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MBE Tips and tricks for Bar > Civil procedure - Pre-trial procedures > Flashcards

Civil procedure - Pre-trial procedures Flashcards

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1
Q

what is the first thing you do when you want to file a complaint before you serve the person

A

you file it with the court with a summons

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2
Q

When does the SOL commences

A

when you file the complaint

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3
Q

How long do you have to serve the complaint

A

90 days

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4
Q

What must a complaint have?

A

Statement of JDX
Statement of facts - NOT theory
Demand for relief
Fraud and special damages if they have it

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5
Q

The statement of facts basically

A

describes what happened

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6
Q

what cant the statement of facts have

A

be inconsistently factual

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7
Q

Answer must be signed by a lawyer and whatever is not denied is

A

admitted

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8
Q

When must the answer be served on the other side

A

21 days

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9
Q

What type of affirmative defenses be pleaded in the answer

A

contributory negligence
SOF
SOL
Illegality
Duress

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10
Q

A motion to dismiss cannot come before an answer when you have a

A

affirmative defense

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11
Q

what are the 2 ways to amend a pleading

A

once as of right if w/n 21 days and
with the courts permission

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12
Q

Amendement as of right needs to happen within

A

21 days of pleading

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13
Q

To amend with the courts permission, the court will apply the standard of

A

When justice so requires

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14
Q

Relation back to the date of the orginal pleadings is usually applied when

A

there is a SOL issue

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15
Q

Relation back for a pleading will apply when

A

it arose out of the same conduct, transaction, or occurrence

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16
Q

Relations back for parties elements

A

Same conduct, transaction or occurrence

w/n 90 days of filling the complaint

the party had notice so they would not be prejudiced
knew/should have known but for mistake of ID

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17
Q

Rule 11

A

Attorney signs to best of knowledge, information and belief there is a basis for the claim

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18
Q

Rule 11 will not apply if

A

Legal arguments are Warranted by existing law

Allegations have Evidentiary support

Not being presented for improper purpose

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19
Q

Counterclaim

A

D raises a claim back to the P

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20
Q

When is a counterclaim considered compulsory

A

Same transaction or occurrence

Court will already have Supplemental jdx

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21
Q

Permissive counterclaim

A

Not same t/o
Needs independent JDX

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22
Q

Joinder is used to add

A

parties

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23
Q

Permissive Joinder is usually used when

A

joining multiple p

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24
Q

Permissive joinder elements

A

Same t/o
Common q of law / fact

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25
Q

Complusory joinder is usually used by which party

A

D

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26
Q

Complusory joinder argues that

A

a party needs to be joined or its unfair

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27
Q

Necessary party means that the interest will be

A

impaired

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28
Q

A necessary party means an interest will be impaired. If that part cannot join due to JDX issues, the court

A

may still proceed

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29
Q

An indepensible party means that the party by not joining will be

A

prejudiced

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30
Q

An indispensable party will be prejudiced if not joined this means that if they cannot join due to JDX requirements, the court case

A

must be dismissed

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31
Q

If a potential D is jointly and severally liable then the party who is to be joined is considered

A

not a necessary party

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32
Q

Elements to qualify as a class action

A

Size
Common q
Typicality
Representation / conflict

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33
Q

Size for a class action

A

A case must be so large that joining all these little claims are impractical

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34
Q

Typicality for a class action means

A

The claim of the representatives is typical of the class

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35
Q

Representation / Conflict for a class action

A

representatives of the class will fairly and adequately represent and protect the interests of the class

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36
Q

For Representation / Conflict for a class action you have to watch out for any

A

COI

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37
Q

For impairment of interests class actions and injunctive relief can members opt out

A

Yes

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38
Q

For common question class actions can members opt out

A

no

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39
Q

For impairment of interests class actions and injunctive relief is notice required

A

no because it is left with the discretion of the court

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40
Q

Fo common question class actions is notice required

A

yes

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41
Q

For common question class action is mail okay

A

yes as long as it is done by reasonable relief

42
Q

Diversity in class action means

A

Citizenship of the named representatives that counts

One named member must meet the 75k +

Or the sum of the claims is 5 mill even if the named member doesnt mean the 75k

43
Q

Who has the responsibility to certify a class

A

court

44
Q

what happens if the court does not certify the class

A

members can go and make their own sub class

45
Q

If a class action certification is denied is it appealable

A

yes

46
Q

What does the court also have to approve in a class action lawsuit other than the class itself

A

Any settlement

Reasonable attorney fees based on the size of the court

47
Q

What else needs to be supplied to the court with a class action

A

statement detailing the agreement

48
Q

Intervention as of right means a party wants to be

A

joined to the suit even though they were not invited

49
Q

For intervention as of right, court permission is not required if

A

Interest in property transaction
Interest is impaired or impede if they didn’t join

