TX Civ. Pro. and Evidence Flashcards
(153 cards)
1
Q
Diversity Jurisdiction Requirements (6)
A
- Complete diversity is required (no plaintiff may be a citizen of the same state as any defendant)
Special Cases:
Citizens of other countries: If a party is a citizen of another country, but a permanent resident of a state, that party is considered to be a citizen of that country for purposes of diversity.
Corporations are considered citizens in the state of incorporation and their principal place of business in the nerve center approach or the place of activity approach. Both tests are used by the federal courts.
- Amount in controversy must exceed $75,000
2
Q
Removal from State Court (8)
A
Suits may be removed from state court if jurisdiction would have been proper if filed first in federal court (i.e., you have complete diversity and a proper amount in controversy), but there is an additional requirement that no defendant may be a citizen of the state where the case is filed. The defendant is to file a notice of removal within 30 days after being served with process (a copy of the petition and a copy of the citation) in the state case.
3
Q
Attacking Personal Jurisdiction Over Nonresident Defendant in State Court (15)
A
The nonresident defendant is to file a sworn (verified) _ before any other pleading or it is waived. The defendant asserts it is not amenable to service of process, i.e. that the court lacks personal jurisdiction. The defendant may properly file other pleadings (pleas, motions, or answers) subsequently without waiving the special appearance. These other pleadings do not need to contain language indicating that it is subject to your special appearance. The defendant may use any form of discovery without waiving the special appearance. At the hearing, the proof may consist of any discovery, affidavits, or oral testimony.
4
Q
Means of Serving Defendant (8)
A
In-State Defendant - Either by delivering notice to D in person or by certified or registered mail. File motion for substituted service if unsuccessful; include affidavit stating usual place of abode and asserting facts showing that service has been attempted. Court may authorize service by leaving a copy of the citation and petition with anyone over 16 specified in the affidavit, or by any manner that will reasonably give D notice of the suit
Out-of-State - 2. Serve the defendant in the same manner and such service may be made by any disinterested person competent to make oath (usually the sheriff of the out-of- state county where the defendant lives). It may be used instead of a long-arm statute.
Long-Arm Statute - Service is on the secretary of state as agent for the defendant. To use this statute, the plaintiff must allege in the petition that the nonresident defendant is doing business in Texas, does not maintain a place of regular business in Texas, nor maintain a designated agent upon whom service may be made. Service on the secretary of state starts the time for the defendant to answer. The secretary of state will send the court clerk a certificate (referred to as a “Whitney Certificate”) certifying she received copies of the petition and citation, the date of receipt, and the date she forwarded a copy of process to the defendant via certified mail.
5
Q
When is the D to answer in State district and county courts?
A
By 10:00 a.m. on the Monday Next after the expiration of 20 days from the day of service; if that day falls on a Monday, then the next Monday. The return of service to the clerk must be on file 10 days, not including the day it is filed and not including the date of the default judgment, before the court may enter a default judgment. If the agent for service of process of the defendant is served, then the defendant’s time to answer begins to run the moment the agent is served.
6
Q
When is D to answer in Federal District Court?
A
21 days
7
Q
Venue: General Rule (38!!!!!!)
A
Except as otherwise provided in the mandatory and permissive exceptions, all lawsuits shall:
a. Be brought in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred
b. Be brought in the county where D resided at the time the cause of action accrued if D is a natural person, or
c. Be brought in county of D’s principal office in thi sstate if D is not a natural person, or
d. If none of the above apply, the county where P resided at the time of accrual of the cause of action
8
Q
How can D object to the county in which the suit is being brought?
A
File a motion to transfer venue.
Must be filed before any other pleading except a special appearance.
If court errs in this decision, ruling can be appealed after final judgment on the merits.
9
Q
Assume that the plaintiff is a resident of Dallas County, Texas, and the defendant is a resident of Travis County, Texas. The plaintiff sues the defendant for wrongful death from an automobile accident that occurred in Travis County, Texas. Suit is filed in Dallas County, Texas. The defendant wishes to transfer venue to his county of residence where he is better known. Explain how the defendant should proceed and what should be the result. (16)
A
THE DEFENDANT SHOULD FILE A MOTION TO TRANSFER VENUE WHICH MUST BE FILED BEFORE ANY OTHER PLEADING OTHER THAN A SPECIAL APPEARANCE, WHICH MUST BE FILED FIRST. VENUE IS PROPER IN THE COUNTY OF THE PLAINTIFF’S RESIDENCE ONLY IF THERE IS NO OTHER COUNTY OF PROPER VENUE. HERE TRAVIS COUNTY IS A COUNTY OF PROPER VENUE WHERE THE DEFENDANT RESIDES AND ALL OF THE EVENTS GIVING RISE TO THE CLAIM OCCURRED THERE. HENCE VENUE IS NOT PROPER IN DALLAS COUNTY.
10
Q
John Jones, a resident of Travis County, was involved in an automobile accident resulting in personal injuries and property damage. The accident occurred in Bexar County when Tom Trucker, a resident of Bexar County and an employee of Ace Trucking Corporation, collided with the car John Jones was driving. Ace Trucking Corporation is a domestic corporation with its principal office in Dallas County.
a. John Jones wishes to file a lawsuit against Tom Trucker. You are Jones’s attorney. In
what county or counties is it proper to file the lawsuit? Explain your answer.
b. Assume Jones desires to sue Ace. In what county or counties is it proper to file the lawsuit? Explain your answer.
c. Assume Jones desires to sue Ace and Tom in Dallas County. Is venue proper against both? Explain fully.
A
a. Bexar. Pursuant to the General Rule, suit may be brought in a county where the defendant resides at the time the cause of action accrued if the defendant is a natural person. It is also proper in Bexar County under the General Rule because this is where all of the events giving rise to the cause of action occurred.
b. Dallas. Under the General Rule, venue is proper in the county of a nonnatural defendant’s principal office. It is also proper in Bexar County under the General Rule, since suit may be brought in the county where all of the events giving rise to the cause of action occurred.
c. Yes. Venue which is good against one defendant is good against all defendants properly joined. As applied, venue is good against Ace in the county of their principal office and therefore is proper against Tom who is properly joined with Ace.
11
Q
Plaintiff sues two defendants, Don and David, for negligence. You represent Don. David files an answer first, and you file a motion to transfer venue with a general denial. The plaintiff asserts that David’s action in filing an answer without contesting venue waives your right to contest venue.
How should the court rule and why?
A
Overrule plaintiff. Our venue statutes provide that the action of one defendant cannot impair another defendant from contesting venue. Hence, although David waived any venue contest by not filing a motion to transfer venue, his waiver does not affect Don.
12
Q
In regard to the due order of pleading rule, assume the defendant wishes to challenge venue. The defendant first files a general denial. Immediately afterwards, defendant files a pleading entitled only “Motion to Transfer.”
How should the court rule on the motion?
A
Deny. The caption should read “Motion to Transfer Venue,” but the caption is sufficient since the substance of the motion is controlling. But under the due order of pleading rule, the defendant must file a motion to transfer venue before any other pleading except a special appearance or it is waived. The general denial was filed first and thus the motion to transfer venue has been waived.
13
Q
What must the defendant allege in the motion to transfer venue, what type of proof is admissible, and does the defendant need to file any evidence with the motion?
A
The defendant must plead that the county of suit is not a county of proper venue, or that a mandatory provision applies, and should be transferred to another specified county of proper venue. The court may consider affidavits and all forms of discovery (but not oral testimony). The defendant is not required to attach evidence to the motion.
14
Q
If the plaintiff wants to respond to a motion to transfer venue, what should the plaintiff file and when?
A
Not less than 30 days before the hearing on the motion to transfer venue, the plaintiff would need to file a response to the motion. That response must present prima facie proof by affidavits and any relevant discovery products of matters specifically denied by the defendant, and must include a specific denial of any of the defendant’s pleaded venue facts which plaintiff desires to contest.
15
Q
You represent the defendant in suit filed for breach of contract. Your client has informed you that he does not believe that he can obtain a fair trial in the county in which the case is filed. What would you do?
A
File a motion with your own affidavit and the affidavits of at least three credible residents of the county of suit showing that there is such a prejudice against the defendant in the county of suit that the defendant cannot obtain a fair and impartial trial. This is referred to as a motion to change venue.
16
Q
What must plaintiff plead regarding the jurisdictional limits of the court in a case for unliquidated damages?
A
That the P seeks:
- Only monetary relief of $100,000 or less which includes all damages, penalties, costs, expenses, pre-judgment interest, and attorney fees.
- Monetary relief of $100,000 or less and non-monetary relief.
- Monetary relief between $100,001 and $200,000.
- Monetary relief between $200,001 and $1,000,000.
- Monetary relief over $1,000,000.
