Civil Procedure

Question 1

Pleading & Timing to Obj. Personal JX

Answer 1

File a special appearance, which must be filed before any other pleading, plea, or motion; however, the special appearance may be consolidated with other pleading in a single instrument.

Question 2

What may the Court consider when Ruling on Personal JX objection?

Answer 2

The court could make this determination on the basis of the pleadings, any stipulations, other discovery, and any oral testimony.

Question 3

Diversity basis for removal to Fed. Ct.

Answer 3

Diversity exists when there is complete diversity (all parties across the “v.” are citizens of diff. states) & amount in controversy exceeds $75K.

Question 4

Pleading to object/challenge venue

Answer 4

File a motion to transfer venue prior to or concurrently with any other pleading (except a special exception).

Question 5

Response to objection/challenge of venue.

Answer 5

Respond by presenting prima facie proof (by affidavits and discovery materials) of matters specifically denying any of the challenger’s venue facts which respondent wishes to contest.

Question 6

Gen. Proper Venue

Answer 6

Venue is proper where

(1) Where events happened that gave rise to claim
(2) Defendant’s residence at time of event
(3) Principal office if Corp.
(4) Plaintiff’s residence

Question 7

Determination of Citizenship for Jurisdiction

Answer 7

Individuals: Citizens of state of domicile

Corporation:

(1) State of Incorporation &
(2) Principal place of business

Question 8

Personal Jurisdiction

Answer 8

Court has power over a person if Defendant

(1) has been served in the state,
(2) has had minimum contacts with the state (specific JX), or
(3) is “at home” in the forum state (gen. JX)

Question 9

Suit Starts when:

Answer 9

(1) Plaintiff files the original petition and case information sheet with the clerk of the court.
(2) The Plaintiff requests the issue of a citation (official notice to opposing parties)
(3) Plaintiff obtains service of process (serve citation and copy of the petition)

Question 10

Out Of State Service

Answer 10

Individuals the same as in state
Motorists: Serve chairperson of the Tex Trans. Comm.
Corp: If no principal place of buss/registered agent, then serve Sec. of State

Question 11

Transfer Venue when:

Answer 11

(1) Improper County
(2) Impartial Trial
(3) Parties Agree/Consent

Question 12

Improper Ruling on Transfer of Venue

Answer 12

If wrong ruling don’t get interlocutory appeal, but during normal appeal it’s reversible error and will reverse and remand for new trial.

Question 13

Transfer Venue for Convenience of parties

Answer 13

May transfer from one proper venue to another if proper venue and would be for the convenience of the parties and witnesses and in the interest of justice.

Question 14

Third Party claims

Answer 14

Third Party must indemnify the defendant for any loss/liability/damage incurred or must contribute due to fault in own acts

Motion for Third Party if filed 30 days after answer, must request permission (leave) from the court

Question 15

Plea in Abatement

Answer 15

Suspends suit due to facts outside the pleadings impede the suit to move forward in its present condition.
Court will look for defects in allegation and in the standing of the parties and will suspend until defects are cured.

Question 16

Answer

Answer 16

Must be filed by 10:00AM on Monday 20 days after date of service

Question 17

Default Judgment

Answer 17

Entered when a defendant was properly served but does not file an answer in the prescribed time period and the citation of service has been on file with the clerk for 10 days, exclusive of the day of filing and the day of judgment.

So long as answer before default judgment is entered, you can prevent default

Question 18

Affirmative Defense

Answer 18

Must be raised in the answer or they are waived. May amend answer up to 7 days before trial

S.o.L.
Accord & Satisfaction
Contributory Neg.
Release

Question 19

Special Exceptions

Answer 19

Filing to challenge the legal sufficiency of a pleading, such as inadequate facts alleged, failure to state a cause of action, failure to state a maximum amount of damages. This allows other party to cure defect, and preserves defect error (waive if not filed).

