Civil Procedure Flashcards
(111 cards)
1
Q
Pleading & Timing to Obj. Personal JX
A
File a special appearance, which must be filed before any other pleading, plea, or motion; however, the special appearance may be consolidated with other pleading in a single instrument.
2
Q
What may the Court consider when Ruling on Personal JX objection?
A
The court could make this determination on the basis of the pleadings, any stipulations, other discovery, and any oral testimony.
3
Q
Diversity basis for removal to Fed. Ct.
A
Diversity exists when there is complete diversity (all parties across the “v.” are citizens of diff. states) & amount in controversy exceeds $75K.
4
Q
Pleading to object/challenge venue
A
File a motion to transfer venue prior to or concurrently with any other pleading (except a special exception).
5
Q
Response to objection/challenge of venue.
A
Respond by presenting prima facie proof (by affidavits and discovery materials) of matters specifically denying any of the challenger’s venue facts which respondent wishes to contest.
6
Q
Gen. Proper Venue
A
Venue is proper where
(1) Where events happened that gave rise to claim
(2) Defendant’s residence at time of event
(3) Principal office if Corp.
(4) Plaintiff’s residence
7
Q
Determination of Citizenship for Jurisdiction
A
Individuals: Citizens of state of domicile
Corporation:
(1) State of Incorporation &
(2) Principal place of business
8
Q
Personal Jurisdiction
A
Court has power over a person if Defendant
(1) has been served in the state,
(2) has had minimum contacts with the state (specific JX), or
(3) is “at home” in the forum state (gen. JX)
9
Q
Suit Starts when:
A
(1) Plaintiff files the original petition and case information sheet with the clerk of the court.
(2) The Plaintiff requests the issue of a citation (official notice to opposing parties)
(3) Plaintiff obtains service of process (serve citation and copy of the petition)
10
Q
Out Of State Service
A
Individuals the same as in state
Motorists: Serve chairperson of the Tex Trans. Comm.
Corp: If no principal place of buss/registered agent, then serve Sec. of State
11
Q
Transfer Venue when:
A
(1) Improper County
(2) Impartial Trial
(3) Parties Agree/Consent
12
Q
Improper Ruling on Transfer of Venue
A
If wrong ruling don’t get interlocutory appeal, but during normal appeal it’s reversible error and will reverse and remand for new trial.
13
Q
Transfer Venue for Convenience of parties
A
May transfer from one proper venue to another if proper venue and would be for the convenience of the parties and witnesses and in the interest of justice.
14
Q
Third Party claims
A
Third Party must indemnify the defendant for any loss/liability/damage incurred or must contribute due to fault in own acts
Motion for Third Party if filed 30 days after answer, must request permission (leave) from the court
15
Q
Plea in Abatement
A
Suspends suit due to facts outside the pleadings impede the suit to move forward in its present condition.
Court will look for defects in allegation and in the standing of the parties and will suspend until defects are cured.
16
Q
Answer
A
Must be filed by 10:00AM on Monday 20 days after date of service
17
Q
Default Judgment
A
Entered when a defendant was properly served but does not file an answer in the prescribed time period and the citation of service has been on file with the clerk for 10 days, exclusive of the day of filing and the day of judgment.
So long as answer before default judgment is entered, you can prevent default
18
Q
Affirmative Defense
A
Must be raised in the answer or they are waived. May amend answer up to 7 days before trial
S.o.L.
Accord & Satisfaction
Contributory Neg.
Release
19
Q
Special Exceptions
A
Filing to challenge the legal sufficiency of a pleading, such as inadequate facts alleged, failure to state a cause of action, failure to state a maximum amount of damages. This allows other party to cure defect, and preserves defect error (waive if not filed).
20
Q
Discovery
A
(1) Requests for Disclosures, (2) Production, and (3) Admission.
(4) Interrogatories.
(5) Oral &
(6) Written Depos.
(7) Motions for Physical Exam.
(8) Med. Records related to subject of suit
21
Q
Discover of Testifying Experts
A
Requests for Disclosures, Depositions, Interrogatories, Requests for production, and Court-ordered reports
22
Q
Levels of Discovery
A
Level 1 ($100K or less): 6hrs Depo (maybe 10Hrs), 15 interrogatories, 15 requests for production and 15 for admission
Level 2 [default if not mention level] allows discovery up until 30 days before trial, 9 months after first oral depo, or 9mths after first written discovery. Allows 50hrs of depo, 25 interrogatories. no limit to other types of discovery.
