Atty's Fees, Motion, Objections, IP, Bankruptcy, E Filing Flashcards
What is the name of the current federal bankruptcy law?
Bankruptcy Abuse Prevention & Consumer Protection Act of 2005
Bankruptcy liquidation is found in ___ of the Bankruptcy Code
Chapter 7
If a business wants to file for bankruptcy to allow it to reorganize and emerge as a going business, it would file under
Chapter 11
The rehabilitation form of bankruptcy that can be filed by an individual is found in __ of the Bankruptcy Code.
Chapter 13
What does the 2005 Act require an individual filing for bankruptcy to receive before it files a petition?
Pre-Petition Counseling
If an attorney represents a debtor in a bankruptcy proceeding, and the information in one of the schedules is wrong, what kind of punitive measures can be ordered against the attorney by the court?
Fined
&
Sanctioned
Property that can be retained by a debtor in a bankruptcy case is called
Exempt Property
In terms of intellectual property law, tell what category of IP does Product formula fall under?
Trade Secrets
In terms of intellectual property law, what category of IP does Movie scripts fall under?
Copyright
In terms of intellectual property law, what category of IP do customer lists fall under?
Trade Secrets
In terms of intellectual property law, tell what category of IP do newspapers fall under?
Copyright
In terms of intellectual property law, tell what category of IP do machines fall under?
Patent
In terms of intellectual property law, tell what category of IP do processes fall under?
Patent
If I steal a trade secret, am i subject to civil penalties, criminal penalties, neither, or both?
Civil penalties
Why was the Court of Appeals for the Federal Circuit in DC created?
To hear patent appeals in order to promote uniformity in patent law
Where must all patent applications be filed?
United States Patent & Trademark Office
How long does a patent last on an article of manufacture?
20 years
GATT stands for
General
Agreement on
Tariffs &
Trade
WTO stands for
World
Trade
Organization
For patents, the U.S. follows the “first to ___” rule.
invent
If I write an opera, do I have to put a C(with circle around it) on it to protect my copyright?
No
Where do I register a copyright?
United
States
Copyright
Office
If I copy a small part of a novel for a paper I’m writing for a college class, am I violating copyright law?
No
What if I use an article by an industrial safety expert for a motion I’m drafting at a law firm. Is that a violation?
Yes
What’s the difference between my copying/using an article written by an auto accident expert and the opinion written by the court in an auto accident case in terms of copyright law?
Opinion of the court is allowed by the Fair Use Doctrine. Auto expert article would be copyright infringement.
DMCA stands for
Digital
Millennium
Copyright
Act
For what period of time is a trademark registration valid?
10 years.
Unlimited renewal every 10 years.
What is the legal significance of putting TM or SM on a mark?
No significance.
What is the most common contract for attorney?
Hourly Fee Agreement
what does the Hourly Fee Agreement include?
- what hourly fee will be
- hourly rates for: paralegals, law clerks and time who is billed
- should be specify the increments
what is the most common increments in billing clients?
6 minute increments because an hour is divided into 10 parts
Pre Litigation Settlement Contingency Percentage
33%
Case Filing Contingency Percentage
40%
Trial Contingency Percentage
45%
50% Rule
Some attorney’s have 50% rule that provides client will get to keep half the award or settlement amount, even if that means some expenses will have to paid by the attorney, rather than the client.
What is the less popular attorney agreements?
Flat Fee Agreement
Flat Fee Agreement
- give client a flat amount
- no billing of hours
- two tiered - this amount if we do this and if we have to go and a little further then it will be this amount
- must include that it terminates after this specific matter
- Criminal defense attorneys use
Contingency Fee Agreement
- attorney doesn’t take anything in advance
- attorney doesn’t get anything unless they win & still has to pay expenses
- if they win they get a percentage
Is there a maximum amount an attorney can charge?
No, they can charge $2K an hour
Statutory Attorney Fee Contracts
- client won’t pay any fees and if attorney wins attorney fees will be awarded
Motion to Dismiss
asks the court to decide that a claim, even if accepted as true, is not one for which the law offers a remedy
___ is an amount of money that the attorney requires the client to pay in anticipation of hours to be billed.
Retainer
Where must unearned fees from a _____ ___ be maintained?
retainer fee
IOLTA account
Definition of a motion
a procedural device to bring a limited, but contested, matter before a court for a decision.
