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Civil appellate, criminal appellate, and criminal trial lawyer at 704 North Thompson Street, #157, Conroe, Texas 77301-2578, (936) 494-1393.
Showing posts with label discovery. Show all posts
Showing posts with label discovery. Show all posts

Monday, December 18, 2017

Criminal Case Need Not Shut down Civil Discovery on the Same Facts.

A guy does a bad thing to another person. That person sues the guy and starts discovery. The guy is charged with a crime on basically the same facts. As a civil defendant, the guy asks to be excused from civil discovery until the criminal case is disposed of. Trial judge grants it.
The civil plaintiffs ask the appeals court for a writ of mandamus to force the trial judge to continue civil discovery-- the defendant may assert privileges against inquiries that would require waiver of rights not to self-incriminate, but the defendant will have to assert them. The court of appeals conditionally issues the writ. Conditionally issuing the writ means that the court of appeals won't imperiously order the trial judge to do its will, but trusts the trial judge to whatever is appropriate in light of the opinion, and will only order the trial judge to do something if the trial judge dawdles about taking the COA's hint. (If there's a mandamus case where the COA does issue a direct order, that means that it is angry with the trial judge.)
In re Tina Fontaine and Gerald Fontaine, No. 17-08-09496-CV2017 WL 6390530, Tex. App.-- Beaumont, Dec. 14, 2017 (mem. op.) (per curiam) (orig. proceeding)

Sunday, August 25, 2013

Interlocutory Texas State Discovery Appellate Court Relief

Texas state trial courts are less open to interlocutory (that is, non-final) appeals than their federal counterparts. A common way for an appellate issue to arise in a Texas state civil trial is a party to seek to mandamus the trial about a discovery matter-- usually a defendant's fighting disclosure. The final judgment rule prevents straight-up interlocutory appeal about this kind of thing. In order for mandamus relief to be warranted the law has to be so clear in favor of the party seeking mandamus, that the judge's duty is not one that requires any judicial discretion. The judge's duty needs to be a ministerial one-- a clerical act more than a judicial one. Additionally, the judge's failure to follow the law needs to be irreparably harmful to the party. If it is not, then there is no reason to get a mandamus-- the party could just wait until after the trial. This kind of mandamus is subject to the challenges and weirdnesses that I have discussed in at least four other blog posts.