Level 3 Controlled by Court, must request discovery from the court. No limit.
23
Q
Jury Demand
A
Written request for jury trial must be filed and pay fee within a reasonable time before trial, but not less than 30 days before trial. (whole point is to place opposing party on notice of jury trial)
Party obj. carries burden if made 30 days before trial, party requesting has burden if within 30 days of trial
24
Q
Jury Challenge
A
For Cause: Interest in subject of case, witness to the case, relationship to party, saw identical case before, bias or prejudice
Peremptory: each side gets 6, but may be equalized if multiple parties with antagonistic interests on same side.
25
Directed Verdict and JNOV
Directed verdict may be requested at any time after the opposing party has been fully heard and that issue or claim, but before the case has been submitted to the jury.
JNOV must be after the jury has entered its verdict.
Movant must shown there is insufficient evidence (no evidence on material fact) or has presented conclusive evidence on material facts.
26
Final Judgment
Disposes of all parties and all claims
27
Insufficient Pleadings--Challenge lack of specificity in pleadings
File a special exception seeking a specification and asking the court to require party to amend pleadings. Must be done in writing, call of a hearing, and get a ruling on the exception on the record.
28
When must requests for production be answered?
50 days after service of the request
29
What is the effect of a late response to requests for admission? What must a party do or show to change that result?
An untimely response to the request for admission results in the admission being deemed admitted, without necessity of a court order. To change the result, responding party must motion to withdraw the deemed admission by showing good cause and no undue prejudice will result.
30
Verification of physical injuries
motion asking the court to order a medical examination by a qualified physician, but this request requires a showing of good cause.
31
Avoiding discovery for attorney privilege material
In response state the information or material responsive to the discovery request has been withheld; the request to which the information or material relates; and the privilege asserted.
32
Inadvertent discovery production of privileged information
Respond within 10 days. Must then amend the repose to the discovery, identifying the material produced and stating the privilege asserted. The requesting party had to promptly return the specified material and any copies pending a court ruling.
33
Obj. that can be made during deposition
Objections to deposition questions are limited to “objection leading” and “objection form.” The only permissible objection to answers is “objection non-responsive.”
34
How can party challenge an expert and his/her opinion?
file a pre-trial Daubert motion challenging the
| expert’s qualifications or challenging the reliability/relevance of the expert’s opinions.
35
pretrial procedure to avoid the necessity of a trial on specific claim?
file either a traditional motion for summary judgment or a no-evidence motion for summary judgment on the defect claim.
36
Witness not previously disclosed; how can witness testify?
Motion should show
(1) good cause for the failure to timely supplement the disclosure, or
(2) that the opposing parties will not suffer any prejudice or surprise.
37
At the conclusion of plaintiff's case in chief, the defense believes they failed to present any evidence to support the claim filed against then. What procedure is available at this point in the trial to bring the matter to the attention of the Court?
File a motion for a directed/instructed verdict, showing that the evidence was insufficient to raise a fact issue on the alleged claim.
38
A verdict has been reached, but a party does not believe the evidence supports the jury's verdict. what pleadings can be filed to prevent the entry of a judgment in support of the Jury's Verdict?
(1) File a motion for judgment notwithstanding the
verdict, or
(2) File a motion to disregard a jury finding on a
question that has no support in the evidence or is immaterial.
39
When must a motion for new trial be filed in order for it to be timely? What happens if the Court never rules on a motion for new trial?
Motion for new trial must be filed prior to or within 30 days after the judgment is signed, and the motion is overruled by operation of law 75 days after the judgment is signed.
40
Pleading to add a party to the case, and when must it be filed?
File a Third Party Petition and citation in order to add a party to the case, and leave of court is required if the pleading was filed outside 30 days after Extra filed its answer.
41
Service of Process on a non-texts corporation
Corporation does not have a principle place of business in Texas and did not have an agent for service in Texas, that service of process could be accomplished by serving the Texas Secretary of State. Few examinees knew the Texas Secretary of State would then forward the citation and Third Party Petition to Parts’s corporate headquarters.
42
Discovery to determine if party has insurance coverage and any documents the insurance has referring the claim/case?
