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What is a Rule 202 in Texas Litigation?

While serving their clients, lawyers need to work within the framework of the law. In Texas, the Rules of Civil Procedure determine acceptable practices when filing a suit. These rules lay out the proper ways to obtain, submit, and process information.

Most legal procedures happen after a client files a lawsuit in court. However, there are occasions when it is not practical to wait to gather information from witnesses. Failing health, potential relocations, and other similar factors can make it necessary to interview a witness before the claimant files a suit.

Many states have some version of the Federal Rule of Civil Procedure 27 in their legal frameworks. This rule allows for a pre-suit deposition of a witness for the sake of perpetuating testimony for an anticipated lawsuit. If the lawyers involved think they could lose a witness’ testimony before the court proceeding, they can make a request to the court for a pre-suit interview under oath.

In Texas, Rule 202 expands the legal understanding of this procedure. A claimant can request a pre-suit deposition for both an anticipated lawsuit and to gather information for a potential lawsuit. This broader interpretation offers lawyers a powerful tool as they seek to assist their clients.

Rule 202.1(a): Preparing for an Anticipated Suit

Rule 202 does not permit a legal team to take sworn testimony haphazardly. The court approves a Rule 202 request based on the circumstances involved in the case. When there is an anticipated suit, lawyers must demonstrate that deposing a witness before filing will prevent a failure of justice. In most cases, this restriction means there is a concern about losing testimony if too much time passes.

For example, if the claimant or a witness has a terminal illness, the court may grant a Rule 202 request so that a transcript of their testimony is available during the formal proceedings. The law usually restricts a Rule 202 deposition to an oral interview or a written response to questions. However, there have been cases where a witness submits documents for discovery during the pre-suit testimony.

Rule 202.1(b): Investigating a Potential Claim

Applying Rule 202 to investigate potential claims is an unusual feature of Texas law. Lawyers frequently use this application to determine the focus of a potential lawsuit. Claimants may know that an organization caused them injury, but they may not who has direct responsibility. A pre-suit deposition can provide necessary information that will streamline the legal process and prevent unnecessary court time.

Once again, the court has control over the use of this procedure. The legal team files the motion in the county of the witness to be deposed. In the filing, the claimant must demonstrate that the benefits of obtaining the deposition will outweigh the burdens and expenses involved with it. The intention is that the claimant will gather information that is of the essence of the claim. The resulting testimony will help determine if an intended lawsuit is appropriate.

Concerns about Rule 202

Taking sworn testimony outside of a court proceeding is supposed to be an exception to the general rules of procedure. Several cases have pointed to some problematic applications of Rule 202.

Due Process Issues

Because Rule 202 allows lawyers to seek a deposition before they file a lawsuit, the due process rights of the witness are a concern. A situation could arise where a lawyer calls for the testimony of a potential defendant who does not know the nature of the complaint.

Potential Abuses

There are concerns that someone could invoke Rule 202 as a means to put a potential defendant under oath during an interrogation. This improper application is part of the reason that the court demands a clear justification of the merits of the deposition before granting the motion.

Working with an Experienced Legal Team

When called to testify for a Rule 202 deposition, it is important to partner with a competent, experienced attorney. Texas legal professionals will make certain that the court has invoked Rule 202 appropriately. Then, they will prepare their client for the interview.

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