Question 20

Discovery

Answer 20

(1) Requests for Disclosures, (2) Production, and (3) Admission.
(4) Interrogatories.
(5) Oral &
(6) Written Depos.
(7) Motions for Physical Exam.
(8) Med. Records related to subject of suit

Question 21

Discover of Testifying Experts

Answer 21

Requests for Disclosures, Depositions, Interrogatories, Requests for production, and Court-ordered reports

Question 22

Levels of Discovery

Answer 22

Level 1 ($100K or less): 6hrs Depo (maybe 10Hrs), 15 interrogatories, 15 requests for production and 15 for admission

Level 2 [default if not mention level] allows discovery up until 30 days before trial, 9 months after first oral depo, or 9mths after first written discovery. Allows 50hrs of depo, 25 interrogatories. no limit to other types of discovery.

Level 3 Controlled by Court, must request discovery from the court. No limit.

Question 23

Jury Demand

Answer 23

Written request for jury trial must be filed and pay fee within a reasonable time before trial, but not less than 30 days before trial. (whole point is to place opposing party on notice of jury trial)

Party obj. carries burden if made 30 days before trial, party requesting has burden if within 30 days of trial

Question 24

Jury Challenge

Answer 24

For Cause: Interest in subject of case, witness to the case, relationship to party, saw identical case before, bias or prejudice
Peremptory: each side gets 6, but may be equalized if multiple parties with antagonistic interests on same side.

Question 25

Directed Verdict and JNOV

Answer 25

Directed verdict may be requested at any time after the opposing party has been fully heard and that issue or claim, but before the case has been submitted to the jury.

JNOV must be after the jury has entered its verdict.
Movant must shown there is insufficient evidence (no evidence on material fact) or has presented conclusive evidence on material facts.

Question 26

Final Judgment

Answer 26

Disposes of all parties and all claims

Question 27

Insufficient Pleadings–Challenge lack of specificity in pleadings

Answer 27

File a special exception seeking a specification and asking the court to require party to amend pleadings. Must be done in writing, call of a hearing, and get a ruling on the exception on the record.

Question 28

When must requests for production be answered?

Answer 28

50 days after service of the request

Question 29

What is the effect of a late response to requests for admission? What must a party do or show to change that result?

Answer 29

An untimely response to the request for admission results in the admission being deemed admitted, without necessity of a court order. To change the result, responding party must motion to withdraw the deemed admission by showing good cause and no undue prejudice will result.

Question 30

Verification of physical injuries

Answer 30

motion asking the court to order a medical examination by a qualified physician, but this request requires a showing of good cause.

Question 31

Avoiding discovery for attorney privilege material

Answer 31

In response state the information or material responsive to the discovery request has been withheld; the request to which the information or material relates; and the privilege asserted.

Question 32

Inadvertent discovery production of privileged information

Answer 32

Respond within 10 days. Must then amend the repose to the discovery, identifying the material produced and stating the privilege asserted. The requesting party had to promptly return the specified material and any copies pending a court ruling.

Question 33

Obj. that can be made during deposition

Answer 33

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

Question 34

How can party challenge an expert and his/her opinion?

Answer 34

file a pre-trial Daubert motion challenging the

expert’s qualifications or challenging the reliability/relevance of the expert’s opinions.

Question 35

pretrial procedure to avoid the necessity of a trial on specific claim?

Answer 35

file either a traditional motion for summary judgment or a no-evidence motion for summary judgment on the defect claim.

Question 36

Witness not previously disclosed; how can witness testify?

Answer 36

Motion should show

(1) good cause for the failure to timely supplement the disclosure, or
(2) that the opposing parties will not suffer any prejudice or surprise.

Question 37

At the conclusion of plaintiff’s case in chief, the defense believes they failed to present any evidence to support the claim filed against then. What procedure is available at this point in the trial to bring the matter to the attention of the Court?

Answer 37

File a motion for a directed/instructed verdict, showing that the evidence was insufficient to raise a fact issue on the alleged claim.

