2015

Question 1

When must D’s file answers to avoid entry of a default judgement following P’s proper filing?

Answer 1

D’s must file their written answers by 10 am on the first Monday following the expiration of 20 days from date of service.

Question 2

Does D have a valid basis for removing a case to federal court based on diversity of citizenship where D and P are citizens of the same state?

Answer 2

D does not have a valid basis for removing case to federal court based on diversity because both P and D were citizens of Texas hence complete diversity does not exist.

Question 3

What pleading must D file to present his objection to the case proceeding in a county believed to be improper and when must the pleading be filed?

Answer 3

D must file a motion to transfer venue before or concurrently with any responsive pleading (except a special exception) if he wanted to object to the case proceeding against him in an improper venue.

Question 4

How should P respond to D’s pleading properly filing objection to the case proceeding in an improper venue and how should the court rule?

Answer 4

The court should deny D’s motion to transfer and P should respond to D’s motion with affidavits and other proof establishing venue in the proper county. Venue is proper where all or a substantial part of the events giving rise to P’s claim arose in that county.

Question 5

What pleading should D file to require P to replead case with more definite and specific factual allegations and what is the effect of failing to file such a pleading?

Answer 5

D should file a special exception pointing out that P’s petition is vague. Failure to file the special exception would result in a waiver of any defect in the petition.

Question 6

What are 5 categories of information or documents that P may request from D’s in request for disclosure?

Answer 6

Find 5 categories of info that could be requested pursuant to TRoCP 194.2*

Question 7

What action should P take to bring D’s objection to the court’s attention and how should the court rule where P believes insurance coverage is relevant?

Answer 7

P should file a motion to compel D to provide its insurance coverage info and request a hearing. Court should grant the motion. TRoCP 192 do not permit objections to requests for disclosure.

Question 8

How can P preserve privilege where D requests documents P believes call for production of privileged material?

Answer 8

P should preserve privilege to requested documents by asserting the privilege. P should serve D with a withholding statement that states P is withholding information responsive to the request and identified the request to which the information related, and identified the privilege asserted.

Question 9

How should court rule on D’s objection where D’s attorney took a recorded statement of his and D objects on the basis of attorney work-product privilege and argues P can get the same info by taking D’s deposition?

Answer 9

The court should overrule D’s objection to P’s request for D’s recorded statement. Party may obtain discovery of any statement by a person with knowledge of relevant facts.

Question 10

What pleading should D file to resit deposition of its president?

Answer 10

D should file a motion for a protective order or quash the deposition of its president. This is an Apex deposition. D’s motion should be accompanied by an affidavit from its president denying any personal knowledge or relevant facts.

Question 11

How can D obtain information about opinions of P’s expert where expert is to testify at trial but does not prepare a written report.

Answer 11

D could depose P’s expert. D could also serve P with a request for disclosure seeking the expert’s mental impressions and opinions and a summary of the basis for them as well as any data compilations.

Question 12

What is the effect of D’s response denying the request for admission 35 days after a request was served?

Answer 12

D’s untimely response to P’s request would result in deemed admissions. D could change this result by filing a motion to withdraw admissions. D must show good cause and that the party relying on the admission would not be unduly prejudiced by the withdrawal.

Question 13

What objections may be made to questions asked during P’s deposition and what objections may be made to P’s testimony during the deposition?

Answer 13

Objections to depositions questions are limited to objection leading, objection form, and only permissible objection to answers is “objection non-responsive”.

Question 14

What pleading should D file to bring matter of changes in D’s business protocols from being presented to the jury and how should the court rule?

Answer 14

D should file a motion in limine to prevent disclosure of changed policies/procedures and court should grant motion/exclude the evidence. Evidence subsequent remedial measures is inadmissible to prove negligence or culpable conduct.

Question 15

How can D keep information about prior convictions of driving while intoxicated 10 years before the accident from the jury panel and what must be shown to accomplish this?

Answer 15

D should file a motion in limine to prevent disclosure of DWI. D has to establish such evidence is unfairly prejudicial to him and such evidence must be established irrelevant.

Question 16

What procedural steps should D take to challenge a potential juror who may be prejudicial?

Answer 16

D should challenge the potential juror for cause based on bias or prejudice. Additional voir dire questions could be asked to determine if the juror could be fair.

Question 17

How should court rule on D’s objections where P should first lay a foundation for claims against D before any D is required to testify?

Answer 17

Court should overrule the objection to P calling D as his first witness as P need not testify first or lay a foundation before calling a witness and may call his witness including an adverse witness in any order.

Question 18

How should court rule on D’s objection where D spoke to a state trooper at the scene of the accident and D objects on the basis of hearsay?

Answer 18

Court should deny D’s objection to a state trooper’s testimony where D’s statement was either an admission of a party opponent or an excited utterance which are hearsay exceptions.

Question 19

What can a court do to help resolve jurors disagreements about D’s testimony?

Answer 19

Court could allow the court reporter to read notes from the disputed portion of D’s testimony to the jury. If notes are unavailable, court could call D back to the stand to repeat the disputed testimony in the same language used at trial.

Question 20

What pleading should D file to challenge a jury’s damage award where D believes the amount of damages awarded are not supported by the evidence?

Answer 20

D could move for JNOV and could also seek a remittitur.

