The Good, The Bad, and the Ugly

(this is updated for Michelle O’neil’s update to her materials Dec 29, 2020) See her updated blog here.

The Good may be that lawyers may just “ante-up” the info and cut the games involved in discovery. Frequently in a divorce mediation I have the parties in both rooms on their smart phones trying to get balances on bank accounts, 401-k’s, and mortgages. The Bad is that the rules mandate the lawyer doing some things pretty quickly that some cases really don’t need. Escape via Rule 11 agreements? And The Ugly is two-fold: (a) it’s coming soon and many lawyers still have not heard of the changes, and (b) the process is highly dependent on your client having the info and getting it to you. Apologies to Clint.

The purpose of this posting is to marshal some good resources that are already out there, and to highlight some of the immediately important points. While these changes apply to all cases, a few notes emphasize the application to family law cases.

Quick summary

• Effective Jan 1, 2021 for all cases filed thereafter.
• Request for Disclosures: GONE.
• Replaced by a Required Disclosure. Rule 192.1(a). Initial disclosure due 30 days after Answer.
• No other discovery until after the initial disclosures are due.
• Discovery Levels:
  • One must be plead. There is no discovery until one is plead. Rule 192.2
  • Level 1 applies to family law cases now, where there are no children and the marital estate is less than $250,000.
  • The discovery period begins when the initial disclosures are due.
• Timeline
  • File
  • Answer
  • Answer filed + 30 days = Beginning of discovery period
  • Beginning + 180 days = End of discovery period
  • Ending + 90 days = Trial deadline.
• Limits on other written discovery
• Limits on trial time
• Discovery Level 2 applies to case with children or estate over $250,000 and has different discovery limits
• Discovery Level 3 – no changes

Initial disclosure

This is the one to pay attention to because it’s first, it’s required in a hurry, and the lawyer will have to really prod the client to bring in the information. Due from both sides no later than 30 days after the Answer is filed. See Rule 194.2 for the requirements. This is going to be an especially problematical area for those practicing family law as your typical client may either not have the information or may not be able to put his/her hands on it quickly or, worst of all, may not be motivated to do some.

Note: unlike other discovery, your client cannot direct you not to furnish discoverable information. It is mandatory. Period.

Special content requirements exist for family law. See Rule 194.2(c). Basically, you have to cough up all the goodies 30 days after the Answer is filed.

Expert and pre-trial disclosures

See Rules 195 and 194.3 on Expert disclosures and Rule 194.4 on Pretrial disclosures.

Also see this blog on the Rule 194.4 requirement to FILE in addition to disclose. The trap for the unwary.

Bibliograpy

• O’NEIL WYSOCKI Family Law Firm outline (see her Final-summary-new … below)
• Michelle O’Neil’s Facebook online presentation
• Texas Supreme Court Order. Includes red-lined changes.
• A spreadsheet approach by Diane St. Yves on Facebook together with an explanatory document for the client. I am posting those materials here (she has graciously made them public) for wider dissemination. Links coming shortly.