Texas Civil Procedure (DONE) Flashcards
(207 cards)
1
Q
What is required for a court to have subject matter jurisdiction?
A
1) The type of case or relief sought requires the case to be filed in a particular court or courts, and; 2) If the answer to the first question is “no”, the second question asks what is the AMOUNT IN CONTROVERSY in the suit.
2
Q
How is the amount in controversy determined?
A
The amount must be prayed for in good faith by the plaintiff, and is determined with reference to the value of the thing or interests sought to be restrained.
3
Q
What are the specific limits for the amount in controversy? (Justice Court, Constitutional County Court, County Courts at Law, District Courts)
A
Justice Court: Up to $10,000 Const. County Court: From $200.01 to $10,000 County Courts at Law: $200.01 to the maximum amount found in the statute that created the specific court. The max jur. amount in $200,000, unless changed for a specific court by statute. District Court: Jurisdiction when the AIC exceeds $500. There is no upper limit to the jurisdictional amount in District Court. (almost always in D.Ct. for the Bar)
4
Q
What is the purpose of the original petition?
A
The original petition serves two purposes: 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 charging the jury.
5
Q
What are the formal requirements for original petition?
A
The petition shall state: 1) The names of the parties and their residences; 2) The statement that damages sought are within the jurisdictional limit of the court; and a statement that the party seeks one of the following: — only monetary relief of $100,000 or less (i.e., no injunctive relief), including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees; — monetary relief of $100,000 or less and nonmonetary relief — monetary relief over $100,000 but not more than $200,000 — monetary relief over $200,000 but not more than $1,000,000; or — monetary relief over $1,000,000 3) A demand for judgment for all other relief which the party deems himself titled. Must be signed by the party;
6
Q
What must the petition state about the claim for damages sought by the petitioner?
A
For unliquidated damages, the petition may contain the statement that the damages sought are within the jurisdictional limit of the court, but the petition must also plead into one of the damages ranges required.
7
Q
What option does the defendant have if the petitioner does not make a proper claim for damages?
A
The defendant may file 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.
8
Q
What is required of the prayer in a petition?
A
If the prayer or demand is only for damages already pleaded, it may simply state that generally. If however, some different or additional relief is sought such as injunction or recision, such relief must be specifically pleaded.
9
Q
When must an amended pleading be filed?
A
Must be filed more than 7 days prior to trial. A motion seeking leave of court is required if the amended pleading is filed within 7 days prior to trial. This rule also applies to amendments adding affirmative defenses and counterclaims to defendant’s answer.
10
Q
When will a motion for leave to file an amended pleading be denied by the court?
A
When the amendment adds a NEW cause of action or would cause surprise or prejudice to the defendant. Allowing new causes of action would require different evidence from the defendant, which might cause prejudice.
11
Q
If the plaintiff seeks to offer evidence of an injury that isn’t supported by the trial pleadings, and the defendant objects successfully to the jury instruction regarding the evidence, what option does the plaintiff have?
A
The plaintiff should seek leave to file a trial amendment, especially if the defendant failed to object to the evidence being admitted during trial.
12
Q
If the defendant does object after the evidence is admitted (outside of a petition’s claims), what are the plaintiff’s options?
A
The court should allow the trial amendment when presentation of the merits will be served and the objecting party fails to satisfy the court that the amendment would prejudice him in maintaining his action or defense.
13
Q
If a trial amendment is granted and the defendant needs more time to address the new claim and evidence required, he can ask for ____________/
A
A continuance. Refusing an offer of continuance waives the right to complain on appeal.
14
Q
What would a plaintiff use to respond to a defendant’s response to their petition with a defense?
A
A supplemental pleading, which is used to reply to a defendant’s defense. Made in response to the last previous pleading of the adverse party. It ADDS to but DOES NOT SUPERSEDE the last pleading.
15
Q
What must a plaintiff due in order to bring a lawsuit against an overdue account?
A
P should file a VERIFIED pleading on a sworn account. The verified account may be relief on to establish a prima facie right of action. It must contain: 1) An itemized statement of the goods or services sold; 2) Reveal offsets to the account; and 3) Be supported by an affidavit stating that the claim is just and true and within the affiant’s knowledge.
16
Q
What must a defendant do when a lawsuit against an overdue account is brought against him?
A
In order to dispute the facts of the overdue account, D must filed a written denial under oath. Failure to file a verified denial prevents the defendant from denying the claim and waives the right to dispute the ownership and the amount of the account.
17
Q
What are the requirements for the exercise of personal jurisdiction in Texas?
A
Adequate grounds: Substantive due process requires that a state must have a constitutionally adequate basis for the exercise of personal jurisdiction. Constitutionally adequate grounds include: — physical PRESENCE of the D in the forum state. — the D is a DOMICILIARY of the forum state — the D CONSENTS to the state’s exercise of personal jurisdiction, or — the D has MINIMUM contacts with the forum state.
18
Q
What are the requirements for the exercise of PJ over nonresident defendants in Texas?
A
Minimum Contacts Test 1) The non-resident D 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 (specific jurisdiction) 3) The assumption of jurisdiction by Texas must not offend traditional notions of FAIR PLAY and SUBSTANTIAL JUSTICE.
19
Q
Service requirements for personal service in Texas?
A
The defendant must be served with process (i.e., 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.
20
Q
Service requirements for substitute service in Texas?
A
If the plaintiff is unsuccessful in attempting to serve the defendant EITHER In person or by mail: — the P may file a motion with an affidavit stating the usual place of abode or business of the D 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 reasonably give the D notice of the suit.
21
Q
Service requirements for citation by publication in Texas?
A
When a party or his attorney swears that he is unable to locate the D or his residents and other means of service have failed, the clerk of court issues service by publication.
22
Q
Service requirements for service on corporations?