D is entitled to file a special exception and have the plaintiff amend and assert the maximum amount claimed. By not filing a special exception prior to submission of the case to the jury, the defendant waives any complaint for the plaintiff’s failure to plead maximum damages. A later objection to a verdict and request for judgment notwithstanding the verdict should be denied.
17
Q
Defendant’s Pleadings
A
A general denial puts everything in issue the plaintiff has alleged in the petition not required to be specially pleaded or denied under oath. This pleading requires the plaintiff to prove every allegation and asserts the plaintiff is not entitled to prevail as alleged. This will prevent a default judgment.
The defendant may answer further by alleging defenses and assert offsets. This pleading gives an independent reason why the plaintiff cannot prevail even assuming the plaintiff allegations are correct.
The answer may also contain special exceptions, special denials, a special appearance, a motion to transfer venue, a plea to the jurisdiction, and permissive or compulsory counterclaims. Be careful of the DUE ORDER OF PLEADING RULE.
18
Q
Appearance Day
A
The defendant is to answer in the county or district court by filing an answer before 10:00 am on the Monday next following 20 days from the date the defendant is served. If the defendant does not timely answer, the plaintiff may seek a default judgment. If the defendant does answer before the plaintiff has sought a default judgment, it will prevent a default judgment even if the answer is not timely. The defendant’s original answer can always be filed without leave of court even if not timely. Only if amending within seven days of trial or thereafter do you need leave of court.
19
Q
Special Exceptions
A
Texas does not allow a general demurrer. Instead, a special exception is used, and either party may use the special exception to attack a defective pleading by an adverse party. If sustained, the pleader has a right to replead. Failure to except in writing before the charge is read in a jury case, or before judgment is signed in a non-jury case, waives any defect except in a default judgment
20
Q
Amendment
A
After the parties file their original petition or answer, the parties may amend their pleadings adding or deleting claims and parties without leave of court 7 or more days from the trial date; provided that the opponent may move to strike the amended pleading based upon an objection that the amended pleading states a new cause of action or defense and is prejudicial on its face, or that the amendment causes surprise or prejudice.
Within seven days of trial (six days or less) or during trial (trial amendment), leave of court is required and should be granted unless there is an objection that the amended pleading states a new cause of action or defense and is prejudicial on its face, or that the amendment causes surprise or prejudice.
21
Q
Due Order of Pleadings
A
Special appearance
Motion to transfer venue
Anything else (e.g., general denial, plea in abatement, special exceptions, etc.)
22
Q
Assume the petition alleges the defendants negligently caused plaintiff’s wrongful death. The petition properly asserts that the damages sought are within the jurisdictional limits of the court. Assume the plaintiff pleads generally, but does not plead any other factual information concerning liability or damages in the petition. What objections can the defendants file to make the plaintiff allege more detailed allegations in the petition? If the objections are sustained, how should the court rule?
A
The defendants should file a special exception which is used to require the plaintiff to plead more specifically, such as specific allegations of negligence and specific bodily injuries, as well as a specific amount of damages. If sustained, the court can order the plaintiff to replead.
23
Q
Assume you represent the defendant wherein the plaintiff has sued for the breach of two separate contracts. Procedurally, how would the defendant separate these two claims?
A
Since the plaintiff has alleged two causes of action, the defendant may seek a severance which is within the trial court’s discretion.
24
Q
a. You represent the plaintiff in a slip and fall case alleging neck injuries. Eight days before trial, your client informs you that his foot is also painful. You want to amend and add damages for the foot. How should the defendant respond? Explain fully.
b. Assume you do not amend but present evidence, without objection, on injuries to his foot. The jury charge includes a question on the amount of damages to the foot and the defendant objects, asserting there are no pleadings. How would you respond and how should the court rule?
c. Assume the plaintiff files a breach of contract case in Harris County, Texas, the defendant files an answer, and then the defendant files a declaratory action on this contract in Travis County, Texas, the residence of the defendant. How should the plaintiff answer the Travis County case?
A
a. Object to the amendment. The case has been structured as injuries to the plaintiff’s neck. Requiring the defendant now to defend on additional damages would cause prejudice and surprise to the defendant. Hence the amendment should not be allowed.
b. Seek leave of the court to file a trial amendment asserting that the D’s failure to object to evidence is implied consent and cannot now assert surprise or prejudice. The court should allow the amendment.
c. File a verified plea in abatement in the Travis County suit asserting the Harris County Court has dominant jurisdiction
25
You represent Mr. and Mrs. Williams, who were injured in an automobile accident. Their minor daughter was also injured. If you desire to file suit on behalf of the parents, who should represent the daughter if she also seeks damages?
The parents may sue as next friendfor their daughter. The court should appoint a guardian ad litem if it appears that the parents as next friend have an adverse interest to their minor daughter.
26
Assume that 8 months after answering the personal injury suit and during discovery, the defendant determines that another party, but not a party in the lawsuit, is partially responsible for the plaintiff’s damages. How should the defendant proceed?
File a third-party action (impleader) asserting that the third party defendant is responsible for some or all of the damages owed to the plaintiff. Since more than 30 days have passed, the defendant will need leave of court. Copies of the petition will need to be served on all parties. This third party is now an actual party to the suit and will be required to answer and defend. This allows a jury question to be submitted on the issue of the negligence of the third party.
27
You represent the plaintiff in a breach of contract suit. The nonresident defendant is properly served and timely files a general denial. One week later, but still within the time to file an answer, the defendant files a special appearance and a motion to transfer venue. What, if anything, has occurred?
Under the due order of pleading rule, the defendant must file a special appearance before any other pleading; then a motion to transfer venue; and then any other pleading including an answer. Since the defendant filed an answer before his special appearance and his motion to transfer venue, the defendant has waived both his special appearance and his motion to transfer venue
28
What are three of the elements of a compulsory counterclaim and what is the effect of failing to file it? Explain fully.
1. Counterclaim must be within the jurisdiction of the trial court
2. At the time of filing the answer it is not the subject of a pending action
3. It arose out of the STO that is the subject matter of the opposing party's claim.
Failure to file bars it from being litigated at a later date.
29
Responsible Third Party
Texas allows a defendant to designate a non-party as a Responsible Third Party (RTP) and have that non party’s negligence to be submitted to the jury in all types of cases whether the plaintiff seeks personal injuries or property damages or both.
This allows the jury to consider the negligence of the RTP in assigning the percentage of negligence. It is often used where the RTP is immune from suit, such as in Workers’ Compensation, when a potential party is bankrupt, or where the RTP is believed to be responsible but their identity is unknown. The RTP is not a party to the suit and will not answer or defend, and no judgment can be entered against them.
30
Describe a sworn or open account.
The petition must contain a systematic, itemized statement of goods or services sold to the defendant, reveal any offsets, and must be supported by an affidavit stating the claim is just and true and within the affiant’s knowledge.
The proper answer by the defendant is a sworn statement denying each and every item the defendant asserts is not just and true (not a general denial or a sworn general denial). Failure to file the proper answer precludes the defendant from offering any defense. A sworn account can be filed as a counterclaim.
31
Plaintiff files suit in district court for wrongful death, but does not state either an actual amount in controversy or that the amount sought is within the jurisdictional limits of the court. The defendant files a plea to the jurisdiction asserting the court does not have subject matter jurisdiction. How should the court rule and why?
Deny. The supreme court has stated that the trial court must presume in favor of jurisdiction unless lack of jurisdiction affirmatively appears on the face of the petition. Here, the face of the petition does not indicate clearly that the court lacks subject matter jurisdiction.
32
If the Defendant believes the Plaintiff is partially responsible must the Defendant raise the issue before trial and, if so, how must the Defendant raise it?
Yes. D should include contributory and comparative negligence as anaffirmative defense in its answer. It can be added later in an amended answer but should be filed at least 7 days before trial.
33
No Answer Default Judgments
The defendant does not file any pleading in response. The defendant admits liability, but the plaintiff is required to prove unliquidated damages. In a typical negligence case, the defendant would admit he did some negligent act. But the plaintiff must prove that negligent act proximately caused his injuries, and must prove those injuries.
In addition, the plaintiff must show the court it has subject matter jurisdiction, the defendant has been properly served, the petition states a valid cause of action, the time to answer has expired, and the return of citation has been on file with the court for 10 days, not including the day the citation was filed with the court and not including the day the default judgment is sought. If the defendant fails to timely answer and the plaintiff files a motion for a default judgment, the court cannot grant a default judgment if the defendant files an answer before the court renders a default judgment.
34
Post Answer Default Judgments
The defendant files an answer to the merits but fails to appear at trial. The defendant admits nothing and the plaintiff must prove all issues, liability and unliquidated damages.
