Texas Amends the Self-Authentication Rule for Business Records – Thousands of Post-It Notes with the Business-Records Predicate Thrown Away

authenticDisputes over authenticity of trial exhibits have increased in recent years. In response, the Texas Supreme Court has amended the self-authentication rule of the Texas Rules of Evidence, making it easier to authenticate business records. In fact, they even provided a form affidavit, so you can throw away that Post-It note with the business record predicate, provided you send the affidavit or unsworn declaration more than 14 days from trial.

 RULE 902. SELF-AUTHENTICATION

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

. . .

(10) Business Records Accompanied by Affidavit. The original or a copy of a record that meets the requirements of Rule 803(6) or (7), if the record is accompanied by an affidavit that complies with subparagraph (B) of this rule and any other requirements of law, and the record and affidavit are served in accordance with subparagraph (A). For good cause shown, the court may order that a business record be treated as presumptively authentic even if the proponent fails to comply with subparagraph (A).

(A) Service Requirement. The proponent of a record must serve the record and the accompanying affidavit on each other party to the case at least 14 days before trial. The record and affidavit may be served by any method permitted by Rule of Civil Procedure 21a.

(B) Form of Affidavit. An affidavit is sufficient if it includes the following language, but this form is not exclusive:

  1. I am the custodian of records of _______ [or] I am an employee or owner of ___________ and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities.
  2. Attached are ____ pages of records. These are the original records or the exact duplicates of original records.
  3. Based on the regular practices of ________, the records were:

a.  made at or near the time of each act, event, condition, opinion, or diagnosis set forth in the records;

b.  made by, or from information transmitted by, persons with knowledge of the matters set forth; and

c.  kept in the course of regularly conducted business activity.

  1. It was the regular practice of the business activity to make the records.

The comment to the rule change is particularly important. It explicitly states that unsworn declarations are sufficient under the self-authentication rule, and that you can serve the affidavit or unsworn declaration by email.

Comment to 2014 Change: The word “affidavit” in this rule includes an unsworn declaration made under penalty of perjury. TEX. CIV. PRAC. & REM. CODE § 132.001. A record and affidavit may be served electronically, including by email. TEX. R. CIV. P. 21a. The reference to “any other requirements of law” incorporates the requirements of Sections 18.001 and 18.002 of the Civil Practice and Remedies Code for affidavits offered as prima facie proof of the cost or necessity of services or medical expenses.

While undoubtedly authentication disputes will still arise (I printed it from the internet, so it must be authentic), this rule has the potential to eliminate needless authentication disputes at trial, much to the delight of jurors subjected to white-noise machines and frequent unexplained breaks.

No notary? No problem! The Little-Known Rules about Unsworn Declarations

Need an affidavit but don’t have a notary handy? Running up against a deadline to respond to interrogatories? Many litigators—especially those who represent individuals—can save the hassle Notary Stampof directing their clients to a notary by drafting unsworn declarations.

Under Texas and federal statutes, unsworn declarations may be used in lieu of most written sworn declarations, verifications, certifications, oaths, or affidavits. But unlike affidavits, unsworn declarations are not notarized.

Under Texas Civil Practice and Remedies Code § 132.001(d), the declaration must be in writing, signed by the affiant as true under penalty of perjury, and include a jurat in substantially the following form:

My name is [first name] [middle name] [last name], my date of birth is ____________, and my address is [street address], [city], [state], [zip code], and [country]. I declare under penalty of perjury that the foregoing is true and correct.

Executed in _______ County, State of ________, on the ____ day of [month], [year].

____________________

[Declarant’s Name]

Likewise on the federal side, 28 U.S.C. § 1746(2) provides the following form for declarations signed within the United States (and its territories, possessions, or commonwealths):

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

Executed on (date).

(Signature)

The federal statute provides a slightly different form for declarations executed outside the United States, and the Texas statute provides a different form for declarations signed by employees of state agencies and political subdivisions as well as inmates. See 28 U.S.C. § 1746(1); Tex. Civ. Prac. & Rem. Code § 132.001(e), (f).

