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8 HEARING OF THE SUPREME COURT ADVISORY COMMITTEE 9 MAY 16, 1997 10 (MORNING SESSION) 11
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19 Taken before William F. Wolfe,
20 Certified Court Reporter and Notary Public in
21 Travis County for the State of Texas, on the
22 16th day of May, A.D. 1997, between the hours
23 8:45 o'clock p.m. and 5:30 o'clock p.m., at
24 the Texas Law Center, 1414 Colorado, Room 101,
25 Austin, Texas 78701.
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 MAY 16, 1997
MEMBERS PRESENT : MEMBERS ABSENT:
Charles L. Babcock Alejandro Acosta, Jr. Pamela Stanton Baron Prof. Alexandra Albright David J. Beck Hon. Ann T. Cochran Honorable Scott A. Brister Michael T. Gallagher Prof. Elaine A. Carlson Hon. Clarence A. Guittard Prof. William V. Dorsaneo III Michael A. Hatchell Sarah B. Duncan Charles F. Herring, Jr. Anne L. Gardner Tommy Jacks Donald M. Hunt Franklin Jones, Jr. Gilbert I. Low David E. Keltner John H. Marks Jr. Joseph Latting Anne McNamara Thomas S. Leatherbury Anthony J. Sadberry Hon. F. Scott McCown Luther H. Soules III Russell H. McMains Stephen D. Susman Robert E. Meadows Paula Sweeney Richard R. Orsinger Stephen Yelenosky Hon. David Peeples David L. Perry
EX OFFICIO blEMBERS : EX-OFFICIO MEMBERS ABSENT:
Honorable William Cornelius Hon. Nathan L. Hecht O.C. Hamilton Hon. Paul Womack Doris Lange Paul N. Gold Mark Sales David B. Jackson Bonnie Wolbrueck W. Kenneth Law Hon. Paul Heath Till
Doc #11894 44 MAY 16, 1997 MORNING SESSION
Rule Page(s)
TRCE 103(a)(2) 8060-8065
TRCE 106, 107 8031
TRCE 202, 204 8031-8032
TRCE 410 8032-8049
TRCE 504 8049-8050
TRCE 503 8019-8020
TRCE 509, 510 8020-8050
TRCE 513(d) 8050-8054
TRCE 702 8020-8027; 8059-8060
TRCE 705 8027-8031
TRCE 706 (Expert Appointed to Assist the 7992-8019 Court)
TRCE 802 8054-8059
TRCE 1009 8027
TRCP 5 (New Rule 6, Time) 8066-8067
TRCP 21, 21a, 21b (New Rule 10, Service 8067-8069 & Filing of Pleadings)
TRCP 38 (New Rule 27, Third Party Practice) 8069-8076
TRCP 76a 8105-8130
TRCP 171 8087-8089
TRCP 174 8089-8097
TRCP 237a, 239, 239a, 240, 241, 243, 244, 330) 8076-8087 (New Rule , Default Judgment)
TRCP , Motions in Limine 80.98-8105
Doc #11907 7991
1 INDEX OF VOTES
2
3 Votes taken by the Supreme Court Advisory Committee during this session are reflected on 4 the following pages:
5 8017 8031 (two votes) 6 8032 8049 7 8050 8054 8 8055 8059 9 8065 8067 10 8069 8075 (two votes) 11 8082 8087 12 8088 8096 13 8097 8105 14 8126
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ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306•1003 7992
1 (Meeting convened 8:45 a.m.)
2 CHAIRMAN SOULES: All right.
3 Thank you all for being here. Once again
4 we'll convene our Supreme Court Advisory
5 Committee meeting. We'll send a sign-up sheet
6 around.
7 Lee Parsley had asked me to bring
8 something to the attention of the Committee
9 early on for resolution here, and I think it's
10 something that Mark Sales-has been working
11 on. I don't want to get too far ahead of Mark
12 and Buddy. It is an evidence issue.
13 The Court had asked or apparently had
14 asked for some indication from the State Bar
15 Rules Committee and our Committee concerning
16 having the court appoint court experts or case
17 experts in addition to the experts selected by
18 the parties or maybe instead of experts
19 selected by the parties and what have you.
20 The State Bar Rules Committee responded
21 to the charge of the Court to write something
22 up that would get the job done, if necessary,
23 but unanimously opposes having such a rule.
24 And I think what Lee has suggested the Court
25 may want to know first is, does anybody feel
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 7993
1 we really need such a rule?
2 And Mark, I think I'm being fair to you
3 to say that you agree we don't even need to
4 look at the substance of this until we pass
5 the threshold of whether it's needed, right?
6 MR. SALES: I think that's
7 correct.
8 CHAIRMAN SOULES: You're not
9 going to be offended if we don't,noodle into
10 your work product, and the State Bar Rules
11 Committee won't be offended either, is that
12 right?
13 MR. SALES: Well, I think the
14 rule was -- the idea was to draft that rule
15 taking what Judge Brister had done and first
16 take it to them to see if there was any
17 support for it, which there was not, but in
18 that event, let's go forward and draft
19 something, and here is what the rule ought to
20 look like. And I think I put a copy up there
21 for folks to look at. But I would not -- you
22 know, obviously if there's no support, there's
23 no support.
24 CHAIRMAN SOULES: All right.
25 And Buddy, your committee recommends we have
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512I306•1003 7994
1 no such rule?
2 MR. LOW: No. But let me give
3 you a little history on it.
4 CHAIRMAN SOULES: Okay. Good.
5 MR. LOW: This Committee voted
6 against having a rule like the Federal 706
7 where they testify and so forth. So it was
8 suggested by Justice Hecht that we look at the
9 limited situation of appointing an expert in
10 duPont vs. Robinson type Daubert situations.
11 My committee met in Houston, and Judge
12 Brister helped us to draft such a rule. We
13 took 706 and modified it to that extent. My
14 committee really did not address the merits of
15 the rule, and we just drew a rule. So it is
16 appropriate to discuss whether or not we
17 should have a rule, and I would ask -- I think
18 Judge Brister was in favor of such a rule, and
19 maybe he has reasons and would like to state
20 why he favors the reason. And I think some of
21 the other judges have requested a rule. Judge
22 Brister?
23 CHAIRMAN SOULES: Judge
24 Brister.
25 HON. SCOTT A. BRISTER: The
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 7995
1 original impetus was the discussion -- I spent
2 a half day or a full day in the most recent
3 judicial conference in Houston, and there
4 seemed to be significant, if not great,
5 majority support among the judges to at least
6 have the option on the duPont vs. Robinson
7 hearing for the court to get the assistance of
8 somebody.
9 Now, I hope it doesn't come as a surprise
10 to you, to anybody here, that in situations
11 like that, judges sometimes call up doctors or
12 neighbors and ask them about these things even
13 now. This would allow a more formal procedure
14 and allow you to know what the judge talked to
15 somebody about before you just find out what
16 the judge's decision is. The problem is,
17 especially in the duPont situation, I'm
18 supposed to be determining what is and is not
19 mainstream science. And if I can't appoint an
20 expert, then I can tell you right now what
21 each side is going to say. The party
22 purporting the expert is going to say it is,
23 and the party against the expert is going to
24 say it ain't. And that is not going to help
25 me, because I know right now that's what
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306•7003 7996
1 they're going to say. You could say, "Well, I
2 could look at their CVs," and you know,
3 sometimes that will be helpful and sometimes
4 it won't. I could look at peer review, but
5 you know, if you want the test to be, it has
6 to be in a peer review journal or it ain't
7 science, that's fine. That's easy for me to
8 apply. But I don't think most lawyers are
9 going to want that.
10 And so then I've got to have something to
11 go on, and I've got to have something more
12 than the credibility, that credibility
13 assessment of the hired experts by either
14 sides, who I know in advance what they're
15 going to say, because you can hire experts
16 that are good for credibility reasons, for
17 acting like they're credible, whether they
18 are, just like you can hire one that's good on
19 the science.
20 So the idea was to draft a rule modeled
21 on the federal rule, but limit it to allowing
22 courts to appoint an expert only per this
23 issue, Robinson vs. duPont, and to protect
24 everybody -- as I understand the concern on
25 court appointed experts, it has always been
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 7997
1 what happens that's going to kill my case if
2 the judge hires an expert against me. And
3 everybody has got their horrible stories about
4 the parts of the state where, if they go to
5 there, the judges in that part of the state
6 are going to hire experts against them and
7 they're never going to be able to win because
8 the jury is going to support the court-
9 appointed expert. And we can take care of
10 that simply by -- we proposed in our draft
11 that nothing ever done, no opinion, or even
12 the fact that the court appointed an expert
13 for this Robinson hearing can ever come in
14 front of any jury, period.
15 So my feeling is, what's the harm of
16 making a formal procedure for me to do what a
17 lot of judges are going to do anyway? So I
18 would urge that we at least send the rule up
19 to the Court to consider.
20 MR. LOW: Mark, do you want to
21 address the down side that your people
22 discussed for such a rule?
23 MR. SALES: There were some
24 meeting minutes, which I didn't have time to
25 bring copies of all, of some of the concerns.
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 7998
1 MR. LOW: I have them.
2 MR. SALES: But the State Bar
3 Committee obviously wanted to do that to give
4 the Court at least a chance to look at a
5 proposed rule, which I did bring. It's up
6 there. But some of the concerns were that it
7 could be subject to an unwillingness of judges
8 to relegate their role. And instead of an
9 extraordinary rule, it becomes a rule that's
10 used in every case; that there's just
11 automatically going to be a court-appointed
12 expert. That was one concern that was
13 expressed.
14 Another was where are you going to find
15 these supposed independent unbiased experts.
16 How are you going to find them? Are there any
17 such experts out there? You know, how is the
18 court going to pay them was a pretty hotly
19 debated issue here. Is that something that,
20 since it's the court's role, is that going to
21 be taxed against the party or are you going to
22 take it out of public funds. Those kinds of
23 experts can be very expensive. How is it
24 going to be paid for? I think there was a
25 very great fear that what will happen is the
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1 expert won't just help with the reliability
2 issue, but will actually pass on the
3 credibility of the various parties' opinions,
4 and that will persuade the judge, rather than
5 focus on the underlying methodology, which is
6 at the heart of Robinson.
7 I think those are probably the primary
8 concerns. There were a lot of other ones, but
9 I think those are the ones I think that
10 persuaded most people that if there was going
11 to be a rule, it should be very extraordinary.
12 MR. LOW: Luke, I agree with
13 everything Judge Brister said. But some of
14 the criticisms I've heard in just talking to
15 different people about it is that it tends to
16 make more complications with regard to not
17 really the trial of the case. It just adds
18 another step in there, duPont vs. Robinson,
19 and then you have a hearing. And then are you
20 going to be able to attack whether or not
21 this court-appointed expert is qualified to
22 advise on that point? Does he have the
23 qualifications? And it adds more expense and
24 more time. Those are the criticisms I've
25 heard people give. Steve.
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8000
1 MR. SUSMAN: I agree. I mean,
2 I think that, number one, the federal system
3 has had Daubert for some time, and experts are
4 appointed in federal cases. I mean, there
5 fully is authority for the court to appoint an
6 expert. Apart from being the rule, there's no
7 such rule in the federal regime. And I am
8 fearful that what will happen is that the mere
9 existence of the rule will encourage it to be
10 overused in cases where the judge really
11 should have no problem. I mean, most of the
12 factors, eight or nine or 10 factors that the
13 Robinson/Daubert kind of lines of cases
14 identify, the judge can define readily. Has
15 the methodology been tested? Can it be
16 tested? Is it peer reviewed? Is it
17 published? Is it generally accepted, which is
18 nothing new. That's the Frye standard, which
19 has been applied for 70 years now. In all
20 these -- you know, can it be replicated? Was
21 it done solely for litigation, the
22 methodology? Was it solely for litigation, or
23 is it used apart from litigation? All of
24 these factors, you don't really need to be a
25 scientist to answer the question.
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8001
1 The one you probably need a scientist for
2 is is it generally accepted by the scientific
3 community. But that's been facing courts,
4 again, under Frye for 70 years. That's been
5 the standard that the gatekeeper is supposed
6 to use.
7 So I think the rule will become abused.
8 Judges will appoint -- they'll have their
9 favorite experts, their favorite doc or their
10 favorite metallurgist or something like that,
11 who will be foisted on the parties in every
12 case, and we'll have one of these Robinson
13 hearings all the time.
14 I'm opposed. I mean, I think this
15 rule -- I think the rule is fine as far as it
16 goes, although I will point out, as I read
17 this rule, it does not require that the
18 communications between the expert and the
19 judge be only on the record in open court. I
20 mean, so you could still have the expert
21 whispering into the judge's ear, which is the
22 same problem that Judge Brister said the rule
23 was designed to bring out into public. So if
24 you're going to have a rule like this, at
25 least prohibit the expert from communicating
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8002
1 with the court other than in open court and on
2 the record so everyone can hear the
3 communications to enforce the prohibitions on
4 what the expert is supposed to be telling the
5 judge.
6 So again, my vote would be this is fine
7 if you want to send something, but I would add
8 some paragraph on that. But I would say we
9 don't need it.
10 MR. LOW: We would have to
11 discuss it. If we did, we would have to
12 discuss the details, because we have not had a
13 chance to review Mark's committee's rule. And
14 one of the things, like on cross-examination,
15 that would be a highly debatable point,
16 whether you could cross-examination the
17 court's expert. There are a lot of things
18 that need to be worked out, I would agree.
19 Judge Brister did an excellent job of just
.20 taking a rule and drafting it and --
21 HON. SCOTT A. BRISTER: Well, I
22 .just took the -- we just took the federal rule
23 in our meeting and made it applicable just to
24 Robinson hearings.
25 MR. LOW: Right.
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8003
1 MR. SALES: I can tell you just
2 quickly a couple of points in our rule. I
3 don't know how far you want to go into it.
4 HON. SCOTT A. BRISTE-R: Did you
5 pass out a copy of our rule?
6 MR. LOW: Yes'. And they're on
7 the table. Everybody should have one.
8 MR. SALES: The rule that the
9 State Bar Committee came up with, obviously we
10 tried to point out that this was for use in
11 extraordinary circumstances. This was not
12 going to be every type of expert testimony.
13 The idea is it should be complex, scientific
14 testimony where you think there would be the
15 biggest debate, not your garage mechanic type
16 stuff .
17 MS. SWEENEY: Judge Brister, do
18 we have two of these rules floating around
19 here or just one?
20 HON. SCOTT A. BRISTER: You're
21 supposed to. The state bar one says "Proposed
22 New Rule" at the top. And then ours says
23 "Rule 706," with "Court Appointed" struck
24 out.
25 MR. SUSMAN: I haven't seen
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8004
1 your rule then. I've just seen yours. My
2 comments were directed at the state bar rule.
3 MR. LOW: And then with
4 reference to ours, we took it also and showed
5 706, the federal rule, and then showed how we
6 modified 706, and then we have a clean version
7 of it too. It should be in your package.
8 MR. SALES: The last thing I
9 was going to say is that a couple of things
10 that are different in ours than what Judge
11 Brister's is is that one of the points was
12 that the court ought to find that it really is
13 unable to make this decision without the
14 assistance of a court appointed expert;
15 secondly, that the role is extremely limited
16 to Rule 702 deciding the issue about
17 underlying methodology. And I think that's
18 consistent with what Judge Brister has done.
19 But the point that we added, a provision
20 that allows for cross-examination, which would
21 be paid by the party requesting it, to give
22 the parties an opportunity to look into, you
23 know, what the advisory expert's basis of his
24 report is and to provide a chance to respond
25 to that expert's report, which I think is
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8005
1 different than what is in Judge Brister's
2 report.
3 And I think the other big thing we had
4 that was different was the issue about
5 compensation. That was pretty hotly debated
6 in a fairly close vote. I think that the
7 committee decided that it ought not to be.
8 taxed against the parties; that it is to
9 assist the court in its decision, not the
10 parties; and that it would come from public
11 funds. I think that there was some support
12 for an argument that there ought to be some
13 discretion to allow the court to tax that, but
14 those were kind of the key points. And then
15 we also added a note and a comment to again
16 underlie that this was not to be used in every
17 case.
18 CHAIRMAN SOULES: John Marks.
19 MR. MARKS: You know, I sort of
20 support some kind of a rule that would enable
21 a court to get some technical assistance in
22 working out some of the complicated issues
23 that come up in these Daubert type motions.
24 And my thought, and I think the way Judge
25 Brister has worded the rule, is that it's
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1 absolutely solely for the court's use and the
2 court's help in making a determination on
3 complicated issues, not intending to sway one
4 way or the other the trial of the case. And I
5 don't see how this -- really the only problem
6 I would have is what Steve says: Will it be
7 abused? And that's the question. I don't
8 know that it really will, because it's kind of
9 an extraordinary thing.
10 In run-of-the-mill cases, judges are not
11 going to appoint experts to give them
12 assistance. But when they came up against a
13 really complicated thing involving some
14 complicated product or something like that,
15 they really probably do need the help. And
16 it's kind of a no-harm, no-foul thing. So I'm
17 sort of for it, because I'm for anything that
18 will, give the court the assistance in trying
19 to arrive at the right decision on some of
20 these evidentiary issues.
