Travis County District Court’s unique central docket sometimes has pitfalls for the uninitiated. It requires counsel to think differently about strategy in pretrial hearings and at trial. When seeking summary judgment, movant’s counsel always should err on the side of filing a reply when faced with a response. That’s true even though Texas Rule of Civil Procedure 166a, which governs summary judgment, does not require a reply. Here are three reasons why.

1. Opposing counsel may be long-winded, eating through the time allotted for the hearing. When setting a matter on the Travis County District Court docket, counsel must estimate the amount of time necessary for the hearing. This sounds straightforward, but it’s not.

Counsel must estimate the amount of time needed for the entire hearing, not just his own argument. It’s wise to set the matter for more time than anticipated (even regarding the opposing side’s time) to ensure as much time as needed is provided.

If the hearing wraps up in less time than originally estimated, the court will be more than happy to have that unused time back on the docket. However, the opposite isn’t true if the hearing risks running long. The court will limit the parties to the time requested, even if counsel needs more time to make proper argument. Attorneys always have the right to request a specific amount of time, but that power creates responsibility; the court will limit them to the time requested.

Additionally, the court will not necessarily divide the time for the hearing conveniently and neatly down the middle and then keep track of each side’s time usage. On the contrary, the clock may run out with one side not getting exactly one-half of the estimated time allotment. Filing a reply protects the client’s interests by outlining counsel’s reply to any new issues the respondent raises.

Further, if the judge does not rule immediately, the court and staff attorney will have counsel’s reply handy for review before issuing a ruling.

2. Responding to new issues raised in the response to the motion for summary judgment is advantageous. A few months ago, I was preparing for a hearing on my client’s motion for summary judgment. The opposing party filed a response, including evidence. I was debating whether it would be worthwhile to draft a reply.

I had already drafted my necessary objections to the respondent’s evidence, so I had already started a written document. But I couldn’t decide whether it would be worthwhile to draft a response to argue against newly raised legal issues or simply point them out orally in court. My client would appreciate the cost savings of foregoing a written reply and likely would have preferred that I make my points in oral argument instead.

However, I erred on the side of outlining my arguments in a reply, along with supporting case law. The judge assigned to the hearing had a chance to review the file prior to the start of the hearing. That’s rare in the central docket system, since the judges often receive the material only moments before the hearing begins.

Because the judge had that advance time, he only had some pointed questions related to the legal arguments. He saw no need to open the hearing to full argument, as he seemed undecided on only a couple of issues. Thus, we were able to streamline the hearing, focusing only on those issues and supporting case law. During the brief hearing, I pointed the judge to my supporting case law, but he also had the opportunity to review my reply earlier, letting him see the outline of anything the short oral argument may have missed.

The judge took the issues under advisement and later granted my motion in its entirety, to my client’s delight. I can only assume that having the reply, with case law attached and highlighted, provided the judge and staff attorney with the support needed to grant my motion.

3. Protecting the client’s appellate interests is key. The judge is not required to provide a court reporter or oral record for a summary judgment hearing. A court of appeals’ review of the trial court’s decision may be limited to the motions, responses and replies in the clerk’s record. Accordingly, a reply available for review in the record further assists the appellate court.

Should counsel file a reply when in receipt of a response to a motion for summary judgment? When practicing in Travis County District Court, the answer is "Yes, always."