By using unsworn declarations in the place of affidavits and verifications, attorneys can save much time and hassle in obtaining written testimony or verifications from clients.

TRCP 169: Texas Creates a Litigation Fast Lane, But Makes the Lane Very Narrow

cw20_8_narrow_lanes_aheadJust over one year ago, the Texas Supreme Court promulgated sweeping changes to Texas pre-trial and trial procedure. The new rules fell into two very broad categories: (1) rules attempting to reduce the time and expense of unmeritorious claims, specifically Rule 91a; and (2) rules attempting to reduce the time and expense of claims that fall below a certain amount in controversy. Rule 47 is a procedural rule designed to triage cases based primarily on the amount in controversy. But the granddaddy of them all, Rule 169, completely upends both pre-trial and trial rules for the limited cases that end up on Rule 169’s fast lane. But after a year of implementation, it appears that while the lane may be fast, it is treacherously narrow.

According to Texas Rule of Civil Procedure 169(a)(1), the scope of the rule is limited to “a suit in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief aggregating $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees.” Rule 169(a)(2) further limits the expedited actions process by exempting “claim(s) governed by the Family Code, the Property Code, the Tax Code, or Chapter 74 of the Civil Practice & Remedies Code.” The comments to the rule state that “[t]he expedited actions process created by Rule 169 is mandatory; any suit that falls within the definition of 169(a)(1) is subject to the provisions of the rule.”

But even if you can get your case on the fast lane, Rule 169(c)(1)(A)-(B) provides that “[a] court must remove a suit from the expedited actions process: (A) on motion and a showing of good cause by any party; or (B) if any claimant, other than a counter-claimant, files a pleading or an amended or supplemental pleading that seeks any relief other than the monetary relief allowed by (a)(1).” Rule 169(c)(2) mandates that “[a] pleading, amended pleading, or supplemental pleading that removes a suit from the expedited actions process may not be filed without leave of court unless it is filed before the earlier of 30 days after the discovery period is closed or 30 days before the date set for trial. Leave to amend may be granted only if good cause for filing the pleading outweighs any prejudice to an opposing party.” As you can undoubtedly see, Rule 169(a) and (c) makes the new fast lane very narrow indeed.

For those cases that can navigate the pitfalls of the narrow fast lane, the speed of litigation is substantially increased. Rule 169(d) outlines, from initial discovery through trial, the limitations of the expedited action process.

Discovery

Rule 169(d)(1) provides that “discovery is governed by Rule 190.2.” A quick turn of the page over to Rule 190.2(b) uncovers the litany of restrictions governing discovery on the fast lane:

(b) Limitations. Discovery is subject to the limitations provided elsewhere in these rules and to the following additional limitations:

(1) Discovery period. All discovery must be conducted during the discovery period, which begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party.

(2) Total time for oral depositions. Each party may have no more than six hours in total to examine and cross-examine all witnesses in oral depositions. The parties may agree to expand this limit up to ten hours in total, but not more except by court order. The court may modify the deposition hours so that no party is given unfair advantage.

(3) Interrogatories. Any party may serve on any other party no more than 15 written interrogatories, excluding interrogatories asking a party only to identify or authenticate specific documents. Each discrete subpart of an interrogatory is considered a separate interrogatory.

(4) Requests for Production. Any party may serve on any other party no more than 15 written requests for production. Each discrete subpart of a request for production is considered a separate request for production.

(5) Requests for Admissions. Any party may serve on any other party no more than 15 written requests for admissions. Each discrete subpart of a request for admission is considered a separate request for admission.

(6) Requests for Disclosure. In addition to the content subject to disclosure under Rule 194.2, a party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. A request for disclosure made pursuant to this paragraph is not considered a request for production.

Experts

Rule 169(d)(5) Limits challenges to experts in expedited actions. Under the rule, “[u]nless requested a party may only challenge the admissibility of expert testimony as an objection to summary judgment evidence under Rule 166a or during the trial on the merits.” But this Rule does not apply to a motion to strike for late designation.

