Legal Writing Nerd — Tips for Exceptional Writing Skills
Wayne Schiess discusses his most recent book, “Legal Writing Nerd: Be One,” and gives tips on what lawyers can incorporate to better their writing skills.
Originally Published: Mar 12, 2019 | Republished: Mar 18, 2023
Wayne Schiess: That is fantastic to hear, Rocky, and thank you for saying it. It is an idea that I sort of came up with when I began to encounter the boilerplate comes now opener that is very common in Texas, especially state court pleadings.
All right, comes now the defendant by and through counsel of record and filed its motion for summary judgment and would respectfully show into the court as follows.
And sometimes, it would respectfully show into the Honorable Court as follows.
Rocky Dhir: Right, right.
Wayne Schiess: I wondered given that judges tend to be busy that you’re not always certain they read your pleading or you’re filing before you showed up for the hearing anyway; whether that wasn’t just a waste of valuable space, given it’s the opening paragraph until I —
Rocky Dhir: Right on the front page.
Wayne Schiess: — you write a very short one-page summary of the key what do I want and why should I get it essentially?
And then put it in boldface type to make it stand out.
Well, I have talked about that at CLE over the years and needless to say, I will receive some pushback. I have had a handful of conversations.
I will wrap up my remarks and exit the room, and there I will encounter a couple of lawyers who want to tell me why they want to use the Comes now opener.
And most of the time, it connects back to what you asked earlier.
Most of the time they say, I’m worried that if I don’t have the Comes now opener, the judge at such and such a county court, will look at it and say, well, this lawyer doesn’t know what he is doing, because he didn’t open with the Comes now.
And my response is you got to put the Comes now if you think the judge is going to look funny at you because you didn’t have it.
I wonder if we are not exaggerating how many judges are really doing that.
But back to my earlier reaction, Rocky, I’ve had maybe, you are probably the third, it’s possible you might be the fourth lawyer to tell me that he has tried the bold synopsis, so it hasn’t caught on widely but thank you for your efforts.
Rocky Dhir: Well, and no, absolutely and thank you for introducing me to the bold synopsis. I love it when I’m allowed to use it and what I recall at least from 2001, was that it wasn’t a full page it was like a paragraph like four sentences and it was set off like — it would look like a block quotation, single-spaced and it’s kind of indented on both sides, so it stands out, and you basically say the defendant is moving for summary judgment, here’s why and it’s three to four at most five sentences and it just really relays it and tells the story in pithy fashion, and it forces you as a writer to actually understand what you are asking for and why, what’s the gravamen of your argument?
So I enjoyed that part of it, but the fact that it hasn’t caught on, that’s why I asked you the question earlier that how do we as a profession move forward in our writing if we’re not willing to even try things like the bold synopsis. What’s your answer to that?
Wayne Schiess: Well, one of the jokes I sometimes make is, well, we just have to wait for a bunch of older lawyers to die. That’s not practical, that’s just not, nobody can take that seriously.
But I will say I had hopes, right, you can obviously tell my hopes were that it would catch on and it would become the norm, and that’s an unrealistic dream.
What I have settled into is, look, it’s enough to make small improvements gradually because overtime and over a long time, things will improve.
So that’s the approach I have had to take.
I have had to stop believing that I could make a big difference in all trial court pleadings filed in the State, which was never going to happen anyway, and start to hope I can make a difference in a few pleadings written by a few lawyers and that it would catch on.
And then the Court Reporter was served for services rendered in her personal time and payment rendered to her private, but then Harris County Attorney’s Office @HarrisCountyAO stepped in and decided to represent her pro bono to try and quash the subpoena. https://t.co/6WfLP23f9p
— lawsinusa (@lawsinusa) March 16, 2023
DEFENDANT HCA HOUSTON HEALTHCARE KINGWOOD’S RESPONSE TO PRO SE PLAINTIFF’S MOTION FOR SANCTIONS AND MOTION TO DISQUALIFY
Originally Published: Mar. 17, 2023 | Republished: Mar. 18, 2023
COMES NOW, Defendant HCA Houston Healthcare Kingwood (“HCA” or “Defendant”) and files this Response to Plaintiff Mark Burke’s (“Plaintiff”) Motion for Sanctions and Motion to Disqualify and would respectfully show the following:
I. SUMMARY OF ARGUMENT
Pro Se Plaintiff’s motion for sanctions and motion to disqualify alleges that Defense counsel should be sanctioned, referred to the state bar of Texas, and disqualified from representing HCA in this matter because they:
(1) did not respond to an email from Plaintiff requesting that they voluntarily waive service;
(2) entered an answer and general denial in response to Plaintiff’s petition;
(3) are allegedly indispensable witnesses in this matter because of Plaintiff’s stated intention to question them regarding their knowledge of Plaintiff’s lawsuit, the legal advice provided to Defendant, and other unrelated cases in which Defense counsel has represented Defendant;
(4) filed a counterclaim against Plaintiff;
(5) objected to Plaintiff’s written discovery requests;
and
(6) failed to provide initial disclosures.