When can motions be made?
They can be made at any point in the proceedings - but it could be regulated by each individual court.
What has the motion to dismiss taken the place of?
Common law demurrer in most modern civil practice
What happens if a motion to dismiss is granted?
the claim is dismissed without any evidence being presented by the other side.
What type of motion asks the court to decide that certain evidence may or may not be presented to the jury at trial?
Motion
in
Limine
Are Motion for Summary Judgment hearings evidentiary or non-evidentiary hearings?
evidentiary hearings
What motion asks the court to decide that the available evidence supports a ruling in favor of the moving party?
Motion
for
Summary
Judgment
What type of contract is where the attorney takes no money upfront and are only paid if they win and court awards attorney fees
Statutory Attorney Fee
What motion asks the court to decide that a claim, even if accepted as true, is not one for which the law offers a remedy?
Motion
to
Dismiss
What does a Motion in Limine address?
generally addresses issues that would be prejudicial for the jury to hear in open court even if the judge instructs the jury to disregard the evidence
What motion asks the court to rule that a party with the burden of proof has not proven the case, and there is no need for the defense to attempt to present evidence?
Motion
for a
Directed
Verdict
Motion in Limine
asks the court to decide that certain evidence may or may not be presented to the jury at trial
What motion is made after the plaintiff has rested its case, and prior to the defense presenting any evidence?
Motion
for a
Directed Verdict
What is the violation for violating a Motion in Limine?
can result in court declaring a mistrial
Motion for Summary Judgment
asks the court to decide that the available evidence supports a ruling in favor of the moving party
Name two types of Dispositive Motions
Motion to Dismiss
Motion for Summary Judgment
What happens if a Motion in Limine is granted?
then evidence regarding it could not be mentioned in front of the jury, without first approaching the judge for permission
Motion for a Directed Verdict
asks the court to rule that a party with the burden of proof has not proven the case, and there is no need for the defense to attempt to present evidence
What motion asks the court to reverse the jury’s verdict on the grounds that the jury could not reasonably have reached such a verdict or is unsupported by the evidence?
Motion for JNOV
or
Motion for Judgment Non Obstante Verdicto
or
Motion for Judgment Not Withstanding the Verdict
When is a Motion for JNOV made?
After the jury’s verdict
Under what Federal rule has the motion for directed verdict and JNOV been replaced?
Rule 50 of the (FRCP) Federal Rules of Civil Procedure
Motion for a New Trial
asks the court to overturn or set aside a court's decision or a jury verdict
Motion for Judgment Non Obstante Verdicto
ask the court to reverse the jury's verdict on the grounds that the jury could not reasonably have reached such a verdict or is unsupported by the evidence
What does a Motion for a New Trial need to be based on?
on vital error in the court’s handling of the trial
such as
- admission or exclusion of key evidence
- an incorrect instruction to the jury
What happens if the court grants a Motion for JNOV?
the court enters a new verdict
What happens if the court grants a Motion for a Directed Verdict?
dismisses the case.
When is a Motion for a New Trial usually done?
is filed within a short time (7 - 30 days)
and
is decided prior to appeal
What motion asks the court to order either the opposing party or a third party to take some action?
Motion to Compel
What has the Motion for directed verdict and the JNOV been replaced with?
Motion for
Judgment
as a
Matter of law
What doe motions to compel usually deal with?
propounded discovery to opposing party or third party believes the discovery responses were insufficient
What are the two names for JNOV
Judgment Non Obstante Verdicto
Judgment Not Withstanding the Verdict
What motion asks the court to postpone or delay a case that has been set for trial?
Motion for Continuance
Motion to Extend
asks the court to extend the deadline by which a document must be filed
Motion to Compel
asks the court to order either the opposing party or a third party to take some action
What motion asks the court to overturn or set aside a court’s decision or a jury verdict?
Motion
for a
New
Trial
What is a Motion for Judgment as a Matter of Law?
It can be made at the close of the opposing party’s evidence
and
“renewed” after the return of the verdict.
When can a Motion for JNOV be used?
in a criminal case only to reverse a guilty verdict
What motion asks the court to transfer a case to another county in Texas?
Motion
to
Transfer
Venue
When is the time to make an objection?
when the objectionable evidence is offered at trial
Motion to Strike Deemed Admissions
asks the court to allow a party to withdraw or amend its deemed admissions
What motion asks the court to allow a party to withdraw or amend its deemed admissions?
