Feb 2016 P&E Flashcards
Kate was jogging on the sidewalk in downtown Dallas, Dallas County, Texas, when a delivery truck driven by Ralph, a resident of McKinney, Collin County, Texas, jumped the curb and hit her. Kate was seriously injured. At the time of the accident, Ralph was making a delivery for his employer, Speedy Delivery Company (“Speedy”), a Texas corporation with its principal place of business in Houston , Harris County, Texas.
Kate wants to file suit against Ralph and Speedy in state District Court.
In which counties can Kate’s suit be properly filed? Explain your answer.
The suit can be filed Dallas County (where the accident occurred), Collin County (the county of defendant, Ralph), or Harris County (county of of defendant, Speedy).
Assume Kate files suit in Dallas County.
What pleading must Ralph and Speedy file if they want to challenge venue in Dallas County, and when must they file it? Explain your answer.
Defendant must file a MTV before or concurrent with any other pleading (except a special appearance), or else ability to contest venue is waived.
After all parties have appeared in the case, the Judge orders them to a pretrial conference.
List 5 matters that the Court can require the parties to consider at a pretrial conference.
All pending dilatory pleas, motions and exceptions;
(b) The necessity or desirability of amendments to the pleadings;
(c) A discovery schedule;
(d) Requiring written statements of the parties’ contentions;
(e) Contested issues of fact and the simplification of the issues;
(f) The possibility of obtaining stipulations of fact;
(g) The identification of legal matters to be ruled on or decided by the court;
(h) The exchange of a list of direct fact witnesses, other than rebuttal or impeaching
witnesses the necessity of whose testimony cannot reasonably be anticipated before
the time of trial, who will be called to testify at trial, stating their address and
telephone number, and the subject of the testimony of each such witness;
(i) The exchange of a list of expert witnesses who will be called to testify at trial,
stating their address and telephone number, and the subject of the testimony and
opinions that will be proffered by each expert witness;
(j) Agreed applicable propositions of law and contested issues of law;
(k) Proposed jury charge questions, instructions, and definitions for a jury case or
proposed findings of fact and conclusions of law for a nonjury case;
(l) The marking and exchanging of all exhibits that any party may use at trial and
stipulation to the authenticity and admissibility of exhibits to be used at trial;
(m) Written trial objections to the opposite party’s exhibits, stating the basis for each
objection;
(n) The advisability of a preliminary reference of issues to a master or auditor for
findings to be used as evidence when the trial is to be by jury;
(o) The settlement of the case, and to aid such consideration, the court may encourage
settlement;
(p) Such other matters as may aid in the disposition of the action.
After the pretrial conference, the parties begin discovery in the case.
List 5 forms of discovery permitted under the Texas Rules of Civil Procedure.
Permissible forms of discovery are:
(a) requests for disclosure;
(b) requests for production and inspection of documents and tangible things;
(c) requests and motions for entry upon and examination of real property;
(d) interrogatories to a party;
(e) requests for admission;
(f) oral or written depositions; and
(g) motions for mental or physical examinations.
Kate sends Speedy a request for production asking for Ralph’s personnel file and time sheets for the 2 months immediately preceding the accident. Speedy objects on the basis that the request is overly broad and unduly burdensome. Kate believes Speedy’s objection is unfounded.
How can Kate properly bring Speedy’s objection to the attention of the Court, and how should the Court rule on that objection? Explain your answer.
Kate can file a motion to compel or set the objection
for hearing. The Court should deny Speedy’s objection because the burden or expense of the discovery does not outweigh its likely benefit.
Speedy wants to obtain a copy of the medical records from health care providers who treated Kate for her injuries.
How can Speedy obtain these records? Explain your answer.
Speedy can file a request for disclosure, a request for production, or direct subpoena to healthcare providers.
Speedy believes that Kate is partially responsible for the accident because she was listening to music while she was jogging, was distracted, and failed to keep a lookout for her own safety.
Must Speedy raise the issue of Kate’s conduct before trial and, if so, how must Speedy raise it? Explain your answer.
Speedy must enter a plea of contributory/comparative negligence as an affirmative defense. Affirmative defenses must be raised in the defendants’ answer and can be amended without leave of court at least 7 days before trial.
Kate wants to take the oral deposition of Speedy’s corporate representative, William.
In which counties may Kate properly notice William’s deposition? Explain your answer.
Kate may properly notice William’s deposition in Harris County (county of Speedy’s residence, which William represents); Dallas County (county of suit); or at any other convenient place directed by the court in which the cause is pending.
**“The county where the witness was served a subpoena, or within 150 miles of the place of service” applies only to a non-resident or transient person.
During William’ s deposition, Kate’s attorney questions him about conversations and meetings he has had with Speedy’s attorney. Speedy’s attorney objects to Kate’s questions and instructs William not to answer. Kate’s attorney files a motion requesting the Court to compel William to answer her questions.
Is the Court likely to compel William to answer Kate’s questions? Explain your answer.
No, conversation and meetings between William and his attorney are privileged under the principles of attorney-client privilege.
Kate wants a jury trial.
What must Kate do to ensure she gets a jury trial and when must she do it? Explain your answer.
Kate must pay the jury fee and make a written request for jury trial at least 30 days before trial.
Kate’s primary liability expert suffers a massive heart attack 2 weeks before trial and dies. Speedy’s attorney will not agree to pass the trial date.
What must Kate do and show to avoid going to trial on the current trial setting? Explain your answer.
Kate must file a motion for continuance and show that the expert’s testimony is material to the trial.
Kate’s treating physician has testified that her injuries are permanent and severe.
What action can the defendants take to independently verify the extent of Kate’s injuries, and when must they take it? Explain your answer.
Defendants can file a motion to compel independent medical examination 30 days before the end
of discovery period. Defendants must show good cause.
The case is called to trial, voir dire is conducted, and the parties make their peremptory strikes. Kate’s attorney notices that all of the female venire persons have been stricken.
What procedural step, if any, should Kate’s attorney take to challenge the striking of all the female venire persons? Explain your answer.
Kate’s attorney should make a Batson challenge before the jury is impaneled, which challenges the array of jurors upon the ground they were summoned because they were know to be prejudiced against Kate’s cause.
During her opening statement, Kate’s attorney shows the jury a gruesome photograph depicting the severe injuries Kate sustained in the accident. Defendants think the photograph is prejudicial and their attorney objects at the conclusion of plaintiff s opening statement.
How should the Court rule on Defendants’ objection to the photograph? Explain your answer.
The Court should sustain the defendant’s objection because it was not timely asserted.
After the first day of trial, Kate’s attorney is contacted by John who said he witnessed the accident. Kate’s attorney calls John to testify at trial the following day. Speedy’s attorney objects on the basis that John’s identity was not disclosed in response to written discovery served in the case.
How should the Court rule on Speedy’s objection? Explain your answer.
The Court should overrule Speedy’s objection, and permit the witness to testify. Kate’s attorney has the burden to of establishing an exception by showing good cause for failure to timely request discover; or that such failure will not unfairly surprise or prejudice the other parties.
