Civil Procedure

Question 1

Subject Matter Jurisdiction

Answer 1

courts power to hear a specific case

Question 2

Personal Jurisdiction

Answer 2

courts power over a party to the action or a party’s property

Question 3

Venue

Answer 3

concerns the proper placement of a case within a judicial system

Question 4

To determine which court or courts have subject matter jurisdiction:

Answer 4

1. Whether the type of case or relief sought requires the case to be filed in a particular court or courts
   - The type of case or relief dough may creat exclusive jurisdiction in one court or concurrent jurisdiction in various courts.
   Ex: District court has exclusive jurisdiction over cases seeking a determination of title to land or enforcement of a lien on land
2. If the Answer to the first question is no, the second question asks what is the amount in controversy in the suit
   - Calculating the amount in controversy
   Assuming the type of case does not place the case within the jurisdiction of a specific court, the amount in controversy determines which court or courts have jurisdiction over a lawsuit
   -The amount prayed for in good faith by the plaintiff determines the amount in controversy
   - IF there is a claim for other many money damages (injunction) the amount in controversy is usually determined with reference to the value of the thing or interest sought to be restrained

Question 5

Specific Limits in Courts

Answer 5

Justice Courts: jurisdiction up to $10,000
Constitutional County Courts: Jurisdiction from $200.01 to $10,000
County Courts at Law: Jurisdiction from $200.01 to amount in statute (usually $200,000 max jurisdictional amount unless changed by specific court by statute )
District Courts: Jurisdiction when the amount in controversy exceeds $500. No upper limit

Question 6

Plaintiffs Pleading/ Original Petition

Answer 6

1. Gives fair notice to the parties of the facts and legal theories and
2. guides the trial judge for the purpose of admitting evidence and in charging the jury

Question 7

Plaintiffs Pleading/ Formal Requirements of Petition

Answer 7

Formal Requirements: Petition shall state

• Names of the parties and their residences
• A short statement of the cause of action sufficient to give fair notice of the claim involved
• In all claims for unliquidated damages only the statement that damages sought are within the jurisdictional limit of the court and
• A demand for judgment for all other relief which the party deems himself entitled

Question 8

Plaintiffs Pleading must be Signed by:

Answer 8

Pleadings must be signed by the party or his attorney. Signatures constitute a certificate by them that they have read the pleading and that to the best of their knowledge and belief formed after a reasonable inquiry, the pleadings are not groundless of brought in bad faith for harassment.
If there is a finding of bad faith the victim can file a motion for sanctions against the party or the attorney who signed the pleading. Range includes awarding cost to attorney fees

Question 9

Damages for Plaintiff

Answer 9

In all claims for unliquidated damages the petition should contain only the statement that the damages sought are within the jurisdictional limit of the court
- Defendant can require plaintiff to specify the amount claimed by filing a special exception seeking a specification of damages and asking the court to require the plaintiff to amend so as to specify the maximum amount claimed

Question 10

Prayer for Plaintiff

Answer 10

IF the prayer or demand is only for damages already pleased it may simply state that generally. If some different or additional relief is sought such as injunction or recision such relief must be specifically pleaded.

Question 11

Amended Pleadings for Plaintiff

Answer 11

An amended pleadings supersedes the prior pleading and must be complete in itself
An amendment may be made without permission of court if it is made more than 7 days prior to trial.
A motion seeking permission (leave) of court is required if the amended pleading is filed within 7 days prior to trial
- Also covers amendments to add affirmative defenses and counterclaims to defendants answer
If Plaintiff seeks permission to amend, should court grant motion? No, leave should be denied if it adds a new cause of action or would cause surprise or hardship to the defendant (Would it required different evidence to defend against new allegations)

Question 12

Trial Amendments for Plaintiff

Answer 12

Plaintiff offering evidence at trial without filing amended petition and evidence admitted without objection. Then Defendant objects to the charge to the jury claiming shouldn’t be allowed to consider evidence not supported by any pleading. What steps should plaintiff take to overcome objection?
- Seek Leave to file a trial amendment (Court should allow, defendant failed to object at trial and defendant will be found to have impliedly consented to trial of this issue)
What if Defendant had objected to evidence, How should Plaintiff respond?
- Plaintiff should request leave to file a trial amendment
Court should allow a trial amendment when presentation of the merits will be served and the objecting party fails to satisfy the court that the amendments would prejudice him in maintaining his action or defense
- If entirely new injuries added, Defendant would probably satisfy

Question 13

Continuance

Answer 13

If the trial court allows an amendment and the party opposing the amendment needs more time that party should request a continuance to preserve error. If the party refuses an offer of continuance the party waives his right to complain on appeal

Question 14

Supplemental Pleadings

Answer 14

A supplemental pleading is used to reply to a defendants defense.
A supplemental pleading is made in response to the last previous pleading to the adverse party. It adds to but does not superseded the last pleading

Question 15

Defendants Pleading

Answer 15

The rules governing amended and supplemental pleadings control the defendants pleadings as well as the plaintiffs proceedings

Question 16

Special Pleading/ Suit on an Account

Answer 16

EX: Contract where you agreed to supply goods on account. If X is over due in paying the last 6 months accounts what must you plead in order to bring a suit on the account?
- File a verified pleading on a sworn account. The verified account may be relied on to establish a prime facie right of action. Petition must contain an itemized statement to the goods or services sold, revel offsets to the account and be supported by an affidavit stating that the claim is just and true and within the affiants knowledge
What if X wants to dispute the quality and amount of materials supplied and sums owed? What must X due to preserve his right to present his defenses to Your claims?
- File a written denial under oath. Failure to file a verified denial prevents the defendant from denying the claim and waives the right to dispute ownership and the amount of the account

Question 17

Personal Jurisdiction, Adequate Grounds

Answer 17

Substantive due process requires that a state must have constitutionally adequate basis for the exercise of personal jurisdiction. Constitutionally adequate grounds:

• Physical presence of the defendant in the forum state
• The defendant is a domiciliary of the forum state
• The defendant consents (express or implied) to the states exercise of personal jurisdiction
• The defendant has minimum contacts with the forum states