Question 38

A verdict has been reached, but a party does not believe the evidence supports the jury’s verdict. what pleadings can be filed to prevent the entry of a judgment in support of the Jury’s Verdict?

Answer 38

(1) File a motion for judgment notwithstanding the
verdict, or
(2) File a motion to disregard a jury finding on a
question that has no support in the evidence or is immaterial.

Question 39

When must a motion for new trial be filed in order for it to be timely? What happens if the Court never rules on a motion for new trial?

Answer 39

Motion for new trial must be filed prior to or within 30 days after the judgment is signed, and the motion is overruled by operation of law 75 days after the judgment is signed.

Question 40

Pleading to add a party to the case, and when must it be filed?

Answer 40

File a Third Party Petition and citation in order to add a party to the case, and leave of court is required if the pleading was filed outside 30 days after Extra filed its answer.

Question 41

Service of Process on a non-texts corporation

Answer 41

Corporation does not have a principle place of business in Texas and did not have an agent for service in Texas, that service of process could be accomplished by serving the Texas Secretary of State. Few examinees knew the Texas Secretary of State would then forward the citation and Third Party Petition to Parts’s corporate headquarters.

Question 42

Discovery to determine if party has insurance coverage and any documents the insurance has referring the claim/case?

Answer 42

Requests for Disclosure, Interrogatories, or Request for Production

Question 43

Discovery to determine what facts expert’s investigation revealed, and what the experts opinions are, when no such written report exists:

Answer 43

If an expert report is not produced in response to Requests for Disclosure, a motion to require the expert to reduce his findings and opinions to written form is allowed.

Question 44

Discovery of prior Medical Records when such records could disclose alleged conditions are in fact a pre-existing condition, but claimant refuses to sign med. authorization form for such records.

Answer 44

File a motion to compel signing of medical authorization for the records.
Movant must set forth, in the motion:
(1) an explanation as to why they believe that claimed already suffer from the alleged condition,
(2) that movant does not otherwise have access to the prior medical records
(3) there is good cause for the court order.

Question 45

Motions to quash deposition over where the depositions should be held, how should court rule/address the issue?

Answer 45

if the parties cannot agree on where the depositions should take place, the court should order the party depositions to be taken in the county of the pending lawsuit.

Question 46

Discovery to compel corporate party to produce a witness for deposition in the case?

Answer 46

Serve a notice to depose a designated corporate representative. The notice needs to describe
with reasonable particularity the matters on which the deposition is requested.

Question 47

What motion or motions should be filed in order for movant party to be dismissed from the case? What documents should be attached to the motion or motions?

Answer 47

File a no-evidence motion for summary judgment and a traditional motion for summary judgment. The expert’s report and the Fire Marshall’s report should be attached.

Question 48

Steps to take to challenge a potential juror?

Answer 48

move to challenge the juror for cause
If the challenge for cause failed, party should use a preemptory strike, and notify the court of the need to use the preemptory strike.

Question 49

Order of witnesses in civil case

Answer 49

Witnesses may be called in any order

Question 50

Failure to disclose a witness when all other parties in case have called that witness to testify.

Answer 50

Court should allow the Fire Marshall to testify. The failure to list the witness must be shown to be an oversight, that good cause existed to allow the late designation, and that no other party would be prejudiced because all parties had access to the Fire Marshall’s report and his deposition.

Question 51

Effect of Directed Verdict for one party, and not other parties.

Answer 51

Claims asserted against the party for whom the Directed Verdict was granted should not go to the trail because and only the claims for the remaining parties goes to the jury.

Question 52

Effect of failing to properly file amended pleadings following a Special Exception:

Answer 52

Opposing party may file a motion to dismiss because of the failure to properly refile the claims asserted as required by the special exception.

Question 53

Filing to assert corporation over personal liability in suit, when not properly named by the petition/pleadings

Answer 53

File a verified denial that defendant has been sued in the wrong capacity.

Question 54

When and how must an affirmative defense be asserted?

