Civil Procedure - TX

Question 1

When can work product be asserted?

Answer 1

Anything that constitutes mental notes and impressions of the attorney, but not identity of witnesses.

Question 2

Can an interlocutory appeal on a denial of MSJ be filed?

Answer 2

No. Generally must be a final judgement before appeal and denial of MSJ is not one of the exceptions that allow for interlocutory appeals.

Question 3

Can a party who fails to designate an expert witness do so after the discovery deadline?

Answer 3

Yes, as long as there is no surprise or prejudice.

Question 4

Must witnesses’ names be disclosed?

Answer 4

Yes, if they are testifying witnesses (and other party can serve discovery requests if they are not disclosed).

No, if they are impeachment and/or rebuttal witnesses whose necessity of testimony is not established before trial.

Question 5

Where is venue proper?

Answer 5

• where all or a substantial part of the events leading to the claim occurred
• where D is a resident (if natural person) or has its principal place of biz (if entity)
• if non-performance of contract at issue, venue is proper where the place of performance was supposed to take place
• if suit is filed in proper venue, can’t transfer venue to another proper venue
• Venue is proper in county where P resides only if none of the other venue provisions applies

Question 6

When is an answer due?

Answer 6

10 a.m. on the first Monday after the expiration of 20 days of service, unless holiday or weekend (then answer is due the next day that is not a weekend or holiday)

Question 7

If the defendant’s answer was late, can the court enter a default judgment?

Answer 7

No. If the court receives an answer after the due date but before default judgment is entered, the court cannot enter a default judgemnt.

Question 8

What pleading can a party file to require another party to state in detail the facts and circumstances upon which a that party’s claim relies?

Answer 8

Special exception. State with particularity the pleading defect.

Must also get a hearing on the special exception before any pleading defects are waived.

Question 9

What are 5 types of discovery allowed by the Texas Rules of Civil Procedure?

Answer 9

• requests for disclosure
• requests for production
• interrogatories
• requests for admission
• oral /written depositions
• request for entry upon and examination of real property

Question 10

How can a party obtain information about indemnity and insuring agreements?

Answer 10

Request for disclosure (required to disclose), interrogatory, request for production

Question 11

If a party in a personal injury case wants to learn more about the plaintiff’s injuries, what could he obtain?

Answer 11

His choice of either:

(a) requests for production of medical records and bills related to claim; or
(b) deposition on written questions by subpoena dueces tecum permitting the release of such records by medical care providers.

Question 12

Can a party withhold witness statements (ex. by claiming that it is part of an investigation) if the opposing party asks for them in a request for disclosure?

Answer 12

No, with a request for disclosure, a party may obtain any witness statements (or recordings + transcripts of them) regardless of when they were made (even if they were made in anticipation of litigation)

Question 13

If a defendant has an affirmative defense, when must it be asserted?

Answer 13

Pretrial in the answer or amended answer, or else the affirmative defense is waived.

*ex.: accord and satisfaction, comparative negligence

Question 14

Are there any limits on the total number of requests for production?

Answer 14

For Discovery level 1, it is 15. Discovery levels 2 and 3 have none.

Question 15

When can a plaintiff amend the petition to add another defendant?

Answer 15

Whenever, as long as there is no surprise, except need court permission to amend within 7 days of trial.

Question 16

If a party wants a jury, what must be done and when must it be done by?

Answer 16

File a jury demand in writing with the clerk at a reasonable time and pay fee, no less than 30 days before trial. Opposing party must show unreasonableness.

• discovery and pleading deadlines could have passed

Question 17

How many peremptory challenges does each party get?

Answer 17

In a normal district court case, parties get 6 each.

Question 18

How does having multiple Ps or Ds affect the number of peremptory challenges?

Answer 18

Court must determine whether parties on same side are antagonistic. If not antagonistic, then court equalizes peremptory challenges. If are antagonistic, then the court divides them up in a manner it deems fair..

Question 19

Is collaboration among parties on the same side of a case with peremptory challenges allowed?

Answer 19

Technically yes, but it shows that there is no antagonism and extra strikes should not be given.

Question 20

Can the plaintiff call an adverse-party witness to start the trial before it lays the foundation of its own case?

Answer 20

Yes, there is no rule requiring proof of prima facie case before calling adverse party-witness.

Question 21

If a party loses and believes that evidence is insufficient to support the judgement, what should it file?

Answer 21

Motion for judgment notwithstanding the verdict: challenges legal sufficiency of judgment.

Motion for new trial: challenges factual sufficiency of judgment

Question 22

When does the court’s plenary power expire?

