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JUDGE MIKE ENGELHART
JUDGE MIKE ENGELHART
SPECIAL ANNOUNCEMENT: AS OF MONDAY, APRIL 27, 2009, ALL DOCUMENTS IN NEW LAWSUITS FILED ON OR AFTER THAT DATE MUST BE ELECTRONICALLY FILED IN THE 151ST DISTRICT COURT. NO PAPER DOCUMENTS WILL BE ACCEPTED. PLEASE VIEW THE COURT'S FIRST AMENDED STANDING ORDER HERE. PLEASE REVIEW THE HARRIS COUNTY LOCAL RULES OF THE DISTRICT COURTS CONCERNING THE ELECTRONIC FILING OF COURT DOCUMENTS HERE. FINALLY, LEARN ABOUT E-FILING THROUGH TEXASONLINE AND FIND ELECTRONIC FILING SERVICE PROVIDERS (EFSPs) HERE.
THESE COURT PROCEDURES ARE POSTED FOR YOUR CONVENIENCE. THEY ARE DESIGNED TO SAVE LITIGANTS TIME AND MONEY BY MAKING THE COURT’S EXPECTATIONS AND REQUIREMENTS CLEAR. YOU ARE RESPONSIBLE FOR KNOWING AND FOLLOWING THESE PROCEDURES. WE HOPE THEY ARE CLEAR AND THAT THEY WILL MAKE YOUR EXPERIENCE IN THE 151ST DISTRICT COURT MORE EFFICIENT AND PREDICTABLE. WE VIEW THEM AS THE BEST WAY FOR THE LITIGANTS AND THE COURT TO WORK AS A TEAM TO BEST ACHIEVE JUSTICE. THESE PROCEDURES ARE NOT TO BE CONSIDERED LEGAL ADVICE.
FILINGS AND COURTESY COPIES
All documents (other than the Original Petition or other document that is the first-filed document commencing a suit) filed in new lawsuits which are filed on or after April 27, 2009 shall be filed electronically. Please see this Court's standing order regarding mandatory electronic filing of April 17, 2009 HERE.
File your motion or other document with a certificate of service, (include certificate of conference as required by the TRCP) and proposed order, as applicable. Please index your exhibits. Once you have scheduled any hearing date with the court clerk, follow up with a notice of oral hearing or (if applicable) notice of written submission.
For all lawsuits, whenever filed, the Court no longer accepts paper courtesy copies or e-mails of courtesy copies. Instead, if a party wishes to bring a particular filing to the Court's attention, the party may (1) file the document with the clerk's office as it normally does and then (2) bring the document to the Court's attention by sending an e-mail (WITHOUT ATTACHMENTS) to the Court (call for e-mail address) asking the Court to view and consider the document that is already in the Court's electronic file system. Do not attach a copy of the document to your e-mail.
It is not necessary to bring a filing to the Court's attention, but if a party would like to do so, please use the method described in the preceding paragraph. Large e-mail files will not make it through the Court's low-capacity e-mail system. And, the Court wishes to do everything in its power to reduce paper waste. Obviously, it will take additional planning to file a document with the Clerk's office sufficiently in advance of a hearing for it to arrive in the Court's electronic file, so please plan ahead.
COURTESY COPIES ARE NOT TO BE E-MAILED OR OTHERWISE DELIVERED TO THE COURT
AGREED AND UNOPPOSED MOTIONS
Agreed motions do not have to be placed on the court’s docket. All unopposed or agreed motions should be titled as such. These motions are immediately presented to Judge Engelhart without the necessity of a hearing (this includes unopposed motions for continuance). In addition, ALL continuance or reset motions (whether agreed, unopposed or opposed) MUST state what number continuance motion is being filed (i.e. “Plaintiff’s First” or “Defendant’s Second” or “Third Agreed Motion,” etc.). If a motion is actually agreed, the motion and order should contain signature blocks for all parties that are agreed to the relief requested, and should state “AGREED AS TO SUBSTANCE AND FORM AND ENTRY REQUESTED” above the signature block.
