Civil P&E - Texas Bar Exam

Question 1

SOL on tort action

Answer 1

2 years

Question 2

Answer deadline

Answer 2

10 a.m. on the first Monday after the expiration of 20 days from the date the D was served with process.

Question 3

If Defendant fails to file an answer, Plaintiff can:

Answer 3

Seek the entry of a default judgment.
P will have to:
(i) show that the court has subject matter jurisdiction;
(ii) show that proper service was made;
(iii) allege a cause of action; and
(iv) show that the return has been on file 10 days exclusive of the day of filing the citation and the day of the default judgment.

Question 4

Due order of pleadings

Answer 4

A special appearance must be filed before any of D’s other pleas, pleadings, or motions. If D fails to comply, he makes a general appearance, consents to jurisdiction, and waives all defects in service of process. If D files an Answer before anything else, he waives his right to transfer venue.

Question 5

Proper venue

Answer 5

(i) in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred; or
(ii) if D is a natural person, county of D’s residence; or
(iii) if D is a corp., county of D’s principle office in the State; or
(iv) in none of the above apply, county where P permanently resided at the time of the accrual of the cause of action.

Question 6

If Defendant wants to keep the suit from proceeding in Texas, it should:

Answer 6

file a special appearance. In a special appearance, the party should assert that it is not amenable to service of process issued by the courts of Texas. The special appearance must be verified. It must be filed before any other plea, pleading, or motion or it is waived.

Question 7

Special appearance

Answer 7

Defendant does not have minimum contacts with TX. Defendant has burden of proof and must negate all grounds of personal jurisdiction. Plaintiff may oppose special appearance by producing evidence to show that Defendant purposefully did some act or consummated some transaction in TX.

Question 8

What pleading must someone file if he wants suit somewhere else and what must be alleged?

Answer 8

File a Motion to Transfer Venue, which must be filed before any other pleading other than a special appearance. Motion should state that the action should be transferred to another county of proper venue and should allege that the current county is not proper, state the legal and factual basis for the transfer, and request transfer to the specified county.

Question 9

What should a response to the Motion to Transfer Venue contain?

Answer 9

Response should present prima facie proof of matters specifically denied by the Defendant, and specifically deny any of Defendant’s venue facts which the Plaintiff wishes to contest. At a hearing, court can consider affidavits, pleadings, stipulations, & discovery, but no oral testimony.

Question 10

What should a party file when the other party files a lawsuit involving the same parties/dispute in another county?

Answer 10

A plea in abatement alleging that the suit in the first county was commenced first, still pending, and that the 2 suits involve the same parties and controversy. Should be verified by affidavit. Court should grant the plea b/c the 2 actions involve the same subject matter and the first county has “dominant jurisdiction”.

Question 11

What must a party file in order to properly object to a claim against him in the same suit as claims against other parties?

Answer 11

Motion to Sever. Argue that severance is proper if the claims involve more than 1 cause of action, the severed claim could be independently asserted in another lawsuit, the severed cause does not involve the same facts or issues. Or file a Motion for Separate Trials asking that the claims be filed separately. Court will not grant the MTS if the claims involve facts and issues that are intricately related. BUT the court may grant a MFST.

Question 12

What may a party seek in discovery?

Answer 12

Anything that is relevant and not privileged. Attorney client communication made in anticipation of litigation is privileged and not discoverable.

Question 13

Name 5 types of discovery specifically authorized by the Texas Code of Civil Procedure.

Answer 13

(i) Request for Disclosure,
(ii) Request for Production,
(iii) Interrogatories,
(iv) Request for Admissions,
(v) Depositions.

Question 14

Name 5 categories of information or materials that you can request in a Request for Disclosure.

Answer 14

(i) correct names of the parties;
(ii) names of potential parties;
(iii) name of anyone who may be designated as a responsible 3rd party;
(iv) the amount of economic damages; and
(v) any witness statements.

Question 15

Are rebuttal and impeachment witnesses discoverable?

