Civil P & E Flashcards
PJ - Minimum Contacts
- Foreign corp. purposely entered into a K w/TXP
- COA arose from such transaction
- Assumption of justice does not offend traditional notions of fair play and substantial justice
*To challenge: File special appearance, before any other motions/pleadings; can be filed contemporaneously in a consolidated response w/o waiver
Motion to Transfer Venue
- Need support from own affidavits
- 3 affidavits of credible persons who are residents of the county of the suit asserting prejudice against D (i.e. they cannot obtain a fair and impartial trial).
*NOTE: If not timely filed = waived
Attack Default J
File Equitable Motion for New Trial
- File w/in 30 days
- Failure to answer was not intentional or result of conscious indifference but due to mistake/accident
- Has a meritorious defense AND
- The granting of the motion will NOT occasion any delay or otherwise work an injury to the P
Requirements for Bringing Suit on Sworn Acct (i.e. items purchased on credit and not yet paid)
Allege by sworn affidavit:
- The claim is for liquidated money on a written K where a systematic record has been kept
- The claim is w/in the knowledge of the affiant, just and true, and is due AND
- All just and lawful offsets, payments, and credits have been allowed
** A party resisting such claim must file a written denial under oath (NOT a general denial) in order to offer evidence in denial of the claim.
To adjust level of discovery
Seek a different discovery plan and have it tailored to the level of discovery the person believes is adequate
Three items that must be provided if requested under Rule 194 Request for Disclosure
- Name, address, and phone number of any potential party
- Amt and any method of calculating economic dogs
- Correct names of the parties to the lawsuit
- Name addresses and phone number of anyone who might be designated as a responsible 3P
- The name, address, phone of anyone w/relevant facts along with a brief description of each person’s connection to the case
- Indemnity and insuring agreements
- W statements
The response is due 30 days after service upon the P or 30 days after service on a D unless D is served before the time to answer and in that event he has 50 days (carrot).
Time Limtis for a Depo have expired
A party or W may suspend the oral deposition (i.e. the deposition of a W is lasting 60 hours - should only lat 40)
Want to gain entry to a property for discovery purposes
File Motion/Request for Entry Upon Property. (Party is allowed to inspect, measure, survey, photo, or sample the property in question)
Review of report by consulting expert
Once an testifying expert reviews a report by a consulting expert, the report becomes discoverable (if the expert is solely a consultant, the report does not need to be produced)
SJ
May be filed after an adequate time for discovery has elapsed. Must state the element for which there is no evidence. Burden shifts to the non-motioning party to raise a genuine issue of a material fact.
*NOT enough ev. - cf. DV —> Too much ev. favoring one side
Number of Preemptory Challenges in DC
6 - Each D is entitled to 6 if the D is antagonistic on any issues submitted to the jury. If not - they share
Violation of MIL
- NOTE: Prelim ruling
- Must object when made at trial to preserve error & obtain a ruling by the court disallowing the evidence & have the judge properly instruct the court to disregard the statement
If party fails to produce evidence that is under her control, what remedies are available to the requesting party?
- Disallow evidence or possibly dismiss the case
- Sanction
- Instruct the jury that if the party who fails to produce evidence under her control and is reasonably available to her and not to the adverse party that it may infer the evidence is unfavorable to the party would could have produced and did not
No evidence to support final j - Request?
JNOV - No time limit but may before filed after court has entered judgment and before it is final
*Challenges the legal sufficiency of the evidence supporting the verdict
Timing for MNT
30 days after J is signed by TC
Plenary Power After MNT
When MNT is filed, the court’s PP over the J is extended for 30 days after all such timely filed motions are overruled either by written motion or operation of law (90 days) + 30 days = 120 days
What to plead to contest venue
- County of suit is not a county of proper venue or a mandatory provision applies
- Venue should be transferred to another specified county of proper venue
*Court may consider affidavits and all forms of discovery on on the motion BUT D does not have to file any evidence
What you must establish for a default J
1) Cout has SMJ
2) Court has PJ by proper service of process
3) A COA exists
4) The time to answer has expired
5) The return of citation has been on file 10 days exclusive of the day of filing the citation and the day of default J
- D admits all issues of liability, but not liquidated dmgs - Ps will have to prove those to obtain a default J
Four things that must be disclosed on a request for disclosure w/o providing interrogatories or requests for poduction
1) Correct names of the parties to the lawsuit
2) Name, Addresses & Phone number of any potential parties
3) The amount and method of calculating economic damages
4) Witness statements
*Ps have 30 days to respond from the date of service of process
Time to amend response w/supplemental/changed info
An amended response made less than 30 days before trial is NOT prompt
How to obtain the return of privileged communication
D must w/in 10 days or shorter time by court order after discovering that such production was made, amend the response, ID material produced and state privilege asserted
Objections at Depo
“Leading, Form, Nonresponsive”
*Anything else may result in costs and other discovery sanctions. Argumentative and suggestive objections are grounds for termination of the repo as well as the award of costs and other sanctions. (Likely the objecting party will have waived objections).
