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P & E > First Round > Flashcards

First Round Flashcards

1
Q

Diversity Jurisdiction

A

(Federal)
Citizenship:
Must be complete
Corporation is a citizen in two places:
1 - state of incorporation; and
2 - state of principal place of business
Individual - citizen of state of domicile
Amount in Controversy - $75,000
For class actions, so long as named pl is diverse from remaining dfs, diversity is not required for all unnamed members of the class

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2
Q

Personal Jurisdiction

A

Df has been served with process in forum state;
has had minimum contacts with the forum state (specific jurisdiction);
is “at home” in the forum state (general jurisdiction)

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3
Q

Special Appearance

A

Must be made to contest personal jurisdiction. If special appearance motion is not filed before any other motion or pleading, then personal jurisdiction is presumed consented to and may not be challenged later (have waived the issue).

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4
Q

File, request, serve

A

An action is commenced when:
the original petition is FILED
the pl REQUESTS the clerk issue a citation
the pl obtains SERVICE of process upon the df (serves the df with the suit)

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5
Q

Out of State Service of Process

A

Non-resident motorists: serve chairperson of Texas Transportation Commission
Foreign corporation with no principal place of business/registered agent: serve Secretary of State

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6
Q

Venue - Proper

A
  1. County in which all or substantial part of events/omissions giving rise to claim occurred
  2. If a natural person, county of df’s residence when action accrued
  3. If not a natural person, Texas county of principal office at time action accrued
  4. If none of the above, pl’s county of residence
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7
Q

Venue - Transfer

A

Court must transfer venue to county of proper venue if

  1. improper county
    • if court makes an erroneous venue rule,
      1. no interlocutory appeal available;
      1. reversible error: judgment reversed, case remanded for new trial.
  2. impartial trial is not possible
  3. Parties’ written consent

Df can only transfer venue from one proper venue to another of df’s choosing when transfer would be for the convenience of the parties and witnesses and in the interest of justice.

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8
Q

Contribution

A

Third-party practice;
asserting negligent acts or omissions of third party contributed to pl’s injuries

Leave of the court is required if 30 days after df filed original answer

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9
Q

Indemnity

A

Third-party practice;
indemnifier agrees to make good any loss/liability/damage incurred by indemnitee

Leave of the court is required if 30 days after df filed original answer

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10
Q

Plea in Abatement

A

Alleges facts outside pleadings to show suit cannot proceed in present condition;
Court will suspend lawsuit until defect is cured

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11
Q

Defects in Allegations

A

Can create a plea in abatement;
Action w/ same parties in controversy already exists
Lack of notice

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12
Q

Defect in parties

A

Can create a plea in abatement

  • party lacks capacity to sue/be sued
  • pl is not a corporation as alleged
  • name of df is incorrect
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13
Q

Answer

A

Must be filed by

- 10:00 AM on the first Monday after expiration of 20 days from the date of service.

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14
Q

Default Judgment

A

Occurs when df was properly served but does not file an answer in the prescribed time period

A late answer, filed before judgment is entered, may still prevent a default judgment

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15
Q

Statue of Limitations

A

Affirmative Defense

Must be raised in df’s answer
Can be amended without leave of the court at least 7 days before trial

  • in criminal context, SoL is usually three years for felonies in Texas. Any indictment prior to expiration is timely.
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16
Q

Accord and Satisfaction

A

Affirmative Defense

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17
Q

Assumption of Risk

A

Affirmative Defense

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18
Q

Contributory Negligence

A

Affirmative Defense

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19
Q

Duress

A

Affirmative Defense

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20
Q

Fraud

A

Affirmative Defense

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21
Q

Res Judicata

A

Affirmative Defense

- claim preclusion

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22
Q

Statute of Frauds

A

Affirmative Defense

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23
Q

Waiver

A

Affirmative Defense

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24
Q

Release

A

Affirmative Defense

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25
Q

Inadequate allegations

A

Special Exception

  • puts opposing party on notice of pleading defect
  • requires opposing party to plead facts to support their claim.
  • pleading defect is waived if not raised by a special exception
  • general demurrer not allowed. Must point out specific defect or fault
  • petition must include maximum amount of damages sought (not the exact amount sought)
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26
Q