Question 18

Personal Jurisdiction over Nonresident Defendants and Minimum Contacts

Answer 18

Ex: Car wreck of resident of Florida while driving through Texas
What basis exists for exercising jurisdiction in Texas?
Minimum Contacts. 3 Elements:
1. The non-resident defendant or foreign corporation must purposefully do some act or consummate some transaction in Texas
2. The cause of action must arise from or be connected with this act or transaction (called specific jurisdiction) and
3. The assumption of jurisdiction by Texas must not offend traditional notions of fair play and substantial justice

Ex: Texas resident travel to state and is injured in store but corporation has stores in Texas.
Is corporation subject to jurisdiction in Texas?
Yes, Subject to General Jurisdiction in Texas. Even though corporations activities in Texas did not give rise to claim nor are the activities connected with this incident. Second element of the minimum contacts test is useful in any case and necessary when the defendant has few contacts with the state but is unnecessary where the defendant has substantial systematic contracts with the forum (ie when there is generally jurisdiction)

Question 19

In-State Personal Service

Answer 19

Defendant must be served with process (ie a copy of both the citation and the petition) to compel an answer. Service can be done either by personal delivery or mailing the citation and petition by registered or certified mail, return receipt requested

Question 20

In-State Substitute Service

Answer 20

IF the plaintiff is unsuccessful in attempting to serve the defendant either in person or by mail

• The plaintiff may vile a motion with an affidavit stating the usual place of abode or business of the defendant and asserting facts showing that service has been attempted but unsuccessful
• The court then may authorize service by leaving a copy of the citation and petition with anyone over 16 years of age at the location specified in the affidavit or by any manner that will reasonable give the defendant notice of the suit

Question 21

In-State Citation by Publication

Answer 21

When a party or his attorney swears that he is unable to locate the defendant or his residence and other means of service have failed, the clerk or court issues service by publication

Question 22

In-State Service on Corporations

Answer 22

Both domestic and foreign (nonTexas) Corporation doing business in Texas are required to designate an agent on whom service may be made. Process may be effectively served on
- The registered agent, the president of the corporation, or any vice president of the corporation
When a foreign corporation fails to appoint a registered agent it may be served by serving the secretary or state who then has the duty to notify the defendant by registered mail

Question 23

Requirements for Out-of-State Service/ Long Arm Statute

Answer 23

In order to serve the defendant by serving the Texas Secretary of state under the Texas long arm state, what must Plaintiff affirmatively alleged in his petition?
Must alleged that the defendant:
- Is a nonresident of Texas
- Has no regular place of business or person in charge in Texas
- Has no registered agent for service of process in Texas and
- Has been doing business in Texas (ie entering into a contract by mail or otherwise with a resident of Teas to be performed in whole or in party by either party in this state or committing any tort in whole or in party in this state)

Question 24

What steps must plaintiff take under the Texas Long-arm statute to establish service of process?

Answer 24

Obtain a certificate of service from the Secretary of State showing that the date it received process, the date process was forwarded to the defendant, and the date the secretary of state received the return receipt. This certificate must be filed with the clerk of the court to support a default judgment

Question 25

Service of Process and Statute of Limitations

Answer 25

While filing a petition generally tolls the statute of limitation, plaintiff must also exercise actual diligence in procuring both issuance and service of citation.

Question 26

Proof of Service Requirement for in state and out of state

Answer 26

Requirement: If service has been made by delivering process to the defendant in person the return must be endorsed on or attached to the citation. IT must state the time and manner or service and be signed by the server. IF service is by mail, the return is the same, except that the return must also have the return-receipt signed by the addressed with it. File with clerk of court
Out of State Service: Proof of service under the Texas long arm statute

Question 27

Defendants Pleadings/ Pre-answer Pleadings

Answer 27

Defendant can file pre-answer pleadings known as dilatory pleas that delay or defeat an action without determining the merits of the action. Dilatory please include special appearances, motions to transfer venue and other pleadings

Question 28

Defendants Pleadings/ Answer

Answer 28

Defendant can file an answer raising matters known as pleas in bar that seek a determination on the merits of the action. These pleas include general denials, special denials, and affirmative defenses

Question 29

Defendants Pleadings/ Consolidate Responses

Answer 29

The defendant can file a singled consolidated pleading raising both dilatory please and pleas in bar. Problems result when the defendant fails to follow the due order of pleading rule

Question 30

Defendants Pleadings/ Special Appearance (Challenging Personal Jurisdiction)

Answer 30

When it must be filed: The Due Order of Pleading
To challenged courts exercise of personal jurisdiction over it and at what state of case must it be asserted:
Defendant should file a special appearance to challenged the courts exercise of personal jurisdiction
Under the due order of pleading, a special appearance must be filed before any other plead, pleading or motion by the defendant. If a defendant fails to comply with the due order of pleading the defendant makes a general appearance, consents to jurisdiction and waives all defects in service.
In contract a “plea to the courts jurisdiction” challenges the courts subject matter jurisdiction which is a nonwaivable defect

Question 31

What if defendant sends written discovery to plaintiff with its special appearance. Has Defendant waived its objection to jurisdiction?

Answer 31

No, while it is true that defendant must file a special appearance before any other pleading or it is waived, making discovery subpoenaing witnesses and even appearing in person for the hearing on the special appearance may be done without waiving it

Question 32

The special appearance procedure: What must it assert?

Answer 32

The burden is on the defendant to negate the basis for personal jurisdiction
The pleading should assert that the defendant is not amenable to service of process and deny the plaintiffs allegations, the pleading must be verified and the forms of evidence that may be presented to the court in deciding jurisdiction are all discovery, affidavits and oral testimony
The granting or denial or a special appearance is an interlockatory order that may be immediately appealed

Question 33

Motion to Transfer: Challenging Venue

Answer 33

Except as otherwise provided in sections dealing with mandatory exceptions or permissive exceptions, all lawsuits shall be brought:
- In the county in which all or a substantial part of the events or omissions giving rise to the claim occurred
- If the defendant is a natural person, in the county of the defendants residence at the time that cause of action accrued
- If the defendant is not a natural person in the county of the defendants principle office in the state or
- if none of the above applies then in the county in which the plaintiff permanently resides at the time of the accrual of the cause of action
Residence of the plaintiff is a proper county for venue purposes under the general rule only if no other provision of the general rule applies.

