Texas Family Law Podcast: New Discovery Rules (feat. Audrey Blair)

discovery rules podcast

This week Jake, along with special guest Audrey Blair, discuss changes to the rules governing discovery in family court proceedings. Audrey Blair provides representation to clients in Family Law Appeals and Litigation Support for attorneys. She is a Board Certified family attorney and has been practicing family law in Texas since 2002. With her background in family law and family law litigation, Audrey brings vast experience and knowledge to the resolution of family law issues. Listen as she gives invaluable insight as to how these new rule changes will affect your family law case.

The Texas Family Law Podcast is available for download on SoundCloud, Apple Podcasts, and Spotify. 

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New Family Court Discovery Rules (feat. Audrey Blair)

Jake: So, for this week we've gotten lots of requests to go over the changes to some discover rules that just came out effective this month. I thought it'd be smart to invite on here, my friend Audrey Blair, who's on with us right now. Brian's not going to be joining us this week.

First of all, Audrey, welcome. Thanks for joining the podcast.

Audrey: Yeah, thanks. Glad to be here.

Jake: All right. So, background is, I know Audrey from when I first started practicing, actually I guess we would have, I don't know if we had a case against each other, but at the time Audrey was living in Austin, Texas in working at, I'm going to get the name wrong. Audrey what it was then?

Audrey: It was Noelke, English, Maple, St. Ledger, Blair at the time.

Jake: Got it, and you were the Blair. Tell us what you've been up to since then and where you're at now.

Audrey: I moved to Dallas about two and a half years ago and my practice went really from a litigation practice to now a family law practice centered on writing trial briefs, summary judgements and doing research projects for family lawyers. And I also handle family law appeals. So, I've gone from the litigation world to the research world.

Jake: So, courtroom to typing out really a Westlaw.

Audrey: Courtroom to Westlaw

Jake: Do you do stuff just for the Austin market or you do it statewide in Texas?

Audrey: I can do it from anywhere. I lot of my clients are in Austin just because I practiced there for so long, but I have picked up some folks I work with around the state, so I can pretty much work for anybody.

Jake: Great. I know we have listeners throughout the state. Actually, I was talking to one of our listeners in Lubbock last week, or maybe it was two weeks ago. We've got folks in Houston, Dallas, Austin listening. So, before I forget tell us your contact information or repeat it at the end. How does anybody looking for you find you?

Audrey: Probably my website is the best way to find me. It's AudreyBlairLegal.com. And you can also find me on Facebook, just under my name. Audrey Blair.

Jake: Great. Okay let's get into everybody's favorite topic, which is discovery.

For those that are listening that aren't lawyers, just generally speaking, discovery is the process, and we talk about on our website actually, about one of the steps of any lawsuit is going through the discovery process, which on the broad sense is just an exchange of information.

We're talking about the most typical being a request for disclosure, a request for production, and interrogatories, which are sworn questions that are proposed to each side and the other. Somebody answers them under oath, requests for documents, and then disclosures where we disclose information about witnesses and experts and all that.

It's one of the more tedious parts of a lawsuit, but absolutely necessary. Particularly if you have a case that's going to court, you don't want your lawyer showing up not knowing anything about the other side's case. You never want to be in a position where you or your lawyer are surprised, and likewise, you want to make sure that you discover information that you need for your case and the prosecutor case. There are other forms of discovery that That we've talked about in other podcasts like depositions yeah, and other mechanisms, but those are the main ones.

So, the legal field is buzzing about all the time in the last years, the Supreme Court came out and made some amendments to the rules and changed the way a lot of us practice. It has a big impact on practitioners and it has a practical impact on our clients and those who had their lawyers working for them during the discovery.

So, I guess Audrey tell us the big picture, what is happened at the end of the year? And then I guess let's walk through it.

Audrey: Okay, I think a really good place for any family law or other practitioner to start would be to go to the Texas Supreme Court's website. They have published the rules on their website, and there are red lines, so it's a really quick way to see what all the changes are.

They were published on December the 23rd and became effective January 1st. That's where I would start if you're intimidated by what all these changes are. Really from my perspective, I think this is going to require lawyers to be more organized at the outset of their case and when a client hires them on because some of the new deadlines that are in place, they're going to require responses relatively quickly. From my perspective, I think that's going to be the biggest impact on the way that people practice.

