1 / 22

Pretrial Matters: Pleadings & Motions

Pretrial Matters: Pleadings & Motions. © Professor Mathis-Rutledge. After the client interview. Analyze facts – determine duties of parties What are the provable facts What was the harm or injury What remedies are you seeking. Need More Info. Discovery Before the Lawsuit

uma
Download Presentation

Pretrial Matters: Pleadings & Motions

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Pretrial Matters: Pleadings & Motions © Professor Mathis-Rutledge

  2. After the client interview • Analyze facts – determine duties of parties • What are the provable facts • What was the harm or injury • What remedies are you seeking

  3. Need More Info. • Discovery Before the Lawsuit • Rule 202 of the Texas Rules of Civil Procedure • File a petition for deposition • Purpose: to investigate potential claim

  4. The Civil Process • A lawsuit is filed – “the complaint” • An answer must be filed by the respondent • Discovery process – interrogatories, depositions, request for production • If case not disposed of – summary judgment: • Trial

  5. The Criminal Process • The prosecution begins – the information or indictment • Arraignment in front of judge or magistrate defendant answers guilty or not guilty • No formal discovery process • The defendant is allowed to file discovery motions • If motion to suppress or quash indictment is not granted: trial

  6. Criminal v. Civil Law

  7. Going to court & filing suit • Which court(s) have jurisdiction • Prepare the petition • Caption (name of case and court) • Residences and names of parties • Statement of facts to give notice • Demand for relief sought (in alternative or combination) • Signature of attorney of record, state bar #, address & phone number • In Texas, the firt signature is included “the attorney in charge”

  8. Submit to court • Original petition • Copy of petition for each defendant • Check for filing fee

  9. Before the answer • Before entering an appearance – certain responsive pleadings should be filed • Challenge to jurisdiction – special appearance • Motion to Transfer venue

  10. The Answer • Challenge jurisdiction • Specific denials • General denials • Affirmative Defenses • Signature by attorney of record, telephone, address, state bar number • Certificate of service

  11. Sample Documents • Form books • Procedure books • Firm pleading banks

  12. Pre-Trial Motions &Memoranda • Filed in the trial court (district court) • Motion – device to request an order • Motion to compel; motion for sanctions; motion for continuance

  13. After a motion is filed, the other party may respond • Each party must file a brief – or memorandum of law • The memo should explain why the party should prevail • Describes & analyzes legal authorities • Includes the parties’ arguments

  14. When Filed? • Motions can be filed at almost any point during the litigation. • Motions before the trial are generically called “pretrial motions.”

  15. Who Files? • Any party may file • The party who files is called the movant • The other party is the respondent or non-movant

  16. Audience • Primary is the trial judge • Secondary audience: • Judge’s clerk • Opposing counsel • Other attorneys in your firm • Your client • Possibly an appellate court

  17. Purposes • Persuade the court • Educate the court • Inform opposing counsel of position • Show client work performed on its behalf

  18. Caption Title Introductory statement Facts Issue(s) Arguments & authorities Conclusion Signature block certificate of service affidavits & evidence Parts of a PretrialMemorandum or Brief

  19. Pretrial motions • Motion to Dismiss • Texas: something wrong with the lawsuit that entitles defendant to dismissal if problem is not cured • Failure to prosecute, lack of jurisdiction, failure to comply with discovery • Federal (Rule 12(b)(6) – failure to state a claim

  20. Summary Judgment • General • Filed if there is an absence of a genuine issue of material fact and movant is entitled to win as a matter of law • Standard – evidence must be construed in the light most favorable to the non-movant. • Based on depositions, affidavits of admissible facts, interrogatories, other discovery responses, stipulations and public records

  21. Summary Judgment • Summary Judgment • Texas • No evidence under Rule 166a • Alleging no evidence to support one or more of the specified elements • “Regular” Motion for Summary Judgment

  22. Local Rules • Always consult local court rules. • Surfing assignment: • http://www.txs.uscourts.gov/ • Look practice/ judge’s procedures

More Related