A
Both domestic and foreign corporations doing business in Texas are required to designate an agent on whom service may be made. Process may be effectively served on: — the REGISTERED agents; — 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 OF STATE for Texas, who then has the duty to notify the defendant by registered mail.
23
Q
What are the requirements for out-of-state service under the Long-Arm Statute?
A
The P must serve the Texas Secretary of State under the long-arm statute, and the petition must allege that the Defendant: 1) Is a non-resident of Texas; 2) Has no regular place of business or person in charge in Texas 3) Has been doing business in Texas (i.e., entering into contract by mail or otherwise with a resident in Texas to be performed in whole or in part by either party in this state or committing any torn in whole or in party in this state).
24
Q
When does the statute of limitations toll in Texas?
A
When a petition is filed, as long as the P exercised actual diligence in procuring both issuance and service of citations.
25
What are the D's options when filing pleadings?
D can file Pre-answer pleadings, an Answer, or Consolidated Response
26
What are pre-answer pleadings (for D)?
The defendant can file pre-answer pleadings known as dilatory pleas that delay or defeat an action without determining the merits of the action. Dilatory pleas include special appearances, motions to transfer venue, and other pleadings.
27
What is included in a D's answer?
The D 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.
28
What is included in a D's consolidated repsonse?
The D can file a single consolidated pleading raising both dilatory pleas and pleas in bar. Problems result when the D fails to follow the due order of pleading rule.
29
How can a D challenge personal jurisdiction?
By filing a special appearance to challenge to court's exercise of personal jurisdiction. It must be filed BEFORE any other plea, pleading or motion by the D.
30
What happens if a D fails to file a special appearance before making a plea, pleading or motion in response to a petition?
He makes a GENERAL appearance, consents to jurisdiction, and waives all defects to personal jurisdiction in service.
31
Does a D waive his objections to jurisdiction by participating in discovery?
No, discovery, subpoenaing witnesses, and even appearing in person for the hearing on the special appearance may be done without waiving it.
32
Who has the burden of establishing or negating personal jurisdiction if D files a special appearance?
D has the burden to negate the basis for personal jurisdiction.
33
What must be said in a special appearance?
The pleading should assert that D is not AMENABLE to service of process and deny the P's allegations. The pleading must be verified. The forms of evidence that may be presented to the court in deciding the jurisdictions are all discovery, affidavits, and oral testimony.
34
What type of order is the granting or denial of a special appearance?
An INTERLOCUTORY ORDER that may be immediately appealed.
35
What is the general rule for venue in Texas?
Lawsuits shall be brought: 1) In the county in which all or a substantial part of the events or omissions GIVING RISE at the time of the cause of action accrued. 2) If the D is a natural person, in the county of the D's RESIDENCE at the time the cause of action accrued. 3) If the D is not a natural person, in the county of the D's PRINCIPLE OFFICE in the state; or 4) If none of the above applied, then in the county in which the P RESIDED at the time the COA accrued.
36
What is the venue rule for breach of warranty by a manufacturer of a consumer good?
A PERMISSIVE venue rule that provides that the suit is proper in the county of the P's residence at the time COA accrued.
37
What is the venue exception for suit on a written contract?
A permissive venue exception that allows suit to be brought in the county in which the D is required to perform.
38
What should be included in a P's motion to transfer venue?
In the petition, the P must plead the existence of a cause of action and should plead venue facts that, if true, are sufficient to maintain the suit in the county where it is filed.
39
What should be included in a D's motion to transfer venue?
Note: D must ALWAYS file this motion before filing anything else, otherwise it's waived. D's motion must: 1) State that venue is not proper where suit is filed. 2) Deny any venue facts in P's petition which D wishes to contest. 3) Name the county to which transfer is sought and plead venue facts that support the county of requested transfer as proper. 4) Identify the section of the venue statute making the requested county proper, and 5) Request a transfer to the specified county.
40
When must P file a response to D's motion to transfer venue, and what must it include?
P must file the response within 30 days prior to the hearing on the MTV. The response should present prima facie PROOF (affidavits and discovery material) of matters specifically denied by D and specifically deny any of the D's pleaded venue facts which P wishes to contest.
41
Who has the burden in MTV issues?
Defendant
42
Does the MTV need to be verified?
No
43
How long is the notice requirement for a hearing on the MTV?
45 days
44
Who is the decision maker for MTV challenges?
All venue challenges are decided by the court without the aid of a jury.
45
What is the appeal procedure for MTV?
No interlocutory appeal is allowed and a party must appeal the venue decision after the final judgment. The trial court's decision will prevail unless the appellate court finds "reversible error".
46
What is the venue challenge procedure when multiple plaintiffs are involved?
EACH plaintiff must independently establish proper venue, if challenged. An interlocutory appeal may be taken of a trial court's determination that a P did or did not independently establish proper venue.
47
What is the difference between a motion to TRANSFER venue and a motion to CHANGE venue?
The motion to change venue asks if there is such a prejudice against the D in the county of suit that the cannot obtain a FAIR and IMPARTIAL trial.
48
What is a plea in abatement?
This plea challenges the P's pleadings by alleging facts arising outside the petition that justify the suspension or dismissal of the case. The plea identifies the impediment, the effective cure, and asks the court to suspend the lawsuit until the plaintiff has corrected the defect.
49
What is a plea in abatement based on?
1) A defect in the parties (capacity, non-joinder of a necessary party, improperly party, etc); or 2) A defect in the petition's allegations
50
How does a party challenge a pleading?
By filing a special exception. May be based on: 1) Defects of substance related to cause of action, defense, an element of damage, or relief which is not allowed by law; or 2) Defects of form, typically related to vagueness, ambiguity, etc. 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.
51
How does a party file a motion to dismiss?