To inspect an item what type of discovery request
Request for Production and Inspection & specify the items to be produced and inspected either by individual item or by category.
Must state: reasonable time and place for production and the means, manner and procedure for testing
Can mediator be compelled to testify
No - ADRA does not allow - unless parties agree otherwise
Challenge an Expert
Prior to trial any party may request the TC to make a determination that an expert is qualified to testify on an issue in the case
Determine the admissibility of expert testimony:
rmine the admissibility of expert testimony:
- Extent to which the theory has been or can be tested
- Extent to which the technique relies upon the subjective opinion of the expert
- Whether the theory has been subjected to peer review and/or publication
- The techniques potential rate of error
- Whether the technique has been generally accepted as valid by the relevant scientific community AND
- The nonjudicial uses which have been made of the theory or technique
To challenge file a pretrial motion to rule on the admissibility of the expert’s testimony. TJ will use his gatekeeping function.
Objection when religious beliefs is to come in
Inadmissible to impair or enhance credibility under Rule 610
If the P requests $100k and the jury awards $1M what should the D file
Seek remittitur and file a MNT asserting the verdict is excessive and not supported by the evidence in the amount of $990k
PJ over a non-resident corp - what must be asserted
- Corp is a nonresident
- Has engaged in business in Texas
- Does not maintain a regular place of biz or person in TX
- Nor does it maintain a designated agent for SP in Texas
What to file to challenge PJ
Special Appearance - must be by sworn motion asserting they are not amenable to SP issued by the TX courts
What to file to remove from State to Fed
Notice of Removal - A verified pet. setting out the facts that entitle them to removal.
Must be filed w/in 30 days after they were served w/process in State court.
- Must be COMPLETE diversity (No D may be a citizen of the state where the case is filed or if P & D are from the same state).
When must a motion to transfer venue be filed?
Must be filed concurrent or before any pleading other than a special appearance. (If not = violation of order of pleadings).
*NOTE: One D’s action or omission does not impair or diminish the right of any other party to properly challenge venue.
Level 2 Limits on Depositions/ Discovery Period
Oral - Limited to 50 hours for each side (all the litigants w/generally common interests) to examine and cross their designated experts and persons who are subject to their control. Ea. party may not serve more than 25 interrogatories including discrete subparts to all other parties.
Begins when the suit is filed and continues until the earlier of:
- 30 days before the date set for trial
- 9 mo. after the date of the first oral deposition on the due date of the first response to written discover
(Whichever is earlier)
What must be shown in an injunction
1) Wrongful act occurred
2) It will likely succeed on the merits AND
3) It will likely suffer harm
- To show irreparable harm - show that the harm is imminent, that the injury would be irreparable, and no other adequate legal remedy
- If violated - File a Motion for Contempt (punishment includes imposing a fine - not to exceed $500 or imprisonment)
To make a party answer a question at a depo
File Motion to Compel the Answer
- THINK: Joint Defense Doc: Communications between the Ls of separate parties who have a common interest in the pending lawsuit are protected.
Process to impeach a PICS (like at a depo)
- Tell the W the contents of the statement
- Tell the W the time, place, and person to whom it was made
- W must be given an opportunity to explain or deny the statement
*BEFORE entering EE
(If in writing the L must sow the W the repo transcript)
Two exceptions to the rule on timely disclosure
1) That there was good cause for the failure to timely amend or supplement the discovery response; OR
2) That the failure to amend or supplement the discovery response will not fairly surprise or unfairly prejudice X Corp
If damages are not included in the pleading what should be requested and included?
Special Exception: - In writing - ID the defective pleading - Point out the defect w/particularity - Call for a hearing (Request the court order \_\_\_\_ to amend his original petition to state the max amount of damages sought)
Request for a Jury Trial
Must be filed w/in a reasonable time before trial (30 days is presumptively not w/in a reasonable time); must pay $10 jury fee.
- Request must be in writing
SJ
No issue of material fact as to one of P’s elements and a judgment as a matter of law is appropriate.
- File after adequate time for discovery
- By a party who does not bear proof - simply state there is not evidence of one or more essential elements
- Traditional motion includes evidence negating the essential element (such as deposition testimony from an expert)
Discussing prior arrest during voir dire
File MIL
- Evidence is not admissible at trial
- Jury hearing during selection is unfairly prejudiced
Notations on special exceptions by Judge - Preserve error?