35
Setting Aside Default Judgments
The main method is to file a motion for a new trial, either legal and/ or equitable, within 30 days after the judgment is signed. A legal motion can be for any reason including the plaintiff failing to prove those items above (in italics) in no answer default judgments and post answer default judgments. If there is no legal basis to set aside, the defendant can resort to an equitable motion for new trial and must prove the following:
1. The failure of the defendant to answer was not intentional or the result of conscious indifference, but was due to a mistake or accident;
2. You set up a meritorious defense; and
3. The granting will occasion no delay or otherwise harm the plaintiff.
36
Traditional Motion for Summary Judgment
a. If the plaintiff moves on a ground of recovery or the defendant moves on a ground of defense, each must conclusively prove each element of their respective ground of recovery or defense. In addition, the defendant or plaintiff can seek a summary judgment by conclusively disproving an element of the opponent’s cause of action or defense.
b. The burden is on the movant to show they are entitled to a summary judgment as a matter of law, that is, reasonable minds could not differ. Once the movant has established they are entitled to a summary judgment, then the non-movant must raise a genuine issue of material fact, or the summary judgment will be granted for the movant.
c. The plaintiff may move at any time after the defendant has appeared and the defendant may move at any time, even before filing an answer.
37
No-Evidence Motion for Summary Judgment
a. After an adequate time for discovery has passed (discovery does not necessarily need to be complete), the party without the burden of proof at trial, without having to produce any evidence in support, can move for summary judgment on the sole basis that the nonmovant has no evidence to support an element of its claim (if the plaintiff is the nonmovant), or defense (if the nonmovant is the defendant).
b. The motion is to state which element(s) lack support in the evidence, and it is to be granted unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. In this no evidence motion for summary judgment, the movant has no burden of proof – the burden is initially on the nonmovant to raise a fact issue.
38
Assume a reasonable time for discovery has expired. Is there a motion that the plaintiff can bring to obtain a pretrial disposition of an affirmative defense in his favor as a matter of law? Explain.
The plaintiff may file a no-evidence motion for summary judgment after a reasonable/adequate amount of time for discovery has passed asserting there is no evidence on a specific identified element(s) of the affirmative defense.
39
If the plaintiff uses a no-evidence motion for summary judgment, is the plaintiff required to produce any evidence in order to obtain the relief sought? Explain.
No. In a no evidence summary judgment, the movant (here, the plaintiff) only has to assert there is no evidence on one or more identified elements of the defendant’s affirmative defense. The burden then shifts to the nonmovant (here, the defendant) to raise a fact issue on that element or elements.
40
Plaintiff files a motion for summary judgment and submits as proof only his affidavit, which states “the facts contained herein are true and correct, based upon information and belief.” How should the defendant respond and when is the response due? Explain fully.
Not less than 7 days before the hearing, the defendant should file a written response asserting that the affidavit is not proper summary judgment proof because it is not based upon personal knowledge.
41
Plaintiff sues defendant driver and his employer for negligence. The employer has filed a motion for summary judgment asserting that the driver was not in the course and scope of his employment and they are not liable under respondeat superior. The driver has testified in a deposition he was on his delivery route when the collision took place. As plaintiff’s attorney how could you prevent the summary judgment from being granted?
File a response to the motion at least 7 days before the hearing, and file the deposition transcript with the court. In the response, direct the court’s attention to that part of the deposition which raises a fact issue as to whether the driver was in the course and scope of his employment.
42
Level 1 Discovery Plan
1. A Level 1 case is one in which the plaintiff seeks only monetary relief not exceeding $100,000, excluding costs, pre-judgment interest, penalties, and attorney fees, or a suit for divorce not involving children where the marital estate does not exceed $50,000. (1)
2. Discovery must be conducted during the discovery period, which begins when the suit is filed and continues until 180 days after the date the first request for discovery of any kind is served on a party. (1)
3. The total time for oral depositions is 6 hours for each party to examine and cross examine all witnesses, but the parties may agree to extend to a total of 10 hours, but no more absent a court order. (1)
4. Each party may serve on all other parties no more than 15 interrogatories, excluding those interrogatories that seek a party only to identify or authenticate specific documents. Each discrete subpart (an independent question) is considered a separate interrogatory.
5. Each party may serve only 15 requests for production on all other parties and each discrete subpart is considered a separate request.
6. Each party may serve only 15 requests for admissions on all other parties and each
discrete subpart is considered a separate request.
7. In addition to those items in a Request for Disclosure below, a party may request all documents, electronic information, and tangible items that support its claims or defenses, and is not considered to be a request for production.
43
Level 2 Discovery Plan
1. A Level 2 case is one which does not fit in Level 1 and there is no court order ordering a Level 3 discovery plan. An example would be a $200,000 personal injury case. (1)
2. Discovery must be conducted during the discovery period which begins when suit is filed and continues until (a) 30 days before the date set for trial in cases under the Family Code, or (b) in other cases, either the earlier of (i) 30 days before the date set for trial; or (ii) nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery.
3. The total time for oral depositions is limited to 50 hours for each side (all the litigants with generally common interests) to examine, cross examine opposing parties, their designated experts, and persons who are subject to a party’s control. If one side designates more than two experts, the opposing side may have an additional six hours of deposition time for each additional expert.
4. Interrogatories–Each party may serve on all other parties not more than 25 interrogatories, including discrete subparts (an independent question), excluding interrogatories asking a party to identify or authenticate specific documents.
5. No limit on number of number of requests for production and requests for admission.
44
Level 3 Discovery Plan
1. A Level 3 case is where the court tailors a discovery plan for that case upon demand by a party
or on the court’s own motion.
2. Since all cases will fit under either a Level 1 or Level 2 discovery plan, when the court orders a Level 3 discovery plan, it is to use the guidelines and limitations of either Level 1 or Level 2, whichever would apply, had a Level 3 plan not been ordered. However, these guidelines and limitations may be modified by court order.
45
Requests for Disclosure
This rule allows information including the following to be discovered by all parties without objection, or assertion of other work product privilege. Remember the following six.
(1) The correct names of the parties to the lawsuit.
(2) Name, address, and telephone number of any potential parties.
(3) The amount and method of calculating economic damages.
(4) 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.
(5) Witness statements not otherwise privileged.
(6) The legal theories and factual bases of the responding party’s claims or defenses.
46
Time to Answer a Request for Disclosure
The plaintiff must respond within 30 days after service of the requests for disclosure. The defendant has 30 days to respond after service, except a defendant has 50 days from service of the requests for disclosure if the defendant was served with the requests for disclosures before his answer to the petition is due regardless of when the defendant answers. If discovery is served via mail, the party has an additional 3 days to respond. Discovery served via fax after 5:00 pm is deemed served the following day. (The response deadlines are the same for interrogatories, admissions, and requests for production.)
47
Request for Disclosure: Misc. Rules
This rule also allows a party to discover all settlement agreements and insurance policies covering the suit in question
If a party objects to any proper request for disclosure, file a motion to compel which will be granted.
The plaintiff may either produce all relevant medical records or a properly executed medical authorization. Although both are not required, the requesting party may properly request that the plaintiff furnish a medical authorization rather than the actual records.
A party is required to produce all witness statements, not otherwise privileged, regardless of when they are taken.
48
Interrogatories
1. The number of interrogatories are limited by the applicable discovery control plan.
2. Response time is the same as in a request for disclosures (30 days or 50 for D if served before answer was due)
3. The response consists of answers, objections, or assertion of a privilege, and may be in a single document or in separate documents. Certain answers must be signed under oath by the party. If the party is represented by an attorney, the party must sign under oath and the attorney shall also sign although there is no requirement the attorney’s signature be under oath. If a party requests more than the proper number of interrogatories, file an objection.
49
You file suit on behalf of ABC Corporation, a domestic corporation, against XYZ, a foreign corporation doing business in Texas. The suit is for breach of warranty. XYZ sends you a set of interrogatories in which several questions inquire about matters you feel are privileged under the rules of evidence. If you want to object to the questions concerning privileged matters, what must you do?
State in the response materials which have been withheld, the request to which the materials relates, and the privilege you assert. This is referred to as a withholding statement.
50
You send the adverse party interrogatories seeking the names of their trial witnesses. They object stating they are not required to provide this and direct you to their answers of persons having knowledge of relevant facts. You file a motion to compel. How should the court rule and why?
Sustain: They are required by case law to give you the name of any witness, expert or lay, they intend to call at trial.
51
The adverse party sends you interrogatories seeking the names of any impeachment or rebuttal witnesses you intend to call at trial. How would you respond?
Object. Our rules provide that a party may obtain the names of trial witnesses, but not rebuttal or impeaching witnesses the necessity of whose testimony cannot reasonably be anticipated before trial.
52
You send interrogatories to the adverse party requesting them to list the witnesses they intend to call at trial. During trial, the adverse party calls a witness they did not identify. What, if anything, should you do? Discuss fully.
Object. Failure to properly respond by identifying this witness requires the court to disallow the testimony BUT the objection will be overruled if the adverse party shows good cause for not disclosing the existence of the witness or no unfair surprise or prejudice by the late disclosure.
