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31 March 2026 (New York, NY) - Here is one of the more interesting stories from last week's American Bar Association Techshow in Chicago.
A pair of Texas judges told attorneys they should talk with opposing counsel if they have concerns about relevant data not being produced in litigation before involving the court in the dispute.
Judges Xavier Rodriguez and Roy Ferguson spoke on a panel last week about their "do's and don'ts for attorneys" when they are in the courtroom.
Special Judge Roy Ferguson said that attorneys' eDiscovery requests for more data from a computer or cellphone to be produced in litigation will not be granted without evidence that there is more relevant data.
Judge Ferguson added that one way attorneys can support their discovery requests is by deposing a witness, and if the witness mentions unproduced emails or texts, the attorney has evidence relevant data hasn't been produced:
"If you want to get information that establishes that there's missing documentation, a one-hour deposition will probably do it".
Texas U.S. District Judge Xavier Rodriguez said that even though some state courts don't have meet-and-confer requirements, competent attorneys will talk with opposing counsel first about data production before involving a judge:
"One of the major problems I see is you guys don't talk, and so everybody just like wants to rush to the fight without the talk in advance".
Judges Ferguson and Rodriguez spoke together on a panel about their do's and don'ts in the courtroom, covering topics including discovery, sanctions, trial presentation and artificial intelligence.
On the topic of sanctions, Judge Ferguson said good lawyers ask for appropriate sanctions, instead of the most aggressive sanctions possible like throwing out a case. He gave an example of a dog attack case where video evidence was deleted, and his remedy was to have four witnesses excluded from testifying at trial:
"What you need to do is ask for the least aggressive sanction that remedies the problem".
Regarding AI, Judge Rodriguez said attorneys should give judges advance notice of any novel uses of the technology like an AI-generated victim impact statement for a deceased person:
"No one likes last-minute, all of a sudden, I've got to figure out on the fly whether I should allow this in or not".
Judges Ferguson and Rodriguez both said attorneys need to not forget the importance of good storytelling when at trial.
Judge Ferguson said he once had a murder trial in his courtroom where a prosecutor didn't tell a compelling story even though he had "overwhelming" evidence and lost the case:
"What we're missing is the technology needs to support the story. The technology is not the presentation".
Judge Rodriguez added that when attorneys have spent months or years on a case, they can make the mistake of thinking everyone else knows their case as well as they do.
To overcome this problem, he suggested attorneys present their opening statements to someone at their law firm who isn't familiar with the case to get their input:
"When lawyers are before me on a hearing, and they start going off, and it's like, 'Guys, I was not metaphysically present at your deposition. I have no idea what this means, what this says, you need to inform me,' and I've got to draw it out of them, and I understand what's happened. You're living and breathing with that case, but I'm not".
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