By: Gordon Wright
For some reason, many defense lawyers are hesitant to use the Rules of Civil Procedure to assist in the substantive preparation of their case. We fall into a trap of viewing the procedural rules as just that – procedural. In reality, they can be very helpful in the substantive preparation of the case.
We are not talking about using procedural rules as a weapon that may cause plaintiffs undue difficulty. We are not talking about non-ethical use of the rules. What we are talking about is considering using the rules in a way that may effectively provide information for the defense of the case or may help control the damage aspect of the case. Here are but a few examples. There are many more avenues that can be followed as defendants and defense counsel study and ponder the Rules of Civil Procedure and Rules of Evidence.
Most people who have been involved in litigation – insurers, litigants, attorneys – have heard judges say that they are happy when the lawyers all get along and work things out. In other words, judges don’t like spending a lot of time with discovery motions.
Many times, counsel for the defendants simply want to “get along” with plaintiff’s counsel. There may be good reasons for doing so; for example, cultivating a plaintiff in a multi-party case where defense counsel thinks there is a realistic opportunity to settle the case as to her client. Defendants need to be careful that, in the name of cooperation, they do not concede materials they may be entitled to. For example, in responding to discovery requests, plaintiff may initially object and indicate the response to the request may be supplemented. Giving a reasonable amount of time is appropriate.
But defense lawyers often forget to follow-up, and end up with a virtually useless response many months later. Perhaps an assistant could watch those discovery requests for supplemental responses and if 30, 45 or 60 days go by, and plaintiff sends nothing more, an appropriate follow-up can be made, and then a motion to compel if there’s no response. Defendants are entitled to understand what is happening with the plaintiff and the nature of the plaintiff’s claims and damages. Pursuing this course is important.
While courts do not like discovery motions, they also do not like one party stonewalling the other. Defense counsel, through diligence, can use motions to obtain the information they seek, while at the same time making sure that the court recognizes the defendant is being diligent in pursuing discovery it needs.
Sometimes defendants or insurers are hesitant to use discovery motions because of the added cost. While making the defense more expensive is not a goal, in a day when extremely large verdicts are frequent, and there is little control on what a jury might award, it is important to defend the case as zealously as possible on liability. Even if the jury finds the defendant liable, discovery motions can provide avenues to help the defendant reduce the amount of damages that a jury might think is appropriate.
It has long been understood that the defendant can learn much about the case by filing a motion for summary judgment. Even if the motion is not granted by the court, a motion for summary judgment can be a useful tool to better understand the plaintiff’s case.
In Texas, there are two kinds of motions for summary judgment. First, there is the “traditional” motion for summary judgment, where a defendant must show that the applicable law, or under any imaginable set of facts that a jury might consider, the defendant will prevail. Tex. R. Civ. P. 166a(c). In such a motion, the defendant must show by competent summary judgment proof, that the plaintiff cannot prevail.
To defend a traditional motion for summary judgment, the plaintiff must make some of its legal arguments and produce summary judgment evidence that, even if the motion is denied, can be used to inform preparation of the defense at trial, or can be used to cross-examine an affiant or deponent by positions they’ve taken in the summary judgment process. If the defendant considers carefully which issues that should be crafted into the summary judgment motion, the plaintiff may find itself showing more of its cards before trial than he may want to.
The second type of motion for summary judgment in Texas is often referred to as a “no-evidence” motion for summary judgment. This motion can be made after sufficient time for discovery has passed, and the respondent to the motion bears the burden of coming forward with summary judgment proof. Tex. R. Civ. P. 166(a)(i).
The motion is simple. A party may allege that plaintiff has no evidence (i.e., no facts) to support one or more of the elements of the cause of action that the defendant challenges. The motion must be specific as to the element(s) of the cause of action challenged. We have seen motions where virtually every element of every cause of action is challenged.
The respondent then must come forward with competent summary judgment proof for each of those elements. The defendant need only to negate one element. If plaintiff does not, the motion is granted and that cause of action is gone.
The result of such a motion and response thereto is to provide the defendant with an evidentiary roadmap of where the plaintiff will go at trial. It is unlikely that the plaintiff will skimp on its evidentiary proof because, if it fails to produce more a scintilla of evidence (the burden is not high) in the opinion of the court, then the motion should be granted. That is a risk most plaintiffs do not want to take, and they will err on the side of producing a significant amount of evidence. While the plaintiff need not marshal all of its evidence in responding to the motion, many will give enough evidence in response so that the defendant has a fairly clear picture of what the trial may look like.
Hence, even if the motion is denied, the defendant comes away with a picture of the evidence that vastly helps trial preparation, or it may require the plaintiff to rethink the way it proves certain issues at trial. This is a relatively costless approach to summary judgment that favors, in many ways, the movant.
For very large cases where it may be cost-justified, bringing an interlocutory appeal on a given ruling may be the correct approach. Such appeals are limited to certain types of issues, such as sufficiency of medical expert reports, injunctive relief, pleas to the jurisdiction, special appearances, class actions, governmental immunity, TCPA claims, and others identified by statute.
Trial judges do not care for interlocutory appeals; they sometimes call into question their abilities as a judge and can delay trial court proceedings. Therefore, many lawyers shrink from the idea of bringing an interlocutory appeal. Additionally, an interlocutory appeal can be expensive, may require the permission of the trial court in some circumstances, and may require additional counsel to be involved.
On the other hand, not bringing such an appeal, and waiting until the close of the case, may result in a verdict that will, for practical purposes, require the client to settle the case for much more than he might otherwise. The added benefit to filing an interlocutory appeal is that the plaintiff may become somewhat more circumspect in the way it argues at various pretrial hearings. The plaintiff will be more careful about making factual representations that are not in the record, or arguing case law means one thing when in fact it may say another. The plaintiff may become more careful about its opposition to various motions and arguments that the defendant makes.
I recognize that these and other procedures that may be used by the defendant to flush out the plaintiff’s position and build a legal and factual defense of the case may cost additional money. As with everything else in litigation, the cost-benefit analysis should be openly discussed between counsel, the client, and the insurer to make certain that funds are not being expended unnecessarily, but that the costs that will potentially yield large benefits will be incurred. Using the procedural rules can make a big difference in the effectiveness of the defense of the case.