Answer 15

No, because cannot be reasonably anticipated before trial.

Question 16

What can counsel do if they do not timely reply to Request for Admissions?

Answer 16

They are deemed admitted, but counsel should file a motion seeking withdrawal of the admissions. Court may allow withdrawal if counsel shows good cause and the court finds that the other party will not be unduly prejudiced by the withdrawal.

Question 17

What steps must an attorney take to protect from discovery information and material that are privileged?

Answer 17

Within the time for the response, the attorney must state, in a response or in a separate document, that information or material responsive to the request that has been withheld, the request to which the materials relate, and the privilege asserted. This is known as a “withholding statement”.

Question 18

After asserting a privilege in a response to discovery requests, the party who requested discovery may file a written request asking the party who asserted the privilege to identify the information and material in question. How must the party who asserted the privilege respond?

Answer 18

The party asserting the privilege must respond by serving a privilege log – a response that describes the information or material withheld and asserts a specific privilege for each item withheld. The response should not reveal the privileged information itself and it must be served within 15 days of service of the request.

Question 19

How much notice must be given for a deposition?

Answer 19

Notice must be served on the parties a reasonable time before the depo is taken. However, the rules also provide that D is entitled to a minimum of 30 days after service before it will be required to respond to a subpoena for production of documents.

Question 20

What must you do to object to the time and place in notice of deposition?

Answer 20

Must file a Motion for Protective Order or a Motion to Quash the notice of deposition. The motion must be filed w/in the time permitted for a response, before the time specified for compliance in the notice of deposition.

Question 21

Under what circumstances may a deponent confer w/ his lawyer during a deposition? When may a lawyer instruct a witness not to answer a question during a deposition?

Answer 21

Private conferences b/t the witness and the witness’s attorney during the actual taking of a depo are improper except for the purpose of determining whether a privilege should be asserted. An attorney may instruct a witness not to answer only if doing so is necessary to preserve a privilege, to comply w/ a court order, or to protect a witness from an abusive question or one that requires a misleading response.

Question 22

What are the permissible objections in a deposition?

Answer 22

1. “Objection, leading”;
2. “Objection, form”; and
3. “Objection, non-responsive”.
   Argumentative or suggestive objections waive the objection.
   If a basis is requested by opposing counsel, a clear and concise basis must be provided.

Question 23

What must you do to obtain medical records without taking oral depositions?

Answer 23

Prepare an affidavit for the custodian of medical records. The affidavit must show the same elements as the business records exception to hearsay.

Question 24

What happens if you inadvertently disclose privileged materials?

Answer 24

The privileged materials must be returned to the party and cannot be used to support the other party’s claims. The claim to privilege is not waived provided that w/in 10 days after the inadvertent production was discovered, the party amends his response, identifies the material produced, and states the privilege asserted.

Question 25

What should a party file in order to to abandon its claim against a party, and what must the court’s order recite if the party wants to reserve the right to re-file the claims at a later date?

Answer 25

Motion or Notice of Non-Suit the party. The court should sign the order, dismissing the claim against party without prejudice to file the claim at a later date.

Question 26

What showing must a party make in an application for continuance if a number of witnesses were unable to be deposed?

Answer 26

Must assert by affidavit:

(i) that the testimony is material and show its materiality;
(ii) due diligence to procure the testimony was used, stating such diligence;
(iii) the cause of the failure if known;
(iv) that such testimony cannot be procured from any other source;
(v) the nature of the absent testimony; and
(vi) that the continuance is not sought for delay, but so that justice may be done.

Question 27

What must you do to exclude expert testimony at trial?

Answer 27

File a pretrial Daubert motion to challenge the admissibility of the expert’s testimony. The motion should allege the expert is not qualified by knowledge, skill, experience, training or education to offer his opinion and that his opinion is not reliable.

Question 28

When is a counterclaim compulsory?

Answer 28

A counterclaim is compulsory if it arises out of the same occurrence that is the subject matter of the principal action. Failure to assert it in the present suit means it is barred in subsequent litigation.