Question 34

Suits involving Multiple Defendants and Motion to Transfer

Answer 34

In suits involving multiple defendants if the plaintiff establishes proper venue against one defendant it is proper as to all defendants in all claims arising out of the same transaction or series of transactions

Question 35

Principle Office

Answer 35

Principle office= where corporate decision makers are located within the state. The mere presence of an agency or representative such as a retail convenience store does not establish a principal office

Question 36

Mandatory Venue

Answer 36

12 exceptions (ex: actions involving land must be brought where land is located, specific performance not covered)

Question 37

Permissive Venue

Answer 37

6 Exceptions

• Breach of warranty by a manufacturer of a consumer good provides that suit is proper in the county of the plaintiffs residence at the time the cause of action accrued
• A permissive venue exception for suit on a written contract allows suit to be brought in the county in which the defendant is required to perform

Question 38

Venue Procedure

Answer 38

Motion to transfer venue
Step 1: Plaintiffs Venue Pleading
-What must plaintiff plead in the petition to demonstrate proper venue? In the petition the plaintiff must plead the existence of a cause of action and should plead venue facts (ex: defendant failed to perform his contractual duty obligation in hill county) That if true are sufficient to maintain the suit in the county where it is filed
Step 2: Defendant Motion to Transfer Venue (due order of pleading)
If defendant wishes to challenge venue- Motion to transfer venue must be filed before any other pleading or plea other than a special appearance. The motion has been waived if it violates the due order of pleading (court will deny if out of order)
-What if there are two defendants and one already filed an answer is it to late for the other to file a motion to transfer venue No, in a suit in which two or more defendant are joined any act or omission by one defendant in relation to venue, including waiver, does not operate to impair or diminish the right of any other defendant to properly challenge venue.
- What it must assert: State that venue is not proper where suit is filed, deny any venue facts in plaintiffs petition which defendant wishes to contest, name the county to which transfer is sough and plead venue facts that support the county of requested transfer as proper, identify the section of the venue statute making the requested county proper and request a transfer to the specified county
Step 3: Plaintiffs reply to Defendants Motion To Transfer Venue
What must Plaintiff file and when will it be due? Plaintiff must file a response at least 30 days prior to the hearing on the motion to transfer venue. Response should present prima facie proof (affidavits and discovery materials) or matters specifically denied by defendant and specifically deny any of the defendants pleaded venue facts which plaintiff wishes to contest

Question 39

Other Motion to Transfer Venue Issues

Answer 39

• Burden: defendant will have the burden of proof
• Verified: the motion to transfer venue does not need to be verified
• Notice: except on leave of court, each party is entitled to 45 days notice of a hearing on the motion
• Decision maker: All venue challenges are decided by the court without aid of jury

Question 40

Appel for Motion to Transfer and Appeal with multiple Plaintiffs

Answer 40

No interlocutory appeal is allowed and a party must appeal the venue decision after a final judgment. The trial courts decision will prevail unless the appellate court finds reversible error
Appeal with Multiple Plaintiffs: Where there are multiple plaintiffs in as suit, each plaintiff must independently establish proper venue, if challenged. An interlocutory appeal may be taken of a trial courts determination that a plaintiff did or did not independently establish proper venue

Question 41

Motion to Change Venue

Answer 41

Asks if there is such a prejudice against the defendant in the county of suit that the defendant cannot obtain a fair and impartial trial
(motion to transfer asks if trial court is proper venue)

Question 42

Motion To Quash- Challenging Service

Answer 42

Availability: In a motion to quash the defendant does not challenge the courts power over the defendant. Instead the defendant challenges the procedure used to serve the defendant. A defendant may challenge defective jurisdictional allegations in the petition or defects in service or process or in the citation with a motion to quash
Ex: Served the wrong person thinking it was the right person
Utility: If motion to quash granted, required to reissue citation? No if the motion to quash is granted the defendant does not need to be re-served. The moving party is required to file an answer by 10am on the first Monday after the expiration of 20 days from the date that the service or citation is quashed

Question 43

Pleas in Abatement- Challenging Suit

Answer 43

Plea challenges the plaintiffs pleadings by alleging facts arising outside the petition that justify the suspension or dismissal of the case. Plea in abatement is based on either:
- A defect in the parties (ex Capacity, nonjoinder of necessary party, improper party)
- A defect in the petitions allegation (eg pendency of another action involving the same parties or pendency or an administrative proceeding involving the same claim)
The plea identifies the impediments, the effective cure, and asks the court to suspend the lawsuit until the plaintiff has corrected the defect

Ex: Sue a store under the name “Eds Store” But it’s actually “Eds Store Inc” and eds wants to assert corporate capacity.
- File a verified denial because it is not liable in the capacity in which it has been sued. Then alleged the same matters in a verified plea in abatement which raises the capacity issue and asks the court to take action on the alleged defects

Question 44

Special Exception: Challenging the Pleadings

Answer 44

An objection to plaintiffs or defendants pleading is made by special exception. May be based on:
- Defects of substance related to the cause of action, defense an elements of damage or relief which is not allowed by law or
- Defects of form typically related to vagueness, ambiguity and the like
A party specially excepting must object in writing call for a hearing and get a ruling on the exception on the record otherwise it is waived
If the exception is sustained, the ruling will allow the party to amend the pleadings to correct the defect, if possible. IF the party elects to not amend the pleading the opposing party can file a motion to dismiss or strike asking the court to dismiss or strike the defective allegation which the party refused to amend despite being given the opportunity to do so

Question 45

The Answer: Pleas in Bar

Answer 45

Time to Respond: Defendant must file an answer by 10am on the first Monday after the expiration of 20 days from the date the defendant was served with process. Applies to corporate as well as individuals

Question 46

General Denial

Answer 46

Availability- Defendant may generally deny all of the plaintiffs allegations. Need only state” defendant denies each and every allegation in plaintiffs original petition”
Effect- Puts in issue all matters not required to be denied under oath or specially denied

Question 47

Due Order of Pleading

Answer 47

The special appearance must be first, motion to transfer venue second and then any other motions, failure to follow this order of pleading waives the pleading that is out of order. Defendant may file a consolidated response without waiving the special appearance or motion to transfer venue

• Special Appearance should be filed to challenged the courts exercise of personal jurisdiction
• A motion to transfer venue should be filed to challenge plaintiffs choice of county for filing
• A special exception should be filed to challenge the generality of the pleadings
• A generality denial should be filed to deny all plaintiffs allegations