21 CHAIRMAN SOULES: Don Hunt.
22 MR. HUNT: I want to ask Judge
23 Brister about his use of these experts now
24 without a rule. You mentioned that you --
25 HON. SCOTT A. BRISTER: I
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1 didn't say I did.
2 MR. HUNT: You called it to our
3 attention.
4 HON. SCOTT A. BRISTER: To make
5 that clear, I said some judges might.
6 MR. HUNT: Some judges within
7 your acquaintanceship?
8 HON. SCOTT A. BRISTER: Sure.
9 MR. HUNT: Well, how do these
10 judges that you've heard about do this?
11 HON. SCOTT A. BRISTER: Well, I
12 don't think you're supposed to do it. But you
13 know, we live in the real world. You go to
14 lunch with a friend who is not involved in the
15 case, and you say, I've got this interesting
16 case, and here's the legal question. And you
17 kick around with a friend some interesting
18 legal question. Probably, you know, if that
19 person gives me an idea or a judge an idea,
20 you're probably not supposed to do that.
21 You're probably not supposed to disclose, you
22 know, all that kind of stuff. But that just
23 happens all the time.
24 And especially on -- this is not, you
25 know, I've got a case that's complicated and
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1 I'm just going to hire an extra expert. What
2 we really had the idea of in our rule was --
3 remember, this only comes up if one of you
4 guys files a Robinson motion. If nobody files
5 a Robinson motion, it's not involved in the
6 case.
7 And the idea is not to make it more
8 complicated with more depositions. If it
9 becomes something where the expert I appoint
10 has got to go through the deposition/
11 cross-examination/inquisition process, I'm not
12 going to be able to hire him. I'm interested
13 in the complicated case wh-ere -- you can do it
14 like they did in Oregon where I can call in as
15 a witness every -- the two sides on a breast
16 implant case and we can have a several-week
17 hearing on this deal. That's one way to do
18 it. But it's all going to be -- the only
19 people I can listen to are people hired by the
20 parties. Now, some members of the public,
21 indeed, some doctors and scientists say that
22 ain't a great way to get science. The best
23 way to get science is get somebody that's not
24 involved. And if we don't have this rule,
25 that is impossible. It's just not an option.
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1 It is impossible for me to hear from somebody
2 that's not on the payroll or one side or
3 other.
4 And what I want to do is very simple. In
5 Dallas, Houston, San Antonio, call up the
6 Baylor Medical School and ask the chairman of
7 the department to send me a letter, "Is this
8 good science or not?" And I get a letter, and
9 that's the end of it. Now, that will assist
10 me. How can that hurt me in trying to decide
11 the Robinson motion?
12 And I'll grant you, if you've got to
13 depose the person and la-de-dah down the
14 road -- but I just want a letter from the
15 chairman of the department at Baylor Medical
16 School with the promise that he ain't going to
17 be deposed and not going to be dragged into
18 this case, but what is the science on this
19 deal? Now, how does that harm anybody?
20 MR. HUNT: Well, if it occurs
21 in federal court, why can't the Texas judges
22 do it now?
23 HON. SCOTT A. BRISTER: They've
24 got a rule in federal court that the court can
25 appoint an expert, and they've had it for
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1 years.
2 MR. SUSMAN: Is this the rule?
3 HON. SCOTT A. BRISTER: This is
4 a rule -- the marked up -- I've taken the
5 federal rule and marked it up, so the unmarked
6 one without the structure, of course, is the
7 federal rule. And I point out, the feds have
8 always had this power. The feds are in
9 general much more activist and
10 interventionist, and they almost never appoint
11 experts. I do not think you're going to have
12 a problem. I mean, nobody can predict the
13 future. But with state judges, who generally
14 have a much more "hands off, you all fight it
15 out, this is your case" approach, I just don't
16 think that's going to happen, especially when
17 we can't even start it until somebody
18 challenges somebody else's expert on a
19 Robinson ground.
20 CHAIRMAN SOULES: The federal
21 rule is in the Mark Sales package. It's about
22 halfway through.
23 MR. LOW: It's in our package.
24 CHAIRMAN SOULES: And it's in
25 Buddy' s.
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1 MR. LOW: I've got a clean
2 version and then how Judge Brister and our
3 committee modified it.
4 CHAIRMAN SOULES: It says at
5 the top "Rule 706, Court Appointed Experts
6 Appointed to Assist the Court," and the words
7 "Court Appointed Experts" are stricken
8 through. It looks like a red-line.
9 HON. SCOTT A. BRISTER: Yeah.
10 It's a red-line.
11 CHAIRMAN SOULES: Right here.
12 What's been red-lined is what Judge Brister
13 did to modify the federal rule to limit its
14 application to a gatekeeper function.
15 MR. LOW: And then we have
16 attached also a copy of 706 to our package, so
17 it's there everywhere you can read it.
18 CHAIRMAN SOULES: Paula
19 Sweeney.
20 MS. SWEENEY: I have a couple
21 of concerns to register about it. I think
22 it's a very bad idea, and I think it's a very
23 bad idea for a couple of reasons. First of
24 all, I don't think most of the district judges
25 in this state have the resources to locate an
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 9250 CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 572/306-1003 8012
1 unbiased qualified expert that the parties
2 have not already located or identified. I
3 think it's going to be very difficult for
4 judges to do that. I think if you end up with
5 a process like Judge Brister described in any
6 given number of case where you just, quote,
7 unquote, call up the medical school and ask
8 for the chair of the department, you're
9 calling up people who have, in some instances
10 in the medical schools, by way of example, in
11 this state have stated positions against ever
12 even talking to plaintiffs, and that's a
13 systemic problem in the state of Texas. And
14 yet the knee-jerk reaction is "Well, we'll
15 just call up the medical school." You're
16 going to institutionalize a pro-industry bias
17 under that concept.
18 But more importantly, we've always had a
19 presumption that discovery as to experts ought
20 to be done and that cross-examination is the
21 best way to shine the light of truth on
22 testimony. But cross-examination to be
23 effective has to be, in an expert context,
24 based on preparation, and that implies
25 discovery. And if you bring in some expert,
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8013
1 you don't permit discovery, you have judges
2 who have limited resources in their ability to
3 find somebody who is truly qualified, because
4 it's very easy to find an expert who will tell
5 you he's qualified, and if you don't know any
6 better, you think that he is. And so you've
7 got a judge getting an expert to come in who
8 says he's qualify who may or may not be, who
9 may or may not be unbiased. But you're simply
10 now, instead of being on the payroll, quote,
11 unquote, of the parties, he's on the payroll
12 of the court, with the presumption of a lack
13 of bias, but no way to verify that
14 particularly through discovery and no way for
15 the parties to effectively protect their
16 clients.
17 So in addition to the other reasons that
18 have been stated with which I concur, I think
19 that this is a terrible rule for those
20 reasons. Thank you.
21 CHAIRMAN SOULES: David Beck.
22 MR. BECK: I've got a question,
23 and I just want to make sure I understand the
24 effect of this.
25 Judge Brister, if you've appointed
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8014
1 somebody out at Baylor College of Medicine who
2 renders the opinion that my expert's opinion
3 is junk science, then you're going to rely on
4 that and my expert is not going to be able to
5 testify. But when the case goes up on appeal,
6 there's really no basis to reverse the trial
7 judge, as I see it, because the only thing in
8 the record that really speaks to the issue is
9 the opinion you got from the outside party.
10 So as a practical matter, what we're doing is
11 we're giving the decision to somebody out at
12 Baylor College of Medicine, to use your
13 example. Am I wrong about that?
14 HON. SCOTT A. BRISTER: Yes.
15 You wouldn't do away with Robinson hearings.
16 MR. BECK: No, I understand
17 that you have the hearing. But if you've gone
18 to the point of appointing an expert, what
19 that means to me is that you are troubled by
20 what you have heard or are hearing and you
21 need some guidance. You then rely on the
22 third party for this guidance. You follow the
23 guidance. You rule that my expert can't
24 testify. The case goes up on appeal. I
25 challenge that. There's no way I can set that
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8015
1 aside, the way I read this rule.
2 HON. SCOTT A. BRISTER: The
3 problem is, you know --
4 MR. BECK: And I'm not saying
5 that's wrong.
6 HON. SCOTT A. BRISTER: And I
7 don't want to get into -- I don't care about
8 plaintiff's/defendant's issues, but.you know,
9 we -- without naming names, we look silly when
10 we're saying the New England Journal has been
11 bought off and they're just giving these
12 opinions because somebody has paid them
13 money. Now, we're used to saying that because
14 we're just lawyers, and we make all kinds of
15 defamatory statements in court because we're
16 hired to do that. But from a grown-up
17 educated person's perspective, that's
18 outrageous.
19 And if the head of Baylor Medical School
20 says, "This is junk. Your expert is junk,
21 David," and you've got some other medical
22 school people with credentials that say
23 otherwise, that's fine. But if you don't, you
24 know, the problem that Robinson is aimed at is
25 courts buying and swallowing whole and juries
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1 stuff that everybody and all the big medical
2 schools know is junk. That's the problem.
3 And you're certainly not going to bring
4 anybody from a medical school if they're not
5 going to support you. And if the other side
6 doesn't either for whatever reason, we are
7 forced to swallow whole stuff. I don't care
8 that it hurts the plaintiffs. I don't care
9 whether it hurts defendants. It hurts
10 justice. It hurts the system. I'll go on my
11 soapbox again. They're leaving by droves.
12 That's why we don't do commercial litigation
13 anymore, because everybody puts arbitration
14 clauses in their contracts. We're going to be
15 left with a great system and no cases before
16 long. They think we're nuts. What is the
17 problem with getting somebody qualified that
18 everybody in town knows is qualified and
19 asking them what they think?
20 CHAIRMAN SOULES:
21 arbitrator.
22 HON. SCOTT A. BRISTER: I'm not
23 giving them any -- I'm adding something to the
24 record. I'm not taking anything, anybody's
25 rights away. I'm adding an opinion. I'm
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 5721306•1003 8017
1 adding one opinion that you all won't hire,
2 but somebody that I respect. How is that a
3 harm? How does that hurt truth to add
4 something?
5 CHAIRMAN SOULES: Anybody
6 else? Okay. Those who feel we should have a
7 rule similar to the suggestion, suggested
8 Rule 706, that would be limited to the expert
9 witness gatekeeping function of the court show
10 by hands.
11 MR. SALES: You're talking
12 about limited -- the kind of rule we're
13 talking about, not just up or down?
14 CHAIRMAN SOULES: What?
15 MR. SALES: I didn't understand
16 what we were voting on.
17 CHAIRMAN SOULES: Limited to
18 the gatekeeping function of the trial court.
19 MR. SUSMAN: Just in concept.
20 CHAIRMAN SOULES: The concept,
21 right. 10.
22 Those opposed? One. Ten to one in favor
23 of having a rule. Okay.
24 Then Mark, will you and Buddy -- and who
25 else would like to work on the rule? Paula,
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8018
1 would you like to be involved in looking at
2 the rule? I know you voted against it.
3 MS. SWEENEY: Yes, sir.
4 CHAIRMAN SOULES: I think it
5 may be important for you to be involved in the
6 textual aspects of it. Anyone else? John
7 Marks. And I'll assign Paul Gold. He's not
8 here, but he'll be working with you. So it
9 will be your committee, Buddy, and those
10 people, all the people on your committee, and
11 any of those people that are not on it will be
12 specially assigned, Paula, Paul Gold and John
13 Marks.
14 MR. LOW: Well, John is on
15 mine.
16 CHAIRMAN SOULES: He's on yours
17 already?
18 MR. LOW: Yeah.
19 CHAIRMAN SOULES: Okay.
20 MR. LOW: And Judge Brister.
21 CHAIRMAN SOULES: And of
22 course, Judge Brister.
23 Okay. Buddy, what's next on your
24 Evidence Subcommittee agenda? We'll get that
25 out of the way early on.
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8019
1 MR. LOW: Okay. I'll give the
2 report, I guess everybody has seen it, and I
3 do it just to bring us up to date on the
4 action that we took last time. They were on
5 three rules or four rules, and I don't think
6 there needs to be any comment on that. I just
7 put it in the record so we have in the record
8 the action that we did take.
9 The first on the agenda is what we just
10 discussed, that's the 706. Next was -- you
11 asked me to update on some of these things,
12 and we've already reported on them, like
13 Ramirez asked for a rule limiting compensation
14 to be paid to expert witnesses. The full
15 Committee voted unanimously against that, so
16 that's been taken care of.
17 Next is Robert Martin recommending a rule
18 following Federal Rule 706, and I don't
19 remember if his recommendation was just for
20 duPont vs. Robinson or what, but we've voted
21 against a general rule, and now we've voted to
22 have a duPont vs. Robinson rule for that.
23 National Tank is the next thing, 503.
24 The Committee voted to make no change, and at
25 the March 7, 1997 meeting it was again voted
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8020
1 to make no change. That was on the National
2 Tank.
3 509. The physician-to-patient privilege
4 to dentists. On November the 15th of '96 we
5 voted to make no change to that.
6 702. That's the duPont vs. Robinson. We
7 voted to take no action because it's being
8 studied by the Family Law Council as well as
9 the State Bar Evidence Committee. The State
10 Bar Evidence Committee has now written a
11 rule -- actually, it's not to change the rule,
12 but it's to make a note.
13 MR. SALES: Add a comment.
14 MR. LOW: A note, as I
15 understand it, isn't it, Mark?
16 MR. SALES: It's very similar
17 to what you had drafted last year, I think.
18 MR. LOW: Right. And we're
19 waiting on Richard, so that's what we've voted
20 to do, wait on him. And I don't know where
21 his committee is on this.
22 CHAIRMAN SOULES: Did you
23 notify the Family Law Council that we're going
24 to take this up or down at the next meeting?
25 MR. LOW: No. I expected to
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306•1003 8021
1 hear from Richard.
2 CHAIRMAN SOULES: Well, he's
3 not going to be here at all today.
4 MR. LOW: So if you desire, we
5 can take this back and study with Mark the
6 difference in our rules and prepare one. Now,
7 when we do, then we're going to need to have,
8 I think, some procedural rule or safeguard
9 about -- and we'll draft it. My committee has
10 drafted such a rule without -- I mean,
11 everybody was approving of it. It was just
12 drafted, and there may be some pros and cons
13 on that. So if we do that, I think we need to
14 work on a procedural rule. So I can put that
15 as work, and perhaps we can do that. The
16 people who you named today, it might be well
17 to have them serve on that committee when my
18 subcommittee meets to discuss that.
19 CHAIRMAN SOULES: Buddy, I
20 guess I've somehow lost the issue here that
21 Gallagher has raised. It's not the same as
22 the gatekeeper expert issue that we talked
23 about this morning?
24 MR. LOW: No. His that
25 Gallagher raises clearly -- he complains
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8022
1 through the whole thing, but what he's
2 complaining of mostly is that he gets a stack
3 of papers every time, and duPont vs. Robinson
4 hearings are becoming too complicated, and
5 that's what goes to the procedure that I'm
6 talking.about.
7 CHAIRMAN SOULES: Oh, yeah. I
8 see what you mean.
9 MR. LOW: So that's why I say
10 that if there is a rule but it's changed so
11 that we try to follow or draw our rule
12 consistent with duPont vs. Robinson and
13 another reason, there's another case before
14 the Court right now that could add some
15 different dimensions to such a rule. What's
16 the one John Hill argued for the defendant,
17 the Merrill Dow case, isn't that the -- out of
18 Corpus? . I think Hilliard argued for the
19 plaintiff. That still has not been decided,
20 and that's another reason, before we draw a
21 rule, it might be well to see what the Court
22 says, if they say anything different from
23 duPont vs. Robinson. So I think it may be
24 wise not just to wait on Richard but to wait
25 on the Court and see what they say there in
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1 that case, unless the Court wants us to
2 proceed based on duPont vs. Robinson. I don't
3 think the Court is going to reverse it, but
4 they may have some language, some guidelines
5 that may be different.
6 CHAIRMAN SOULES: Is the State
7 Bar Rules Committee working on this, Mark?
8 MR. SALES: Luke, we have
9 met. We've already -- in fact it should be -
10 I sent you on copy of it, our proposed rule,
11 which was to address the Robinson issue, but
12 also to address, I think, the concern of
13 Justice Gonzalez in that surpressed memory
14 case. I
15 CHAIRMAN SOULES: Social
16 science?
17 MR. SALES: The social science
18 issue. Our proposed comment tried to take
19 both of those, and it was, I think, a
20 unanimous vote, and it's been submitted to
21 this committee. And Buddy has a copy of that,
22 I think.
23 MR. LOW: Right. And the rule
24 doesn't change. It's just in a note.
25 MR. SALES: It's in a note. We
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1 voted not. to actually go in and tinker with
2 the rule itself, but to give some assistance
3 through a comment.
4 CHAIRMAN SOULES: Is that in
5 these papers?
6 MR. SALES: It was sent to you
7 on April 24. I mean, I have one extra copy
8 here.
9 CHAIRMAN SOULES: Let's see
10 what it looks like.
11 MR. SALES: Here it is right
12 here. Maybe you want to take a break and
13 circulate it.
