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26 Cards in this Set
- Front
- Back
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What are the restirctions on local rules in Texas?
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• cannot be inconsistent with TX Rules of Civ Pro
• no altering time periods • must be submitted and approved by TX SC • effective after 30 days |
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How can agrements be evidenced?
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11. Agreements to Be in Writing
o unless otherwise provided in the rules o all agreements b/t attys or parties touching any suit pending must be in writing, signed, and filed as part of the record to be enforced o OR made in open court and entered of record o subject to modification by ANY other rule of Civ Pro |
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With who can you file?
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you can file in open court OR with the clerk
74. Filing With the Court Defined 1. shall be made by filing them with the clerk of the court, 2. exception – judge may permit papers to be filed with him and then the judge will note the filing date and time and transmit them to the office of the clerk |
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If you personally serve an attorney on a friday can you have a hearing on monday?
when is the earliest you can have a hearing? |
No. If we do not have delivery by fax or telephone, it is a three day period. So you do not count sat sundays or legal holidays.
If you presonally serve on Friday, the earliest you can have a hearing is on Wednesday. But if you serve on Friday by fax or by telephone, it's 3 days + 3 days = 6 days but you do count SAT, SUN, LH ...So earliest you could have hearing is on Thursday. |
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How do you get a hearing?
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IN STATE COURT as a general rule the court wil not set a hearing on your motion. You have to do something to initiate it. Look to the local rules to see how the court goes about setting hearings. Figure it out.
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When do we have a legal holiday?
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Whenever the County commisoners say so. Local holidays are legal holidays.
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Mail filing in Texas
Is it sufficient to "mail file" a pleading to the clerk? |
Yes under rule 5 as long as its 1st class mail (with sufficient postage), prperly addressed and shipped adn deposited. AND IT IS RECIEVED NOT MORE THAN 10 DAYS LATE.
Day of filing is theroretically the day you put it in the mail even though the clerk will file stamp on the day that he gets it. So yo may have a proof problem if deadline is between receipt and stamp. postmark is prima facie evidence that it was mailed. |
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What is the postmark is lost or the envelope is thrown away?
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An attorney's sworn affidavit is sufficient to establish the date of mailing.
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Can local rules vary fromt the TRCP?
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Local rules may not vary in a way that is "merit determinative"
ex. Dallas County has a rule that says if there is going to be hearing in 7 days, then you must serve all papers on opp counsel the same day you file them. |
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Is Fed Ex or UPS effective when mailed?
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NO! UPS is a private service. IT is not effective when mailed. For filing you can use courier reciepted delivery but it is filed on the possession of the clerk.
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What effect does a certificat of service have?
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You certify at the time yo ufile w cler, "at this time yes, I have also served this instrument."
Gives a presumption of compliance but does not prevent the other party of claiming they never recieved the instrument. |
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Problem: Discovery rules say you have set time to respond, so how do you prove you served it? Because you no longer file discovery with the court.
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You file a certificate of written discovery so that you can have a resumption that your discovery was served on time. -- we create an excuse to file something that says we served discovery.
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Is a certificate of service still valid if you do not say what your method of service is?
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Yes. you just have to say that you served in accordance with 21a.
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What if they never recieved your service? What can you do?
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You can ask the court for an enlargemnt of time under Rule 5.
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When do you let someone slide?
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Only when it doesn't matter. When you know you don't have a fight. Don't make them jump through hoops BUT if the issue means you win, then you have to win on behalf of your client.
ask, will taking this hard line position help my client in the end? |
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What does the texas lawyers creed say about the subject?
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I will agree to reasonable request as long as it will not adversely effect a legitimate objective.
I will not let my client tell me to be a jerk. |
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FEDERAL MOTION PRACTICE
How is time computated in Federal court? |
In fed court, we always count sat, sundays and legal holidays.
Start counting on next day and stop counting on day of hearing = same as TEXAS Big difference is there is no 5 day distinction. |
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How many days notoce are required for a hearing in federal court?
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14 days.
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Does the fed court have the three day add on rule?
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yes 6d
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Is there a mailbox rule for filing in a federal court?
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NO! Petions that are mailed on time but recieved late are late!
Mailing is not filing in Fed court. |
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o computing time i nfederal court
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• exclude the day of the act, event, or default that BEGINS the period
• COUNT saturdays sundays and legal holidays • include the last day of the period unless it is a Sat, Sun, or legal holiday; or if the action to be done is filing a paper in court – a day on which weather or other conditions make the clerk’s office inaccessible. When the last day is excluded, period runs until the end of the next day that is not a Sat, Sun, LH, or day when clerk’s office is inaccessible • legal holiday: day set aside by statute for observing – NY’s day, MLK Jr., Washington’s Bday, Memorial Day, July 4th, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, Christmas Day; OR any other day declared a holiday by the President, Congress, or the state where the district court is located |
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extending time in federal court
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• court may, for good cause, extend the time
o w/ or w/o motion if before the time period has expired o on motion made after time has expired if party failed to act because of excusable neglect |
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What time is filing done on the last day? How late can you file?
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electronic = midnight on last day in the court's time zone
for filing by other means, when the clerk's office is scheduled to close |
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What if a part actually recieves the motion without being served?
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(5) NOTE: Actual receipt by the party does not satisfy Rule 21a—still need to satisfy the rule for service.
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What is evidence of service?
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(6) Certificate of Service (CoS) is prima facie evidence of compliance w/ R 21a
(a) CoS should, but need not, recite the method of service used (b) CoS required for any document (other than complaint) to be filed (i) Should also be on all docs served on opposing parties (c) Pleadings are always filed (d) Discovery is only filed if used in conjunction w/ a pleading (e) Can sometimes file a “certificate of written discovery” w/ a CoS (i) The CoS creates a rebuttable presumption that we properly served the request for discovery (ii) But, can be rebutted by a mere affidavit |
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Motion for Summary Judgement
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(1) Party making MSJ must serve motion on opposing party ≥ 21 days prior to SJ hearing
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