Allowed under TRCP 91a. Allows challenging the cause of action as baseless. 1) No basis in law: Even assuming the allegations are true, the plaintiff would not be entitled to the relief sought. 2) No basis in fact: "No reasonable person would believe the facts pleaded"
52
What is the deadline for filing a motion to dismiss under TRCP 91a?
It must be filed within 60 days of service on the movant of the first pleading that contains the challenged cause of action, and the motion must be filed at least 21 days before the motion is heard.
53
What is the deadline for responding to a motion to dismiss?
The nonmoving must respond to the motion no later than 7 days before the date of the hearing or he may nonsuit the challenged cause of action at least 3 days before the hearing.
54
What is the deadline for the court to rule on the motion to dismiss?
The court must rule on the motion within 45 days of its filing unless: 1) the motion is withdrawn 2) the challenged cause of action is timely nonsuited, or 3) the parties agree the court need not rule on the motion.
55
What may the court consider when ruling on a motion to dismiss?
The court may only consider the pleadings and may not consider the evidence.
56
After being properly served, when must the Defendant file their answer?
The D must file an answer by 10am on the first Monday after the expiration of 20 days from the date the D was served with process.
57
What is the effect of a general denial?
A D may generally deny all of P's allegation. The D's general denial need only state: "D denies each and every allegation in P's original petition" A general denial puts in issue all matters not required to be denied under oath or specially denied.
58
What order must pleadings be made (objections)?
1) Special appearance 2) Motion to transfer venue 3) any other pleadings (special exceptions, general denial, etc)
59
What is a special denial?
When there is a condition precedent to the D's duties (e.g., conditions in an insurance policy or conditions to the duty to purchase a home), it is sufficient if the plaintiff generally alleges that the conditions precedent have been performed or have generally occurred. In order to challenge's P's allegations, D must specifically deny those conditions that the D maintains have not been met. Unless the D specifically denies the conditions precedent, the P need not prove the matters, as her allegations are taken as true.
60
How do you make a verified plea?
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.
61
What are the affirmative defenses that must be verified?
Denials and abatements that must be pleaded under oath include: 1) P lacks legal capacity to sue or be sued 2) Denial of P's properly filed sworn account action, and 3) That there is another suit pending in Texas between the same parties involving the same claim
62
What is an affirmative defense?
An affirmative defense is any matter that provides an independent reason that, if proved by the D, will totally or partially bar the P from recovering, even if P's allegations are true.
63
Who has the burden of proof for affirmative defenses?
AD's must be pleaded by the D as a ground of defenses, so D has the burden of proof on these matters and, if pleaded and evidence is produced, D is entitled to have ADs submitted as questions to the jury.
64
Joinder - What is a counterclaim?
A counterclaim is a claim by one party against an opposing party seeking some affirmative relief.
65
What is a compulsory counterclaim?
In order for a counterclaim to be compulsory, it must: 1) arise from the same T/O 2) be within the jurisdiction of the court 3) not be subject of a pending action 4) be a claim that the pleader has at the time of filing 5) not require the presence of third parties over whom the court cannot acquire jurisdiction
66
When must a compulsory counterclaim be asserted?
It must be asserted against the plaintiff in the pending action, or its subject matter will thereafter be barred.
67
What is a permissive counterclaim?
A permissive counterclaim may be brought in the same action or the D has the option of asserting it in a separate action.
68
What is a crossclaim?
A crossclaim is a claim by one party against a co-party. It must be out of the same T/O. These are generally permissive.
69
When may a third party claim be filed against a party that the D believes is liable for all or part of the damages against P?
The TPP need not obtain leave of service if he files the third party petition not later than 30 days after he serves his original answer. Otherwise, D must obtain leave on motion stating the claim, the basis, and the relationship to the primary claim. The D must give notice of the motion to all parties.
70
If a potentially liable third party is out of the reach of the court, how can a D address this problem?
By filing a motion for leave to designate the non-parties as responsible third parties. The motion must be filed on or before the 60th day before the trial date except for good cause. The D must plead sufficient facts to raise a genuine issue regarding the designated person's responsibility for the harm.
71
Who would be a responsible third party?
Any person who is alleged to have caused or contributed to causing the harm for which recovery is sought. The terms includes a bankrupt, a criminal, a person belong the court's jurisdiction, and an employer with worker's compensation immunity.
72
What is the impact of designating a responsible third party?
The fact finder will determent he degree of responsibility 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 P's injuries.
73
Does the designation procedure affect third party practice?
No. The designation procedure allows the jury to consider the fault of such a party without the necessity of joining a party.
74
What is discoverable in Texas?
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 ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to discovery of admissible evidence.
75
Is a party required to disclose the names of potential witnesses?
Only for general witnesses. Impeachment and rebuttal witnesses need not be disclosed, because the necessity of their testimony cannot reasonably be anticipated before trial.
76
How can a party justify their refusal to disclose a witness before calling them at trial?
That party will have to show good cause for nondisclosure or that the party will suffer no prejudice or surprise.
77
What are the classifications of experts?
Testifying, consulting, and reviewed consulting experts.
78
What is a consulting expert?
Those who have been consulted, retained, or specially employed in anticipation of litigation or for trial, but who will not testify.
79
What is a reviewed consulting expert?
A consulting experts 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.
80
What types of experts are discoverable?
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.
81
When must a party designate their experts?
At least 60 days before the end of the discovery period. A party seeking affirmative relief must respond to the requests for disclosure at least 90 days before the end of the discovery period.
82
What happens when a party seeks affirmative relief regarding the designation of their experts?
Parties seeking affirmative relief must make their experts available for deposition reasonably promptly after the expert is designated unless a REPORT concerning the expert's opinions and observations is provided upon designation. If a report is furnished, the designated expert need not be available for deposition until ALL other experts have been designated.