Plaintiff’s arguments utterly fail for the following reasons:
(1) refusal to voluntarily waive service cannot serve as a basis for sanctions or disqualification because a Defendant is not required to waive service as expressly stated in the Texas Rules of Civil Procedure1;
(2) the filing of a general denial cannot serve as a basis for sanctions or disqualification because Defendants may file a general denial as expressly stated in the Texas Rules of Civil Procedure2;
(3) Defense counsel are not indispensable witnesses and Plaintiff has not presented any evidence that any testimony from defense counsel is necessary to establish any essential fact related to his claims, which is his burden3;
(4) the filing of a counterclaim is not a basis for sanctions or disqualification and Plaintiff has not presented any evidence that any counterclaim was filed for an improper purpose4;
(5) Texas law is abundantly clear that when, as here, a Plaintiff is alleging a breach of the applicable standard of care by a medical provider all discovery is stayed until the Plaintiff has served an expert report and curriculum vitae pursuant to TCPRC § 74.351.5
Plaintiff has not presented any evidence that he has complied with this requirement, nor has he presented any evidence or supporting authorities demonstrating that any of Defendant’s objections or responses were improper6;
and
(6) Defendant timely served initial disclosures, Plaintiff simply failed to access them.7
Accordingly, because Plaintiff’s arguments have no legal basis, are completely unsupported by applicable legal authority or evidence, and seek relief which is prohibited by Texas law, Plaintiff’s Motion for Sanctions and to Disqualify should be denied.
1 See Tex. R. Civ. P. 119.
2 See Tex. R. Civ. P. 92.
3 See generally, Plaintiff’s Amended Motion for Sanctions and to Disqualify (“Motion”), currently on file with the Court.
4 Id. see also Tex. Civ. Prac. & Rem. Code Ann. § 16.069.
5 See Texas Civil Practice and Remedies Code § 74.351.
6 See generally Motion.
7 See Initial Disclosures, attached hereto as Exhibit A. see also Correspondence regarding service of initial disclosure attached hereto as Exhibit B.
II. BACKGROUND
On October 18, 2022, Plaintiff filed the present lawsuit alleging, amongst a litany of other complaints, that, during an admission at Defendant’s facility from August 9th to August 13th, 2022, Plaintiff: was housed in a “converted closet” with below freezing temperatures;
was not provided pain medication upon request;
that his physicians did not adequately address his complaints of “weight loss,” instead recommending that he follow up with a specialist on an out-patient basis;
that the facility did not have a specialist immediately available to perform testing that he felt was necessary;
and that Defendant contributed to the death of Plaintiff’s father due to the “freezing temperatures” he was forced to endure when visiting Plaintiff.8
Plaintiff further alleged that on Wednesday August 10th, 2022 he was visited, on two separate occasions, by an “imposter doctor” who he described as “38 years old, clean shaven, dark hair and built like a stocky U.S. Marine, with broad shoulders leading down to his v shaped abdomen.”9
Plaintiff alleges this “imposter doctor” was “armed with every medical detail about [plaintiff] and his visitation medical exams and notes” and that it is clear that this individual was an “imposter doctor” because he “had no laptop as most doctors carry” and because Plaintiff could not locate him via a web search.10
Based on this alleged conduct, Plaintiff has asserted claims for: negligence (gross, medical, and corporate) and stalking.11
8 See Petition at pg. 5-7.
9 Id.
10 Id. see also Petition at pg. 32.
11 Id. at pg. 36-45.
III. ARGUMENT & AUTHORITIES
A. Refusal to voluntarily waive service cannot serve as a basis for sanctions or disqualification because a Defendant is not required to waive service as expressly stated in the Texas Rules of Civil Procedure.
Texas Rule of Civil Procedure 119 provides that, “The defendant may accept service of process, or waive the issuance or service thereof by a written memorandum signed by him, or by his duly authorized agent or attorney.”12
Statutes and rules using the verb “may” describe discretionary acts; versus statutes and rules using “shall,” which generally connote mandatory action.13 Accordingly, because Rule 119 provides that a defendant may accept or waive service, waiver is discretionary and, as such, failure to waive service cannot form a basis for sanctions.14
B. The filing of a general denial cannot serve as a basis for sanctions or disqualification because Defendants may file a general denial as expressly stated in the Texas Rules of Civil Procedure.
Similarly, Texas Rule of Civil Procedure 92 provides that, “[a] general denial of matters pleaded by the adverse party which are not required to be denied under oath, shall be sufficient to put the same in issue.15 As such, because the rules expressly allow for a Defendant to enter a general denial, such action cannot form a basis for sanctions.16
C. Defense counsel are not indispensable witnesses and Plaintiff has not presented any evidence that any testimony from defense counsel is necessary to establish any essential fact related to his claims, which is his burden.