Jake: And so as far as what cases does it apply to, is it just everything that I've got in my office right now? Or is it just new suits that got filed and that's going to apply to those cases?

Audrey: I believe that the amendments apply to cases filed on or after January 1st, 2021. So basically, any new cases.

Jake: Okay. Law firms across the state, particularly family law firms are putting in a new procedure or should be putting in a new procedure. But I know there's still a lot of questions, so can you walk through it with us Audrey what's changed and what do we need to be aware of where the traps are?

Audrey: Sure. I'll start with that I think it's really just three main areas where this can affect family lawyers. The first one's pretty easy to cover and that relates to citation. If you file a new case on January 1st, and you're going to take a default, there are new requirements in rule 99 of the Texas rules of civil procedure for what must be in the citation. So that's just a kind of a minor thing.

Before you go take a default, make sure that new language is in there. And the new language really just says relates to the fact that you may have to answer disclosures that we're going to talk about here in a minute.

Jake: So even if I'm defaulting somebody on a divorce, that's, somebody left and they'd gone to another country, say India or Mexico, and they've just never replied to my divorce. I'm defaulting them, 60 days after the filing, I'm still going to have to go through some steps rather than just trounce on the courthouse with an order and prove it up.

Audrey: You just want to make sure that the appropriate notice was in the citation because we know from case law that it's very easy to set aside a default if the citation isn't precisely the way that the rules require it. In other words, just make sure that the clerk is now issuing the proper citation that references these new changes to the disclosure rules. When you go take your default or especially in a case where you think you might be taking a default, just to make sure that it complies with rule when real 99 C which produces citation.

Jake: What are the other ones?

Audrey: The next thing, and I think this could have a pretty big impact on cases that don't involve children and have small estates, is rule 169 which is titled “expedited actions“ used to exclude family law cases.

But now in a case where you only are seeking monetary relief aggregating $250,000 or less, you can request an expedited action, which basically limits the amount of discovery you can serve. It has deadlines for when your trial can occur. It has limits on how long your trial can last, it's eight hours per side. This is geared towards cases with no children and few assets, from my perspective.

Jake: Does that have to be requested by one side?

Audrey: Yes, it, it does. It actually says that the claimant must affirmatively plead that they're only seeking monetary relief less than a $250,000. So yeah, it does have to be affirmatively plead and the court can always remove it from this expedited process upon good cause. So, you aren't absolutely locked into it, but I think it really could streamline cases that shouldn't be complicated from a property perspective.

Thinking about that, if you have a case that is just cars, small bank accounts, things like that, that this may be a good way to streamline what, how the cases are proceeded through.

Jake: Looking at the rule, I guess it requires both sides essentially to affirmatively plead for that. Is that fair to say? Do both sides have to pull the trigger for it to be expedited or is it just written up to say that it's less than $250,000 so therefore we can be pushing this towards expedited action.

Audrey: I think there's a little confusion because the rule says that all claimants other than counter claimants. So, does that mean a counter-petition? I'm not sure. I don't know how that's going to work out. Family law cases are a little unusual in that there's almost always a counterclaim or counter petition.

It's difficult to imagine most divorce suits that might not have those, and so I think it'll be interesting to see how that is interpreted. I would point out too, that kind of later on in the discovery rules the commentary to rule one-91 says that these expedited actions really are intended for divorces not involving children. Let's say that you plead that you have less than $250,000, but someone counterclaims with, let's say a suit for support of an adult disabled child. I think you're going to be, easily put out of these expedited actions when someone counterclaims for that.

And I think practical tip, I think it's, if there's any question, I think it's really important for family lawyers to get a rule 11 agreement, get on the same page or file a motion with the court to figure out what applies, if there's any confusion. That way you don't get to trial and some of your evidence is excluded.

For example, think as we try to figure these out at the beginning, it's really important to get the blessing from the court about which rules we're proceeding under.

Jake: Yeah. And I always tell people for particularly when there's new rules for anything, be careful how you pursue litigation.