83
What is work product?
Work product includes any material prepared for mental impression developed in anticipation of litigation or for trial by or for a party or a party's representative.
84
What protection is provided for work product?
Privilege protection that protects the core work product of an attorney, which includes the attorney's metnal impressions, opinions, or conclusions.
85
What is the purpose of a protective order?
A person from whom discovery is sought may seek a protective order within the time permitted for a reponse.
The court may may any order limiting discovery in the interest of justice to protect the moving party from undue burden, unnecessary expense, harassment, or annoyance.
86
When is a protective order not appropriate to protect discovery material?
A person should not move for protection when an assertion of privilege or an objection is appropriate.
87
When must a plaintiff respond to requests for discovery?
Within 30 days after service.
88
When must a defendant respond to requests for discovery?
The defendant 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.
89
When are the steps for a D to properly assert the claim of privilege as a basis for refusing to answer select interrogatories?
1) Withholding Statement: The party asserting the privilege must state, in a response or separate document, within the time for the response to the request that:
* Information or material response to the request has been withheld;
* the request to which the materials relate; and
* the privilege asserted
2) Response
* After receiving a withholding statement, the party seeking discovery may request that the party identify the information withheld
3) Privilege Log
* Within 15 days, withholding party must serve a response that described
90
What is the burden of proof for items withheld from discovery by claims of privilege?
At the hearing on a motion to compel, the withholding party must establish a prima facie case for privilege by testimony or affidavit.
91
What is the effect of an inadvertent disclosure of privileged information?
If a party makes an inadvertent disclosure, 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.
92
How should a party preserve objections to written discovery requests that they believe are beyond the scope, unduly burdenson, or overly broad, etc.?
1. The D must may any objection to written discovery in writing, either in the response or in a separate document, within the time for the response
2. An objection that is not made within the itme for response is waved
3. The D must state the LEGAL or FACTUAL basis for the objection and the extent to which the party is refusing to comply with the request.
4. Must have a GOOF FAITH factual and legal basis for the objection.
93
Who has the burden of proof at a hearing resolving an objection or claim of privilege?
The person making the objection or asserting the privilege has the burden to prove the validity of the objection or privilege claimed.
94
What is the duty to supplement discovery?
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.
95
What is the result of failing to plead a Discovery Control Plan?
Defaults automatically to Level 2
96
When is a Level 1 Discovery Plan applied?
Application: Any suit seeking only monetary relief aggregating $100,000 or less, or any suit for divorce not involving children in which the party pleads that the value of the marital estate is more than $0 but less than $50,000.
97
What are the limits imposed by a Level 1 Discovery Plan?
1) Discovery period begins when the suit is filed and continues until 180 days after the first request for discovery is served on a party.
2) No more than 6 hours of deposition, but can agree to expand to 10 hours.
3) No more than 15 interrogatories.
4) No more than 15 requests for production/admission (subparts count as separate requests)
5) May request all documents, electronic information, and tangible items in other party's custody. (does not count towards request limit)
98
What are the special trial procedures for Expedited Actions that fall under Level 1 Discovery Plans?
Limited Recovery: No judgments allowed in excess of $100,000, including post-judgment interest.
Trial Procedures: On any party's request, the court must set the trial date wihtin 90 days after the discovery period ends, and each side is allowed 8 hours of jury selection (
99
When is a Level 2 Discovery Plan applied?
A Level 2 cases is a case that exceeds the requirements for Level 1 and in which there his no "order" ordering a Level 3 plan.
100
What are the limits imposed by a Level 2 Discovery Plan?
1) Discovery begins when suit is filed and continues until
* 30 days before date set for trial, or
* 9 months after the earlier date of the first oral deposition, or
* The due date of the first response to written discovery
2) Each sides may have no more than 50 hours of deposition time
* +6 hours for each additional expert an opposing side has over 2
3) Each party may serve no more than 25 interrogatories
101
How does a party enforce the deposition limits if a party is going over the allowed time under the Discovery Plan?
If the time limitations for the deposition have expired, a party or witness may suspend the oral deposition.
102
When is a Level 3 Deposition Plan applied?
Only when a court orders it pursuant to a party's motion or on its own initiative.
This is a discovery plan tailored to the circumstances of the specific suit.
103
What are the permissible forms of discovery?
1) requests for disclosure;
2) requests for production and inspection;
3) interrogatories to a party;
4) requests for admission;
5) oral and written depositions; and
6) motions for physical examinations.
104
What are the elements of a Request for Disclosure? (RFD)
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.
105
What type of information is requested in an RFD?
1. the correct names of the parties;
2. the names, addresses, and telephone numbers of potential parties;
3. the name, address, and telephone number of any person who may be designated as a responsible third party;
4. the amount and method of calculating economic damages;
5. the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case (i.e., eyewitness, treating physician, investigating officer).
6. any indemnity or insuring agreements;
7. any witness statements;
8. in cases seeking damages for personal injuries, all medical records and bills that are reasonably related to the injuries, or in lieu 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 party’s preference controls.
9. for any testifying expert, the expert’s name, address, and telephone number; the subject matter on which the expert will testify; the general substance of the expert’s 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 by or for the expert in anticipation of the expert’s testimony.
106
When must a Plaintiff respond to an RFD?
A plaintiff must respond within 30 days after service of the RFP.
107
When must a Defendant respond to an RFD?
The Defendant has 30 days to respond after service.
D has 50 days from service of the RFD if the D was served with the requests before his answer to the petition is due.
108
What is a Request for Production (RFP)?
A party may serve a request for production or inspection to inspect, sample, test, photograph, and copy documents or tangible things within the scope of discovery.
109
How is the production of documents requested of a non-party?
If the request is served on a non-party, 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.
110
How is the production of medical records requested?