Question 48

Special Denial

Answer 48

When there is a condition precedent to the defendants duties (ex: conditions in an insurance policy or conditions to the duty to purchase a home) it is sufficient if the plaintiff generally alleges that all conditions precedent have been performed or have occurred
In order to challenge the plaintiffs allegation, defendant must specifically deny those conditions that the defendant maintains have not been met. Unless the defendant specifically denies the conditions precedent, the plaintiff need not prove the matters as her allegations are taken as true

Question 49

Verified Pleas

Answer 49

How: Verification consists of signing an affidavit under oath to the effect that the factual matters pleaded are true. The affidavit should be made by the party.
Affirmative Defenses: Five affirmative defense that must be verified
- A contract is usurious, no consideration, failure of consideration, denial of the execution of an instrument in writing, denial of the genuineness of an assignment

Question 50

Denials and abatements that must be pleaded under oath include:

Answer 50

• That the plaintiff lacks legal capacity to sue or defendant lacks legal capacity to be sued
• A denial of plaintiffs properly field sworn account action and
• That there is another suit pending in Texas between the same parties involving the same claim

Question 51

Affirmative Defenses

Answer 51

Confession and Avoidance: An affirmative defense is any matter that provides an independent reason that if proved by the defendant will totally or partially bar the plaintiff form recovering even if the plaintiffs allegations are true. Affirmative defenses are distinct from denials which directly negate and contest the allegations made by the plaintiff

Texas rule of Civ Pro 94 lists many of the more common affirmative defenses, including accord and satisfaction, arbitration and award, duress, fraud, contributory negligence, payment, release, statute of limitations, and the statute of frauds

Question 52

Effect and Waiver

Answer 52

Affirmative Defenses must be pleaded by the defendant as a ground of defense. Defendant has the burden of proof on these matters and if pleaded and evidence is produced defendant is entitled to have affirmative defenses submitted as questions to the jury
The failure to plead an affirmative defense waives that defense. However an affirmative defense will be tried by consent if the opposing party fails to timely object to evidence introduced to support the defense

Question 53

Arbitration

Answer 53

Ex: Contract contains arbitration clause but a party sues, can you file an answer using arbitration clause as affirmative defense?
No, Arbitration and award is an affirmative defense but the contractual arbitrary clause by itself provides a basis for filing a motion to compel arbitration

Question 54

Removal to Federal Court

Answer 54

Generally: Standard for removal: a case may be removed to federal court if the case could have been originally filed in federal court (eg the case presents a federal question or satisfies diversity of citizenship requirements
Removal is available only to the defendant and if there are multiple defendants all defendants must join in the removal

Question 55

Diversity of Citizenship

Answer 55

• For individuals citizenship is defined in terms of domicile.
• Aliens= national citizenship
• A corporation has dual citizenship because it is deemed to be a citizen of any state by which it has been incorporated and of the state where it has its principal place of business. Both citizenships count for purposes of determining diversity of citizenship.
  A corporations principal place of business is identified by determining the corporations nerve center (corporate decision makers)

Question 56

Limits on Removal based on Diversity of Citizenship

Answer 56

Two limits based on diversity of citizenship

• Even if complete diversity of citizenship exists, no defendant may be a resident of the forum state and be removed to federal court
• A case may not be removed on the basis of diversity of citizenship jurisdiction more than 1 year after the commencement of the action

Question 57

Removal Procedure

Answer 57

• Defendant must file a verified notice of removal in the federal district court
• The notice must be signed under Rule 11 of Fed Rules of Civ Pro
• Notice shall contain a short statement of why the case can be removed
• A notice of removal must be filed within 30 days after the defendant is served in state court
• If the case stated by the initial pleading in state court is not removable a notice or removal may be filed within 20 days after receipt by the defendant of an amended pleading or other paper from which it may first be ascertained that the case is one which is or has become removable and
• After filing the notice, the defendant must give written notice to all adverse parties and file a copy of the notice with the clerk of the state court

Question 58

After Removal

Answer 58

If the defendant did not file an answer in state court before filing its notice of removal in federal court, the defendant must file its answer in federal court

• Within 21 days after receipt of the initial state court pleading or
• Within 7 days after filing the notice of removal whichever period is longer

The plaintiff may challenge the defendants removal by filing a motion to remand the case to state court. The plaintiff may allege that remand is proper because:

• The case could no have been originally brought in federal court (eg no federal question and no diversity of citizenship) or
• that there has been a defect in removal procedure

When the motion to remand is based on a defect in removal procedure, it must be filed within 30 days after the filing of the notice or removal. If the challenge is lack of jurisdiction, it may be asserted at any time before final judgment

Question 59

Counter Claims

Answer 59

A counter claim is a claim by one party against an opposing party seeking some affirmative relief

Question 60

Compulsory Counterclaims

Answer 60

in order for counterclaim to be compulsory it must :
- Arise out of the same transaction or occurrence that is the subject matter of the principal action
- Be within the subject matter of the court
- Not be the subject of a pending action at the time the counterclaim is filed
- Be a claim that the pleader has at the time of filing and
- Not required the presence of third parties over whom the court cannot acquire jurisdiction
If a counterclaim qualifies as a compulsory counterclaim it must be asserted against the plaintiff in the pending action or its subject matter will thereafter be barred

Question 61

Permissive Counter Claims

Answer 61

: may be brought in the same action or the defendant has the option of asserting the permissive counterclaim in a separate suit filed against the plaintiff

Question 62

Cross Claims

Answer 62

Claim by one party against co-party. Must arise out of the transaction or occurrence that is the subject matter of the original action. The general rule is that cross claims are permissive

Question 63

Impleader and Third Party Practice

Answer 63

Ex: Car accidence you are sued and you want to bring other driver in
File a third party practice. The defendant who asserts a third party claim is known as a third party plaintiff and the document is known as a third party petition. The third party plaintiff must have citation and the third party petition served on the third party defendant
The third party plaintiff need not obtain leave to make the service if he files the third party petition not later than 30 days after he serves his original answer. Otherwise the defendant must obtain leave on motion stating the claim, the basis and the relationship to the primary claim. The defendant must give notice of the motion to all parties

Question 64

Designation of Responsible Third Parties

Answer 64

EX defendant believes there are several nonparties who are responsible for injuries but one is bankrupt so outside of courts jurisdictionHow should D address problem?

