Efiling Comes to Texas Civil Practice in Trial and at Appeal

Texas state appellate and civil practice is going electronic. The Texas Supreme Court has mandated electronic filing for cases in their court and for all civil cases in the Texas courts of appeals starting January 1, 2014.
Electronic filing will phased in Texas's trial-level courts, large counties first, from January 2014 through July 2016. That part of the order will apply to district courts, statutory county courts, constitutional county courts and statutory probate courts in the following order:

• January 1, 2014, in counties with a population of 500,000 or more (In your humble correspondent's world: Fort Bend and Harris Counties);
• July 1, 2014, in counties with 200,000 to 499,999 (Brazoria County);
• January 1,2015, in counties with 100,000 to 199,999;
• July 1, 2015, in counties with 50,000 to 99,999;
• January 1,2016, in counties with 20,000 to 49,999; and
• July 1, 2016, in counties with fewer than 20,000.

Once courts switch to mandatory e-filing, attorneys must e-file all documents in civil cases, except documents exempted by Court rules, through TexFile, the portal provided by the Texas Office of Court Administration. Attorneys must not file documents by any alternative electronic methods, including by fax, except in emergencies. Courts and clerks are ordered not to offer attorneys in civil cases any alternative electronic ways to file documents. Pro se litigants may e-file, but don't have to. Courts or clerks who believe they cannot set up electronic filing timely may petition the Texas Supremes for an extension for good cause.

Texas Supremes Start with a System that Will Eventually Replace Paper with Ecommunication

The Texas Supremes adopt Texas Appeals Management and eFiling System (TAMES) after Houston's First and Fourteenth Courts of Appeals do. The Texas Court of Criminal Appeals and the other Texas state intermediate appellate courts will follow afterwards. Eventually, communication between counsel and the court and the courts internal communication will be all electronic, speeding up and simplifying procedures. This is from the Texas Lawyer's Tex Parte Blog.

Some Oddities of Stare Decisis or Issue Preclusion

Of necessity, stare decisis or issue preclusion, is weaker in a final appellate court than in an intermediate appellate court. A final appellate court is one that which there is no higher. In the federal system, it's the Supreme Court of the United States. In Texas, as to Texas civil law, it's the Supreme Court of Texas; as to Texas criminal law, it's the Texas Court of Criminal Appeals. Intermediate appellate courts are the others.
It is not unreasonable to think that a legal rule adopted dozens or hundreds or years earlier, might become outmoded as technological or economic circumstances changes. While higher courts might change outmoded rules for the lower courts. The only court that can overrule the bad rule of the highest court of a system is that highest court.
A common law court can overrule its own rules, but most of them would probably leave changing important old rules to the higher courts.
An appellate court is generally also more open to changing rules on constitutional matters than on matters interpreting legislation, which may be counter intuitive. This is because as to constitutional interpretation only the appeals court can change its interpretation of the constitution. As to legislative interpretation, the legislature can change a statute. By comparison, changing the constitution is a lot more work.

How and When to Challenge the Admissibility of an Expert's Opinion at Trial

An extremely good blog post on how to impeach an expert witness of the kind most lawyers will encounter- the somewhat credentialed person who no longer is fully engaged in his or her field, but whose business is, generally, limited to testifying at trials is here.
They don't talk about the appellate angle in attacking experts. Professional testifiers are often persuasive to juries and trial judges, but are much less impressive when judged on a cold record. I practice in southeast Texas. In the First, Ninth, and Fourteenth Courts of Appeals and in the Texas Supreme Court a personal injury plaintiff's expert is guilty until proven innocent, so defense counsel in such a case should practically always make a Daubert/Robinson challenge to the adversary's expert. In a sexually-violent-predator civil-commitment case, Judge Seiler will be very open to an attack on the defense expert, less so for his appellate court, the Ninth, in Beaumont, as I've written about elsewhere on this blog.

On the Reversals of Sexual Violent Predator Commitments

In In re Commitment of David Dodson, the 435^th District Court of Montgomery County, Texas struck the testimony of Dr. Anna Shursen, Dodson’s only witness, after she had begun to testify. In only the second reversal I am familiar with of a sexually-violent-predator trial on the merits by  the Ninth Appeals Court of Beaumont, it overturned Dodson’s commitment. It appears from the filing number of the case of the commitment of Michael Bohannon that Bohannon’s case was likely tried later than Dodson’s. The district court in that case also struck Dr. Shursen’s testimony—again she was the defense’s only witness—but it struck her this time after a pretrial hearing, before the beginning of the trial. Nine days after Beaumont had reversed Dodson, Beaumont reversed Bohannon. The State appealed, and Bohannon is currently pending before the Texas Supreme Court. The Texas Supremes heard oral argument in Bohannon November 8, 2011.

