Civil Procedure and Evidence - Texas

Question 1

To avoid default judgment, what pleading must defendant file and when?

Answer 1

File answer by 10am on the next monday after the 20th day after service

Question 2

Change of venue motion, effect on final judgment if erroneous?

Answer 2

An erroneous ruling amounts to reversible error. The trial court’s ruling would be reversed and the cause remanded.

Question 3

Plead more specific facts?

Answer 3

Defendant should file a special exception to Plaintiff’s original petition. A special exception is used to indicate formal defects in particular allegations such as excessively general, uncertain or ambiguous allegations that fail to give fair notice. Defendants must object in writing, call for a hearing, and gets ruling on the record. If sustained, the plaintiff must amend the petition to correct the defects or face dismissal of his case.

Question 4

Evidence that releases of all claims

Answer 4

Affirmative defense, must be raised with defendant’s answer

Question 5

Objection to discovery of a statement? How should the court rule?

Answer 5

Objection should be overruled, statements are always discoverable and proper requests for disclosure are not subject to objections

Question 6

Attorney gets sick and misses request for admission, results in “deemed admission”, what should the attorney do?

Answer 6

File motion to withdraw deemed admission, motion must be based on showing of good cause for the failure to timely respond

Question 7

Original Petition did not include damages, then Plaintiff seeks huge amount, what should defendant do?

Answer 7

Should file special exception, could also serve interrogatories and/or a request for production

Question 8

Objection to discovery based on parent-child privilege

Answer 8

Overrule, no such thing as parent-child privilege

Question 9

Objection to discovery of insurance based on collateral source rule?

Answer 9

Overrule objection, insurance information is discoverable although insurance is collateral source so it may not be admissible at trial

Question 10

The plaintiff files a motion to strike the addition of a Responsible 3rd Party because the plaintiff thinks the R3P is judgment proof (P won’t be able to get any money out of them)?

Answer 10

Overrule objection, adding 3rd party is to allocate fault, being judgment proof is not a basis on which to object

Question 11

Party objects to produce medical authorization. How should the court rule?

Answer 11

The Court should overrule the objection because a Plaintiff is required to prove authorization regardless of producing medical records and bills.

Question 12

No evidence?

Answer 12

File a no-evidence summary judgment or traditional MSJ, state basis for which such motions are granted

Question 13

Trying to avoid matter being disclosed at trial, what do you file?

Answer 13

Should file motion in limine, state basis - would be prejudicial and irrelevant to any fact issue in the case

Question 14

Objection to exclude deposition testimony taken in same case?

Answer 14

Overrule objection, deposition taken in the same lawsuit is admissible even if the witness is available for live testimony

Question 15

Juror shows bias, what do you file? Preserve error?

Answer 15

Strike the juror for cause, to preserve error would need to exercise a preemptory strike and make a record that but for the strike on this juror, it would have stricken another juror who is now on the panel

Question 16

How many preemptory challenges should each party be granted? Can parties collaborate?

Answer 16

Each receives 6 strikes. The Court cannot prevent collaboration, but if so, the Court can grant other party additional strikes

Question 17

The verdict is returned but some jury questions were not answered, should this amount to granting a motion for mistrial?

Answer 17

No, court should not grant motion for mistrial and instead instruct the jury to continue its deliberations to answer the remaining questions

Question 18

A party is contesting personal jurisdiction, what must they file and when?

Answer 18

File a verified special appearance, must be filed before any other pleading

Question 19

What must a party file when they think the case should be moved to a different court? When should they file it?

Answer 19

File a motion to transfer venue, file it prior to or concurrently with any other motion

Question 20

5 categories of disclosure?

Answer 20

• correct names of parties- amount of damages- settlement agreements- witness statements- legal and factual grounds for the claim or defense

Question 21

Party failed to disclose two witnesses in response to disclosure, what should it do?

Answer 21

Party must amend or supplement a discovery response when it learns the response is no longer correct or complete. Such amendment or supplement must be made reasonably promptly and no less than 30 days before trial

Question 22

What type of discovery request can a party serve on the other party in order to obtain access to, inspect, and test a certain piece of evidence?