We preach this to our associates too. Live by the sword, die by the sword. If you're going to go in there and live or die by the letter of the law, you better be right on everything because you're not going to get any agreements from the other side if you've been doing it.

So, my guess is most practitioners in courts are going to be more forgiving at the beginning of it while we all get used to this.

What's interesting too, is, looking at the rule where it's talking about trial settings, let's say you and I have a case against each other, and we're both saying expedited process. And then it says, you know that the on the party’s request the court must set the date for a trial that's within 90 days. That's a must to the judge. And so, you've got courts throughout the state, I know we have some judges that listened to our podcasts, and they’re dealing with these dockets during COVID and they're getting a must from these rules. If you have to set these cases on your docket, that would frustrate me as a judge. I think if I was commanded to set these cases because obviously the litigants are a lot of times motivated, and that may be a way to try to jump in line essentially by saying what did you settle the kids’ stuff, and then you say we're expedited now.

And so, we want to jump in line and be done with the 90 days after the discovery period. That's just interesting to me, thinking about the practical applications in our world.

Audrey: And it also says that the court may only continue the case twice not to exceed a total of 60 days.

So, it's really a truncated process for sure. So, it'll be interesting to see how that affects our dockets and the judges here in these cases. For sure.

Jake: Yeah. And you said it's in the commentary where it talks about these are supposed to be for divorces without kids, because it doesn't seem like the rule explicitly says that you couldn't do a kid case on expedited.

Audrey: I interpret it that way only because you have to affirm that you're only seeking monetary relief. So, I interpret that as once you add an SAPs or an adoption, or maybe even a contempt action, that you probably would be excluded from this rule.

Jake: So that's number two, what's number three?

Audrey: Number three is a big one. So, the these are the big third area, these is are the changes to required disclosures and there's quite a bit to cover here.

There's now a prohibition against serving discovery right out of the box.

Jake: Right. Tell us how it used to be, how, when somebody, we served discovery right out of the box, what would that look like?

Audrey: Under the old rules, you could serve discovery requests with your petition. And you can't do that anymore.

Jake: These are petitions for divorce and here's your 19 requests for production 25 interrogatories and your disclosure, right?

Audrey: That's correct. So, rule the new rule one 92.2 says that a party cannot serve discovery on another party until the other party's initial disclosures are due. And we'll talk about what those disclosures are first, but I, so that's really important that you can't serve discovery right away anymore.

The next big rule is that, that I think is really important, is why are we going to follow these rules? Rule one 93.6 tells us that if you fail to comply with these new requirements, that including required disclosures, which we'll talk about here in a minute, that evidence is excluded at trial. So, like with any discovery requests and response under the old rules, interrogatories, production, disclosures, et cetera., if you fail to comply with these required disclosures, then the other side can object to you offering that evidence at trial.

Jake: Is there a good cause or no surprise work around?

Audrey: The party attempting to offer the evidence and can still show good cause for failure to timely disclosure, like lack of unfair surprise or prejudice. But, so we, we need to treat these disclosures though as we would any other discovery.

Jake: Yeah. And so, talk to me about what these required disclosures are.

Audrey: So, there are three big categories and I'm going to sort, I've given them kind of my own labels.

But there's the traditional one 94s that we're all familiar with. Legal theories, persons with knowledge of relevant facts economic damages, not as much applicable in family law cases, but so the traditional kind of disclosures that we've all been doing for years.

There is a new and separate rule for disclosing expert opinions under the new rules. And then thirdly, and this is a completely new beast in state practice for family lawyers, there are now pretrial requirements involving witnesses and exhibits. So those are the big three key categories.

Jake: So let’s back up to the first one. The kind of traditional one 94 suggests here's my experts or here's my witnesses. Here's my legal theories. That type of stuff. When is that due now? Is that automatic? Even if I don't get a request for disclosure, that's an automatic disclosure?

Audrey: That's correct. So, these there are now required initial disclosures that must be answered within 30 days after the filing of the first answer or a general appearance. The rule does permit parties to agree otherwise or get an order from the court, but that's automatic now.