Failure to state a cause of action

A

Special Exception

  • puts opposing party on notice of pleading defect
  • requires opposing party to plead facts to support their claim.
  • pleading defect is waived if not raised by a special exception
  • general demurrer not allowed. Must point out specific defect or fault
  • petition must include maximum amount of damages sought (not the exact amount sought)
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27
Q

Failure to state the maximum amount of damages

A

Special Exception

  • puts opposing party on notice of pleading defect
  • requires opposing party to plead facts to support their claim.
  • pleading defect is waived if not raised by a special exception
  • general demurrer not allowed. Must point out specific defect or fault
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28
Q

Disclosure

A

Discovery Tool

- can include discovery related to expert witness testimony

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29
Q

Requests for Production

A

Discovery Tool

  • may NOT request production from expert
  • can request in electronic format
    • if party fails to comply, i.e. submitting in paper format opposed to electric, requesting party may file a motion to compel production in the requested format.
30
Q

Interrogatories

A

Discovery Tool

  • service of response due 30 days after receipt (on day 31)
  • responses deposited in the mail are timely (but this is not the mailbox rule)
  • may NOT submit interrogs to expert witness
31
Q

Requests for Admission

A

Discovery Tool

  • no limitation on number of requests for admission
  • failure to respond results in deemed admissions (you are admitting to the request by failing to respond)
  • party failing to respond to request for admissions may submit a motion to withdraw the deemed admissions. Must show:
    • good cause for failure to timely respond; and
    • opposing party would not be unduly prejudiced by withdrawal of admissions
32
Q

Oral Depositions

A

Discovery Tool

  • can include discovery related to expert witness testimony
  • may be taken in county of residence; may also be taken in county of suit
  • “form” objection requires a basis. If request is made by opposing counsel, party raising the objection MUST provide a clear and concise explanation of the basis
33
Q

Written Depositions

A

Discovery Tool

34
Q

Motions for Physical Examination

A

Discovery Tool

35
Q

Level 1 Discovery Control Plan

A
  • $100k or less;
  • Divorce without children; marital estate is $50k or less;
  • Max 6 hours deposition - may expand to 10 hours per party
  • 15 interrogatories max;
  • 15 requests for production max;
  • 15 requests for admission
36
Q

Level 3 Discovery Control Plan

A

Discovery by court order

37
Q

Level 2 Discovery Control Plan

A
  • the default plan (if the case is not under level 1 or level 3)
  • Goes into effect 30 days before trial; 9 months after first oral deposition; or nine months after due date of first written discovery
  • Max 50 hours of deposition
  • Max 25 interrogatories, except for those that identify specific documents (unlimited)
38
Q

Jury Demand

A
  • must be written request
  • filed and jury fee paid no less than 30 days before trial
  • objecting party must show unreasonableness if jury demand is made less than 30 days before trial
39
Q

For Cause Jury Challenge

A

Jury is

  • Interest in the subject matter of the case
  • witness in the case
  • relationship to a party within the 3rd degree
  • member of a previous jury that tried the same case or one identical in factual issues
  • has a bias/prejudice in favor or against a party in the case
40
Q

Peremptory Jury Challenge

A
  • Each party gets 6 peremptory challenges

- if multiple parties - judge must equalize by determining if co-parties have antagonistic interests

41
Q

Directed Verdict

A

Timing - any time after opposing party has been fully heard on the issue or claim, but before the case has been submitted to the jury

Standard

  • insufficient evidence
  • moving party has presented conclusive evidence
42
Q

JNOV

A

Timing - after the jury has entered its verdict
Standard
- insufficient evidence
- moving party has presented conclusive evidence

  • JNOV does not require movant to have requested a directed verdict earlier in proceeding
43
Q

Venue - Appeal

A
  • interlocutory appeal from motion to transfer venue is not allowed
  • error in transferring venue is reversible error; results in reversal of judgment and remand
44
Q

Preserve Privilege

A
  • to preserve privilege, responded must include description of privileged information withheld; and
  • assert a specific privilege for each withheld item
  • response is due within 15 days of service of request
45
Q

Joinder of third party

A
  • movant must file an amended petition on new defendant;

- may require leave of court to do so if outside of deadline or more than 30 days after original df files answer

46
Q

Deposition of President - other authority

A

To protest, objecting party must

  • file motion for protective order; or
  • file motion to quash deposition of president/apex figure
  • must also file affidavit from apex person denying personal knowledge of relevant facts
47
Q

Request for Report

A

Discovery Tool

- may request written reports from expert witness

48
Q

Summary Judgment

A

If motion for SJ is made, opposing party should file a response.