Requests for Disclosure, Interrogatories, or Request for Production
43
Discovery to determine what facts expert's investigation revealed, and what the experts opinions are, when no such written report exists:
If an expert report is not produced in response to Requests for Disclosure, a motion to require the expert to reduce his findings and opinions to written form is allowed.
44
Discovery of prior Medical Records when such records could disclose alleged conditions are in fact a pre-existing condition, but claimant refuses to sign med. authorization form for such records.
File a motion to compel signing of medical authorization for the records.
Movant must set forth, in the motion:
(1) an explanation as to why they believe that claimed already suffer from the alleged condition,
(2) that movant does not otherwise have access to the prior medical records
(3) there is good cause for the court order.
45
Motions to quash deposition over where the depositions should be held, how should court rule/address the issue?
if the parties cannot agree on where the depositions should take place, the court should order the party depositions to be taken in the county of the pending lawsuit.
46
Discovery to compel corporate party to produce a witness for deposition in the case?
Serve a notice to depose a designated corporate representative. The notice needs to describe
with reasonable particularity the matters on which the deposition is requested.
47
What motion or motions should be filed in order for movant party to be dismissed from the case? What documents should be attached to the motion or motions?
File a no-evidence motion for summary judgment and a traditional motion for summary judgment. The expert’s report and the Fire Marshall’s report should be attached.
48
Steps to take to challenge a potential juror?
move to challenge the juror for cause
If the challenge for cause failed, party should use a preemptory strike, and notify the court of the need to use the preemptory strike.
49
Order of witnesses in civil case
Witnesses may be called in any order
50
Failure to disclose a witness when all other parties in case have called that witness to testify.
Court should allow the Fire Marshall to testify. The failure to list the witness must be shown to be an oversight, that good cause existed to allow the late designation, and that no other party would be prejudiced because all parties had access to the Fire Marshall’s report and his deposition.
51
Effect of Directed Verdict for one party, and not other parties.
Claims asserted against the party for whom the Directed Verdict was granted should not go to the trail because and only the claims for the remaining parties goes to the jury.
52
Effect of failing to properly file amended pleadings following a Special Exception:
Opposing party may file a motion to dismiss because of the failure to properly refile the claims asserted as required by the special exception.
53
Filing to assert corporation over personal liability in suit, when not properly named by the petition/pleadings
File a verified denial that defendant has been sued in the wrong capacity.
54
When and how must an affirmative defense be asserted?
Should raise the affirmative defense in its answer or amended answer.
55
When must the amended answer be submitted?
An amended answer must be submitted at lest seven days before trial.
56
Proper response to request for medical authorization/medical records
Respondent should provide a proper medical authorization, and the court should compel such proper authorization if respondent refuses to provide it. Respondent's production of of the record is not a proper substitute for the authorization.
57
What remedies are available when party fails to produce a witness at the deposition as noticed?
Aggrieved party could file a motion for sanctions, including attorney's fees incurred in obtaining the order, or an order compelling discovery based on opposing party's failure to produce a witness at a proper noticed deposition. Aggrieved party could also file a motion for default judgment or that non-aggrieved party's pleadings be struck.
As a party, the notice of deposition has the same effect as a subpoena which the a party cannot ignore.
58
How and when can you object and abate a deposition?
File a motion to quash the notice of deposition, which if timely (done within 3 days of service of notice), will result in an automatic quash.
59
pleading to add a third party as being the one responsible for the claim being asserted in suit
file a a motion to add a responsible third party
60
Third Party Responsibility Damages Immunity
Despite being a third party immune from having to pay money damages, because (purpose is:) a jury is allowed to consider the responsible third party's conduct when allocating fault for party.
61
How and when to respond to a motion for summary judgment?
Respond with affidavits filed seven days before the hearing on the motion for summary judgment
62
After filing a motion for new trial, and nothing is ever done about it from any party or the court, when is the judgment final?
The judgment becomes final 75 days from the date the judgment a signed, when the motion for new trial is overruled by operation of law.
63
What must be served on a defendant to compel an answer from them?
A copy of plaintiff's original petition and a citation prepared by the clerk of the court must be served on them.
64
What is Texas's preference to jury trial?
they are strongly in favor of jury trials.
65
Verdict by Portion of Original Jury
same ten or more members of an original jury of twelve or of the same five or more members of an original jury of six
rendered awarding exemplary damages only if the jury was unanimous in finding liability for and the amount of exemplary damages
66
Jury Misconduct
A juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror.