Question 29

Are things prepared for mediation confidential?

Answer 29

Things prepared for mediation are confidential unless independently discoverable.

Question 30

What do you do if Plaintiff fails to properly plead?

Answer 30

Defendant can file a Special Exception seeking a specification of pleadings and ask the court to require Plaintiff to amend. Defendant should object in writing, call for a hearing, and get a ruling on the exception on the record.

A special exception must be filed before the case is submitted to a jury, otherwise it is waived.

Question 31

What do you do if you don’t want irrelevant stuff coming into trial?

Answer 31

File a motion in limine, which, if granted, would prohibit the Plaintiff’s lawyer from mentioning the stuff in voir dire and opening statement and require the Defendant’s lawyer to approach the bench for a ruling on admissibility before presenting it to the jury. To preserve error, Defendant should object to the reference, request a jury instruction to disregard the reference, and if the instruction is given, move for a mistrial.

Question 32

What if the other side wants to bring in stuff from mediation (or any ADR)?

Answer 32

The ADR statute provides a communication made by a participant in a mediation is confidential, not subject to disclosure, and may not be used as evidence against the participant in any judicial proceeding.

Question 33

What should you do if you notice that the other side’s witnesses are all in the courtroom and you don’t want them in the courtroom after trial testimony starts?

Answer 33

Ask the court to invoke the rule requiring sequestration of witnesses so that the witnesses cannot hear other witnesses’ testimony, and the court will instruct the witnesses not the converse with others about the case. Exceptions to the rule: party witnesses, their spouses, and expert witnesses.

Question 34

What do you need to show if you call a witness that you didn’t designate in your discovery responses?

Answer 34

You have a duty to supplement your discovery responses. You must show the court good cause for failure to list the witness in the original or supplemental responses or that no unfair surprise or unfair prejudice to the Defendant will occur.

Question 35

How can you introduce evidence of a prior inconsistent statement to impeach a witness?

Answer 35

Prior to offering the statement, the witness must be informed of each of the following and given an opportunity to explain or deny:

(i) the contents of the statement;
(ii) the place and time they were made; and
(iii) the person to whom the statement was made.

Question 36

Is a statement by a party opponent employee’s admissible?

Answer 36

Yes. The statement of a party’s employee is admissible when offered against the party so long as the statement concerned a matter w/in the scope of employment and was made during the existence of the employment relationship.

Question 37

Is an offer to pay medical/hospital expenses admissible?

Answer 37

No, this is inadmissible to prove liability for injuries.

Question 38

Is an offer to compromise a disputed claim admissible?

Answer 38

No, it is not admissible to prove either liability or the amount of damages.

Question 39

What is the confidential marital communications privilege?

Answer 39

Permits one spouse to prevent the other spouse from testifying as to confidential communications b/t them made during the marriage. This privilege survives the marriage.

Question 40

Are convictions admissible to impeach a witness?

Answer 40

No, unless the convictions are felonies or crimes of moral turpitude.

Note: traffic violations are neither felonies nor crimes of moral turpitude.

Question 41

Can you impeach using a conviction more than 10 yrs old?

Answer 41

A felony conviction more than 10 yrs old from release or completion of probation is inadmissible unless court finds that in the interests of justice the probative value of the conviction substantially outweighs its prejudicial effect.

Question 42

What should you file, pretrial, in order to defeat a claim or defense of the other side?

Answer 42

File a traditional motion for summary judgment or a no-evidence MSJ. Traditional MSJ must allege that there is no genuine issue of material fact and that the movant is entitled judgment as a matter of law. No Evidence MSJ must allege that the non-movant cannot produce any proof to support an element of the claim or defense.

Question 43

What should you do if opposing counsel referred to matters that the court had excluded from evidence?

Answer 43

You should object on the ground that the party has referred to a matter outside the record. If sustained, you can request an instruction that the jury disregard the statement. If the instruction is given, you would then have to request a mistrial in order to obtain the adverse ruling necessary to preserve the issue for appeal. Some references to matters outside the record are not curable by instruction. No objection is required to such matters during argument. The issue can be raised for the first time in a motion for new trial.