50
Q

When is court permission required for intervention

A

permission intervention

51
Q

For permissive interventions, you need to show and get

A

Claim / defense has common question of law / fact

Court permission IS required

52
Q

Interpleader is when

A

1 party owes something to 2 or more people

53
Q

what are the 2 types of interpleader

A

statutory and rule

54
Q

Example of interpleader

A

One person owes property claimed by two or more people

55
Q

Statuory interpleader requires what type of service

A

nationwide service

56
Q

statutory interpleader elements

A

Nationwide service

Any 2 claimants can be diverse

$500 or more is at stake

the person that owns the property starts the suit, puts the property or the money… deposits it in the court, or posts a bond

57
Q

Rule interpleader does not require

A

nationwide service

58
Q

Rule interpleader elements

A

No nationwide service
Complete diversity between claimant and all opponents
75k requirement
Not required to deposit $

59
Q

Impleader is when the D

A

adds a 3rd party who owes part or all of the claim

60
Q

Cross claim

A

co -party
Same t/o
Actual damages

61
Q

What is considered discoverable

A

Not privileged
Relevant
Proportional to the needs of the case

62
Q

Work Product is generally immuned from discovery and it must be documents that were

A

prepared in anticipation of litigation

63
Q

Who does work product protect

A

Lawyer and anyone else working under the lawyer

64
Q

When is work product not privileged

A

Substantial need
Cannot obtain w/o undue hardship

65
Q

What has absolute immunity from being discoverable

A

Mental impressions
Conclusions
Legal opinions / theories

66
Q

What are the basic discoverable information of witnesses

A

Names and locations of all people

List of all the documents or materials that witness will be using in the case

67
Q

Must a lawyer provide an ID of each expert

A

yes

68
Q

Testifying experts must prepare a report that includes

A

Opinions
the basis for their expert opinions
any data or exhibits that they’re going to use
and their compensation

69
Q

Experts who are not testifying will only be discoverable in

A

exceptional circumstances making it impractical for obtaining the information

70
Q

Duty to supplement

A

Duty to supplement incomplete or wrong info
Must be done in a timely manner

71
Q

is discoverable information admissible at trial

A

yes

72
Q

Depos can be asked to whom and what is the limit

A

party/nonparty and 10 per side

73
Q

How can you ask depos

A

either written or oral

74
Q

Can you depose the same person more than once

A

not w/o court permission

75
Q

What happens if a party does not want to comply with depos

A

sanction

76
Q

Interrogatories can be asked of

A

parties only

77
Q

What are the methods you can use for interrogatories

A

writting

78
Q

Limit on interrogatories

A

25

79
Q

Request to admit is a written request to admit

A

certain truths and facts

80
Q

Once the request to admit is admitted it is

A

conclusively established

81
Q

Request to produce documents

A

Docs in other sides possession, control or custody

82
Q

What must you do in order to get a physical/mental exam ordered for the other party

A

Must be at issue
Court order
Show Good cause

83
Q

If you use discovery for an improper purpose you could

A

get orders or sanctions

84
Q

What if the other side is using discovery to harass you

A

Object to a request
Protective order
Order to compel

85
Q

Object to a request is when

A

info is not relevant

86
Q

Protective order is ordered when it

A

Stop discovery for embarrassment, harassment, or undue burden

87
Q

order to compel is appropriate when

A

party not complying with discovery

88
Q

A court may order sanctions if one party has acted unreasonably. Generally the first thing you can get is what and then list by ascending order

A

fee and costs

court can order certain facts to actually be established

can bar certain defenses

totally dismiss an action, or

hold somebody in contempt.

89
Q

Safe harbor period

A

Where you cannot file the motion if the challenged paper, claim or defense is withdrawn or appropriately corrected w/n 21 days of service

90
Q

During the conference of parties court orders the parties to talk about what and then do what

A

to talk about discovery, possible settlement, and case
Parties must submit discovery plan

91
Q

A court must have a what conference to limit the time for motions and discovery

A

scheduling conference

92
Q

What must be issued within 90 day of the compliant

A

scheduling order

93
Q

When can you get a scheduling order pushed after the 90 days

A

if there is good cause

94
Q

Is final pretrial conference mandatory

A

no

95
Q

Motion to sever

A

When you attempt to join 2 claims against 2 separate D and no facts indicate that either claims arise out of the same transaction or that there is a common q of law or fact

96
Q

Motion to attach

A

A process by which someone’s property is seized in accordance with a writ or judicial order for the purpose of securing a judgement yet to be rendered

97
Q

When can you motion for a motion to attach

A

any time following the commencement of an action

98
Q

Standard for a TRO

A

immediate irreparable harm

99
Q

Standard for a prelim

A

irrepable harm

100
Q

Which of the following requires notice: TRO or prelim

A

Prelim

101
Q

How long can a TRO last

A

14 days

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