Q: When do I submit my counterclaim evidence?

A: You are referring to something you call a "Dismissal of Countersuit" hearing. The two most common things that could mean are a hearing on a motion to dismiss filed under Rule 91a or a hearing on a motion for summary judgment filed under Rule 166a. It could also mean a motion to dismiss filed under the anti-SLAPP statute or a motion to dismiss against a healthcare provider under Chapter 74 of the TCPR Code or a motion to dismiss against a design professional under Chapter 150 of the TCPR Code or a motion to dismiss filed under a different statute.

With respect to the two most common possibilities, a Rule 91a motion to dismiss is based on the pleadings themselves. The hearing will be for argument only as to whether your counterclaim states a cause of action on which relief can be granted as a matter of law. If this is the type of hearing you are facing, you should carefully analyze your counterclaim, ideally with the aid of an attorney who practices in the applicable area of law, to determine whether you have properly alleged all of the elements required to establish a cause of action in your countersuit and to ensure that you did not allege facts which will defeat your cause of action as a matter of law. This type of hearing usually happens fairly early in the course of a case and has a time deadline from the date you filed your pleading. So it is less likely that this is the type of hearing you have scheduled unless you waited to the last few months to file your counterclaim.

With respect to a Rule 166a motion for summary judgment, you will need too submit an appendix of competent, admissible summary judgment evidence with your written Response to the Motion at least seven days before the hearing. Your Response should cite each relevant piece of evidence and provide an explanation as to why that particular evidence raises a genuine issue of material fact on an element of your cause of action challenged by the other party in its Motion. Ideally, you should seek the assistance of an attorney who practices in the applicable area of law to ensure that you fully and properly respond to each ground asserted by the other party and that your summary judgment evidence is competent and admissible. The court cannot lawfully consider any evidence other than what is contained in the appendix, so you need to make sure you get it right. Given that you say this hearing is set a month before your trial setting, my educated guess is that your hearing is on a Rule 166a motion for summary judgment.

The court also cannot lawfully consider any evidence not disclosed previously in discovery in your case. You can't "lie behind the log" and spring new evidence on your opponent like a TV show or movie. You will be limited to what evidence has been produced by the parties throughout the pendency of the case. If you recently discovered something new that you didn't know about before, you should supplement your previous disclosures and discovery responses as soon as practicable to avoid having this evidence excluded at the hearing.