67
Impact of Responsible Third Party on Statute of Limitations
it tolls the statute of limitation for 60 days from the date of the order adding the responsible third party.
68
What form of discovery is not subject to any objection?
Requests for Disclosures are not subject to any objection
69
Must parties respond to Interrogatories asking for list of trial witnesses?
Party is required to disclose their trial witnesses in response to interrogatories
70
Counterclaim
A counterclaim is a claim by one party against an opposing party. the counterclaim is compulsory if it raises out of the same occurrence that is the subject matter f the principal action. Failure to assert a compulsory counter claim in the present suit means that its subject matter will thereafter be barred in subsequent litigation.
71
Evidence of what was said during settlement or mediation of a claim alluding to guilt:
Mediation/Settlement negotiations are not admissible for any pushes, and court should not allow such evidence to be admitted
72
Omitted Definition or Instruction
Objection and Request/Submit a substantially correct instruction or definition to Preserve Error
73
Gaps in Jury Charge
A judgment cannot be based on a verdict containing unanswered issues, supported by some evidence, unless the issues are immaterial.
The trial court must instruct the jury to deliberate further on the issues. If upon further deliberation the jury cannot agree on answers to the issues, the trial court may declare a mistrial, but the trial court may not render judgment based on the incomplete verdict.
74
How can you acquire subject matter jurisdiction
to acquire subject matter jurisdiction, allege defendant is a foreign corporation with no principle place of business and no registered agent.
75
Venue is a Law or Fact issue
Law
76
Notes made by attorney on case
not discoverable and should object on the grounds t hat they are privileged work product.
77
Discovery of list of relevant people and contact info who attorney may contact to interview for the case
discoverable because
78
Absent an agreement, where are depositions going to be held?
In the county where suit has been filed
79
Pleading to assert affirmative defense if filed within seven days from start of trial
Must obtain leave of court
80
Notice for Setting for Trial
Court may set trial at any time or upon request. Notice of first trial setting must be given at least 45 days prior, but only reasonable time required after that.
81
Reapportioning Peremptory Challenges
When antagonistic parties on the same side are required to share six strikes, it is error amounting to a violation of the basic right to trial by jury.
In most cases a two-to-one ratio between sides would approach the maximum disparity allowable.
82
Peremptory Challenges
A peremptory challenge is made to a juror without assigning any reason therefor.
each party to a civil action is entitled to six peremptory challenges in a case tried in the district court, and to three in the county court.
83
Timing to File a Motion for new Trial
A motion for new trial must be filed within 30 days after judgment. May amend motion before previous one is ruled on and within 30 days from last judgment or order.
In the event an original or amended motion for new trial or a motion to modify, correct, or reform a judgment is not answer within 75 days after judgment was signed, then assume to have been overruled.
84
Timetable for Appeal w/out Motion for New Trial
(1) Notice of Appeal due 30 days from Judgment
(2) Record is due in Court of Appeals the 60th day from final judgment.
(3) File appellant’s brief 30 days from filing of record
(4) File appellee’s brief 30 days from filing of appellant’s brief
(5) File reply brief 20 days from filing of Appellee’s brief
Note: Clerk’s record includes everything filed with trial court. Court Reporter’s record includes all that was said/occurred during the court proceedings and includes the exhibits before the court, regardless if admitted or not. Individual attorneys are tasked with making sure that the Reporter puts record together and is sent up to the appeals court. May get time extension if Reporter needs additional time to put record together.
85
Timetable for Appeal w/ Motion for New Trial or to Modify
(1) File motion for new trial or modify within 30 days of final judgment
(2) Overruled by operation of law within 75 days from final judgment
(3) File notice of appeal in trial court and copy to court of appeals by day 90
(4) End maximum period of trial court’s plenary jurisdiction on day 105. (assuming court modified judgment on day 75, which grants 30 days--thus 75+30=105 max days of plenary power).
(5) Record is due in court of appeals on day 120
(6) File appellant’s brief 30 days from filing of record
(7) File appellee’s brief 30 days from filing of appellant’s brief
(8) File reply brief 20 days from filing of Appellee’s brief
86
Discovery of relevant statements to claim
Statements regardless of the source (from whatever source) are discoverable through requests for production or requests for disclosures (
87
Collaboration of Jury Challenge
Court cannot prevent collaboration in striking the jury by the parties.
