fucking_bar_practice_questions_copy_20190724170123 Flashcards
02/09: Tools [D] wants to object to the jurisdiction of the Nueces County district court on the ground that it is not amenable to process issued by a Texas court. What pleading, if any, must Tools [D] file to present such objection and when must it file such pleading? Explain fully.
Tools should file a special appearance. Under the due order of pleading rule, the special appearance must be filed before any other plea, pleading, or motion; however, the special appearance may be consolidated with other pleadings in a single instrument.
02/09: Assume that Tools [D] properly presents its objection to the Court’s jurisdiction over it. What may the Court consider in ruling on the objection? How should the Court rule on the objection? Explain fully.
The court may consider pleadings, stipulations, affidavits, the results of discovery processes, and any oral testimony. The court should deny the objection to jurisdiction. Tools has minimum contacts with Texas. The foreign corporation, Tools, purposefully acted in Texas (regularly advertised and sold products), the cause of action arises from Tool’s activities in Texas (Paul bought the product and was injured in Texas), and the assumption of jurisdiction would not offend traditional notions of fair play and substantial justice.
02/09: Assume that Tools [D] is considering removing the case to federal court on the basis of diversity of citizenship, given that it is a Delaware corporation. Does Tools have a valid basis for removing the case on diversity grounds? Explain.
Tools does not have a valid basis for removing the case on diversity grounds. Diversity jurisdiction requires that there must be complete diversity. Here, Paul (Texas domicile) is not diverse from David (Texas domicile) and Supplies (a Texas corporation with its principal place of business in Texas). The lack of complete diversity makes removal improper. Even if the parties were diverse, the presence of D’s (David and Supplies) who are residents of the forum state (Texas) would defeat removal based on diversity.
02/09: David does not want the case to proceed against him in Nueces County because he does not live in the county. What pleading must David file to present his objection to the case proceeding against him in Nueces County, and when must David file the pleading? Explain fully.
David must file a motion to transfer venue. Under the due order of pleading rule, a motion to transfer venue must be filed before any other plea or pleading other than a special appearance.
02/09: Assume David properly files his objection to the case proceeding against him in Nueces County. How should Paul respond, and how should the Court rule? Explain fully.
Paul should respond presenting prima facie proof (affidavits and discovery materials) of matters specifically denied by David and specifically denying any of David’s pleaded venue facts which Paul wishes to contest. The court should deny David’s motion. Under the general venue rule, venue is proper in Nueces county because it is the county in which all or a substantial part of the events or omissions giving rise to the claim occurred ad it is also the county of D-Supplies’s principal office.
02/09: Assume that Paul’s original petition did not state the total amount of damages that he is seeking. Supplies wants to know the maximum amount of damages that Paul seeks. What pleading can Supplies file to require Paul to state the amount of damages that he seeks? Assume Supplies files the proper pleading. How should the Court rule? Explain fully.
Supplies can file a special exception seeking specification of damages and asking the court to require Paul to amend so as to specify the maximum amount claimed. Supplies must object in writing, call for a hearing, and get a ruling on the exception on the record. Here, the court should order Paul to replead.
02/09: When Paul filed his original petition, he also filed a Request for Production, which was served on each of the Defendants along with the citation and a copy of the original petition. When must each Defendant file an answer to the petition to avoid a default judgment and what is the deadline for each Defendant to file responses to the Requests for Production? Explain fully.
In order to avoid a default judgment, each defendant must file an answer by 10 AM on the first Monday after expiration of 20 days from the date the D was served with process. Each D has 50 days from the date of service of the request to respond because it was served before the D’s answer to Paul’s petition was due.
02/09: Assume the lawsuit proceeds in the Nueces County district court against all of the named Defendants. The parties want to proceed with written discovery before scheduling oral depositions. Identify five permissible forms of discovery under the Texas Rules of Civil Procedure.
1) Request for Disclosure2) Request for Production3) Requests for Admission4) Interrogatories5) Written and Oral Depositions
02/09: Paul’s atty sends Tools atty a request for admission asking Tools to admit within 31 days of service of the request, that Tools was the manufacturer of the electric saw in question. Forty (40) days after Tools attorney received the request for admission, he served Paul’s attorney with a response denying the request for admission. What is the effect of that response and what mustTool’s attorney do and show to change that result? Explain fully.
Tool’s denial was not effective because its response to the request for admission was due within 30 days after service. The request for admission is deemed admitted without the need of a court order because it was not timely served. To change this result, Tool’s atty must file a motion to withdraw the deemed admission and demonstrate two things: good cause and that parties relying on the admission will not be unduly prejudiced.
02/09: All of the Defendants want to independently verify the nature and extent of Paul’s injuries. How can that be accomplished? Explain fully.
The D’s can file a motion to compel a medical exam of another party, Paul, by a qualified physician. The motion must be filed more than 30 days before the end of the discovery period, be served on all parties and the person to be examined, show good cause for the examination, and indicate that the party’s physical condition is in controversy.
02/09: Assume that Paul receives a discovery request from a Defendant calling for the production of material thatPaul’s attorney considers to be privileged. How can Paul’s attorney preserve the privilege? Explain fully.
Paul’s atty can preserve the privilege by using a withholding statement. In a response to the discovery request or in separate document, within the time for the response to the request, Paul’s atty must state that information responsive to the request has been withheld, the request to which the material relates, and the privilege asserted.
02/09: In response to a request for production from Paul, Supplies’ atty inadvertently produces communications between Supplies and its attorneys. What must Supplies’ attorney do to avoid a waiver of the attorney-client privilege with respect to the communications that were produced? Explain fully.
The producing party, Supplies, does not waive the privilege, if, within 10 days of discovering that the communications were produced, it amends the response identifying the material produced and states the privilege asserted. After the timely amendment, the requesting party, Paul, must promptly return the privileged material and any copies pending any ruling by the court denying the privilege.
02/09: During Paul’s deposition, his attorney wants to object to questions being asked by Supplies’ attorney. What objections to questions can Paul’s attorney make during the deposition? What objections to testimony can be made during the deposition?
Objections to questions during oral deposition are limited to “objection, leading” and “objection, form.” Objections to testimony during the oral deposition are limited to “objection, nonresponsive.”
02/09: In the course of discovery, Paul identifies an expert witness who states in his expert’s report that the electric saw was defective. How and on what basis can Tools challenge the expert and his opinion? Explain fully.
Tools can file a motion to exclude the expert’s testimony on the ground he is not qualified by reason of his skill, knowledge, training, education, or experience. Tools might also be able to exclude the expert’s testimony on the ground that the principles and methodologies the expert applies are not sufficiently reliable.
02/09: Assume that the Court sustains Tools pretrial objection to Paul’s expert and that Paul has no other evidence to support his claim that the electric saw was defective. What pretrial procedure is available to Tools to avoid the necessity of a trial on this claim? Assume that Tools follows the applicable procedure, how should the Court rule? Explain fully.
Tools can file a motion for summary judgement. After adequate time for discovery, a party may move for summary judgement on the ground that there is no evidence of one or more essential elements of a claim on which the nonmoving party would have that burden of proof at trial. The court should grant the motion because there is no evidence of defect, an element essential to Paul’s claim and on which he would bear the burden of proof at trial.
02/09: The case proceeds to trial. Prior to jury selection, Paul wants to keep the attorneys for the Defendants from disclosing to the jury panel certain information regarding his relationship with his ex-wife. How can Paul’s attorney keep the information from the jury panel and what must he show? Explain fully.
Paul should file a motion in limine, which, if granted, would preclude the Ds’ attys from mentioning the facts of concern to the panel during jury selection or during opening statement and would allow them to obtain a ruling on admissibility outside the presence of the jury before referencing it during trial. In his motion, Paul should show that the evidence is both likely inadmissible and unfairly prejudicial to him.
02/09: During trial, Paul calls a witness who he had failed to identify in his discovery responses. The attorneys for all of the Defendants object to the witness. What must Paul show in order for the witness to be able to testify? Explain fully.