And one thing I would point out too, is to think about what the term general appearance means. Let's say you have a temporary orders hearing and no one's filed an answer, but the opposing counsel shows up and makes an appearance at the hearing. That's probably your trigger date for when you'd need to start thinking about answering the disclosures.

Jake: There’s been lots of discussions about without even getting a discovery request, documentation that we have to provide in divorces. So, can you talk to us about that?

Audrey: Sure. Sure. And again, I think this is going to be something that, we're going to have to wait on the courts to interpret the scope of all this, but the disclosure now requires a copy or a description by category and location of all documents that a party has in his or her possession, custody, or control, and may use to support its claims or defenses unless solely for impeachment.

That is so broadly written that it's hard to even contemplate how as practitioners, we would have all those documents in 30 days. Now it does say a copy or a description by category and location. I interpret that as perhaps you can describe what you have. To me it's a little bit difficult to interpret what this means. One thing I would point out though, lest we all get too worried and panicked that, there's a… I'm trying to find the rule here.

Jake: And we're talking 30 days out from trial on this stuff, right?

Audrey: No, this is for this is within 30 days of the filing of the first answer or a general appearance. So, this is something that kicks in automatically. And what I am trying to find is that the rule itself does allow some sort of grace for, if you don't have it in your possession immediately there, you can supplement upon receipt as you would with any other.

Jake: So that's I guess that's something by rule that both sides can be talking about, but I guess that's a good point as far as what’s my support if I’m asking for custody of my child. Isn't that absolutely everything that every single recording, every single picture I moved. We used to, and I think our child custody case, we get a big old request for production and we tell our clients look, gather every photograph, scanner, recordings and stuff like that for us that you think is relevant, but used to doing that sort of midway through case after people have tried to decide if they can figure it out on their own. But yeah. This looks like we have to do it right away.

Audrey: It does. It does. And that, that comment to rule one 94 says that parties are not excused for making its disclosures because it's not fully investigated its case or because the other side doesn't comply. Disclosures must be timely or amended or supplemented under the existing rules.

So, I think it's pretty strict order or a rule from the court that we really need to start gathering these things, and from my perspective, just an idea is that at the outset, when you're giving your client a contract, you probably needs to be giving them a letter explaining all of this and having them gather as many documents as they can.

That way, if you end up in a motion to compel or exclude you can at least document what the client's been doing and why they haven't produced certain documents yet, et cetera.

Jake: Then rated it on through the rule looks like in a divorce or there's even more specific documents that are required.

I do initial disclosures, which by the way, as a practitioner we preach to our clients how important is to gather documentation, but it's a lot of work just getting bank statements out of folks. And with the 30-day trial time turnaround it can be a lot of work and difficult.

This is going to be a lot of work for clients and, for the lawyers too, frankly, but I'm not saying it shouldn't be done anyway, but it's a lot of work and tighter deadlines. So, I guess, talk to us about the specifics. What do we have to do in a divorce?

Audrey: So, in a divorce suit each party is required to turn over two years of categories of documents. So, documents relating to real property, documents relating to pension plans, retirement plans, documents relating to insurance policies, life insurance, health insurance, liability casualty. Then lastly, two years of statements pertaining to bank accounts. So, savings accounts, checking accounts, credit, the unions and brokerage accounts. And it's two years’ worth. Those are the big categories that need to be produced within 30 days of the original answer or appearance.

Then in a child support case, there's even more. So, in any case involving child support or spousal support we parties need to turn over all medical and health insurance that's available, a party's tax returns, and then parties two most recent payroll check stubs.

That makes sense, and I know that we all need to get used to this and that it's putting a lot of the work on the front end, but hopefully this will mean we're ready for mediation quicker. We're ready for settlement negotiations quicker hopefully in the long run, this can help us all get things done more efficiently for our clients.

Jake: Yeah, I think that's a good point. Spring boarding from that to talking about pretrial, what's required pretrial disclosures. I know it varies County by County. If you think about, Travis County, when you think about trying to bench trial and what's required before trial and a bench trial in Travis County and let's talk about pre COVID.