14 CHAIRMAN SOULES: I'll tell you
15 what, we'll mail this out for everybody to
16 soak on before the next meeting. It looks
17 like it's --
18 MR. SALES: It's a substantial
19 work product. Dean Sutton did the underlying
20 memos and brief.
21 CHAIRMAN SOULES: I don't think
22 it's anything we can absorb and work on today
23 effectively. Okay.
24 MR. LOW: And my committee has
25 done only -- I think we drew something first,
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8025
1 and they -- Mark's committee then took that to
2 work on. Ours was just a starting point. It
3 wasn't something that John and I discussed,
4 and I mean, it's something we just put
5 together without discussing all the merits
6 because there were other things pending. But
7 again, my committee is ready to act if and
8 when you feel we should, but the Havenor case
9 is still pending.
10 CHAIRMAN SOULES: Let's just
11 carry this to July and put it on the agenda
12 for your report in July. Maybe we'll have the
13 Havenor decision, and hopefully Richard will
14 have given you his input.
15 MR. LOW: If I get that and I
16 don't get something from Richard, I'll go
17 ahead. But personally it's going to be pretty
18 difficult to draft something that says for
19 this type of expert and that type, and then
20 you're going to wonder where you put them in,
21 so I don't know.
22 MR. SALES: Our focus was to
23 simply make it clear that not all the factors
24 will apply in every situation, and it just
25 depends on what the nature of the expert
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8026
1 testimony is. Some factors may weigh less and
2 some more.
3 MR. LOW: I understand in
4 duPont vs. Robinson whether it's capable of
5 being tested. But I don't know that I'd be
6 able to draft something that would meet what
7 apparently Justice Gonzalez wanted in his
8 concurring opinion anyway.
9 All right. The next thing is -
10 CHAIRMAN SOULES: I see you've
11 got a Law Review article or something on junk
12 science and family law from Justice McClure.
13 MR. LOW: Luke, I've got a
14 stack of Law Review articles. I've got that
15 much stuff. It's really more than my mental
16 capabilities are absorbing, so I just had to
17 simplify.
18 CHAIRMAN SOULES: Okay. Well,
19 I d.on't know. It's a huge challenge for this
20 Committee, if the threshold of an emerging
21 body of law is junk science and social science
22 behavior, to try to articulate it in a Rule of
23 Evidence or a Rule of Procedure for the future
24 when this is just emerging, but we can take a
25 shot at it.
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1 MR. LOW: We did it early on,
2 didn't we, John? We did it right after and
3 sent it to Mark's committee and so forth. We
4 took a shot, and it was no more than that.
5 CHAIRMAN SOULES: Yeah.
6 MR. LOW: In a procedural step
7 about how many days you have to object and
8 stuff like that. In fact, I got Hadley Edgar,
9 I got Hadley to help me with it.
10 CHAIRMAN SOULES: Well, let's
11 table it and bring it up next time to work on
12 it.
13 MR. LOW: Okay. Let's see,
14 where were we? Mike Gallagher. Okay.
15 Richard Orsinger. That's the same thing.
16 702. We talked about that.
17 1009. A rule was approved on November
18 the 15th, and I've attached a copy of it to
19 show what the rule was.
20 706. The same thing that we discussed.
21 705. Where we attached -- you will see
22 the version. It allows balancing by the trial
23 judge and more constructive than either the
24 federal or existing civil rule. And turn to
25 705, if you will, and see what we did.
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306•1003 8028
1 MR. SALES: Luke, the 705 issue
2 I think at the last meeting was the issue
3 about using expert witnesses as a conduit to
4 get in otherwise inadmissible evidence. And
5 if I remember 705, the civil rule, there's a
6 difference between the civil and the criminal
7 rule. The civil rule has! I think, two
8 paragraphs that are pretty bland. The
9 criminal rule has two additional paragraphs
10 that deal with, I think, voir dire and with a
11 balancing test to exclude the underlying
12 evidence if it's not going to help explain.
13 And our committee has already voted to
14 basically adopt the criminal rule, and as part
15 of the Unified Rules we would merge the two.
16 MR. LOW: And that's what
17 mine --
18 MR. SALES: I believe there was
19 one additional item from our committee. There
20 was some concern by the plaintiffs bar that
21 one paragraph seems to add some additional
22 element of Robinson, and I think our committee
23 suggested that we just insert in there, I
24 believe, that what that rule is talking about
25 is dealing with 702 and the reliability issue
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 9256 CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306•1003 8029
1 of 702.
2 MR. LOW: See, what we put in
3 there is it does not preclude a party
4 conducting voir dire examination and
5 qualification of experts and so forth and does
6 not preclude application of 403. So see, the
7 rule that we drew has the same concerns yours
8 did, and we adopted the criminal rule, and
9 that was by unanimous vote of my subcommittee.
10 It added to the civil rule, if you want -- if
11 you will look, I have copied the 705 criminal
12 and I have copied the 705 civil, and you can
13 see the first two paragraphs are no
14 different. So criminal just has kind of this
15 balancing test, and we saw no reason not to
16 have the same thing. It seemed to be better
17 to your committee.
18 MR. SALES: Yes, we agreed with
19 that as well.
20 MR. LOW: I can give everybody
21 a chance to see the differences, if they
22 want. It's attached. I have both rules.
23 CHAIRMAN SOULES: Have we voted
24 on this in our big Committee?
25 MR. LOW: No.
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1 CHAIRMAN SOULES: Okay. Any --
2 what this does is it gives some protection to,
3 for example, the reliance by an expert on
4 inadmissible hearsay, and then using the
5 expert as a vehicle to get the inadmissible
6 hearsay to the jury. This gives you an
7 opportunity to challenge that, and for the
8 court to hear it and weigh maybe if that's
9 what's going on, as an example. I mean, t'here
10 could be a lot of other uses. And the
11 criminal rule, the rule of criminal evidence
12 has more safeguards in that respect than the
13 rule of civil evidence.
14 MR. LOW: Right. And even than
15 the federal. The federal rule is pretty
16 broad. It just says the expert may in any
17 event be required to disclose the underlying
18 facts or data on cross-examination.
19 CHAIRMAN SOULES: Does your
20 proposed 705 change the rule of criminal
21 evidence?
22 MR. LOW: No. It changes the
23 civil to the criminal.
24 CHAIRMAN SOULES: To the
25 criminal. Okay. Is there any opposition to
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1
2 MR. SALES: It's just unifying
3
4 CHAIRMAN SOULES: Unifying the
5
6 Is there any opposition to this? No
7 opposition to it. Okay. It's deemed passed
8 by unanimous consent.
9 MR. LOW: Then next is 106 and
10 107. There's really no change there
11 because -- except 106 refers to the Texas Code
12 of Criminal Procedure, and it should be
13 changed to -- that should refer to that in
14 Rule 107. It's just a housekeeping matter.
15 CHAIRMAN SOULES: Okay. Any
16 opposition? That's unanimously approved.
17 MR. LOW: All right. 202 and
18 204. And that was referred by the State Bar
19 Evidence Committee -
20 HON. SCOTT A. BRISTER: Buddy,
21 we can't hear you.
22 MR. LOW: Oh, I'm sorry. I'm
23 just going down. Do you have the agenda?
24 HON. SCOTT A. BRISTER: Yes.
25 MR. LOW: Okay. 202 and 204,
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8032
1 referred by the State Bar Evidence Committee,
2 provide for mandatory judicial notice upon
3 motion of the party if the other requirements
4 are met. And that's consistent with regard to
5 judicial notice, that we're just going that
6 way. And you can see that was also -- that
7 was what your committee recommended too,
8 wasn't it, Mark?
9 MR. SALES: Yes.
10 MR. LOW: And you'll see
11 what -- there's really no major change. Just
12 instead of saying "may," if a party moves for
13 it, then they're required to make judicial
14 no ti ce.
15 CHAIRMAN SOULES: And that's
16 consistent with the Government Code?
17 MR. LOW: Yes.
18 C HAIR MAN SOULES : A ny
19 opposition to that? It's unanimously
20 approved.
21 MR. LOW: Okay. The next one
22 is 410. This is really to clarify. The rule
23 has not changed. But the last sentence should
24 be a separate paragraph to show that it ties
25 in to the whole rule, as distinguished from
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1 just that last paragraph.
2 Wasn't that your committee's view also,
3 Mark?
4 MR. SALES: I believe that's
5 correct. You've got it in your footnote here,
6 what we said. That's Note 7.
7 MR. LOW: There's no change to
8 it.
9 CHAIRMAN SOULES: We're on 410,
10 right?
11 MR. LOW: Right. And on 410,
12 you'll see there's really no --
13 CHAIRMAN SOULES: Let's see,
14 we're on judicial notice?
15 MR. LOW: No. We're past
16 judicial notice.
17 CHAIRMAN SOULES: 410 is --
18 okay. Explain it to me one more time. I'm
19 sorry, I wasn't following.
20 MR. LOW: All right. Look at
21 410. You will see the rule. I've got it the
22 way we proposed where it starts out "However,"
23 a new paragraph. All right. Look at the rule
24 itself. It does not do that. It says -- and
25 the reason for this, you'll see it's circled,
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1 that last -- on the rule itself, it's right in
2 the middle of the body. That last
3 paragraph -- that last sentence is supposed to
4 not modify only section (4), but it is
5 supposed to relate to the whole rule. And so
6 it was suggested that it be a separate
7 paragraph, not a numbered paragraph:
8 "However, such a statement is admissible in
9 any proceeding wherein another statement made
10 in the course of the same plea or plea
11 discussions has been introduced and the
12 statement ought in fairness be considered
13 contemporaneously with it."
14 If they're talking about -- that was
15 intended to apply -- and Lee, didn't they
16 study the history, and at one time there was a
17 paragraph or something. But in some way, when
18 it got recodified, they put it in and ran it
19 into (4), which makes it look as if it applies
20 only to (4).
21 MR. PARSLEY: Mr. Chairman, can
22 I speak to that just briefly?
23 CHAIRMAN SOULES: Sure.
24 MR. PARSLEY: Mark Sales
25 probably doesn't remember this because he was
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1 rained out at his committee meeting. But I
2 attended his committee meeting. Their
3 recommendation is actually that hanging
4 paragraph starting with "However." It's a
5 hanging paragraph in the civil rule. Under
6 410(4) it's a separate paragraph in the civil
7 rule. In the criminal rule, under 410(3),
8 which is the same provision, it is part of the
9 final paragraph. And in the federal rule it
10 is part of the final paragraph.
11 The Mark Sales committee recommendation
12 is that it should be part of the final
13 paragraph, not a separate paragraph; that
14 their study of the history of the rule is that
15 it should be part of the final paragraph, not
16 a separate paragraph; that our civil rule is
17 wrong. That's what his committee did. I'm
18 not telling the Committee what to do, but
19 that's you all's recommendation.
20 MR. SALES: That's correct. I
21 think Buddy has it -- our committee's feeling
22 was and our committee voted that it was just a
23 mistake in the drafting, but the "however"
24 statement was only supposed to apply to
25 paragraph (4) and not refer back to the first
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1 three.
2 MR. LOW: I'm sorry, I misread
3 your subcommittee report now. I thought it
4 made that recommendation.
5 MR. SALES: Well, the
6 subcommittee's report was adopted unanimously,
7 and I believe it was that it was not intended
8 to apply to paragraphs (1), (2) and (3).
9 CHAIRMAN SOULES: What's the
10 difference? Why should it apply only to one
11 of them?
12 MR. SALES: In the packet I
13 handed you, Luke, I think the actual
14 subcommittee report is in that.
15 CHAIRMAN SOULES: A plea of
16 guilty that's withdrawn; a plea of nolo
17 contendere which is withdrawn.
18 MR. LOW: It's (c) in the
19 subcommittee report.
20 MR. SALES: I'm kind of lost,
21 because you've got -- okay. Then Buddy is
22 correct.
23 MR. PARSLEY: Okay. Buddy is
24 right. The mistake was that the criminal rule
25 had it included in the last paragraph, and it
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8037
1 should not. So what we're suggesting is to
2 change the criminal rule to conform to the
3 civil rule and the federal rule, and that's
4 merely a drafting error.
5 MR. LOW: I think we've
6 attached it. I certainly could be mistaken,
7 though, I'm not going to argue that point, but
8 I'm glad to find that one time I was right.
9 MR. PARSLEY: That's right, I'm
10 sorry. That's right.
11 MR. LOW: And I can't give you
12 all the reasons recommended by their
13 committee. My committee took a look at it,
14 and it looked reasonable when I read it right
15 now.
16 MR. SALES: Professor Wellborn
17 was the one, I think, who chaired that
18 subcommittee, and that was his recommendation.
19 MR. LOW: And so we drafted --
20 what I did is just draft one that we've
21 attached to here where we did just that.
22 Sarah, go ahead.
23 HON. SARAH DUNCAN: I'm having
24 a hard time seeing how that could be right.
25 The last paragraph that begins with "however"
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8038
1 governs the admissibility of a statement. The
2 only two subdivisions that deal with the
3 admissibility of a statement are (3) and (4).
4 (1) ask (2) are pleas. They're not
5 statements.
6 MR. LOW: But I think the idea
7 was that, being as it is, that it would be
8 construed as applying only to (4) and not (3),
9 because (3) also applies to a statement.
10 HON. SARAH DUNCAN: I
11 understand. But the way we've got it, if we
12 make it a separate paragraph, it would apply
13 conceivably to all four.
14 MR. LOW: Why, when the other
15 four don't deal with statements?
16 HON. SARAH DUNCAN: That's the
17 concern, I think, is that someone --
18 MR. LOW: The plea which may be
19 withdrawn shouldn't --
20 CHAIRMAN SOULES: One at a
21 time.
22 HON. SARAH DUNCAN: Someone
23 might construe a plea as -- I mean, it is a
24 statement. "I am guilty," or "I am pleading
25 guilty. I am pleading not guilty." But who
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1 is it that has determined that the "however"
2 clause or sentence doesn't just apply to (4)
3 but that it also applies to (3)?
4 CHAIRMAN SOULES: Justice
5 Duncan is pointing out to the last paragraph
6 only deals with a statement. (1) and (2) are
7 pleas:
8 HON. SARAH DUNCAN: What is the
9 basis for saying that the "however" sentence
10 applies to (3) as well?
11 MR. LOW: That was the argument
12 that was given by the subcommittee. I didn't
13 see a whole lot of difference.
14 MR. SALES: Luke, you might
15 want to just sort of read -- there's a fairly
16 short letter that Wellborn did on it in your
17 packet. I doubt I have it.
18 MR. LOW: I've got it. Is that
19 the one that I showed you, Mark?
20 M:R. SALES: Yeah, I believe
21 that's right. Is that from Wellborn?
22 MR. LOW: Yeah. Let me show
23 you, Luke. It's right here.
24 MS. DUDERSTADT: He's got it.
25 MR. LOW: I mean, it wasn't
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306•1003 8040
1 something that we spent a whole lot of time
2 on.
3 CHAIRMAN SOULES: His letter
4 says one thing: No. It doesn't give any
5 reason. Well, let's look at what this -- if
6 you make this last sentence apply to
7 everything, that means that a plea of guilty
8 later withdrawn can sometimes be admitted in a
9 civil case.
10 MR. LOW: A plea of guilty in a
11 civil case?
12 CHAIRMAN SOULES: No. A plea
13 of guilty in a criminal case which is later
14 withdrawn in the criminal case can sometimes
15 be admitted in a civil case, if this sentence
16 is taken out of Paragraph 4. The way it is
17 right now, that plea of guilty in a criminal
18 case later withdrawn in a criminal case can't
19 be submitted at all.
20 Next, in the combining of the two rules,
21 nolo contendere is treated differently in a
22 civil than a criminal case. In a civil case,
23 a plea of nolo can't be admitted at all, even
24 if it's later withdrawn or whether or not it's
25 later withdrawn. In a criminal case, a plea
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1 of nolo contendere that's later withdrawn
2 cannot be admitted. Now, this last sentence,
3 if it's going to apply to (1) and (2) and
4 somehow "statement" is broader than
5 "statement," would make those sometimes
6 admissible under some circumstances. And if
7 pleas are not statements, then the last
8 paragraph doesn't apply to (1) and (2) at
9 all.
10 Let's see, and then (3) is, Any statement
11 made in the course of any proceedings under
12 Rule 11 of the Federal Rules of Criminal
13 Procedure or comparable state procedure
14 regarding, in a civil case, either a plea of
15 guilty which was later withdrawn or a plea of
16 nolo, or in a criminal case, either a plea of
17 guilty which was later withdrawn or a plea of
18 nolo which was later withdrawn.
19 Okay. So (1) excludes pleas of guilty
20 altogether. (2) excludes pleas of nolo in all
21 civil litigation and pleas of nolo in criminal
22 litigation where the pleas are withdrawn. (3)
23 excludes any statement that was made in
24 connection a (1) or a (2). And then (4) is
25 statements made in the course of plea
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1 bargaining which does not result in a.plea of
2 guilty or a plea of nolo or which results in a
3 plea, later withdrawn, of guilty or nolo.
