527 S.W.2d 813,819 (Tex. Civ. App.-
Waco 1975, writ ref-d, n.r.e.) 4
Vingcard A.S. v. Merrimac Hospitality Systems, Inc., 59 S.W.3d 847 (Tex. App.-
Fort Worth 2001, pet. denied) 9
Webster v Fulton County, 85 F.Supp.2d 1375, 1376 (N.D. Ga. 2000) 6
Statutory Provisions
Tex. R. Civ. P. 192.3 3, 7
Tex. R. Civ. P. 193.3 7
Tex. R. Civ. P. 193.5 3
Tex. R. Civ. P. 193.6 6, 8
Tex. R. Civ. P. 194.2 2, 3, 7, 8
Tex. R. Civ. P. 195.1 5
Tex. R. Civ. P. 195.6 2
Tex. R. Civ. P. 196 7
Tex. R. Civ. P. 197.2 3
Tex. R. Evid 103; 104 10
Tex. R. Evid 611 10, 11
Tex. R. Evid 612 10
Tex. R. Evid. 703; 705 5
Tex. R. Evid. 902 11
Tex. R. Evid. 1002 10
Miscellaneous
H. Brown, Procedural Issue under Daubert, 36 U.H.L.R. 1 133, 1142 (1999) 6
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