CERTIFICATES OF CONFERENCE
Motions must have certificates of conference as required by the Texas Rules of Civil Procedure and our local rules. All certificates of conference must be explicit as to the party’s efforts to resolve the motion with all other parties/counsel prior to filing. If a party was unable to reach the other side prior to filing the motion, the certificate should state the efforts to communicate with that party, and should always be supplemented as soon as possible after the parties have actually conferred. If the court does not see a supplemented certificate in such circumstances, please expect a call asking for one.
The court requires complete compliance with TRCP 191.2, which state as follows:
“Parties and their attorneys are expected to cooperate in discovery and to make any agreements reasonably necessary for the efficient disposition of the case. All discovery motions or requests for hearings relating to discovery must contain a certificate by the party filing the motion or request that a reasonable effort has been made to resolve the dispute without the necessity of Court intervention and the effort failed.”
Please summarize your reasonable efforts in your certificate. Note: sending a copy of a motion, without more, is not a conference. Sending an e-mail or leaving a telephone message, without more, is not a conference. If opposing counsel refuses to return numerous phone calls or other messages, outline those attempts in your motion.
The court also requires complete compliance with Rule 3.3.6. of the Local Rules of the Civil Trial Division of the Harris County District Courts, which states as follows:
“The certificates of conference required by the TRCP are extended to all motions, pleas and special exceptions except summary judgments, default judgments, agreed judgments, motions for voluntary dismissal or non-suit, post-verdict motions and motions involving service of citation.”
PLEASE NOTE: The court clerk will remove from the docket motions that do not comply with this rule and will notify the requesting party of same.
Always consult with each other (preferably lead attorney on the case to opposing lead attorney on the case) before filing any motion related to discovery. Include an explicit certificate of conference as described above in the section of these procedures titled “Certificates of Conference.” Be sure to attach a copy of the discovery response at issue (please limit the attachment to the pages and requests/responses at issue in an effort to save paper) or state verbatim the request and answer in the body of your motion. Proposed orders should list each discovery issue separately so that the court may sign a specific order granting or denying the requested relief.
A) Appearance by Phone
Anyone may appear by phone for any scheduled hearing. If more than one person wants to appear by phone at a scheduled hearing, the attorneys must all conference in on one line and then call the court. See court clerk for details.
Parties must consult with each other about the matter (preferably lead attorney on the case to opposing lead attorney on the case). If both sides agree to an emergency hearing, call the court clerk or coordinator to set up a phone conference with Judge Engelhart. If only one side thinks it is an emergency, file a motion for emergency hearing (this is a good time to e-mail a courtesy copy to the court). File it directly with the court clerk who will then give it to Judge Engelhart for consideration. If an emergency hearing is granted, the movant is responsible for providing proper notice of the hearing to all parties.
C) Law Day Docket
Law day dockets are on Monday beginning at 8:30 AM. Any party requesting an oral hearing should call the court clerk for a date and time. Please advise the court clerk of the amount of time necessary for your hearing and whether you require a court reporter. The court staggers hearing times so that parties will not have to wait unnecessarily. Therefore, if the hearing on your motion will take longer than the time allotted on the morning docket, make arrangements with the court clerk for an afternoon hearing. Once you obtain a hearing date, file a notice of oral hearing and serve it on all counsel or pro se parties. For most motions, the court requires 10 days’ notice to opposing counsel for an oral hearing, unless shortened by agreement of all parties. The court strives to read every filing prior to the oral hearing, and thus would like to have as much lead time as possible to read motions and responses so that it may rule promptly at the hearing or very shortly thereafter.
It is the movant’s responsibility to provide proper written notice of the hearing to the court and to all parties. It is also the movant’s responsibility to timely advise opposing counsel if he/she is passing the hearing. The court clerk will remove from the docket motions that do not timely comply with this policy and will notify the requesting party of same.
Hearings also may occasionally be scheduled in the mornings by the court, Tuesday through Friday, before trial and during lunch time. Be sure to plan ahead in filing your summary judgment and setting it for a hearing. This allows you to receive a hearing when you want it and in compliance with your DCO. PLEASE NOTE: Any matter that has been set by the parties for an oral hearing on a date later than the deadline in the DCO will not be considered by the court without a motion for leave explaining sufficient cause for the late filing. The court will NOT consider substantial and potentially dispositive (or outcome determinitive) motions on the eve of trial or the morning of trial. Late filing of motions will rarely be a sufficient basis for a continuance.