Mediation

Before the case reaches trial, Rule 169(d)(4) provides that “unless the parties have agreed not to engage in alternative dispute resolution, the court may refer the case to an alternative dispute resolution procedure once, and the procedure must: (i) not exceed a half-day in duration, excluding scheduling time; (ii) not exceed a total cost of twice the amount of applicable civil filing fees; and (iii) be completed no later than 60 days before the initial trial setting.” Rule 169(d)(4)(C) does allow for the parties to “agree to engage in alternative dispute resolution other than that provided for in (A).”

Trial Setting

Rule 169(d)(2) provides that “on any party’s request, the court must set the case for a trial date that is within 90 days after the discovery period in Rule 190.2(b)(1) ends. The court may continue the case twice, not to exceed a total of 60 days.” As seen above, the discovery period under Rule 190.2(b)(1) is “180 days after the date the first request for discovery of any kind is served on a party.” Adding the discretionary extension of 60 days, the fast lane statutorily mandates a case be set for trial no more than 11 months from the first discovery request. Very fast indeed.

Trial

Once the case reaches trial, Rule 169(d)(3) mandates that “each side is allowed no more than eight hours to complete jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing arguments. On motion and a showing of good cause by any party, the court may extend the time limit to no more than twelve hours per side.” Fortunately, “time spent on objections, bench conferences, bills of exception, and challenges for cause to a juror under Rule 228 are not included in the time limit.”

As shown above, the fast lane is indeed very fast. And narrow. And as is often the case with treacherous roads, there are pitfalls awaiting the unwary litigator. The first pitfall is in the pleading itself. Rule 169(a)(1) states explicitly that the scope of the rule is limited to “a suit in which all claimants, other than counter-claimants, affirmatively plead that they seek only monetary relief…” By the plain language of the rule, declaratory judgment suits, suits seeking injunctive relief, and suits seeking equitable relief (other than money) are excluded from the expedited action rules.

The next pitfall is that you can greatly increase the cost of litigation if you plead out of the expedited procedure. Rule 190.2(c) provides that “[i]f a suit is removed from the expedited actions process in Rule 169 or, in a divorce, the filing of a pleading renders this subdivision no longer applicable, the discovery period reopens, and discovery must be completed within the limitations provided in Rules 190.3 or 190.4, whichever is applicable. Any person previously deposed may be redeposed. On motion of any party, the court should continue the trial date if necessary to permit completion of discovery.”

Another pitfall involves expert disclosures. While the rules modify the discovery period, limiting it to a mere 180 days from the date of the first discovery request, the rules do not modify the expert disclosure rules. Rule 195.2(a)-(b) provides that experts must be disclosed “with regard to all experts testifying for a party seeking affirmative relief, 90 days before the end of the discovery period; with regard to all other experts, 60 days before the end of the discovery period.” Under the expedited rules, that means Plaintiff has less than three months from the first discovery request to designate experts, and defendants get four months. And as highlighted above, one of the only challenges allowed under the expedited rules is a challenge for late designation.

Undoubtedly, these are just a few of the pitfalls on Texas’s new expedited-actions process. But they are pitfalls that can be readily avoided by the informed litigator.

Billing “A lot of Time” Preparing for Trial is Insufficient to Support Fee Award, Says Texas Supreme Court

alotAlthough the Texas Supreme Court handed down its El Apple opinion over 20 months ago, attorneys continue to submit inadequate affidavits and fail to provide redacted fee bills in discovery, precluding  recovery of attorney’s fees. Don’t say we didn’t warn you. In City of Laredo v. Montano, the Texas Supreme Court reaffirmed its holding in El Apple and confirmed that the days of submitting conclusory affidavits and hyperbolic testimony as “evidence” of attorney’s fees are gone (in most cases).

At issue in City of Laredo was the attempted condemnation of property in the central business district of Laredo owned by the Montano family. In December of 2004, the City decided it needed the Montanos’ property to widen a street and build a pedestrian plaza near the bridge. The Montanos refused to sell. The family claimed that the City had no public purpose for their land but rather merely intended to benefit El Portal Center, a private entity operating a nearby shopping center.