Answer 54

Should raise the affirmative defense in its answer or amended answer.

Question 55

When must the amended answer be submitted?

Answer 55

An amended answer must be submitted at lest seven days before trial.

Question 56

Proper response to request for medical authorization/medical records

Answer 56

Respondent should provide a proper medical authorization, and the court should compel such proper authorization if respondent refuses to provide it. Respondent’s production of of the record is not a proper substitute for the authorization.

Question 57

What remedies are available when party fails to produce a witness at the deposition as noticed?

Answer 57

Aggrieved party could file a motion for sanctions, including attorney’s fees incurred in obtaining the order, or an order compelling discovery based on opposing party’s failure to produce a witness at a proper noticed deposition. Aggrieved party could also file a motion for default judgment or that non-aggrieved party’s pleadings be struck.

As a party, the notice of deposition has the same effect as a subpoena which the a party cannot ignore.

Question 58

How and when can you object and abate a deposition?

Answer 58

File a motion to quash the notice of deposition, which if timely (done within 3 days of service of notice), will result in an automatic quash.

Question 59

pleading to add a third party as being the one responsible for the claim being asserted in suit

Answer 59

file a a motion to add a responsible third party

Question 60

Third Party Responsibility Damages Immunity

Answer 60

Despite being a third party immune from having to pay money damages, because (purpose is:) a jury is allowed to consider the responsible third party’s conduct when allocating fault for party.

Question 61

How and when to respond to a motion for summary judgment?

Answer 61

Respond with affidavits filed seven days before the hearing on the motion for summary judgment

Question 62

After filing a motion for new trial, and nothing is ever done about it from any party or the court, when is the judgment final?

Answer 62

The judgment becomes final 75 days from the date the judgment a signed, when the motion for new trial is overruled by operation of law.

Question 63

What must be served on a defendant to compel an answer from them?

Answer 63

A copy of plaintiff’s original petition and a citation prepared by the clerk of the court must be served on them.

Question 64

What is Texas’s preference to jury trial?

Answer 64

they are strongly in favor of jury trials.

Question 65

Verdict by Portion of Original Jury

Answer 65

same ten or more members of an original jury of twelve or of the same five or more members of an original jury of six

rendered awarding exemplary damages only if the jury was unanimous in finding liability for and the amount of exemplary damages

Question 66

Jury Misconduct

Answer 66

A juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror.

Question 67

Impact of Responsible Third Party on Statute of Limitations

Answer 67

it tolls the statute of limitation for 60 days from the date of the order adding the responsible third party.

Question 68

What form of discovery is not subject to any objection?

Answer 68

Requests for Disclosures are not subject to any objection

Question 69

Must parties respond to Interrogatories asking for list of trial witnesses?

Answer 69

Party is required to disclose their trial witnesses in response to interrogatories

Question 70

Counterclaim

Answer 70

A counterclaim is a claim by one party against an opposing party. the counterclaim is compulsory if it raises out of the same occurrence that is the subject matter f the principal action. Failure to assert a compulsory counter claim in the present suit means that its subject matter will thereafter be barred in subsequent litigation.

Question 71

Evidence of what was said during settlement or mediation of a claim alluding to guilt:

Answer 71

Mediation/Settlement negotiations are not admissible for any pushes, and court should not allow such evidence to be admitted

Question 72

Omitted Definition or Instruction

Answer 72

Objection and Request/Submit a substantially correct instruction or definition to Preserve Error

Question 73

Gaps in Jury Charge

Answer 73

A judgment cannot be based on a verdict containing unanswered issues, supported by some evidence, unless the issues are immaterial.

The trial court must instruct the jury to deliberate further on the issues. If upon further deliberation the jury cannot agree on answers to the issues, the trial court may declare a mistrial, but the trial court may not render judgment based on the incomplete verdict.

Question 74

How can you acquire subject matter jurisdiction

Answer 74

to acquire subject matter jurisdiction, allege defendant is a foreign corporation with no principle place of business and no registered agent.