In order for the witness to testify, Paul must show good cause for the nondisclosure or that the opposing parties will suffer no prejudice or surprise.
02/09: At the conclusion of his case in chief, Paul rests. David’s attorney believes that Paul failed to present any evidence to support the negligence claim that Paul had filed against David. What procedure is available to David’s attorney at this point in the trial to bring the matter to the attention of the Court? Explain fully.
David’s atty can file a motion for directed/instructed verdict. David may move for a directed verdict by showing the court that Paul has failed to produce any evidence on at least one element of a ground of recovery, negligence.
02/09: The case proceeds to verdict. The jury returns a verdict in favor of Paul. The Defendants believe that the evidence does not support the jury’s verdict. What pleadings can the Defendants file to prevent the entry of a judgment in favor of Paul? Explain fully.
The proper pleading would be a motion for a judgment notwithstanding the verdict. Here, the Ds can ask the court to render a judgment based on one or more findings that are supported by no evidence.
02/09: The Court enters judgment on the verdict. The Defendants want to file a motion for a new trial. When must such a motion be filed in order for it to be timely? Assume a motion for new trial is timely filed, what happens if the Court never rules on the motion? Explain fully.
The motion for new trial must be filed within 30 days after the judgment is signed. The motion for new trial will be deemed overruled by operation of law on the 75th day after the court signs the judgment.
07/09: What county or counties would be proper venue for such a lawsuit? Explain fully.
Venue would be proper in Kleburg County (where the events giving rise to the claim occurred) and Brooks County (Ray’s residence at the time the cause of action accrued). If venue is proper against one defendant, it is proper as to all D’s. Venue may be proper in Nueces County because that is where D-Extra resides as a “natural person” because a sole proprietorship has no separate legal existence apart from the sole proprietor.
07/09: Bill sues Extra and Ray in Brooks County. Extra wants to contest venue in Brooks County and move the case to Nueces County. What pleading must Extra file to challenge venue in Brooks County? When must the pleading be filed? Explain fully.
Extra mus file a motion to transfer venue to challenge Bill’s choice of venue. Under the due order of pleading rule, the motion to transfer must be filed before any other plea or pleading other than a special appearance. The defendant may file a consolidated response without waiving the motion.
07/09: Extra wants to add Parts to the case as a party defendant, alleging negligence and product liability causes of action. What pleading must Extra file and when must it file the pleading to add this party to the case? Explain fully.
At any time after the commencement of the action, the defendant may file a third-party petition. The third-party plaintiff need not obtain leave of court to make the service if he files the third-party petition not later than 30 days after service of his original answer. Otherwise, the D must obtain leave of court upon motion after giving all parties notice of the motion.
07/09: How must service of process be accomplished with respect to Parts, since it is a corporation and is not registered with the Texas Secretary of State? Explain fully.
Extra can serve Parts by serving the Texas secretary of state under the Texas long arm statute. Use of the long arm statute is proper when the corporation served is a nonresident, has no regular place of business in Texas, has no registered agent in Texas, and has been doing business in Texas.
07/09: Parts wishes to contest the jurisdiction of the Texas trial court. What pleading must Parts file to contest the jurisdiction of Texas over it in this case? Explain fully.
Parts should file a special appearance to challenge the court’s exercise of personal jurisdiction. The special appearance must be filed before any other plea or pleading to avoid waiver. The special appearance can be filed as part of a consolidated response.
07/09: Parts contends that it is not a Texas corporation and does not conduct business in Texas. How should the court rule on Parts’ plea to the Texas trial court’s jurisdiction? Explain fully.
The court should deny Parts’s special appearance. Here, Parts purposefully acted out of state to cause foreseeable in-state consequences. Bill’s cause of action arises from and is connected with Part’s activity. The exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. It also can be argued the Parts had substantial and systematic contacts with Texas supporting the exercise of general rather than specific personal jurisdiction.
07/09: Bill’s attorney wants to know if Extra has liability insurance for this case and if Extra, its lawyers or its insurance company have any statements concerning this case. How can he secure this information? Explain fully.
Bill may use a request for disclosure to obtain any indemnity and insuring agreements and any “witness statements.”
07/09: Bill’s attorney retains and designates as an expert an engineer to investigate the explosion and fire. The engineer does not prepare a written report. Extra wants to know what facts Bill’s expert’s investigation revealed and what his expert opinions are. How can Extra obtain this information? Explain fully.
Information sought concerning testifying expert witnesses may be obtained from a party through a request for disclosure or deposition. The request for disclosure allows Extra to obtain the expert’s mental impressions and opinions and a summary of the basis for them along with any “data compilations” prepared by the expert. Because no expert report was furnished at the time the expert was designated, the expert must be made available for deposition reasonably promptly after designation.
07/09: Bill claims the explosion and fire have caused him to acquire post traumatic stress disorder (PTSD). Bill is a veteran and has been treated by the Veterans Administration Medical Center. Bill refuses to produce any medical records for health care prior to the explosion. He refuses to sign a medical authorization for such records. What steps should Extra and Ray take to obtain these prior medical records or obtain an authorization for the records? Explain fully.
The D’s can obtain the medical records or an authorization using a request for disclosure. The D’s may subpoena production of the records by serving the physicians and parties with a notice to produce 10 days before the subpoena is served in connections with a deposition on written questions. Finally, the D’s could obtain a court order for the production of records. If Bill fails to respond to discovery demands, the D’s can move for sanctions or an order compelling discovery, as appropriate.
07/09: The parties file cross-notices for party depositions. Bill notices the depositions in Kleberg County, Texas and Extra notices the depositions in Nueces County, Texas. Both parties timely file motions to quash the other parties’ notices. Upon a hearing on the motions to quash, in what county should the trial court order the depositions be taken? Explain fully.
If the deponent is a party, the deposition may be taken in the county in which suit is filed (Brooks County); the county of the deponent’s residence; the county where the deponent is employed; and the county where the deponent was served with a subpoena. Bill’s deposition may be taken in Kleburg County (residence) and Brooks County (suit), but not Nueces County where it was set itn the notice. Extra’s deposition may be taken in Nueces County (residence and employed) and Brooks County (suit), but not in Kleburg County where it was set in the notice. Ray’s deposition may be taken in Brooks County (residence and suit). Parts’s deposition may be taken in Brooks County (suit). All depositions may be taken in Brooks County and the court should so order.
07/09: Parts contends it has no person, employee, or agent who can or will testify as a witness because no one in the company has any personal knowledge about the explosion and fire. How can Bill’s lawyer compel Parts to produce a witness for deposition in the case? Explain fully.
Bill’s notice of deposition must describe with reasonable particularity the matters on which examination is requested. In response, Parts must, a reasonable time before deposition, designate one or more individuals to testify on its behalf on specified areas. If Parts fails to designate an individual, Bill may move for an order compelling a designation or apply to the court for the imposition of sanctions.
07/09: Parts’ expert and the Fire Marshall believe that the valve in question was not defective, but rather that the valve was improperly installed by Ray and that the valve’s design was not a cause in fact of the explosion and fire. Discovery is complete. What motion or motions should Parts file in order to be dismissed from the case? What documents should be attached to the motion or motions? Explain fully.
Parts can file a motion for summary judgment alleging that there is no genuine issue as to any material fact concerning defect or causation and that it is entitled to judgment as a matter of law. Parts should attach any supporting affidavits and any discovery material such as depositions not on file with the clerk.
07/09: Bill requested a jury trial in his Original Petition but did not pay a jury fee. The case is on the non-jury docket and is set for trial. Forty-five days before trial, Bill pays the jury fee and requests a setting on the jury docket. Extra, Ray and Parts file objections to Bill’s attempt to move the case to the jury docket. The motion is set for a hearing. How should the court rule? Explain fully.
Overrule the objection and move the case to the jury docket. To perfect the right to a jury trial, a litigant must file a written request for a jury trial and pay the jury fee a reasonable time before the date set for trial on the nonjury docket, but not less than 30 days before the trial date. A demand made more than 30 days in advance will usually be a reasonable time.