The City filed suit to condemn the property in March of 2006, and the case was tried to a jury about four years later. The jury agreed with the Montanos that the City had no authorized public use for the property and awarded attorney’s fees and expenses. The trial court rendered judgment on the jury verdict, awarding the Montanos $446,000 in attorney’s fees through trial, additional attorney’s fees on appeal, and additional sums for appraisals and other expenses the property owners incurred. The City appealed the attorney’s fees award.

A Tale of Two Attorneys

During the litigation, the Montanos were represented by multiple attorneys, including Richard J. Gonzalez and Adriana Benavides-Maddox. Gonzalez testified to performing the following tasks in the Montanos’ defense: (1) making an open records request; (2) searching through city council meeting minutes regarding the Montano family’s property; (3) watching 38 DVDs of the city-council meetings (some more than once); (4) visiting the premises many times; (5) conducting “a lot” of legal research; (6) preparing the pleadings and motions; (7) spending time in court for appearances; (8) spending “countless hours” preparing for and taking depositions; (9) reviewing the transcripts and DVDs of the depositions; and (10) preparing for trial and trying the case. Gonzalez further testified to working on the case for 226 weeks, estimating that he devoted on average “a barebones minimum” of six hours a week to the case.

The Court held that Gonzalez’s testimony that he spent “a lot of time getting ready for the lawsuit,” conducted “a lot of legal research,” visited the premises “many, many, many, many times,” and spent “countless” hours on motions and depositions was not evidence of a reasonable attorney’s fee under the lodestar method. Montano, 414 S.W.3d 731, 736 (Tex. 2013) (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012)). In fact, the Court characterized Gonzalez’s testimony as “simply devoid of substance.”

The Court reaffirmed El Apple, noting that “a lodestar calculation requires certain basic proof, including itemizing specific tasks, the time required for those tasks, and the rate charged by the person performing the work.” Id. (citing El Apple, 370 S.W.3d at 765). The Court further noted that “in all but the simplest cases, the attorney would probably have to refer to some type of record or documentation to provide this information.” Based on this reasoning, the Court reversed the award of attorney’s fees to Gonzalez and remanded the case back to the trial court for further proceedings.

Benavides-Maddox’s testimony, on the other hand, was not deficient. She testified that she used a billing system to keep track of her time in the case and that she had billed, and been paid, $25,000 for her work up to trial. She further testified that her contract with the Montanos provided for payment at her $200 hourly rate. Finally, she testified that she arrived early each day of trial and continued to work after the jury was dismissed preparing for the next day. She estimated that she worked about twelve hours per day during the course of the five-day trial. The Court noted:

While similar to Gonzalez’s estimation that he worked the case an average of six hours a week during his four-year involvement, it is also different in significant respects. The billing inquiry here involves contemporaneous events and discrete tasks—the trial and associated preparation for each succeeding day. Moreover, it is a task the opponent witnessed at least in part, having also participated in the trial. Despite this knowledge, Benavides-Maddox’s charges relating to the trial were not questioned on cross-examination. Unlike Gonzalez’s testimony, Benavides-Maddox’s testimony about her unbilled trial work is some evidence on which to base an award of attorney’s fees because it concerns contemporaneous or immediately completed work for which she had not had time to bill, or presumably even record, in her billing system.

Id. at 737. The Court affirmed the award attributable to Benavides-Maddox’s fees.

The tale of these two attorneys provides an important moral: he that does not keep (and submit) contemporaneous billing records or other documentation recorded reasonably close to the time when the work is performed is a man awaiting his folly.

Texas Supreme Court Decides Email is Here to Stay, Amends Rules of Civil Procedure Accordingly

emailWhen it comes to civil courts in Texas, the theme for 2013 was “fast-tracking.” The Texas Rules of Civil Procedure saw a number of changes related to triaging and expediting low-dollar controversies and eliminating “frivolous” cases early in the litigation process. While limiting requests for production and depositions in cases under $100,000 is all well and good, civil courts in Texas face much greater problems on a day-to-day basis.