 

In re Commitment of Raymond Scott Hinkle appears to have been tried after Bohannon. The State called Hinkle's designated expert psychiatrist Dr. Charles Tennison as a hostile witness in its case-in-chief. Hinkle reserved his questions of his expert for his case-in-chief. The trial court struck Tennison as a expert after his adverse questioning by the State. Beaumont reversed and remanded the commitment.

In re Commitment of Larry White looks like it was next in line, but it's not a reversal. His appellate lawyer told Beaumont that there weren't any grounds for reversal. The trial court struck Tennison here, too.

Yesterday, In re Commitment of Lester Winkle came down. The trial court had stricken Tennison—again, the defense’s sole expert—in a pretrial hearing. The appellate court panel in the case was made up of Justices David Gaultney, Charles Kreger, and Hollis Horton. Gaultney dissented on the ground, basically, that the defense had not preserved the error in the trial court by not requesting a continuance or asking for another expert evaluation, after the trial court had stricken the expert’s testimony there.

Observations:

1. Four reversals out of 103 trials is not a lot. The newspaper story about Judge Seiler's record would make an uninformed person think that he's reversed a lot, which is not the case.
2. I'm not aware of the trial court ever striking a State's expert witness in an SVP case. I'm not aware that Beaumont has ever overruled a trial court for admitting a State's expert's testimony over objection in an SVP case, even though, I don't believe that the State's expert witnesses in SVP cases are any better than plaintiff's expert witnesses in personal injury cases who are routinely struck by trial and appellate courts (SVP case are civil cases, as personal injury cases are.).
3. Beaumont appears to me to be signalling Judge Seiler that he should be slower to strike defense witnesses in SVP cases, and it is not clear to me that Judge Seiler is listening to them.
4. State Counsel for Offenders, the agency of the Texas Criminal Justice board that is the public defender office for SVP cases, does not have as much money for expert witnesses as the prosecutors do. The State always has at least one psychiatrist expert, but because SCFO does have as much money, respondents are much less likely to have a psychiatrist in the battle of the experts.
5. Larry White needs to file an application for a writ of habeas corpus directly.
6. Trial lawyers: if your only expert witness gets struck, ask for a continuance, and ask for leave to seek another expert.
7. Notwithstanding my observation number number one above, Nancy Flake's article in the Montgomery County Courier was a fine piece of journalism. The subject was recondite and the deadline came quickly, but she appears to have gotten the facts right.

Texas Supreme Court Electronic Filing Rules

Attorneys must electronically file all documents in cases with the Texas Supreme Court. All persons filing electronically must also file printed paper versions of the file-stamped e-filed document within three business days: one for the record of an original proceeding, two of petitions, responses, replies and amicus briefs, four of any brief on the merits. SCOTX has some helpful resources on its website for new to electronic document production and practice.
Now you have to pay an e-services provider to file any paper.  That fee is larger than mailing fees, but probably saves money overall and in the long run because of reduced costs related to producing more paper copies, but in the short run you have to pay the provider and prep up some copies for mailing, and mail them. Large corporations can probably deal with the electronicnization  of document production OK, but my family law and probate clients can't deal with it so well (My criminal law clients don't have business with the Austin Supremes.).
Some good news is that if your back is absolutely against the wall on a filing deadline, you can now file late at night the night the document is due (But don't do it, always leave time for someone's computer to crash, for you or a courier to have a flat tire or other car trouble, etc.).

Change in Texas Supreme Court Practice

Effective September 12, 2011, all attorneys are required to file all documents with the Texas Supreme Court through the Texas.gov electronic filing system. To use the electronic filing system you must first choose an electronic filing service provider and register. Be alert.

Everything You Know about Light v. Centel Cellular of Texas Is Wrong

Audio comedians the Firesign Theatre had an album called  "Everything You Know Is Wrong!" Well, Proctor and Bergman had nothing on those jolly jumpbucks at the Texas Supreme Court. A guy named Rex Cook was working for the famous insurance agency Marsh and McLennan Companies. They gave him stock options and had him sign a noncompete agreement. He thought he knew, though, that a company can't just buy a noncompete agreement from a person. Cook quit and, well, proceeded to compete with Marsh and McLennan. They sued him. The judge of the 68th District Court in Dallas, Martin Hoffman, thought that he knew that in such a case, the employee wins. After all, you just couldn't buy a noncompete agreement from a person. The Dallas Appeals Court-- that bastion of antibusiness sentiment-- thought that it knew that in such a case the employee wins. At the Texas Supreme Court, the Chief Justice and Justices Green and Lehrmann thought that they knew that in such a case the employee wins. Even though it's not quite so clear for Justice Willett, a reader of his opinion might be forgiven for thinking that his understanding of the rules is generally the same as every other jurist who has passed on the case (He said that the trial record wasn't developed, which is why he would send the case back to the trial court.).That leaves Justices Wainwright, Hecht, Medina, Johnson and Guzman who teach all the others that everything they know is wrong. OK. maybe not everything, just Light v. Centel Cellular Co. of Texas, 883 S.W.2d 643 (Tex. 1994). It holds that for a covenant not to compete to be enforceable when a company offers an incentive and the employee accepts it, the incentive would have to give rise to the employer's interest in restraining the employee from competing. For example, a covenant not to compete might be enforceable when an employer gives an employee trade secrets or confidential information. That which is given "gives rise" to the justification for allowing enforcement of a covenant not to compete. Forget it. It's old news. That statement is inoperative. With five votes, you can do anything around there. I think we're all bozos on this bus.