No. Case law has held that where notations are not followed by a written order, or some notation on a docket sheet that the judge ruled on the special exception, the record does not clearly reflect that the court sustained the objections and the issue has not been preserved for review.
How to challenge A/C Privilege
Request the party prepare a privilege log - describing the withheld material and asserting a specific privilege for each item withheld.
Request a party submit to a physical exam
File a Motion under Rule 203 - Seeking an order compelling the person to submit to an exam by a qualified physician.
- May only be granted for good cause
- When a party’s condition is in controversy
- Must file 30 days before the end of the discovery period
Must an expert be made available for deposition?
If the party has not filed a report when the expert is designated, he must make the expert available promptly after the designation.
If a report is produced when the expert is designated, he need not make the expert available for depose until reasonably promptly after all other experts have been designated.
If the defendant offers to settle, and P says no - can P recover costs and attorney’s fees?
Yes. If the judgment is significantly (less than 80%) less than the rejected settlement offer.
Limit on attorney’s fees
Litigation costs may not be greater than:
- 50% of economic damages
- 100% of the non economical damages awarded to Paul in the judgment and
- 100% of the exemplary or additional damages awarded to Paul in the judgment
Comment on a parties’ pleading the 5th on the stand:
In civil trials - this is allowed
Claiming negligence what must be in their original petition?
- Generally allege elements of the crime.
- The pet. should allege that PipeCorp is liable under the doctrine of respondent superior.
- The parents/next friend may represent daughter
How you do preserve the motion to change venue?
- Must be filed pursuant to the due order of pleading rule.
- Must be filed after any special appearance but before any other pleading, or it is waived
Assume parties file the proper pleadings re: objections to venue, when should the hearing be scheduled and what may court consider in ruling on the objections to venue?
- Each party is entitled to 45 days notice of a hearing
- Court may consider the pleadings, any stipulations, affidavits that are filed, and any discovery.
- NO ORAL TESTIMONY
Level 2 Discovery Limits
- Begins when suit is filed & continues until the earlier of 30 days before date set for trial or 9 mo. after the date of the first oral deposition or the due date of the first response to written discovery (whichever is earlier)
- Either side may have no more than 50 hours in oral depositions
- 25 interrogatories, including discrete subparts
If the orig. pet. alleges the Ds are responsible for a claim but does not allege any specific acts of negligence or a dollar amount of damages being sought. If Ds wish to object to the generality of the allegations, what pleadings should they file?
Special exception Ps are entitled to either
- Stand on the pleadings or
- Have a reasonable time to amend or correct the petition
What to plead to preserve work product privilege
Withholding Statement
- That information or material responsive to the request has been withheld
- The request to which the information or material relates, and
- The privilege or privileges asserted
What must be in the affidavit in preparing the case for trial, P counsel wants to file copies of medical records to prove the amount of the medical expenses incurred in treating P
The affidavit must state:
- The medical records were made at or near the time of the accident a person w/knowledge
- The records were in kept the course of a regular conducted biz activity, and
- It was the regular practice of that biz activity to make the records
If request jury trial the day of jury - what must be shown to permit a jury trial under these circumstances?
That it will not
- Injure the D
- Disrupt the court’s docket or
- Impede the ordinary handling of the court’s business
Perserve error on challenge for cause
Prior to exercising preemptory challenges state that they will exhaust all of their preemptory challenges& that after exercising their peremptory challenges, specific objectionable jurors would remain on the jury list.
What pleading should Ps file to ensure the Ds do not have an unfair advantage in the allocation of peremptory strikes? What factors should the court consider in ruling on that pleading?
Ps should file a motion to equalize
Court has a duty to make sure that no side is given an unfair advantage and should consider any matter brought to the attention of the judge concerning the ends of justice and the elimination of an unfair advantage
Why would the court allow a fact witness who was not IDed at discovery - what evidence must be presented and who has the BOP
- The person attempting to admit such W has the burden to prove:
- There was good cause for failing to timely supplement the discovery response or
- That the failure to supplement will not unfairly surprise or unfairly prejudice the other parities
Must a court approve a settlement for a minor if the Ps are the parties brining the suit on behalf of he minor?
Yes.
- The court should determine whether there is any conflict between the minor and her parents as next friend. If there is a conflict, the four should appoint a guardian ad litem to protect the minor’s interest.
When is a D’s answer due?
10am the first Monday after the expiration of 20 days from the date of service (unless that Monday is a legal Holiday, the answer is due whatever day follows that holiday that isn’t Saturday or Sunday)
If D files an answer, should a Default J be entered?
No, even when the answer is late
5 Types of Discovery
Request for Disclosures Requests for Production & Inspection Interrogatories to a party Requests for Admissions Oral Depositions Written Depositions Motions for Physical Exam
How to obtain information about indemnity and insurance?
