Discovery

Question 1

What is discovery

Answer 1

Discovery is the process by which the parties gather information to present as evidence at trial of the matter.

Question 2

Scope of discovery?

Answer 2

Discovery can be done on any matter not privileged which is relevant to the subject matter involved in the pending action ( LCCP 1422)
The information sought need not be admissible in court if the information is reasonably calculated to lead to the discovery of the information which would be admissible in court.

Question 3

Types of Discovery

Answer 3

Depositions
Interrogatories
Requests for production of Documents or Things
Physical and Mental examinations
Request for the release of medical records; and
Request for Admissions

Question 4

Privileged Matters

Answer 4

Prohibits the discovery of any privileged information.
An attorney and client;
Husband and wife
Physician and patient
Accountant and client ;
Priest and penitent

Question 5

Attorney Work Product

Answer 5

Attorney Work Product is subject to a qualified privilege
Any tangible documents which were prepared in anticipation of litigation
Additionally, the court will not permit writing or electronically stored information contains’ medically impressions
If an opposing party can show that the denial of the documents would “unfairly prejudice” him or cause undue hardship , then he may be allowed access since the privilege is only a qualified privilege.
Attorney claiming the privilege must describe the documents withheld.

Question 6

Testifying experts

Answer 6

Full discovery of testifying experts is allowed. He/she must give written opinions if ordered by the court. Typically, the testifying expert will give their CV along with any cases in which he/she has testified.

Question 7

Challenging Expert/ Testimony:

Answer 7

a party may challenge an expert’s qualifications or the reliability of his/her methods. The challenge must be filed at least 60 days before trial and a contrary hearing

Question 8

Non-testifying Experts

Answer 8

Scope of discovery is more limited. If the opposing party wishes to discovery his/her opinions, it must show “exceptional circumstances “ which prove that the information sought cannot be obtained by other means.

Question 9

Protective Orders

Answer 9

Party may obtain an order from the court limiting or prohibiting the disclosure of information being sought. This will protect the party from embarrassment, undue burden, etc.

Question 10

8 types of Protective Orders

Answer 10

Discovery requested may not be had;
Discovery requested may be had only on certain terms
Discovery may be had only by a method of discovery other than that requested
Limit the scope of inquiry
Designate who may be present during the discovery
Deposition may be sealed and open only by order of the court
Trade secrets or confidential research will not be disclosed
Parties simultaneously file documents in sealed envelopes to be opened by court.

Question 11

Discovery Devices

Answer 11

Depositions
Interrogatories, either oral or written questions
Production of documents or things or permission to enter land, etc.
Physical and mental examinations
Request for release of medical records
Request for admissions

Question 12

Duty to Supplement Discovery

Answer 12

A party has a duty to supplement his responses, even If complete at the time the responses were submitted, if:
The party is adding additional fact witnesses or an expert witness;
The party subsequently obtains information that renders his previous response
The court orders supplemented
responses or by the agreement

Question 13

PreTrial Procedure

Answer 13

PreTrial conference
Used to help the case move toward litigation while determining the substantive, procedural and evidentiary issues of the case. It also helps with the likelihood of settlement..
The form and timing of the PreTrial conference vary from judge to judge
Conference with all trial attorneys and either the judge or his/her law clerk
PreTrial order is signed at the PreTrial Conference.

Question 14

Issues that may be discussed at PTC

Answer 14

The issues;
Any amendments to the pleadings
Contested and uncontested material issues of fact;
Evidentiary stipulations;
Admissibility of expert testimony
Discovery scheduling, but this is often finished by the PTC
Privilege or work product
Identification of witnesses, documents and exhibits;
Electronic presentation of evidence
Any matters which aid in the disposition of the case.

Question 15

What happens if you fail to comply with the PTC mandated in the Code?

Answer 15

Sanctions by the Court
Prohibiting evidence
Striking claims or defenses
Awarding expenses and attorney fees

Question 16

Assignment of trial

Answer 16

This depends on the judge’s docket
It could last several years, but in recent times, the dockets tend to move more quickly
Your case may be a first setting or second or as many as the judge will set.