Question 21

What responsive pleading must D file to contest personal jurisdiction and when must it file such pleading?

Answer 21

D must file a verified special appearance prior to any other pleading, plea, or motion.

Question 22

What pleading must D file to object to the case proceeding against it in an improper venue and when must the pleading be filed?

Answer 22

D must file motion to transfer venue prior to or concurrent with any other motion.

Question 23

What pleading should D file to require P to state amount of damages that he seeks and what should the pleading request?

Answer 23

D should file special exceptions asking P be ordered to state the specific amount of damages being sought.

Question 24

What are 5 categories of info or materials P may request from D and C in request for disclosure.

Answer 24

Find 5 categoriess of info or materials*

Question 25

Is D under obligation to disclose additional witnesses where D discoveres it failed to disclose two of its employees who witnessed the accident and, if so, when must D do it?

Answer 25

Party must amend or supplement a discovery response when it learns the response is no longer correct or complete. Such an amendment or supplement must be made reasonably promptly and no less than 30 days before trial.

Question 26

What type of discovery request can P serve on D in order to obtain access to materials for inspection and testing, and what details must the request set out?

Answer 26

P should file a request for production and inspection of the materials. Because tests were intended, P must indicate the method to be used and the manner, means, and procedure for testing.

Question 27

What is the effect of D’s response and what if anything must D do to amend its response where D serves P with a response denying a matter 35 days after the request for admission is served?

Answer 27

D’s untimely response to request for admissions results in deemed admissions. D must file a motion to withdraw the deemed admissions and show both good cause for the failure to timely respond and that P would not be unduly prejudiced by the withdrawal.

Question 28

How should the court rule on the objections of D to P’s attempt to move the case to the jury docket 50 days before trial where P requests a jury trial and pays a jury fee and also where P failed to request a jury trial in his original petition?

Answer 28

Objections to P’s request for a jury trial should be overfuled. P had only to file his jury request and pay the fee a reasonable time before trial but not less than 30 days before the trial date.

Question 29

What remedies may P request from the court and how should the court rule on those requests where D makes repeated objections suggesting how an employee should respond and asserts P’s questions call for hearsay testimony?

Answer 29

P could suspend the deposition and request a protective order and sanctions. Court should grant the request. Only objections to questions during an oral deposition are limited to objection, leading and objection, form.

Question 30

What motion or motions should D file in order to be dismissed from the case and what must D assert? What documents should be attached to support said motion or motions?

Answer 30

D should file a no-evidence and traditional motion for summary judgement. Expert’s deposition or affidavit should be attached to the traditional motion for summary judgement.

Question 31

What must P do to exclude witnesses from the courtroom and what instructions must court give the witnesses?

Answer 31

P should invoke “the rule” and request the judge order testifying witnesses be excluded from the courtroom. Court should swear in the witnesses before excluding them from the courtroom. Witnesses should be instructed not to speak to anyone except the lawyers about the case.

Question 32

How can P keep the defendants from discussing the arrest during jury selection, and what must P show?

Answer 32

P should file a motion in limine to prevent discussion of drunk driving arrest. P should establish the probative value of the evidence would be substantially outweight by the danger of unfair prejudice. P could also establish why the evidence is irrelevant.

Question 33

What can D do to try to keep a biased jury from serving on the jury?

Answer 33

D could move to strike the biased juror for casue on the basis of prejudice. D’s motion to strike for cause may be denied in which case he could use a peremptory strike.

Question 34

What steps must P take before impeaching a witness with previous testimony different from what was said in deposition?

Answer 34

P must show witness the contents of previous testimony and the time, place, and to whom the testimony was made. Witness should be given an opportunity to explain or deny the testimony.

Question 35

What must D show the court before the witness will be permitted to testify when the witness was not identified in any of D’s discovery responses?

Answer 35

D must show either good cause for failure to list the witness in its discovery responses or that its failure to do so would not unfairly prejudice P.

Question 36

How should the court rule on D’s objection of employees response following an accident as hearsay?

Answer 36

Court should overrule D’s objection to the driver’s testimony. 3 possible hearsay exceptions as an excited utterance, admission by a party opponent, and/or a statement against against interest.

Question 37

How should the court rule on D’s objection where other D failed to properly authenticate a report?

Answer 37

Court should overrule D’s objection to the report. Objection should be overruled because a certified copy of an official record is self-authenticated.

Question 38

How can D raise issue with the court at the current state of the proceedings where P’s rested his case and D contends that the evidence is insufficient to support a verdict for P against D?

Answer 38

D should file a motion for directed verdict after P rested his case. D could renew the motion after it rested and again after close of evidence.

Question 39

What can be done to resolve jurors disagreements in jury deliberations about the substance of a statement made by one of the witnesses who testified at trial?

Answer 39

Jury could have the testimony read to them from the court reporter’s notes, or if the notes could not be read, trial court could recall the witness to repeat the testimony in dispute.

Question 40

How can D raise matter with the court and when must D raise it where jury returns a verdict in favor of P against D and D contends the jury’s verdict against it was not supported by the evidence?

Answer 40

D could file a motion for judgement notwithstanding the verdict. D could also file a motion a motion for new trial. Either motion should be filed within 30 days of the date the judgement is signed.