Texas Litigation

Time Flies When You're Having Fun!

As the old saying goes, "time flies when you're having fun!"  I just wonder where it flies off to!!!  I've been busy with the practice of law and management of the firm, which has now grown from me to me and two associates, two paralegals, and an administrative assistant!  I might be adding a personal assistant intern as well...we'll see!  For any of you who were looking forward to following a blog about Texas Litigation, I can only give you my deepest apologies and beg your forgiveness as I give this blog another whirl!  I want to thank you for your patience and indulgence!  I certainly hope to make your time spent here well worth it, for I can truly understand how precious our time is and how little we truly have!  Happy Reading!

Pleadings are Pleadings, Except When They're Not!

A discussion recently transpired on the Solosez listserve about how attorneys organize their physical files, which led to a spinoff discussion about what are "pleadings" as that term is used in the legal profession.  As to the former, there are as many unique ways of maintaining files as their are attorneys.  Except for firms who have established methods and rules about such matters, which are then followed lock and step by the attorneys (or shall I say, more accurately, staff), attorneys tend to file how they think.  I have seen attorneys use files for court filings and discovery all in one folder, whereas I have seen others separate the two types of documents into separate folders.  Personally, I separate the two types of documents whenever I keep hard files, but I am changing more and more to a paperless office.  I have a small office suite (six rooms) in downtown Houston, but I have over 5,000 files.  There's no way I could handle the paperload associated with such a large docket, so I have managed to make most of my files paperless.

Whether my files are paperless or hard paper, I call all documents filed with the courts "pleadings" for purposes of filing.  When I questioned the list as to whether or not my fellow attorneys called a "notice of hearing" a pleading, I started a discussion about what exactly is a pleading under the rules of civil procedure and why it would be wrong to loosely use the term "pleading."  In order to know exactly what we were talking about, I had to look up the meaning of "pleading" in the Texas Rules of Civil Procedure.  Rule 45 addresses "pleadings" as follows:

"SECTION 4.   PLEADING
A.  General
RULE 45.  DEFINITION AND SYSTEM
Pleadings in the district and county courts shall
(a) be by petition and answer;
(b) consist of a statement in plain and concise language of the plaintiff's cause of action or the defendant's grounds of defense. That an allegation be evidentiary or be of legal conclusion shall not be grounds for objection when fair notice to the opponent is given by the allegations as a whole;
(c) contain any other matter which may be required by any law or rule authorizing or regulating any particular action or defense;
(d) be in writing, on paper measuring approximately 8 ½ inches by 11 inches, and signed by the party or his attorney, and either the signed original together with any verification or a copy of said original and copy of any such verification shall be filed with the court. The use of recycled paper is strongly encouraged.
When a copy of the signed original is tendered for filing, the party or his attorney filing such copy
is required to maintain the signed original for inspection by the court or any party incident to the suit,
should a question be raised as to its authenticity.
All pleadings shall be construed so as to do substantial justice."

One of the sub-discussions on this issue on the List revolved around use of the term "pleading" around other attorneys and especially in open court.  From Rule 45, we see that a "pleading" is not simply everything filed with the court, but rather only petition or answer.  So, the argument is that a judge or attorney would think less and possibly condemn any attorney who used "pleading" to refer to anything but a petition or answer.  My response was as follows:

"Now, I must also say that I have NEVER seen a judge correct a lawyer about the use of the term.  I attribute that not to either the lawyer or judge being ignorant, but to the fact that a dispute RARELY arises where the definition of pleading is the crux of the issue.  We have a sanction rule in the Texas Rules of Civil Procedure for attorneys or parties signing or filing false pleadings or pleadings otherwise meant to harass, etc.  That Rule states the prohibition applies to pleadings, pleas, motions, applications, etc., so the fact that someone signed a false motion and called it a pleading doesn't matter when that Rule is applied, because the outcome is the same.  Granted, I have not re-read the rules of civil procedure to determine where the distinction between a pleading and some other document makes a difference, but off the top of my head, I am thinking that maybe it would matter when fighting about judicial admissions...maybe."

My point is this, whenever attorneys use the word "pleading" in their filing system, we shouldn't jump up to correct the attorney.  Furthermore, when we use the term "pleading" in open court to refer to anything filed in court, we are not embarrassing ourselves.  I figure that attorneys will know when the use of the term is important in proper context and will act accordingly.

"The Advocate"

On Saturday I received in the mail the current issue (not pictured here) of The Advocate, the official report of the State Bar of Texas Litigation Section.  The Advocate is published quarterly and features a wealth of substantive articles about the law affecting the procedural rules and other issues affecting Texas litigation, such as jury selection, jury charges, summary judgment, evidence, etc.  I have found it to be one of the most valuable benefits of the State Bar of Texas, let alone the Litigation Section!

The current issue (Volume 41 - Winter 2007) focuses on Jurisdiction and Venue, and more specifically, venue, subject matter jurisdiction, and personal jurisdiction.  The Editor of The Advocate, Mr. Lonny Hoffman, a University of Houston Law Center Professor, welcomes your comments and questions.  You can become a member of the Litigation Section for only $30 per year and receive The Advocate as a membership benefit.  You will be glad you did!

Let Freedom Ring

I guess it's only appropriate that I start this new blog on the day we honor a great American, Martin Luther King, Jr.  His example and inspiration gave hope not just to an individual race but also to the world.  Dr. King showed people everywhere that we can reach the top of the mountain and look over the other side if we only have faith.  He implored all of us to let freedom ring all over our great country.  When others only saw broken promises and thus had no hope, Dr. King saw a bright future.  We owe it to each other to take this day to reflect on the good in this world and vow to be vessels of light, helping others whenever and wherever we can.

Dr. King had a dream for this country.  We should carry that dream in our hearts each and every day and act accordingly.  Dr. King's message was one of love, patience, and tolerance.  In a very real sense, I live that dream every day in my practice of law.  I am a Texas litigator with a soft and big heart and do my best to follow the Golden Rule.  I also have a dream that is deeply rooted in the American Dream.  My family and personal histories are not made up of silver spoons and silk pajamas.  I hope that you will enjoy this new blog, be inspired to help others, and realize that lawyers can hold on to their ideals even years into their profession.  I still believe that being a lawyer is a calling deserving of the highest ideals of professionalism, ethics, and compassion.  I have a dream that my small contribution to this profession will encourage others to make their small contributions, so that all of our tiny ripples will create a tremendous wave of kindness, humility, and hope that will bring back respect and pride to our profession.

I thank Dr. King for his example and hope to see my dream come to pass.