what happens if you do not comply with a motion to compel texas

Cordial Conversations

Conferring with opposing counsel for better motion practice.

by Mark Ritchie

The document of conference has been an established role of Texas motion practice for some time, merely its potential for streamlining and promoting the informal resolution of disputes has yet to be fully realized. Many lawyers view the certificate as a mere pro forma requirement, 1 to be addressed with minimum endeavour in the hours (or perhaps minutes) afterward their motions are drafted while they await to hear dorsum from the court on the availability of hearing dates. This approach has fueled irritation on the part of trial court judges and litigators for decades,¹ but sustained criticism has done piddling to discourage the practice. Setting aside the waste of time and resources on unnecessary motions and hearings, such scarce efforts to confer as well mean these lawyers miss opportunities to craft the about persuasive arguments possible on behalf of their clients.

Groundwork and Purpose
Certificates of briefing take long been a component of federal do, starting out as a requirement for discovery motions that subsequently was expanded by each district's local rules to apply to non-dispositive motions generally.^two In 1999, the document of conference was added to state-courtroom motion exercise by Texas Rule of Ceremonious Process 191.2, which requires that all discovery motions and requests for hearings include a certificate of conference stating a "reasonable try" was made to resolve the matter with opposing counsel before seeking the trial court'south assistance. Local rules and courtroom procedures in many parts of the state now impose the requirement on motions more often than not, with specific carve-outs for summary judgments and other dispositive motions.³ Regardless of whether the certificate of conference is required under country or local rules, the fundamental purpose of the certificate "is to ensure that parties cooperate … and make reasonable efforts to resolve … disputes without the necessity of courtroom intervention." See Union Carbide Corp. 5. Martin, 349 South.W.3d 137, 146 (Tex. App.—Dallas 2011, no pet.) (analyzing the conference requirement under Tex. Civ. P. 191.ii and Dallas (Tex.) Civ. Dist. Ct. Loc. R. two.07).^four

Practical Consequences for Evading the Intent of the Rules
Fifty-fifty though the purpose behind the certificate of conference requirement is abundantly articulate, some lawyers all the same communicate with opposing counsel in a way that makes it less probable any meaningful dialogue will take place.⁵ An overly aggressive, insulting, or openly hostile approach is fairly common among lawyers who wish to avert actualization weak at all costs. These lawyers often care for the conference as a cipher-sum game with no room for compromise, to be "won" at all costs even when such a win comes at the expense of macerated credibility or damage to the client's case in the long run.^{half dozen}

At the opposite extreme, some lawyers avoid engaging opposing counsel to the greatest extent possible, preferring to country their position, demands, and borderline for compliance in an all-or-zippo, "take information technology or go out it" manner. This approach is typically motivated by concern that opposing counsel will abuse the conferral process past dragging out discussions indefinitely with no intent to e'er reach agreement.⁷ Such "death past conferral" tactics are securely frustrating, and even the most professional person lawyers may find themselves tempted to cut give-and-take brusque in the face of mounting evidence that no corporeality of dialogue will e'er end in agreement. Fifty-fifty though the want to put a terminate to such tactics may be overwhelming, racing to the courthouse without first engaging in substantial give-and-take is rarely justifiable as information technology presents an opportunity to shift the court's attention away from the merits with (often indignant) protests that counsel failed to adequately confer.^eight

In the end, minimal or disingenuous attempts to confer are a poor strategic choice regardless of justification. Trial courts struggle to allocate fourth dimension to legitimate disputes, and so judges are rarely forgiving when no sustained effort to piece of work things out is made before filing a motility.⁹ Oft the court will refuse to rule on such a motion until subsequently the parties make a serious try to resolve the affair among themselves,¹⁰ and there is good reason for the moving party to be pessimistic if no agreement is reached. The relief ultimately granted is likely to be shaped to some extent by counsel's lack of professionalism, disregard of the rules, and casual attitude toward wasting the courtroom'southward time.¹¹

Guidelines for Conferring More Effectively
To avert this sort of self-sabotage, a improve approach is to confer with opposing counsel in a detailed and well-documented manner that addresses each of the bug to be raised in your motion.¹² This investment of time and effort on the front end stop allows you to quickly narrow downward the issues to those where at that place is 18-carat disagreement, in turn providing both the framework for your motility and, perhaps more chiefly, an constructive road map of the arguments you can anticipate from opposing counsel.^xiii The systematic approach to word is a especially constructive method for dealing with evasive tactics, every bit information technology forces opposing counsel to either take a definitive position or come across as deliberately glace, thus sacrificing a measure of credibility in the eyes of the court. Investing the necessary time and effort to carefully document these discussions provides a clear and persuasive record establishing your efforts to resolve the dispute amicably,^xiv thus making it all the more likely that the court will ultimately grant your requested relief.

The post-obit guidelines for conferring effectively with opposing counsel have proven invaluable in my own practice. While they require substantial time and effort on the front, I observe that this arroyo streamlines the overall procedure of conferring:

(i) Confine your briefing with opposing counsel to a single email chain, making it easier to runway the specific bug discussed. If there are multiple issues in play, consider breaking the give-and-take down into numbered paragraphs in your email to maintain a structured conversation that can be readily followed, both by counsel and the trial court. This makes it much easier to manage, equally a series of separately threaded issues, while documenting the word in a way that promotes ease of reference. Separate threads arrive simple to address bug raised by opposing counsel while maintaining the overall structure of the conversation.

(2) Defuse opposing counsel's efforts to derail the conversation with unrelated discussions, irrelevant matters, and posturing by (politely) insisting that he or she confine the discussion to the matters you have listed in your initial email. Many lawyers will throw in not-sequiturs and argumentative statements in an effort to muddy the waters of your word, normally shifting to a more professional tone only after they make up one's mind you will not exist distracted past such tactics.

(3) If your preference is to speak over the phone, yous should nevertheless ship a detailed bulletin outlining the issues and your position before making a phone telephone call. This helps focus the word speedily, and goes a long style toward preventing early on misunderstandings regarding the problems and the parties' respective positions. Run across id. (stating that in the context of discovery motions, detailed correspondence keeps the parties organized and focused during subsequent discussion).

(4) If the parties are unable to reach understanding, be sure to adhere a re-create of the entire e-mail chain to your move, explicitly directing the court's attending to this showroom both in your certificate of conference and early on in the move itself. This volition encourage the trial court to familiarize itself with the issues by referring to the dialogue betwixt counsel and strongly discourages opposing counsel from misrepresenting the substance of your discussions. Including the entire chain of emails also ensures that the court does not suspect omitted portions contain unflattering or inconsistent data.

(five) If you end up conferring verbally at some point, exist sure to immediately summarize the discussion in a follow-up e-mail. The longer you lot wait, the more the accurateness of your summation can (and probable will) exist called into question. Delay in sending a summary electronic mail also makes it more likely that whatsoever progress you fabricated in negotiations will be lost.

These are, of course, only guidelines for discussion, and the manner in which you lot implement them should be flexible enough to accept into account the complexity of the dispute and its importance to the overall case. By making a diligent attempt to confer, regardless of the specific approach, you will have a ameliorate chance of resolving disputes informally, and yous will as well be more than likely to win if a formal motion proves necessary. In either case, putting more endeavour into conferring is the best strategic selection because it means you will fight fewer unnecessary battles, thus allowing you to achieve results for your clients with less wasted time and effort.^{xv TBJ}

MARK RITCHIE practices in Houston, where he focuses on circuitous motion practice, arbitration, and ceremonious appeals. He tin exist reached at mark@markritchielawfirm.com.

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