• File a motion for leave to designate the nonparties as responsible third parties. The motion must be filed on or before the 60th day before the trial date except for good cause. The defendant must plea sufficient facts to raise a genuine issued regarding the designated persons responsibility for the harm
• Responsible third parties include any person who is alleged to have cause or contributed to causing the harm for which recovery is sought. The term includes a bankrupt, a criminal, a person beyond the courts jurisdiction, and an employer with workers compensation immunity

Impact of Designation: What impact will the designation of responsible third parties have on the case?
Under proportionate responsibility the fact finder determines the degree of responsibly for various persons. A person designated as a responsible third party is a person whose conduct is considered by the jury when allocating fault for the plaintiffs injuries

Ex: suppose defendant wants to actual join the nonparties as third party defendants, Does the designation procedure replace third party practice?
No. The designation procedure does not affect third party practice nor any substantive rights to indemnity granted by contract, statute or the common law. But the joinder might be futile because the party joined is beyond the courts jurisdiction or is bankruptcy. The designation procedure allows the jury to consider the fault of such a party without the necessity of joining the party

Question 65

What is discoverable?

Answer 65

• A party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action
• It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonable calculated to lead to the discovery of admissible evidence

Question 66

Discovery and Trial Witnesses

Answer 66

The names of trial witnesses are within the scope of discovery and must be disclosed. But the names of impeachment or rebuttal witnesses the necessity of whose testimony cannot reasonable be anticipated before trial need not be disclosed
What if Defendant calls witness whose identity was not disclosed in response to discovery and P objects, What must D show to overcome P’s objection?
- Defendant will have to show good cause for non-disclosure or that the opposing party will suffer no prejudice or surprise

Question 67

Discovery Documents and Tangible Things

Answer 67

A party may obtain discovery of documents and tangible things that constitute or contain matters relevant to the subject matter of the action
A person is required to produce a document or tangible thing that is within the person possession, custody or control

Question 68

Experts and Discovery

Answer 68

Classification of Experts:
Testifying: those who may testify as an expert witness at trial
Consulting: those who have been consulted, retained or specially employed in anticipation of litigation or for trial but who will not testify
Reviewed Consulting: A consulting expert whose mental impressions or opinions have been reviewed by a testifying expert whether or not the testifying expert agrees with the opinions of the consulting expert

Discoverable Experts:
The identity, mental impressions and opinions of a purely consulting expert are not discoverable
A party may discover information concerning a testifying or a reviewed consulting expert witness

Designation of Experts
With respect to testifying and reviewed consulting experts parties may be required to designate experts and provide information through request for disclosure
- A party seeking affirmative relief must respond to the request for disclosure at least 90 days before the end of the discovery period
- Other parties must identify experts at least 60 days before the end of the discovery period

Question 69

Limited Discovery of Work Product

Answer 69

Work product includes any material prepared or mental impressions developed in anticipation of litigation or for trial by or for a party or a parties representative
Protection Provided- Privilege. Core work produce of an attorney is privileged and includes the attorneys mental impressions, opinions, or conclusions and is absolutely privileged
Other work product is discoverable only upon a showing that the party seeking discovery has a substantial need of the materials for preparation of the party’s case and that the party is unable, without undue hardship to obtain the substantial equivalent

Question 70

Protective Order

Answer 70

Ex: want to keep family recipe secret but someone wants list of ingredients
A person from whom discovery is sought may seek a protective order within the time permitted for a response. The court may make any order limiting discovery in the interest of justice to protect the moving party from undue burden, unnecessary expense, harassment, or annoyance
A person should neo move for protection when an assertion of privilege or an objection is appropriate

Question 71

Response to Written Discovery

Answer 71

A party must respond to written discovery within the time provided by court order or the rules. When responding a party must make a complete response including answers, objections, and other matters
For most discovery devices including a request for disclosure, request for production or inspection, interrogatories, and request for admissions, a plaintiff must respond within 30 days after service. The defendant also has 30 days after service to respond except that a defendant has 50 days from service if the defendant was served before his answer to the petition is due

Question 72

Asserting Privilege for Written Discovery Inadvertenet

Answer 72

Asserting Privilege:
Ex: defendant believes that many answers to interrogatories are covered by privilege. What procedure must be followed to properly assert claim of privilege as a basis for refusing to answer some of the interrogatories? What procedure must the plaintiff follow to obtain answers to the interrogatories?

Step 1: Withholding Statement
The party asserting privilege must state in a response or in a separate document within the time for the response to the request that:
- Information or material responsive to the request has been withheld; the request to which the materials relate and the privilege asserts
Step 2: Response
After receiving a withholding statement the party seeking discovery may request that the withholding party identify the information withheld
Step 3: Privilege Log
- Within 15 days the withholding party must serve a response that describes the information or materials withheld (a privilege log) and asserts a specific privilege for each item or group of items withheld
- At the hearing on a motion to compel the withholding party must establish a prima facie case for privilege by testimony or by affidavit. The withholding party must do so without revealing privileged information and may tender representative documents with the testimony or affidavit

Question 73

Inadvertent Disclosure

Answer 73

When you produce documents some of which are privileged and you did not intend to waive that privilege. Have you waive privilege?
Probably not, the producing party does not waive the privilege if within 10 days of discovering that such production was made the party amends the response identifying the material produced and states the privilege asserted
After the disclosing party makes such an amendment the requesting party must promptly return the specified material and any copies thereof

Question 74

Objecting to Written Discovery

Answer 74

Believe that some but not all of request are objectionable because the seek material outside of scope. How should you preserve objections?

• Must make an objection to written discovery in writing. Either in the response or in a separate document within the time for the response
• An objection that is not made within the time for response is waived
• The defendant must state the legal or factual basis for the objection and the extent to which the party is refusing to comply with the request
• The defendant must have a good faith factual and legal basis for the objection

Question 75

Resolving an objection or claim or privilege

Answer 75

Any party may request a hearing on an objection or claim of privilege. The party making the objection or asserting the privilege has the burden to prove the validity of the objection or privilege claimed.
Alternatively, a party may move to compel discovery after attempting to resolve a discovery dispute The party seeking discovery may seek an order to compel and/or sanctions

Question 76

Supplementing Discovery

Answer 76

A party has a duty to supplement written discovery when the party has responded and knows that the response was incorrect or incomplete when made or although correct and complete when made is no longer correct and complete.