53
Plaintiff files suit for personal injuries and seeks to offer his sworn answers to interrogatories to support his medical expenses. What substantive objection may the defendant make? Explain fully.
D may object that a party may not offer into evidence their answers to interrogatories as evidence on any issue such as medical expenses. Only another party may use the answers. In addition, the plaintiff is not qualified to testify that the expenses are reasonable and necessary in the treatment of any injuries.
54
Can a plaintiff use an interrogatory to obtain whether the defendant has insurance and the policy limits? Are there other discovery methods to accomplish this? Discuss fully.
You may use an interrogatory, a request for disclosure, or a request for production to obtain this information.
55
You represent the plaintiff in a personal injury suit. Defendant sends you a request to disclose the names and addresses of any and all medical providers for medical treatment of any kind for the ten years preceding the accident made the basis of this suit. How would you respond and why?
Make a written objection that the request is irrelevant, overly broad, and unduly burdensome. Only medical records pertaining to this injury would be relevant. It is not simply a fishing expedition, it is an attempt to dredge the lake in hope of finding a fish.
56
Name the 5 forms of discovery authorized by the TX Rules of Civil Procedure
(1) Interrogatories; (2) Requests for Production; (3) Requests for Admission; (4) Requests for Disclosure; and (5) Depositions.
57
Admissions
The response time is the same (30 days) as in requests for disclosures. The matter is admitted without a court order unless a timely written response is served on the requesting party.
Unless the responding party states an objection or asserts a privilege, the party must admit, deny, or explain in detail the reasons that the party cannot admit or deny the request. The response may be a single document or in separate documents, and is to be signed by the party, or the party’s attorney if represented by an attorney. Verification (under oath) is not required. Limited number (15) in Level 1; no limit in Level 2. `
58
What is the effect of an admission?
Conclusively establishes for trial purposes those
things that are admitted unless the court on motion permits the withdrawal or amendment of the admission, and the admission is good for that case only
An admission for failing to timely answer, referred to as a deemed admission or an actual admission is a judicial admission, which means the party may not, over an objection, introduce evidence that contradicts the admission
An actual or deemed admission may be withdrawn upon motion showing good cause, the court finds the adverse party will not be harmed or prejudiced by such withdrawal, and the presentation of the merits will be subserved by allowing the withdrawal.
59
Requests for Production
1. This rule allows you to obtain documents and tangible items from parties and nonparties. It also provides for entry onto property
2. Response time is the same as a request for disclosures.
3. If served on a nonparty, it must be served no later than 30 days before the end of the discovery period. You must serve the nonparty with a proper notice and a subpoena. The notice must state the name of the person from whom production is sought, a reasonable time and place for production, and the items to be produced.
4. Limited number (15) in Level 1; no limit in Level 2
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1. A dispute between Abner and Buster over the proper location of a fence dividing their respective properties has resulted in the filing of a lawsuit. Buster contends that the fence was constructed in a manner consistent with the boundary markers located on his property. You represent Abner, and wish to have a closer look at Buster’s property. What requests would you make during discovery?
Since the property belongs to a party, file a request For Entry on Property stating that you desire to go onto the land for surveying, inspection, photographing, sampling and measuring, etc., and serve all parties. This keeps you from being a trespasser.
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Plaintiff sues Defendant for making defective pipe. Defendant desires to have plaintiff produce the pipe for inspection and testing. How should the Defendant proceed? Plaintiff is concerned the testing may damage the pipe. Explain fully.
Serve a request for production and inspection and specify the items to be produced and inspected, either by individual item or by category. The request must specify a reasonable time and place for production, and must state the means, manner, and procedure for testing. Our rules require that any testing may not destroy or materially alter the item without court approval.
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You represent the defendant and properly request the plaintiff to produce his medical records in his personal injury case. The plaintiff refuses. How would you proceed and what is the probable result? Explain your answer.
File a motion to Compel, which should be granted. Our rules provide a party must produce all medical records that are reasonably related to the plaintiff’s injuries. The patient-physician privilege does not apply to records related to the issue of physical injury when the party relies on the condition as part of its claims. You can properly obtain medical records from the Plaintiff via Requests for Disclosure or Request for Production or via written deposition with subpoena duces tecum to the healthcare provider.
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P has served a request for production of certain documents. The defendant believes the request is not specific. How should the defendant proceed? Explain fully.
if the plaintiff wants the documents how should it proceed? Explain fully.
a. Serve a timely response asserting an objection that the request is too broad and the legal and factual basis for the objection.
b. File a motion to compel. D will have to produce any evidence necessary to support its objection.
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P was injured. Plaintiff’s doctor testifies that her injuries are permanent and severe. What action can the Defendant take to independently verify the extent of Plaintiff’s injuries and when must they take it?
File a Motion to Compel Independent Medical Examination. File it at least 30 days before the end of the discovery period and show good cause.
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In response to a request for production, Defendant produces only paper copies of the documents even though they are also maintained by Defendant in electronic form (and Plaintiff requested the documents be produced in electronic form). Is Plaintiff entitled to production of the documents in electronic form? If so, what action should Plaintiff take?
Yes. P is entitled to docs in electronic form because they asked for them that way and D maintains them in that way. File a motion to compel.
D has to produce responsive info that is reasonably available in the ordinary course of business.
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Oral Depositions: Notice
A notice of intent to take an oral deposition must be served on the deponent and parties a reasonable time before it is to be taken. The notice shall contain the name of the deponent, state a reasonable time and place for it to be taken which can be:
(1) In the county of the deponent’s residence;
(2) Where the deponent is employed or conducts business;
(3) The county where the deponent was served with a subpoena; or within 150 miles of the place of service if the deponent is a non-resident or transient;
(4) The county of suit if the deponent is a party or a designated corporate representative; or
(5) Any convenient place by court order.
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What to do if you object to the time or place of the deposition?
file a motion to quash the deposition or a motion for protective order before the time specified in the notice. If the motion to quash is filed by the third business day after service of the notice, an objection to the time and place stays the deposition until the motion can be determined.
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How can a person be compelled to appear at an oral deposition?
By subpoena. Further, a subpoena may require the deponent to bring items to the deposition. When the deponent is a party, the notice served upon the party’s attorney has the same effect as a subpoena served on the deponent, and therefore you do not need to subpoena a party. If the deponent is a non-party witness, you must issue both the above notice and a subpoena.
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What must be designated in the notice given to a non-human entity (e.g., a corporation)?
the notice shall designate the matters which are the subject of the deposition. Then the corporation must designate the humans to testify on its behalf within a reasonable time before the deposition stating the matters each witness will testify about
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Objections in an oral deposition are waived unless:
(1) there is an agreement to reserve them until the time of trial, or absent such an agreement
(2) they are made at the time of the deposition. No other objections may be made during the deposition. The agreement to reserve them may be made by a valid Rule 11 Agreement (defined as one in writing, signed by the parties, and filed with the court, or made in open court and of record), or it may be dictated to the court reporter.
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Proper Objections at an Oral Deposition
OBJECTION-LEADING, OBJECTION-FORM, AND OBJECTION-NONRESPONSIVE. Other objections may be made at trial without any agreement. Objections to the form of the question include the question calls for speculation, seeks a narrative answer, is vague, confusing, or ambiguous. If asked for basis of an objection- form, must provide concise explanation for basis of objection.
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Private conferences between deponent and attorney at oral deposition...
improper except for the purpose of determining whether a privilege should be asserted. An attorney may instruct a witness not to answer only to preserve a privilege, comply with a court order or the rules, or to stop an abusive/harassing question or one which any answer would be misleading. The deposition may be suspended if time has expired or the deposition is being conducted or defended which violates the rules.
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P sues defendant for making a defective salsa causing the plaintiff severe nausea. The defendant does not want its secret recipe to become public knowledge because of its competition. How can the defendant’s answers in a deposition be kept private?
File a motion specifying the grounds (trade secret) and seek a protective order. This would require you to prove that the formula is a trade secret.
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Assume that suit has not been filed in a personal injury case. An eyewitness to the accident is not expected to live because of cancer, making him unavailable to participate in discovery unless it occurs before suit is filed. What can you do to obtain his deposition at this time and what must you show the trial court?
File a petition for a Deposition Before Suit (formerly known as a Deposition to Perpetuate Testimony). As the petitioner you must allege that:
(1) the petitioner anticipates the institution of a suit which the petitioner may be made a party;
(2) state the subject matter of the anticipated action, if any, and the petitioner’s interest therein; and
(3) if anticipated, the names of the persons the petitioner expects to have interests adverse to the petitioner, their addresses, and telephone numbers.
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During an oral deposition of his client, the defense attorney repeatedly interrupts the questions by the plaintiff’s attorney, and makes objections that expressly suggest to the witness how to answer the question. What remedies are available to the plaintiff’s attorney and how should the court rule?