4 It looks like the civil rule is the one
5 that's wrong, isn't it? Where is the
6 criminal --
7 HON. SARAH DUNCAN: Luke.
8 CHAIRMAN SOULES: Justice
9 Duncan.
10 HON. SARAH DUNCAN: If I can
11 read them, I've got the enclosures to Guy
12 Wellborn's letter on this, the enclosure in
13 Section 14.4 of Goode, Wellborn and Sharlot on
14 the rules, and he specifically refers to
15 Footnote 4 and references the "however"
16 sentence. And a careful reading, however,
17 indicates that i:nterpreting it just to relate
18 to (4) would be erroneous. The latter part of
19 the sentence goes on to refer expressly to
20 statements made at plea hearings as well as
21 statements made at plea discussions.
22 Therefore the conclusion is inescapable that
23 the exception applies to both types of
24 protected statements.
25 And then Footnote 4 reads, Both in the
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1 Federal and Texas Civil Rules the last rule of
2 410 is set off from any of the subparts. The
3 draft prepared for the Court of Criminal
4 Appeals by the Advisory Committee also was
5 formatted this way, and there's a cite: In
6 the version promulgated by the Court of
7 Criminal Appeals, however, this last sentence
8 was appended to the last subpart, cite, as the
9 exception refers both to statements made in
10 the course of plea proceedings and to those
11 made in connection with plea discussions.
12 This is most readily explained as a
13 typographical mistake.
14 I'm a little concerned about assuming it
15 was a typographical mistake when it was sent
16 the way the civil rule was to the Court of
17 Criminal Appeals and they changed it. And we
18 don't have any knowledge, as far as I know,
19 about why they changed it. And it certainly
20 is a narrower rule as the Court of Criminal
21 Appeals promulgated it than is the civil rule.
22 CHAIRMAN SOULES: Bill
23 Dorsaneo.
24 PROFESSOR DORSANEO: Did
25 anybody ask anybody else like Schlueter and
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1 Wendorf? Commonly I find in these evidence
2 books that one book says one thing and the
3 other book says something else.
4 MR. SALES: From the state bar
5 and Wellborn, and I think he has one or two
6 other people on that committee, but he was the
7 only professor on that committee.
8 MR. LOW: But he's advocating
9 that it should apply to (3) and (4.)
10 MR. MARKS: What Wellborn is
11 saying, citing back to his own book, I guess,
12 is that the conclusion is that "however"
13 paragraph should apply, whether it's a
14 statement or a plea, that it should apply, and
15 that it's just a formatting error or
16 typographical error the way it was hanging
17 under part (4) to begin with.
18 MR. LOW: And we just concur in
19 his conclusion, whether it's true or not.
20 CHAIRMAN SOULES: It's just
21 wrong. I mean, the way he interprets that
22 last sentence is not necessarily his way. I
23 mean, if you look at what number (4) does,
24 it's talking about -- okay. (1) is a plea.
25 That happens in court. (2) is a plea. That
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1 happens in court. (3) is a statement made in
2 the course of any proceedings under Rule 11.
3 That happens in court. So (1), (2) and (3)
4 are things that are going on in court.
5 (4) is plea bargaining negotiations,
6 discussions with an attorney for the
7 prosecuting authority. That's not going on in
8 court. It does not result in a plea, or it
9 results in a plea later withdrawn, these
10 discussions. So when they say a statement
. 11 made in the course of a plea or plea
12 discussions, well, the course of a plea or
13 plea discussions could be statements made with
14 the attorney for the prosecuting authority.
15 It's in the course. It's not at the
16 proceedings, but it's in the course of the
17 proceedings.
18 MR. LOW: And (4) talks about
19 the statements really then tied in with the
20 formal proceedings in (3) and then whether or
21 not they would be related. So you might be
22 right. It looks like it was perhaps intended
23 to apply only to -- or would apply only to
24 (4)•
25 MR. MARKS: Well, it's
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1 confusing either way.
2 MR. LOW: Well, it is.
3 Obviously I started out with confusion and
4 ended up with even more.
5 MR. SALES: It seems 'strange,
6 though, that you're going to let in a
7 statement that just is outside of court like
8 that that probably has less weight and is in
9 the middle of some negotiation as opposed to
10 something where it's formally on the record.
11 I guess I have a hard time understanding why
12 that should be entitled to somehow more
13 weight.
14 CHAIRMAN SOULES: Well, that's
15 when the prosecutor pulls the trigger and
16 says, "Don't you remember telling me this?"
17 Now, you've got to come back with something,
18 unless you're fortunate enough for the judge
19 to give you an acquittal because jeopardy is
20 attached, and the judge is probably not going
21 to give you an acquittal, so you've got to
22 come back swinging and you've got to be able
23 to at that point open up to what happened and
24 then also preserve your error that the
25 prosecutor pulled the trigger, because you're
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1 going to try to get a verdict, or somebody
2 pulled the trigger. Don Hunt.
3 MR. HUNT: Isn't the "however"
4 paragraph merely a statement of how the rule
5 of operational completeness works where the
6 prosecutor attempts to use a statement made in
7 plea negotiations? That is, if the attempt is
8 made, the criminal defendant can then come
9 back with whatever occurred in those plea
10 negotiations that are helpful to him. And
11 that in my judgment is why it applies only to
12 (4), because you're really not talking about
13 what the purpose of the rule is. The purpose
14 of the overall rule is to make absolutely
15 clear that (1), (2) and (3) never come in
16 under in any circumstance, and (4) never comes
17 under in any circumstance except where
18 somebody pulls part of it and the other side
19 is entitled to pull the rest of it under the
20 rule of operational completeness. That's all
21 that's going on. And with respect to some of
22 these other professors, it seems to me that
23 the "however" paragraph applies only to (4)
24 contextually and can only apply to (4).
25 CHAIRMAN SOULES: So would our
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1 recommendation be that civil 410 conform to
2 criminal 410 by merging them together into
3 (4)?
4 MR. LOW: So it would all be
5 the same?
6 CHAIRMAN SOULES: So it would
7 all be the same.
8 HON. SARAH DUNCAN: Are we not
9 able to simply refer this to the Court of
10 Criminal Appeals?
11 CHAIRMAN SOULES: The Court of
12 Criminal Appeals has this in (4) only.
13 HON. SARAH DUNCAN: I
14 understand that. Are we not able to just
15 refer to the Court of Criminal Appeals whether
16 it wants the "however" sentence to apply to
17 just (4) or (3) and (4) or (1), (2), (3) and
18 (4)?
19 CHAIRMAN SOULES: Well, it
20 applies to civil cases too.
21 MR. LOW: It's for civil cases.
22 HON. SARAH DUNCAN: Well,
23 there's a world of difference between a civil
24 and a criminal case.
25 CHAIRMAN SOULES: But in this
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1 Rule 410 -- well, Rule 410(2) and (3) as
2 drafted here combines the civil and criminal
3 and makes differences and shows the
4 differences.
5 HON. SARAH DUNCAN: I
6 understand that.
7 CHAIRMAN SOULES: I guess the
8 issue is, are we willing in civil cases to
9 have the last paragraph, the last "however"
10 paragraph, join into paragraph (4) as it is in
11 the criminal case, in the criminal rules? Is
12 there any opposition to that?
13 Those in favor show by hands. 11 for.
14 None against.
15 MR. LOW: So we leave it in the
16 body of paragraph (4), right?
17 CHAIRMAN SOULES: That's
18 right. But you would still have to change (2)
19 and (3) as you've got them changed here in
20 order to merge the two rules.
21 So in 410 as proposed, (1) is right, (2)
22 is right, (3) is right, and (4) in the last
23 paragraph would be joined together, and that's
24 what we passed. Okay.
25 MR. LOW: All right. 504 is
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1 another thing referred by the State Bar
2 Evidence Committee and that's something we
3 already voted on. It's consistent with the
4 recommendations of the State Bar Committee and
5 we already voted on that, so there's no action
6 to be taken there.
7 CHAIRMAN SOULES: Okay.
8 MR. LOW: 509 and 510 is
9 referred by the State Bar Evidence Committee,
10 and it's merely a housekeeping thing. I think
11 that's the one Ken Lewis went back and changed
12 from the Government Code to cite the correct
13 authority, and certainly that should not be a
14 problem.
15 CHAIRMAN SOULES: Any
16 opposition? That's unanimously approved.
17 M:R. LOW: 513(d) is referred by
18 the State Bar Evidence Committee so that
19 paragraph (d) would apply to both civil and
20 criminal cases. And if you will refresh my
21 memory, I think we can look and see what we're
22 doing there.
23 CHAIRMAN SOULES: It's an
24 instruction in that charge that no inference
25 is to be drawn from a claim of privilege.
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1 MR. LOW: Right. And it was
2 recommended by my committee and Mark's
3 committee that that be allowed in both civil
4 and criminal.
5 CHAIRMAN SOULES: No, wait a
6 minute, except for 504(b)(2)(b). In
7 504(b)(2)(b) in civil cases, you can draw an
8 inference from a Fifth Amendment claim in a
9 civil case. Of course, you can't even get
10 there in a criminal case, so -- but this has
11 that exception written into its text. Let me
12 get there and make sure that 504(b)(2) is what
13 I think it is.
14 MR. LOW: And 513(d), yes.
15 CHAIRMAN SOULES: 504(b).
16 MR. LOW: Paragraph (c).
17 CHAIRMAN SOULES: Paragraph (c)
18 in, let's see, 504(b)(2). That's husband and
19 wife privilege. 504. There's not a (b)(2)(b)
20 in 504.
21 MR. PARSLEY: Here's one.
22 CHAIRMAN SOULES: Okay. What
23 does it say? In criminal cases, a failure by
24 an accused to call the accused spouse as a
25 witness where other evidence indicates the
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1 spouse could testify to relevant matters is a
2 proper subject of comment by counsel. I guess
3 that's in the criminal rules now.
4 Okay. 513. All right. That, in the new
5 504(b)(2)(b), is a sentence out of 504(2)(a)
6 verbatim from the criminal rules. And so this
7 applies only to criminal cases, so it's
8 carrying that forward. But this rule that
9 says "except as prov'ided in Rule 504(b)(2)(b)"
10 ignores Civil Rule 504(c).
11 MR. LOW: I think this is
12 referring to the combined rules, isn't it?
13 MR. SALES: This is going back
14 to the.Unified Rules, 504(2)(b).
15 CHAIRMAN SOULES: Well, look at
16 current Civil Rule 513 (c), paragraphs (a) and
17 (b), which says you keep privileges out from
18 the knowledge of the jury. Paragraphs (a) and
19 (b) shall not apply with respect of a party's
20 claim in the present proceeding of the
21 privilege against self-incrimination. A party
22 cannot get on the witness stand in a civil
23 case and take the Fifth Amendment and then get
24 an instruction from the judge that the jury is
25 not to draw any inference from taking the
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1 Fifth Amendment.
2 MR. LOW: That's right.
3 MR. SALES: And that's the
4 point of the rule.
5 MR. LOW: It says that
6 except -- you're not entitled to that except
7 under (c), which is self-incrimination.
8 CHAIRMAN SOULES: Oh, okay. So
9 it's picking up (c). Okay. That's right.
10 Sorry.
11 MR. SALES: Basically what it's
12 saying is you cannot get a jury instruction
13 about taking the fifth in civil cases. That's
14 what it's saying. You don't get that
15 instruction from the court.
16 CHAIRMAN SOULES: Or in a
17 narrow exception.
18 MR. SALES: Nor do you get that
19 exception in the failure to bring your spouse,
20 because that's a fair comment.
21 CHAIRMAN SOULES: Okay.
22 MR. LOW: So all it does is
23 add, instead of in criminal cases, it says in
24 civil.
25 CHAIRMAN SOULES: Okay. Now,
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1 let's see, let me look at 513(c).
2 PROFESSOR DORSANEO: Well, you
3 can't look at that. You need to look at this
4 (indicating).
5 CHAIRMAN SOULES: Where is
6 513(c) in that? Have you got 513(c) in the
7 Unified Rules? All I'm checking out is to see
8 if the Unified Rule 513(c) talks about in
9 civil cases, and yeah, present civil
10 proceeding, so it picks that up.
11 PROFESSOR DORSANEO: Boy, it's
12 hard to follow all that.
13 CHAIRMAN SOULES: It's there,
14 and we've passed it. Okay. 513, I think,
15 checks out. Has anybody got any other issues
16 on this?
17 Is anybody opposed to 513 as proposed by
18 the Committee? No opposition. It's
19 unanimously approved. Thank you.
20 MR. LOW: 802 was again
21 referred by the State Bar Evidence Committee
22 whether to make hearsay, quote, no evidence,
23 closed quote, as in federal court. And we
24 recommended no change. Your committee
25 recommended no change, and that's where we
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1 stand, for leaving it as it is.
2 CHAIRMAN SOULES: All in
3 agreement? No change.
4 MR. MARKS: Whoa, whoa, whoa.
5 CHAIRMAN SOULES: John Marks.
6 MR. MARKS: I think we should
7 go back to the federal rule, because that's
8 the way it was before these rules were messed
with several years ago in state court. And it
10 seems to me that hearsay should not be
11 evidence whether it's objected to or not for
12 appellate purposes. Everybody knows what --
13 is this what we're talking about? Yeah. It
14 should have the same effect in state court as
15 it has in federal court.
16 CHAIRMAN SOULES: I think
17 that's the old Joske vs. Irvine case where you
18 didn't have to object to hearsay, you got up
19 on appeal, and after the trial is over
20 somebody claims it's no evidence and the only
21 evidence is hearsay.
22 MR. MARKS: The problem is you
23 get the same hearsay repeated over and over
24 and over in the trial of the case and you miss
25 one time objecting and you've had it, and
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1 that's wrong.
2 CHAIRMAN SOULES: That's a
3 problem. Justice Duncan.
4 HON. SARAH DUNCAN: To create
5 an exception just for hearsay, TRAP 52a in my
6 view is absolutely unjustified. If we're
7 going to start making objections, there are
8 things a lot more serious than hearsay that we
9 should have to except from any preservation
10 requirement. What this let's a party do,
11 civil and criminal, is lay behind the log, not
12 tell opposing the counsel, not tell the trial
13 judge. The evidence may very well be made
14 admissible in some other form, and then they
15 come up on appeal, and this would be the only
16 instance. Even the Court of Criminal Appeals
17 has now recognized that they adopted a rule
18 that permits hearsay testimony admitted
19 without objection to have probative value, and
20 I think that would be a serious mistake.
21 CHAIRMAN SOULES: Buddy Low.
22 MR. LOW: And I'm looking at
23 the report of John Sutton, and he disagrees
24 with John Marks. He says a return to the view
25 would create unnecessary disharmony between
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1 federal and Texas evidence law. Present Texas
2 law regarding admissible hearsay conforms to
3 federal law and to the view prevailing
4 throughout the country. So he does not agree
5 that we should be returning to making it
6 federal law. He would disagree with that and
7 recommends that we make no change.
8 MR. MARKS: Well, the notation
9 on our disposition chart says that it should
10 be changed to conform to the federal rule, and
11 the federal rule is that if you don't object
12 to hearsay, you don't waive that on appeal.
13 MR. LOW: Well, Sutton
14 disagrees with that. If there's an error on
15 the disposition chart, I will take blame for
16 that, and I would rely on Sutton more than I
17 would rely on me.
18 MR. MARKS: Well, I certainly
19 understand that.
20 MR. LOW: Well, I knew you
21 would.
22 MR. MARKS: But that's the way
23 it used to be in Texas. That's the way, as I
24 understood it, it is in federal court. I know
25 a federal judge who thinks differently, but I
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1 think that's the rule in federal court, isn't
2 it?
3 PROFESSOR DORSANEO: I don't
4 think it is. But federal court is not -- it
5 might be the rule in federal court in some
6 circuit, but I don't think it's the general
7 federal approach.
8 MR. MARKS: Well, it worked
9 pretty well before they changed it for both
10 sides. Everybody knows what hearsay is. You
11 know when you're trying to get hearsay in.
12 And on one side of the coin you're saying
13 we're going to let this case be tried and let
14 a person repeat hearsay five, six, seven and
15 eight times, and if a lawyer does not object
16 one time, he waives it forever. I just think
17 that's wrong.
18 CHAIRMAN SOULES: Anything new
19 on this?
20 MARK SALES: I was just going
21 to add just the other thing that Sutton
22 pointed out, I guess, in his footnote on that
23 report was that, of course, the other side of
24 that is the party lies behind the log and
25 doesn't make any objection and then raises it
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1 all on appeal.
2 MR. MARKS: Well, that's
3 right. But lawyers generally are not going to
4 do that because they're going to try to keep
5 it out.
6 PROFESSOR DORSANEO: The rule
7 doesn't say that all hearsay has probative
8 value. It says it's not denied probative
9 value merely because it's hearsay. And some
10 hearsay has a high degree of probative value.
11 MR. LOW: Right.
12 MR. MARKS: Well, as provided
13 in the rules.
14 CHAIRMAN SOULES: Okay. The
15 recommendation is no change. Any further
16 discussion? Those in favor of no change show
17 by hands. 10.
18 Those in favor of a change along the
19 lines John Marks was suggesting. Two.
20 10 to two, no change.
21 MR. LOW: Luke, the last thing
22 refers back to 702 again and we're waiting on
23 that, so that ends everything we've
24 considered.
25 CHAIRMAN SOULES: Okay. So
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1 what we have left on your docket is 702?