D) Submission Docket
Submission docket is on Monday at 8:00 AM after 10 days’ notice. Oral hearings for matters placed on the submission docket are almost always allowed if requested and a response is filed; however, the request may not be granted if a response has not been filed. A request for an oral hearing is not a substitute for a motion to continue the hearing. Please clearly identify your request for an oral hearing or your request to continue the hearing by filing them separately from your response with proposed orders attached. The court may determine that certain motions do not need to be placed on the oral hearing docket (e.g., motions to reconsider with no new evidence). The court clerk will inform you if your motion for an oral hearing is denied in such a situation.
The court requires that certain motions be considered only on submission. These motions include; routine Rule 47 special exceptions, motions to withdraw as attorney of record, motion to substitute counsel, motion to appoint ad litems, referral and objections to mediation, motion to deposit registry funds, motion for withdrawal of funds and applications for writ of sequestration. HOWEVER, the court, in its discretion, may require an oral hearing or phone conference hearing for such motions in certain circumstances.
E) Temporary Injunctions
Temporary injunctions and evidentiary hearings typically are set Friday afternoons unless otherwise directed by the Court. Please call the court clerk before your scheduled hearing to confirm the hearing. For a temporary injunction hearing, it is imperative that we know whether or not you are ready to proceed; if the parties were properly served, and the length of time and the number of witnesses.
We may need to reschedule your hearing and extend the TRO (as permitted by law) if there are trial conflicts. Do not bring your witnesses to court until you have spoken with the court clerk.
HERE IS A PAPER PREPARED BY THE COURT WITH HELP FROM OUR LAW CLERK, JOEL B., FOR A CLE PRESENTATION IN DECEMBER 2009 REGARDING DISPOSITIVE MOTION PRACTICE BEFORE THE 151ST CIVIL DISTRICT COURT.
A) Default Judgments
Default judgments are set on the submission docket unless you need to prove up unliquidated damages. Please submit the proper non-military affidavit by visiting the Defense Manpower Data Center’s (DMDC) Military Verification service at https://www.dmdc.osd.mil/scra/owa/home. Further, here is a LINK to a list of 12 common mistakes that attorneys make in default judgment motions. It was prepared by the Court with able assistance from our law clerk Joel B.
Sanctions will rarely be awarded unless the opponent has violated a previous order or the conduct is objectively egregious. All requests for attorney’s fees as sanctions MUST be established by affidavit (preferred) or live testimony as to reasonableness and necessity, unless the parties agree on the record, in a filed Rule 11 Agreement, or an agreed order as to the amount.
All motions for severance must contain the following:
• New case number and new style name;
• Reference the parties in the new suit;
• List of original pleadings to be severed out and transferred to the new case;
• List of pleadings to be copied, certified and transferred to the new case;
• Indicate attorney name, address and bar number to whom costs are to be assessed; and
• Indicate whether the new case file is interlocutory (not a final appealable matter) or whether severance will cause the newly severed matter to be final and appealable upon severance. As an example, if a plaintiff obtains a summary judgment as to one of multiple defendants, and severs the claims against that defendant into a new cause, that matter will start the appellate timelines because all claims in the new cause will be resolved as to all parties. This should be expressly stated one way or the other in the motion for severance.
See our court clerk for details. Parties may consider, in the proper case, a request for abatement of a cause of action, or separate trials within one lawsuit, as this may be a less expensive and cumbersome alternative.
D) Special Exceptions
Please explicitly identify by page and paragraph the pleading or portion thereof to which you are specially excepting (unless the special exception is only to the maximum amount of damages sought pursuant to TRCP 47). Parties are encouraged to restate verbatim the paragraph(s) to which your special exceptions apply.