Suspend the deposition. The rules provide the court may allow in evidence at trial any statements, objections, discussions, or other occurrences during the oral deposition that reflect upon the credibility of the witness or the testimony
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You represent the plaintiff in a personal injury suit. The defendant has served a notice to take your client’s deposition without first talking to you. You will be out of state on the day the deposition is to be taken, but defense counsel refuses to reschedule. What can you do to prevent the deposition from going forward?
File a motion to quash the deposition before the time in the notice to take the deposition. The motion must give a reasonable time and place for your client to be deposed. If the motion to quash is filed by the third business day after service of the notice, an objection to the time and place stays the deposition until the motion can be determined.
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You represent the defendant in a personal injury case. You want to examine the medical records from the doctors who treated the plaintiff. You know the name of these doctors. How can you obtain their records?
You can use an oral deposition or deposition on written questions. You will need to notice all parties and the deponents (the doctors) with a subpoena requesting them to produce the records.
You can also use a request for production.
You can also obtain these records in a Request for Disclosure
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P notices the deposition of the defendant company’s president. The company does not want to produce its president for deposition because he does not know anything about the accident. What pleading should the defendant file to resist the deposition of its president? Explain fully.
File a Motion for a Protective Order. In the Motion, assert that the president does not have unique or superior personal knowledge of discoverable information and that the plaintiff has not shown that less intrusive means of discovery have failed. The court may make any order limiting discovery in the interest of justice to protect the moving party from undue burden, unnecessary expense, harassment, or annoyance. If you also object to the date and time, include a motion to quash and an affidavit from the president denying personal knowledge.
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Duty to Supplement
A party has a duty to amend or supplement a previous discovery response reasonably promptly; however, if made less than 30 days before trial it is presumed that it is not made promptly.
The duty arises when a party learns that the original response was incomplete or incorrect when made, or, although complete and correct when made, is no longer complete and correct to the extent that the request sought identification of persons with knowledge of relevant facts, trial witnesses, or expert witnesses, and to the extent the written discovery sought other information, unless this other information has been supplied to the other parties in writing, on the record at a deposition, or through other discovery responses.
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You represent the defendant. Plaintiff has sued for breach of contract and reasonable attorney fees. You sent interrogatories to the plaintiff; one interrogatory inquired as to testifying experts the plaintiff will call during trial. The plaintiff responded he had no expert witnesses. During trial, the plaintiff’s attorney calls an associate of their law firm to the stand to testify as to attorneys’ fees. What, if anything, would you do and how should the court rule?
Your objection is the plaintiff failed to supplement the interrogatories and the evidence is not admissible. The court must sustain the objection unless the plaintiff can show good cause for failure to supplement, or such failure will not unfairly prejudice the other parties.
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Expert Witnesses
There are three types of experts: (1) testifying; (2) consulting (reviewed consulting); and (3) purely consulting (non-reviewed consulting).
You may discover the name, address, telephone number, subject matter of the testimony, facts known that relate to or form the basis of any mental impressions and opinions, their mental impressions and opinions made in connection with the case, evidence of bias, current resume and bibliography, and their work product (reports, models, documents, etc.) of a testifying expert or the same from a consulting expert if the testifying expert reviewed the consulting expert’s work product through a Request for Disclosure. But if not reviewed, no discovery (referred to as a purely consulting [non reviewed consulting] expert) can be obtained.
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What Discovery Methods may be used for consulting experts?
You may use a request for disclosure, oral depositions, and court-ordered reports for testifying experts. You may use any discovery method for consulting (reviewed consulting) except a request for disclosure and court-ordered reports.
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If party is seeking affirmative relief, what must he do with respect to experts?
Designate all testifying experts based upon the following two dates, whichever is later in time: (a) 30 days after a request is served; or (b) 90 days before the end of the discovery period
make his testifying experts available for deposition: (a) if no report is produced when the expert is designated, then reasonably promptly after designation; or (b) if the testifying expert produces a report when the expert is designated, not until reasonably promptly after all other experts are designated.
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When must a party not seeking affirmative relief designate their experts?
whichever is later in time: (a) 30 days after the request is served; or (b) 60 days before the end of the discovery period.
A party not seeking affirmative relief must make their testifying experts available for deposition reasonably promptly after the expert is designated and the experts testifying on the same subject matter for the party seeking affirmative relief have been designated.
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1. Assume you have an expert that does not have personal knowledge of the facts in the case. In what capacity must you employ this expert in order not to have to disclose the identity or any report produced by the expert, and under what circumstances might you be required to so disclose?
Employ the expert as purely consulting expert. If this expert’s report is reviewed by any testifying expert, this expert now becomes a consulting expert requiring you to disclose the identity and the report. The report need not be used or given any credibility by the testifying expert, only reviewed.
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4. What procedural steps can you take to raise the issue of the opposing expert’s qualifications?
Object to the expert’s qualifications before the witness testifies. If your objection is overruled, you can take the witness on voir dire outside the presence of the jury.
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Attorney Client Privilege
covers confidential communications (oral and written) between an attorney or the attorney’s representative and the client for the purpose of providing legal services. It is perpetual.
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Assume you represent the defendant in a plant explosion where the plaintiff was injured. Immediately upon learning of the explosion you conduct an investigation, and interview several witnesses, make and keep notes, but take no witness statements. The plaintiff seeks the names and addresses of the persons interviewed and all documents derived from that investigation before suit was filed. What objections can you make and how should the court rule? Explain fully.
Work product privilege. Any documents and notes that resulted from your investigation because you reasonably anticipated litigation and conducted the investigation with that belief are privileged.
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3. Assume your client has received a notice to take a deposition together with a request for certain documents that you believe are work product. You desire to resolve this issue before the deposition. How would you proceed? Explain fully.
Object to the request for the documents you believe to be produced by work product privilege and include a withholding statement. If you want the Court to resolve the matter before the deposition, file a motion and set it for hearing with the proper notice. If you object to the time and place file a motion to quash. The motion must give a reasonable time and place for your client to be deposed. If the motion to quash is filed by the third business day after service of the notice, an objection to the time and place stays the deposition until the motion can be determined.
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You represent the plaintiff in a slip and fall case wherein your client tripped on a sign that had fallen to the floor in Mercy Hospital. The sign was owned by Big Sign Company. You sue both Mercy and Big Sign. You learn that Jane, an employee of Big Sign, gave a written statement to Mercy that she had slipped on the same sign the previous day and it was dangerous. You seek a copy of the statement of Jane. Mercy objects that the statement was taken during an investigation of the accident and was privileged. Big objects that it cannot be used against them because Jane was not authorized to give a statement. How should the court rule and why?
Deny. Witness statements are no longer privileged as work product and may be discovered regardless of who makes them and when they are made. Parties may use any form of discovery to obtain relevant, non-privileged information; P is not restricted to a depo to obtain this information
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Asserting Privileges
1. The procedure for asserting a privilege is the same for all privileges. You may assert it in your response to the discovery request or in a separate document.
2. The response is a “withholding statement” which contains the following three elements:
(1) a statement that information or material responsive to the request has been withheld;
(2) identification of the request to which the withheld information or material relates; and
(3) a statement of the privilege(s) relied upon.
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Privilege Log
If the requesting party wants to pursue the issue further, that party is to request the responding
party to create a “privilege log” describing the withheld information or material. The privilege log is due within 15 days after such a request, and describes the information or materials withheld, and asserts a specific privilege for each item or group of items withheld.
After the privilege log is produced, any party may set the matter for a hearing. At that hearing, the responding party must make a prima facie case for the privilege(s) asserted.
If you accidentally (i.e., without intending to waive the privilege) produce a privileged document, our rules provide you have 10 days after you discover the error or a shorter time by court order to assert the privilege by filing the required withholding statement explained above. If successful in getting the documents back, the adverse party may not use them at trial. Referred to as the “snap-back” provision.
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Mental or Physical Exams
A party may be required by court order to submit to such an exam provided the condition is in controversy and good cause is shown to the court. The physical exam will be conducted by a qualified physician, and a mental exam by either a qualified physician or psychologist. The party requesting the exam should move for an order compelling it no later than 30 days before end of discovery period.
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Authentication
A party’s production in response to written discovery authenticates the document for use against the producing party, unless within 10 days or a shorter time by court order, after the producing party has knowledge the document will be used, the producing party objects to its authenticity.
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Depositions on Written Questions
This discovery method is useful for securing testimony from a deponent with limited relevant information such as a medical records custodian. They are somewhat similar to an interrogatory since they are in writing, but different in other ways because unlike an interrogatory, they can be used against non-parties and they are not limited in number. They are taken under oath and the answers are reduced to writing and can be used in the same manner as oral depositions.
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Explain a motion in limine
A pretrial order seeking to suppress evidence or instruct counsel not to offer it, to prevent the asking of prejudicial questions or making prejudicial statements in front of the jury which are not admissible.
