Drafting a Certificate of Conference Texas Family Law

Cordial Conversations

Conferring with opposing counsel for better motion practise.

by Mark Ritchie

The certificate of conference has been an established part of Texas motion do for some fourth dimension, but its potential for streamlining and promoting the informal resolution of disputes has withal to be fully realized. Many lawyers view the certificate as a mere pro forma requirement, 1 to exist addressed with minimum effort in the hours (or peradventure minutes) afterward their motions are drafted while they wait to hear back from the courtroom on the availability of hearing dates. This approach has fueled irritation on the office of trial court judges and litigators for decades,¹ but sustained criticism has done little to discourage the practice. Setting bated the waste material of time and resource on unnecessary motions and hearings, such deficient efforts to confer likewise mean these lawyers miss opportunities to craft the nigh persuasive arguments possible on behalf of their clients.

Background and Purpose
Certificates of briefing take long been a component of federal practice, starting out as a requirement for discovery motions that subsequently was expanded by each commune's local rules to apply to non-dispositive motions generally.² In 1999, the certificate of conference was added to state-court motion practice by Texas Rule of Civil Procedure 191.2, which requires that all discovery motions and requests for hearings include a certificate of briefing stating a "reasonable effort" was made to resolve the affair with opposing counsel before seeking the trial court'due south assistance. Local rules and court procedures in many parts of the state at present impose the requirement on motions generally, with specific carve-outs for summary judgments and other dispositive motions.³ Regardless of whether the certificate of conference is required under state 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 court intervention." See Union Carbide Corp. v. Martin, 349 S.W.3d 137, 146 (Tex. App.—Dallas 2011, no pet.) (analyzing the briefing requirement nether Tex. Civ. P. 191.2 and Dallas (Tex.) Civ. Dist. Ct. Loc. R. 2.07).^four

Practical Consequences for Evading the Intent of the Rules
Even though the purpose backside the certificate of conference requirement is abundantly clear, some lawyers yet communicate with opposing counsel in a manner that makes it less likely any meaningful dialogue volition have place.⁵ An overly ambitious, insulting, or openly hostile approach is fairly common among lawyers who wish to avoid appearing weak at all costs. These lawyers oftentimes treat the conference every bit a goose egg-sum game with no room for compromise, to exist "won" at all costs even when such a win comes at the expense of diminished credibility or damage to the customer's example in the long run.^six

At the opposite farthermost, some lawyers avoid engaging opposing counsel to the greatest extent possible, preferring to state their position, demands, and deadline for compliance in an all-or-cipher, "take it or leave it" style. This approach is typically motivated by concern that opposing counsel will abuse the conferral process by dragging out discussions indefinitely with no intent to e'er reach understanding.^vii Such "expiry by conferral" tactics are securely frustrating, and even the virtually professional lawyers may discover themselves tempted to cutting discussion short in the face of mounting evidence that no corporeality of dialogue will ever end in agreement. Fifty-fifty though the desire to put a stop to such tactics may be overwhelming, racing to the courthouse without beginning engaging in substantial discussion is rarely justifiable equally information technology presents an opportunity to shift the court'south attention away from the merits with (ofttimes indignant) protests that counsel failed to adequately confer.⁸

In the end, minimal or disingenuous attempts to confer are a poor strategic selection regardless of justification. Trial courts struggle to allocate time to legitimate disputes, so judges are rarely forgiving when no sustained effort to work things out is made before filing a motility.⁹ Often the courtroom will refuse to dominion on such a motion until after the parties brand a serious endeavour to resolve the matter among themselves,¹⁰ and there is practiced reason for the moving party to exist 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 court's time.¹¹

Guidelines for Conferring More Effectively
To avoid this sort of self-sabotage, a better arroyo is to confer with opposing counsel in a detailed and well-documented fashion that addresses each of the issues to be raised in your motion.¹² This investment of fourth dimension and endeavor on the forepart finish allows you to rapidly narrow downwardly the issues to those where in that location is 18-carat disagreement, in turn providing both the framework for your move and, perhaps more importantly, an effective road map of the arguments you lot can anticipate from opposing counsel.¹³ The systematic approach to word is a specially constructive method for dealing with evasive tactics, as it forces opposing counsel to either take a definitive position or come up beyond as deliberately slippery, thus sacrificing a mensurate of brownie in the eyes of the court. Investing the necessary time and effort to carefully document these discussions provides a clear and persuasive tape establishing your efforts to resolve the dispute amicably,¹⁴ thus making it all the more likely that the court will ultimately grant your requested relief.

The following guidelines for conferring effectively with opposing counsel have proven invaluable in my own do. While they require substantial time and effort on the front end, I notice that this arroyo streamlines the overall procedure of conferring:

(one) Confine your conference with opposing counsel to a single email chain, making it easier to rail the specific issues discussed. If there are multiple bug in play, consider breaking the give-and-take down into numbered paragraphs in your electronic mail to maintain a structured conversation that can be readily followed, both past counsel and the trial court. This makes it much easier to manage, as a series of separately threaded bug, while documenting the word in a way that promotes ease of reference. Separate threads arrive unproblematic to accost issues raised by opposing counsel while maintaining the overall construction 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 give-and-take to the matters you lot take listed in your initial email. Many lawyers volition throw in not-sequiturs and belligerent statements in an effort to muddied the waters of your word, usually shifting to a more professional tone just after they determine you will non be distracted by such tactics.

(3) If your preference is to speak over the phone, you should still ship a detailed bulletin outlining the issues and your position before making a phone telephone call. This helps focus the discussion chop-chop, and goes a long manner toward preventing early misunderstandings regarding the bug and the parties' corresponding positions. Encounter id. (stating that in the context of discovery motions, detailed correspondence keeps the parties organized and focused during subsequent discussion).

(iv) If the parties are unable to reach agreement, exist sure to adhere a copy of the entire e-mail concatenation to your motility, explicitly directing the court's attention to this exhibit both in your certificate of conference and early on in the motion itself. This will encourage the trial court to familiarize itself with the problems by referring to the dialogue between counsel and strongly discourages opposing counsel from misrepresenting the substance of your discussions. Including the unabridged chain of emails as well ensures that the court does not suspect omitted portions contain unflattering or inconsistent information.

(5) If you lot cease upwards conferring verbally at some signal, be sure to immediately summarize the discussion in a follow-up email. The longer you lot wait, the more the accuracy of your summation can (and likely will) be called into question. Delay in sending a summary email also makes information technology more probable that any progress you made in negotiations volition be lost.

These are, of grade, only guidelines for discussion, and the manner in which yous implement them should be flexible enough to take into account the complexity of the dispute and its importance to the overall case. Past making a diligent attempt to confer, regardless of the specific approach, you will accept a better gamble of resolving disputes informally, and you lot volition also be more likely to win if a formal motion proves necessary. In either case, putting more effort into conferring is the best strategic choice because it means y'all will fight fewer unnecessary battles, thus allowing you to achieve results for your clients with less wasted time and effort.^{xv TBJ}

Marking RITCHIE practices in Houston, where he focuses on complex motion practise, mediation, and civil appeals. He can be reached at marker@markritchielawfirm.com.

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Source: https://www.texasbar.com/AM/Template.cfm?Section=articles&Template=/CM/HTMLDisplay.cfm&ContentID=36141

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