88
Order and authority of plaintiff to call witnesses
Plaintiff may call the defendant and any other witnesses at any time during its case.
89
How should jury learn of jury charge?
Court should read it out loud, and the jury is allowed to have copies of the charge during closing arguments
90
Discovery to gain specificity on damages
Interrogatories and/or Requests for Production
91
To preserve error when a challenge for cause is denied
To preserve error when a challenge for cause is denied, a party must use a peremptory challenge against the venirmember involved, exhaust its remaining challenges, and notify the trial court that a specific objectionable veniremember will remain on the jury list.
92
interlocutory appeal for denial of motion for summary judgment
may not file one
93
Preserve error on Motion in Liminie
Party was required to approach the bench, formally offer the evidence, and obtain a ruling before asking witness about matter pertaining to motion.
94
Five categories of information in a request for disclosure:
(1) the correct names of the parties,
(2) the names, addresses, and telephone numbers of potential parties,
(3) the names, address, and telephone number of any person who may be designated as a responsible third party,
(4) the names, addresses, and telephone numbers of persons having knowledge of relevant facts, along with a brief description of each person's connection to the case; and
(5) any indemnity and insuring agreements
Bonus:
(6) witnesses statements
(7) amount and method of calculating economic damages
95
Amendment of discovery response
must be made when the party learns response is no longe complete or correct, and must be done reasonably prompt, but no less than 30 days before trial.
96
Requests for production and inspection
because intent of testing production, must indicate the method to be used and the manner, means, and procedure for testing.
97
Remedies for improper objections during depo
May request a protective order and sanctions be imposed.
98
Traditional Summary Judgment
Support with evidence negating the essential element by using affidavits and deposition transcripts
99
No evidence Summary Judgment
After adequate time for discovery, a party who does not bear the burden of proof at trial on the claim can simply state that there is no evidence of one or more essential elements.
100
Invoking "The Rule"
At the request of any party, the witnesses on both sides shall be removed from the courtroom to some place where they cannot hear the testimony delivered by any other witness in the cause. The court shall swear the witnesses in before excluding them, and should be instructed not to speak to anyone except the lawyers about the case.
A court has discretion to allow a witness to testify even though the witness has violated the Rule by remaining in the courtroom during another witness’s testimony.
101
Failure to ID witness
must show either good cause for its failure to list the witness in its discovery responses or that its failure to do so would not cause unfair prejudice.
102
Jury has question regarding substance of witness statement during trial
May be answered by reading from the court reporter's transcript, or by calling in the witness to repeat what was said if can't read from court reporter's transcript.
103
How to raise issue that verdict is not supported by the evidence?
Motion for JNOV and/or Motion for New Trial within 30 days from judgment
104
Response to motion for change of venue
Respond by submitting affidavits indicating why venue is proper in county where filed.
105
Asserting Privilige to Discovery
preserve privilege to requested documents by asserting the privilege, by serving on requesting party a withholding statement that (1) stated he was withholding information responsive to the request, (2) identified the request to which the information related, and (3) identified the privilege asserted.
106
Obtaining basis of Experts Opinion
request for disclosure seeking the expert’s mental impressions and opinions, and a summary of the basis for them, as well as any data compilations.
107
Pleading to reduce damages awarded
Remittitur
108
Due date on response to discovery
30 days from service, and may be timely if deposited in mail on the last day available to respond.
109
Req. for Continuance to Obtain Testimony
Present affidavit that testimony is material, and that it can't be obtained by any other method, if it's not the first of such request. (Other means not req. if it's the first of such application).
110
Indp. verification of medical circumstances
motion to compel independent medical examination was the proper pleading, but few knew when it had to be filed (30 days before end of discovery period) and few mentioned the good cause requirement.
111
Batson Challenge
(1) The opponent of the peremptory challenge must establish a prima facie case of racial discrimination.
(2) The burden then shifts to the party who has exercised the strike to come forward with a race-neutral explanation. Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral for purposes of the analysis at step two.
(3) The trial court must then determine if the party challenging the strike has proven purposeful racial discrimination, and the trial court may believe or not believe the explanation offered by the party who exercised the peremptory challenge.
Must be objected prior to impanelling of the jury