Disqualification is a severe remedy as it is a measure that can cause immediate harm by depriving a party of its chosen counsel and disrupting court proceedings.17 For this reason, mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice to merit disqualification.18 Instead, disqualification is only appropriate if the lawyer’s testimony is “necessary to establish an essential fact” and the party
12 See Tex. R. Civ. P. 119. (emphasis added).
13 Id. see also Tex. Gov’t Code Ann. § 311.016.
14 Id.
15 See Tex. R. Civ. P. 92.
16 Id.
17 See In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004).
18 Id.
requesting disqualification must demonstrate not only that the opposing lawyer will likely serve dual roles as attorney and witness but also that such conduct will cause the party actual prejudice.19
Here, Plaintiff has not made any demonstration whatsoever that testimony from Defense counsel is necessary to establish any essential fact.20
More importantly, the testimony which Plaintiff has indicated he will attempt to elicit from Defense counsel seeks information which is clearly privileged and not subject to discovery, namely:
whether defense counsel provided certain legal advice to Defendant as well as the scope and nature of Defendant’s client relationship in both this and completely unrelated matters.21
Stated differently, Plaintiff has utterly failed to satisfy his burden to establish either that Defense counsel should be disqualified or that defense counsel should be sanctioned simply because he has stated an intention to attempt to question them regarding obviously privileged information and attorney client communications and, for that reason, his Motion should be denied.22
D. The filing of a counterclaim is not a basis for sanctions or disqualification and Plaintiff has presented no evidence that any counterclaim was filed for an improper purpose.
Plaintiff avers in his Motion that Defendant should be sanctioned for filing a counterclaim against him in this matter for, amongst other things, harassment and stalking.23
Plaintiff’s conduct in this case as evidenced by his garrulous and voluminous pleadings and irrelevant and improper discovery to both Defendant and third-parties, strongly indicate that Defendant’s counterclaim has merit.
However, the Court need not make any such determination in order to confirm that Plaintiff’s request for sanctions regarding Defendant’s counterclaim is meritless and should be
19 Id.
20 See generally, Plaintiff’s Amended Motion for Sanctions and to Disqualify, currently on file with the Court.
21 Id at pg. 24.
22 Id.
23 Id.
denied.
This is so because Rule 13 directs a trial court to presume that a pleading was filed in good faith.24
For this reason, the burden is on the party moving for sanctions to overcome this presumption and that party must demonstrate not only that the pleading was groundless but that it was brought in bad faith or for the purpose of harassment.25
A cursory review of Plaintiff’s Motion shows that he has not met this high burden as his purported proof consists solely of his own unsubstantiated statements regarding Defendant’s alleged failure to pursue counterclaims against other individuals who have apparently criticized them online, which is not evidence.26
For that reason also, Plaintiff’s Motion is without merit and should be denied.
E. Plaintiff has not presented any evidence or supporting authorities demonstrating that any of Defendant’s objections or responses were improper.
Plaintiff alleges in his Motion that Defendant’s have violated Rule 193.7 because they objected to Plaintiff’s discovery on the basis that it was irrelevant, harassing, unduly burdensome, and because Plaintiff has not filed a statutorily compliant expert report as required by Texas Civil Practice and Remedies Code § 74.351.27
Plaintiff’s Motion does not present any argument or supporting authority demonstrating that Defendant’s objections were improper, nor has he sought a hearing from this Court under Rule 193.4 seeking to compel Defendant’s to remove any of the asserted objections.28
Accordingly, because Plaintiff has not met his burden to demonstrate that anything related to Defendant’s objections and responses to Plaintiff’s written discovery warrants the imposition of sanctions, his Motion is without merit and should be denied.
24 See Tex. R. Civ. P. 13.
25 See GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 730 (Tex. 1993).
26 See Plaintiff’s Amended Motion for Sanctions at pg. 27-33, currently on file with the Court. See also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).
27 Id. at pg. 27.
28 Id.
F. Defendant timely served initial disclosures; Plaintiff simply failed to access them.
Defendant timely served initial disclosures and, when questioned by Plaintiff regarding said disclosures, provided an additional copy as well as proof that they had been timely served.29 Accordingly, Plaintiff’s request for sanctions for allegedly failing to do so is without merit and his Motion should be denied.
IV. CONCLUSION
For the reasons stated above, Defendant HCA Houston Healthcare Kingwood, respectfully requests that the Court deny Plaintiff’s First Amended Motion for Sanctions and Motion to Disqualify and for any other relief to which Defendant is justly entitled, both at law and in equity.
Respectfully submitted,
SERPE ANDREWS, PLLC
By: /s/ Ben E. Hamel
doctor