If sustained, a party will need to approach the bench and seek court approval outside the hearing of the jury before any questions on this issue.
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If you desire a jury trial in state or federal court, how do you proceed?
In state court, any party may demand a jury trial by filing a written request with the clerk within a reasonable time before the date set for trial, but not less than 30 days before the trial date, and paying the jury fee or file an affidavit of inability.
If a party fails to timely request a jury or fails to pay the jury fee (for example on the day the case is called for trial), the court should still allow a jury trial unless it will disrupt the court’s docket, impede the ordinary handling of the court’s business, or injure the other party. Once a jury has been properly requested, it may not be removed from the jury docket over the objection of any party. A party may properly seek a jury trial even if the pleading and discovery times have passed.
If in federal court, file a written demand not less than 10 days after service of the last pleading that has a triable jury issue.
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3. On the first trial setting, what is the minimum number of days each party is entitled to regarding notice and how should you proceed if the trial court does not give you timely notice?
Each party is entitled to 45 days notice of the first trial setting and reasonable notice thereafter. Failure to give the proper notice requires me to object and file a motion for continuance.
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4. Assume that both parties have agreed to less than 45 days notice of the first trial setting. What steps should the parties take to ensure their agreement is enforceable?
Seek a Rule 11 Agreement. That rule provides that no agreement between attorneys or parties touching any pending suit will be enforced unless it is in writing, signed, and filed with the court, or it is made in open court and entered of record. [Note that a Rule 11 agreement applies to any agreement on any aspect of the case at any stage of the proceedings].
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You desire a continuance because of an absent witness. How should you proceed?
File a motion for continuance and include an affidavit to assert the testimony is material and show the materiality of the testimony, that you have used due diligence to procure such testimony, stating such diligence, and the cause of the failure, if known; that such testimony cannot be procured from any other source; the name and address of the witness and what you intend to prove by him; and that the continuance is not for delay only, but that justice may be done.
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You have filed a motion in limine to prevent the adverse party from asserting insurance during the trial which the court sustains. During cross examination of your witness, the adverse party asks a question concerning insurance. What, if anything, should you do? Explain fully.
Object. The adverse party has violated the motion in limine. I would request the court to instruct the jury to disregard and possibly request a mistrial. If I fail to object, I waive any error because the ruling on the motion in limine is not a ruling at trial. I must object at trial to preserve error.
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After all the parties have appeared in the case, the Judge orders them to a pretrial conference. List 5 matters that the Court can require the parties to consider at a pretrial conference?
(1) Discovery schedule;
(2) contested issues of fact and simplification of the issues;
(3) identification of legal matters to be ruled on or decided by the court;
(4) proposed jury charge questions, instructions and definitions for a jury case or proposed findings of fact and conclusions of law for a nonjury case; and
(5) marking and exchanging of all exhibits any party may use at trial and a stipulation to authenticity and admissibility of exhibits to be used at trial.
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Methods for Striking a Juror
(1) a challenge for cause; and (2) a peremtory challenge
A challenge for cause asserts the juror cannot serve because it violates a statute or rule. There are unlimited challenges for cause in any court. Some of the challenges for cause include: bias and prejudice; a witness in the case, related within the third degree of affinity or consanguinity to a party; convicted of a felony; and not a resident of the county. A challenge for cause is made orally to the court and usually presented at the time of the questioning of the juror and outside the presence of the juror.
If the trial court denies a challenge for cause, to preserve error, the party must, prior to exercising its peremptory challenges, inform the court that it will exhaust all of their peremptory challenges, and that after exercising their peremptory challenges, specific objectionable jurors would remain on the jury list.
A peremptory challenge seeks to strike the juror for some reason other than cause. Each party in district court has six peremptory challenges, and three in county and JP courts. Party does not mean person. Multiple litigants on one side are considered to be a separate party if they are adverse on an issue going to the jury. If multiple litigants received more than six, then the other side should file a motion to equalize seeking additional peremptory challenges so that no side has an unfair advantage. The trial court should consider any matter brought to the court’s attention to determine if one side has an unfair advantage.
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How many jurors must concur in district court?
10 out of 12. If the verdict is unanimous, then the presiding juror signs the verdict. If less than 12, then each concurring juror signs the verdict. Hence the verdict can be 12-0; 11-1; 10-2. In addition, up to three jurors may be excused if they are unable to perform their duties as a juror. If a juror dies or becomes physically or mentally unable to continue their duties, the trial may continue over an objection. Hence if you lose one juror, the verdict can be 11-0 or 10-1; if you lose 2 jurors, the verdict must be 10-0 (unanimous); if you lose 3 jurors, it also must be unanimous. The court must declare a mistrial if less than 9 jurors remain if any party objects to continuing the trial.
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Batson Limitations on Peremptory Challenges
The objection that a panelist was excluded because of some prohibited classification is called a Batson challenge. Race, ethnicity, and gender are the most common examples.
After voir dire, if one party believes the other party used its peremptory challenges in a discriminatory manner, the party should follow this three-step procedure.
(1) First, make a prima facie case by making a record that illustrates the other party violated the excluded juror’s constitutional right to serve on the jury before the court impanels the jury and dismisses the excluded panel members.
(2) Once the movant makes a prima facie case, the burden shifts to the party who used the challenge to come forward with a neutral explanation for the challenge.
(3) If the challenged party has a neutral reason, the burden shifts back to the challenging lawyer to prove by a preponderance of the evidence that the challenge lawyer’s explanation was a mere pretext for discrimination.
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2. Plaintiff sues driver for negligence and also sues the driver’s employer under master-servant theory of liability in district court. The employer has asserted the employee driver was not in course and scope. How should the court award peremptory challenges?
Each party in district court is entitled to 6 peremptory challenges. When defendants are antagonistic on a jury question (here course and scope) they are entitled to six each. The plaintiff may file a motion to equalize and obtain more than six so that no side will have an unfair advantage.
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3. Assume the court allows each defendant six peremptory challenges. Can the plaintiff properly object that the defendants must make their challenges (strikes) separately? Explain fully.
No. Ds may consult with each other and cooperate in making their strikes.
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In a breach of contract case, the plaintiff asserts the defendant used inferior paint in painting his home. During voir dire, a prospective juror states that the defendant in the case also painted his home and used inferior paint, but he could be fair. As the defendant’s attorney, explain what steps should you take in challenging the juror? Explain fully.
Challenge the juror for cause on the ground that he is biased or prejudiced against your client. Since the juror said he could be fair, further questions will be necessary to determine if the juror could be fair and objective.
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Invoking "The Rule"
At the request of a party, or on the court’s own motion, the witnesses may be placed under the rule. The witnesses are sworn in, instructed by the court not to speak to anyone about this case other than the attorneys without permission, and removed from the courtroom. The purpose is to prevent educating a witness by hearing another’s testimony.
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Who is exempt from The Rule?
A party who is a natural person or their spouse (present spouse, not past); an officer or employee of a party that is not a natural person and who is designated as a representative by its attorney; and a person whose presence is shown by a party to be essential to the presentation of his cause. The latter includes most experts, but experts are not automatically exempt.
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What if a non-exempt witness violates The Rule?
the court may disallow the testimony entirely, allow the witness to testify but exclude the tainted testimony, hold the witness in contempt, or any combination thereof.
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Directed (Instructed) Verdict
A directed verdict is used by a party during trial to assert there is no evidence on some issue of the opponent’s case or that some issue in its case has been conclusively proved. It may be on part (partial directed verdict) or the entire case. The summary judgment (prior to trial) and judgment n.o.v. (after a jury verdict) are similar in nature. The trial court may grant a directed verdict on its own motion, but may not grant a summary judgment or judgment n.o.v. on its own motion.
The defendant may move for the first time after the plaintiff rests, and the plaintiff may move for the first time after the defendant rests. If the defendant’s motion is denied, the defendant has two choices. It may stand on the motion and not present evidence or the defendant may put on its case in chief.
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You sue the manufacturer of a power saw, asserting it was defectively designed. You want to offer into evidence that the saw was re-designed because of the defect. Defendant objects, asserting it is not relevant and would discourage companies from correcting problems and is highly prejudicial. How should the court rule and why?
Disallow the evidence. Our rules of evidence (407) provide that subsequent remedial measures is not admissible to prove defects. An exception is in a suit for strict liability.
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You represent the plaintiff, and the defendant has introduced part of a writing into evidence. You desire to introduce the rest of the writing into evidence. May you do so, and on what basis?
Yes. Under the doctrine of optional completeness, you may at that time introduce the rest of the writing, which in fairness should be considered contemporaneously with it.
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You represent the defendant in a personal injury case. You call Bob to the stand who will testify that his wife, Jill, overheard a conversation where the plaintiff admitted he was at fault. Can Bob testify? Why or why not? Discuss fully.
