WHAT IS A RULE 11 AGREEMENT IN TEXAS?
The Rule 11 Agreement - who would have thunk - does indeed takes its name from Rule 11. Rule Eleven of the Texas Rules of Civil Procedure (TRCP). The only distraction is that in federal court Rule 11 is the sanctions rule, which in Texas state court has the - arguably more appropriate and ominous - designation as Rule 13.
Be that is it may, the critical requirement set forth in Rule 11 is that a valid Rule 11 agreement must be in writing and signed. It operates as the equivalent of a statute of frauds and has the character of a contract. Caselaw on that later. Unless the agreement is lost or destroyed, the filing requirement is not a big deal, but if nothing is signed in the first instance, then there nothing to file that satisfies the rule, belatedly or otherwise.
TEXAS OF RULE 11. AGREEMENTS TO BE IN WRITING
Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.
RELATED CONCEPTS: agreements, mediated settlement agreements, agreements on procedure, nonsubstantive agreements, stipulation
Thursday, August 20, 2009
TRCP 10: When and how can attorney drop the client and get out of the case?
Tex. R. Civ. P. 10 governs the withdrawal of attorneys from the legal representation of a client or clients and imposes a number of requirements the withdrawing attorney has to satisfy in order to obtain the court's permission to withdraw when the client has not consented or terminated the attorney-client relationship. These conditions are meant to protect the client and client's rights and procedural posture in the pending suit.
TEXT OF RULE 10. WITHDRAWAL OF ATTORNEY
An attorney may withdraw from representing a party only upon written motion for good cause
shown.
If another attorney is to be substituted as attorney for the party, the motion shall state: the name, address, telephone number, telecopier number, if any, and State Bar of Texas identification number of the substitute attorney; that the party approves the substitution; and that the withdrawal is not sought for delay only.
If another attorney is not to be substituted as attorney for the party, the motion shall state: that a copy of the motion has been delivered to the party; that the party has been notified in writing of his right to object to the motion; whether the party consents to the motion; the party's last known address and all pending settings and deadlines. If the motion is granted, the withdrawing attorney shall immediately notify the party in writing of any additional settings or deadlines of which the attorney has knowledge at the time of the withdrawal and has not already notified the party.
The Court may impose further conditions upon granting leave to withdraw. Notice or delivery to a party shall be either made to the party in person or mailed to the party's last known address by both certified and regular first class mail. If the attorney in charge withdraws and another attorney remains or becomes substituted, another attorney in charge must be designated of record with notice to all other parties in accordance with Rule 21a.
SEARCH ENGINE FODDER: RELATED TERMS, PHRASES, AND CONCEPTS: Motion to withdraw as counsel, for permission to withdraw as attorney of record, from legal representation with /without client's consent, because client fired lawyer, terminated the representation
TEXT OF RULE 10. WITHDRAWAL OF ATTORNEY
An attorney may withdraw from representing a party only upon written motion for good cause
shown.
If another attorney is to be substituted as attorney for the party, the motion shall state: the name, address, telephone number, telecopier number, if any, and State Bar of Texas identification number of the substitute attorney; that the party approves the substitution; and that the withdrawal is not sought for delay only.
If another attorney is not to be substituted as attorney for the party, the motion shall state: that a copy of the motion has been delivered to the party; that the party has been notified in writing of his right to object to the motion; whether the party consents to the motion; the party's last known address and all pending settings and deadlines. If the motion is granted, the withdrawing attorney shall immediately notify the party in writing of any additional settings or deadlines of which the attorney has knowledge at the time of the withdrawal and has not already notified the party.
The Court may impose further conditions upon granting leave to withdraw. Notice or delivery to a party shall be either made to the party in person or mailed to the party's last known address by both certified and regular first class mail. If the attorney in charge withdraws and another attorney remains or becomes substituted, another attorney in charge must be designated of record with notice to all other parties in accordance with Rule 21a.
SEARCH ENGINE FODDER: RELATED TERMS, PHRASES, AND CONCEPTS: Motion to withdraw as counsel, for permission to withdraw as attorney of record, from legal representation with /without client's consent, because client fired lawyer, terminated the representation
TRCP 9: How many lawyers is too many (at trial)?