Motion to Strike Deemed Admissions
Motion for continuance
asks the court to postpone or delay a case that has been set for trial
What motion asks the court to extend the deadline by which a document must be filed?
Motion to Extend
Motion to Quash
used to challenge defects in the citation or service of process
What are the three types of motions to transfer?
1) . improper county and convenience of the parties and witnesses
2) . local prejudice
3) . consent of the parties
Does a Motion to Quash end the lawsuit?
No, it just simply delays it.
What motion is used to challenge defects in the citation or service of process?
Motion
to
Quash
Motion to Transfer Venue
asks the court to transfer a case to another county in Texas
What are the 2 reasons for objections?
1) . prevent evidence from being introduced and heard by the J&J
2) . preserve the issue for appellate review
Hearsay
an out of court statement
offered to prove
the truth
of the matter asserted
If a leading question is asked on direct, the proper objection is?
“Leading”
or
“Counsel is leading the witness”
If the other lawyer asks long questions that don’t even sound like a question, the proper question is?
Objection: counsel is testifying
If the question will not solicit testimony that has anything to do with the issues before the court, objection is?
Objection: Relevance
If an objection is not made to the evidence, what happens?
any error in its admission is waived.
If the other side tries to introduce tangible evidence without laying the proper predicate, the objection is?
Objection: no foundation
or
Objection: improper predicate
If the other side keeps asking the same question over and over, changing the words a little, the objection to get them to stop is?
“asked and answered”
this is when they themselves have asked and answered the question
If a witness is asked a question and they respond by saying something other than the answer to the question, what objection?
Objection: nonresponsive
If a question is predicated on facts that have not yet been introduced into evidence, the objection is?
Objection: ASSUMES facts not in evidence
MUST BE “ASSUMES” not assumed
What happens if the judge sustains the objection?
will instruct the witness to answer the question
the question will not solicit testimony that has anything to do with the issues before the court
Objection: relevance
Only for Mock Trial
if the sister-in-law gets up and testifies, “I did” that is?
Unfair Extrapolation
When you observe it, (the lawyer really has to be in the witnesses face), the proper objection?
Objection: badgering the witness
If a question is not based on facts, but only on conjecture, the proper objection is?
objection: Speculation
Ex. why do you think she damaged your car? That calls for speculation.
If the answer to a question just tends to go on and on, without another question being asked, the proper objection?
objection: narrative
E-Filing was not widely used until when?
2003
What is the name of the official government portal?
TexasOnline
all one word
How many counties does Texas have?
254 counties
How many judges are in texas?
3,444 judges
How many courts in texas?
2,796
When were attorney’s required to e-file in the top 10 most populous counties?
January 1, 2014
When was the implementation plan of mandatory e-filing in ALL counties?
July 1, 2016
5 benefits of e-filing
- simultaneous access to filed court
- reduced delay from lost or misplaced paper files and reduction of storing paper
- increased security
- improved legal processes
- enhanced public safety arising from electronic service of and instantaneous access to court orders
Who got the contract to implement the e-filing system?
Tyler Technologies
What is the new EFM called?
TexFile
one word
What does EFM stand for?
E-
Filing
Manager
what are three things that help the paralegal with e-filing?
- submit court docs online
- filing fees automatically calculated when filings are submitted
- receive filing status updates by email
- receive a file-stamped copy of the filing
what does e-filing allow for clerks and judges?
- move documents directly into case or document mgmnt syst
- receive, review, and accept documents online
- spend less time scanning and processing paper documents
- get direct payment of fees without clerk handling or credit card issues
Once e-filing is mandated, what else can the clerk offer?
the clerk may not offer any alternative methods of e-filing except in event of an emergency (electricity is out)
Fax filing will never be permitted
What does a firm need to have to e-file?
EFSP
What does EFSP stand for?
Electronic
Filing
System
Provider
What does the Texas SC and Appellate Courts require?
text-searchable PDFs
What can you use to make sure that your PDF is text-searchable?
OCR
What is OCR?
Optical
Character
Recognition
(i.e. Adobe Acrobat)
What is the maximum file size?
Currently 30 MB
What are some of the common clerk rejections of e-filings?
- unsigned document
- incorrect case number
- improper formatting
- landscape and should be portrait