Whenever we were doing in-person hearings, there was no requirement under the local rules that you pre-mark exhibits. There's no requirement that you exchanged exhibit lists, or witness lists, or anything like that. You'd have your production and your disclosures, your discovery done, but before COVID you wouldn't know what the exhibits you have besides the ones you’re going to use, until they changed your copy of it in court and asked the court reporter to mark it. Within Harris County, there's always differences here. It's actually had pretrial and I guess backing up, at Travis County we would have more pretrial disclosures and deadlines with a jury trial. You'd have to give it exhibit list, witness list, pre-marked stuff. And, I always preached for COVID that Travis County should be more like Harris County. Harris County required actual pre-trial hearings, pre-marked exhibits, exhibit lists, of stuff like that.

But even that could be a week, two weeks out from trial, depending on your court. Of course, now during COVID across the state of weeks, having some requirements that would be pre-marking of exhibits and witness list and everything, a lot of particularly smaller counties, it can be an email with your exhibits to the court for the night before final trial.

Then, Travis County, for example, you're exchanging 72 hours out 24, 48, hours out depending on when you're assigned. But this is different. This is going to be a lot more work done 30 days out. Is that a fair way to describe it?

Audrey: That is a fair way to describe it. The new required disclosure rules, and we're talking about rule one 94.4, the new rule is that you have to exchange basically witnesses and the identity of each document or other exhibits that you intend to offer and those you may offer if the need arises, and these have to be done at least 30 days before trial. This is going to complicate things quite a bit. Especially from the perspective that a lot of times we're all amending discovery responses on day 30, before trial. So, there may be a lot that happens around that 30 day mark.

Jake: I'm trying a divorce trial on Monday, and even something as simple as bank balances, we're going to use bank balances. We've agreed to use bank balances over the weekend versus 30 days out or 14 days. I guess it's interesting how fluid family law cases are when prepping a case.

I know if I'm doing a big breach of fiduciary duty case between two big businesses and the litigation's been going on for 10 years. And yeah, that makes sense to do all this 30 days out from trial, but in the family law world, 30 days out from trials is a long time.

How many cases settle two weeks out from trial, a week out from trial? And before we really pulled the trigger, I'm sure you remember the speeches with the clients of okay “If we're going to settle, we need to settle two weeks out or three weeks out because we're about to turn on the jet fuel and really start prepping this for court.” And then case is settled, 21 days out from trial or something like that. Or a lot of times you can't get a mediation or it's not fruitful to do a mediation and within 30 days of trial, you re-try the case essentially 30 days out. And then you sit there and twiddle your thumbs for 30 days, from my perspective as a litigator.

Audrey: I think that's a fair point that you're going to use a lot of the client's resources perhaps unnecessarily if, to comply with these rules. And I do think the name of the game here though, is a scheduling order. And I don't I think that it would be useful to exchange exhibits and witnesses ahead of time, but you certainly you don't want to get caught not answering these in a timely manner and having all that.

Jake: Yeah, from a practical perspective, I wonder how many times we are going to be getting from the other side, every single document that I've produced, and my witness list is every single person listed in my response to request for disclosure.

And I guess it'll be up to the courts to step in and say, we still have that. We have that fight even before these rules where you send an interrogatory that says, who are your witnesses? Then somebody says, see my response to request for disclosure. And it's everybody from the kid's counselor to the kids, fourth cousin who lives in Russia that they never met. I think there's going to have to be a balance there, but that's going to be more up to the judges of whether or not you actually complied.

Audrey: I think the way that this new rule is worded it intends to avoid that. It says a party has an obligation to identify each document or other exhibit separately, identifying those items and items the party expects to offer.

So reading that in kind of a narrow sense, I think that does require you to have an exhibit list with exhibits one, two, three, four, five that you want to offer. And that doesn't prohibit you from using impeachment evidence for sure. I do think that the more prudent practice would be to figure out what you want to offer and list it out to comply with this rule.

Jake: So, I think, you said the name of the game is scheduling an order. So just, for those that aren't practitioners tell us what a scheduling order is.

Audrey: A scheduling order can essential change these deadlines, right? Provided you get it signed by the court and approved by the court.

Maybe you move your exchange of witnesses and exhibits to seven days before trial. Perhaps you change the deadlines for when your expert designations due to make it a little bit closer to trial. Perhaps you put off making these initial disclosures, 45 days or 60 days, something a little more, a kind of a longer timeline and also including your trial date.