One such problem is the underutilization of technology. Before 2014, email didn’t exist as far as the Texas Rules of Civil Procedure were concerned, electronic filing by fax was the equivalent of placing an envelope in the mail, and FedEx was a great way to send birthday gifts, but an unacceptable way to send discovery requests. But a new day has dawned, and 2014 is upon us…

The theme for Texas courts in 2014 is “upgrading”—bringing the courts into the 21st century through judicial mandate. The rules go into effect January 1, and they will impact your practice immediately. So without further ado, let’s take a look at the new rules (the order adopting the amendments can be found here):

Three-Day Response Extension Only Applies to Mailed Documents

Under the new rules, the three-day extension for response deadlines under Rule 4 only applies to mailed documents. It does not apply to documents served by fax anymore. It also does not apply to documents sent by UPS, FedEx, or another commercial delivery service. So, for example, motions for summary judgment served by fax (before 5:00 p.m.) or FedEx can be sent 21 days before the hearing, instead of 24.

Service by Email and Commercial Delivery Service

New Rule 21a allows parties to serve documents by email and commercial delivery service (e.g., FedEx and UPS). Documents served by commercial delivery service are deemed served upon deposit with the delivery service. The Rule doesn’t say when service by email is complete.

Email Addresses in Signature Blocks

Under new Rules 21(f)(2) and 57, pleadings and documents that are electronically filed must contain the attorney’s email address.

Redaction of Home Addresses and Other Sensitive Data

Under new Rule 21c, a party cannot file a document without redacting any sensitive data, unless the sensitive data must be included by statute, court rule, or administrative regulation. “Sensitive data” includes driver’s license numbers, social security numbers, birth dates, and home addresses (among other things).

While these Rules seem straightforward, there are pitfalls awaiting unsuspecting litigators. For example, in 2013, you had 33 days to respond to discovery requests sent by fax. Now, in 2014, you have 30, and if you inadvertently calendar the old response deadline, you waive your objections or deem the admissions. Same for discovery received via FedEx. Very troublesome indeed…

But fortunately for you, you began your 2014 with a quick read of these revised rules, and now you won’t begin the New Year with deemed admissions because you miscalendared a deadline. Happy New Year from TexAppBlog!!

TRCP 270: A Post-Trial Evidentiary Mulligan

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In golf, a mulligan is a stroke that is replayed from the spot of the previous stroke without penalty, due to an errant shot made on the previous stroke. The result is, as the hole is played and scored, as if the first errant shot had never been made. Mulligans are disallowed entirely by the rules of golf and players who attempt it or agree to let it happen may be disqualified from sanctioned competitions.

Unlike the rules of golf, the Texas Rules of Civil Procedure allow for attorneys to introduce evidence that was not originally introduced at trial before a judgment is rendered—a post-trial evidentiary mulligan. Under Texas Rule of Civil Procedure 270, “[w]hen it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.” Tex. R. Civ. P. 270.

Such an evidentiary mulligan was at issue in the recent 14th Court of Appeals case, Harvest Life Foundation v. Harris County Appraisal Dist., 2013 WL 2456867 (Tex. App.—Hous. [14th Dist.] 2013). Harvest Life applied for exemptions for two tracts of property for tax years 2007–2009 and seven tracts for tax years 2008–2009 on the ground that the properties were used for charitable purposes. At the close of evidence, HCAD argued that Harvest Life failed to present evidence that any of the properties were certified as a halfway house by the pardons and paroles division of TDCJ—the exemption for which Harvest Life applied—and HCAD had presented a page from the TDCJ’s website showing Harvest Life was not one of seven certified halfway houses in Texas.

Due to a dispute over the scope of a pre-trial stipulation, and given the motion for directed verdict, the trial court re-opened the evidence to review Harvest Life’s applications, which had not been offered. Subsequently, HCAD filed supplemental exhibits, consisting of the complete applications for tax years 2007–2009, and additional briefing. In its responses, Harvest Life objected to the filing of supplemental evidence. On August 19, 2011, the trial court conducted another hearing and admitted the supplemental evidence. The Court ultimately ruled, based in large part on the supplemental evidence, that Harvest Life failed to qualify for an exemption for all but one tract of land.