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. The subpoena is often used in connection with a deposition on written questions.
111
How are the documents produced through an RFP authenticated?
Production of the document itself operates to authenticate the document produced for use against the producing party.
Self-authenticated unless the producing party objects to the authenticity within 10 days of the notice of its use.
112
What is the rule regarding testing an item to be produced through RFP?
The D may obtain an article for testing, as long as the article is not destroyed or materially altered without authorization by the court.
113
What is required for a party to gain entry onto an opposing party's property?
Plaintiff should file a Request or Motion for Entry Upon Property. This 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.
114
What are interrogatories?
Written questions to a party in the suit, and the answers may be used only against that party.
115
What composes a response to an Interrogatory?
The responding party must sign the answers under oath, unless that answers are based on information obtained from other persons.
The responses consist of answers, objections, or the assertin of a privilege.
116
What are Requests for Admission (RFA)?
A party may serve on another party written requests that the other party admit the truth of any matter within the scope of discovery.
There are NO limits on the number of requests.
117
What comprises a response to an RFA?
Unless a responding party states an objection or asserts a privilege
1. the responding party must specifically admit or deny the request, or explain in detail the reasons that the request cannot be admitted or denied;
2. the response is due within 30 days after service, or 50 days if a defendant was served with the request before the time to answer the petition; and
3. importantly, if a response is not timely served, the request is deemed admitted.
118
What is the effect of an admission on an RFA?
A matter admitted is conclusively established as to the party making the admission without the need of a court order.
119
When is an admission allowed to be withdrawn?
Upon motion, the court may allow withdrawal 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.
120
What is the notice requirement for an oral deposition?
Notice of intent to take an oral deposition must be served a reasonable time before it is to be taken.
121
What is required for a deposition notice of an organization?
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.
122
What is required for the "place" of the deposition of a NON-PARTY?
The deposition of a non-party may be taken in:
1. The county of the deponent's residence
2. The county where the deponent is employed or regularly transacts business in person
3. The county where the deponent was served with a subpoena
123
What is required for the "place" of the deposition of a PARTY?
If the deponent is a party, the deposition may be taken:
1. In the same locations that are proper for a non-party as well as the county in which the suit is filed.
124
Where is appearance required for deposition of a party or non-party?
Appearance is required in a county that is not more than 150 miles from where the person resides or is served.
125
How can a deposition's time and place be objected to?
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 three business days of service, the objection stays the deposition until the objection is resolved.
126
How do you compel attendance to a deposition for a party?
if a witness is a party, or employed by, retained by, or otherwise subject to the control of a party, service of the notice on the party’s attorney has the same effect as a subpoena.
127
How do you compel attendance to a deposition for a non-party?
If the deponent is a non-party witness, you must issue BOTH the notice and a subpoena.
128
What are a party's options if the opposing party fails to appear for the deposition?
The party may file a motion for sanctions or an order compelling discovery based on the opposing party's failure to produce a witness at the properly noticed deposition.
The court may order the opposing party to pay attorney's fees incurred in obtaining the order as well as a broad range of sanctions.
129
What is required for the production of documents at a deposition?
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.
130
What is the required time limit for a deposition?
No side may examine or cross an individual withness for more than 6 hours. The deposition may be suspended if the time limit has expired.
Separate cumulative timel imitations are created by the discovery plan.
131
What types of objections are available during examination in a deposition?
1. “Objection, leading;”
2. “Objection, form” (e.g., the question calls for speculation, is vague, is confusing, or is ambiguous);
3. “Objection, nonresponsive;”
4. 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.
132
What are the rules for communicating with a witness during deposition?
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 protect the witness from an abusive question or one that requires a misleading response.
133
What can be done to depose a sick or dying witness before the suit is filed?
File a Petition for a Deposition 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:
1. the petitioner anticipates the institution of a suit in which the petitioner may be a party;
2. the subject matter of the anticipated action, if any, and the petitioner’s interests therein; and
3. the names of the persons the petitioner expects to have interest adverse to the petitioner and their addresses and telephone number; and
4. Presuit depositions are prohibited in health care liability claims.
134
What is required to get a medical examination of another party?
A party can file a motion to compel a medical exam 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 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.
135
When is a default judgment available to a plaintiff?
The plaintiff may take a judgment by default against a D by showing:
1. The court has subject matter jurisdiction
2. Jurisdiction over the D by proper service of process (i.e., citation issued, served, and returned)
3. Defendant has not filed an answer
4. The time to answer has expired, and
5. The return of citation has been on file 10 days excusive of the day of filing the citation and the day of the default judgment.
Plaintiff must affirmatively seek judgment, or else the D can file an answer beyond the time provided for in the rules.
136
What is the effect of a default judgment on a defendant?
The defaulting defendant admits all liability issues, but plaintiff is required to put on evidence of unliquidated damages.
When damages are liquiated, and proved by an instrument in writing, no evidence beyond this is required.
137
What notice is required to a defendant for a default judgment?
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.
138
How can a no-answer default judgment be set aside?
1) Motion for new trial
2) Restricted appeal to court of appeals
3) Equitable bill of review
139
What is required for a motion for new trial to set aside a no-answer default judgment?
A motion for new trial must be filed within 30 days of the date the judgment is signed.
If there is no legal reason (i.e., 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:
1. failure to answer the lawsuit was not intentional or the result of conscious indifference, but was due to a mistake or accident;
2. set up a meritorious defense; and
3. there is no delay or injury to the plaintiff by granting a new trial.
140
What is required of a restricted appeal to the court of appeals to set aside a no-answer default judgment?
a restricted appeal must be filed within 6 months of the date the judgment was signed.
in order to set aside the default judgment, the defendant must demonstrate that:
1. 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
2. there is error on the face of the record.
141
What is required or an equitable bill of review to set aside a no-answer default judgment?