07/09: In voir dire, a prospective juror says, “Extra did a lousy job at my home last year, but I think I could be fair.” What steps should Extra’s lawyer take to challenge that potential juror? Explain fully.
Extra’s a lawyer should the juror for cause on the ground that the juror has a bias or prejudice against Extra. A perspective juror who has expressed equivocal bias, as here, is not disqualified as a matter of law. Additional voir dire questions may be allowed to determine if the person could be fair and objective.
07/09: As the trial begins, Bill’s attorneys call Ray as Bill’s first witness. Ray and Extra object on the basis that Bill must testify first and lay a foundation for his claims against Ray and Extra. How should the court rule? Explain fully.
The court should overrule the objection. A civil case, a plaintiff may call the defendant adversely at any time during his case in chief, even as his first witness. The plaintiff need not testify before calling the defendant or otherwise lay a foundation for his claims.
07/09: During discovery the parties obtain the report of the Fire Marshal. Later, the Fire Marshal is deposed. The Fire Marshal is listed as a trial witness by all parties, except Parts. Parts calls the Fire Marshal as a witness at trial. Extra objects to the Fire Marshal being called by Parts because Parts did not list him as a witness. How should the court rule? Explain fully.
The court should overrule the objection. If “listed” means that Parts failed to identify the witness in response to discovery requests, then Parts will have to show good cause for the nondisclosure or that the opposing party will suffer no prejudice or surprise (i.e. the fire marshal was listed as a witness by all other parties). If “listed” refers to the pretrial order, the court may allow modification for good reason to prevent manifest injustice.
07/09: In order to impeach Ray, Bill proffers evidence that Ray has five convictions for moving violations in the last twelve months. Ray objects to the admission of this evidence. How should the court rule? Explain fully.
The court should sustain the objection. Convictions are not admissible to impeach a witness unless the convictions are felonies or crimes of moral turpitude. Moving violations are neither felonies nor crimes of moral turpitude.
07/09: After the first day of trial, Parts offers to pay Bill $10,000 for a release of all claims and an agreement to indemnify Parts from the claims of Extra. The next morning, Extra seeks to offer into evidence the fact that Parts sought indemnity from the claims of Extra against Parts, as an admission that Parts was liable for the explosion. Parts objects to the offer of such evidence. How should the court rule? Explain fully.
The court should sustain the objection. Offers to provide valuable consideration to compromise a disputed claim are not admissible to prove liability, nor are statements made during compromise negotiations. The “disputed claim” element of the rule does not require that a legal claim has already been asserted against the offering party. The litigation demonstrates that there is already a dispute as to Parts’s liability, and Parts’s settlement efforts were to prevent Bill from asserting a future claim. Moreover, the request for indemnification was a statement made during negotiations and is therefore also inadmissible.
07/09: After the parties rest and close, the defendants move for instructed verdicts. The court grants the motion of Parts and denies all other motions for instructed verdict. In the court’s charge, which of the parties’ proportionate responsibility should be submitted to the jury? Explain fully.
The court’s charge should submit all of the parties’ proportionate responsibility to the jury except Parts’s responsibility. Each question in the charge must be raised by the evidence and a question should not be submitted if it has no support in the evidence. By granting Parts’s motion, the court found that there are no controverted fact issues concerning Parts’s responsibility for the jury’s determination and that Parts was entitled to a verdict as a matter of law.
07/09: The jury finds Extra to be responsible for the explosion through negligent staffing. Extra believes there is no evidence to support a finding of negligent staffing against it. Before a judgment is entered, what motion should Extra file to bring this issue to the trial court’s attention? Explain fully.
Extra should file a motion for judgment notwithstanding the verdict. This motion asks the court to render judgment based upon one or more findings that are supported by no evidence. Extra would be entitled to a judgment if no evidence supports the only ground on which the jury found extra responsible—negligent staffing.
02/10: After Trey files his lawsuit, what documents must be served upon the defendants in order to compel them to file an answer? Explain fully.
A civil suit is commenced by a petition filed in the office of the clerk. In order to compel the defendants to file an answer, the plaintiff must obtain service on each defendant of the citation issued by the clerk and a copy of the petition.
02/10: What pleading should Home file to contest the filing of the suit in Dallas County and when should the pleading be filed? Explain fully.
Home should file a motion to transfer venue to contest the filing of the suit in Dallas County. The motion should be filed within the time allowed for filing an answer and, under the due order of pleading rule, must be filed before any other plea or pleading other than a special appearance. Home may file a consolidated response without waiving the venue challenge.
02/10: If the court decides to grant relief to Home regarding the county of suit, what county or counties constitute a proper location for the suit and why? Explain fully.
Collin County because it is a county in which all or a substantial part of the events or omissions giving rise to the claim occurred. Venue also would be proper and Parker County because it is the county of Ice’s principal office in the state (assuming that ice is not a natural person).
02/10: Ice alleges that the district court has no jurisdiction over the parties and subject matter of the suit. Ice moves the court to dismiss the case for lack of jurisdiction.How should the court rule? Explain fully.
Motion denied. The court has personal jurisdiction over the parties, even if neither were incorporated in Texas. It appears that home’s only contacts with any state are in Texas, and ice must have minimum contacts with Texas, since Texas is where its principle place of business is. The event that either is not a Texas Corp., The Texas long arm statute would provide jurisdiction based on commission of a tort in Texas. The court has subject matter jurisdiction assuming the amount in controversy exceeds of $500, which is the jurisdictional floor for district courts.
02/10: Trey’s original petition is very broad and makes general allegations of negligence against both defendants.What pleading should the defendants file to require the plaintiff to re-plead his case with more definite and specific factual allegations? Explain fully.
File a special exception to Trey’s original petition. A special exception is used to indicate formal defects in particular allegations such as excessively general, uncertain or ambiguous allegations which fail to give fair notice. Defendants must object in writing, call for a hearing, and get a ruling on the record. If sustained, Trey will be allowed to amend the petition to correct the defects.
02/10: Home is actually a Texas corporation and not a sole proprietorship as pleaded by Trey. How should Home give notice to the parties and the court that it is a corporation and intends to seek the protection ofthat status for its shareholders? Explain fully.
First, Home should file a verified denial as it is not liable in the capacity in which it is sued and is not doing business under an assumed name. A verified denial will give Trey notice that home intends to invoke its status as a corporation. Then, Home should allege the same matters in a verified plea in abatement. The plea in abatement sets forth an obstacle to further prosecution of the suit, the effective cure, and asks the court to suspend the suit until plaintiff has corrected the defect. The plea in abatement will raise the capacity issue and ask the court to take action based on the alleged defects in the petition.
02/10: Ice believes that Trey’s suit against Ice is barred by the statute oflimitations. Ice does not want to disclose this defense for strategic reasons.Must Ice raise this issue before the case goes to trial and ifso, how should Ice assert the defense of limitations? Explain fully.
Ice must raise this issue before trial and should assert the defense of limitations as an affirmative defense in its answer. The statute of limitations must be pleaded as a ground of defense on which Ice has the burden of proof. Failure to plead the defense of limitations waives the defense. Adding the defense as a trial amendment would be a poor strategy because Trey would likely show surprise or prejudice which would cause the court to deny Ice’s motion for leave to file a trial amendment.
02/10: Trey and his attorney want to know if Home and Ice have liability insurance to cover any of the claims brought in this suit. Ice’s attorney informally tells Trey’s attorney that Ice has no insurance. Home’s attorney makes no reply about insurance coverage.What document can Trey serve to determine whether either defendant is covered by insurance?Explain fully.
Trey can use a request for disclosure to obtain discovery of the existence and contents of any insurance agreement under which any person may be liable to satisfy all or any part of a judgment.
02/10: By way of interrogatories, Home inquires of Trey whether he has sustained other accidental personal injuries, before or after the incident made the basis of the lawsuit. Trey objects to the interrogatory as being irrelevant. Home sets the objection for hearing.How should the court rule? Explain fully.