Answer 22

30 days after the motion for new trial is denied

Motion for new trial is automatically denied after 75 days if not ruled on (so 105 days is total plenary power if court does not rule on motion for new trial)

Question 23

How can a plaintiff obtain service of process on an out-of-state defendant?

Answer 23

Comply with the TX long-arm statute and serve through TX secretary of state. Must show that out of state D:

(a) is a non-resident of TX;
(b) has no regular place of biz in TX;
(c) has no registered agent in TX; and
(d) has been doing biz in TX (ex. doing a tort, etc.)

Question 24

What pleading should a defendant file to contest whether the court has personal jurisdiction over him and when must this pleading be filed?

Answer 24

Special appearance. Must be filed before or concurrently with the answer or any other response (or it is waived and counts as a general appearance)

Question 25

What pleading should a defendant file to contest venue and when must this pleading be filed?

Answer 25

Motion to transfer venue. Must be filed before or concurrently with the answer or any other response, except a special appearance (or else it is waived)

Question 26

Is appellate review available if a court rejects a motion to transfer venue?

Answer 26

Not general appellate review (bc only available for final judgments). But:

(a) immediate review by writ of mandamus available to enforce mandatory venue provisions; or
(b) interlocutory appeal is available for cases involving multiple Ps

Question 27

What is the effect of an erroneous ruling on transferring venue to another county?

Answer 27

By statute, erroneous ruling on transferring venue is reversible error.

Question 28

What are the valid bases for removing a case to federal court?

Answer 28

• Subject matter jurisdiction

- Diversity of citizenship (complete + claim of $75k or more)

Question 29

Is a plaintiff required to plead the exact amount of damages (even if defendant requests)?

Answer 29

Plaintiff is not required to plead the exact amount of damages, only the maximum damages.

• if the maximum of damages is not pleaded, then party, through a special exception, can ask court to order so. (but NOT exact damages)

Question 30

How long does the receiving party have to respond or object?

Answer 30

Responses/objections due no later than 30 days after receipt (day 31)

• placing in the mail counts as the time the response/objection was sent

Question 31

To preserve attorney-client privilege in response to request for production, interrogatory, etc., what action should party asserting privilege take after receiving request from other party asking to identify documents withheld?

Answer 31

• Party asserting privilege should serve a privilege log to requesting party describing the withheld documents and asserting the specific privilege under which each document was withheld within 15 days of the request.

Question 32

Where can a non-resident of TX be deposed?

Answer 32

In any TX county where the witness was served with a subpoena.

Question 33

How does a plaintiff add another defendant after the petition has been filed?

Answer 33

Filing an amended or supplemental petition, where defendant is named in the petition and served with it.

Question 34

What are the only permissible forms of discovery for testifying experts?

Answer 34

• requests for disclosure
• written report
• depositions

Question 35

When must a party respond to a request for admission and what is the consequence for failing to timely respond?

Answer 35

• must respond within 30 days

- if fail to timely respond, they are deemed admitted without the need for a court order

Question 36

Are “form” objections (“Objective, form” without saying much else) allowed during deposition?

Answer 36

Yes, but if other party asks for the basis, must give a clear and concise explanation of the basis for the form objection upon request for the basis.

Question 37

Once a party files a no-evidence motion for summary judgment, what action must the other party take and when must it be taken?

Answer 37

• responding party must file a response with summary judgment evidence that raises a genuine issue of material fact.
• due no later than 7 days before summary judgment hearing

Question 38

What bases can a challenge for cause be based on?

Answer 38

• bias or prejudice
• witness in case
• related to party

Question 39

If a challenge for cause is unsuccessful, what can the challenging party do?

Answer 39

Use a peremptory strike on that juror.

Question 40

If a party wants a new trial, what action must he take and when must he take it by?

Answer 40

Motion for a new trial no later than 30 days after the trial court signed the judgment.

Question 41

Can a party to a suit properly serve another party on its own?

Answer 41

No, so if the party tries to serve the other party, then the party being “served” is under no obligation to respond to the suit until service is proper.

Question 42

If more than 30 days have passed since filing an answer, what must the answering party do to add new parties to the case?

Answer 42

Obtain leave of court to file and serve a third party petition and citation on the new parties.

Question 43

Where must a deposition take place?

Answer 43

Either:

(a) county of deponent’s residence;
(b) county where deponent is employed or regularly conduct business;
(c) county where deponent is served with deposition subpoena; or
(d) *applies only to party deponent: county where suit was filed (in addition to the others)

Question 44

In district court, how many jurors are needed at a minimum for verdict to be valid?

Answer 44

10 members of an original jury of 12

Question 45

If party wants to go onto another party’s real property and that party refuses, what discovery tool could be used?