An equitable bill of review must be filed within FOUR 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 demonstrate the following:
1. a MERITORIOUS defense;
2. which the defendant was PREVENTED from asserting by fraud, accident, or the wrongful act of the plaintiff or official mistake; and
3. 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.
142
What is a nonsuit?
At any time before the plaintiff has introduced all of his evidence, other than rebuttal evidence, the plaintiff may file a motionseeking an order allowing the plaintiff to take a nonsuit.
A nonsuit dismisses the case WITHOUT PREJUDICE to re-file.
143
What is required to obtain summary judgment?
General standard: Moving party is entitled to judgment as a matter of law
1. No genuine issue of material fact
2. No evidence
144
What is the "No Issue of Material Fact" standard for summary judgment?
There is no genuine issue of material fact when there are no issues in dispute between the parties.
e.g., When a P and D settle before D answers, D can answer with an affirmative defense of release, and then file a motion for summary judgment alleging that there are no genuine issues of material fact as to any material facts concerning the affirmative defense.
BURDEN: On the moving party to show sufficient conclusive facts to entitle it to judgment as a matter of law.
145
What is the "No Evidence" standard for summary judgment?
After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the non-moving party would have the burden of proof at trial. The motion must specifically state the elements as to which there is no evidence.
146
When must a motion for summary judgment be filed?
1. 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.
2. 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.
147
What testimony and evidence is allowed at a hearing over a motion for summary judgment?
1. no oral testimony be received at the hearing.
2. evidence is limited to affidavits and all types of discovery as request for admissions, depositions, etc.
3. 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 use the material as summary judgment proof. If relying on a deposition, the party must direct the court’s 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.
148
What is required of the affidavits used in summary judgment proceedings?
Affidavits must be:
1. made on personal knowledge of the affiant;
2. affirmatively show that the affiant would be competent to testify; and
3. state facts that would be admissible in evidence (i.e., hearsay and opinion, except in accordance with evidentiary rules, have no effect).
149
What is required to appeal summary judgment?
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 INTERLOCUTORY 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.
150
What are the pretrial matters?
1. RIght to a Jury Trial
2. Motion for Continuance
3. Motion in Limine
4. Jury Selection
151
What is required to perfect the right to a jury trial?
In order to perfect the right to a jury trial, civil litigants must file a WRITTEN request for a jury trial with the clerk and pay the jury fee within a reasonable time before the date set for trial on the non-jury docket, but not less than 30 days before the trial date.
Once a party requests a jury and pays the jury fee, the party will not be allowed to withdraw the request and have the case placed on the non-jury docket over the opponent’s objection.
152
What is required for a motion in continuance?
A motion for continuance must be:
1. In writing
2. Under oath
3. Show sufficient cause supported by affidavit (unless all parties agree)
The trial court's grant or denial of an application for continuance will not be disturbed unless the record shows a clear ABUSE OF DISCRETION.
153
What must a plaintiff include in a motion for continuance based on an unavailable witness or incomplete discovery?
The plaintiff should submit an affidavit asserting:
1. The testimony is material and explain why
2. Diligence was exercised
3. the cause of the problem;
4. the testimony is not available from another source;
5. the name and address of the witness and the substance of the testimony; and
6. the continuance is not sought for delay but for justice.
154
What is the purpose of a motion in limine?
To obtain a pretrial ruling establishing certain issues (e.g., such as prohibiting mention of irrelevant evidence)
155
What must a party do to preserve error if the opposing counsel violates the motion in limine?
The ruling on the motion is preliminary and preserves nothing for appeal. To properly preserve error, the defendant must:
1. object at the time plaintiff makes the statements;
2. obtain a ruling by the court disallowing the evidence; and
3. have the court instruct the jury to disregard the statement. If the defendant fails to object during trial, the defendant will waive any complaint.
156
What are the elements of jury selection?
1. Jury shuffle
2. Challenges for cause
3. Peremptory challenges
157
What is a jury shuffle, and when can it be made?
The defense attorney can demand a “shuffle” of the panel. The demand must be made PRIOR to voir dire examination.
Where a party demands a shuffle, the panel is randomly rearranged with the possibility that potential jurors at the end of the list may be moved up and be more likely to serve on the jury.
There shall only be one shuffle by the judge in each case.
158
What is a challenge for cause in jury selection?
A juror may be challenged for cause when some legal reason exists to disqualify the juror. There are unlimited challenges for cause in any court. A party may challenge a juror for cause if a prospective juror:
1. is INTERESTED directly or indirectly in the subject matter of the case;
2. is a WITNESS in the case;
3. has a BIAS or PREJUDICE in favor of or against a party in the case; or
4. is RELATED to a party in the case.
159
If a party challenges as specific juror for cause, the the court denies the challenge, what must the party do to preserve error?
The challenging attorney must show PREJUDICE. The attorney must make known to the trial court the IDENTITY of the juror that he will be unable to strike peremptorily due to the use of the strike on an unqualified juror (i.e., a juror who should have been dismissed for cause).
160
What is a peremptory challenge, and how many does each party have?
One which strikes a jury panelist for any reason or no reason.
161
What is a Batson challenge?
An objection that a jury panelist was excluded because of some PROTECTED CLASSIFICATION is called a Batson challenge. Common examples of prohibited classifications include race, ethnicity and gender
162
What is "The Rule" for excluding witnesses from the courtroom?
At the request of either party or on the court’s own motion, the witnesses on both sides are sworn and removed from the courtroom so they cannot hear the testimony as delivered by any other witness in the case. This is termed placing the witnesses under the rule.
Witnesses placed “under the rule” should be instructed by the court not to converse with each other or anyone about the case except attorneys without the court’s permission or read any report or comment about testimony.