E) Substitute Service (Rule 106)
All motions for substituted service under Rule 106 must be accompanied by an affidavit that includes the following information:
• Efforts taken to verify that defendant actually lives or works at the subject address;
• Each attempt at service, with date(s) and time(s);
• Identity of persons who were present at the subject address and what was said; and
• Identity of cars in the driveway or statements by residents, or other indications that defendant actually currently resides at the subject address.
Here is a link to the court’s form order. Court's Form Rule 106 Order. Any Rule 106 Motion should be accompanied by this form proposed order. Failure to do so may delay the court’s granting of an otherwise proper motion.
F) Trial Continuances
Motions for trial or pretrial deadline continuances MUST to be accompanied by an appropriate affidavit. Continuance motions should be filed early. ALL continuance or reset motions (whether agreed, unopposed or opposed) MUST state what number continuance motion is being filed (i.e. “Plaintiff’s First” or “Defendant’s Second” or “Third Agreed Motion,” etc.). The more detail in your motion, the better the chance that it will be granted. The court does not intend to deny continuance motions when they are reasonably necessary, but it is the court’s policy to expeditiously move cases to trial. Therefore, if the court notes that trial preparation is not proceeding on schedule, the court may set the case for an in-person status conference and assist the parties in overcoming any obstacles. Likewise, the parties should proactively bring discovery, witness or other problems to the court’s attention as early as possible so that the court may attempt to provide guidance to the litigants to enable them to efficiently proceed to trial.
G) Withdrawal as Attorney of Record
All motions to withdraw as attorney of record must contain the following:
• An indication that the motion to withdraw and notice of the hearing or notice of submission was provided to the client, including evidence of mailing the motion to the client;
• An indication of whether or not the client consents to the motion;
• The last known mailing address, phone and fax number of client; and
• Notice to client that client has the right to appear at the hearing to object to the motion or file a response prior to the submission of the motion;
• Please make reasonable efforts to find substitute counsel in the appropriate case so that the client’s interests are protected;
• These motion DO require a certificate of conference, as opposing counsel has a right to be heard on these motions.
H) Daubert Motions (Exclusion of Expert Witness Testimony)
All motions to exclude experts should be filed AND set for hearing WELL IN ADVANCE OF TRIAL. The court will NOT consider such motions filed after the deadline in the docket control order without a motion for leave demonstrating exceptionally good cause. The court can not imagine a situation in which it would consider such a motion on the eve, or morning, of trial.
The earlier you file your response, the more likely the court will read and understand it. Responses that are filed after the response deadline provided for in the rules MUST be accompanied by a separate motion for leave to late file the response with a proposed order. Further, if you are filing objections to a party’s summary judgment evidence, please do not wait until the morning of the hearing to do so as it will probably not be considered at the hearing. Please make every effort to file such objections at the earliest possible moment. This will allow the court to review the objections and promptly rule on them so that the oral hearing on the motion itself will be as efficient and productive as possible.
A) Pretrial Orders/Exhibits/Motions in Limine
This court requires the parties to actually exchange proposed jury charges, motions in limine, exhibit lists, actual exhibits, party/attorney lists, witness lists, and deposition excerpts BEFORE the docket call, which is usually conducted by the coordinator by telephone the Friday that is 10 days before the beginning of the two week trial docket. The court finds that the best and least expensive practice (this is not required) is to create .pdf (Adobe) files of these filings and the exhibits and exchange them by burning CD’s or sending them to opposing counsel as e-mail attachments. Eliminate duplicate exhibits if possible by agreement. Mark an 8 x 11 size exhibit for any blowup used. Be prepared to advise Judge Engelhart of exhibit numbers for which you have no objection. Please work diligently to hone your motion in limine to the issues in the case rather than a boilerplate “everything but the kitchen sink” motion. Then work with opposing counsel or pro se parties to narrow those issues by agreement. As you can imagine, the court will frown on having to consider 40 different limine points while the jury panel is waiting on the hall. When preparing video deposition excerpts to play at trial, remember that some portions may be excluded under the Texas Rules of Evidence, and be prepared to present only the admitted portions without having to stop and start the presentation repeatedly in front of the jury. This may mean being prepared to edit the video deposition quickly during the course of the trial.