Deny the objection. Home may obtain discovery regarding any manner that is not privileged, relevant to the subject of the pending action, or which is reasonably calculated to lead to the discovery of admissible evidence. The evidence sought by Home relates to the causal connection between its alleged negligence and Trey’s current alleged injuries. This information is within the scope of discovery allowed by the discovery rules.
02/10: Following Trey’s fall, Home requests that Ice move the ice machine to an area of the store where there is less customer traffic. Trey plans to offer this fact into evidence to prove knowledge of a dangerous condition. Home and Ice believe that the evidence is not admissible and is prejudicial.What document should Home and Ice file to bring this matter to the attention ofthe court and to keep this matter from being presented to the jury? Explain fully.
Home and Ice should file a motion in limine. If granted, neither Trey nor his counsel could mention the machines relocation in voir dire, opening statement, or during the presentation of evidence without first obtaining a ruling on admissibility outside the presence and hearing of the jury.
02/10: Should Trey’s counsel attempt to offer the fact of the post-accident re-location of the ice machine into evidence, what substantive objection should Home and Ice make regarding this evidence? Explain fully.
Home and Ice should object that evidence of the re-location of the machine is an inadmissible subsequent remedial measure. The court should sustain this objection because evidence of a post accident measure taken to make the injury or harm less likely is inadmissible to prove negligence or other culpable conduct. Here, the post accident relocation of the ice machine is designed to prevent customer slipping and is therefore an inadmissible subsequent remedial measure.
02/10: In his first amended original petition, Trey alleges direct acts of negligence and alleges claims of negligent hiring, staffing, and supervision against Ice due to its high employee turnover rate. Discovery is complete and Trey has produced no evidence to support the negligent hiring, staffing, or supervision claims. Ice fears this pleading will be prejudicial to its defense.What pleading should Ice file to attack these allegations of negligent hiring, staffing, and supervision, so as to remove them from the court’s and jury’s consideration? Explain fully.
Ice should file a no evidence motion for summary judgment to attack Trey’s allegations. After adequate time for discovery, Ice may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim on which Trey would have the burden of proof at trial. Ice’s motion would state that Trey has produced no evidence of negligent hiring, staffing, or supervision.
02/10: Trey requested a jury trial and paid a jury fee. Home and Ice requested a jury trial. Trey filed a motion to remove the case from the jury docket and place it on the non-jury docket. Home and Ice object to the motion.How should the court rule? Explain fully.
Sustain the objection and deny the motion. A demand for jury trial, once made by one party, inures to the benefit of all parties. An opposing party (Home and Ice) may rely on the first party’s (Trey) jury request a first party has both made a request and paid the fee. In such a case, the trial court may not remove the case from the jury docket over the objections of the opposing party.
02/10: The parties attended a mediation conference. The mediation failed. During the mediation, an Ice representative disclosed that the machine in question was old and needed repair. Trey subpoenas the mediator to testify about the disclosure at trial. The mediator files a motion to quash the subpoena.How should the court rule? Explain fully.
Grant the motion. There is a statutory privilege that provides that a mediator may not be called to testify or disclose any information given to the mediator by any party during the mediation.
02/10: On the second day of trial, one of the jurors is seriously injured and can no longer serve as a juror. There are no alternate jurors. Home asks the court for a mistrial. Trey opposes the motion for mistrial.How should the court rule? Explain fully.
Deny the motion. In the district court, a verdict may be rendered by the concurrence of 10 members of the original 12 person jury. Where as many as three jurors die or become disabled from sitting, the remaining jurors may render and return a verdict. When the missing juror meets the definition of being “disabled from sitting,” as in this case, the case can proceed even without the consent of both parties.
02/10: Trey discovers that prior to his fall, Ice had been to Home’s store on four occasions to repair leaks in the machine in question. Prior to Trey’s fall, an Ice employee told Home to obtain rubber mats to protect customers. Trey offers these facts into evidence. Home objects on the basis that the witness is not its employee, that Home denies the conversation, and that the alleged statements are not binding on Home.How should the court rule? Explain fully.
Court should overrule what amounts to a hearsay objection. Statement is not hearsay because it is not offered to prove the truth of the matter asserted. Instead, the statement shows that Home had notice of a dangerous condition. Because the statement is not hearsay, it need not qualify as a vicarious admission, and Home can try to establish that the conversation did not occur on cross examination.
02/10: In a video deposition, a Home employee testifies that he saw Trey spill a soda, step in the soda he spilled, and fall. At trial, Home offers video clips of this deposition testimony. Trey’s attorney objects to the video clips because Home has not shown that the witness is dead or is otherwise unavailable to testify in person. How should the court rule? Explain fully.
The court should overrule the objection. The Texas rules of evidence provide that a video deposition taken in a civil case is not hearsay when offered in the same proceeding, even though the deponent is available to testify at trial.
02/10: Ice calls Trey’s wife as an adverse witness. Out of the presence of the jury, Ice’s lawyer tells the court that he intends to ask the witness if Trey told her that he fell because he slipped in the soda. Trey objects to this line of questioning.How should the court rule? Explain fully.
The objection should be sustained. The spousal communication privilege makes confidential communications between spouses during marriage inadmissible. Either spouse may invoke this privilege, not just the witness spouse. Trey’s objection invokes the privilege and makes inadmissible the confidential communication he made to her during marriage.
02/10: During trial, the court refuses to admit into evidence Trey’s unauthenticated medical bills and wage statements. Trey then offers his own sworn answers to interrogatories to authenticate and prove his medical expenses and lost wages. Home objects to this evidence.How should the court rule? Explain fully.
The court should sustain the objection. Documents must be authenticated through admissible evidence, not through hearsay statements such as the interrogatories. Trey should take the stand and attempt to authenticate the documents with his live testimony or that of another qualified witness, such as a custodian of records.
02/10: After the trial court signs a judgment in favor of Trey, Home and Ice file a motion for new trial based upon jury misconduct. They attach an affidavit of one of the jurors. In that affidavit that juror swears: “The presiding juror was rude and hateful to the other jurors. The presiding juror told the other jurors that all the defendants’ witnesses were liars, and the presiding juror said the jury needed to award the plaintiff a substantial sum of money because he was badly injured.” The affiant testifies to these facts at the jury misconduct hearing. No other evidence is offered to support the motion.How should the court rule? Explain fully.
Deny the motion if. A juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations, except that a juror may testify at whether any outside influence was improperly brought to bear upon any juror. Outside influence means a force external to the jury and it must come from a non juror. Information introduced into deliberations by a juror is not outside influence.
07/10: What pleading should DAN and ABC file if they intend to contest venue in Brown County, Texas, and when must the pleading be filed? Explain fully.
DAN and ABC should file a motion to transfer venue to contest venue in Brown County. The motion must be filed before any other plea or pleading except a special appearance. The motion may be presented in a consolidated response so long as the due order of pleading is preserved.
07/10: DAN and ABC aver that the case should be filed in McLennan County. Paul files an alternative pleading asking the Brown County court to transfer the case to Harris County, since it is where Paul resides. DAN and ABC object to venue in Harris County, Texas.How should the Brown County court rule? Explain fully.
The court should transfer the case to McLennan County which is a proper venue because all the events giving rise to the claim occurred in that county and also both defendants (not natural persons) appear to have their principal office is in the county. Harris County is not a proper venue because proper venues exist and the plaintiff’s residence is a proper venue only if there is no other proper venue under the general venue provisions.
07/10: By way of a broad and general pleading, Paul sues DAN and ABC for negligence and gross negligence.What pleading must DAN and ABC file in order to require Paul to plead the specific allegations supporting his negligence and gross negligence claims? Explain fully.
DAN and ABC should file a special exception tell more specific pleadings. Defendants must make the special exception in writing, call for a hearing, and get a ruling on the exception on the record.
07/10: Paul re-pleads his case with specific allegations of negligence, but does not specify the allegations of gross negligence asserted against DAN and ABC. The defendants aver that the pleading regarding gross negligence has defects that are incurable.What pleading should DAN and ABC file regarding Paul’s new petition, what relief should they seek, and how should the court rule? Explain fully.