Answer 22

Party should file a request for production and inspection of the evidence. Since the party wants to test the piece of evidence, must also indicate the method to be used and the manner, means, and procedure for the testing.

Question 23

Party sends request for admission, the other party responds 35 days later denying, what is the effect of this response?

Answer 23

A Party has 30 days to respond to a request for admission. Since the response was after 30 days it will be a “deemed admission”. The responding party can withdraw a deemed admission by making a motion showing good cause and that the party will not be unduly prejudiced by the withdrawal.

Question 24

P failed to request a jury trial in the original petition. 50 days before the trial, P request jury trial and pays jury fees. The opposing party objects, how should the court rule?

Answer 24

The court should overrule the objection. It does not matter that it was not requested in the original petition, a party can request a jury trial and pay jury fees within a reasonable time but not less than 30 days before trial.

Question 25

During the deposition of defendant’s witness, defendant repeatedly objects suggesting how the witness should respond and asserting the questions call for hearsay testimony, what remedies may the Plaintiff request and how should the court rule on the requests?

Answer 25

Plaintiff can request to suspend the deposition and request a protective order and sanctions. The court should grant this request because the only objections to questions during an oral deposition are limited to “objection, leading” and “objection, form”.

Question 26

Defendant’s expert testifies that it was another party’s fault. Discovery is complete, what motion or motions should Defendant file in order to be dismissed from the case and what must Defendant assert? Also what documents should be attached to the motion(s)?

Answer 26

Defendant should file both a no-evidence and traditional MSJ. (STATE WHAT EACH MOTION SHOULD ASSERT) and attach the expert’s deposition/affidavit.

Question 27

One party doesn’t want the witnesses to be in the courtroom once testimony begins, what can they do and what instructions, if any, must the court give the witnesses?

Answer 27

The party should invoke “the rule” and request the judge to order testifying witnesses be excluded from the courtroom. The court should swear in the witnesses before excluded them and instruct them to discuss the case only with the attorneys.

Question 28

Party is trying to keep out his past DWI. How can he do this and what must he show?

Answer 28

File a motion in limine. Must establish why the probative value of the evidence was substantially outweighed by the danger of unfair prejudice and why the evidence is irrelevant.

Question 29

Party wants to keep a potential juror out because he used to work for the company and thought it treated him unfairly. What can the party do?

Answer 29

Party can move to strike for cause on basis of prejudice. If motion is denied, the party can use a preemptory strike.

Question 30

A witness testifies differently from what is in the deposition, what steps must a party take before impeaching the witness with his previous testimony?

Answer 30

The party must show the witness the contents of his previous testimony and the time, place, and to whom the testimony was made. The witness should be given a opportunity to explain or deny the testimony.

Question 31

P is trying to file suit against company that has no relationship to state, who must P serve in order to acquire subject matter jurisdiction over the company and what must P allege in the lawsuit?

Answer 31

P must serve the company through the Texas Secretary of State. Must allege the company is a foreign company with no principle place of business or registered agent in Texas.

Question 32

A company has no employees, agents, or any office in Texas, but has been served with a suit in Texas. What must the company file in order to object to being sued in Texas and when should the pleading be filed?

Answer 32

The company should file a special appearance before any other pleading. Needs to be filed before the answer date.

Question 33

Party 1 submits 50 separate interrogatories and 50 requests for admission to Party 2. Party 2 objects to the discovery requests as being in violation of TRCP. How should the court rule?

Answer 33

The Court should sustain the objection to the interrogatories because only 25 are allowed. The objection to the requests for admission should be overruled because there is no limit on requests for admissions.

Question 34

Attorney interviewed several witnesses. Attorney made and kept notes but took no witness statements. Opposing party requests production of attorney’s notes as well as the names and addresses of those persons interviewed. What pleading, if any, should the attorney file in order to avoid the production of the notes? How should the court rule?

Answer 34

Attorney should file an objection to the discovery request on the grounds that the attorney’s notes are privileged and the court should sustain the objection. The attorney will however have to produce the names and addresses of persons interviewed because they are persons with knowledge of relevant facts.