2 MR. LOW: And maybe Mark might
3 have some items on -- we take recommendations
4 from his committee and consider them, and he
5 might have sent me some in the last couple of
6 days or might have some to send me, so I just
7 take those and refer them to my committee as I
8 receive.
9 CHAIRMAN SOULES: Mark, where
10 are you on your docket in the State Bar Rules
11 of Evidence?
12 MR. SALES.: Well, we just
13 completed our last meeting for this year, and
14 we'll hold our next meeting probably sometime
15 next fall.
16 CHAIRMAN SOULES: Do you have
17 anything pending?
18 MR. SALES: We had one item in
19 addition that I've referred to -- I've sent it
20 on to you and Buddy on Rule 103(a)(2). I
21 think Lee Parsley asked us to look at it, and
22 it's another issue about offers of proof and
23 the difference between the civil and criminal
24 rule, and I think we made a recommendation to
25 conform those. That's something, I guess,
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1 Buddy could look at and recommend at the next
2 meeting.
3 CHAIRMAN SOULES: Let's go
4 ahead and take the initiative on that. Do you
5 think that's all that's currently on the
6 docket at the State Bar Rules of Evidence
7 Committee?
8 MR. SALES: The only
9 outstanding items are 702 and this other
10 report. I believe that's it.
11 MR. LOW: Mark, if you will go
12 through and just drop me to a note to be
13 sure. That's all I remember, but that doesn't
14 mean that's all there is. Let me know, and
15 we'll take those up.
16 CHAIRMAN SOULES: We want to
17 accommodate the State Bar Rules of Evidence
18 Committee, but we, of course, have to move on
19 to get our report to the Supreme Court. So at
20 this point I think it would be helpful if you
21 would get issues on your docket, inquiries we
22 call them here, if you could send them on to
23 me at the time you receive them, and if they
24 are matters of merit that we think the Supreme
25 Court ought to change, we may do that without
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1 hearing from you so we can get it on up
2 there. Of course, we'll have another day and
3 some day in the future to look at these things
4 again.
5 MR. SALES: As far as I know
6 right now, we have no outstanding inquiries
7 other than the couple of items that I've sent
8 on to you and Buddy, and I'll send on anything
9 that we get in the meantime. We're putting
10 out a final report that goes in the Bar
11 Journal, I think, in May or June, and
12 sometimes that brings in some additional
13 inquiries after it goes out. And if I get
14 any, I'll send them on.
15 CHAIRMAN SOULES: And Buddy, I
16 guess when you get inquiries from me, you send
17 them to your committee, right, so Mark
18 automatically gets them?
19 MR. LOW: Yes. I copy Mark on
20 everything I send to my committee.
21 MR. SALES: And what I've been
22 doing, Luke, is copying you and Buddy and Lee
23 on all of the meeting notes which you're
24 getting. And if you all want to circulate it
25 to other people on the committee, that
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1 includes the subcommittee reports and briefs
2 and whatever they've put together. I don't
3 know if you want to start thinking about
4 circulating that to everybody or not.
CHAIRMAN SOULES: That usually
6 comes back to us in your report, right?
7 MR. LOW: Right. Usually I put
8 your version -- now, I did not put your
9 version of 706 because I only got it a couple
10 of days ago. But what I usually do is I put
11 what we've done and then I put what you've
12 done and then a copy of the rule as it
13 exists. And are you saying that 103(a)(2) is
14 the only other item other than 702 that you
15 remember?
16 MR. SALES: Right.
17 MR. LOW: Okay. I'll write
18 that down.
19 CHAIRMAN SOULES: Okay. Let's
20 take about a 10-minute stretch and we'll come
21 back and get on with Paula Sweeney.
22 (Recess.)
23 CHAIRMAN SOULES: Let's get
24 back on the record here. Lee is trying to get
25 the Rules of Evidence, except for 702 and 706,
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1 forwarded on to the Court of Criminal Appeals
2 for their consideration of the merged rules.
3 And this 103(a)(2) thing looks like it's
4 fairly limited in what it would take for us to
5 decide whether or not to pass it.
6 If you look on 103(a)(2) in the civil
7 rule -
8 MR. MARKS: I'm lost.
9 CHAIRMAN SOULES: 103(a)(2) in
10 the civil rule on the -- saying how to perfect
11 error for the exclusion of evidence. And the
12 civil rule requires that it be perfected by an
13 offer of proof. Both the federal rule and the
14 state criminal rule and TRAP 52a of the Rules
15 of Appellate Procedure include -- the evidence
16 rule, as I just said, use these verbatim, and
17 the TRAP rule in similar language, "or was
18 apparent from the context within which
19 questions were asked."
20 In other words, error is perfected in the
21 case ruling -- in case the ruling is won
22 excluding the evidence, if the substance of
23 the evidence was made known to the court by
24 offer, and this is the additional language,
25 "or was apparent from the context in which
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1 the questions were asked."
2 Is anyone opposed to having that in the
3 civil rule?
4 MR. LOW: Mark's committee
5 voted unanimously for that. We just got it a
6 couple of days ago. I personally favor it,
7 but my committee has not voted on it. But I
8 don't think it's necessary. I think it's not
9 a complicated thing. Bill, you've read it.
10 PROFESSOR DORSANEO: And I
11 enthusiastically favor it.
12 MR. LOW: Right.
13 CHAIRMAN SOULES: This is the
14 only -- apparently in red-lining the rule,
15 this is the only glitch left to be resolved,
16 right?
17 Is there any opposition to that? No
18 opposition. It will stand approved, so you
19 can go ahead and make that change, Lee. And
20 then we're down to dealing with the Court of
21 Criminal Appeals after we have decided what to
22 do with 702 and 706.
23 Okay. Bill, do you want to proceed now
24 with your report?
25 PROFESSOR DORSANEO: I've got
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1 some cleanup andfine-tuning on sections 2 and
2 3 that we discussed at the last meeting. The
3 first one I want to talk about is a two-sheet
4 Rule 6. Does everybody have one of these? It
5 says "Time."
6 CHAIRMAN SOULES: Are they back
7 here?
8 MS. DUDERSTADT: Yes.
9 PROFESSOR DORSANEO: And the
10 next one will be Rule 10 and then Rule 27. I
11 can hand these out if you don't have them.
12 CHAIRMAN SOULES: 6, 10 and 27.
13 PROFESSOR DORSANEO: At the
14 last meeting, when we went past Rule 6 and
15 proposed recodified Section 2, it was voted
16 that this rule should conform to the appellate
17 rules that have :been ordered by the Court.
18 The last sentence in proposed Rule 6(c) now
19 conforms to Appellate Rule 9.2(b)(2). The
20 appellate rule says under the subheading Proof
21 of Mailing, "Though it may consider other
22 proof, the appellate court will accept the
23 following as conclusive proof of the date of
24 mailing," colon, and then it's verbatim (1),
25 (2) and (3) as in this draft.
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1 CHAIRMAN SOULES: Any
2 opposition? No opposition. It's unanimously
3 approved.
4 PROFESSOR DORSANEO: 10,
5 Service and Filing of Pleadings. I was
6 instructed to bring back subdivision (b),
7 which I was unhappy with at the last meeting.
8 It is now worded as our current Rule 21a is
9 worded, rather than being modeled on the
10 companion federal rule. I would want to
11 eliminate the "by" in (1)(B), (C), (D) and (E)
12 because "by" is in the introductory
13 paragraph. But other than that, I can
14 represent to you that this is just like our
15 Rule 21a, other than the little reference in
16 the introductory paragraph to "or other papers
17 served with citation." 21a does not now talk
18 about the other papers that can be served with
19 citation discovery requests.
20 CHAIRMAN SOULES: Let's see
21 here, could we add the word "confirmed
22 facsimile"? Your fax machine will tell you if
23 it's been delivered.
24 MR. MARKS: Under (D)?
25 PROFESSOR DORSANEO: But in the
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1 current rule, I misspoke myself, because it
2 says "or by telephonic document transfer"
3 rather than "facsimile."
4 So confirmed facsimile?
5 CHAIRMAN SOULES: At the time
6 we wrote this first, I don't think the
7 technology was there to get confirmation of
8 delivery by fax, but it's there now.
9 MR. BABCOCK: That's right, and
10 it's a good idea.
11 CHAIRMAN SOULES: Confirmed
12 telephonic document transfer? I don't care
13 how it's said.
14 PROFESSOR DORSANEO: Well, I've
15 heard people say that "facsimile" is less
16 broad that "telephonic document transfer."
17 CHAIRMAN SOULES: Okay.
18 MR. PARSLEY: We just use "fax"
19 in the Appellate Rules.
20 CHAIRMAN SOULES: F-a-x?
21 MR. PARSLEY: Our paid
22 consultant said just use "fax."
23 CHAIRMAN SOULES: Confirmed
24 fax, f-a-x?
2511 MR. PARSLEY: That's what we've
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1 used.
2 CHAIRMAN SOULES: Well, if it's
3 good enough for the nine, I guess it's good
4 enough for us. By confirmed fax to the
5 recipients, or by such other manner as the
6 court -- okay.
7 Any opposition to this, if we put
8 "confirmed fax" in the place of "facsimile"
9 and drop by, by and by in (B), (C) and (D)?
10 No opposition. It's unanimously recommended.
11 Okay. Anything else on 10?
12 PROFESSOR DORSANEO: No. It
13 really in (2), (3), (4) and (5) is verbatim
14 except for the paragraphing and the.added
15 headings.
16 CHAIRMAN SOULES: Okay. 27.
17 PROFESSOR DORSANEO: 27. This
18 is not on the agenda, but when I read through
19 the transcript last time and when I read about
20 100 pages of discussion on this, I thought it
21 was appropriate to deal with the discussion.
22 In the third-party practice rule, we
23 debated at length last time how long you
24 should have to file a third-party complaint
25 without leave. And the vote was first that it
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1 be, you know, not later than 90 days after the
2 appearance day of the third-party plaintiff.
3 And that was pretty much a consensus vote at
4 that point.
5 After that, we got into discussions
6 about, well, what if the case changes, a new
7 plaintiff is added by amendment or somebody
8 intervenes. And the vote was that there be an
9 additional window of 30 days.
10 Now, when I was drafting this, I was
11 pretty pleased that I got all that figured out
12 on the vote. When we voted on 30 days, we
13 didn't expressly vote on 30 days after what,
14 so I tried to do the best I could with what we
15 had, and I came up with not later than 30 days
16 after the appearance day.of the third-party
17 plaintiff for responding to the amended
18 pleadings or the intervention. The idea there
19 is not that you would be limited by what it
20 says in the amended pleadings or the
21 intervention. I believe Chairman Soules said
22 that that would be unworkable. But it's
23 pretty hard to say it. 30 days after what?
24 And this was my best shot at it.
25 I don't know if any additional drafting
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1 could be done here, but I'm not completely
2 happy with the language, although I'm sure I
3 captured the vote insofar as what the
4 transcript actually said that was voted.
5 CHAIRMAN SOULES: Well, is
6 there a time -- let me see, we've got a new
7 plaintiff added, and the third-party plaintiff
8 is then who?
9 PROFESSOR DORSANEO: The
10 defendant. The third-party plaintiff is
11 always the defendant. This is the sentence
12 that I did not want to draft.
13 CHAIRMAN SOULES: Could we just
14 make that 60 days after the new party is
15 added?
16 PROFESSOR DORSANEO: Yes.
17 HON. SCOTT A. BRISTER: Well,
18 is the new party added when it's filed or when
19 they're actually served? There's a delay in
20 the --
21 CHAIRMAN SOULES: Well, I can
22 clarify that. I mean, it's 60 days after the
23 petition is filed adding the new plaintiff.
24 HON. SCOTT A. BRISTER: Because
25 when they delay service, they knock out
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1 somebody's right.
2 PROFESSOR DORSANEO: That's
3 better.
4 CHAIRMAN SOULES: When you get
5 the additional notice -- when you get the
6 pleading and you know somebody has been added,
7 you've got to do something.
8 PROFESSOR DORSANEO: In 60 days
9 after it was filed.
10 CHAIRMAN SOULES: You may be
11 adding somebody before the other party is
12 served, but so what? You know you've got to
13 do something.
14 MR. HAMILTON: Doesn't the
15 original defendant have to be served?
16 CHAIRMAN SOULES: Served with
17 the amended -- plaintiff's amended petition.
18 MR. MARKS: How about 60 days
19 after service?
20 CHAIRMAN SOULES: Well,
21 service, filing.
22 MR. MARKS: Those are two
23 different things.
24 CHAIRMAN SOULES: I understand
25 they can be. They're not supposed to be. Our
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1 rules say they're supposed to be simultaneous.
2 PROFESSOR DORSANEO: Well,
3 60 days after service would be okay.
4 CHAIRMAN SOULES: That's fine
5 too, 60 days after service. If a new
6 plaintiff is added by amendment or
7 intervention, the third-party plaintiff need
8 not obtain leave to make the service of a
9 third-party complaint if it is filed not later
10 than 60 days after the amendment or
11 intervention is served on the third-party
12 plaintiff.
13 MR. HAMILTON: Question.
14 CHAIRMAN SOULES: Period, as a
15 defending party or something like that.
16 Okay. Carl.
17 MR. HAMILTON: Bill may know
18 the answer to this: If a new plaintiff
19 suddenly appears in the pleading, does that
20 new plaintiff have to have citation issued and
21 served upon?
22 PROFESSOR DORSANEO: I think
23 so.
24 MR. HAMILTON: So when you're
25 saying "service," you're meaning that kind of
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1 service and not just mailing a copy to the
2 defendant?
3 CHAIRMAN SOULES: I don't think
4 that's the way it works.
5 PROFESSOR DORSANEO: Well,
6 people don't do that, because they figure the
7 defendant is going to answer.
8 CHAIRMAN SOULES: Well,
9 whatever the service method is supposed to be
10 is probably not going to be done in this
11 rule. Whatever service is, it is.
12 PROFESSOR DORSANEO: Maybe a
13 better answer is I think so, but I'm
14 completely sure.
15 MR. HAMILTON: Well, I think so
16 too.
17 CHAIRMAN SOULES: Okay.
18 .Otherwise, the third party must obtain
19 leave -- okay. Let's go on from there, Bill.
20 And then what?
21 PROFESSOR DORSANEO: That's
22 it. Oh, no, well, after the amended complaint
23 or intervention is served, otherwise it's the
24 same.
25 CHAIRMAN SOULES: It's the same
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1 from the rest of it?
2 PROFESSOR DORSANEO: Yes. This
3 is what all of our discussion was about.
4 CHAIRMAN SOULES: Okay. Any
5 opposition to this as modified? No
6 opposition. It's unanimously approved.
7 PROFESSOR DORSANEO: Now, I
8 hate to say this, but that seemed like such a
9 good idea in the "But if" sentence, why are we
10 having it not later than 90 days after the
11 appearance date of a third-party plaintiff as
12 a defending party. Why not do it from service
13 there too? I mean, that's not what we voted,
14 but why is it different?
15 CHAIRMAN SOULES: Any
16 opposition to making it the same? No
17 opposition. So it will be 90 days after --
18 PROFESSOR CARLSON: What if
19 there's a waiver?
20 MR. HAMILTON: After appearance
21 day.
22 PROFESSOR DORSANEO: Well,
23 you're always going to have "what ifs." With
24 90 days, you know, you'd make it longer, but
25 it's getting pretty long. 120 days.
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1 CHAIRMAN SOULES: Not later
2 than 90 days after the appearance day. I
3 think there is a reason for this.
4 PROFESSOR DORSANEO: Okay.
5 CHAIRMAN SOULES: Do I need to
6 articulate it?
, 7 PROFESSOR DORSANEO: No.
8 CHAIRMAN SOULES: Okay. Done.
9 PROFESSOR DORSANEO: So that
10 takes care of -
11 MR. HAMILTON: What did we end
12 up with?
13 CHAIRMAN SOULES: Just changing
14 to -- and we said 60 days after the amendment
15 or intervention is served on the third-party
16 plaintiff as a defending party, period.
17 PROFESSOR DORSANEO: And the
18 last thing I have is default judgment.
19 CHAIRMAN SOULES: We're not
20 going to change the first sentence -- default
21 judgment is what rule?
22 PROFESSOR DORSANEO: Well, it's
23 this Rule blank.
24 CHAIRMAN SOULES: Rule blank.
25 PROFESSOR DORSANEO: While this
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1 is being passed out -- 40 2 CHAIRMAN SOULES: Rule blank,
3 Default Judgment. Okay.
4 PROFESSOR DORSANEO: The
5 specific assignment was to deal with Judge
6 David Evans' letter concerning current
7 Rule 243. And to refresh your recollection,
8 Judge Evans wanted an explicit authorization
9 in the rule for the use of affidavits to prove
10 up unliquidated demands. That is down in
11 (c)(2) as drafted. "If the claim is
12 unliquidated or not proved by a written
13 instrument, unless the defendant is entitled
14 to and demands a jury trial," which is
15 substantially verbatim to 243 right now, I
16 think it says, "demands and is entitled to a
17 jury trial, the plaintiff must present
18 evidence as to damages caused by the events
19 sued upon on the record or by" -- and I use
20 the plural here although it could be
21 singular -- "affidavits of competent witnesses
22 based on personal knowledge of the facts
23 stated in the affidavits."
