Law Practice


Texas Supreme Court Refuses to Apply a Counteraffidavit Death Penalty Trap

June 20th, 2021 By Erin Holmes

On May 7, 2021, the Texas Supreme Court issued an opinion in In re Allstate Indemnity Co., ruling that a party’s failure to comply with the requirements of Section 18.001 of the Texas Civil Practice and Remedies Code for counteraffidavits does NOT preclude the party from offering evidence or argument regarding the reasonableness and necessity of past medical expenses at trial. Following a motor vehicle collision, Plaintiff Alaniz filed suit seeking underinsured motorist benefits under her policy with Allstate.  She
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Doctors as Responsible Third Parties? Take two aspirin and check the CPRC.

April 18th, 2021 By Karla Huertas

So you want to designate a doctor as a Responsible Third Party? Can you do it? Yes. Texas Civil Practice and Remedies Code Section 33.003 allows a jury to consider the proportionate responsibility of all claimants, defendants, and responsible third parties for injuries asserted by a Plaintiff. A responsible third-party is defined as “any person who is alleged to have caused or contributed to causing in any way the harm for which recovery of damages sought, whether by negligent act
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Appellate Victory!

March 28th, 2021 By Catherine Hanna

Hats off to Eric Peabody and David Plaut for their recent win in the Amarillo Court of Appeals in Cause No. 07-20-00300-CV, Ferrer v. Almanza (March 16, 2021). The appeal involved a statute of limitations issue and a summary judgment order dismissing the plaintiff’s claims against a defendant in a motor vehicle accident case. The Amarillo Court held CPRC § 16.063 – which tolls the running of limitations for persons “absent” from the state – did not toll limitations as
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Chapter 18.001 Affidavits: More Flexible Than You Might Imagine!

November 1st, 2020 By Lauren Burgess

Section 18.001 et seq. of the Texas Civil Practice & Remedies Code was enacted to allow for a prima facie showing of the necessity and reasonableness of services by affidavit rather than expert testimony. This evidentiary procedural rule provided plaintiffs with the ability to streamline the necessary proof to establish the reasonableness and necessity of costs. See Gunn v. McCoy, 554 S.W.3d 645, 672 (Tex. 2018) (“Generally speaking, section 18.001 is ‘purely procedural, providing for the use of affidavits to
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Western District’s New Emergency COVID-19 Order Cancels Trials Through November 30th with One Big Exception

October 16th, 2020 By David L. Plaut

Chief Judge Orlando Garcia has issued a new emergency COVID-19 Order, dated October 14, 2020.  The new Order continues all civil and criminal trials through November 30, 2020.  Order at ¶1.  The Order indicates these trials are being continued, at least in part, because of a “reduced ability to obtain an adequate spectrum of jurors” and “due to reduced availability of attorneys and court staff to be present in the courtrooms” because of COVID-19 and “public health considerations.”  Id. at
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Plaut Spouts: Top Ten Tips and Tricks for Lawyers on Zoom!

August 16th, 2020 By David L. Plaut

I came up with this list the hard way and don’t think that’s because I’m a technophobe.  I’m not and won’t make any stupid myspace jokes here.  There are usually some problems with Zoom depositions, mediations, and hearings and most of that is user error.  Here are some things to think about before jumping on Zoom: Practice, practice, practice! If you haven’t used Zoom for a deposition, mediation, or hearing make sure you set up a practice session with someone
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Corporate Depositions and the Personal Knowledge Trap

May 25th, 2020 By Catherine Hanna

When entities are defendants in a lawsuit, the deposition process is not quite as easy as it would be for individual fact witnesses. Depositions of organizations are governed by Texas Rule of Civil Procedure 199.2(b)(1), which states that: If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must—a reasonable time before the deposition—designate one or more individuals to testify
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Requests for Admission: A “Gotcha” Game

April 5th, 2020 By Catherine Hanna

After taking on a case, reviewing a file, and drafting initial pleadings, it’s often easy to get a sense of what kind of questions to expect in written discovery. Sometimes, however, the questions can throw you for a loop. For example, requests for admissions can include sweeping accusations such as the following: “Admit that [Defendant] encourages its legal counsel to lay resolution of policy holder lawsuits, file frivolous motions, and impede ongoing efforts at discovery.” Or this one: “Admit that
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Plaut Spouts: Dealing with the Difficult Lawyer

January 20th, 2020 By David L. Plaut

One of the great pleasures of law practice is the camaraderie between lawyers and professionalism that exist despite the often high-stakes nature of litigation.  On the other hand, there’s nothing worse than having to deal with opposing counsel who is rude to you and your staff, belligerent in his demands, oblivious to the clear requirements of Texas law, and contentious as a matter of course.  Dealing with jokers of this sort is a skill that can be learned.  I’ve often
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You Can’t Always Get What You Want (if what you want is a declaratory judgment on non-liability)

June 16th, 2019 By Jeffrey C. Glass

In re Houston Specialty Insurance Co., 569 S.W.3d 138 (Tex. Jan. 25, 2019) is a mandamus case involving an insurer’s motion to dismiss a declaratory judgment action by a law firm seeking a declaration of non-liability for malpractice in representing the insurer and advising it did not owe a defense in an underlying suit.  The Texas Supreme Court ultimately held the Rule 91a motion was proper because the declaratory judgment action seeking non-liability was without merit. [Ed. Note – Rule
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