How many lawyers may a party show up with at trial or for a hearing? Probably unlimited if confined to a spectator role, but only so many will be allowed to participate and be heard.
Tex. R. Civ. P. 9 (nine) sets a limit on attorneys to play an active role in trial advocacy: 2 (two). But Rule 9 also contemplates exceptions to be granted by the trial court under unusual circumstances.
RULE 9. NUMBER OF COUNSEL HEARD
Not more than two counsel on each side shall be heard on any question or on the trial, except in important cases, and upon special leave of the court.
Tex. R. Civ. P. 9 (nine) sets a limit on attorneys to play an active role in trial advocacy: 2 (two). But Rule 9 also contemplates exceptions to be granted by the trial court under unusual circumstances.
RULE 9. NUMBER OF COUNSEL HEARD
Not more than two counsel on each side shall be heard on any question or on the trial, except in important cases, and upon special leave of the court.
TRCP 8: Attorney in Charge - Who is it?
Tex. R. Civ. P. 8 (eight) governs how counsel becomes attorney in charge for a party, and how another attorney may be substituted in that capcity, role: First signed, first on the hook as attorney in charge. Later change in lead attorney requires (re)designation in writing with notice to all. Whichever attorney is formally doing duty as attorney in charge is the one that must be served under Rule 21a.
RULE 8. ATTORNEY IN CHARGE
On the occasion of a party's first appearance through counsel, the attorney whose signature first
appears on the initial pleadings for any party shall be the attorney in charge, unless another ttorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney in charge shall be responsible for the suit as to such party.
All communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge.
RULE 8. ATTORNEY IN CHARGE
On the occasion of a party's first appearance through counsel, the attorney whose signature first
appears on the initial pleadings for any party shall be the attorney in charge, unless another ttorney is specifically designated therein. Thereafter, until such designation is changed by written notice to the court and all other parties in accordance with Rule 21a, said attorney in charge shall be responsible for the suit as to such party.
All communications from the court or other counsel with respect to a suit shall be sent to the attorney in charge.
TRCP 7: Appearing Pro Se or with hired gun (licensed attorney)
Tex. R. Civ. P. 7 (seven) authorizes appearance in court and court proceedings either personally without attorney, or with and through counsel.
It may result in a situation of having a fool or a lawyer for a client client, or both, but litigants are permitted to appear without an attorney. In Texas we usually refer to unrepresented parties as pro se, as opposed to pro per or in propria persona. Note that a corporation is generally not permitted to appear pro se through a nonlawyer officer or director, something not mentioned here.
RULE 7. MAY APPEAR BY ATTORNEY
Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.
It may result in a situation of having a fool or a lawyer for a client client, or both, but litigants are permitted to appear without an attorney. In Texas we usually refer to unrepresented parties as pro se, as opposed to pro per or in propria persona. Note that a corporation is generally not permitted to appear pro se through a nonlawyer officer or director, something not mentioned here.
RULE 7. MAY APPEAR BY ATTORNEY
Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.
TRCP 6: Not on Sundays (with exceptions)
Tex. R. Civ. P. 6 (six).
Questions regarding Rule 6 of the Texas Rulese of Civil Procedure: Is there any day on which service of citation may not be effected? Answer: Don't have your process server chase down the Defendant at church, but note the exceptions for other typs of lawsuit papers / orders:
TEXT OF RULE 6. SUITS COMMENCED ON SUNDAY
No civil suit shall be commenced nor process issued or served on Sunday, except in cases of injunction, attachment, garnishment, sequestration, or distress proceedings; provided that citation by publication published on Sunday shall be valid.
Questions regarding Rule 6 of the Texas Rulese of Civil Procedure: Is there any day on which service of citation may not be effected? Answer: Don't have your process server chase down the Defendant at church, but note the exceptions for other typs of lawsuit papers / orders:
TEXT OF RULE 6. SUITS COMMENCED ON SUNDAY
No civil suit shall be commenced nor process issued or served on Sunday, except in cases of injunction, attachment, garnishment, sequestration, or distress proceedings; provided that citation by publication published on Sunday shall be valid.
