In the absence of statutory authorization of interlocutory appeal, the writ of mandamus usually is the sole convenient remedy for an egregious trial court decision prior to judgment. The increasing number of mandamus petitions which annually invade the Texas appellate courts reflects the importance of the writ of mandamus. While once described as the “extraordinary” remedy, it is not uncommon for proceedings in a trial court to cease while a party seeks mandamus review of a controversial discovery ruling. One type of discovery rule which has not escaped mandamus review is the admission or exclusion of the testimony of witnesses whom a party has failed to disclose in response to a discovery request. In the decision of Mother Frances Hospital v. Coats, a Texas court of appeals determined, at least in some cases, mandamus is an appropriate remedy for an erroneous trial court witness disclosure order. This opinion could offer litigants an escape valve from pre-trial witness disclosure orders which threaten the effective presentation of a claim or defense. Conversely this opinion could trigger even more mandamus petitions to the appellate courts, thus contributing to the “thicket” of review mechanisms which interrupt trial processes. Having “entered the thicket” to control or correct even one trial court witness disclosure order, the Texas appellate courts will soon be asked to review in mandamus proceedings on more such orders. Some petitions undoubtedly will attempt to implicate the appellate courts in routine questions more appropriately left to the trial court’s discretion, while other petitions will seek appellate intervention in the erroneous exclusion of critical trial witnesses. The appellate courts must tolerate some abuse of mandamus procedures to ensure, in cases where mandamus is necessary, trial proceedings are fair and equitable to all parties.
St. Mary's University School of Law
David W. Holman & Byron C. Keeling,
Entering the Thicket - Mandamus Review of Texas District Court Witness Disclosure Orders.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol23/iss2/3
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