It happens to family lawyers all the time.  A new client comes in to meet with us for an initial consultation and tells us that his or her spouse controlled all of the money and assets.  The new client is panicked, because he or she has no idea what the parties own, what the parties’ liabilities are, or even where the majority of the parties’ accounts are held.

In the normal case, most Texas family lawyers know what to do – we ask the opposing party to fill out a sworn inventory and appraisement of all of the parties’ assets and liabilities.  We serve written discovery requests and, if necessary, we subpoena financial institutions to obtain account statements.

But Texas is consistently one of the fastest growing states in the nation with approximately 140,000 new domestic migrants and 82,000 international migrants moving here each year.[1]  Obtaining financial records is relatively straightforward when you are serving a subpoena on the local bank that holds your client’s accounts, but what happens when you learn that assets are held abroad?  From bank and brokerage accounts to business entities, it is increasingly likely that the family law practitioner will need to obtain discovery internationally.  So what do we do when we learn there are assets held in Mexico or the United Kingdom and the opposing party says they do not have documents regarding those assets in their possession, custody, or control?French bulldog with magnifying glass

The United States and sixty other nations are signatories to the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, more commonly referred to as the Hague Evidence Convention.[2]  The Convention’s stated purpose is to “improve mutual judicial cooperation in civil or commercial matters”[3] and to “enlarge the devices for the taking of evidence.”[4]  The Convention sets forth a process for obtaining pre-trial discovery from contracting nations – litigants can:  1) request the US Court submit a Letter of Request to obtain evidence located in a contracting state; and 2) use US diplomatic or consular agents located in the contracting state to take depositions (but not obtain documents) in the contracting state.

In the family law context, litigants are most likely to use Letters of Request to secure the production or inspection of documents or to obtain access to real or personal property so the property can be inspected.  In short, a litigant will ask the Court in the US to submit a Letter of Request setting forth the nature of the pending proceeding and describing the evidence requested.  The Letter of Request will then be transmitted to the designated central authority of the contracting state, who will execute the request in accordance with the laws of the contracting state.

The Hague Evidence Convention is not perfect – many signatories to the Convention signed with reservations that limit the types of pre-trial discovery that may be conducted – practitioners should be sure to determine whether the country where evidence is located entered into the Convention with reservations.  Obtaining evidence under the Convention can also be time consuming, and litigants will want to explore all avenues for obtaining the evidence to determine whether it may be secured using the liberal discovery rules of the US judicial system.  However, the Convention provides Texas lawyers with an additional and important tool for conducting discovery in an increasingly international and diverse state.


[1] https://www.census.gov/library/stories/2017/08/texas-population-trends.html.

[2] https://www.hcch.net/en/instruments/conventions/full-text/?cid=82.

[3] https://www.hcch.net/en/instruments/conventions/full-text/?cid=82.

[4] Ph. W. Amram, Explanatory Report on the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters, https://assets.hcch.net/upload/expl20e.pdf.

In October, I wrote about How the Practice of Law is Like the NHL.  This article was about how rule changes in the practice of law, and changing skill sets in the NHL have made finesse and skill more important than brawling.  Recent experience has shown that this trend continues in law, and that Judges hate “gotcha games.”

Brett Myers and I recently sat through a trial docket call in County Court at Law No. 1 in Dallas County.  While waiting for our turn, we watched Judge Benson make two interesting rulings during a pre-trial hearing for the case ahead of us.

First, Judge Benson ruled that at trial, Defendant could not call as witnesses any of the twenty-three doctors it had recently disclosed.  Interestingly, Defendant’s attorney had added the doctors to Defendant’s disclosure responses forty-five days before trial, which is timely under the Texas Rules of Civil Procedure.  It did not come out during the hearing whether Defendant’s tardiness was a mistake or was intended as a “gotcha,” so as to not allow Plaintiff to conduct discovery on these witnesses.

