2016

Question 1

What must D file in its answer to avoid entry of a default judgement against it?

Answer 1

D has to file its written answer by 10 am on the first Monday following the expiration of 20 days from the date of service.

Question 2

How does D have a valid basis for removing a case to federal court based on diversity citizenship?

Answer 2

D has a valid basis to remove case to federal court based on diversity of citizenship if P and D were citizens of different states. Removal is also proper if the amount in controversy exceeds 75k.

Question 3

What pleading must D file to seek to move case to another county and when must pleading be filed?

Answer 3

D is required too file motion to transfer venue before or concurrently with any responsive pleading (except a special appearance) if D wants to move case to another county.

Question 4

How should court rule on D’s pleading requesting to transfer to another county where P properly responds to the pleading?

Answer 4

Court should grant D’s motion to transfer if all or substantial parts of the events/omissions giving rise to the claims occurred in D’s pleaded county. If venue is proper in D’s pleaded county, the venue provision permitting suit in P’s county of residence does not apply.

Question 5

What pleading should D file to bring to court’s attention the issue of P’s original petition failing to state the maximum amount of money P seeks to recover? What relief if any is D entitled to obtain?

Answer 5

D should file a special exception pointing out the defect in P’s p petition. D would be entitled to an order compelling P to amend its petition to state the maximum amount of damages sought.

Question 6

List 5 forms of discovery available to D to obtain information regarding the facts and circumstances underlying P’s claims.

Answer 6

1. Request for Disclosure.
2. Request for production.
3. Request for admission.
4. Interrogatories.
5. Oral Depositions.
6. Written Depositions.
7. Physical/Mental Examination.
8. Request for entry upon and examination of real property.

Question 7

How does P timely object and respond to interrogatories?

Answer 7

P’s response to D’s interrogatories is timely if when service of discovery is accomplished by mail, 3 days are added to the 30 day response period.

Question 8

What action must P’s attorney take in order to preserve privilege regarding a letter from D’s attorney demanding P’s attorney immediately identify documents withheld under claim of attorney-client privilege?

Answer 8

P should respond to D’s request that privileged documents be identified by serving a response that describes the info/material withheld and asserts a specific privilege to each. Such response should be served within 15 days of D’s request.

Question 9

What must D take in order to join another potential D to a lawsuit?

Answer 9

D should file a third party petition and citation on potential D to add it to the lawsuit. If more than 30 days had elapsed since D filed its answer, D also had to file a motion for leave to add potential D.

Question 10

What pleading should D file to resist producint its president for deposition?

Answer 10

D must file motion for a porotective order or motion to quash the deposition of its president. Motion must be accompanied by the president’s affidavit denying personal knowledge or relevant facts. This is called an Apex deposition.

Question 11

How should the court rule on D’s objections to interrogatories and requests for production seeking info about D’s expert opinions who is to testify at trial regarding a matter?

Answer 11

Trial should sustain D’s objections to P’s interrogatories and requests for productions seeking info on D’s expert as the proper forms for such discovery are requests for disclosure, written reports, and depositions.

Question 12

What is the effect of D’s failure to respond to certain facts after P’s request for admission?

Answer 12

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

Question 13

Is P’s attorney correct regarding rules permitting P to say “objection, form” during deposition where D asks for basis of P’s objection?

Answer 13

P’s attorney is not correct in refusing to provide a basis for the objection to form. Upon request, objecting attorney must give a clear and concise explanation for the basis of its objection.

Question 14

Is P entitled to production of reports in electronic form? If so, what action must P take to obtain such production and how must D respond?

Answer 14

P is entitled to D’s reports in electronic form. P must sppecifically request production in e-form and specify the form in which it is to be produced. D must produce responsive information that is reasonably available in the ordinary course of business.

Question 15

What procedural steps can P take to strike a potential juror?

Answer 15

P should challenge potential juror for cause based on bias or prejudice. If the for-cause challenge is unsuccessful, P should use a peremptory challenge to remove the juror.

Question 16

How should court rule on D’s objection to P’s first witness on grounds P should first call its own witness too lay a foundation for P’s claims before any D is required to testify?

Answer 16

Court should overrule D’s objection to P calling a D as its first witness. P need not testify first or lay a foundation before calling a witness, may call its witnesses, including an adverse witness, in any order.

Question 17

How should court rule on an objection of hearsay to a question where P testifies that he talked to D’s supervisor immediately after an accident and P’s attorney asked what the supervisor said?

Answer 17

The court should overrule D’s hearsay objection to P’s asking an employee of defendant what the D’s supervisor said. Employees testimony regarding what the supervisor said is an admission by a party opponent which is not hearsay.

Question 18

What action must P take to introduce evidence and preserve error if evidence is not allowed?

Answer 18

P should approach the bench, outside the jury’s presence and request a final ruling on D’s pre-trial motion in limine. If judge refuses to admit evidence of substance, PP has to make an offer of proof or bill of exception in order to put evidence in record for appellate review.