Question 44

If the other side presents no evidence to show you are liable, what can you do?

Answer 44

Make a Motion for a Directed Verdict, which is based on the argument that there are no controverted fact issues for the jury’s determination.

Question 45

When and how should parties object to a proposed jury charge?

Answer 45

Parties should present their objection before the charge is read to the jury. The objection should be specific, clearly identifying the errors and explaining the grounds for complaints, it should be made in writing, or on the record, and outside the presence of the jury. The parties should get a ruling on their objections.

Question 46

How can you preserve error for appeal if the judge fails to instruct the jury properly?

Answer 46

Make written requests for instructions, tender in writing substantially correctly worded instructions, and obtain a written ruling on these submissions. They must have been raised in the pleadings and supported by “some evidence” at trial.

Question 47

What happens if someone in the jury gets super sick and has to leave?

Answer 47

A verdict may be rendered by the concurrence of 10 members of the original 12 person jury. When the missing juror is “disabled from sitting” the case can proceed even w/o the consent of both parties.

Question 48

What happens if the jury fails to answer all questions as instructed in the jury verdict?

Answer 48

If material questions are not answered, the court should reject the verdict and, with proper instructions pointing out the defect, retire the jury for additional deliberations.

Question 49

If a juror communicates with an outside party or is influenced by a person or newspaper etc. who is not a part of the jury, what may a party do?

Answer 49

File a motion for new trial. Support by affidavit, alleging juror misconduct (third party communications during deliberations), materiality, and that the misconduct hurt her case. While jurors CANNOT testify as to deliberations, a juror may testify whether any improper outside influence was brought to bear on any juror.

Question 50

What should you do if after the jury verdict you believe that there is no evidence to support for the jury’s finding of fault?

Answer 50

File a Motion for Judgment Not Withstanding the Verdict (JNOV) challenging the legal sufficiency of the evidence supporting the jury’s finding of fault. This motion is proper when “knocking out” (no evidence supports) one or more jury findings entitles the movant to judgment. While the rules do not have a time limit for its filing, case law suggests that it may be filed after the court has entered judgment but before it becomes final.

Question 51

If a party files a motion for new trial after judgment is signed, and does not request a hearing on the motion, when will the judgment become final?

Answer 51

The motion is considered overruled by operation of law 75 days after the court signs the judgment. If a timely motion for new trial is filed, the trial court has plenary power over the judgment until 30 days after the motion is overruled, either by written order or by operation of law. If no action is taken by any party after filing the motion, the judgment will become final on the 105th day after the court signs the judgment.

Question 52

Where may a witness be deposed?

Answer 52

County of witness’ residence or employment. If witness is a party, then also in the county the suit is pending in.

Question 53

What action can be taken to verify the nature and extent of an opposing party’s claimed injuries? When must that action be taken?

Answer 53

The party can file a motion to compel the party alleging injury to submit to a physical examination. The physical condition must be in controversy. Good cause must be shown. The motion must be made 30 days before the close of the discovery period.

Question 54

How does a party request a jury trial?

Answer 54

File a written request and pay the jury fee at least 30 days before trial.

Question 55

What actions may a party take if it does not believe an expert is qualified if the expert is already testifying?

Answer 55

The party should object to the expert’s testimony before the expert testifies.If the objection was overruled, the party should ask to take the expert on voir dire outside the jury’s presence for the limited purpose of questioning the expert about his qualifications.

Question 56

The judge provides the final charge to the parties for review. A party finds a question is missing. What actions must a party take to preserve error regarding the omission of a jury charge question?

Answer 56

The party must tender, in writing, the omitted question, which should be in substantially correct form. The party must obtain a ruling before the charge is read to the jury.

Question 57

When must a party file a motion for new trial?

Answer 57

Within 30 days after the judgment was signed.