Civil P&E

Question 1

How can you obtain service of process on an out of state corporation with no agent for service in Texas?

Answer 1

Must invoke the long arm statute and serve the company through the Texas secretary of state. In the petition you must allege that the company is a nonresident of Texas, has no regular place of business or person in charge in Texas, has no registered agent for service of process in Texas, and has been doing business in Texas by committing a tort in Texas through the act of its employee. Must then obtain a certificate of service from the secretary of state showing the date it received process, the date process was forwarded to the company, and the date the secretary of state received the return receipt.

Question 2

What pleading should be filed to raise an object to being sued in Texas and when?

Answer 2

Special appearance filed before or concurrently with any other plea, pleading, or motion. Failure to comply with the due order of pleading requirement consists a general appearance and waiver of the special appearance.

Question 3

What pleading should be filed to raise an objection to being sued in a particular county in Texas and when?

Answer 3

Motion to transfer venue filed prior to or concurrently with any other plea, pleading, or motion, except a special appearance. Failure to comply with the due order of pleading requirement waives the objection to venue.

Question 4

Where is venue proper?

Answer 4

Venue is proper in a county where the defendant resides or has its principle place of business, where all or a substantial part of the event or omissions giving rise to the claim occurred, where the plaintiff resided at the time the cause of action accrued only IF none of the other venue provisions applies.

Question 5

What appellate review, if any, is available for a motion to transfer decision?

Answer 5

Appellate review is available only after final judgement. Immediate review by write of mandamus is available to enforce mandatory venue provisions only.

Question 6

What effect, if any, of an erroneous ruling by the trial court on the issue of transferring a lawsuit to another county?

Answer 6

An erroneous ruling is reversible error. By statute, an erroneous ruling on venue is not harmless and requires reversal of the trail court judgement.

Question 7

What pleading should a defendant file in order to require the other party to plead specifically facts that support allegations in the cause of action pleaded in the original petition?

Answer 7

Special exception, should be in writing and point out the pleading excepted to and point out with particularity the insufficient in the allegations.

Question 8

How can a defendant add an affirmative defense?

Answer 8

File an answer that affirmatively pleads the defense. If not affirmatively plead it is lose. Failure to affirmatively plead affirmative defenses waives the defense and precludes a jury question on the defense.

Question 9

Are request for disclosure of statements from the investigating police officer and independent witness proper?

Answer 9

Yes, with a request for disclosure, a party may obtain any witness statement another party has, regardless of when the statement was made or who took it. The definition of work product does not include witness statements, even if made in anticipation of litigation.

Question 10

What discovery tools can a party use to determine if another party has liability insurance.

Answer 10

Request for production, request for disclosure, and interrogatories.

Question 11

Are trial witnesses list work product privilege?

Answer 11

No, the names of persons to be called at trail, except rebuttal or impeachment witnesses, are within the scope of discovery, and a party may inquire about any matter within the scope of discovery with an interrogatory, except certain matters pertaining to expert witnesses.

Question 12

Are 35 interrogatories and 30 requests for admissions proper??

Answer 12

Depends, level 1 cases are limited to 25 interrogatories and 15 request for admissions. Level 2 & 3 cases are limited to the discovery plan (2) or by the court (3)

Question 13

What county is proper for depositions?

Answer 13

For party witnesses, the county of suit is proper location for the deposition to take place. Where the party for the deposition resides may also be proper.

Question 14

Is application to appoint a Responsible Third Party limited to personal injury claims?

Answer 14

No, application is not limited to cases seeking personal injury damages.

Question 15

What pleading should a party to file if after discovery there is no evidence to support a jury question on one or all of the claims?

Answer 15

File a no-evidence motion for summary judgement. After a adequate time for discovery, a party who does not bear the burden of proof at trial on the claim or defense may move without supporting evidence for summary judgement on the grounds that non-movant has no evidence of one or more essential elements of the claim.

Question 16

What steps can be taken to challenge a potential juror?

Answer 16

Challenge the juror for cause for bias or prejudice in favor of or against a party to the case. If not granted, use a peremptory strike on the juror to preserve error on the court’s challenge for cause ruling.

Question 17

Can a deposition be used as testimony of a trial and must the plaintiff always testify first?

Answer 17

Yes, a deposition from the same proceeding is not hearsay and is admissible at trial without the need to show the witness’s unavailability. There is no requirement that the plaintiff testify before other witnesses.

Question 18

Can an officer testify to what he heard the president of a company say or what the officer believes is the reputation of the president?