163
What is the rule regarding exemption from "The Rule"?
The burden is on the party seeking an exemption of a witness from the rule to raise and support its application at trial.
The rule does not authorize exclusion of:
1. a party who is a natural person or the SPOUSE of such natural person,
2. an officer or employee of a party that is not a natural person and who is DESIGNATED as its representative by its attorney, or
3. a person whose presence is shown by a party to be ESSENTIAL to the presentation of the cause. Expert witnesses are among those who may be exempted from the operation of the rule at trial because of the “essential” nature of their presence in the courtroom.
164
What is the standard of review for violating The Rule?
Sanctions include excluding the testimony of the witness. Abuse of discretion is the standard of review.
165
What is the case process during trial?
1. Party with the burden of proof (usually plaintiff) begins the evidence
2. P calls the first witness and conducts direct examination
3. Other litigants cross-examine the witness
4. Plaintiff finishes case-in-chief and rests
5. Defedant puts on case-in-chief and rests
6. Plaintiff gets rebuttal testimony
7. Defendant gets rebuttal testiomony
8. All parties close the evidence
166
What is a motion for directed verdict?
The motion for a directed or instructed verdict is the method used to present a party’s argument that there are no controverted FACT ISSUES for the jury’s determination (i.e., the legal sufficiency of the evidence).
167
What is the timing to make a motion for directed evidence?
A party may make a motion for a directed verdict when:
1. An opponent rests
2. When an opponent closes; and
3. When all parties close.
168
What are a plaintiff's grounds for a directed verdict?
A plaintiff may successfully move for a directed verdict by showing the court that:
1. plaintiff has CONCLUSIVELY proven (i.e., evidence is so powerful that reasonable minds could not differ regarding it) all elements of one ground of recovery; and
2. the defendant has failed to produce any evidence (i.e., has produced no evidence) on one element of each ground of defense.
169
What are a defendant's grounds for a directed verdict?
A defendant may move for a directed verdict by showing the court that:
1. the defendant has CONCLUSIVELY proven all elements of at least one ground of defense; or
2. the plaintiff has failed to produce ANY EVIDENCE on at least one element of each ground of recovery.
170
Juror conduct - Papers to jury room
With the court’s permission, the jury may take with them to the jury room any notes they took during the trial.
171
Juror conduct - Just to Caution the Jury
Immediately after the jurors are selected for a case, the court must instruct them to turn off their phones and other electronic devices and not to communicate with anyone through any electronic device while they are in the courtroom or while they are deliberating.
172
What is required of offensive questions in the jury charge?
The broad-form question method puts ALL ELEMENTS of an independent ground of recovery, which is supported by “some” evidence, in one question.
173
What is required of defensive questions in the jury charge?
Independent grounds of defense, which are supported by “some” evidence, are submitted in the same manner as independent grounds of recovery. If the affirmative defense question is submitted in a broad- form, it must be accompanied by appropriate instructions concerning a SPECIFIC affirmative defense.
174
What is a jury instruction?
An instruction is a statement of a rule of law that the jury must understand in order to deal with the question submitted.
175
What is a jury definition included in a jury instruction?
A definition is an INTERPRETATION of a word or phrase used in the charge. Words with meanings not commonly known to lay persons, or technical or scientific terms, or words with meanings other than the ordinary use, should be defined in the charge. In a tort case, definitions may be appropriate for economic damages, exemplary damages, gross negligence, and malice.
176
What are the basic requirements of complaints to the jury charge?
After all the evidence is presented, the attorneys submit to the court what they want in the charge (e.g., questions, instructions, and definitions) and there is an informal discussion of these matters. The court then decides what it wants in the charge and submits the charge to the attorneys for their complaints.
At that time, the attorneys must make their complaints “for the record.” After all complaints are made and ruled upon, the charge is read to the jury and argument follows.
177
What are the requirements for preserving error regarding jury charges?
There are two basic requirements for properly preserving error:
1. all complaints must be made before the charge is read to the jury and outside their presence; and
2. all complaints must be ruled on by the judge
178
What is an "omission" complaint to a jury charge?
Written requests are used to direct attention to omissions of elements in a ground of recovery or defense relied on by the requesting party or the opponent of the requesting party
The attorney must:
1. REQUEST a submission;
2. TENDER in writing a substantially correctly worded question, instruction or definition; and
3. OBTAIN a ruling.
179
What is a "defects" complaint to a jury charge?
Used when a requested question, instruction, or definition is defective.
The attorney must:
1. REQUEST to the specific portion of the charge in writing or dictated to the court reporter;
2. STATE the basis for the objection; and
3. OBTAIN a ruling.
180
What is the number of jurors needed for a verdict in a STATE DISTRICT COURT?
10 members of an original jury of 12
181
What is the number of jurors needed for a verdict in STATE COUNTY COURT?
5 members of an original jury of six
182
What is the number of jurors needed for a verdict in STATE JUSTICE OF THE PEACE COURT?
5 members of an original jury of six.
183
What can the court do if the jury is stuck in deliberation?
The court should give the jury a supplemental, verdict-inducing instruction. The trial judge may suggest that the jury further consider the charge in an effort to reach a verdict so long as the instruction is not found to be coercive
If material questions have not been answered, the court should reject the verdict and, with proper instructions pointing out the defect, retire the jury for additional deliberations.
184
When must a judge accept the jury's judgment on the issue?
The judge accepts the jury's findings on the issue when there is SOME evidence to support that finding.
185
When may a judge disregard the jury's judgment on an issue?
When there is NO EVIDENCE to support a finding or where the contrary evidence is conclusive.
186
When is a Judgment Notwithstanding the Verdict used? (JNOV - often used by defendant's)
A motion for judgment notwithstanding the verdict should be used to:
1. challenge the legal sufficiency of the evidence (i.e., no evidence supports a jury finding, no more than a mere scintilla, a mere surmise or suspicion);
2. to assert that the evidence conclusively establishes a fact opposite to the jury’s finding.