DAN and ABC should file a motion to dismiss or strike asking the court to dismiss or strike plaintiffs gross negligence allegations. Having granted defendants’ national exception (see answer to previous question) the court may dismiss or strike the objectionable pleading because plaintiff elected to “stand” on his gross negligence allegations and refuse to amend despite the opportunity to do so.
07/10: Paul’s petition names “Dan Construction” and not “Dan Construction, Inc.” as a defendant.What pleading should DAN file to assert its corporate capacity in order to protect its officers, directors, and shareholders from personal liability? Explain fully.
First, DAN should file a verified denial because it is not liable in the capacity in which it is sued and is not doing business under an assumed name. A verified denial will give Paul notice that DAN intends to invoke its status as a corporation. Then, DAN should allege the same matters in a verified plea in abatement. A plea in abatement sets forth an obstacle to further prosecution of the suit, the effective cure, and asks the court to suspend the suit until plaintiff has corrected the defect. The plea in abatement will raise the capacity issue and ask the court to take action based on the alleged defects in the petition.
07/10: Pursuant to the general construction contract between DAN and REYNA, Paul signed a pre-injury release and arbitration agreement. DAN believes this agreement constitutes an affirmative defense to Paul’s claims.What pleading, if any, should DAN file in order to assert the protection of the release and arbitration agreement, and when must the pleading, if any, be filed? Explain fully.
DAN should raise the release as an affirmative defense in his answer or amended answer. The amended answer should be filed at least seven days before trial. DAN should also file a motion to compel arbitration. Arbitration and award is an affirmative defense, but the right to compel arbitration is not. There is no fixed time to file the motion, but delay can cause waiver if the party seeking arbitration substantially invokes the judicial process and the opponent suffers prejudice as a result of the delay.
07/10: Name five categories of discovery authorized by the Texas Rules of Civil Procedure.
Requests for disclosure, requests for production, requests for admissions, interrogatories, and depositions.
07/10: DAN’s attorney submits to Paul and his attorney interrogatories requiring 50 separate answers and 50 requests for production.What pleading should Paul file to object to these discovery requests and how should the court rule? Explain fully.
Paul must make his objection to the interrogatories in writing, either in his response or in a separate document, within the time for his response. The court should sustain the objection because the number of interrogatories is limited to 25 by the rules unless this is a level three discovery case and a court order authorizes a greater number of interrogatories. There appears to be no objection based on the number of requests for production based on these facts. (!!!Check recent changes!!! Verify verity)
07/10: In response to Request for Disclosures, ABC objects to Paul’s request that it disclose its insurance coverage. ABC objects to the request for disclosure claiming ABC is a large company with plenty of assets and its insurance coverage is irrelevant. What pleading should Paul file to bring ABC’s objection to the court’s attention and how should the court rule? Explain fully.
Paul May file a motion for an order compelling discovery after attempting to resolve the dispute. Court should overrule the objection because the rules expressly authorize the use of a request for disclosure to obtain any indemnity or insurance agreement under which any person may be liable to satisfy all or part of a judgment.
07/10: In response to Request for Disclosures, Paul produces his relevant medical records but refuses to produce a properly executed medical authorization. Paul avers that his production of the records is a valid substitute for the authorization. ABC moves the court to order Paul to produce a properly executed medical authorization in addition to the medical records.How should the court rule on ABC’s motion and request for a medical authorization?Explain fully.
The court should grant the motion and order the production of a properly executed medical authorization. The request for disclosure rule provides for production of medical records or, in lieu thereof, a medical authorization. One court has interpreted this to mean that the party requesting the disclosure has the option of seeking an authorization instead of medical records.
07/10: The parties agree on a date for the party depositions. The parties notice and cross-notice each other for the depositions of the parties. Paul and his wife attend the deposition, and a representative of DAN attends the deposition to testifY as a party witness for DAN along with the president of DAN. ABC, without explanation or agreement, does not produce any witness to respond to the notices and cross notices for deposition. All of the respective attorneys appear at the depositions as noticed.What recourse is available to DAN and Paul for ABC’s failure to produce a witness at the deposition as noticed? Explain fully.
DAN or Paul could file a motion for sanctions or an order compelling discovery based on ABC’s and produce a witness at a properly noticed deposition. As a party, the notice of deposition of ABC had the same effect as a subpoena which ABC ignored. As a corporate party, ABC had a duty to designate and produce a witness to testify on its behalf in response to the notice which presumably described the matters on which examination was requested. A court may order ABC pay the atty fees of DAN and Paul incurred in obtaining the order as well as a broad range of other sanctions.
Paul’s attorney serves a notice for the deposition of Paul’s treating doctor, with the deposition to be taken on Monday July I. ABC’s attorney immediately notifies Paul’s counsel he is set for trial in another case on July I and does not have another lawyer to cover the deposition. Paul’s attorney refuses to reschedule the deposition.12. What pleading should ABC’s attorney file to object to and abate the doctor’s deposition, and when should it be filed? If the pleading is timely filed, what is the effect of the filing? Explain fully.
ABC should file a motion for a protective order or motion to quash the notice of deposition. The motion must be filed before the time specified in the notice. If the motion is filed by the third business day after service, an objection to the time of the deposition stays the deposition until the motion can be determined.
07/10: DAN develops evidence that Paul’s employer, REYNA, was negligent m instructing an inexperienced driver to operate the forklift.What pleading should DAN file to support its evidence of REYNA’s negligence and to support a jury question concerning the negligence of REYNA? Explain fully.
DAN should file a third party petition seeking contribution or indemnity. However, this option may be futile because REYNA may have workers compensation immunity. In the alternative, file a motion for leave to designate REYNA, a nonparty, as a responsible third party whose conduct caused or contributed to the harm for which recovery is sought.
07/10: REYNA objects to its conduct being submitted to the jury on the grounds that it is Paul’s employer, and is covered by workers’ compensation insurance, which as a matter of law means that its conduct should not be submitted to the jury.How should the court rule on REYNA’s objection? Explain fully.
The court should overrule REYNA’s objection if it was designated as a responsible third party. A jury is allowed to consider the responsible third party’s conduct when allocating fault for plaintiff’s injuries despite the responsible third party’s status as an employer with workers compensation immunity.
07/10: Paul’s expert engineer has testified by deposition that, according to industry standards, DAN was grossly negligent in its maintenance of the forklift in question and that DAN’s gross negligence was a proximate cause of Paul’s injuries. DAN files a motion for summary judgment attacking Paul’s cause of action for gross negligence.What documents should Paul provide to the court with his response to the motion for summary judgment, and when should this response be filed? Explain fully.
Discovery materials not on file with the clerk may be used as summary judgment evidence if they are filed and served on all other parties with a statement of intent to use the material as summary judgment proof. As the party opposing the motion, Paul must file and serve the deposition seven days before the hearing on the motion. Paul May then reference or set forth the deposition transcript/testimony in his response to the motion.
07/10: Following the accident, DAN repaired the failed hydraulic system on the forklift in question. DANasserts that this is a subsequent remedial measure and not admissible.What pleading should DAN file to preventthis evidence from being presented to the jury and admitted as evidence in the trial? Explain fully.
DAN file a motion in limine. If granted, Paul will not be able to mention the post accident repair during jury selection or opening statement and will have to approach the bench and get a ruling on the admissibility of the evidence outside the hearing of the jury
07/10: After voir dire examination by all parties, the court announces that it will allow each side 15 minutes to make their jury strikes. Considering the claims, counterclaims, and cross-claims, the court finds that there is antagonism between all of the parties. DAN and ABC agree to cooperate with each other in making their strikes. Paul objects to DAN and ABC making their strikes together, arguing that each party must make their strikes separately.How should the court rule on Paul’s objection and why? Explain fully.
The court should deny paul’s objection. Court granted additional strikes to the codefendants based on their “antagonism,” Paul should proceed by filing a motion to equalize the jury strikes so that no “side” has an unfair advantage. A court would consider any matter related to achieving a just result and eliminating an unfair advantage.