Ex: new injury
Plaintiff should supplement her prior discovery responses:
- Identifying the newly diagnosed injury and including the expert expected to testify about the newly discovered injury
- Supplement the discovery responses reasonable promptly but not less than 30 days before trial and
- IF discovery responses are supplemented less that 30 days before trial they are presumed not reasonably prompt (and wont be admissible unless plaintiff can show good cause for failure to timely supplement or not unfair surprise or hardship to defendant)

Question 77

Discovery Control Plans and pleading requirements

Answer 77

Plaintiffs original pleading should state “Plaintiff intends that his suit be covered by Level _, Discovery Control plan, pursuant to Rule 190.2/3/4, Texas Rules of Civ Pro
- The failure to so plead is subject to a special exception and the case automatically defaults to level 2 discovery plan

Question 78

Level 1 Discovery Plans

Answer 78

Expedited Actions and Divorces involving $50,000 or less

1) The discovery period begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party.
2) Each party may have no more than six hours of deposition time, but can agree to expand the limit to 10 hours per party.
3) Each party may serve on the other party no more than 15 interrogatories, except interrogatories that seek to identify or authenticate specific documents are unlimited.
4) A party may serve no more than 15 requests for production and 15 requests for admission on any other party. Each discrete subpart of a request for production or admission is considered a separate request.
5) A party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. Such a request for disclosure is not counted against the 15 permitted requests for production.

Question 79

Limitations of Level 1 Discovery Plans

Answer 79

1) The discovery period begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party.
2) Each party may have no more than six hours of deposition time, but can agree to expand the limit to 10 hours per party.
3) Each party may serve on the other party no more than 15 interrogatories, except interrogatories that seek to identify or authenticate specific documents are unlimited.
4) A party may serve no more than 15 requests for production and 15 requests for admission on any other party. Each discrete subpart of a request for production or admission is considered a separate request.
5) A party may request disclosure of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses. Such a request for disclosure is not counted against the 15 permitted requests for production.

Question 80

Purpose of Level 1 Discovery Plan

Answer 80

Purpose: The Expedited Actions process is meant to more quickly resolve relatively small disputes. The process is mandatory for any dispute in which all claimants (other than counter-claimants) seek only monetary relief not greater than $100,000.

Question 81

Limited Recovery Level 1 Discovery Plan

Answer 81

Limited Recovery: In no event may a party who prosecutes a suit under this rule recover a judgment in excess of $100,000, excluding post-judgment interest.

Question 82

Trial Procedures Level 1 Discovery Plan

Answer 82

Trial Procedures: (i) on any party’s request, the court must set the trial date within 90 days after the discovery period ends (180 days from the service of the first discovery request); and ii) each side is allowed only five hours to complete jury selection, opening statement, all examinations, and closing arguments (time spent on objections, bench conferences, and challenges for cause during jury selection do not count against the five hours).

Question 83

Discovery Level 2 Purpose and Limits

Answer 83

Case that exceeds the requirements for Level 1 and in which there is no order ordering a level 3 plan. Also appropriate if the plaintiff fails to plead a discovery level.
Limits:
- Duration: the discovery period begins when suit is filed and continues until the earlier of 3 0days before the date set for trial or 9 months after the date of the first oral deposition or due date of the first response to written discovery
- Depositions: Each side may have no more than 50 hours of deposition time to examine and cross-examine parties on the opposing side, experts designated by those parties and persons subject to their control. Side refers to all litigants with generally common interest in the litigation. If one side designates more than two experts the opposing side may have an addition six hours per additional expert designated. The fifty hour limit does not apply to depositions of non-party fact witnesses who are not under a parties control.
- Interrogatories: Each party may serve on the other party no more than 25 interrogatories, excluding interrogatories asking a party to identity or authenticate specific documents

Question 84

Level 2 Enforcing Limits

Answer 84

Ex: deposition entering 60th hour, what objection or instruction to end it?
If the time limitations for the deposition have expired a party or a witness may suspend the oral deposition

Question 85

Discovery Level 3

Answer 85

Applies only when a court orders pursuant to a party’s motion or on its own initiative a discovery control plan that is tailored to the circumstances of the specific suit
Limits: Court will start with the guidelines and limiations contained in Level 1 and 2. May be modified by court order

Question 86

Forms of Discovery

Answer 86

Permissible forms of discovery include: Request for disclosure, requests for production and inspection, interrogatories to a party, requests for admission, oral and written depositions and motions for physical examinations

Question 87

Request for Disclosure

Answer 87

Request:
A party may request disclosure of the information and material listed below by serving a request for disclosure on another party to the suit
No objection or assertion of work product is permitted to a request under this rule

Content of Request:
Name types of information that may be obtained using a request for disclosure and the date by which the receiving party must respond.
Identifies a specific type of information and has either asked how the information may be obtained or has sought the information using an incorrect discovery device (ex: interrogatory rather than a request for disclosure)

Question 88

List of Information that can be obtained using a request for disclosure

Answer 88

• The amount and method of calculating economic damages
• Any insurance or indemnity agreements
• In cases seeking damages personal injuries, all medical records and bills that are reasonable related to the injuries or in lie thereof an authorization permitting the disclosure of such medical records and bills. Cases have held that the party requesting disclosure has the option of seeking an authorization rather than the medical records and that the requesting parts preference controls
• The correct names of the parties
• The names, addresses and telephone numbers of potential parties
• The names, addresses and telephone number of any person who may be designated as a responsible third party
• The name address and telephone number of persons having knowledge of relevant facts and a brief statement of each identified persons connection with the case
• Any witness statements
• For any testifying expert, the experts name, address and the telephone number, the subject matter one which the expert will testify, the general substance of the experts mental impressions and opinions and a brief summary of the basis for them and all documents and other information that have been provided to, reviewed by or prepared

Question 89

Response to Request for Disclosure

Answer 89

Plaintiff must respond with 30 days after service or the request for disclosure. Defendant has 30 days to respond after service except defendant has 50 days from service of the requests for disclosure if the defendant was served with the requests before his answer to the petition is due

Question 90

Request for Production and Inspection

Answer 90

Request:
A party must serve a request for production or for inspection to inspect, sample, test, photograph and copy documents or tangible things within the scope of discovery
If the request is served on a nonparty production of documents and things may be requested only by obtaining a court order or by serving a subpoena compelling the specific form of discovery requested by the party
Medical records may be obtained in several ways. First the party seeking the records could obtain a court order upon a hearing for the production of records. Second the party could use a request for disclosure to obtain the records or the party’s authorization. Finally the party may subpoena production of the records by serving the physicians and parties with a notice to produce 10 days before the subpoena is served. The subpoena is often used in connection with a deposition on written questions.