24 That is what was voted as a concept
25 affirmatively at the last meeting, and I've
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1 taken a stab at drafting it.
2 Beyond that, this Rule blank, Default
3 Judgment, amalgamates into one rule the
4 default judgment provisions that are contained
5 in a number of distinct shorter rules
6 beginning at at 237a of the current rulebook.
7 Whether it's appropriate to do so or not
8 now, I believe it would be advisable for us to
9 take that action with respect to the current
10 rulebook and the number of shorter default
11 judgment rules that we have making our rule
12 modeled structurally in a manner that's
13 similar to the federal rule. There's not much
14 difference in wording, although not all of the
15 provisions in Rules 237a through 244 are set
16 forth.
17 For example, 237a talks generally about
18 cases remanded from federal court, and the
19 last sentence only appears as the last
20 sentence of subdivision (a) of this draft. It
21 may be that we would want to add more than the
22 last sentence. The question is one of
23 placement, not one of eliminating what it says
24 otherwise in the beginning part of current
25 Rule 237a.
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1 Subdivision (b) is substantially like
2 240, but makes it clear that you can have an
3 interlocutory default judgment as to
4 liability. 240 at the present time only talks
5 about an interlocutory default judgment as to
6 one defendant in a case when there are more
7 defendants.
8 Subdivision (c) is substantially verbatim
9 with the change indicated to what it says now
10 in Rule 241 and 243.
11 Subdivision (d) is the first sentence of
12 current Rule 239a, and I will probably propose
13 adding the rest in. I have more written after
14 my subdivision (d) here.
15 (e), After Service of Publication, is
16 verbatim current Rule 244. There might be a
17 little bit of duplication or overlap here
18 between what's in the party section,
19 section 4, I believe, of the recodification,
20 and I need to check that. Subdivision (f) is
21 new, but it seems to me that it's a good
22 idea.
23 I'm doing, I guess, more of an
24 introduction to this than anything else. I
25 would myself propose that this default
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1 judgment rule in this type of form be included
2 with the judgment section of the rulebook,
3 which would be in recodified form section 8,
4 and that's being processed based upon what we
5 voted pursuant to the discussion of Don Hunt's
6 report at this very moment. It's possible
7 that this default judgment information could
8 go in section 6, which is proposed to be the
9 pretrial section of the recodification.
10 Wherever this default judgment rule goes, I
11 would propose putting the summary judgment
12 rule, however it looks, and I'm assuming it
13 will look as ordered in the drafting that I'm
14 doing alongside of it, and I basically would
15 ask for a vote right now, subject to what the
16 chairman says, only on this (c)(2) issue, and
17 we can leave the full-scale consideration of
18 it to the consideration of section 6 or the
19 final consideration of section 8, which I plan
20 to bring back at the July meeting.
21 CHAIRMAN SOULES: Okay.
22 Incidentally, I think that the way it looks we
23 will probably finish our work in September,
24 have a July meeting and a September meeting.
25 And talking to Bill, where he is amazes me,
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1 but he's going to be in shape, I guess, to
2 have everything here in July and us taking a
3 look at the comprehensive package at that
4 point.
5 PROFESSOR DORSANEO: The plan
6 will be to have a complete rulebook for you,
7 most of which you will have already approved.
8 CHAIRMAN SOULES: In July. And
9 then our September meeting will be a wrap-up
10 meeting, a cleanup meeting, and maybe we can
11 get done.
12 HON. SCOTT A. BRISTER: The
13 July meeting is the second week, the second
14 and not the third Friday, isn't it?
15 CHAIRMAN SOULES: I think it's
16 July the 4th weekend -- no.
17 MS. DUDERSTADT: The 11th and
18 12th.
19 CHAIRMAN SOULES: The 11th and
20 12th. Okay. So what we're voting on now is
21 the language that Bill has drafted to
22 implement the use of affidavit testimony,
23 affidavit proof to prove up unliquidated
24 damages in a default judgment case.
25 Don Hunt, and then we'll go around the
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1 table.
2 MR. HUNT: Mr. Chairman, can we
3 make that singular instead of plural?
4 CHAIRMAN SOULES: Is anybody
5 opposed? No opposition to that. Take out the
6 "s" at the end of "affidavits" twice.
7 David Beck.
8 MR. BECK: I have two drafting
9 comments. I'd suggest that the phrase "on the
10 record" on the last line, Bill, be moved after
11 the word "evidence," so that it says, "the
12 plaintiff must present evidence on the
13 record."
14 And I would put a period after "upon,"
15 because you're talking about presenting
16 evidence and then you're talking about
17 affidavits. Affidavits are evidence, so I
18 would put a period after "upon," and then just
19 start a new sentence, "Such evidence may
20 consist of affidavits," and then the rest is
21 all right.
22 PROFESSOR DORSANEO: The only
23 small point, and I suppose it's intentional,
24 is that you would require a hearing. You
25 would just say, "Here, Judge. Here are my
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1 affidavits."
2 MR. BECK: You've got to file
3 the affidavits, don't you?
4 PROFESSOR DORSANEO: But then
5 you'd want to hand them to the judge.
MR. HAMILTON: Or the court
7 reporter.
8 PROFESSOR DORSANEO: The court
9 reporter. Carl mentioned at the last meeting,
10 well, does this mean that somebody could file
11 an affidavit with their petition and that that
12 would be, you know, proving up the
13 unliquidated demand? And I think we answered
14 yes.
15 CHAIRMAN SOULES: What Bill has
16 got here is not just a drafting problem,
17 David. As I see it here, they can present
18 evidence on the record or by affidavit.
19 MR. BECK: Right.
20 CHAIRMAN SOULES: But the
21 affidavits don't have to be on the record, so
22 there doesn't have to be a court reporter
23 there making a record of the affidavits being
24 presented to the judge. You can just mark
25 them as exhibits and have the judge maybe sign
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1 "Received" on the front or some way to show
2 that they were in fact considered.
3 MR. BECK: I think that makes
4 sense.
5 CHAIRMAN SOULES: And then --
6 but the moving of those words could suggest
7 that there has to be a record of the
8 presentation of the affidavits. I think that
9 is the matter under scrutiny here.
10 MR. BECK: Well, the phrase "on
11 the record" appears in front of the word "or."
12 CHAIRMAN SOULES: Well, that's
13 because you can either present evidence on the
14 record or present affidavits.
15 MR. BECK: Right. And what I'm
16 saying is moving "on the record" over after
17 the word "evidence" doesn't change that at
18 all.
19 PROFESSOR DORSANEO: That's
20 fine, "present evidence on the record as to
21 damages caused by the event sued upon." But
22 then my draft isn't very good because it
23 doesn't make it clear that the affidavits can
24 just be filed or whether there needs to be a
25 hearing. I suggest the issue would be or by
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1 filing affidavits, you know. In other words,
2 is it filing or do we want to present them to
3 the judge or what do we want to do with these
4 affidavits?
5 MR. BECK: Such evidence may
6 consist of filed affidavits.
7 PROFESSOR DORSANEO: But you
8 still have the record. And I had written in
9 here "on the record in open court," and I
10 thought "open court" -- to me "on the record"
11 means that -- granted, why that wouldn't be
12 something that's filed, but I think it's
13 pretty clear that "on the record" would
14 suggest to people that you're going to have a
15 hearing. Maybe you should say "at a hearing."
16 CHAIRMAN SOULES: It needs to
17 say something along this line: "The plaintiff
18 must prove the damages caused by the events
19 sued upon by presenting evidence on the record
20 or by presenting affidavits." That's what
21 we're talking about, proving the damages
22 caused by the event sued upon by one or by the
23 other.
24 PROFESSOR DORSANEO: Okay. By
25 presenting evidence on the record, and what's
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1 the other?
2 CHAIRMAN SOULES: By presenting
3 affidavits.
.4 PROFESSOR DORSANEO: Presenting?
5 CHAIRMAN SOULES: Well, we're
6 talking about presenting evidence or
7 presenting affidavits.
8 PROFESSOR DORSANEO: Where do
9 we present the affidavits? To the clerk? To
10 the judge?
11 MR. HAMILTON: It would have to
12 be to the judge, and you would have to give
13 the defendant notice of the hearing.
14 CHAIRMAN SOULES: I think you
15 have to present them to the trier of fact or
16 wherever any evidence would go.
17 PROFESSOR DORSANEO: Presenting
18 an affidavit? We'll go back and consider this
19 again and I'll draft it up, and we can take
20 another look at it. It's going to come around
21 the bend again.
22 CHAIRMAN SOULES: Would that
23 solve your issue, David, if we did it that
24 way?
25 MR. BECK: Yes.
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1 CHAIRMAN SOULES: All right.
2 We'll do it that way.
3 PROFESSOR DORSANEO: That's a
4 big improvement.
5 CHAIRMAN SOULES: Make it in
6 your king's English, and we probably won't
7 need to spend much time on it.
8 The concept, though, everybody agrees to,
9 right? No dissent? No dissent. Okay.
10 PROFESSOR DORSANEO: That's all
11 I have.
12 CHAIRMAN SOULES: Okay. We can
13 proceed. Let's see, we're going to go on with
14 old business which is still on the first page
15 of the agenda. And let's see, I guess you
16 have David Peeples' to present? Okay. Let's
17 go ahead and go with that. Great.
18 Justice Sarah Duncan will present Judge
19 Peeples' where -- concerning masters.
20 HON. SARAH DUNCAN: It's really
21 simple. On Page 577 of the first volume of
22 the agenda, I'm not even sure where it comes
23 from -- okay. John K. Chapin recommends for
24 this Committee's consideration an amendment to
25 the Federal Rule 72a which incorporates a
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1 timeline for objecting to a master's report.
2 MS. SWEENEY: Did you say 572?
3 HON. SARAH DUNCAN: 577. Judge
4 Peeples looked at it and recommends no
5 change. There's no problem with the current
6 rule as specified in the materials, he has not
7 perceived a problem, and recommends that we
8 leave the time for objections to be specified
9 by the judge in the order appointing the
10 master, I guess.
11 CHAIRMAN SOULES: 171. So this
12 is just a recommendation that when a master's
13 report is filed that there be a time limit for
14 objecting to the master's report?
15 HON. SARAH DUNCAN: That was
16 Judge Peeples' understanding.
17 CHAIRMAN SOULES: Okay. And he
18 recommends that we not have that limitation
19 and leave it up to the judge to decide?
20 HON. SARAH DUNCAN: He
21 recommends no change. He hasn't been able to
22 identify any problem with the current rule.
23 CHAIRMAN SOULES: Does anyone
24 disagree with that? Okay. No change. It's
25 unanimous. Is that it?
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1 HON. SARAH DUNCAN: Judge
2 Peeples also said he didn't know if he was
3 supposed to address Page 578 of Volume 1. He
4 didn't think he was, so he didn't. If anybody
5 wants him to, just say so.
6 CHAIRMAN SOULES: Okay. That's
7 it. Thank you.
8 And Judge Brister, you have two or three
9 things, I think. Where would you like to
10 begin?
11 HON. SCOTT A. BRISTER: I've
12 got Joe Latting's -- Joe passed the motion in
13 limine on to me; and then I've got 174, the
14 bifurcation and separate trial deal.
15 CHAIRMAN SOULES: Which would
16 you like to start with?
17 HON. SCOTT A. BRISTER:
18 Probably 174 since we've already talked about
19 it, and I've put some copies up there.
20 MS. SWEENEY: Is that the one
21 on your letterhead?
22 CHAIRMAN SOULES: 174.
23 HON. SCOTT A. BRISTER: Yes.
24 It's my seal with "Draft Rule 174."
25 CHAIRMAN SOULES: Right. And
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1 you've got a red-line at the bottom?
2 HON. SCOTT A. BRISTER: Right.
3 We discussed this last time, and I've
4 identified three issues, one which I put there
5 in the introduction. One was the federal rule
6 and most of the proposals from the materials
7 from the agendas which I put on the back of
8 that of the memo that say add "efficiency and
9 economy" because it's in the federal rule and
10 is under consideration.
11 Two was to draw the distinction between
12 bifurcation and separate trials. We discussed
13 last time there's some confusion as to what a
14 separate trial is. Some people think a
15 separate trial is the same as like a severed
16 trial except you don't sever, you just try
17 them to two juries, two different times,
18 months apart. Other people call what we would
19 now call a bifurcation a separate trial where
20 you have the same jury and you just get one
21 verdict on half the case and then the other,
22 and to straighten that out.
23 And then three was Justice Guittard and
24 Bill Dorsaneo had brought up the matter of
25 what part of the case can you retry, which is
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1 Rule of Civil Procedure 320 and TRAP Rule 81,
2 what part can you send back down; and that you
3 can't send back down part of the case if it be
4 unfairness to the parties; and that you can't
5 send down unliquidated damages if liability is
6 contested.
7 Then the fourth one was what to do with
8 prerequisite issues. We discussed that, on
9 having a separate trial on an introductory
10 matter like limitations, like bill of review.
11 And what I've done in my draft at the bottom
12 is take the current rule with three changes.
13 One is to draw the distinction between
14 separate or bifurcated trials in part (b); to
15 add "or to promote efficiency and economy"
16 from the federal rule. The third one is to
17 make clear that when you talk about a separate
18 trial, we're talking about different juries --
19 sorry about the typo. I don',t have a
20 secretary, so I can't blame the typos on
21 anybody but me -- and that a bifurcated trial
22 is before the same jury.
23 And then the last phrase is taken
24 directly from current Rule of Civil Procedure
25 320 and TRAP 81, that you separate them out
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1 only if they're clearly separable without
2 unfairness to the parties, and that you don't
3 have a separate trial on unliquidated
4 damages.
5 Now, I point out that by the last
6 sentence, by stating that you can't have a
7 separate -- by drawing the distinction between
8 separate and bifurcated trials, and saying on
9 a separate trial you can't have unliquidated
10 damages alone if liabilities are contested,
11 implies that you can't have a bifurcated trial
12 on those, which again is where -- was our
13 concern. On the long case it makes sense
14 often to try the liability phase on a
15 complicated deal, especially if you've got
16 hundreds of people claiming damages, try the
17 liability, because the studies show, of
18 course, sometimes the jury says no liability
19 and you save the time. Very frequently, if
20 you get a yes liability and the case settles
21 during damages, either way you save yourself
22 some time rather than doing the whole trial
23 and increase the odds of settlement by getting
24 that initial -- the same jury, same voir dire,
25 opening statement on the whole case, no hiding
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1 that there are damages claimed and what they
2 are and that stuff, but bifurcating those so
3 you get kind of an interim verdict on
4 liability.
5 So that would be my proposal, and I don't
6 think with the exception of that implication
7 that you can now bifurcate that because we're
8 drawing the distinction between bifurcation
9 and separate trials, I don't think this
10 changes the law, and it certainly doesn't
11 broaden the rule. I mean, the rule that we
12 have right now is about as broad as you could
13 say it. You could argue that actually this
14 limits the rule by putting an unfairness to
15 the party standard in and the other stuff, so
16 that's the issues we discussed.
17 CHAIRMAN SOULES: Okay. I'd
18 like to focus this first to ignore the last
19 sentence for the moment. Is there any
20 opposition to any other changes that Judge
21 Brister is suggesting? Carl Hamilton.
22 MR. HAMILTON: I have a problem
23 with the wording where it says "may order
24 separate trials before different juries." It
25 sounds like that's the only way you can have a
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1 separate trial, and I don't -- I think you can
2 have a separate trial before the same jury, or
3 you ought to be able to.
4 PROFESSOR DORSANEO: That's
5 called a bifurcated trial in this case.
6 HON. SCOTT A. BRISTER: That's
7 the confusion. There are actually two courts
8 of appeals cases. This comes up on the
9 punitive damages when you ask, "Do the same
10 10 people that vote for liability and gross
11 negligence, do those same 10 have to sign on
12 the punitive damages amount?" One case says
13 yes, because after all, we instructed that the
14 same 10 have got to agree on the entire
15 verdict. But a court -- the Corpus Christi
16 case says no, it's a separate trial. You
17 could have done these to two entirely separate
18 juries, so therefore you can have a different
19 10 on these two halves, so there is a
20 confusion. Some courts think a separate trial
21 is just like a severed trial. Some people
22 think a separate trial is a bifurcated trial.
23 Most of us think separate trial means two
24 different months apart, two different sets of
25 faces, two different voir dires, two different
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1 everythings. Bifurcated is one proceeding,
2 but you get an interim verdict.
3 MR. HAMILTON: Bifurcated is
4 not just limited to bifurcated damages?
5 HON. SCOTT A. BRISTER: Any
6 issue.
7 PROFESSOR DORSANEO: Any
8 issue. As I'm interpreting this draft, the
9 defining characteristic of a bifurcated trial
10 is that it is before a single jury.
11 HON. SCOTT A. BRISTER: Right.
12 PROFESSOR DORSANEO: So all the
13 other information you have about bifurcated
14 trials in your head needs to be ignored.
15 CHAIRMAN SOULES: Bifurcated
16 is -
17 PROFESSOR DORSANEO: -- single
18 jury.