Question 75

Venue is a Law or Fact issue

Answer 75

Law

Question 76

Notes made by attorney on case

Answer 76

not discoverable and should object on the grounds t hat they are privileged work product.

Question 77

Discovery of list of relevant people and contact info who attorney may contact to interview for the case

Answer 77

discoverable because

Question 78

Absent an agreement, where are depositions going to be held?

Answer 78

In the county where suit has been filed

Question 79

Pleading to assert affirmative defense if filed within seven days from start of trial

Answer 79

Must obtain leave of court

Question 80

Notice for Setting for Trial

Answer 80

Court may set trial at any time or upon request. Notice of first trial setting must be given at least 45 days prior, but only reasonable time required after that.

Question 81

Reapportioning Peremptory Challenges

Answer 81

When antagonistic parties on the same side are required to share six strikes, it is error amounting to a violation of the basic right to trial by jury.

In most cases a two-to-one ratio between sides would approach the maximum disparity allowable.

Question 82

Peremptory Challenges

Answer 82

A peremptory challenge is made to a juror without assigning any reason therefor.

each party to a civil action is entitled to six peremptory challenges in a case tried in the district court, and to three in the county court.

Question 83

Timing to File a Motion for new Trial

Answer 83

A motion for new trial must be filed within 30 days after judgment. May amend motion before previous one is ruled on and within 30 days from last judgment or order.

In the event an original or amended motion for new trial or a motion to modify, correct, or reform a judgment is not answer within 75 days after judgment was signed, then assume to have been overruled.

Question 84

Timetable for Appeal w/out Motion for New Trial

Answer 84

(1) Notice of Appeal due 30 days from Judgment
(2) Record is due in Court of Appeals the 60th day from final judgment.
(3) File appellant’s brief 30 days from filing of record
(4) File appellee’s brief 30 days from filing of appellant’s brief
(5) File reply brief 20 days from filing of Appellee’s brief

Note: Clerk’s record includes everything filed with trial court. Court Reporter’s record includes all that was said/occurred during the court proceedings and includes the exhibits before the court, regardless if admitted or not. Individual attorneys are tasked with making sure that the Reporter puts record together and is sent up to the appeals court. May get time extension if Reporter needs additional time to put record together.

Question 85

Timetable for Appeal w/ Motion for New Trial or to Modify

Answer 85

(1) File motion for new trial or modify within 30 days of final judgment
(2) Overruled by operation of law within 75 days from final judgment
(3) File notice of appeal in trial court and copy to court of appeals by day 90
(4) End maximum period of trial court’s plenary jurisdiction on day 105. (assuming court modified judgment on day 75, which grants 30 days–thus 75+30=105 max days of plenary power).
(5) Record is due in court of appeals on day 120
(6) File appellant’s brief 30 days from filing of record
(7) File appellee’s brief 30 days from filing of appellant’s brief
(8) File reply brief 20 days from filing of Appellee’s brief

Question 86

Discovery of relevant statements to claim

Answer 86

Statements regardless of the source (from whatever source) are discoverable through requests for production or requests for disclosures (

Question 87

Collaboration of Jury Challenge

Answer 87

Court cannot prevent collaboration in striking the jury by the parties.

Question 88

Order and authority of plaintiff to call witnesses

Answer 88

Plaintiff may call the defendant and any other witnesses at any time during its case.

Question 89

How should jury learn of jury charge?

Answer 89

Court should read it out loud, and the jury is allowed to have copies of the charge during closing arguments

Question 90

Discovery to gain specificity on damages

Answer 90

Interrogatories and/or Requests for Production

Question 91

To preserve error when a challenge for cause is denied

Answer 91

To preserve error when a challenge for cause is denied, a party must use a peremptory challenge against the venirmember involved, exhaust its remaining challenges, and notify the trial court that a specific objectionable veniremember will remain on the jury list.