Question 35

At the scheduling conference, attorney declines to advise the court or the other party’s attorney whether his client is covered in whole or in part by insurance. What pleading or instrument should the opposing party file to determine whether the client has insurance coverage for the other party’s claim and lawsuit?

Answer 35

The opposing party should file request for disclosure to obtain insurance information. Could also file interrogatories.

Question 36

Parties agree on a date to depose primary parties and party reps, but do not agree on he location for the depositions. One party files a motion that the depositions be taken in the county of its principle place of business (different than the county in which the suit is filed). The opposing party objects. How should the court rule?

Answer 36

Court should deny motion regarding depositions in the party’s principle place of business because absent an agreement, party depositions are held in the county in which the suit is filed.

Question 37

An investigation by one party reveals the opposing party failed to heed its warning label. What pleading, if any, must the party filed in order to raise this issue with the court and to support a jury question on these issues, and when should such pleading be filed?

Answer 37

Party needs to file an amended answer asserting an affirmative defense at least 7 days before trial.

Question 38

Plaintiff filed a jury demand with his original petition. Later, the plaintiff files a motion to withdraw his jury demand. The opposing party objects to removal of the case from the jury docket. How should the court rule?

Answer 38

Court should deny motion to withdraw because withdrawal is only proper when all parties consent.

Question 39

Defendant gathered evidence that Plaintiff’s neighbor actually caused the injury. What pleading should defendant file to support its evidence of the neighbor’s negligence and to support a jury question on the issue the neighbor’s negligence?

Answer 39

Defendant should file a motion to add the neighbor as a Responsible Third Party.

Question 40

Defendant allege, generally, that P’s contributory negligence was a cause of the accident in question. What pleading must P file in order to determine what facts Defendant is relying on to support its defense of contributory negligence?

Answer 40

P should file special exceptions. P should ask Court to require D to replead case with specificity or, in the alternative, strike their pleadings.

Question 41

After discovery is complete, defendant believes there is no evidence that its product was defective or that it was a negligent in causing the occurrence in question. What pleading(s) should defendant file in order to bring this issue of no liability before the court?

Answer 41

Defendant should file a no-evidence motion for summary judgment. Could also file a traditional motion for summary judgment.

Question 42

Discovery reveals that D is not covered by liability insurance. D advises the Court that it intends to tell the jury panel that it has no insurance and that a large verdict will financially destroy D. P objects, files a motion to exclude this evidence and requests the Court to order D not to advise the jury panel that it has no insurance. How should the Court rule?

Answer 42

Court should instruct D not to discuss insurance or its financial status because such information was not relevant to the case.

Question 43

At trial, D calls P’s neighbor as a witness to testify that P told the neighbor, after purchasing the product but before the occurrence, P thought the product was very combustable and could cause a fire. P objects to this testimony as hearsay. How should the Court rule?

Answer 43

Court should overrule P’s objections to neighbor’s testimony because P’s statement was an admission against interest.

Question 44

At a court ordered mediation, D’s store manager told the mediator that D will not contest liability for the purposes of mediation. P subpoenas the mediator to testify at trial. D objects to any testimony from the mediator. How should the Court rule?

Answer 44

Court should sustain D’s objection because mediation statements are confidential.

Question 45

After P has presented all of his evidence, he rests. D believes that the evidence is legally insufficient to support jury findings and judgment against him. What pleading should D file to bring this issue to the attention of the Court?

Answer 45

D should file a motion for directed verdict, asserting there was legally insufficient evidence to support a verdict or judgment against him.

Question 46

Jury returns verdict awarded P $50k for past medical expenses. The parties stipulated before trial that P’s group health carrier has paid $30k for his past medical expenses and that these payments fully satisfied P’s medical accounts. P files motion for judgment for $50k for past medical expenses; D files motion for judgment of $30k. How should the Court rule?

Answer 46

Court should grant D’s motion for $30k verdict because past medical expenses are limited to those expenses paid or incurred.