Either way, the Judge sustained the Plaintiff’s objection to the witnesses, and held that this late disclosure caused unfair prejudice to Plaintiff.  In her commentary from the bench, Judge Benson said if there had been a timely supplementation of one or two witnesses, it would have been okay, but such a late disclosure of this amount of witnesses simply was not fair.

Second, in a turn of the tables, Judge Benson ruled against Plaintiff for similar reasons.  Defendant’s attorney had produced a video made by Defendant’s expert late according to the rules.  Although the video was produced late according to the technical letter of the law, it was produced eight months before trial.

Rather than taking any action to remedy the tardiness issue, Plaintiff’s attorney waited until a week before trial to object to the video – a clear attempt at a “gotcha.”  The Judge denied Plaintiff’s motion to exclude the video, and allowed Defendant’s expert to use the video.  Judge Benson stated that Plaintiff’s attorney had been in the possession of the video for so long that Plaintiff could not have been prejudiced, and that if Plaintiff felt it was prejudiced, it should have taken action during the intervening time period.

I think there are two lessons to be learned from this experience: 1) Supplement your discovery responses early and often; and 2) If you have a problem, take it up with the Court as soon as possible and do not sit back to try to wait on a “gotcha” ruling from the Court, because you may not get it.

My father recently sent me a N.Y. Times article describing how the game of professional hockey and the NHL have changed in the last twenty years.  According to veteran sports writer Dave Caldwell, the NHL has changed from a game that was equal parts speed and obstruction/fighting to a game that primarily is about speed and finesse.  Fighting and hard hits still have a role in the NHL, but according to the stats compiled by Caldwell, as well as the players interviewed, the roles of fighting and “enforcers” are greatly reduced in today’s game.

44532438 - ice hockey player on the ice, outdoors
Copyright: yuran-78 / 123RF Stock Photo

Being from Brooklyn, NY, and having spent the first twenty-seven years of my life in New York, New Jersey, Rhode Island, and Boston, I have always been a hockey fan.  I still love hard hits and checks.  When I go to a Dallas Stars game, part of me still yearns for the “good old days” of hockey when N.Y. Islanders goalie Billy Smith seemingly would slash a player just for skating by his crease.  But even I, as an old school hockey fan, am forced to admit that the truly great hockey players of years past, such as Wayne Gretzsky, and of today, such as Jamie Benn, are skill, speed, and finesse guys, not brawlers.

This got me thinking – can the same be said for the practice of law?  Practicing law is a second career for me, so I usually have to rely upon folks older than me (in lawyers years, but not necessarily in years on this planet) to hear about the “good old days” of law practice before the Texas Rules of Civil Procedure were changed in 1999.  According to a paper co-authored by Texas Supreme Court Chief Justice Nathan Hecht, the rule changes were enacted to simultaneously allow more pre-trial discovery and put limits on discovery, and virtually eliminate trial by ambush in the much same way as the NHL largely has eliminated fighting.

Aren’t the truly great lawyers of today also skill and finesse people, as opposed to brawlers?  I cringe when I hear lawyers talk about times when a case was overstaffed with a team of associates to flood the other side with motion after motion, discovery request after discovery request, and letter after letter, to attempt to beat the other side into submission (the 1999 rule changes also addressed this problem and the inequities it caused).

I believe that clients are better served today by having an experienced lawyer properly staff a case to represent her client’s best interests. I also believe that while we lawyers are ethically required to zealously represent our clients, we can do so in an efficient, nimble, and strategic manner.  And the practice of law is continuing to evolve in line with this trend, with the recent changes to the Federal Rules of Civil Procedure now requiring all discovery sought to be proportional to the needs of the case.

A lawyer can be both strong and respectful – in fact, in my opinion, respect is a sign of strength.  So, yes, in law, as in hockey, there still is a place for the occasional brawl.  However, these are the exceptions, not the rule.

Outside of my work as a litigator I train in Brazilian Jiu-Jitsu.