That way you can cater these disclosures to the needs of each case and frankly, the lawyer's calendars and demands.

Jake: So, talk to me about any other changes. I know there's some changes about expert reports and we talked about the big ones, but what about the big discovery and disclosures and stuff?

What else has changed in the rules that we need to be aware of?

Audrey: Yeah, just staying with these required initial disclosures regarding bank statements, things like that. There is a laundry list of cases that these new disclosures don't apply to or aren’t pertinent to. Any suit filed by or against the title 40 agency, so any kind of OAG cases or these rules don't apply when you sue for child protection. So a case filed by CPS, through the DA's office protective orders, and then any other any actions involving domestic violence? I think this one is a little vague.

For example, if you plead that party has a history or pattern of committing family violence to, support certain conservatorship requests, do these disclosures apply or not?

Arguably no. At that I think will have to be decided by the courts what that means, but just, if you have a case involving domestic violence, you may. Think about whether you want to not answer these or get an order excusing you from it. Anyway, just want to point out that there are certain cases where these rules don't apply.

And then the other big change pertains to experts. So now the rule directs us to rule one 95. And when I, if I've already had some sort of expert rule, rules pertaining to discovery from experts. But this is now rule one 95. Now the rule that deals with expert disclosures and there are some, from my perspective, some pretty significant changes as with the other required disclosures we've already talked about you now have to provide your expert information without receiving a request from the other side and all testifying experts must be designated 90 days before the end of the discovery period. That's the default. And designation means providing their opinions, all the documents they've relied on it, it isn't just disclosing their name. It is providing all of the information that is required by the rules.

So, in a family law case, like we talked about earlier, that's an eternity before, that’s 120 days before trial. So it's probably a good idea to put in a rule 11 or scheduling order depending on the needs of your case.

So, in terms of what you now have to disclose. There are three new categories of documents that you have to disclose regarding your expert. These include the experts’ qualifications and all publications they have authored in the last 10 years. You have to disclose a list of all other cases during the last four years that the expert has testified as an expert at trial or by deposition. You have to provide a statement about the compensation to be paid to the expert. This is going require some sort of organization on the part of your experts, but these are brand new things we've really not dealt with before. Be mindful when you're hiring your expert. You need to let them know probably out of the jump at that they need to get you this information.

Jake: What you're trying to avoid, because of the cost, experts are so are very expensive so you're trying to avoid pulling that trigger and, say if you got a separate property claim, I really don't want to go hire somebody to go trace, 10 years of separate property. Can we agree to opening balances in this brokerage account? And you think you can, when I get there at the other side, and then you don't and all of a sudden you've got these deadlines that maybe you've already blown. If the other side just decides to say, you know what, actually, I'm not going agree to your client's opening balance.

And you've got to prove the separate property in their 401k or the brokerage account or something. And then if you haven't done, like you were talking about that scheduling order or something, you may be thinking that your case is a simple case and then get this kind of turned around and used against you.

Audrey: That's right. And yeah, I think it's a good idea now that we have these rules to get your calendar out early and figure out when all these things are due so that, you don't end up in it. And I think it's going to become very pertinent to when you're trying to decide on a trial date because now you have these exhibits and witness lists that are due and you're these automatic disclosures for experts. So really important to keep all this in mind when you're scheduling your trials. For sure. Yeah.

Jake: Expert communications is interesting. You know, we were preached in law school to be careful what you email an expert because it's all going to be discoverable and that's modified a little bit. Is that right?

Audrey: It is. So now, previously I think the rule required us to turn over every email we sent to the expert every kind of communication, every, all their notes, everything.

I think this new role is intended to protect communications between the attorney that's hired the expert and the expert. And so to the extent communications are between the expert and the attorney they're now protected, unless they relate to the experts compensation, unless it relates to data or facts they rely upon in their opinions, or any assumptions that the party's attorney may have provided to the expert to operate on. Think that kind of opens the door a little bit for more strategy with the expert that may not be discoverable. It also exempts any kind of any drafts done by the expert that, that may later be edited.