Question 17

Consolidation

Answer 17

Matters are consolidated for trial when the actions involve common issues of law and fact and are pending in the same court

Question 18

severance

Answer 18

Severance may be ordered by the court, with consent of the parties, if it believes that it would be in the interest of justice to try the matters separately

Question 19

Continuances

Answer 19

• Discretionary
• Peremptory

Question 20

Discretionary

Answer 20

Court finds that for good cause shown, a delay of trial will be had, with matter usually reset at the time the decision is made;

Question 21

Peremptory

Answer 21

is mandatory. It must be granted if a party is unable , after due diligence, to obtain material evidence or a material witness. If the opposing party wishes to oppose the granting of the continuance, he/she can require the moving party to produce an affidavit detailing the information

Question 22

Subpoena duces tecum

Answer 22

it requires the witness to bring certain documents or other tangible things to enter the trial, the deposition or a hearing.

Question 23

Trial Procedure

Answer 23

Jury trial - Must request a jury trial in the pleadings
May be required to immediately put up a bond for costs for the jury trial
In the past, there were no trials against the state or a political subdivision. Now, It can be waived

Question 24

Composition of Juries

Answer 24

12 member juries - need 9 to reach a verdict
6 member jury jury - need 5 to reach a verdict

Question 25

Challenges

Answer 25

For cause
Peremptory

Question 26

For Cause

Answer 26

Lacks qualification required by law;
Not impartial
Relationship with one of the parties
Has served on a previous jury in a related matter
Invokes the Fifth Amendment during voir dire.

Question 27

Peremptory challenges

Answer 27

each side is given a certain number. Once you’re out, you’re out. Sometimes the court will grant additional peremptories prior to the start of voir dire.

Question 28

Types of Verdicts

Answer 28

• Special Verdict
• General Verdict w/ Answers to Interrogatories
• Judgment notwithstanding the verdict ( JNOV)

Question 29

Special Verdict

Answer 29

submits written questions to the jury on each issue of fact. Jury is required to make specific findings of fact. Usually calls for a yes or no response.

Question 30

General verdict with Answers to interrogatories

Answer 30

Jury enters a final judgment but also answers various questions that explains its verdict

Question 31

(JNOV)

Answer 31

is a post trial device used to overturn a jury verdict which is not supported by the evidence

Question 32

Remittitur or Additur as alternatives to a New trial

Answer 32

Post-trial devices - used if the court to remedy an inappropriate amount of damages by the jury, in light of the supporting evidence.
If the court believes that the evidence is either so excessive or so inadequate that a new trial is warranted, then in lieu of a new trial, the court ,ay adjust the verdict.

Question 33

Judgments

Answer 33

Interlocutory
Final
Partial Final Judgment

Question 34

Interlocutory

Answer 34

a judgment that does not address the merits of the case but rather only addresses preliminary matters. These judgments are generally not appealable.

Question 35

Final

Answer 35

determines the merits of the case and may dispose of the case in its entirety or only partially. It is appealable It must be signed by the issuing judge and cannot be appealed without it.

Question 36

Partial Final Judgment

Answer 36

disposes of less than all of the issues I the case. It is immediately appealable with the court’s permission.

Question 37

Posttrial Motions

Answer 37

A final judgment can be amended by the court’s own motion or by an ex parte or contradictory motion to:
Alter the phraseology, but not the substance
Correct calculation errors.

Question 38

Motion for New Trial

Answer 38

Post trial mechanism which allows the trial judge to correct any errors committed before it is appealed.
Motion can be made by the court, sua sponte; or
By any party by contradictory motion on any or all issues in the case.
The Court Must grant the motion if:
Verdict is contrary to the law and evidence;
Party has discovered, since trial, evidence important to the case which could not have been discovered before or during trial;
Jury bribery improper behavior so that justice was not served.

Question 39

Motion for nullity of judgment

Answer 39

Used when judgment has been improperly obtained as a result of certain procedural or substantive improperties.

Question 40

Vices of Form

Answer 40

procedural deficiencies
Judgment against an incompetent person not represented as a required by law;
Judgment against a D not properly saved or against one when an invalid default judgment has been taken; or
The court lacks SMJ
Motion to annul may be brought at any time unless the D voluntarily acquiesced in the judgment or who was in the parish at the time of its execution and did not take action to enjoin

Question 41

Vices of Substance

Answer 41

When judgment is obtained by fraud or ill practices