Pretrial Disclosures/ Texas Courts/ TRCP 166

What discovery is, is boiling down things to their essence so trial is quick and addresses the only thing(s) still in dispute. The plaintiff states the law, narrates the facts favorable to their position, and applies the law to the facts. The defendant defends - whether by affirmative defense, disputing certain facts (e.g. it was a blue car not a red car), or otherwise. A lot of stipulated facts are noncontroversial as they are irrelevant at the end of the day but are still procedurally required (e.g. the contract was signed in Texas - not too controversial, right?) And the rest, you are supposed to disagree on things, that is why you are in court. In discovery you don't need to sign off on others things. They file the certificate with the court, deliver the documents to you, you review them, and move for sanctions when appropriate or you issue additional discovery to further flesh out the case. You'll save yourself a lot of time and money if you agree to a half day mediation to at least work out some of the issues (like what is actually at issue) or maybe think about arbitration. If both parties are pro se you are likely to get yourself into a lot more trouble than you need with a judge; mediators and arbitrators have less power to hold you in contempt and such.

Failing to agree to disagree is just a disagreement. Someone is being silly and childish. What to do about it depends on the details. In general, I would file your portion of the disclosure stating unemotionally and in an even tone exactly where the parties cannot come together. Since each side can put anything in the disclosure they want, it makes no sense to say that there is something someone cannot agree to sign. Signing the document does not mean agreeing with the other side. The most extremely silly example would be if one side claimed the other side agrees about something and that other side claimed it did not agree. Even then the disclosure would say something like, "Party 1's position is that Party 2 agrees that A is true. Party 2's position is that it does not agree that A is true. The Parties disagree on whether Party 2 agrees to A." Put another way, it is really impossible to say the parties do not agree to disagree; that is disagreeing.

It looks as if you and the opposing side are required to file a joint pretrial order, which requires both parties to sign off. When I have disagreements with the other side over what the dispute is about, I simply propose to put each party's separately labeled version in the joint statement. For example, if you cannot both agree to the contested issues of law or contested issues of fact, you can have separate sections entitled "Plaintiff's Statement of Contested Issues of Law" and "Defendant's Statement of Contested Issues of Law."

The parties do not have to file their pretrial disclosures together. But even if they did, the parties don't have to agree on what the other will contend, what witnesses will be offered, etc. So one party says, we claim this and contend that these facts and this law controls to yield this result. And the other party says, none of that is true, those are not even cognizable claims, and the law of another forum applies. That is fine; the judge will consider each side's arguments and rule.

You have two issues. One is preparing the joint pretrial order. The other has to do with your pretrial disclosures. Some attorneys have addressed one part, some the other. It would be best for you to hire an attorney to sit down with you and your discovery responses and the Court's scheduling order (a.k.a docket control order) and the proposed pretrial order. That is how to get the most accurate advice for your case.