  • response should show evidence that raises a genuine issue of material fact
  • response should be filed no later than 7 days before the SJ hearing.
49
Q

Adverse Witness

A

Pl may call df adverse witness at any time during case-in-chief, without laying a foundation

50
Q

Hearsay

A
  • admission by party opponent is not hearsay
  • statement against interest is not hearsay
51
Q

Motion in Limine

A
  • motion made outside the presence of the jury
  • must obtain a final ruling on the motion to preserve the record
  • can be used to keep out evidence of probative value
52
Q

Bill of Exception

A

AKA offer of proof
- when judge refuses to admit evidence, a bill of exception will put the proposed evidence into the record for appellate review

53
Q

Unanimous Verdict

A

At trial court, a unanimous verdict is not required in civil court

54
Q

Bail

A

A sheriff, police officer, or other jail official can set bail

55
Q

Conflict of Interest

A

- a judge may not hear a case when he or she has a disqualifying conflict of interest in the case as a victim

56
Q

Attorney-Client Privilege

A

Protects communications between a lawyer and client
- concerns any legal advice or services
- not limited to only litigation preparation
- is absolute; cannot be excepted for need and hardship; but can be waived.

57
Q

Attorney Work Product Privilege

A

Core work product protected
work containing attorney’s mental impressions, opinions, conclusions, or legal theories;

Exception to privilege

  • showing of substantial need by party seeking discovery
  • party seeking information would suffer undue hardship in obtaining substantial equivalent
58
Q

Community Supervision

A

***** - requires motion showing

df has not previously been convicted of a felony

59
Q

Invoking the Rule

A

When the rule is invoked, the judge must dismiss all witnesses from the court room.

Exceptions

  • person designated as a party’s representative
  • victim of criminal act so long as their testimony would not be affected by remaining
  • Essential party - normally an expert
  • criminal df
60
Q

Burden of Proof - Criminal

A

Beyond a reasonable Doubt

61
Q

Opening Statement

A

Defense counsel may reserve their right to make opening statement at beginning of defense case

62
Q

Admission of Self-Authenticating Evidence

A

- Business Records, requires affidavit and notice to prosecution

63
Q

Witness Examination

A
  • no leading questions on direct examination
  • leading questions are permitted on cross examination
  • if conducting direct examination of witness from opposing party, leading questions are permissible
64
Q

Character Evidence

A

***** Rule 404
General
- prohibited to show on a particular occasion the person acted in accordance with the character or trait

Exceptions for a df

  • in criminal case, df may offer evidence of df’s pertinent trait.
    • if this occurs, this opens door for pros to offer evidence to rebut
  • in civil case, party accusation involving moral turpitude this opens the door.
65
Q

Credibility Evidence

A
  • *** Rule 608 - Witness’s Character for truthfulness or untruthfulness
  • reputation or opinion evidence
66
Q

Continuance

A

When a witness cannot make it to trial, may request a continuance, showing

  • identity of missing witness and substance of his testimony;
  • explain why his testimony is material and not available from another source;
  • show diligence was used in attempting to secure the testimony; and
  • state the continuance is sought for justice and not solely for delay
67
Q

Objection

A

- must be timely - as soon as objectable material is shown or introduced in court

68
Q

Failure to disclose a witness or evidence

A
  • may be permitted if failing party can show good cause for not disclosing; or
  • the dfs would not be unfairly surprised or unfairly prejudiced by the late disclosure
69
Q

Expert Witness

A
  • objecting to an expert witness’s testimony must be made before expert testifies
  • expert may be taken on voir dire by opposing counsel outside the presence of the jury.
70
Q

Preserve Error

A
  • in jury instructions, an objecting party may preserve error by submitting, in writing, the omitted question/instruction in substantially correct form AND obtain a ruling before the charge was read to the jury.
71
Q

Irrelevant, overly broad, or unreasonable burden

A

Grounds for objecting to discovery request

- opposing party is seeking to discover material that is well beyond the scope of the case in controversey

P & E (2 decks)

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