Question 91

Response for Request for Production and Inspection

Answer 91

Production of a document operates to authenticate the document produced for use against the producing party. This rule of self-authenticated applies unless within 10 days after the producing party has actual notice the document will be used, the producing party objects to the authenticity

Question 92

Request for Testing

Answer 92

Any testing of an item may not destroy or materially alter the item unless previously authorized by the court.
You can file a request for production to test the item

Question 93

Request for Entry on Property

Answer 93

Ex: Want to view the location but defendant is objecting.
Plaintiff should file a request or motion for entry upon property. Allows a party to gain entry upon property to inspect, measure, survey, photograph, or sample the property in question. The request must state the time, place, manner, conditions, and scope of the inspection

Question 94

Interrogatories

Answer 94

Written questions to a party in the suit and the answers may be used only against that party

Question 95

Interrogatories Answers

Answer 95

Responding party must sign the answers under oath unless the answers are based on information obtained from other persons
The response consists of answers, objections, or the assertion of a privilege

Question 96

Request for Admission

Answer 96

A party may serve on another written requests that the other party admit the truth of any matter within the scope of discovery
Limits: There are no limits on he number of request
Response: Unless a responding party stats an objection or asserts a privilege
- The responding party must specifically admit or deny the request or explain in detail the reasons that the request cannot be admitted or denied
- The response is due within 30 days after service or 50 days if a defendant was serve with the request before the time to answer the petition and
- Importantly, if a response is not timely served the request is deemed admitted
Effect of admissions: A matter admitted is conclusively admitted as to the party making the admission without the need of a court order.
Upon motion, the court may allow withdrawals of an admission if the party shows good cause and the court finds that the parties relying on the admission will not be unduly prejudiced. These rules apply to actual and deemed admissions for failure to timely answer

Question 97

Oral Deposition Notice

Answer 97

Notice of intent to take an oral deposition must be served on the deponent and parties a reasonable time before it is to be taken. The notice shall contain the named of the deponent and a reasonable time and place for the deposition

Question 98

Deposition of organization

Answer 98

: IF the deponent is an organization the notice must describe with reasonable particularity the matters on which the examination is requested. In response the organization must designate one or more individuals to testify on its behalf

Question 99

Place of Deposition

Answer 99

The deposition of a non-party may be taken in the county of the deponents residence, the county where the deponent is employed or regularly transacts business in person, the county where the deponent was served with a subpoena
If the deponent is a party the deposition may be taking in the same locations that are proper for a non-party as well as the county in which the suit is filed
Appearance is required in a county that is not more than 150 miles from where the person resides or is served
A motion for a protective order may be used to object to the time and place of deposition before the time for compliance. If the objection is raised within 3 business days of service, the objection stays the deposition until the objection is resolved

Question 100

Compelling Attendance at Deposition

Answer 100

If a witness is a party or employed by, retained by, or otherwise subject to control of the party, service of the notice on the parties attorney has the same effect as a subpoena
IF the deponent is a nonparty witness you must issue both the notice and a subpoena
IF party fails to appear: other party may file a motion for sanctions or an order compelling discovery based on parties failure to produce a witness that the properly noticed deposition. Court may order no show party to pay other party attorney fees incurred in obtaining the order as well as a broad range of other sanctions

Question 101

Production of Documents at Deposition

Answer 101

The notice may include a request that the witness produce documents or things at the deposition. The notice of deposition may also use a subpoena to compel the production of documents in which case the rules concerning requests for production govern the response to the subpoena
If the deponent desires to object to the request to produce tangible things the witness must file a motion to quash or a motion for a protective order within 30 days after service of the subpoena

Question 102

Time Limit of Deposition

Answer 102

No side may examine or cross-examine an individual witness for more than 6 hours. The deposition may be suspended if the time limit has expired. Separate cumulative time limitations are created by the discovery plan (ie 50 hours)

Question 103

Objections at Deposition

Answer 103

There are only three proper objections to questions and testimony at an oral deposition
Objections are limited to: objection leading, objection form, objection nonresponsive
Making other objections or suggestive objections at the deposition may be grounds for suspending the deposition in order to obtain a ruling on the contention that the objections are improper. The court may award costs and attorney fees associated with a motion for sanctions

Question 104

Communication with Witness at Deposition

Answer 104

An attorney may not confer with a witness during a deposition except to identify a privilege to be protected
An attorney may instruct a witness not to answer only if doing so is necessary to preserve a privilege to comply with a court order, or to protected the witness from an abusive question or one that requires a misleading response

Question 105

Deposition before Suit Filed

Answer 105

Ex: know that witness is terminally ill
File a petition for a depositions before suit. The petition must be verified and must be served on all persons whom the petitioner seeks to depose or expects to be adverse in any anticipated lawsuit. The petition must allege that:
- The petitioner anticipates the institution of a suit in which the petitioner may be a party
- The subject matter of the anticipated action, if any, and the petitioners interest therein and
- The names of the persons the petitioner expects to have interest adverse to the petitioner and their addresses and telephone number and
- Persuit depositions are prohibited in health care liability claims

Question 106

Expert Witness Fees

Answer 106

When a party takes the oral deposition of the opposing partys expert witness, all reasonable fees charged by the expert must be paid by the party that hired the expert

Question 107

Medical Examination

Answer 107

A party can file a motion to compel a medical examination of another party by a qualified physician. The moving party must show good cause for the exam and that the other party’s physical condition is in controversy. The motion and notice of hearing must be filed at least 30 days before the end of the discovery period and be served on all parties and the person to be examined

Question 108

Default Judgment

Answer 108

Availability
The plaintiff may take a judgment by default against a defendant by showing:
- The court has subject matter jurisdiction
- Jurisdiction over the defendant by proper service or process (ie situation issued , served and returned)
- Allege a cause of action
- Defendant has not filed an answer
- The time to answer has expired and
- The return of citation has been on file 10 days exclusive of the day of filing the citation and the day of the default judgment
The plaintiff must affirmatively seek the entry of a default judgment. If the plaintiff fails to affirmatively seek the entry of a default judgment the defendant may file an answer even if the answer is beyond the time provided for in the rules
The defaulting defendant admits all liability issues, but plaintiff is required to put on evidence of unliquidated damages. When damages are liquidated and proved by an instrument in writing, no evidence beyond this is required