The Texas Supreme Court

Texas's highest court, which only hears civil cases, consists of a Chief Justice and eight justices, each elected statewide for a six-year term. Since juvenile cases are civil cases, the Texas Supreme Court hears them, too. The Court chooses the cases it wants to hear, so they generally choose the ones they want to reverse. Presently all of the Justices are Republicans. The most common way to get on this bench as a practical matter is to get appointed by the governor with the approval of the State Senate to fill an unfinished term of an exiting justice.
This Court is extremely likely to reverse plaintiffs' judgments, and are more sensitive to the faults of  Democrat Court-of-Appeal justices than of their fellow Republicans, which is bad news for the blue Supreme Judicial Districts numbered Eight-- El Paso--and Thirteen--Corpus Christi/Edinburg.
Chief Justice Wallace B. Jefferson is the first African-American Chief Justice of Texas and the first African-American Justice of the Texas Supreme Court. Justice Nathan L. Hecht is a clever writer-- the kind of guy who would quote Shakespeare in an opinion. Formerly linked romantically with high-powered white-shoe Dallas lawyer, former White House Counsel and United States Supreme Court nominee Harriet Miers, Hecht beat ethics charges against him that arose when he gave interviews and made political phone calls on behalf of Miers. Dale Wainwright was a civil district judge in Houston. I remember seeing him at our local Fuddrucker's as he was bringing some kind of little league team he was a coach of out to supper. David Medina is also from Houston. I remember when he was a trial judge-- I lost a case in his court because of some pointless and impossible-to-satisfy rule about how he wanted papers presented to him, though I've got to give him credit, when I told him the story years later, he had the conscience to wince when he heard it. He was indicted for arson and altering documents, but the charges were dismissed. Justice Paul W. Green was an appeals court judge in San Antonio for ten years before he rose to the higher bench. Phil Johnson was the Chief Justice of the Amarillo Court of Appeals before he rose. Don R. Willett was as plugged in as a Christmas light to the Bush-Cheney administration, though he's got stellar legal credentials, too. Eva Guzman rose from a Houston family court bench to the Fourteenth Court of Appeals in Houston to Texas's highest. Debra Lehrmann is the Court's newest justice, a former Fort Worth family law judge.

For Any Case, Asking Whether or Not a Panelist Can Follow the Law Is Allowable

The Texas Supreme Court, in a per curiam opinion, reversed and remanded a sexually-violent-predator-civil-commitment trial because the judge refused to allow proper voir dire questions. First, respondent's counsel wanted to ask potential jurors if they could give a fair trial to a person that the evidence would show had committed a number of homosexual acts, even though some veniremembers said that they would have trouble being fair to such a person. The judge disallowed such questions.
The second disallowed question won't make sense without a little background. For a person to be committed as a sexually violent predator, the State must show that the person committed two qualifying sex crimes and additionally that the person has a qualifying behavioral abnormality. The question that respondent's counsel wanted to ask was if a panelist wouldn't commit the respondent on the basis of the two sex crimes without requiring the State to prove the behavioral abnormality. Again the judge disallowed.
The Texas Supremes held that asking about anti-gay prejudice in a case like this helped to establish whether or not the jurors would decide the case on the law and the evidence. Asking panelists whether or not they would put the State to its legally required proof, they added, was always allowable.

Scott Brister Interview

Stimulating interview of former Texas Supreme Court Justice Scott Brister is here. May require subscription to Texas Lawyer.

Supreme Court of Texas Amends Electronic Document Order

Here is the Amendment. The amendment emphasizes the number of paper documents that must still be filed in a SCOTX case. It requires that attorneys in a SCOTX case must give each other their email addresses and must register for Casemail about their case. Such attorneys must email opposing counsel their edocs. Thanks to D. Todd Smith of Texas Appellate Law Blog for the update.

Texas State Court Rules-- Where to Find Them for Free

Rules for Texas State Courts can be found at the Supreme Court of Texas's rules page. Local rules or internal operating procedures for lower Texas state courts can normally be found on the Texas Courts Online webpage for that court. The main index page for the Texas state courts system is here. Internal Operating Procedures for the Thirteenth Court of Appeals is here.