Answer 45

Request for Entry Upon Property

Question 46

If a deposition is noticed and the deponent believes that it is not proper, what should their response be?

Answer 46

File a protective order or a motion to quash the deposition. Must be supported by affidavit.

• ex: if want to depose CEO but CEO claims no relevant knowledge, then must be supported by affidavit

Question 47

If party fails to timely respond to requests for admission, what happens and what can the party do to reverse this and when should the court do so?

Answer 47

The requests are deemed admitted.

Party can file a motion to withdraw deemed admissions.

Court may grant the motion if there was good cause for withdraw and other party would not be unduly prejudiced by it.

Question 48

Is a party automatically entitled to documents when it makes a request for production of certain documents in electronic form?

Answer 48

Only if party maintains the documents in electronic form as part of the ordinary course of business.

Question 49

If a party believes another party’s expert is not qualified to testify, what steps should the party take to raise the issue of the expert’s qualifications?

Answer 49

Party should object to expert’s qualification before expert testifies.

If the objection is overruled, party should ask to voir dire expert outside the jury’s presence for the limited purpose of questioning the expert on his qualifications to testify

Question 50

How can a party discover the name and identities of the other party’s testifying experts?

Answer 50

Request for disclosure.

Question 51

What action can a party take to independently verify the nature and extent of another party’s injuries?

Answer 51

Move for an order compelling other party to submit to a. physical examination after showing good cause and that the other party’s health is at controversy in the suit.

order must be requested at least 30 days before discovery period ended

Question 52

If a question was pled (e.g. exemplary damages) but is not included on the final charge to the jury, what should the pleading party do?

Answer 52

Tender, in writing, the omitted question.

Written question should be in substantially correct form

Ruling must be obtained before charge was read to the jury.

Question 53

When must special exceptions be pleaded?

Answer 53

Before the case is submitted to the jury or else it is waived.

Question 54

If a party believes that a discovery request is improper (e.g. overly broad, for purposes of harassment, etc.), what can it do?

Answer 54

Must respond within 30 days of being served with discovery request with:

(a) Written objection to discovery order; or
(b) Motion for a protective order.

Question 55

Is a party entitled to any discovery information about the opposing party’s consulting experts?

Answer 55

No, just the testifying experts.

Question 56

During a deposition, can a deponent’s attorney instruct him not to answer questions?

Answer 56

The attorney cannot instruct the client to refuse to answer questions unless it is necessary to protect a witness from abusive or harassing questions.

Question 57

If one party wants to delay trial because of an absent witness and the others do not agree, what can that party do?

Answer 57

File a motion for continuance.

Must:

(a) identify the missing witness and the substance of his testimony;
(b) explain why testimony is material and not available from another source
(c) show diligence was used in attempting to secure the testimony
(d) state the continuance is sought for justice and not solely for delay.

Question 58

If an issue (e.g. comparative negligence) wasn’t pled but was presented at trial without objection by the other side, should the jury be allowed to decide the issue?

Answer 58

Yes, if it is tried by consent. It is waived if the complaining party does not file a special exception prior to the submission to the jury.

Question 59

May an attorney poll the jurors about their decision?

Answer 59

Only if it is made after the verdict was read and before the jury was dismissed.

Question 60

If there is a request for production of documents in electronic form and those documents already exist in electronic form, what should the requesting party do and is the other party required to give them in electronic form?

Answer 60

Requesting party should file a motion to compel production of the documents.

If they already exist in electronic form, requesting party is required to give them over.

Question 61

If a party believes that the judgment is excessive, what should it do?

Answer 61

File a motion for new trial alleging insufficient evidence to support the damages finding.

Motion for new trial must be filed within 30 days of the date the judgement was signed.

Question 62

If an amount of damages is not pleaded, what can defendant do?

Answer 62

File a special exception pointing out the defect in plaintiff’s complaint and ask the court for an order compelling plaintiff to amend complaint.

Question 63

Once a party rests its case, what can the other party do if it believes there is factually insufficient evidence, how should the other party respond to this, and how should the court rule on the issue?

Answer 63

Party should file a motion for a directed verdict.

The directed verdict can only be based on “no evidence” or “conclusive evidence” and not “factually insufficient evidence”

• if party bases the motion for directed verdict on “factually insufficient” evidence, then the court must deny it.

Question 64

If an attorney believes that there is discrimination in the jury panel, what should it do and when should it do it by?

Answer 64

File a Batson challenge BEFORE the jury is empaneled.

Question 65

If a party believes that there is an issue in the jury’s verdict, when must it be brought up?

Answer 65

Before the jury is discharged.

Question 66

If an attorney learns about juror misconduct after the trial, what steps should she take?

Answer 66

Motion for new trial for jury misconduct.