Question 19

What action should D’s attorney take to bring a matter of factually insufficient evidence on breach of contract claim to court’s attention, how should P’s attorney respond, and how should the court rule on the issue?

Answer 19

D should file a motion for directed verdict. P should resopnd that a directed verdict can only be based on “no evidence” supporting the claim or “conclusive evidence” against the claim, and not on factually insufficient evidence as argued by D. Trial court should deny D’s motion for that reason.

Question 20

How should court rule on D’s timely motion for mistrial on ground the verdict was not unanimous where 10 of 12 jurors sign a verdict?

Answer 20

D’s motion for mistrial should be denied. Verdict can be rendered in district court by 10 of 12 jurors.

Question 21

In which counties can P’s suit be properly filed?

Answer 21

Suit could be filed in D’s place of residence, where the accident occurred, and if D is a company, its principal place of business.

Question 22

What pleading must D’s file if they want to challenge venue and when must they file it?

Answer 22

Motion to transfer is the proper venue pleading and must be done as a special appearance to avoid waiving improper venue.

Question 23

What 5 matters can a court require the parties consider at a pretrial conference?

Answer 23

List of 5 matters that could be considered at a pretrial conference*

Question 24

List 5 forms of discovery permitted under the TRoCP.

Answer 24

1. Request for Disclosure.
2. Request for production.
3. Request for admission.
4. Interrogatories.
5. Oral Depositions.
6. Written Depositions.
7. Physical/Mental Examination.
8. Request for entry upon and examination of real property.

Question 25

How can P properly bring D’s objection to the attention of the court and how should the court rule on that objection?

Answer 25

Filing a motion to compel or setting the objection for hearing is the proper course. *Doesn’t answer how court should rule.

Question 26

How can D obtain medical records from health care providers who treated P for her injuries?

Answer 26

Request for disclosure, request for production or direct subpoena to healthcare providers.

Question 27

Must D raise issue of P’s contributory/comparative negligence conduct before trial, if so, how must D raise it?

Answer 27

Affirmative defense must be pled. It doesn’t have to be raised in the initial pleading.

Question 28

In which counties may P properly notice D’s deposition?

Answer 28

Deposition may be taken in the county of suit. Also in D’s principal place of business.

Question 29

Is court likely to compel D to answer P’s questions regarding conversations and meetings had with D’s attorney where D objected to P’s questions and P filed a motion requesting the court to compel D to answer P’s questions?

Answer 29

Attorney client privilege applies to conversations between D’s lawyer and D’s employees.

Question 30

What must P do to ensure she gets a jury trial and when must she do it?

Answer 30

P must make a written demand/request for jury trial and must be made 30 days before trial and the jury fee must also be paid.

Question 31

What must P do and show to avoid going to trial where P’s primary liability expert is not available to testify at trial?

Answer 31

Motion for continuance is the proper pleading and a requirement of showing materiality of the testimony is necessary.

Question 32

What action can D’s take to independently verify the extent of P’s injuries and when must they take it?

Answer 32

D must file a motion to compel independnet medical examination and has 30 days before the end of the discovery period and there is a good cause requirement.

Question 33

What procedural step should P’s attorney take to challenge a striking of all female venire persons?

Answer 33

P’s attorney should make a Batson challenge and must be made before the jury is empaneled.

Question 34

How should the court rule on D’s objection after P’s opening statement to a photograph showing the jury a gruesome image depicting the severe injuries P sustained in an accident?

Answer 34

The court should overrule the objection as it was not timely asserted.

Question 35

How should court rule on D’s objection to a witness who made himself known after the first day of trial?

Answer 35

Witness would likely be permitted to testify should unfair prejudice or surprise element not apply to D.

Question 36

How should court rule on D’s hearsay objection where D spoke to P after the accident?

Answer 36

Statement would come in as an admission by party opponent, excited utterance or present sense impression. Admission is not hearsay under the rules whereas the other two are exceptions to the hearsay rule.

Question 37

What procedural steps should D take to raise the issue of an experts qualifications to testify about a substantive matter?

Answer 37

D must object to the expert’s qualifications before the witness testifies and must examine the witness on voir dire if the objection is overruled.

Question 38

What procedural steps must D take to properly preserve error regarding an omitted instruction at the conclusion of evidence and the judge has submitted a final charge to the parties for review?

Answer 38

D must object to the omission and get a ruling and is required to submit a substantially correct instruction to the court for ruling before the charge is read to the jury.

Question 39

How should the court rule on D’s objection where D believes there is a conflict between two of the answers in the jury’s verdict?

Answer 39

The objection would not be timely because it was not made before the court discharged the jury.

Question 40

What procedural steps should D take to bring a jury foreman’s conduct to the attention of the court where the jury foreman had a text conversation with his brother, a lawyer, about how certain answers on the charge would affect the verdict?

Answer 40

A motion for new trial for jury misconduct is the proper procedural step.