No. Bob’s testimony is hearsay. Both the statement by the plaintiff and Jill are admissible only if each statement is not hearsay or within a hearsay exception. Jill could testify about what she heard the plaintiff state since it is an admission, but Bob’s testimony is hearsay and there is no exception.
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Describe the steps to impeach a witness based upon contrary testimony in a deposition.
First, tell the witness the of the statement, the time, place, and the person to whom it was made (here the deposition – show the witness the deposition transcript). The witness must be given an opportunity to explain or deny the statement
First, tell the witness the contents of the statement, the time, place, and the person to whom it was made (here the deposition – show the witness the deposition transcript). The witness must be given an opportunity to explain or deny the statement
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You represent the defendant and on cross examination of your client, he is asked whether he had liability insurance. What objection should you make and what result?
Your objection is that Rule 411 provides that evidence that a party was or was not insured against liability is not admissible to prove the party acted negligently or otherwise wrongfully. The court should sustain your objection.
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If a trial court disallows y our evidence at trial, what must you do to preserve error?
Make an offer of proof by giving the court the substance of your evidence or by question and answer outside the presence of the jury.
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During voir dire, plaintiff’s counsel suggests that your client, the defendant, offered to pay all medical expenses and therefore admitting his negligence in this personal injury case. How would you proceed? Is there any motion you could file to avoid this problem? Explain fully.
I would object. Our rules of evidence provide that evidence of an offer to pay medical bills is not admissible to prove liability. I would file a motion in limine before trial to avoid the problem.
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Assume you file a motion in limine at a pre trial conference asserting that a prior felony offense of your client, the defendant, is too remote. The motion is granted. During voir dire, the plaintiff’s attorney asserts that the defendant is a felon. You object that the plaintiff is violating the ruling on the motion in limine. The court says to the plaintiff’s attorney to keep the case moving.
a. Does the ruling granting the motion in limine preserve error during voir dire?
b. Assume you fail to object during trial when the plaintiff asks your client about the felony. You lose the case and file a motion for new trial asserting the plaintiff violated the motion in limine ruling and the evidence was not admissible. The trial court denies your motion and you appeal. How should the appellate court rule on this issue and why?
a. No. The ruling on a motion in limine is only a preliminary ruling, and is not a ruling that admits or excludes evidence. It is the ruling at trial (here, during voir dire) which preserves error.
b. Deny it. You failed to object during trial to the evidence being offered and thereby waived any complaint.
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D calls police officer to stand and asks officer if he gave D any traffic citations. P's attorney objects before an answer is given by th eofficer. How should the court rule and why?
Sustain. This is not relevant. Traffic citations are conclusions by the officer and are for the criminal side of the docket.
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You represent the plaintiff and desire to prove your client’s medical bills by affidavit. Detail
the necessary steps you must take at trial to offer the bills into evidence.
Introduce the affidavit of the custodian of the records which must state that (1) the attached records were made at or near the time; (2) by, or from information transmitted by, a person with knowledge, and (3) kept in the course of a regularly conducted business activity, and (4) it was the regular practice of that business to make the records (medical bills).
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What factors must a court consider in determining the admissibility of expert opinion testimony?
(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has generally been accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique.
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Explain our rules relating to impeachment by prior felony convictions or misdemeanors.
Only felony convictions or misdemeanors involving moral turpitude (not DWI) may be used to impeach a witness. Our rules provide convictions more than 10 years since the date of conviction or release are not admissible unless the probative value of the conviction substantially outweighs its prejudicial effect. Traffic violations are not admissible.
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Assume you represent the plaintiff in a slip and fall case. Your client was told by an employee of the defendant who witnessed the fall that he was aware there was water on the floor for a long period of time, but was too busy to clean it up. Can this statement be used against the employer? Discuss fully.
Yes. Although this would be objected to as hearsay, it is an admission by a party opponent. The statement of a party’s employee is admissible when offered against the party so long as the statement concerned a matter within the scope of the employment and made during the existence of the employment relationship.
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Plaintiff sends a letter to defendant offering to settle a personal injury lawsuit for a sum which is substantially less then what the petition alleges. The offer is rejected by the defendant. During trial, plaintiff asserts damages greatly exceeding the amount in the letter. May the defendant offer the letter at trial? Discuss fully.
No. Settlement negotiations and communications are not admissible.
127
You represent the plaintiff in a personal injury case. You call the defendant as your first witness. The defendant objects asserting you must call your client and witnesses first to lay a foundation for claims against the defendant. How should the court rule and why? Explain fully.
Overrule the objection. The plaintiff has the right to call any witness to testify in regards to the facts, including the defendant, in presenting its case.
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During trial, Defendant moves to admit into evidence a certified copy of the report of a sheriff’s deputy. A co-Defendant objects to the admission of the report on the basis that it was not properly authenticated. How should the Court rule on the objection?
Overrule the objection. Certified copies of an official record or report or entry, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office is self-authenticating and requires no extrinsic evidence of authenticity.
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During opening statement of a personal injury case, the Plaintiff’s attorney shows the jury a gruesome photograph depicting the Plaintiff’s severe injuries sustained by the Plaintiff. The Defendant’s attorney objects after the conclusion of Plaintiff’s opening statement. How should the Court rule on Defendant’s objection to the photograph?
Overrule the Objection. Also, the objection shoul dhave been raised as soon as the photo was displayed
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Jury Charge: Basic Process
The basic process is as follows: After all the evidence is presented, the charge is prepared by the court and/or the attorneys. Generally the attorneys submit to the court what they want in the charge and an informal discussion of these matters takes place. The court then decides what will be in the charge and draws the charge up and submits it to the attorneys for their objections. It is at this time the attorneys make their objections for the record. After all objections are made and ruled upon, the charge is read aloud by the trial judge to the jury and argument follows. Many courts allow each juror to have their own copy of the court’s charge.
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Jury Charge: 2 Parts
(1) One part are the questions, and (2) the other part are the definitions and instructions. The questions are the plaintiff's grounds of recovery and the defendant's defenses. Definitions are to enable the jury to answer the questions. The instructions are rules the jury is to follow during deliberations.
Jury questions, instructions, and definitions must be based upon written pleadings and evidence. This means that a party may object to the lack of written pleadings, but trial amendments may be allowed on those matters tried by consent. This occurs where there is no objection to evidence on unplead matters.
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Jury Charge: How are objections to be formatted?
In writing or dictated to the court reporter in the presence of the court and opposing counsel before the charege is read to the jury if the complaint is in regards to something submitted but defective, but omissions must be in????
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Submitted But Defective
8. SUBMITTED BUT DEFECTIVE. As previously noted, the objections must be timely and correctly presented. One rule deals with questions, instructions, and definitions that are submitted, but defective in some manner. Unlike omissions (discussed below), it does NOT matter whose question, instruction, or definition it belongs to. You must specifically object, pointing out the defect or it is waived. In summary - SPECIFICALLY OBJECT AND OBTAIN A RULING.
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To properly preserve an omitted jury question:
a. If the omitted question is yours (i.e., you are relying upon it), then you must OBJECT TO ITS OMISSION, REQUEST A SUBMISSION AND TENDER IN WRITING A SUBSTANTIALLY CORRECTLY WORDED QUESTION, AND OBTAIN A RULING.
b. If the omitted question is your opponent's ( i.e., your opponent is relying upon it), then you may either:
1. OBJECT TO ITS OMISSION AND OBTAIN A RULING; OR
2. OBJECT TO ITS OMISSION, REQUEST A SUBMISSION AND TENDER IN WRITING A SUBSTANTIALLY CORRECTLY WORDED QUESTION, AND OBTAIN A RULING.
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To properly preserve an omitted instruction or definition:
If there is an omitted instruction or definition, regardless of who is relying upon it, then you must OBJECT TO ITS OMISSION, REQUEST A SUBMISSION AND TENDER IN WRITING A SUBSTANTIALLY CORRECTLY WORDED INSTRUCTION OR DEFINITION, AND OBTAIN A RULING.
136
Plaintiff sues defendant for personal injuries received in an automobile accident. Plaintiff alleges that defendant was negligent by failing to keep a proper lookout. During trial, plaintiff introduces testimony, without objection, that defendant failed to timely apply the brakes. The court’s charge includes the questions of the defendant failing to timely apply the brakes.
a. As the attorney for defendant, what objections, if any, can be made to the charge?
b. How should the court rule on defendant’s objection to the charge?
c. Assume the court sustains the objection, what should the plaintiff do now and how should the court rule?
a. No written pleadings to support brake question
b. Sustain
c. Seek a trial amendment which the court should allow. Trial amendments must be allowed unless it adds a new cause of action or the defendant is surprised or prejudiced in his defense. This is not a new cause of action and the defendant can hardly claim surprise since he failed to object during the testimony.