Provide page/line for any witness anticipated to testify by deposition PRIOR to the docket call. Opposing counsel must promptly advise of any objections. If objections remain, then the party seeking to exclude the testimony should file a motion to rule on the objections as soon as possible so that the court can promptly rule on the objections prior to voir dire. Separately, if there are “form” objections in the deposition transcript that can not be agreed upon, the party seeking to overrule the objection should file a motion for a ruling on these.
C) Time for Trial
Be prepared to advise Judge Engelhart of a realistic amount of time necessary to present your case in chief and any lengthy cross-examinations.
D) Court’s Charge
Drafts of proposed jury charges should be exchanged PRIOR to the docket call date. Only when actually assigned to trial, the parties should make arrangements with the trial coordinator to e-mail their proposed charge to the court in Microsoft Word format so that the court may compile the court’s charged as the trial proceeds.
E) Findings of Fact/Conclusions of Law
In a non-jury trial, proposed Findings of Fact and Conclusions of Law MUST be filed prior to trial to enable the court to follow along during trial. Courtesy copies should be filed via e-mail to the court coordinator in Microsoft Word format. These proposed findings and conclusions may, of course, be revised and filed subsequent to the trial as allowed by the TRCP.
F) Trial Settings
All cases are automatically set for trial after the answer of a defendant is filed. Most cases are reset within 2 to 4 months if not reached at the first setting. If you anticipate a challenge to an expert’s qualifications, please schedule the hearing well in advance of trial (see discussion of Daubert Motions above). Please discuss scheduling of any anticipated Daubert motion with the court at an earlier status conference. Parties must call the trial coordinator to get docket positions. The positions on the JIMS/internet screens are not always most current. Trial coordinator Corina Teniente’s direct line is 713-368-6211.
G) Jury Panel
If you need a panel of more than 36 jurors, please let the court coordinator know at trial docket call. If you need a panel larger than 50, please advise the trial coordinator at least 45 days before trial so that we may reserve the ceremonial courtroom.
H) Voir Dire
Judge Engelhart does not usually limit the time for voir dire. After the general voir dire, individual jurors may be questioned at the bench for cause. If you are going to use a jury questionnaire, let the court coordinator know 30 days before trial. Please work together to prepare a joint questionnaire that is as brief as possible. If there are any questions not agreed on, you need to present them to Judge Engelhart by submission or oral hearing PRIOR to the docket call.
The court’s standard docket control order requires the parties to complete ADR. If you believe that your case is not appropriate for mediation, file an objection to mediation as soon as practicable and put it on the submission docket or set it for telephone hearing. An agreed motion will almost always be granted. An opposed motion may cause the court to set the matter for oral hearing or a quick telephone conference.
Throughout the pendency of a case, the parties, all counsel, and their agents or representatives shall obey and comply with the Texas Rules of Civil Procedure, the Texas Disciplinary Rules of Professional Conduct, and the Texas Lawyers’ Creed – A Mandate for Professionalism (as applicable). Judge Engelhart expects counsel to act professionally at all times. Violations of these procedures (or of other orders and/or instructions of the court) are punishable by contempt. This punishment can include up to a $500.00 fine and/or six (6) months in jail. Violations may also be subject to sanctions pursuant to Rule 215, Texas Rules of Civil Procedure, as well as other applicable authority and the inherent power of the court.
All non-suits, dismissals and judgments should be titled as interlocutory or final. Interlocutory orders should expressly list which parties and claims are being dismissed and which remain (if any). Final orders MUST state that the order disposes of all claims and all parties and is intended to be a final, appealable order. Motions and notices of non-suit as well as orders of non-suit should expressly state that they are being filed pursuant to Rule 162 of the Texas Rules of Civil Procedure. These motions are immediately presented to Judge Engelhart without the necessity of submission or oral hearing.
1) Dress appropriately. Judge Engelhart expects counsel, parties and witnesses to dress in a professional manner. On hot days, the court will allow parties to remove their coats upon request.
2) Stand each time the jury enters or exits the courtroom.
3) Please stand when addressing the Court. The court may instruct you to remain seated in a hearing in which there will be a lot of back and forth discussion amongst the court and counsel. Please sit when questioning a witness.
