La Civil Procedure Flashcards
(32 cards)
What is the STANDARD for granting a NEW TRIAL?
The motion for a new trial is granted if the verdict or judgment is CLEARLY CONTRARY TO THE LAW AND EVIDENCE.
What are the three kinds of EXCEPTIONS?
1) DECLINATORY EXCEPTIONS are used by the exceptor to decline the jxd of the court;
2) DILATORY EXCEPTIONS are interposed to delay the progress of the action due to objections to the form of the proceeding or for more information; and
3) PEREMPTORY EXCEPTIONS are used to defeat or dismiss the action.
What legal steps are necessary to gain control of and manage a mentally incapacitated person’s affairs?
Filing a petition for interdiction and appointment of the moving party as curator to manage the affairs of the mentally incapacitated person.
The petition must be filed where the mentally incapacitated person is DOMICILED and include:
1) the PROPOSED CURATOR and WHY they should be appointed;
2) the REASON and EXTENT of the interdiction; AND
3) a list of the mentally incapacitated person’s LIVING RELATIVES.
The petition must be PERSONALLY SERVED on the mentally incapacitated person.
If the mentally incapacitated person does not appear in court, the court will appoint an attorney to represent them.
The hearing or trial will be by SUMMARY PROCEEDING and by preference.
The petitioner will have the burden of proving the necessity for the interdiction by CLEAR AND CONVINCING evidence.
What happens when a court dismisses only one defendant without dismissing the other defendants?
A PARTIAL FINAL JUDGMENT. When a court dismisses one party from the suit, a final judgment can be rendered and signed by the court without an express designation by the court that it is an appealable final judgment.
What is a SUSPENSIVE APPEAL?
What is a DEVOLUTIVE APPEAL?
Can an attorney of record representing the plaintiff or defendant be deposed in that case?
No attorney of record representing the plaintiff or the defendant may be deposed except under EXTRAORDINARY CIRCUMSTANCES and then ONLY by order of the district court after contradictory leaving.
Can a witness be compelled to testify in a civil trial?
Yes, witnesses may be subpoenaed to provide testimony at trial. Any witness in a civil care who resides or who is employed in the state may be subpoenaed and compelled to attend trial wherever held in the state.
The party issuing the subpoena must pay the witness travel expenses at the state rate and an attendance fee of $50 per day.
When is a case deemed ABANDONED?
When there has been no steps in the prosecution or defense of the case for THREE YEARS.
Abandonment is effective without formal order, but you can file an EX PARTE motion to dismiss on grounds of abandonment and the court will enter a formal order of dismissal.
What is a MOTION FOR ADDITUR?
A motion for additur is an ALTERNATIVE to a motion for a new trial, on the issue of QUANTUM, when the verdict is clearly contrary to the weight of the evidence and a new trial could be granted on that basis alone.
What are the requirements for ADDITUR?
1) QUANTUM must be clearly separable from the other issues in the case; AND
2) the defendant must CONSENT to additur as an alternative to a new trial.
If additur is entered, then the court will reform the jury verdict in accordance with the motion.
What is a JNOV?
A MOTION for a JUDGMENT NOTWITHSTANDING THE VERDICT.
A JNOV should be granted when the facts and inferences, considered in the light most favorable to the opposing party, point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not find for the opposing party.
A JNOV must be filed with SEVEN DAYS, exclusive of holidays, from mailing or service of the signed judgment.
How is a JNOV different from a NEW TRIAL MOTION?
A JNOV should be granted when the facts and inferences, considered in the light most favorable to the opposing party, point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not find for the opposing party.
A new trial motion does NOT require the trial judge to favor the opposing party when evaluating the evidence. “He may draw his own inferences and conclusions and may evaluate the credibility of the witnesses.”
When can two or more parties be JOINED in the same suit as a plaintiff against a single defendant?
1) When there is a community of interest between the parties;
2) each action is within the jxd of the court and venue is proper; AND
3) the actions are mutually consistent and employ the same form of procedure.
When would you file a DILATORY EXCEPTION?
When would you file a PEREMPTORY EXCEPTION?
When would you file a DECLINATORY EXCEPTION?
What is a RECONVENTIONAL DEMAND?
Are there any situations where a defendant can assert affirmative defenses AFTER filing their answer?
1) If the defendant raises them in a reconventional demand and plaintiff fails to timely object; OR
2) if it was “mistakenly” designated as an incidental demand.
The court’s KEY CONSIDERATIONS in exercising this discretion would be whether the court views defendant’s later assertions as an effort to circumvent the requirement that such defenses be pled in the answer AND whether any SURPRISE and PREJUDICE to plaintiff’s case results.
What is a DILATORY EXCEPTION OF PREMATURITY?
What is an INTERLOCUTORY JUDGMENT?
What is a MOTION FOR SUMMARY JUDGMENT?
What is a MOTION FOR AN INVOLUNTARY DISMISSAL?
What is a lawyer certifying when he signs a pleading?
When a lawyer signs a pleading, he is certifying that he has READ the pleading and that to the best of his KNOWLEDGE, INFORMATION, and BELIEF, the pleading:
1) is not being used for any improper purpose such as to harass, delay, or increase costs,
2) is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law;
3) has or is likely to have evidentiary support; AND
4) each denial is warranted by the evidence or reasonably based on lack of information or belief.