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You represent the defendant in a slip and fall case where the plaintiff has fallen in a hole in the defendant’s parking lot. The plaintiff has submitted a question alleging the elements of a slip and fall case. You believe one of the elements is improperly worded in the question. How do you properly preserve this complaint to the jury charge?
Make the complaint before the charge is read to the jury.
Your objection must be specific pointing out the problem in the question. This must be either in writing or dictated to the court reporter in front of the judge and opposing counsel. [ILLUSTRATES SUBMITTED BUT DEFECTIVE]
138
In a suit for breach of contract, you realize the court has failed to define a legal term (market
value) used in your opponent’s jury question. How do you preserve error?
Object to the omission and request a submission by tendering in writing a substantially correctly worded definition of market value and obtain a ruling [ILLUSTRATES AN OMITTED DEFINITION]
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When does the court have to make the rulings on objections to the charge and how should they be made part of the record?
The court must rule before the charge is read to the jury. If the objections are in writing, the court is to endorse the ruling thereon and sign it officially. If the objections are dictated to the court reporter, then the court is to dictate the rulings to the court reporter.
140
If a party makes an improper jury argument, how should you proceed? Explain fully.
Improper argument requires you to make a prompt objection and, if sustained, request the court to instruct the jury to disregard or seek a mistrial. Some matters are not curable and need not be objected to during the argument but asserted later in a motion for new trial.
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Jury Deliberation and Verdicts
Only 10 in a 12-person jury, or 5 in a 6-person jury must agree for the verdict to be effective. The verdict does not have to be unanimous. If the verdict is unanimous, then it is signed only by the presiding juror. If less than 12 or 6, then each concurring juror must sign.
In a 12 person jury, up to 3 jurors who are unable to continue their duties as a juror because of a physical or mental disability may be excused and the remaining jurors may continue even over an objection. If you lose one, the verdict could be 11-0 or 10-1; if you lose 2 or 3 the verdict must be unanimous. If you lose 4, a mistrial is required if any party objects.
Jurors may only testify about possible jury misconduct that occurs during deliberation when there is outside influence brought to bear upon any juror. That is, influence from someone that is not a juror. Anything that is discussed during deliberations by the jurors cannot be considered by the court and cannot form the basis of juror misconduct. If the misconduct occurred when the jury was deliberating, then the juror may testify without reservation. Non- jurors may testify about alleged misconduct whether it occurred before or during deliberation. All admissible testimony is subject to the rules of evidence. A party should file a motion for mistrial if this is learned before verdict and a motion for new trial if learned after verdict. The motion should be granted if the misconduct concerned a material issue in the case which resulted in harm to a party.
If the jury disagrees with what a witness testified to, the court may have the court reporter read back that testimony.
Once the jury returns a verdict, any party can seek a jury poll. This is done by either the court or clerk asking each juror by name if this is his/her verdict. If any juror now disagrees, the jury is retired for further deliberations.
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More Jury Rules
Once the jury returns a verdict, any party can seek a jury poll. This is done by either the court or clerk asking each juror by name if this is his/her verdict. If any juror now disagrees, the jury is retired for further deliberations. (3)
If the jury returns a verdict with unanswered questions they were supposed to answer, the court should point this out and have them retire for further deliberation. If the jury is deadlocked and unable to answer a question(s), the court should grant a mistrial unless the unanswered questions would not change the verdict. (3)
If the jury returns a verdict and a party thinks there is a conflict between two answers in the
jury’s verdict, the party should object prior to jury being dismissed. (1)
If the jury informs the court it is deadlocked, the court should give them supplemental instructions which are referred to as verdict urging instructions (Allen charge/dynamite charges) which are not coercive. (1)
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Nonsuits
The plaintiff has an absolute right to nonsuit or dismiss his case until he rests, thereafter it is within the court’s discretion. A nonsuit granted without prejudice will allow the plaintiff to file the case again if the statute of limitations has not run
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Moving for Judgment on the Verdict
Either party may move for a judgment on the verdict. Where the parties have stipulated prior to trial to certain damages, but the jury returns a higher amount, the jury finding controls over the amount stipulated by the parties if no party objected to the question going to the jury. This simply means that a party may waive a stipulation by not objecting to the jury question.
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Motions for New Trial (factual insufficiency)
1. The motion must be filed within 30 days after the judgment is signed.
2. Rule 324 provides that a motion for new trial is NOT NECESSARY UNLESS: (one exam asked you to give two examples)
a. It is a complaint upon which evidence must be heard such as jury misconduct or newly discovered evidence, or failure to set aside a judgment by default; or (2)
b. It is a complaint of factual insufficiency of the evidence to support a jury finding; or
c. It is a complaint that a jury finding is against the overwhelming weight of the evidence; or
d. It is a complaint of the inadequacy or excessiveness of the damages found by the jury; or
(seven exams on excessive verdicts–see question 1 below)
e. Incurable jury argument if not otherwise ruled upon by the trial court.
3. The trial court has plenary power to set aside its judgments 30 days after the judgment is signed if no timely post-judgment motion such as a motion for new trial is filed, or if one is timely filed, then 30 days after the motion is overruled by a written signed order, or by operation of law 75 days after the signed judgment if there is no ruling, whichever occurs first. The oral granting or denying is not effective. Plenary power means the power of the trial court to set aside its judgment. Once the plenary power expires, the judgment is final and the court may not set aside its judgment except by a bill of review.
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Judgments NOV (legal insufficiency)
Any time after the jury verdict but before the court loses plenary power, any party can move the court for a judgment n.o.v. asserting there is no evidence to support a jury finding, or that some issue has been conclusively proven as a matter of law. It may be granted even after the trial court denies a directed verdict asserting no evidence or conclusive evidence. A party is not required to file a directed verdict before seeking a judgment nov. (13)
A Motion to Disregard the Jury Findings requests that the court disregard only some of the jury answers and to sign a judgment on the remaining ones (a JNOV asks the trial court to disregard all the jury findings and to sign a judgment contrary to the jury findings).
147
The plaintiff has alleged damages totaling $100,000. During closing argument, plaintiff argues the evidence supports a verdict of $20,000. The jury returns a verdict of $50,000, and a judgment is entered on the verdict. How should the defendant proceed if it believes the verdict is excessive in the amount of $30,000? Explain fully.
The defendant must file a motion for new trial seeking a remittitur (that is, allowing the judge to reduce the award). The defendant’s complaint is that the verdict is excessive and not supported by the evidence. If the trial court agrees the verdict is excessive, it will suggest a remittitur to the plaintiff, and if the plaintiff agrees, the judgment will be reduced, if not, the trial court will grant a new trial.
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2. Give two ways a defendant can prevent execution of a judgment pending appeal.
The defendant can file a supersedeas bond or seek an agreement with the plaintiff not to execute. This agreement should conform to Rule 11 agreements by making it in open court and of record or by filing a written agreement with the trial clerk.
149
During deliberations, the presiding juror was rude and demanding with other jurors. He suggested that the defendant had been drinking even though there was no evidence to support the statement, and that the plaintiff was entitled to more money than requested. The jury returns a substantial amount over what the plaintiff requested. The defendant learns of the statements by the presiding juror when talking to the jurors after they were discharged. Defendant files a motion for new trial asserting only jury misconduct, and attaches several affidavits by other jurors supporting the motion. At the hearing on the motion for new trial, these same jurors testified at what occurred during deliberations. How should the court rule and why? Discuss fully.
Deny the motion. Jurors may not testify and the court cannot consider anything a juror states during deliberations. Only outside influence brought to bear (something outside the jury) may be considered. A juror himself cannot be an outside influence.
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ADR
1. A party may request the trial court to send the case to Alternative Dispute Resolution (“ADR.”) The trial court may also refer a case to ADR on its own motion at any time. Whether on request by a party or on its own motion, the court must give all parties at least 10 days notice, and any party who objects must do so within 10 days of the referral
2. Although the court cannot force a party to negotiate in good faith, it has the power to sanction a party who refuses to participate in ADR. (3)
3. The court may set a reasonable fee for the services of a mediator and unless otherwise agreed to by the parties, the court can tax the amount as costs of court. Thus, whoever is required to pay the costs of suit will be required to pay the mediator. (1)
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ADR: Confidential Communications
A mediator may not be compelled to disclose any confidential communications given by any party without permission from the party
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During a mediation before trial, the plaintiff told the mediator that he would accept less than they would seek at trial. The case did not settle and during trial, the defendant called the mediator to testify about this issue. What objection should plaintiff make and what should the ruling be?
The objection is that all communications made by a participant concerning the subject matter of the dispute is confidential and may not be used against the plaintiff during trial. The objection should be sustained.
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6. Plaintiff sues defendant for breach of contract in district court. The defendant wants to assert the arbitration agreement found in the contract. How should the defendant proceed? Explain fully.
File a motion to compel with the trial court seeking to have the case submitted for arbitration pursuant to the contract. The court should order the parties into arbitration.