4) Ask to approach the witness the first time and then you may approach freely.
5) Don’t address witnesses, parties or opposing counsel by their first names. Use their titles.
6) Line up your witnesses in order to avoid delay. Advise the court if there are witness timing issues so that witnesses may be taken out of order, if necessary, or allowed to be on call so they don’t have to wait a lengthy period of time to testify. Parties should be prepared to allow witnesses to testify out of order and be generous toward each other in this regard.
7) Identify yourself to the Judge and the court reporter before a hearing begins. Provide a business card with your name, correct address, phone number, fax number and e-mail address. Also include party representation.
8) Plaintiff’s exhibits are to be marked with yellow “Plaintiff’s Exhibit” stickers. Defendant’s exhibits are to be marked with blue “Defendant’s Exhibit” stickers. Use only numbers when marking exhibits instead of letters. Parties should provide their own. In an emergency, a limited number of exhibit stickers may be obtained from the court reporter.
9) Accurate exhibit lists should be furnished to Judge Engelhart and to the court reporter. Exhibits with multiple pages should be stapled, bound and/or assembled so that they may be accurately preserved.
10) Redactions should be made prior to the exhibit being offered. Exhibits redacted after the exhibit is admitted (subject to redaction or without initial objection) are to be marked as an “A” exhibit and the original, unredacted exhibit is kept by the court reporter for the record. Once an exhibit is offered (even if not admitted), it must be tendered to the court reporter.
11) Once an exhibit number has been assigned, the same exhibit number may not be used for another exhibit, even if the original exhibit is withdrawn or not used in the hearing or trial.
12) Page/line designations of deposition testimony, along with a non-condensed copy of the transcript, are to be furnished to the court reporter prior to the offer. When one person is reading from written deposition testimony, the reader must say “Question” prior to reading each question and “Answer” prior to reading each answer.
13) Arrangements for acquiring testimony after a hearing or during a trial may be made directly with the court reporter. Please advise the court reporter a week before a hearing or trial if a daily copy is required. You must notify the other side of your request. You may reach the court reporter at firstname.lastname@example.org or call 713-368-6212.
FREQUENTLY ASKED QUESTIONS
1) Does the court provide its own blackboard? YES. Chart stand? YES. Elmo? YES. Video equipment? YES. Lecturn? YES.
2) What arrangements must be made to use them? None; however, if you would like to stop by the week before a hearing or trial to practice using the court equipment, the Deputy, Victor Johnson, will be happy to assist you. Please take the time to familiarize yourself with these tools. As you can imagine, no one wants to wait while you learn on the fly during trial.
3) How is notice of ruling given by the Court? The trial coordinator or court clerk will call you with rulings by the court on most contested matters and matters taken under advisement. In addition, they will fax a copy of the order to you. For other matters, a postcard is mailed from the District Clerk’s office. Check with the District Clerk office about accessing imaged documents on-line. You may also call the court clerk at 713-368-6222. Note: Notices required of the District Clerk are automated. Incomplete address information could result in failure to receive notices concerning your case. Make sure your address is current with the District Clerk’s office.
4) Where do I go to view the 151st Civil District Court case (cause) files? The 151st Civil District Court is an electronic court. You may contact Civil Customer Service – Civil Courthouse, 201 Caroline, Suite 210, Houston, Texas 77002 (Monday – Friday, 7:30AM until 5:00PM) or visit the District Clerk’s website at http://www.hcdistrictclerk.com or e-Clerk system at https://e-docs.hcdistrictclerk.com .
5) Where do I go to get a copy of a certified or uncertified order? You may contact Civil Customer Service – Civil Courthouse, 201 Caroline, Suite 210, Houston, Texas 77002 (Monday – Friday, 7:30AM until 5:00PM) or visit the District Clerk’s website http://www.hcdistrictclerk.com .
6) Where do I go to file a petition or request service in Harris County? You may contact Civil Intake – Civil Courthouse, 201 Caroline, Suite 110, Houston, Texas 77002 (Monday – Friday, 8:00 AM until 5:00 PM) or call 1-888-545-5577.