Feb 2017 P&E

Question 1

Art was driving in downtown Austin, Travis County, Texas, when a taxi cab driven by Zach, a resident of SanMarcos, Hays County, Texas, collided with Art’s vehicle. Art was
seriously injured. At the time of the collision, Zach was employed by Discount Cab Company (“Discount”), a Texas corporation with its principal place of business in Waco,
McClennan County, Texas. The taxicab was owned by Discount. At the time of the collision, Zach was on duty and in the course and scope of his employment with
Discount. Art wants to file suit against Zach and Discount in state District Court.

In which counties can Art’s suit be properly filed? Explain your answer.

Answer 1

Art can file his lawsuit in Travis County (where accident
occurred), Hays County (where Zach resides), or McClennan County (where Discount maintains
its principal place of business).

Question 2

Art files suit in Travis County against both Zach and Discount.

What pleading must Zach and Discount file if they want to challenge venue in Travis County, and when must they file it? Explain your answer.

Answer 2

The defendants should file a motion to transfer venue prior to or concurrently with their answers, and if they failed to do so, they waived their right to challenge venue.

Question 3

After all parties have appeared in the case, the Judge issues a scheduling order and the
parties begin discovery.

List 5 forms of discovery permitted under the Texas Rules of Civil Procedure.

Answer 3

5 forms of discovery listed in Texas Rule of Civil Procedure Rule 192.1

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.

Question 4

Art sends Discount a written interrogatory asking Discount to identify and describe every
collision its drivers have been involved in during Discount’s 20-year history. Discount believes that the interrogatory is improper.

What action must Discount take to bring this matter to the Court’s attention and when must Discount take that action? Explain your answer.

Answer 4

Discount can make a written objection to Art’s discovery
request. Discount could also file a motion for protective order. Discount must respond within 30 days of being served with the discovery request, and allege the request was irrelevant, overly broad, or imposed an unreasonable burden.

Question 5

Discount wants to obtain a copy of the medical records from all health care providers who treated Art for his injuries.

What discovery tools can Discount use to obtain these records?

Answer 5

Discount could obtain a copy of Art’s medical records via requests for disclosure or requests for production served on Art. Discount could also obtain the records via a written deposition with a subpoena duces tecum to the health care
providers.

Question 6

Art wants to discover the identity of purely consulting experts employed by Discount to assist in Discount’s defense of the case.

What discovery tools can Art use to obtain this information? Explain your answer.

Answer 6

Art was not entitled to discovery information about

Discount’s purely consulting experts.

Question 7

Zach believes that Art is partially responsible for the collision because he was texting on his phone at the time of the collision and failed to keep a proper lookout.

Must Zach raise the issue of Art’s conduct before trial and, if so, how must Zach raise it? Explain your answer.

Answer 7

Zach is required to raise, in his answer or amended answer,

the affirmative defense of contributory/comparative negligence at least 7 days before trial.

Question 8

Art wants to take Zach’s oral deposition.

In which county or counties may Zach’s deposition be taken? Explain your answer.

Answer 8

Zach’s deposition could be taken in his county of residence, Hayes County. Many examinees also knew that because Zach is a party to the lawsuit, his deposition could be taken in the county of suit, Travis County.

Question 9

During Zach’s deposition, Art’s attorney questions Zach about very personal, private matters related to his political and religious beliefs. Zach’s attorney objects to the
questions, explains to Art’s attorney that the questions are abusive and harassing, and instructs Zach not to answer. Art’s attorney files a motion to compel Zach to answer the
questions, claiming that it was improper for Zach’s attorney to instruct Zach not to answer the questions.

Do the Texas Rules of Civil Procedure permit Zach’s attorney to instruct Zach not to answer the questions? Explain your answer.

Answer 9

Zach’s attorney can instruct him not to answer harassing or abusive questions during his deposition.

Question 10

During his deposition, Zach admits that he has suffered seizures while driving in the past, but never sought medical attention. He denies that he suffered a seizure during the collision with Art.

What action can Art’s attorney take to independently verify the nature and extent of Zach’s medical condition, and when must she take it? Explain your answer.

Answer 10

Art could move for an order compelling Zach to submit to a physical examination. Few examinees knew the order must be requested no later than 30 days
before the end of the discovery period, or that Art’s motion had to show good cause and that
Zach’s physical condition was in controversy.

Question 11

Art wants a jury trial.

What must Art do to ensure he gets a jury trial and when must he do it? Explain your answer.

Answer 11

Art must request a jury trial and pay the jury fee. Art should make his request by filing a written demand with the clerk a reasonable time before the date set for trial, not less than 30 days before trial.

Question 12

After the end of the discovery period, Jeff, the only known eyewitness to the collision, notifies all parties that he has a conflict and cannot attend the trial. Art asks for an
agreement to delay the trial date but Zach andDiscount refuse.

What must Art do and show to avoid going to trial on the current trial setting? Explain your answer.