TRCP 5: Due Date, Deadline Extensions and Mailbox Rule
Tex. R. Civ. P. 5 (five)
Do you mail your pleadings, motions and discovery in "wrappers" with postage affixed? Maybe so, but that's quaint language. Okay, so we got to call the wrapper an envelope and wrappers envelopes a few times for the benefit of the search engines and the proper indexing. More importantly, MAILBOX RULE better be put in the title tag of this post, even if not mentioned in so many words anywhere in the text of the rule.
TEXT OF RULE 5. ENLARGEMENT OF TIME
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion
(a) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act. The court may not enlarge the period for taking any action under the rules relating to new trials except as stated in these rules.
If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.
SYNONYMS, ALTERNATE OR COMMON NAMES, USAGE: deadline due date extension, permission to late-file late-serve, The Mailbox Rule
As for due date and deadline extensions, also see related concetps and terms such as motion and order for continuance, reset, recess, and postponement
Do you mail your pleadings, motions and discovery in "wrappers" with postage affixed? Maybe so, but that's quaint language. Okay, so we got to call the wrapper an envelope and wrappers envelopes a few times for the benefit of the search engines and the proper indexing. More importantly, MAILBOX RULE better be put in the title tag of this post, even if not mentioned in so many words anywhere in the text of the rule.
TEXT OF RULE 5. ENLARGEMENT OF TIME
When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion
(a) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act. The court may not enlarge the period for taking any action under the rules relating to new trials except as stated in these rules.
If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.
SYNONYMS, ALTERNATE OR COMMON NAMES, USAGE: deadline due date extension, permission to late-file late-serve, The Mailbox Rule
As for due date and deadline extensions, also see related concetps and terms such as motion and order for continuance, reset, recess, and postponement
TRCP4: Holiday and Weekend Deadline Extensions - When does this apply, when not?
Tex. R. Civ. P. 4 (four)
TEXT OF RULE 4. COMPUTATION OF TIME
In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included.
The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.
Saturdays, Sundays and legal holidays shall not be counted for any purpose in any time period of five days or less in these rules, except that Saturdays, Sundays and legal holidays shall be counted for purpose of the three-day periods in Rules 21 and 21a, extending other periods by three days when service is made by registered or certified mail or by telephonic document transfer, and for purposes of the five-day periods provided for under Rules 748, 749, 749a, 749b, and 749c.
Note that this rule refers to service by telephonic document transfer, but does not mention the word fax, facsimile transmission, or email.
TRCP3a: LOCAL RULES What do the statewide rules of procedure have to say about local rules of local courts or court systems?
TEX. R. CIV. P. 3a defines the relationship between the TRCP that apply state-wide and the local rules, which may vary among localities, and contains provisions as to their proper adoption and promulgation.
TEXT OF RULE 3a. LOCAL RULES
Each administrative judicial region, district court, county court, county court at law, and probate court, may make and amend local rules governing practice before such courts, provided:
(1) that any proposed rule or amendment shall not be inconsistent with these rules or with any rule of the administrative judicial region in which the court is located;
(2) no time period provided by these rules may be altered by local rules;
(3) any proposed local rule or amendment shall not become effective until it is submitted and approved by the Supreme Court of Texas;
(4) any proposed local rule or amendment shall not become effective until at least thirty days after its publication in a manner reasonably calculated to bring it to the attention of attorneys practicing before the court or courts for which it is made;
(5) all local rules or amendments adopted and approved in accordance herewith are made available upon request to members of the bar;
(6) no local rule, order, or practice of any court, other than local rules and amendments which fully comply with all requirements of this Rule 3a, shall ever be applied to determine the merits of any matter
RELATED SEARCH TERMS AND CONCEPTS: Local Rule, by pursuant to Loc. R., local rules
TEXT OF RULE 3a. LOCAL RULES
Each administrative judicial region, district court, county court, county court at law, and probate court, may make and amend local rules governing practice before such courts, provided:
(1) that any proposed rule or amendment shall not be inconsistent with these rules or with any rule of the administrative judicial region in which the court is located;
(2) no time period provided by these rules may be altered by local rules;
(3) any proposed local rule or amendment shall not become effective until it is submitted and approved by the Supreme Court of Texas;
(4) any proposed local rule or amendment shall not become effective until at least thirty days after its publication in a manner reasonably calculated to bring it to the attention of attorneys practicing before the court or courts for which it is made;
(5) all local rules or amendments adopted and approved in accordance herewith are made available upon request to members of the bar;
(6) no local rule, order, or practice of any court, other than local rules and amendments which fully comply with all requirements of this Rule 3a, shall ever be applied to determine the merits of any matter
RELATED SEARCH TERMS AND CONCEPTS: Local Rule, by pursuant to Loc. R., local rules
TRCP3: INTERPRETING THE RULES: Making sense of the Rules of Civil Procedure, Resolving Uncertainties as to Meaning
Questions related to Rule 3: How are the Texas Rules of Civil Procedure interpreted and appied if they are not clear, ambiguous? The lawyers and judges speak of "construction," but it means essentially interpretation. While construction is a well-established technical legal term, unfortunatly construction has to compete with all sorts of other types of human activity called construction, such as what is the subject of "construction law" as a legal practice area.