There is no time limit for filing, but it must be filed before the judgment becomes final.
187
When is a motion to disregard the verdict proper? (Often used by plaintiffs)
This motion is proper if the movant must “knock out” one or more findings and rely on other findings in order to get a favorable judgment.
188
What is the difference between a motion to disregard the verdict and a JNOV?
Motion to disregard = knocking out one or more finding and relying on other findings to get a favorable judgment
JNOV = knocking out one or more findngs is enough to entitle the movant to judgment
189
What is a motion for a new trial?
A motion for new trial may be based on ANY alleged error on the part of the trial court. If granted, the case will be re-tried and it will be as if the original trial had “never happened.”
A trial court must set forth, in its order granting a new trial, specific reasons for setting aside the jury’s verdict. The trial court must go beyond general statements such as stating that the new trial is granted “in the interest of justice.” Use of such vague language will be insufficient.
190
When is a motion for a new trial a PREREQUISITE for appeal?
A motion for new trial is a prerequisite for an appeal only as to the following matters:
1. a complaint of inadquacy or excessiveness of damages found by a jury;
2. a complaint on which evidence must be heard, such as jury misconduct or newly discovered evidence, or failure to set aside a judgment by default. Evidence related to juror misconduct must relate to “outside” influences not the deliberations of jurors and show that the party sustained actual and material harm.
3. a complaint of factual insufficiency to support a jury finding is used by a party without the burden of proof to challenge an adverse finding;
4. a complaint that the jury’s findings are against the great weight and preponderance of the evidence is used by a party with the burden of proof to challenge an adverse finding;
5. an incurable jury argument, if not otherwise ruled on by the trial judge;
191
When must a motion for a new trial be filed?
Within 30 days after the judgment is signed.
192
What is the plenary power of the court after judgment?
For a limited time after a final judgment is signed, the trial court retains an inherent power to set aside, modify, or amend the judgment without the necessity of a formal written or oral motion by a party.
The court has plenary power for up to 30 days following a final judgment.
193
What is the impact of a granted motion for new trial?
If a motion for new trial is granted, the original proceeding is set aside an the cause is reinstated on the dock as though it had never been tried.
194
What is the impact of a denied motion for new trial?
If denied, the court still has plenary power to set aside judgment.
A motion for new trial is deemed overrueled by operation of law on the 75th day after the court signed the judgment.
195
What is required to perfect a request for appeal?
An appeal is perfected when a written notice of appeal is filed with the trial court clerk.
196
When is an appeal proper?
An appeal is proper only after a final judgment in the trial court.
Exceptions:
1. The order to be appealed involes a controlling question of law as to which there is a substantial ground for difference of opinion; and
2. An immediate appeal from the order may materially advance the ultimate termination of the litigation
The appealing party must file an application for interlocutory appeal in the proper court of appeals stating why the interlocutory review is warranted. The appellate has the discretion to accept or deny the application.
197
When is a notice of appeal for the judgment required when no motion for new trial has been filed?
Within 30 days from the date the judgment is signed
198
When is a notice of appeal for the judgment required when a motion for new trial HAS been filed?
Notice of appeal must be file within 90 days from the date the judgment is signed.
199
If a losing party wants to file an appeal, can the judgment still be enforced against him?
Perfecting an appeal does NOT suspend enforcement of the judgment pending appeal.
To prevent execution of the judgment, an appellant must file a bond with the trial court. When a judgment is for money, the amount of security must equal the sum of the amount of compensatory damages awarded in the judgment, the interest for the estimated duration of the appeal, and costs awarded in the judgment.
200
When must a Court of Appeals affirm the trial court?
If either NO ERROR appears or the error is not significant enough to meet the standard for REVERSIBLE error.
201
What is a reversible error?
One that
"probably did cause the rendition of an improper judgment"
OR
"probably prevented the appellant from properly presenting the case to the court of appeals"
202
Suppose the defense attorney believes that plaintiff has presented no evidence on an element of plaintiff’s cause of action (i.e., plaintiff’s evidence is legally insufficient). What motions could be filed in the trial court at the pretrial stage, at the close of plaintiff’s case, and after the receipt of an adverse verdict? If the trial court denies all these motions, what action should be taken on appeal if the legal sufficiency point is established?
1. A no evidence summary judgment motion
2. A motion for directed verdict
3. A motion JNOV
On appeal, the Court of Appeals should reverse and render judgment because the appellant is entitled to judgment as a matter of law.
203
Can a party force the opposing party to attend mediation?
YES. The plaintiff’s attorney can file a request with the court for mediation. A court may, on its own motion or the motion of a party, refer a pending dispute for resolution by an alternative dispute resolution procedure including mediation. However, a court cannot order mediation in a case covered by the Federal Arbitration Act without the agreement of all parties.
204
Can a court impose sanctions for refusing to participate in court-ordered mediation?
YES. A court can impost sanctions for a party refusing to participate...
But MAY NOT impose sanctions on a refusal to settle, nor may the court order the parties to mediate in good faith.
205
How is a mediator paid for court-ordered mediation?
The court may set a reasonable fee for the services of a mediator appointed to facilitate an ADR procedure. Unless the parties agree to a method of payment, the court will tax the fee for the services to the cost of the suit.
206
What is required for a motion to enter consent judgment based on agreement at mediation?
ALL PARTIES must consent to the judgment. If a party withdraws their consent before rendition, a consent judgment is improper.
207
What is the confidentiality requirement from mediation?
The ADR status provides that neither the party nor the mediator may be compelled to disclose to any other person, including the court, confidential information given to the mediator by any party unless the parties agree otherwise.