Answer 18

No, this is improper character evidence and hearsay. The officer is giving opinion and reputation testimony about the defendants character is not generally admissible in civil cases in Texas, except in cases involving assaultive conduct or crimes of moral turpitude.

Question 19

Are the courts required to read the jury charge and instructions allowed and are the jurors allowed to have copies of each?

Answer 19

Courts are required to read the jury charge and instructions allowed absent a waiver by both parties. Additionally, the courts are required to supply the jurors all with copies of each.

Question 20

Can statements made by jurors amount to jury misconduct and subsequently require a new trial?

Answer 20

No, a motion for new trial based on jury misconduct may not be predicated upon statements made by jurors during deliberations.

Question 21

What pleading should attorney file in order to avoid the consequences of a failure to timely answer request for admission?

Answer 21

File a motion to withdraw or amend his answers. The court may grant the motion if the attorney shows good cause and the court finds that ht parties relying upon the responses and deemed admissions will not be unduly prejudiced and that the presentation of the merits of the action will be served by permitting the withdrawal or amendment.

Question 22

What form of discovery is available to seek witness statements and are they privileged?

Answer 22

Produced in response to a request for disclosure and, by rule, witness statements are not protected from discovery by the work product privilege, even if prepared in anticipation of litigation.

Question 23

What pleadings or document should an attorney file to require plaintiff to specifically plead maximum amount of economic damages she is seeking in her suit and basis for such claim?

Answer 23

Request for disclosure. A request for disclosure will require the plaintiff to disclose the amount and any method of calculating economic damages. May also file a special exception to require clarification of the amount of economic damages sought.

Question 24

Can parent-child privilege be invoked?

Answer 24

No, Texas does not recognize the privilege.

Question 25

Is health insurance protected from discovery by collateral source rule?

Answer 25

No, the collateral source rule does not preclude discovery of the existence of health insurance, through it may make such evidence inadmissible at trial. The rules specifically authorize discovery regarding insuring agreements under which a person may be made to indemnify or reimburse for amount paid to satisfy a judgement.

Question 26

Can a request to proceed medical bills and records related to the injury of the case be declined because of privacy concerns and lack of showing of relevance?

Answer 26

No, in cases seeking damages for personal injuries, the responding party must produce all medical records and bills that are reasonably related to the injuries, or in lieu thereof, an authorization permitting the disclosure of such medical records and bills. The parties receiving the request preference controls as to which.

Question 27

How many preemptory challenges should be granted to each party? In jury selection, can the Court prevent co defendants from collaborating?

Answer 27

The rules provide that each party is entitled to six peremptory challenges in a case tried in a district court. The rules doe not explicitly authorize the court to prevent parties from collaborating when exercising their strikes. However, the rules do give the court discretion to equalize strikes upon motion of a party to avoid a side getting an unfair advantage.

Question 28

Two of the ten jury questions are not answer. What should be done?

Answer 28

The verdict may support a judgment even if certain questions have not been answered because the answered questions may have rendered the unanswered questions immaterial. Even if the question are material, if the judge has not yet discharged the jury, the judge can require the jury to continue its deliberation as the unanswered questions.

Question 29

What procedural steps must be taken to initiate a lawsuit?

Answer 29

File a petition in a court of proper venue that provides fair notice of her claim and should request that the court issue a citation citing the defendants to appear; and must exercise diligence in serving the defendants with a copy of the petition and citation.

Question 30

What pleading must be filed to keep a second suit from proceedings?

Answer 30

File a verified plea in abatement in county where the second suit is filed. The plea should allege that there is another bit already pending involving the same claim and parties and must be sworn.

Question 31

What type of discovery is available to determine if the defendant has insurance and the extent of the policy limit?

Answer 31

Request for disclosure and may also get the information through interrogatory or request for production.

Question 32

Can an expert give his opinion on an ultimate issue to be determined?

Answer 32

Yes, an expert may testify in terms of an ultimate issue so long as the expert applies the proper legal standard.

Question 33

How can a photography be authenticated and/or when is objection proper?

Answer 33

Production of the photograph operates to authenticate it against he producing party unless the producing party object to its authenticity within 10 days of receiving actual notice it will be used.

Question 34

Can evidence of the merriment of medical bills be discovered?

Answer 34

no, the collateral source rule prohibits evidence that medical bills were paid by a source other than the plaintiff, including insurer.

Question 35

Is a Trial Court authroized to accept a verdict of nine jurors if all nine jurors agree on the answers to all questions presented to them if there were 12 jurors impaneled?

Answer 35

No, in a civil case at least 10 jurors must agree to the verdict in order to support a judgement based on the verdict. Where there are multiple questions in the charge, the same jurors must agree to the answer

Question 36

What should an attorney file in order to present the issue that they believe there is no evidence to support the verdict at judgement?