Answer 12

Art must file a motion for continuance. Few examinees
stated Art had to (1) identify the missing witness and the substance of his testimony, (2) explain why his testimony is material and not available from another source, (3) show diligence was used in attempting to secure the testimony, and (4) state the continuance is sought for justice and not
solely for delay.

Question 13

The case is called to trial. Before voir dire begins, Zach and Discount are concerned that Art’s attorney may attempt to mention or introduce evidence during the trial that Zach has a history of illegal drug use. Zach and Discount believe that such evidence is highly prejudicial but not relevant to the matters in controversy given that he passed a drug test administered on the date of the collision.

What procedural step, if any, can Zach and Discount take before the trial commences to prevent Art’s attorney from making reference to Zach’s drug use in front of the jury? Explain your answer.

Answer 13

Zach and Discount must file a motion in limine to prevent
reference to Zach’s drug use. If the motion is granted, Art will be prohibited from referencing the drug use during voir dire or opening statement and would require Art’s attorney to approach the bench prior to attempting to introduce the evidence during trial.

Question 14

During her opening statement, Art’s attorney shows the jury a gruesome photograph depicting the severe injuries Art sustained in the collision. Defendants’ attorneys object
after the conclusion of Art’s attorney’s opening statement.

How should the Court rule on Defendants’ objection to the photograph? Explain your answer.

Answer 14

The defendants’ objection to the photo during Art’s opening statement should be overruled. The objection should be overruled on the ground that it was untimely because the objection should have been raised as soon as the photo was displayed

Question 15

After the first day of trial, Mary contacted Art’s attorney and said she was a passenger in a cab driven by Zach six months before the collision at issue. Mary said that Zach appeared to “black out” during the short trip. Neither Art, nor his attorney knew of Mary’s existence before trial. Art’s attorney notifies the Defendants and the Court the next
morning of his intent to call Mary to testify as his next witness because she is leaving the country the following day. Zach’s and Discount’s attorneys object on the basis that Mary’s identity was not disclosed in response to written discovery served in the case.

How should the Court rule on Zach and Discount’s objection? Explain your answer.

Answer 15

The defendants’ objection to Mary’s testimony should be overruled. The objection should be overruled if Art’s attorney showed either good cause for not disclosing Mary’s existence earlier or that the defendants would not be unfairly surprised or unfairly prejudiced by the late disclosure.

Question 16

Immediately after the collision, Art told Zach: “I didn’t see you because I was texting my wife.” While Zach is testifying at trial, his attorney asks him to repeat what Art said to him after the collision. Art’s attorney objects on the basis that the testimony is hearsay.

How should the Court rule on Art’s attorney’s hearsay objection? Explain youranswer.

Answer 16

The trial court should overrule Art’s objection to his own
statement that he had been texting. Most examinees explained Art’s statement was either not hearsay because it was an admission by a party opponent, or it was a hearsay exception because Art’s statement was a statement against interest.

Question 17

During trial, Discount calls an expert to testify about the distraction caused by texting while driving. Art believes that Discount’s expert is not qualified to offer opinions about distracted driving.

What procedural steps should Art’s attorney take to raise the issue of the expert’s qualifications to testify about distracted driving? Explain your answer

Answer 17

Art had to object to the expert’s testimony. The objection must be raised before the expert testified. Art’s
attorney could take the expert on voir dire outside the jury’s presence if the objection was
overruled.

Question 18

At the conclusion of the evidence, theJudge gives the final jury charge to the parties for review. The charge omits any reference to, or instruction on, the issue of Art’s contributory negligence.

What procedural steps must the Defendants take to properly preserve error regarding the omission of Art’s contributory negligence from the charge? Explain
your answer.

Answer 18

Few examinees knew that to preserve error on the omission of contributory negligence
from the jury charge, the defendants had to tender, in writing, the omitted question/instruction in
substantially correct form and obtain a ruling before the charge was read to the jury.

Question 19

The jury renders a unanimous verdict in favor of Art. Prior to the dismissal of the jury, Discount objects to the verdict and moves for a judgment notwithstanding the verdict on
the ground that Art did not plead in his petition the maximum amount of damages he sought.

How should the Court rule on Discount’s objection and motion? Explain your answer.

Answer 19

The trial court should deny Discount’s objection to the verdict and motion for judgment notwithstanding the verdict. The objection/motion should be denied because Discount waived any complaint by not filing special
exceptions to Art’s petition prior to submission of the case to the jury.

Question 20

The Court signs a judgment in accordance with the jury’s verdict. Discount and Zach do not believe the evidence supports the damages awarded by the jury.

What procedural steps should Discount and Zach take to bring this issue to the Court’s attention and preserve it for appeal? Explain your answer.

Answer 20

The defendants should file a motion for new trial alleging insufficient evidence to support the damages finding. The motion must be filed within 30 days of the date the trial court signed the judgment.