Question 92

interlocutory appeal for denial of motion for summary judgment

Answer 92

may not file one

Question 93

Preserve error on Motion in Liminie

Answer 93

Party was required to approach the bench, formally offer the evidence, and obtain a ruling before asking witness about matter pertaining to motion.

Question 94

Five categories of information in a request for disclosure:

Answer 94

(1) the correct names of the parties,
(2) the names, addresses, and telephone numbers of potential parties,
(3) the names, address, and telephone number of any person who may be designated as a responsible third party,
(4) the names, addresses, and telephone numbers of persons having knowledge of relevant facts, along with a brief description of each person’s connection to the case; and
(5) any indemnity and insuring agreements

Bonus:

(6) witnesses statements
(7) amount and method of calculating economic damages

Question 95

Amendment of discovery response

Answer 95

must be made when the party learns response is no longe complete or correct, and must be done reasonably prompt, but no less than 30 days before trial.

Question 96

Requests for production and inspection

Answer 96

because intent of testing production, must indicate the method to be used and the manner, means, and procedure for testing.

Question 97

Remedies for improper objections during depo

Answer 97

May request a protective order and sanctions be imposed.

Question 98

Traditional Summary Judgment

Answer 98

Support with evidence negating the essential element by using affidavits and deposition transcripts

Question 99

No evidence Summary Judgment

Answer 99

After adequate time for discovery, a party who does not bear the burden of proof at trial on the claim can simply state that there is no evidence of one or more essential elements.

Question 100

Invoking “The Rule”

Answer 100

At the request of any party, the witnesses on both sides shall be removed from the courtroom to some place where they cannot hear the testimony delivered by any other witness in the cause. The court shall swear the witnesses in before excluding them, and should be instructed not to speak to anyone except the lawyers about the case.

A court has discretion to allow a witness to testify even though the witness has violated the Rule by remaining in the courtroom during another witness’s testimony.

Question 101

Failure to ID witness

Answer 101

must show either good cause for its failure to list the witness in its discovery responses or that its failure to do so would not cause unfair prejudice.

Question 102

Jury has question regarding substance of witness statement during trial

Answer 102

May be answered by reading from the court reporter’s transcript, or by calling in the witness to repeat what was said if can’t read from court reporter’s transcript.

Question 103

How to raise issue that verdict is not supported by the evidence?

Answer 103

Motion for JNOV and/or Motion for New Trial within 30 days from judgment

Question 104

Response to motion for change of venue

Answer 104

Respond by submitting affidavits indicating why venue is proper in county where filed.

Question 105

Asserting Privilige to Discovery

Answer 105

preserve privilege to requested documents by asserting the privilege, by serving on requesting party 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 106

Obtaining basis of Experts Opinion

Answer 106

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 107

Pleading to reduce damages awarded

Answer 107

Remittitur

Question 108

Due date on response to discovery

Answer 108

30 days from service, and may be timely if deposited in mail on the last day available to respond.

Question 109

Req. for Continuance to Obtain Testimony

Answer 109

Present affidavit that testimony is material, and that it can’t be obtained by any other method, if it’s not the first of such request. (Other means not req. if it’s the first of such application).

Question 110

Indp. verification of medical circumstances

Answer 110

motion to compel independent medical examination was the proper pleading, but few knew when it had to be filed (30 days before end of discovery period) and few mentioned the good cause requirement.

Question 111

Batson Challenge

Answer 111

(1) The opponent of the peremptory challenge must establish a prima facie case of racial discrimination.
(2) The burden then shifts to the party who has exercised the strike to come forward with a race-neutral explanation. Unless a discriminatory intent is inherent in the explanation, the reason offered will be deemed race-neutral for purposes of the analysis at step two.
(3) The trial court must then determine if the party challenging the strike has proven purposeful racial discrimination, and the trial court may believe or not believe the explanation offered by the party who exercised the peremptory challenge.

Must be objected prior to impanelling of the jury