07/10: Paul introduces into evidence $100,000 in past medical expenses. The parties have stipulated outside the presence of the jury that the workers’ compensation carrier paid all of Paul’s medical bills in the amount of $60,000. The jury returns a verdictfor past medical bills in an amount of $100,000. Can the court award Paul $100,000 for past medical expenses? Explain fully.
Yes, the court should set aside the extra $40,000 because a plaintiff may only recover for medical expenses actually paid or incurred on his behalf, and the stipulation makes clear that only $60,000 was paid or incurred on his behalf.
07/10: The jury returns a verdict for Paul finding DAN grossly negligent. DAN believes there is no evidence, or insufficient evidence, to support the finding of gross negligence.What pleading, if any, should DAN file to bring this issue to the court’s attention before a judgment is entered? Explain fully.
DAN file a motion for a judgment notwithstanding the verdict (“JNOV”). The motion is proper when “knocking out” (i.e. No evidence) a jury finding and entitles the Movant to judgment. DAN is attacking the evidence supporting Paul’s prima facie case of gross negligence. Because Paul has the burden of proof on gross negligence, DAN is entitled to judgment on that claim if Paul’s evidence is legally insufficient.
07/10: The court signs and enters a judgment for Paul. DAN and ABC file a motion for new trial ten days after the judgment is signed, but do not request a hearing on the motion.If no other action is taken by any party, when, if ever, will the judgment become final?Explain fully.
The motion is considered overruled by operation of law 75 days after the court signs the judgment. If a timely motion for new trial is filed, a trial court has plenary power over the judgment until 30 days after the motion is overruled, either by written order or by operation of law. If no action is taken by any party after filing the motion, the judgment will become final on the 105th day after the court signs the judgment.
02/11: Dan ran a stop sign and collided with Ike’s car in Webb County, Texas. Because of Ike’s excessive speed, Ike’s car spun around and collided with Joan’s car. Joan was not injured, but her passenger Tracy was injured.Dan resides in Cameron County, Texas. Ike resides in Webb County, Texas. Joan and Tracy reside in Starr County, Texas.Tracy filed suit against Dan in Starr County, Texas.Although Dan does not believe Starr County is a proper county for the suit, Dan files his answer in Starr County. One week later, Dan files a plea to the court’s jurisdiction and a motion to transfer the case to Cameron County.How should the court rule on Dan’s plea and motion? Explain fully.
The court should deny Dan’s plea bc the court generally presumes in favor of subject matter jurisdiction unless the lack of jurisdiction affirmatively appears on the face of the petition. The court should also deny Dan’s motion to transfer venue bc the motion to transfer venue was waived by filing his answer and plea to jurisdiction before filing his motion to transfer venue.
02/11:If the court errs in its ruling on the motion to transfer venue, what effect, if any, will such erroneous ruling have on appeal with respect to any final judgment rendered in the case? Explain fully.
If determined on appeal that the ruling on venue was improper, the judgment must be reversed and the case remanded to the trial court. Venue determinations are incidental trial rulings correctable on appeal following a final judgment as a reversible error.
02/11:What are the counties of proper venue under these facts? Explain fully.
Webb county is a county of proper venue bc it was the county in which all or a substantial part of the events giving rise to the claim occurred. Also Cameron county is proper bc it is the county in which the defendant Dan resided at the time the cause of action accrued. Under the general venue rule, proper venues are cumulative.
02/11: Dan files a motion adding Ike as a Responsible Third Party. After a hearing on Dan’s motion, tbe court enters an order adding Ike to tbe case as a Responsible Third Party. The next day Tracy sues Ike for damages as a party defendant. Ike asserts the defense of limitations against Tracy’s claims. How can Tracy defeat Ike’s claim? Explain fully.
Tracy cannot defeat Ike’s defense of limitations. The RTP statute allows the defendant (Dan) to have absentee (Ike) designated as an RTP, but the limitations defense will defeat plaintiff’s (Tracy’s) claim directly against Ike as a “party defendant” bc a previously existing saving clause in the RTP statute has been repealed.
02/11: Dan plans to assert a limitations defense later in the case. What pleading should Dan file to assert the defense of limitations and when must it be filed? Explain fully.
Dan should file an amended answer alleging the affirmative defense of statute of limitations. The amendment may be made without leave of court if it is made more than seven days prior to trial, but a motion seeking leave of court is required if the amended pleading is filed within seven days prior to trial.
02/11:Name five types of discovery specifically authorized by the Texas Rules of Civil Procedure.
Requests for disclosure, requests for production, requests for admissions, interrogatories, and depositions.
02/11: Which form of discovery authorized by the Texas Rules of Civil Procedure, if any, is not subject to any objection?
No objection or assertion of work product is permitted in response to a request for disclosure
02/11: Tracy submits Requests for Admissions to Dan. Dan fails to respond within 30 days because Dan’s attorney suffered a temporary but serious illness. What action or actions should Dan’s attorney take to avoid having the unanswered Requests for Admissions used at trial? Explain fully.
Dan’s failure to timely response to the requests for admissions means that those matters are deemed admitted. Dan should file a motion seeking withdrawal of the admissions. Court may allow withdrawal of the admissions if Dan shows good cause (IE health of his Atty.) And the court finds that Tracy will not be unduly prejudiced by the withdrawal
02/11: Dan submits Interrogatories to Tracy inquiring who her trial witnesses will be. Tracy responds with an objection that she is not required to disclose trial witnesses and directs Dan to her list of persons with knowledge of relevant facts. Dan moves to compel Tracy to respond to his request to disclose her trial witnesses. How should the court rule? Explain fully.
The court should grant the motion to compel because the rules specifically allowed discovery of any person who is expected to be called to testify at trial
02/11: After some discovery is completed, Dan believes there is evidence that Tracy was actually driving Joan’s car on the date of the collision and that Tracy caused the collision by being distracted by her cell phone. Can Dan wait until the present case is reduced to a final judgment and then file another suit for damages against Tracy? Explain fully.
Dan cannot wait to assert his claim against Tracy. A counterclaim is a claim by one party against an opposing party. The counter-claim is compulsory if it arises out of the same occurrence that is the subject matter of the principal action. Failure to assert a compulsory counterclaim the present suit means that its subject matter will thereafter be barred in subsequent litigation. Dan’s transactionally related counterclaim must be asserted in the pending suit
02/11: The parties attended a mediation. Tracy presented witness statements and a video statement of her doctor regarding the extent and duration of her injuries, all of which are prepared for the mediation. The case did not settle at mediation. Dan then makes discovery requests for copies of the written statements and the video statement. Tracy objects on the basis that the written statements and video statement were prepared for the mediation only, are privileged, and not subject to discovery. Dan moves to compel production ofthe statements. How should the court rule? Explain fully.
Court should grant the motion to compel production of the statements. Communications and material made or produced at a mediation are privileged and all are generally not subject to disclosure. However, materials used in or made a part of a mediation is discoverable if it is discoverable independent of the procedure. The discovery rules allow the discovery of any witness statements including written statements and other types of recording a witness’s oral statement
02/11: [NO LONGER RELEVANT] Dan discovers that Tracy has failed to plead the maximum amount of money damages being sought. How can Dan raise the issue ofthe maximum amount sought by Tracy, and how should the court rule?
This question is no longer relevant. Amendments to the Texas rules of civil procedure now require that the plaintiff plead the amount of damages sought within certain designated ranges.
02/11: Tracy lost custody of her daughter in a recent divorce. Tracy’s lawyer fears that Dan’s lawyer will try to discuss this divorce case in jury selection and in opening statement. What pleading should Tracy’s lawyer file to bring this matter to the attention of the judge and prevent its discussion prior to the presentation of any evidence? Explain fully.
Tracy’s lawyer should file a motion in limine, which, if granted, would prohibit Dan’s lawyer from mentioning the divorce case in voir dire and opening statement and require Dan’s lawyer to approach the bench for a ruling on admissibility before presenting itto the jury
02/11: At trial, a police officer who investigated the collision is asked the following question by Tracy’s attorney:”Isn’t it true that you gave Dan a ticket because a pedestrian told you Dan ran the stop sign?” What objection, if any, should Dan’s attorney make and how should the court rule? Explain fully.