19 CHAIRMAN SOULES: -- stepping
20 through a trial and different pieces to the
21 same jury. Separate trials are different
22 juries but on issues that eventually have to
23 all be resolved before a final judgment can be
24 rendered in the case.
25 HON. SCOTT A. BRISTER: That's
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1 always been my understanding, but it's not
2 everybody's.
3 CHAIRMAN SOULES: And severance
4 is two causes of action, any of which can
5 result in a final judgment.
6 Okay. Any opposition, then, down to the
7 final sentence? Okay. Everything is approved
8 down to there.
9 And we talked about the issues relating
10 to the last sentence last time. I think we
11 got to this point, so I'm just going to ask,
12 is there any opposition to the last sentence
13 as written by Judge Brister? No opposition.
14 MR. BECK: Wait, Luke, let me
15 make sure I understand the last sentence here.
16 CHAIRMAN SOULES: David Beck.
17 MR. BECK: Judge, does this
18 mean that the only way you're going to be able
19 to have a separate trial on unliquidated
20 damages alone is if either liability has been
21 decided or agreed?
22 HON. SCOTT A. BRISTER: On
23 liquidated?
24 MR. BECK: No, unliquidated.
2511 HON. SCOTT A. BRISTER: The
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1 discussion was last time let's don't have it
2 where the appellate courts on reversing part
3 of the case can't bust it up but the trial
4 court could bust it up, or where the trial
5 judge on a new trial can't bust part of it
6 back and do it over again. So all I did was
7 just copy the standard for a new trial for a
8 reversal on appeal into this. And I think the
9 effect of it means if you're going to say you
10 can't -- if you've had -- well, assume if it's
11 gone up, it would be you had a finding of
12 liability, unliquidated damages, you find
13 something wrong with the unliquidated
14 damages. You have to reverse liability as
15 well and send it back. As I understand it in
16 federal court, you can leave liability finding
17 for the plaintiff but just send back
18 unliquidated damages, but under Texas practice
19 you can't do that.
20 MR. LOW: So this wouldn't
21 change Iley vs. Hughes?
22 CHAIRMAN SOULES: It would
23 not. Any opposition to the last sentence?
24 Okay. Then, Judge, 174 is approved as written
25 on Judge Brister's May 14th, 1997 letter.
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1 Next.
2 HON. SCOTT A. BRISTER: Then
3 there's a motion in limine deal. Also it's
4 one page with the seal on "Draft Rule on
5 Motions in Limine." And I think the deal
6 was -- I don't know if we voted to have a rule
7 on motions in limine or if Joe was to draft
8 one, and I wanted to make his draft more kind
9 of normal and like the other rules.
10 So as I understood it, his concerns were,
11 number one, to discourage the boilerplate
12 motion in limine. Don't comment on calling
13 any witness unless they should be called,
14 don't offer any hearsay unless there's an
15 exception, dah-de-dah-de-dah.
16 And two was to encourage Robinson vs.
17 duPont matters to be included in a motion in
18 limine. And I think the conclusion -- whoops,
19 I've got all of them in my file. That's why
20 you don't have one. Sorry about that. I just
21 noticed that.
22 And I think we did vote on the issue of
23 do you want to make rulings in limine
24 appealable, or do you want to keep the current
25 practice, which is they don't matter. Granted
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1 or denied, it doesn't matter, you've still got
2 to object at trial. I think we voted to keep
3 the current practice on that.
4 So if you want a rule, and I've just
5 drafted one here out of whole cloth, I've had
6 a law clerk look for motions in limine rules,
7 and there are about 20 states that have rules
8 on motions in limine. They all say nothing
9 other than they've got to be in writing,
10 unless the judge says they don't have to be in
11 writing, and they've got to be filed five or
12 10 days before the trial, unless the judge
13 says they don't have to be filed five or 10
14 days before the trial. So what this rule
15 says, the first sentence says it has to be in
16 writing, filed at the time the court directs.
17 I just hesitate to get into the, you know,
18 it's four days, not five days, do we strike
19 witnesses, does it not count, you know. The
20 whole idea of the motion in limine is to help
21 the trial, not hurt it, not make it more
22 complicated.
23 And I've tried to address the scope
24 section that you state with specificity the
25 anticipated evidence that you think is going
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1 to come in that you want out, including expert
2 testimony, the Robinson matter. And let's
3 see, the motion need only address matters
4 where considerations of efficiency or
5 prejudice justify a ruling prior to rather
6 than during trial. Don't include standard
7 rules of procedure or decorum. Don't include
8 hypothetical requests unrelated to the
9 anticipated evidence, or matters that there's
10 no prejudice or delay, just doing them during
11 trial. And then if the motion does a lot more
12 than that, the judge can make you go back and
13 do it right.
14 And then you can grant, deny or carry it
15 with the case; sign an order saying don't
16 mention it, which is just the current law.
17 And then last, that on review there's
18 nothing to review; it's an interim ruling.
19 And then I've added in brackets -- we did have
20 the discussion, you know, we've gone through a
21 long Robinson hearing, let's say, and the
22 judge has made the ruling. He's still got to
23 throw all of that into the record again at
24 trial suggesting -- the last sentence would
25 suggest if you do it pursuant to 166 and have
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1 a written pretrial order by the judge making
2 the ruling, then you don't have to tender it
3 all again at the trial to preserve the record,
4 but that's just a suggestion.
5 I'm not so sure we need this rule, but I
6 don't remember --- you know, our task was to
7 draft one, if we thought we needed one, and
8 that's just my draft idea.
9 CHAIRMAN SOULES: Okay.
10 Discussion. David Beck.
11 MR. BECK: I really question
12 whether we need a rule on motions in limine.
13 We don't have to specific rule now, but we
14 have developed a pretty good practice in our
15 courts with respect to motions in limine. For
16 example, the fact that we're filing or
17 granting or sustaining a motion in limine not
18 preserving error, that's well established law
19 and has been well established for a long
20 time.
21 As far as boilerplate, you know, we can
22 all sit there in this meeting and agree on
23 what we think is boilerplate. But let me tell
24 you, there are a lot of lawyers that don't
25 know what boilerplate is, and unless they have
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1 a court order that says don't stand up in
2 front of the jury and comment on what the
3 witness would have said, unless that witness
4 is or is not within the control of -- let me
5 tell you, they violate that. So I question
whether we need this, and I certainly have
7 some problems with this specific rule as it's
8 worded.
9 CHAIRMAN SOULES: Buddy Low.
10 MR. LOW: My question also is,
11 it doesn't change Hartford vs. McArdle. I
12 mean, that's just incorporated in it. It
13 doesn't change that. All it does is just
14 suggest making it. And a lot of times they
15 come up, you know, in the middle of the trial,
16 and I know it says you can grant it, but the
17 system we have now seems to work all right,
18 because most of the judges in Beaumont don't
19 have much trouble getting people to file
20 motions in limine, because they will do that.
21 I don't think we need a rule.
22 PROFESSOR DORSANEO: Either
23 that or Bridges vs. City of Richardson.
24 CHAIRMAN SOULES: Anyone else?
25 Paula Sweeney.
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1 MS. SWEENEY: I would concur
2 100 percent with David and Buddy. I think
3 right now we have a practice that sort of
4 operates as almost a long check-off Rule 11
5 agreement. You sit in there and you agree on
6 90 percent of it, and it's just things that
7 aren't going to happen during trial and it
8 solves an inordinate number of problems that
9 otherwise we have to confront during the
10 trial, and I don't think we need it. Far from
11 having a current problem, I think we have
12 currently something that works really well and
13 we ought to leave it alone.
14 CHAIRMAN SOULES: Anyone else?
15 Okay. Well, let's take a vote on the first -
16 HON. SCOTT A. BRISTER: Put me
17 down as -- because Joe, I think, is the main
18 one that wanted this, so on his behalf I know
19 he really wants one.
20 CHAIRMAN SOULES: He convinced
21 us to let him take a shot at drafting one, and
22 he and you did, and I guess that's -
23 HON. SCOTT A. BRISTER: But I
24 don't necessarily disagree with the comments
25 that have been made. It's hard to have a
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1 problem with something that doesn't matter,
2 that you can't complain about on appe'al.
3 MR. BECK: Joe didn't file a
4 motion in limine to keep us from voting on it,
5 did he, Luke?
6 CHAIRMAN SOULES: No, he didn't
7 do that.
8 HON. SCOTT A. BRISTER: He left
9 the country, though.
10 CHAIRMAN SOULES: Joe's issue,
11 as I recall it, was that there was so much
12 boilerplate in, you know, dozens and dozens of
13 what would appear to be routine motions in
14 limine, points in a motion in limine, that
15 take up take time and waste time. Paula has
16 mentioned most of those are agreed to anyway
17 probably in advance. But I think that was
18 Joe's main issue, unless somebody remembers it
19 differently.
20 MR. BECK: Can't judges handle
21 those kind of issues by way of docket control
22 orders or specific orders for their individual
23 courts?
24 CHAIRMAN SOULES: Sure.
25 HON. SCOTT A. BRISTER: It's
ANNA RENKEN & ASSOCIATES CERTIFDED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8105
1 totally disregarded. I've got that in my
2 pretrial instructions saying don't do any
3 boilerplate motions, just the specific. I
4 still get 50 items. And you ask the lawyer,
5 and he doesn't even know what they are because
6 he's just told somebody to print out the
7 standard motion in limine. But that's easy.
8 I'll just say, "You may have this back, and
9 when you come back with something interesting,
10 let me know."
11 CHAIRMAN SOULES: All right.
12 Those who favor a rule on motion in limine
13 show by hands.
14 Those who disfavor a rule on motion in
15 limine. It looks like it's unanimous against
16 any rule o'n motion in limine, so that fails.
17 You don't have to write that one, Bill.
18 Okay. That takes care of motion in limine.
19 HON. SCOTT A. BRISTER: I think
20 that's all I have.
21 CHAIRMAN SOULES: And 174.
22 HON. SCOTT A. BRISTER: Except
23 one, 76a, which we may want to wait on Richard
24 for that.
2511 CHAIRMAN SOULES: Then this
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1 covers, Judge Brister, 579 to 635 of the
2 agenda and second supplement 353 to 358?
3 HON. SCOTT A. BRISTER: Right.
4 CHAIRMAN SOULES: Okay. Who is
5 going to report on Alex Albright's venue? I
6 understand somebody was going to take that on.
7 HON. SCOTT A. BRISTER: I
8 talked to her. I don't think so. She was
9 thinking of putting it off. I was interested
10 in that motion for rehearing thing, but she
11 said she thought we were just going to save it
12 until later.
13 CHAIRMAN SOULES: Okay. Was
14 anyone going to report for Orsinger?
15 PROFESSOR CARLSON: He may be
16 coming tomorrow. I don't know.
17 HON. SCOTT A. BRISTER: I can
18 talk about my -- I don't have anything
19 drafted, but just the question we briefly
20 discussed about whether 76a ought to -- "court
21 records" ought to cover the discovery that's
22 in your file, that's not at my place, it's at
23 your place. And my argument on that is that
24 it shouldn't.
25 The appellate rule does not cover that.
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1 In the appellate rule, the file you seal is
2 the stuff that we normally think of as the
3 court file. And the problem from a trial
4 judge's perspective of 76a is "court records"
5 are anything that's in your file, which of
6 course, I don't have any idea what it is, that
7 relates to public safety, government and the
8 other things listed which, of course, I don't
9 know whether they do or not. And so when I
10 get these standard motions saying, you know,
11 the parties have agreed to a confidentiality
12 order, my position is I have to do it by 76a
13 because I don't know what's in their files.
14 How can I, without knowing what's in
15 their files, know that it doesn't affect the,
16 public health or safety, the administration of
17 public office, the operation of government?
18 And how do you give the public paper some
19 right of access to the discovery that's in the
20 attorneys' files and yet, you know, it's not
21 mine? I'm sealing something I don't have and
22 don't know anything about. That's the
23 quandary.
24 But the TRAP rule that we've sent up does
25 not include anything outside of the courthouse
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1 and court records as far as what's sealed with
2 the same procedure. So I would recommend we
3 drop from the definition of "court records"
4 anything that's not at the courthouse.
5 CHAIRMAN SOULES: Well, just so
6 that we recognize the history on this. This
7 was hotly debated and heavily disputed when
8 76a was passed in the beginning. The fact
9 that depositions are no longer filed and that
10 duces tecums are no longer filed and the
11 exhibits are no longer filed, and I guess
12 document production was never filed, the
13 proponents of 76a were pretty vigorous that
14 this section (c) be in there.
15 And of course, the way 76a got passed
16 anyway was that there was total opposition.
17 There was a majority opposed to it until one
18 of the groups, one of the minority groups, the
19 family law was in the majority, the family law
20 lawyers were in the majority, and so the
21 minority then convinced the family law lawyers
22 to vote with them and pass 76a as long as the
23 family law -- the Family Code was exempt from
24 76a. So they put together a coalition
25 overnight over at the hotel, which was the
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1 first time that ever happened in the history
2 of this Committee, and came back after that
3 lobby and it got passed, of course, with a big
4 push from one or more members of the Court at
5 the time. So I don't know what the Court's
6 attitude would be about this today, but that
7 was the reason for it.
8 There is a court of appeals case, a
9 pretty interesting case, I don't know the
10 cite, that's come out recently that says that
11 a judge should be able to -- that the 76a
12 hearing can be bifurcated. The judge can
13 first hold a hearing and determine whether or
14 not the matter that is to be protected is a
15 court record. And if the decision is it's not
16 a court record, then they don't even go
17 forward with the postings and all that has to
18 be pursued in the context of a 76a
19 proceeding. You can have this hearing on is
20 it a court record without ever going through
21 this 76a process. And it looks right to me,
22 the logic that's suggested.
23 You've probably read that case. It's
24 pretty good. Bill Dorsaneo.
25 PROFESSOR DORSANEO: I've had a
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1 number of these 76a cases. I think I've lost
2 them all on both sides, I believe. But the
3 issue as to whether the thing is court
4 records, there are at least several courts of
5 appeals that say that the one that wants to
6 have them made public has to establish that
7 they're court records when they're unfiled
8 discovery, and that's a complicated matter in
9 and of itself that involves a number of
10 complicated questions about, you know, wh'at
11 kind of injury and how probable it has to be
12 and things of that type.
13 In my own e.xperience, unless someone like
14 the newspapers happen to develop an interest
15 in the case, unless the judge just wants to
16 assume some sort of responsibility to protect
17 the public, then this does not work very"well
18 at all.
19 HON. SCOTT A. BRISTER: But
20 that's not the way it's going to happen. The
21 way it's going to happen is, if the papers,
22 let's say -- not to pick on papers -- but the
23 papers are the ones who are going to want this
24 and have the burden of showing it is within
25 this, and they're not going to be there on the
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1 motion, the confidentiality order or
2 agreement. They're not going to know about it
3 unless I make you go through 76a. And so I'm
4 going to say, "Sure. That's fine.
5 Confidential."
6 And then the article is going to be
7 "Judge Seals Files Contrary to this Rule."
8 That has happened to me. So the way it's
9 going to happen is, I'm going to get the --
10 I've got to make a decision, without knowing
11 what any of these records are, that's going to
12 be the one who hid the files from the public,
13 not you all, because you all are just
14 litigants. You're expected to hide them from
15 the public.
16 CHAIRMAN SOULES: Chip Babcock,
17 and then I'll get to Buddy.
18 MR. BABCOCK: The way this rule
19 came about stemmed from a case that I handled
20 pre-76a where the parties had gotten together
21 and they had sealed the entire court file, not
22 just the discovery, but the pleadings and the
23 opinions and the orders of the court so that
24 the only thing left in the case was a little
25 computer notation that Smith had sued Jones.
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1 And we went all the way to the Texas Supreme
2 Court on that and lost on a procedural issue,
3 the Court holding that there was no
4 jurisdiction after the trial court had lost
5 jurisdiction of the case to challenge this
6 agreed-upon order to seal the entire record.
7 The Legislature passed a statute and said
8 the Supreme Court has got to pass a rule
9 dealing with this issue, and I think it.said
10 specifically court records, court files and
11 settlement documents, which typically are not
12 files of record either.
13 So this Committee, this group and then a
14 special group that I was on got into this, and
15 there were tremendous policy arguments back
16 and forth on the issues that were argued out
17 resulting in this rule. In my trial practice,
18 I don't see this coming up as a major problem
19 day in and day out, and I would suggest that
20 unless there is evidence that it is a
21 significant problem that we not change it.
22 I do, however, Judge, have situations, in
23 fact I'm dealing with one right now, where the
24 parties are attempting to agree on a
25 protective order with respect to unfiled
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1 discovery, and the parties agreed that this
2 subsection (c) is not implicated because the
3 records -- the case itself and the records do
4 not implicate public health safety and the
5 administration of public office and the
6 administration of government. To me, and this
7 is what I proposed in subcommittee, if there
8 needs to be clarification, to me, if no one
9 argues before you that subsection (c) is
10 implicated, then I think it is appropriate for
11 you to enter a protective order, if it is
12 otherwise called for, without getting into the
13 issue of whether 76a is implicated.