Fighting
Copyright: shaffandi / 123RF Stock Photo

I am a beginning white belt in jiu-jitsu, while I am entering my 17th year of practice as a lawyer.  But the parallels were immediately obvious to me when I started martial arts training.

At its most fundamental, jiu-jitsu is about positioning and leverage.  How can you improve your position and increase your leverage over your opponent?  How do you survive the attack from a bigger or stronger opponent, stay comfortable in the middle of the fight, and wait for your opportunity to improve your position and submit your opponent.

This principle informs my litigation strategy.

Recently I represented a partner in a business.  The partnership had soured and my client was accused of theft of hundreds of thousands of dollars’ worth of products and cash belonging to the partnership.  Like many small businesses, the records were less than impeccable.

My client, while absolutely innocent, was very nervous.  She was such an honest person that the mere accusation of theft made her feel guilty.  And, in feeling guilty, she looked guilty. On the other side we faced a professional litigant of sorts who had made a second career out of filing dozens of lawsuits. She had also always gotten her way in the relationship.

Our opponents’ strength lay in the disparity between the two key witnesses in what amounted to a she said/she said case.  My client, while innocent, appeared nervous and guilty. In contrast, our opponent had plenty of experience on the witness stand.

The business lacked good records and the Plaintiff and her lawyer were resistant to readily and fully providing information.  So, we built a record through discovery requests and written correspondence.

This resistance became the theme of our case. We set the traps, improved our position and waited for our opponent to give us our opportunity.

At the beginning of trial, we pushed a motion to exclude key evidence of Plaintiff’s claimed damages because of their failure to timely disclose information.

After a half-day evidentiary hearing the Court was poised to strike Plaintiff’s evidence because the Plaintiff and her attorney had repeatedly resisted legitimate discovery requests.

As the trial began, Plaintiff’s counsel realized the damages evidence would likely be struck by the Court.  We settled at the end of the first day of trial.  Plaintiff took nothing and agreed as a condition of the dismissal to put in writing that it had been a misunderstanding that had led her to file the lawsuit.

We had survived the stronger adversary’s attack, improved our position, and were ready for the opportunity we were given.

My client never took the stand.  And, in the end, we submitted our opponent.

The other day I was in a multiparty deposition, with 15 or so lawyers sitting around a long conference room table.  One lawyer was asking questions, and two or three lawyers were lodging the obligatory objections to questions that just did not sound right to the lawyers who were actually paying attention. Normally this scenario would not merit mentioning, let alone justify a blog post.  But at one point in the deposition during an exchange one lawyer boldly exclaimed “CERTIFY THE QUESTION!”  And that got me to thinking about what it means to “certify the question” in a deposition.  Do you have to “certify the question” to evoke the court’s ability to compel an answer to the question?  Or for that matter, what special steps must you take to ensure that the judge can rule on objections asserted during a deposition?

Since 1999, oral depositions have been covered in Rule 199 of the Texas Rules of Civil Procedure.  Rule 199.5(d) requires counsel to cooperate and be courteous to one another and to the witness.  It also encourages the witness to not be evasive, and prohibits private conferences between the witness and the witness’s attorney during the actual taking of the deposition.  That all seems straight-forward.

Rule 199.5(e) limits the objections to “Objection, form,” “Objection, leading,” and “Objection, nonresponsive.”  The first two objections are targeted at the questions, and the last objection is targeted at the answer.

Under Rule 199.5(f), an attorney can instruct a witness not to answer a question only when necessary to preserve a privilege, to comply with a court order or the Texas Rules of Civil Procedure, or to protect a witness from an abusive question or one for which any answer would be misleading.

If an attorney objects to a question or instructs a witness not to answer a question, the attorney must be prepared to “give a concise, nonargumentative, nonsuggestive explanation of the grounds for the objection or instruction if asked by the party who asked the question.