Dan should object on hearsay grounds. The pedestrian statement is an out of court statement offered to prove the truth of the matter asserted in the statement—that Dan ran the stop sign. Dan might also object to the ticket reference on the grounds that it may confuse or mislead the jury as to the difference between criminal standards of guilt and civil standards of liability
02/11: While cross examining Tracy, Dan’s lawyer asks Tracy:”At mediation, did you state that for the purposes of mediation, you were not going to claim future medical expenses as damages in this case?” What objection, if any, should Tracy’s lawyer make and bow should the court rule? Explain fully.
Object on the ground that the statement is privileged. The ADR statute provides a communication made by a participant in mediation is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial proceeding. The court should sustain the objection on this ground.
02/11: Prior to trial, Tracy amends her petition and adds Joan as a party defendant. At trial no party presents evidence that the conduct of Joan contributed to or caused the collision. At the conclusion of Tracy’s case, what plea or motion should Joan’s lawyer make and how should the court rule? Explain fully.
Joan’s lawyer should make a motion for directed verdict which is based on Joan’s argument that there are no controverted fact issues for the jury’s determination (i.e. Challenging the legal sufficiency of tracy’s evidence). Based on the facts, a court should grant the motion because Tracy failed to produce any evidence that Joan’s conduct caused or contributed to the collision
02/11: The court gives the lawyers its proposed charge. Dan has pleaded the defenses of unavoidable accident and sudden emergency, and offered evidence on each theory. The court bas not included an instruction on unavoidable accident or sudden emergency. What objection, if any, should Dan make, and what should Dan do to preserve the error of omitting these defenses from the court’s charge? Explain fully.
Dan’s lawyer should respond to the admission of instructions in the charge concerning unavoidable accident and sudden emergency by requesting submission of these matters in the charge on the ground that these issues were raised in the pleadings and supported by “some evidence” at trial. To preserve the error, Dan should make written requests for instructions, tender in writing substantially correctly worded instructions, and obtain a written ruling on the submissions
02/11: During deliberations, one of the jurors becomes very ill,is taken to the hospital, and is unable to return to court. Dan moves for a mistrial because there are only eleven jurors left and no alternates. How should the court rule? Explain fully.
Deny the motion. A verdict may be rendered by the concurrence of 10 members of the original 12person jury. When the missing juror is “disabled from sitting,” as in this case, the case can proceed even without the consent of both parties.
02/11: The jury returns a verdict. The jury has not answered all of the questions as instructed. Tracy moves for a mistrial. How should the court rule? Explain fully.
Deny the motion. If a material questions have not been answered, a court should reject the verdict and, with proper instructions pointing out the defect, retire the jury for additional deliberations.
02/11: The jury returns a complete verdict. The jury finds Joan to be 25% responsible for the collision. Joan believes there is no evidence that she was negligent and no support for the jury’s finding of her fault. What pleading should Joan file to persuade the court to disregard the finding offault against her? Explain fully.
File a motion for judgment notwithstanding the verdict challenging the legal sufficiency of the evidence supporting the jury’s finding of fault. This motion is proper when “knocking out” (IE no evidence supports) one or more jury findings entitles the movant to judgment.
07/11: What must Pat allege in his lawsuit and who must Pat serve in order to acquire subject matter jurisdiction over Plus? Explain fully.
With respect to subject matter jurisdiction, pat should allege in his petition that “the damages sought are within the jurisdictional limit of this court.” Pat should serve green in state and serve plus by serving the secretary of state using the Texas long arm statute. The petition should allege that plus has minimum contacts with Texas and also allege that plus is a nonresident, has no regular place of business in Texas, has no registered agent in Texas, and has been doing business in Texas.
07/11: Plus is served with the citation and suit but avers that it does not have employees, agents or any office in Texas.What pleading must Plus file in order to object to being sued in Texas as a defendant, and when should the pleading be filed? Explain fully.
Plus must file a special appearance challenging the courts exercise of personal jurisdiction. Under the due order of pleading, the special appearance must be filed before any other plea or pleading, but plus may file a consolidated response without waiving the special appearance
07/11: What are the counties of proper venue for Pat’s lawsuit? Explain fully.
Counties of proper venue for Pat’s lawsuit include Comal county (in which all or a substantial part of the events giving rise to the claim occurred) and Bexar county (greens residence and principal office, and also a county in which events giving rise to the claim occurred).
07/11: Green files a motion to transfer venue. Pat demands a jury trial regarding the motion to transfer venue. Green objects to the demand for a jury trial on the venue issues.How should the Court rule on Green’s objection? Explain fully.
The court should sustain greens objection and deny the demand for a jury trial on the venue issues. The court determines the venue issue based on the pleadings, stipulations, and any affidavits and attachments. By rule, all venue challenges are decided by the court without the aid of the jury
07/11: The trial court denies the motion to transfer venue.Is Green entitled to an interlocutory appeal of the Court’s order denying the motion to transfer venue? Explain fully.
Green is not entitled to an interlocutory appeal of the court’s order denying the motion to transfer venue. Venue determinations are incidental trial rulings that are correctable on appeal following a final judgment on the merits and a finding of reversible error on appeal
07/11: Green submits 50 separate interrogatories and 50 requests for admission to Pat. Pat objects to the discovery requests as being in violation of the Texas Rules of Civil Procedure. How should the Court rule on Pat’s objections? Explain fully.
The court should sustain Pat’s objection to the interrogatories because interrogatories are limited to 25 unless modified by court order. The court should deny Pat’s objection to the requests for admission because there are no limits on the number of requests. Editor’s note: this answer is no longer completely correct. The answer is still correct with respect to discovery control plan levels 2 and 3. However, amendments to the rules now limit interrogatories and requests for admissions to 15 for level 1 cases.
07/11: After the explosion, an attorney for Green interviewed several witnesses. Although the attorney made and kept notes, the attorney took no witness statements. Pat requests production of the attorney’s written notes as well as the names and addresses of those persons interviewed.What pleading, if any, should Green file in order to avoid production of the notes? How should the Court rule? Explain fully.
Green should claim work product privilege in its response or in a separate document within the time for the response. This is known as a withholding statement. A court should sustain the claim of privilege. Work product includes any material prepared or mental impressions developed in anticipation of litigation, and the attorneys notes and mental impressions are core work product which is absolutely privileged.
07/11: At the scheduling conference, an attorney for Green declines to advise the Court or Pat’s attorney whether Green is covered in whole or in part by insurance.What pleading or instrument should Pat file to determine whether Green has insurance coverage for Pat’s claim and lawsuit? Explain fully.
Pat should file a request for disclosure which allows a party to obtain disclosure of any insurance or indemnity agreements.
07/11: The Parties agree on a date to depose the primary parties and party representatives, but do not agree on the location for the depositions. Green files a motion that the depositions be taken in Bexar County because Bexar County is its principal place of business. Pat objects.How should the Court rule on the location of the depositions absent an agreement? Explain fully.
The court should sustain the objection to the location of Pat’s deposition. The place designated for taking the deposition must be reasonable. The rule states that Pat’s deposition may be taken in the county of his residence in (Webb), where he is employed (n/a) or regularly transacts business in person (perhaps Bexar where purchased Clean Engine), where he was served (n/a), and where suit is filed (Webb). The deposition also may be taken at another convenient place directed by the court
07/11: An investigation by Plus reveals that Pat and Green failed to heed its warning label regarding use ofClean Engine on hot surfaces. What pleading, if any, must Plus file in order to raise this issue with the Court and to support a jury question on these issues, and when should such pleading be filed? Explain fully.
Plus can raise this issue against pat as an affirmative defense in its answer. If pleaded and evidence is produced by plus, it is entitled to have this affirmative defense submitted as a question to the jury. Plus can raise this issue against green by asserting a cross claim based on these facts. Plus must file its answer by 10:00 AM on the first Monday after the expiration of 20 days from the date it was served with process. If plus fails to plead the defense or cross claim in its original answer, it can file a pretrial amendment without leave of court if it is made more than seven days prior to trial. Otherwise, a motion seeking leave of court is required.