14 That does not, however, prevent, as you
15 say, a newspaper or radio station or some
16 public interest group coming in later, as the
17 rule provides, and saying, "Hold it. The
18 parties agree that subsection (c) wasn't
19 implicated. We don't agree with that. We
20 want a 76a hearing." And in that event, I
21 think they're entitled to it and then you do
22 have to get into whether it's a court record
23 or not.
24 Now, if you're getting unnecessary flak
25 from the Chronicle, then I can maybe help you
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1 with that, but --
2 HON. SCOTT A. BRISTER: It's
3 too late.
4 MR. BABCOCK: But I don't see
5 changing -the rule, unless, you know, the
6 collective wisdom here is that we've got a
7 huge problem that we need to solve.
8 CHAIRMAN SOULES: Well, (c) is
9 here because it's in -- I mean, (c) is
10 operative because it's in the rule. And that
11 was where the big division came on 76a. There
12 is not a constitutional right to see this
13 material. It's not a court record in terms of
14 First Amendment cases. And the certain group
15 that wanted the discovery in products cases
16 always available and a certain group that
17 wanted everything open for the newspaper's
18 scrutiny still couldn't get a majority without
19 picking up the family lawyers by enlisting
20 their support by excluding them from the
21 rule. But with that, they did. But this (c)
22 is not -- (c) makes these things court
23 records. They are not court records for any
24 right of access other than through 76a(c). So
25 if we take it out, we don't have a
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1 constitutional issue, constitutional-level
2 problems. And Chip is shaking his head right,
3 and they agreed with that in the beginning.
4 So I guess I'm trying to give a balanced
5 history of the whole thing. I did bring this
6 up later to see if there might be some
7 inclination to change it and was told that no
one wanted to change it that quick. There was
an election that occurred not too long after
10 this passed. But anyway, we ought to thrash
11 this out. Buddy Low.
12 MR. LOW: You know, you will
13 recall this was one of the first times we ever
14 had most of the Court here, and the newspapers
15 had they're lawyers. Two lawyers met with the
16 Committee. And the concern of all of the
17 Committee members was the fact that at that
18 time that's when we went back to filing
19 certain things which had been -- and the
20 concern of the Committee members was that they
21 didn't want some newspaper guy coming up and
22 saying, "I have a constitutional right to look
23 at this in your file," and go through the
24 files. And so we tried -- it was attempted to
25 make it, well, if they're entitled to
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1 something, it's in the court and not in the
2 file. And that was -- I'm not saying that's
3 the way the thing was voted, but everybody was
4 concerned about that. The Court was concerned
5 about the publicity, the elections, and there
6 were a lot of concerns.
7 CHAIRMAN SOULES: Bill
8 Dorsaneo.
9 PROFESSOR DORSANEO: Well,
10 again, this (c) is not worth much if the
11 burden is on the one who wants to get the
12 documents made public to establish that the
13 unfiled discovery is a court record unless --
14 you know, before you've actually won the case
15 on the merits. I mean, if you're making a
16 claim that a particular drug is a dangerous
17 drug and it shouldn't have been prescribed and
18 it shouldn't have been approved by the FDA and
19 that all of the documents about the approval
20 process are court records in the discovery, and
21 they need to be made public, the defendant
22 will argue that, well, you can't show that
23 these matters have a probable adverse effect
24 on the general public health until you win
25 this case, which is what this case is about.
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1 And so you know, the way the courts of
2 appeals have interpreted it -- and the
3 newspapers are picking their spots. They're
4 not coming in and arguing this section very
5 often because they're afraid it will go away.
6 But as far as the rest of us, it's not really
7 worth much, I don't think.
8 CHAIRMAN SOULES: It's hard to
9 administer, though. It's very hard to
10 administer.
11 HON. SCOTT A. BRISTER: It
12 implicates me in a cover-up. I mean, the
13 government cover up -- there's little that's
14 more damaging to a government figure than a
15 government cover-up. And I've got to make a
16 decision whether this is or is not bad or good
17 without the records and frequently without
18 anybody to argue the other side, because the
19 parties are in agreement it ain't, but that's
20 the classic setup for me to be in a cover-up
21 and be the one that gets blamed for it, and
22 boy, there's little that's more damaging.
23 CHAIRMAN SOULES: I don't like
24 it now. I didn't like it then. And I hear a
25 new spokesman, and I've got no problem with
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1 taking a run at it.
2 MARK SALES: If it's a motion,
3 I'll second it.
4 HON. SARAH DUNCAN: Can we take
5 out (b) too?
6 CHAIRMAN SOULES: Justice
7 Duncan wants to take out (b) also.
8 MR. BABCOCK: You can't take
9 that out without violating the statute.
10 CHAIRMAN SOULES: Okay. Any
11 further discussion? Chip Babcock.
12 MR. BABCOCK: In subcommittee,
13 the solution for Judge Brister's problem that
14 I proposed that I thought had general
15 acceptance was that we may need to, and if we
16 do need to, then we should, make explicit that
17 with respect to this subsection the judge is
18 under no obligation to hold a 76a hearing
19 unless somebody, it doesn't matter who, but
20 somebody contends that the records are court
21 records, some or all of them are court
22 records, under 76a(c), (2)(c).
23 MR. YELENOSKY: Luke.
24 CHAIRMAN SOULES: Steve
25 Yelenosky.
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1 MR. YELENOSKY: I agree with
2 that, because if you take (c) out, how does
3 (7) operate if in fact somebody later comes
4 back and says, "Hey, those are going to have a
5 probably adverse effect on public health," and
6 all the person holding the discovery has to
7 say is, "Well, they don't meet the definition
8 of a court record," so you don't even get to
9 that issue. I mean, it's got to be in there
10 for that instance.
11 So I agree with Chip. The way to fix it
12 is not to define it out but to-put something
13 in there that satisfies Judge Brister's
14 concern.
15 HON. SCOTT A. BRISTER: But you
16 can put that the other way around. I can
17 order to you file discovery in the case. It's
18 just the general rule is you don't, but you
19 know, somebody can file it or I can order you
20 to file the discovery in the case. And that
21 shoe ought to be on whoever's foot wants it to
22 be done. But this is not a court record. It
23 has never touched the courthouse. Nobody at
24 the court knows anything about it. Now, how
25 you can say that is a court record is just a
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1 misuse of the English language. That's your
2 record. Until I order you to file it, and I
3 could do it, if somebody comes in and makes a
4 showing, but then they need to come in, make
5 the showing, and then we can go from there.
6 MR. YELENOSKY: But can you do
7 that under continuing jurisdiction under (7)?
8 The case is over and somebody comes in, and
9 you're saying you can then order them to file
10 that discovery so you can have a 76a hearing?
11 HON. SCOTT A. BRISTER: Well, I
12 mean, you could declare me to have
13 jurisdiction just in the -- I mean, 76a out of
14 whole cloth declares me to have a jurisdiction
15 that never existed before. You could
16 certainly do that again if that's a problem.
17 MR. BABCOCK: And Judge, there
18 are cases that, not under the Constitution,
19 but under the common law right of access,
20 there are cases primarily in Florida and
21 they're primarily older, but do extend the
22 common law right of access to the discovery
23 process. There are cases in Florida that say
24 that the press has got the right to attend
25 depositions in a civil case. I don't know if
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1 that's rightly decided or not, and I think the
2 trend in Florida is going back the other
3 direction. But it is not something that Texas
4 dreamed up for the first time that the
5 discovery process would be part of the common
6 law right of access.
7 MR. MARKS: But that doesn't
8 make it right.
9 CHAIRMAN SOULES: Okay. Moved
10 and seconded. Paula, you've got the floor.
11 MS. SWEENEY: Well, at the risk
12 of being one of one again, I object to
13 changing the rule. I have not heard anyone at
14 any time utter the complaint that Judge
15 Brister has. I think there are other ways to
16 address that complaint without eviscerating a
17 rule that was the product of lengthy
18 discussion and a great deal of compromise and
19 a huge amount of work and that has been in
20 effect for several years now. And I think the
21 purpose of the rule is foiled and that the
22 reason for this discussion is to attempt to
23 foil, of course, not by the judge, but the
24 reason for much of this discussion is to
25 attempt to foil the purpose of the rule and to
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1 hide and seal and secrete things that do
2 adversely affect the public interest and the
3 public welfare and that that ought not be
4 something that this Committee embarks on.
5 CHAIRMAN SOULES: Buddy Low.
6 MR. LOW: At the time the rule
7 was drawn, we didn't know the effect. It was
8 brand-new. We know a lot more about it and
9 how it operates than we did when that rule was
10 passed. So I think we shouldn't ignore the
11 present knowledge that we have as to how the
12 rule operates. It might be solved other
13 ways. I'm not saying that.
14 CHAIRMAN SOULES: So what's the
15 motion? To delete (c)?
16 HON. SCOTT A. BRISTER: Yeah.
17 And then we'll need to look through the rule
18 and probably make some stylistic changes to
19 reflect that. And I wouldn't have any problem
20 with putting in some kind of language about,
21 you know, if somebody wants to open discovery,
22 they file a motion to have the court order it
23 and go through the 76a rigmarole.
24 CHAIRMAN SOULES: Bill
25 Dorsaneo.
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1 PROFESSOR DORSANEO: I think
2 what you're complaining about is the way that
3 it's drafted, and I don't like a non-court
4 record being called a court record so that a
5 particular objective can be achieved, and I
6 think it needs to be redrafted. But I would
7 wonder about judges who -- I'm not saying this
8 about you at all -- who would be a party to a
9 confidentiality order without -- you know, an
10 umbrella protective order without knowing
11 whatever in the world it is that they're
12 putting in the deep freeze. That doesn't make
13 any sense to me. I don't think I would.do
14 that, if I were asked to do it, in order to
15 facilitate a settlement between private
16 parties. And in sentiment I agree with Paula
17 that this stuff shouldn't be just kept secret
18 from the world because you've gotten a judge
19 to stamp, you know, "sealed" on it. But I
20 don't like this rule at all, and I don't like
21 the way that unfiled discovery is called a
22 court record, because it kind of drives you
23 mad when you're trying to work through the
24 rest of it.
25 HON. SCOTT A. BRISTER: Well,
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1 I'm making everybody do all 76a every time I
2 get one of these agreed confidential because
3 of this problem, because I don't know what
4 they are. And attorneys from very good firms
5 in Houston are feeling very put upon that I'm
6 making them do this, because, of course,
7 they're afraid when they file the 76a that
8 then the papers are going to get in and
9 they're going to want it.
10 CHAIRMAN SOULES: Judge, where
11 is your power to cause discovery not filed of
12 record to be filed of record?
13 HON. SCOTT A. BRISTER: Well,
14 I'll have to think about that. I mean, if
15 it's discovery in the case, you know, I can --
16 I've had people bring depositions in, for
17 instance, and I order them filed because the
18 clerk won't take them unless I write on the
19 docket sheet they're ordered filed.
20 MR. YELENOSKY: You're not
21 opposing that, though.
22 CHAIRMAN SOULES: Well, would
23 it work if we just took out the word "not" out
24 of (c)? It's still broader than the
25 constitutional right of access.
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1 MR. BABCOCK: No, because
2 discovery filed of record is a court record in
3 any event.
4 CHAIRMAN SOULES: Not under the
5 Constitution.
6 HON. SCOTT A. BRISTER: It
7 doesn't matter what it's about. It's a public
8 record.
9 CHAIRMAN SOULES: No, not when
10 we passed this rule. I hadn't looked at it in
11 a long time. It had to be used as evidence
12 before it was a court record.
13 MR. BABCOCK: Well, what you do
14 is you file discovery in advance or in support
15 of your motion for summary judgment or in
16 opposition to a motion for summary judgment.
17 The court rules on it, and that's a court
18 record.
19 CHAIRMAN SOULES: That's a
20 court record. But just a deposition on file
21 in the district clerk's office in the old days
22 was not.
23 MR. BABCOCK: You're right.
24 That does make it different. But if you bring
25 discovery to the judge's attention and say,
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1 "Judge, make a ruling, and here is my
2 evidence. Here is what I want to you make it
3 on," that's a court record.
4 CHAIRMAN SOULES: Okay. So
5 without complicating things, the motion is to
6 delete (c) made by Judge Brister and seconded
7 by John Marks. Those in favor show by hands.
8 Nine.
9 Those opposed. Six. Nine to six.
10 PROFESSOR DORSANEO: But
11 Mr. Chairman, I thought the judge had a
12 separate part of his motion, though, about
13 adding back in the responsibility to evaluate
14 information that the parties treat as
15 confidential if someone raises the public
16 importance of the disclosure of the
17 information.
18 CHAIRMAN SOULES: How do we do
19 that?
20 MR. YELENOSKY: Well, if you've
21 taken it out of the definition and you're
22 talking about the operation of (7), then
23 you're going to have to say that for that
24 purpose, "court records" includes unfiled
25 discovery or you're going to have to say that
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1 the rule applies to something more than just
2 court records. You can call it sealing court
3 records and unfiled discovery.
4 PROFESSOR DORSANEO: I think
5 somebody needs to work on this some more.
6 HON. SCOTT A. BRISTER: I'll be
7 happy to take a shot at that.
8 PROFESSOR DORSANEO: Great.
9 CHAIRMAN SOULES: That's why I
10 was thinking about taking out the word "not"
11 and putting in some power of the court to have
12 discovery filed. Then you could raise these
13 issues. "This discovery has gone on. We
14 think it affects the public interest. We
15 think you ought to cause it to be filed, and
16 we ought to have access to it." But that
17 doesn't implicate your initial determination.
18 So if it's filed of record, you get access to
19 it.
20 HON. SCOTT A. BRISTER: Then at
21 least I've got somebody else to argue the
22 other side of the issue.
23 CHAIRMAN SOULES: It's not in
24 my court. It's not filed of record.
25 Well, make it be filed of record, because
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8128
1 it's da-dah. Okay. Well, it is da-dah. File
2 it, and we're going to have access to it.
3 And then you've got the press there and
4 you can make a decision in their presence
5 based on what they tell you, so I don't know
6 if that's an approach to maybe one, but
7 whatever the approach is, we'll look at it in
8 July.
9 Okay. 76a is discussed with a vote of
10 nine to six to delete (2)(c) and refer it back
11 to committee for drafting, refer it back to
12 you, Judge Brister, for drafting in response
13 to that vote.
14 MR. BABCOCK: Luke, could I
15 help the judge on that?
16 CHAIRMAN SOULES: Yes, sir.
17 Does anyone else want to help on this? Paula,
18 do you want to help on this?
19 MS. SWEENEY: Sure.
20 CHAIRMAN SOULES: The other
21 thing that was going on, and there was
22 discussion that there was a lot of unfairness
23 going on, that in a products case they make a
24 big confidentiality order, go through a big
25 process, and then the product manufacturer is
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8129
1 in a gotcha situation, so it's all been done
2 under seal or it's all been done
3 confidentially, and one of the rules of the
4 settlement is "I'm going to pay your plaintiff
5 a whole lot of money, but you've got to give
6 me all the stuff back." So all the stuff
7 comes back. The next time out the plaintiff
8 has to start all over again. Maybe that was
9 not fair, and so I'm just not trying to judge
10 the situation.
11 HON. SCOTT A. BRISTER: And it
12 makes sense to allow the next plaintiff or the
13 "60 Minutes" or whoever to come in on a
14 motion and say, "Make them file what you've
15 got from that case."
16 CHAIRMAN SOULES: This stuff
17 affects the public health and you ought to
18 cause it to be filed, and we ought to have
19 access to it.
20 HON. SARAH DUNCAN: I just want
21 to say for the record that I think there are
22 several of us that only voted to delete
23 subsection (c) with the understanding that it
24 was going to be added back in, but that there
25 were going to be parties arguing that before
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306•1003 8130
1 the judge and there might or might not be an
2 in-camera inspection or whatever.
3 CHAIRMAN SOULES: Paula
4 Sweeney.
5 MS. SWEENEY: Well, it's not
6 always the parties to a given settlement who
7 are able to argue this should be public
8 record. It's parties to other cases or the
9 press.
10 HON. SARAH DUNCAN: Right. I
11 understand that. And my understanding is that
12 Judge Brister is going to draft it so that
13 anyone can come in -
14 HON. SCOTT A. BRISTER: Put in
15 a mechanism to do that.
16 HON. SARAH DUNCAN: -- and
17 argue that those records should be made a
18 court record for the benefit of the public.
19 Am I right, Scott?
20 HON. SCOTT A. BRISTER: Yes.
21 CHAIRMAN SOULES: Okay. I
22 think we've got that out. What time is it?
23 Noon. It looks like there's a pretty good
24 chance we can finish today and not work
25 tomorrow, because we're now on new business,
ANNA RENKEN & ASSOCIATES CERTIFIED COURT REPORTING 925B CAPITAL OF TEXAS HIGHWAY #110 • AUSTIN, TEXAS 78746 • 512/306-1003 8131
1 right? The third agenda. And we'll try to i 2 march forward. Do you all want to just take a
3 short lunch, 30 minutes, and get back here and
4 go to work.
5 (Lunch recess.)
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5 I, WILLIAM F. WOLFE, Certified Court
6 Reporter, State of Texas, hereby certify that
7 I reported the above hearing of the Supreme
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9 Morning Session, and the same was thereafter
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of original transcript: $ S^1 O `
Charged to: Soules & Wallace P.C.
Given under my hand and seal of office on
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