Through request for disclosure of indemnity and insurance
Can a party compel production of a medical authorization?
In a personal injury suit, a party may request all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof an authorization permitting the disclosure of such medical records and bills.
May a party require production of statements given on the scene?
Yes. W/ a request for disclosure a party may obtain witness statement another party has, regardless of when the statement was made (not included in work product - even if made in anticipation of litigation)
What if P executed a final release on all claims against D?
File an answer that sets forth the affirmative defense of release. (Failure to do so would ultimately waive the defense and would probably prohibit the D from offering evidence to support the defense).
If P adds a third party defendant - does she have to do so in her original petition?
No. A party may amend a pleading so long as it does not operate as surprise (must seek a leave of court to amend w/in 7 days of trial).
A P may amend to join a claim against 3P D so long as it arises out of the same T/O that is the sub. of the P’s claim against a 3P P (i.e. the D)
Can P call a D as a witness in her case in chief?
Yes - No rule requiring proof of a prima facie case before calling a party-witness adversely
Can D bring up a P’s medical insurance?
No - Not allowed under the collateral source rule.
How can Ds avoid a default J?
File pre-answer pleadings like - special appearance or motion to transfer venue
File and answer raising matters (pleas in bar) - Such as denials and affirmative defenses
Ds can file a consolidated reply raising both types of matters
Must be filed w/in the time for the answer by 10am on the first Monday after the expiration of 20 days from the date of service of process
What pleading should D file in order to assert its corporate status and protect its shareholders from indiv. liability?
Verified denial - because it is not liable in the capacity it has been sued. Then they should allege the same matter in a verified plea in abatement, which raises the capacity issue and asks the court to take action on the defect.
If D believes someone else is liable, what pleading must be filed in order to secure a jury question on that party’s liability?
File a 3P petition against that party
- File a motion for leave to designate such party as a responsible 3P.
- If the motion for leave is granted, the 3P’s conduct will be considered by the jury when allocating fault for the P’s injuries
What documents can be served to secure names of potential witnesses to the accident?
Serve a Request for Disclosure or Interrogatories
- Name, address, and telephone number of persons having knowledge of relevant facts, such as a W to an accident
An attorney conducts an investigation of the accident and interviewed several potential Ws - no statements were taken, but the attorney for the D made and kept notes. The P requests production of notes. The DP objects as being protected from discovery ..?
Sustain Ds objection.
- Work product includes any material or mental impressions developed in anticipation of litigation or for trial.
- This is “core” work product of an attorney (his mental impressions, opinions, conclusions) and is absolutely privileged.
Level 1 / Level 2/ Level 3 Interrogatories
Level 1 = 15 interrogatories
Level 2 = 25 interrogatories
Level 3 - No mention of allowing greater
*** NO LIMIT ON NUMBER OF REQUEST FOR ADMISSIONS
(Interrogatories asking a party to ID or authenticate a doc are unlimited)
If D’s manager took photos of the scene - are they privileged?
No. Seems like it because they were made in anticipation of litigation which would be discoverable only on a showing that the party seeking discovery has a substantial need of the material and is unable to obtain a substantial equivalent.
- Specific rule providing that photos of the underlying facts like the scene are NOT work product protected from discovery.
General Discovery Rule
May discover anything that is not work privileged and is relevant to the subject matter of the pending action.
- Must state w/particularity the privilege asserted (if one is being asserted)
What should D assert if they believe P was contributorily negligent and want the jury to know?
Assert an affirmative D base don an allegation that P’s conduct caused or contributed to causing the accident and her injuries.
If not included in the original answer, the issue can be added in an amended answer w/o leave of the court if file more than 7 days before trial.
This would support a jury question dealing w/the P’s responsibility.
When can you add a 3P?
Any time after the commencement of the original action.
- No need to obtain leave of court provided it files the 3P petition no later than 30 days after it serves it original answer.
- Otherwise it must obtain leave on motion and give notice to all Ps to thea ction
If a party is acting up in depose?
- Suspend the oral repo for the time necessary to obtain a ruling on his convention the suggestions are improper
- File a motion for sanctions on the same ground
- The court should rule suggestive objections are improper
- Court may order the improper party to pay expenses and attorney’s fees incurred in obtaining the order for sanction
Sufficiency of Expert’s Affidavit
- Obtain a ruling on his objection and have it memorialized in writing
- No conclusory statements w/o support that the expert is qualified by skill, knowledge, eduction, experience, or truing.
- Expert’s statements about causation that are mere conclusions that are not connected to any facts are insufficient.
Charts
Visual aids intended to help the jury understand the evidence offered - not itself evidence.
- Court has broad discretion.