Question 109

Notice to Defendant of Default Judgement

Answer 109

At or immediately before the time the default judgment is rendered, the party or his attorney must certify to the clerk in writing the last known mailing address of the party against whom the judgment is taken
Immediately after the judgment is signed the clerk must mail notice of the default judgment to the defendant

Question 110

Setting aside a no answer default judgement, motion for new trial

Answer 110

A motion for new trial must be filed within 30 days of the date the judgment is signed
IF there is no legal reason (ie error by the trial court) to set aside the judgment the defendant must demonstrate the following equitable grounds to the trial court to obtain relief:
- Failure to answer the lawsuit was not intentional or the result of conscious indifference but was due to a mistake or accident
- Set up a meritorious defense and
- There is no delay or injury to the plaintiffs by granting a new trial

Question 111

Restricted appeal to court of appeals

Answer 111

A restricted appeal must be filed within 6 months of the date the judgment was signed
In order to set aside the fault judgment the defendant must demonstrate that:
- The defendant did not participate in the trial court below and did not file any post-judgment motion such as a motion for new trial and
- There is error on the face of the record

Question 112

Equitable Bill of Review

Answer 112

An equitable bill of review must be filed within 4 years of the date the judgment is signed. It is a new lawsuit filed in the court in which the old lawsuit was filed and judgment rendered.
The movant must demonstarate the following:
- A meritorious defense,
- Which the defendant was prevent from asserting by fraud, accident, or the wrongful act of the plaintiff of official mistake and
- Unmixed with any negligence of the defendant
If the bill of review is based on a total lack of service of process the defendant need only prove a lack of service because due process requires that the traditional requirements be excused

Question 113

Nonsuit

Answer 113

At any time before the plaintiff has introduced all of his evidence, other than rebuttal evidence, the plaintiff may file a motion seeking an order allowing the plaintiff to take a nonsuit A nonsuit dismisses the case without prejudice to re-file. The order granting the nonsuit should recite that the motion is granted and that the case is dismissed without prejudice to refilling.
The nonsuit does not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs.

Question 114

Summary Judgment

Answer 114

In some cases the evidentiary record establishes that the moving party is entitled to judgment as a matter of law. A party may move for summary judgment using one of two standards: no genuine issue of material fact or no evidence.

Question 115

Summary Judgement- No Genuine Issue of Material Fact

Answer 115

A no genuine issue of material fact summary judgment may be sought by either plaintiff or defendant
- Ex: settlement
File a motion for a summary judgment alleging that there are no genuine issues as to any material facts concerning the affirmative defense of release and that she as the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion

Burdens:
Burden of proof is on the moving party to show sufficient conclusive facts to entitle it to a judgment as a matter of law

Question 116

Summary Judgement- No Evidence

Answer 116

After adequate time for discovery a party may move for summary judgment on the grounds that there is no evidence of one or more essential elements of a claim or defense on which the nonmoving party would have the burden of proof at trial. The motion must specifically state the elements as to which there is no evidence.
Burdens: While the no evidence motion for summary judgment must state the elements as to which there is no evidence, it need not contain summary judgment evidence (ie: transcripts, affidavits). The motion is to be granted unless the non-moving party produces summary judgment evidence raising a genuine issue of material fact

Question 117

Summary Judgement Procedure

Answer 117

• Except on leave of court the motion and any supporting affidavits must be filed and served at least 21 days before the time specified for the hearing
• The adverse party not later than 7 days prior to the hearing may file and serve opposing affidavits or other written response to the motion
• No oral testimony will be received at the hearing
• Evidence is limited to affidavits and all types of discovery such as request for admissions, depositions, etc
• Discovery material such as depositions not on file with the clerk may be used as summary judgment evidence if the discovery material is filed and served on all other parties with a statement of intent to used the material as summary judgment proof. If relying on a deposition the party must direct the courts attention to the relevant portion and attach it to the motion The materials must be filed and served 21 days (supporting the motion) or 7 days (opposing the motion) before the hearing

Affidavits must be:
- Made on personal knowledge of the affiant
- Affirmatively show that the affiant would be competent to testify and
- State facts that would be admissible in evidence (ie hearsay and opinion except in accordance with evidentiary rules, have no effect)
Ex: defendant submits affidavit with expert saying its plaintiffs fault, how should plaintiff respond
Object to the sufficiency of the affidavit in a written response to the motion. Plaintiff should secure a ruling on the objection and a written order

Question 118

Appeal of Summary Judgement

Answer 118

A summary judgment that disposes of all issues and parties is a final judgment which may be appealed. IF the trial court denies the motion for summary judgment, this order may not be appealed since the denial of summary judgment is a nonappealable interlockatory order. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.

Question 119

Mediation. Can you force a party to attend?

Answer 119

Can Plaintiffs attorney force defendant to attend mediation?
Yes, The plaintiffs attorney can file a request with the court for mediation. A court may on its own motion or the motion of party refer a pending dispute for resolution by an alternative dispute resolution procedure including mediation. Court cannot order mediation in a case covered by the federal arbitration act without the agreement of all parties

Question 120

Participation in Mediation

Answer 120

Conduct in mediation: Court may impose sanctions for refusal to participate in a court- ordered mediation. However the court may not impose sanctions for refusing to settle nor may the court order the parties to mediate in good faith

Question 121

Mediation Compensation

Answer 121

Can court compel payment of a mediator appointed under ADR statutes?
Yes. Court may set a reasonable fee for the services of mediator appointed to facilitate and ADR procedure. Unless the parties agree to a method of payment the court will tax the fee for the services as a cost of the suit

Question 122

Mediation Settlement

Answer 122

A consented judgment cannot be entered unless at the time the judgment is rendered, all parties consent to the judgment.
(ex: if plaintiff withdraws consent after mediation judgment cannot be entered)

Question 123

Mediation Confidentiality

Answer 123

Neither the party nor the mediatory may be compelled to disclose to any other person including the court any confidential information given to the mediator by any party unless the parties agree otherwise