Question 47

D objects to jurisdiction on ground that it is not amenable to process. What should D file and when?

Answer 47

D should file a special appearance before any other pleading.

Question 48

D properly presents its objections to the Court’s jurisdiction over it. What may the Court consider in ruling on the objection?

Answer 48

Court may consider pleadings, any stipulations, other discovery, and any oral testimony

Question 49

What is the deadline to file a response to Request for Production?

Answer 49

50 days after service of request

Question 50

What is the deadline to file an answer to the petition to avoid a default judgment?

Answer 50

Must file by 10am on the first monday after the expiration of 20 days from the date of service

Question 51

After plaintiff files his lawsuit, what documents must be served upon the defendants in order to compel them to file an answer?

Answer 51

A civil suit is commenced by a petition filed in the office of the clerk. In order to compel the defendants to file an answer, the plaintiff must obtain service of process on each defendant: a copy of the citation issued by the clerk and of the petition.

Question 52

What pleading should defendant file to contest the filing of the suit in a certain county and when should the pleading be filed?

Answer 52

The defendant should file a motion to transfer venue to contest the filing of the suit in that county. The motion must be filed before any other plea or pleading other than a special appearance or it is waived. The defendant may filed a consolidated response without waiving the venue challenge.

Question 53

Proper venue rule wording.

Answer 53

Venue would be proper in (blank county) because it is the county in which all or a part of the events of omissions giving rise to the claim occurred.

Question 54

Defendant believes that Plaintiff’s suit is barred by the statute of limitations. The Defendant does not want to disclose this defense for strategic reasons. Must the defendant raise this issue before the case goes to trial and if so, how should the Defendant assert the defense of limitations?

Answer 54

Yes. Defendant should assert the defense of limitations as an affirmative defense in its answer. The statute of limitations must be pleaded as a ground of defense on which the Defendant has the burden of proof. Failure to plead the defense of limitation waives the defense. Adding the defense as a trial amendment would be a poor strategy because the Plaintiff would likely show surprise or prejudice which would cause the court to deny Defendant’s motion to leave to file a trial amendment.

Question 55

Plaintiff wants to know if Defendant has liability insurance to cover any of the claims brought in the suit. Defendant’s attorney informally tells Plaintiff’s attorney that the defendant has no insurance. What document can the Plaintiff serve to determine whether the defendant is covered by insurance?

Answer 55

The Plaintiff can use a request for disclosure to obtain discovery of the existence and contents of any insurance agreement under which any person may be liable to satisfy all or any part of a judgment.

Question 56

Following the Plaintiff’s injury, the Defendant moved the machine that caused the injury to a safer location in the store. What documents should the Defendant file to bring this matter to the attention of the court and to keep this matter from being presented to the jury?

Answer 56

The Defendant should file a motion in limine. If granted, neither the Plaintiff nor his counsel could mention the machine’s relocation in voir dire, opening statement, or during the presentation of evidence without first obtaining a ruling on admissibility outside the presence and hearing of the jury.

Question 57

Plaintiff’s counsel attempts to offer the fact of the post-accident re-location of the machine, what substantive objection should the Defendant make regarding this evidence?

Answer 57

The Defendant should object that the evidence of the relocation of the machine is an inadmissible subsequent remedial measure. The court should sustain this objection because evidence of a post-accident measure taken to make injury or harm less likely is inadmissible to prove negligence or other culpable conduct. Here, the post-accident relocation of the machine is designed to prevent customer injuries and is therefore an inadmissible subsequent remedial measure.

Question 58

In his first amended original petition, Plaintiff alleges direct acts of negligence and alleges claims of negligent hiring, staffing, and supervision against the Defendant due to its high employee turnover rate. Discovery is complete and Plaintiff has produced no evidence to support the negligent hiring, staffing, and supervision claims. Defendant fears this pleading will be prejudicial to its defense. What pleading should Defendant file to attack these allegations of negligent hiring, staffing, and supervision, so as to remove them from the court’s and jury’s consideration?