This rule is certainly not new. In Texas Emp. Ins. Ass’n v. Elder, 282 S.W.2d 371, 375–76 (Tex. 1955), the Texas Supreme Court opined that evidence may be entered at any time before the Court of Appeals disposes of the appeal of the trial court judgment:

“It will be observed that at the time that motion was filed in the trial court the case had already been affirmed by the Court of Civil Appeals. The trial court did not err in refusing to consider that evidence, for it had lost jurisdiction of the case. While the rule does provide that the court may permit additional evidence to be offered ‘at any time,’ that language should not be construed to mean that new evidence should be considered by the trial court after a case has been affirmed by the Court of Civil Appeals.”

The rule is not an absolute guarantee that the trial court will allow additional evidence. The decision to reopen the evidence is within the sound discretion of the trial court. In re Hawk, 5 S.W.3d 874, 876–77 (Tex. App.—Houston [14th Dist.] 1999, no pet.). In deciding whether to exercise this discretion, the court may consider a number of factors, including (1) the diligence of a party in presenting its evidence, (2) whether reopening the evidence will cause undue delay, (3) whether reopening the evidence “will do an injustice,” and (4) whether the evidence to be introduced is decisive. Id. at 877. The trial court should exercise its discretion liberally “in the interest of permitting both sides to fully develop the case in the interest of justice.” Id.

Given the standard above, Rule 270 mulligans, like mulligans in golf, should be used rarely, if at all, and only when absolutely necessary to ensure a full and fair trial court proceeding. However, one should be aware of this underutilized and oft-forgotten rule, if only for those times when your first (evidentiary) shot finds the water, the trees, or the backyard of a home adjacent to the golf course.

TRCP 47: The Overlooked Rule That Can Ruin Your Discovery Plan

prohibitedMuch ado is being made about the recent changes to the Texas Rules of Civil Procedure, especially the new dismissal rule (TRCP 91a, for more information see https://texappblog.com/2013/05/07/trcp-91a-a-state-court-12b6/) and the expedited action rule (TRCP 169). But one often overlooked procedural rule implemented with the dismissal and expedited action rules has some attorneys wondering why their discovery is not being answered.

Texas Rule of Civil Procedure 47, entitled (innocuously enough) “Claims for Relief,” was revised as part of an implementation package to allow courts to triage cases into expedited and non-expedited actions:

Rule 47. Claims for Relief

An original pleading which sets forth a claim for relief, whether an original petition, counterclaim, cross-claim, or third-party claim, shall contain:

(a) a short statement of the cause of action sufficient to give fair notice of the claim involved;

(b) a statement that the damages sought are within the jurisdictional limits of the court;

(c) except in suits governed by the Family Code, a statement that the party seeks:

(1) only monetary relief of $100,000 or less, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; or

(2) monetary relief of $100,000 or less and non-monetary relief; or

(3) monetary relief over $100,000 but not more than $200,000; or

(4) monetary relief over $200,000 but not more than $1,000,000; or

(5) monetary relief over $1,000,000; and

(d) a demand for judgment for all the other relief to which the party deems himself entitled.

With the exception of subsection (c)—the procedural rule for implementing the expedited action rule—this should all sound very familiar to Texas practitioners. However, it is the text after the rule that carries the “bite”:

. . . A party that fails to comply with (c) may not conduct discovery until the party’s pleading is amended to comply.

You read that correctly. No discovery until your pleading (filed after March 1, 2013) is brought into compliance with the new rule. More than a few attorneys have been confounded in recent months by the objection “Discovery is not permitted at this time in accordance with the Texas Rules of Civil Procedure.” Thankfully, you will not be among them.

The full text of the rule can be found here: http://www.supreme.courts.state.tx.us/miscdocket/13/13902200.pdf