Answer 36

File a motion for judgement notwithstanding the verdict.

Question 37

List five categories of information or materials Butch may request from Giant and Cactus in request for disclosure

Answer 37

correct names of parties, names, address, and telephone numbers of potential parties, relevant persons having knowledge of facts, any indemnity and insuring agreements

Question 38

Is their an obligation to disclose additional witnesses added to the list?

Answer 38

Yes, you have a duty to supplement discovery responses that were incorrect or incomplete when made reasonably promptly after discovering the need to supplement. Supplementing within 30 days of trial is presumed to be not reasonably prompt.

Question 39

What type of discovery request can be served to obtain access to a physical object for inspection and testing and what details must the request set out?

Answer 39

Serve a request for production and inspect. The request should identify the object, identify a reasonable time and place for inspection and testing, and specify the means, manner, and procedure for testing.

Question 40

When must a request for a jury be filed?

Answer 40

A written request for a jury trial must be filed with the clerk along with payment of $10 jury fee a reasonable time before date set for trial. Requests within 30 days of trail are not presumed to be reasonable time.

Question 41

What steps must be taken to impeach a witness by a prior inconsistent statement?

Answer 41

Must confront the witness with the statement before proving it with extrinsic evidence such as the deposition Tell the witness the contents of the prior inconsistent statement, the time and place, and the person to whom it was made. At some point, the witness must be given an opportunity tot explain or deny the statement. If the witness is a party-opponent, this confrontation requirement does not apply.

Question 42

After plaintiff rests, what issue should be raised if the defendant contends the evidence is insufficient to support a verdict?

Answer 42

Motion for directed verdict allows for the challenge of legal sufficiency.

Question 43

How should a party preserve privilege?

Answer 43

A party should preserve privilege to requested documents by asserting the privilege. A party should serve a withholding statement that (1) stated he was withholding information responsive to the request, (2) identified the request to which the information related, and (3) identified the privilege asserted.

Question 44

What should you file to object to a deposition of an individual with no knowledge?

Answer 44

A party should file a motion for a protective order or to quash the deposition of its president. This as an Apex deposition. The motion should be accompanied by an affidavit from the individual denying any personal knowledge of relevant facts

Question 45

How can a party obtain information about the opinion of another party’s expert?

Answer 45

They can depose the expert. They could also serve the party 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 46

Objections in deposition testimony & questions

Answer 46

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

Question 47

5 matters that could be considered at a pretrial conference

Answer 47

1. All pending dilatory pleas, motions and exceptions, 2. Necessity or desirability of amendments to the pleadings, 3. Discovery schedule, 4. Requiring written statements of the parties’ contentions, 5. Contested issues of fact and simplification of the issues

Question 48

How to independently verify plaintiff’s injuries?

Answer 48

A motion to compel independent medical examination

Question 49

How to preserve error regarding an omitted instruction.

Answer 49

A party must object to the omission and get a ruling. They also must submit a substantially correct instruction to the Court for ruling before the charge is read to the jury

Question 50

Do the Texas Rules of Civil Procedure permit an attorney to instruct a client not to answer abusive or harassing questions during deposition?

Answer 50

Yes, that is allowed

Question 51

What actions can an attorney take to independently verify the nature and extent of plaintiff’s medical condition and when must it be taken?

Answer 51

File a motion for physical examination. It must be filed within 30 days of the conclusion of discovery and must show good cause and that the physical condition was in controversy.

Question 52

What must an attorney do and show to avoid going to trial on the current trail setting?

Answer 52

File a motion for continuance. Motion must (1) identify the missing witness and the substance of his testimony, (2) explain why his testimony is material and not available from another source, (3) show diligence was used in attempting to secure the testimony, and (4) state the continuance is sought for justice and not solely for delay.

Question 53

What procedural steps can an attorney take to raise an issue of an experts qualifications to testify?

Answer 53

object to the expert’s testimony and must raised before the expert testified. Attorney could take the expert on voir dire outside the jury’s presence if the objection was overruled.

Question 54

What procedural steps should be taken if the defendants do not believe the evidence supported the damages awarded by the jury?

Answer 54

The defendants should file a motion for new trial alleging insufficient evidence to support the damages finding. The motion had to be filed within 30 days of the date the trial court signed the judgment.

Question 55

What action must a party take to bring the matter of improper discovery request to the court’s attention nd when must it do so?

Answer 55

Party could make a written objection to discovery request and/or file a motion for protective order. Must respond within 30 days of being served with the discovery request.