Rule 199.6 sets for the procedure for obtaining a ruling on any objections or instructions not to answer.  The party asking the question may, at any reasonable time, request a hearing on an objection or an instruction not to answer to preserve a privilege, and the party seeking to avoid the discovery must present evidence to support the objection or instruction through affidavits filed seven days before the hearing, or through live testimony at the hearing.

And in a nutshell, that’s all there is to the rules controlling depositions taken under the Texas Rules of Civil Procedure.  So where’s the “certify the question” language?  A long time ago there was a procedure for certifying questions during oral depositions, but that procedure has not been around for years.  Nowadays when an attorney blurts “certify the question” the attorney is showing his or her age.  Under the Texas Rules of Civil Procedure, there are no special words to say to empower the court to rule on objections or instructions not to answer.  As Rule 199.6 plainly states, all that is required is that the asking party request a hearing “at any reasonable time.”

So why do attorneys still “certify the question?”  The practical reason is to alert the court reporter to mark the question so that the party asking the question easily can find the particular part of the transcript that is at issue.  Theoretically an attorney could use any descriptive term or language so that the term is easily searchable once the transcript is available.  I have heard attorneys request the court report to mark the question, and the court reporter then notes in the table of contents that there is a question marked with the page number.  Whether you certify the question or mark the question, you just need a way to find the disputed question so that you can put the disputed question before the court in a hearing “at any reasonable time.”

So the next time you hear an attorney certify the question, you’ll know that certifying the question in an oral deposition is just a way of highlighting the transcript so that the attorney asking the questions can go back later and review the question and decide whether the attorney wants to move to compel the witness to answer the question.  And the next time you believe that you are entitled to an answer to a question that the witness will not answer, look straight at the court reporter and say “hakuna matata.”

Copyright: chagin / 123RF Stock Photo
Copyright: chagin / 123RF Stock Photo

Of all the methods of discovery permitted under the Texas Rules of Civil Procedure, Rule 194 Disclosures are often the most overlooked. Although this type of discovery is exchanged in virtually every civil matter, it is easy for attorneys to become formulaic in their approach to answering disclosure requests. Rule 194 provides parties with the framework for discoverable information under the Texas Rules.

Specifically, Rule 194.2(i) permits parties to request disclosure of “any witness statements described in Rule 192.3(h).” The Rules define witness statements as: “(1) a written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical, electrical, or other type of recording of a witness’s oral statement, or any substantially verbatim transcription of such a recording.” Tex. R. Civ. P. 192.3(h).

At first blush, this provision appears to encompass traditional written accounts of an event, such as incident reports, statements provided to a governmental agency, or recorded accounts taken pursuant to an internal investigation. However, it is important for attorneys to consider other forms of statements which may not fall under the purview of those traditionally provided in response to disclosure requests. After all, if a party wishes to introduce such a statement at trial, it must have been disclosed to the other parties pursuant to Rule 194. See Tex. R. Civ. P. 193.6 (stating that, as a general rule, “[a] party who fails to make, amend, or supplement, a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness . . . who was not timely identified.”).

With this in mind, and with the influx of the use of social media and other forms of new technology, it is imperative that parties disclose any posting to Facebook, Twitter, Instagram, or other statement given on the internet in which the person making the statement can be identified. Similarly, parties need to disclose quotes given to the media, whether such statements be in written or recorded form. Should a party wish to offer these accounts into evidence at trial, they must be included in the party’s responses to Requests for Disclosure.

The implications of this are two-fold. Not only must an attorney cast a wide net on what courts may consider to be “witness” statements under the Texas Rules of Civil Procedure, but there are also lessons to be learned when counseling your clients. Texas attorneys must be diligent in reminding their clients that any post to social media or any statement given to the media regarding the subject matter of a lawsuit may come into evidence at trial. We have seen myriad examples of the negative implications of posting to social media without considering the potential consequences of making such a statement. Beyond public embarrassment and negative implications from the person’s employer, a simple Facebook post or tweet could have significant bearing on the evidence admitted in a litigation matter should a lawsuit ensue.