TEXT OF RULE 3. CONSTRUCTION OF RULES
Unless otherwise expressly provided, the past, present or future tense shall each include the other; the masculine, feminine, or neuter gender shall each include the other; and the singular and plural number shall each include the other.
Of course there is more to construction / interpretation than Rule 3 suggest, but that is a matter of decisional law, i.e. opinions of appellate courts in published case opinions that serve as precedents.
RELATED TERMES AND CONCEPTS: Statutory construction, contract construction, interpretation, defining and devining the meaning of words and phrases that are not precise or clear, legal definitions, ambiguities
TEXT OF RULE 3. CONSTRUCTION OF RULES
Unless otherwise expressly provided, the past, present or future tense shall each include the other; the masculine, feminine, or neuter gender shall each include the other; and the singular and plural number shall each include the other.
Of course there is more to construction / interpretation than Rule 3 suggest, but that is a matter of decisional law, i.e. opinions of appellate courts in published case opinions that serve as precedents.
RELATED TERMES AND CONCEPTS: Statutory construction, contract construction, interpretation, defining and devining the meaning of words and phrases that are not precise or clear, legal definitions, ambiguities
TRCP2: Scope: Which courts and proceedings are governed by the Texas Rules of Civil Procedure?
Questions about Rule 2: When and where, in which courts, do the Texas Rules of Civil Procedure apply? Where are they used? Which judicial proceedings do they govern?
TEXT OF Tex.R. Civ. P. 2. SCOPE OF RULES
These rules shall govern the procedure in the justice, county, and district courts of the State of Texas in all actions of a civil nature, with such exceptions as may be hereinafter stated. Where any statute in effect immediately prior to September 1, 1941, prescribed a rule of procedure in lunacy, guardianship, or estates of decedents, or any other probate proceedings in the county court differing from these Rules, and not included in the "List of Repealed Statutes," such statute shall apply; and where any statute in effect immediately prior to September 1, 1941, and not included in the "List of Repealed Statutes," prescribed a rule of procedure in any special statutory proceeding differing from these rules, such statute shall apply. All statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in bond or recognizance forfeitures in criminal cases are hereby continued in effect as rules of procedure governing such cases, but where such statutes prescribed no rules of procedure in such cases, these rules shall apply. All statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in tax suits are hereby continued in effect as rules of procedure governing such cases, but where such statutes prescribed no rules of procedure in such cases, these rules shall apply; provided, however, that Rule 117a shall control with respect to citation in tax suits.
RELATED SEARCH TERMS AND CONCEPTS: applicability of the Texas Rules of Civil Procedure, reach
TEXT OF Tex.R. Civ. P. 2. SCOPE OF RULES
These rules shall govern the procedure in the justice, county, and district courts of the State of Texas in all actions of a civil nature, with such exceptions as may be hereinafter stated. Where any statute in effect immediately prior to September 1, 1941, prescribed a rule of procedure in lunacy, guardianship, or estates of decedents, or any other probate proceedings in the county court differing from these Rules, and not included in the "List of Repealed Statutes," such statute shall apply; and where any statute in effect immediately prior to September 1, 1941, and not included in the "List of Repealed Statutes," prescribed a rule of procedure in any special statutory proceeding differing from these rules, such statute shall apply. All statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in bond or recognizance forfeitures in criminal cases are hereby continued in effect as rules of procedure governing such cases, but where such statutes prescribed no rules of procedure in such cases, these rules shall apply. All statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in tax suits are hereby continued in effect as rules of procedure governing such cases, but where such statutes prescribed no rules of procedure in such cases, these rules shall apply; provided, however, that Rule 117a shall control with respect to citation in tax suits.