Answer 58

Defendant should file a no evidence motion for summary judgment to attack Plaintiff’s allegations. After adequate time for discovery, Defendant may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim on which Plaintiff would have the burden of proof at trial. Defendant’s motion would state that Plaintiff has produced no evidence of negligent hiring, staffing, or supervision.

Question 59

After hearing a motion to transfer the lawsuit to another county, D wants to appeal the trial court’s decision. What appellate review is available for D?

Answer 59

An interlocutory appeal is available.

Question 60

After the accident, P went to D and demanded it do other work. D does the work believing that the work constituted an accord and satisfaction. What pleading should D file in order to bring this issue to the attention of the trial court and support a jury question on that issue?

Answer 60

D should raise in an amended answer the affirmative defense of accord and satisfaction.

Question 61

How many interrogatories is a party allowed?

Answer 61

25

Question 62

Must the court read aloud to the jury the jury charge? Are the jury allowed a copy of the jury charge during closing arguments?

Answer 62

Yes and yes

Question 63

After verdict against P, P files a motion for a new trial based on jury misconduct. At the hearing on the motion, it comes out that one juror said “I don’t care what you think the evidence shows, this guy is suing because he is broke and wants these defendants to bail him out and I think he is entitled to zero.” Assuming this is the only evidence presented at the hearing, how should the trial court rule on the motion for new trial?

Answer 63

Should deny it. There is no evidence of outside influence on the jury.

Question 64

D files a motion adding W as a Responsible Third Party. After a hearing on Dan’s motion, the court enters an order adding W to the case. The next day P sues W for damages as a party defendant. W asserts the defense of limitations against P’s claims. How can P defeat W’s claim?

Answer 64

Adding a Responsible Third Party tolls the statute of limitations for 60 days from the date of the order adding the Responsible Third Party

Question 65

D plans to assert a limitations defense later in the case. What pleading should D file to assert the defense of limitations and when must it be filed.

Answer 65

D should plead defense in an amended petition at least seven days before trial

Question 66

Which form of discovery is not subject to any objection?

Answer 66

Request for Disclosures

Question 67

After some discovery is completed, D believes there is evidence that T (not P) was actually caused the accident. Can D wait until the present case is reduced to a final judgment and then file another suit for damages against T?

Answer 67

D must file his claim against T in this action. Such a claim would be a compulsory counterclaim.

Question 68

The parties attended a mediation. P presented witness statements and a video statement of her doctor regarding the extent and duration of her injuries, all of which are prepared for the mediation. The case did not settle at mediation. D then makes discovery requests for copies of the written statements and the video statement. P objects on the basis that the written statement were prepared for the mediation only, are privileged, and not subject to discovery. D moves to compel production of the statements. How should the court rule?

Answer 68

Court should compel P to produce the witness statements and video statement. These documents are not privileged and are discoverable.

Question 69

While cross examining P, D’s lawyer ask P: “At mediation, did you state that for the purpose of mediation, you were not going to claim future medical expenses as damages in this case?” What objection, if any, should P’s lawyer make and how should the court rule?

Answer 69

P should object on the grounds that mediation/settlement negotiations are not admissible for any purpose. Court should sustain the objection.

Question 70

Prior to trial, P amends her petition and adds X as a party defendant. At trial no party presents evidence that the conduct of X contributed to or caused the collision. At the conclusion of P’s case, what plea or motion should X’s lawyer make and how should the court rule?

Answer 70

X should file a motion for a directed verdict. The court should grant the motion if there is no evidence X’s conduct caused the accident.

Question 71

During deliberations, one of the jurors becomes very ill, is taken to the hospital, and is unable to return to court. D moves for a mistrial because there are only eleven jurors left and no alternates. How should the court rule?

Answer 71

Court should deny the motion, eleven jurors are sufficient.

Question 72

The jury returns a complete verdict. The jury finds P to be 25% responsible for the accident. P believes there is no evidence that she was negligent and no support for the jury’s findings of her fault. What pleading should P file to persuade the court to disregard the finding of fault against her?

Answer 72

P should file a motion for judgment notwithstanding the verdict. P should allege no evidence supported the verdict against her.