For, again previously, I think when you, if you sent for your reports or your experts sent you a draft report and they red lined it and edited it, I think you had to produce that under the rule. Now, I think this gives give some leeway for the lawyer to collaborate more with the expert to on their opinions.

Jake: Yeah, I've been in the deposition where you subpoena and a lot of times we subpoenaed because the other side, although probably should have to wouldn't they use a pen, and you get the draft and go here's the draft where you say that you can't prove by clear and convincing evidence that's a separate property. And, Oh, look, here's the two emails from the lawyer blowing you out saying that this is. They try and get you to fix it. Then you do this new report that says it is separate property. So yeah, that's you're saying more strategy and you can talk more openly because I know we preach to our associates, every single email.

To the expert, even if it's something like “Hey, can you talk at four o'clock” we've been producing in the past just because you don't want to be in that situation where you have a pretty terrible emails between you and your expert, but this is so I guess there's some silver lining there.

Audrey: I think it’s still a better practice to pick up the phone and not create unnecessary back and forth about, even though this rule should protect drafts, I think being cautious of that kind of thing is still a good idea.

Jake: Well to wrap up on all this stuff. We've talked about a lot of this with the practitioners and stuff. What are your thoughts on, if you're a judge dealing with it when you're dealing with the practitioners and you know that without the compliant or not, but how on earth are judges supposed to deal with this with pro se. Let's say both sides are represented or one side’s represented and running circles around the pro se with these new rules.

Any tips or thoughts on that or how they're going to deal with that?

Audrey: I think to some extent it depends on the county you're in. I know here in Dallas County, I handled a couple of Pro Bono cases and, there are scheduling orders in place about exchanging exhibits and witness lists.

I think those scheduling orders can be catered to the new rules. I think it's going to be up to the individual trial court to decide as if this information is really necessary. For example, let's say it's a pro se case on both sides and involves child support. It seems very important that the parties should have provided their financial information to the court to make a child support determination.

So, in that instance it may be prudent to reset the case until they exchange that information. So, the other thing too, practically speaking to enforce these rules, someone has to object or file a motion to compel. So pro se is, may not know to do that, and I don't know that there's any obligation incumbent on the court to require compliance.

Not that you want to excuse non-compliance with rules, but I think it's really about does the court have enough information from the pro se parties to make a determination or not?

Jake: Yeah. At the end of the day, we're courts of equity and trying to figure out the best interest of the child and, hopefully I guess broadly speaking, it is an attempt and given some positive spin on the new rules is an attempt to make sure that everybody has what they need to be able to resolve the case. Maybe it pushes us all a little harder than we'd like or there's ways that it may make cases more expensive than they were before, but we could always, like you were saying, schedule around that with cooperation on the other side.

Hopefully it will spur much of more cooperation amongst law firms and lawyers and stuff. As we all get used to this and work more collaboratively.

Audrey: Let's hope so. One more thing too, for judges that may be listening. I talked about the new citation rules, rule 99.

The new citation must include the Texaslawhelp.org website. So for pro se, they may, if they read this carefully enough it should tell them to go to TexasLawHelp.org for more information on the disclosures. So that's just something that who knows if that's actually practical or not, but that is in the new citations required by the, by rule 99.

Jake: That's good. I know when I do any type of volunteer work for later in Austin we're always pushing people to that website. So, for people listening that represent themselves or can't afford a lawyer or a combination or something it's TexasLawHelp.org and lots of really good forums.

Let's wrap up with that. That's a lot. So, can you I guess remind every so statewide practitioner, as far as if they need help with this or need help with legal research or if they get in a bind and stuff like that, what I'm hearing is you're in there statewide, you can sign up new business and available to help people if they need somebody on their case?

Audrey: Absolutely. My whole approach to this business has been to try to keep it keep my work affordable and help lawyers take that kind of work off their plate, that they may not have three or four hours to dedicate to because their practices are so busy.

I'm absolutely available to help.

Jake: Absolutely. Give us your contact one more time.

Audrey: My website is www.audreyblairlegal.com. You can also message me on Facebook under Audrey Blair.

Jake: I'm going to wrap up for this week. Thanks again for doing this and we will see everybody next week.


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