RELATED SEARCH TERMS AND CONCEPTS: applicability of the Texas Rules of Civil Procedure, reach
TRCP1: Purpose of the Texas Rules of Civil Procedure Tex. R. Civ. P.
Questions about TRCP Rule 1: What is the purpose / objective / intent of the Texas Rules of Civil Procedure, the rules that govern civil lawsuits / proceedings?
TEXT OF RULE 1. OBJECTIVE OF RULES
The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.
RELATED SEARCH TERMS AND CONCEPTS: Statutory construction, interpretation of the procedural rules, rules of civil procedure
TEXT OF RULE 1. OBJECTIVE OF RULES
The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law. To the end that this objective may be attained with as great expedition and dispatch and at the least expense both to the litigants and to the state as may be practicable, these rules shall be given a liberal construction.
RELATED SEARCH TERMS AND CONCEPTS: Statutory construction, interpretation of the procedural rules, rules of civil procedure
Find me the Rule, the TRCP no. soandso, the applicable Tex. R. Civ. P. - Which is it?
Which rule of procedure spells out the requirements for a valid Rule 11 Agreement?
Well, that's an easy one. So easy in fact it won't even qualify for the legal assistant competency exam; but most rules are not as conveniently named and remembered by their arbitrarily assigned cipher.
So how to find them if we don't remember? Not to mention finding them instantly?
THE TEXAS CIVIL RULES OF PROCEDURE aka TRCP cited Tex. R. Civ. P.
The rules governing civil lawsuit pleadings, motions, and court proceedings are available on the Texas Supreme Court's website as a single searchable (1.8MB) pdf file, which can be downloaded and kept open in the background for ready reference while busy drafting pleadings or briefs.
But how about being able to just google a rule or a topic, term, or issue, or deadline, or whatever associated with a rule? Better still, how about actually being able to find the rule without necessarily using its number or the exact language that will hit the right word in the full-test version, not to mention knowing the rule's assigned number.
Well, that's that this blog is designed to do.
Make the rules more accessible by using synonyms and related search terms, not to mention caselaw snippets applying the rule taken from recent appellate opinions. Let's give it a try and see if search engines, indexing, tags and links can quickly get us to the rule we need, and make life on the legal front easier.
SEARCH ENGINE FODDER: HOW TO find Texas rules of civil procedure Find me the rule, which rules says, which rule governs, which rule applies, which rule controls? Where is the rule that says specifies, makes it mandatory that, requires, prohibits ....
Well, that's an easy one. So easy in fact it won't even qualify for the legal assistant competency exam; but most rules are not as conveniently named and remembered by their arbitrarily assigned cipher.
So how to find them if we don't remember? Not to mention finding them instantly?
THE TEXAS CIVIL RULES OF PROCEDURE aka TRCP cited Tex. R. Civ. P.
The rules governing civil lawsuit pleadings, motions, and court proceedings are available on the Texas Supreme Court's website as a single searchable (1.8MB) pdf file, which can be downloaded and kept open in the background for ready reference while busy drafting pleadings or briefs.
But how about being able to just google a rule or a topic, term, or issue, or deadline, or whatever associated with a rule? Better still, how about actually being able to find the rule without necessarily using its number or the exact language that will hit the right word in the full-test version, not to mention knowing the rule's assigned number.
Well, that's that this blog is designed to do.
Make the rules more accessible by using synonyms and related search terms, not to mention caselaw snippets applying the rule taken from recent appellate opinions. Let's give it a try and see if search engines, indexing, tags and links can quickly get us to the rule we need, and make life on the legal front easier.
SEARCH ENGINE FODDER: HOW TO find Texas rules of civil procedure Find me the rule, which rules says, which rule governs, which rule applies, which rule controls? Where is the rule that says specifies, makes it mandatory that, requires, prohibits ....
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