07/11: Pat filed a jury demand with his original petition. Pat files a motion to withdraw his jury demand. Green and Plus object to removal of the case from the jury docket. How should the Court rule? Explain fully.
A court should grant Pat’s motion to withdraw his jury demand. A party must take the procedural steps necessary to secure its right to a jury trial by filing a timely written request for a jury trial and pay the requisite fee. Once a party pays the fee for a jury trial, he is not permitted to withdraw the cause from the jury docket over the objections of the adverse parties. Here, did not pay his jury fee and, under the rules, may withdraw his demand * This answer is actually wrong according to BOLE Answer sheet*
07/11: Five years before the explosion, Pat was indicted for the assault ofhis mistress, but the indictment was dismissed. Pat fears this indictment may be mentioned in jury selection or in opening statements.What pleading should Pat file to preclude the mention or proffer of such evidence? Explain fully.
Pat should file a motion in limine. If granted, the court’s order in limine will prohibit the parties from mentioning the assault indictment during opening statement and jury selection and require them to obtain a ruling on its admissibility outside the presence of the jury
07/11: Green and Plus gathered evidence that Pat’s neighbor, Tom, actually sprayed Clean Engine onto the gas grill.What pleading should Green and Plus file to support its evidence of Tom’s negligence and to support a jury question on the issue of Tom’s negligence. Explain fully.
Green and plus could file a third party petition naming Tom as a third party defendant alleging that Tom is liable for all or part of Pat’s claim against them. In the alternative, green and plus could file a motion for leave to designate Tom as a responsible third party which would let the jury consider Tom’s conduct when allocating fault for Pat’s injuries. The defendants may make this designation, on motion, without joining the responsible third party
07/11: Green and Plus allege, generally, that Pat’s contributory negligence was a cause of the accident in question. What pleading must Pat file in order to determine what facts Green and Plus rely upon to support their defense of contributory negligence? Explain fully.
That can obtain this information by filing an interrogatory. Interrogatories may inquire about the other parties legal contentions and the factual basis for those contentions. The contention interrogatories must comply with all other rules governing interrogatories generally
07/11: After discovery is complete, Plus believes that there is no evidence that its product was defective or that Plus was negligent in causing the occurrence in question.What pleading(s) should Plus file in order to bring this issue of no liability before the Court?Explain fully.
Plus should file a no evidence summary judgment motion based on the lack of evidence of defect or negligence. A party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense (defect and negligence) on which the nonmoving party (Pat) would have the burden of proof at trial (issues are one part of Pat’s Prima facie a case as plaintiff)
07/11: Discovery reveals that Plus is not covered by liability insurance. Plus advises the Court that it intends to tell the jury panel that it has no insurance and that a large verdict will financially destroy Plus. Pat objects, files a motion to exclude this evidence and requests the Court to order Plus not to advise the jury panel that it has no insurance.How should the Court rule? Explain fully.
A court should exclude evidence of liability insurance. Evidence that a party has or does not have liability insurance is inadmissible on the issue of whether the person acted negligently or otherwise wrongfully. Since plus intends to offer the evidence to persuade the jury not to hold it liable, this evidence is inadmissible
07/11: At trial, Green calls Pat’s neighbor, Tom, as a witness to testify that Pat told Tom, after his purchase of Clean Engine but before the occurrence, Pat thought that Clean Engine was very combustible and could cause a fire. Pat objects to this testimony as hearsay.How should the Court rule? Explain fully.
Court should overrule the objection because this testimony is not hearsay. Statements made by a party and offered against the party are party admissions and are deemed not hearsay by the Texas rules of evidence. Here, green, a defendant, as offering evidence of what pat, the plaintiff, said. Therefore, the statement is a party admission and is admissible over a hearsay objection.
07/11: At a court-ordered mediation, Green’s store manager told the mediator that Green will not contest liability for the purposes of the mediation. Pat subpoenas the mediator to testify at trial. Green objects to any testimony from the mediator.How should the Court rule on Green’s objection? Explain fully.
A court should sustain greens objection. Texas ADR statute provides that communications made by a participant in a mediation are confidential, and not subject to disclosure, and may not be used as evidence against the participant in any judicial proceeding. The mediators testimony is protected by this statutory privilege
07/11: After Pat has presented all of his evidence, he rests. Green and Plus believe that the evidence is legally insufficient to support jury findings and judgment against them as defendants.What pleading should Green and Plus file to bring this legal issue to the attention of the Court?
Green and plus should file a motion for a directed or instructed verdict. This is the method to present an argument, after an opponent rests, that there are no controverted fact issues for the jury’s determination (IE challenges to the legal sufficiency of the opponents evidence). Here, defendant’s alleged that pat has failed to produce any evidence on at least one element of each ground of recovery.
07/11: The jury returns a verdict awarding Pat $50,000 for past medical expenses. The parties stipulated before trial that Pat’s group health carrier had paid $30,000 for his past medical expenses and that these payments completely satisfied Pat’s medical accounts. Pat files a motion for judgment for $50,000 for his past medical expenses; Green and Plus move the Court for a judgment of$30,000 for Pat’s past medical expenses.How should the Court rule? Explain fully.
The court should deny Pat’s motion and grant green and plus’s motion and enter judgment for $30,000. A jury’s verdict is contrary to the parties stipulation and, therefore, should be set aside, particularly where, as here, there is no indication of contrary evidence offered or of the defendants waiving the stipulation by failing to object to the contrary evidence
02/12: What steps must Paul take to file a civil suit for damages and require other parties to respond to his suit?
A civil suit is commenced by a petition filed in the office of the clerk. In order to compel the defendant to respond to this suit, Paul must obtain service on the defendant of the citation issued by the clerk and a copy of the petition.
02/12: Paul filed suit against Dan as a single defendant in Harris County, Texas. Dan believes Harris County is not a county of proper venue.What pleading must Dan file to contest venue in Harris County and when must the pleading be filed?
Dan must file a motion to transfer venue. Under the due order of pleading rule, the motion must be filed before any other plea or pleading other than a special appearance contesting personal jurisdiction. Dan may file a consolidated response to the petition within the time to answer without waiving the motion.
02/12: What are the counties of proper venue authorized by the Texas Civil Practice and Remedies Code under these facts?
Counties of proper venue include Lubbock County, where all or part of the events giving rise to the claim occurred, and Hockley county, where the defendant, Dan, resided at the time a cause of action accrued. Under the general venue rule, these proper venues are cumulative.
02/12: Anticipating that an objection to venue may be granted, Paul contemplates an appeal of an adverse venue ruling.Is an interlocutory appeal authorized from an order granting a motion to transfer venue?Explain fully.
No interlocutory appeal of the order granting the motion is allowed. A party must appeal the venue decision after a final judgment.
02/12: If the trial court rules incorrectly on the motion to transfer venue, what effect, if any, will such erroneous ruling have on appeal regarding any final judgment? Explain fully.
if it is determined on appeal that venue was improper, the judgment of the trial court must be reversed and the case remanded to the trial court for new trial. The standard on appeal will be the “reversible error” standard
02/12: Paul’s original petition simply alleges negligence without stating the facts upon which he relies to support the claim of negligence. What pleading should Dan file in order to require Paul to specifically plead the facts upon which Paul relies to support his claims? Explain fully.
Dan can file a special exception seeking a specification of the facts on which Paul relies to support his claims and asking the court to require Paul to amend so as to allege the relevant facts. Dan should object in writing, call for a hearing, and get a ruling on the exception on the record.
02/12: Evidence indicates that, even though Paul knew Fred was intoxicated, he allowed Fred to drive his car while he was a passenger.What procedural steps should Dan take to allow him to submit a jury question on Paul’s contributory negligence or comparative responsibility? Explain fully.
Dan should allege these issues as affirmative defenses in his reply to paul’s petition. Affirmative defenses must be pleaded as grounds of defense and Dan will have the burden of proof on these issues. If pleaded and evidence is produced, Dan is entitled to have his affirmative defenses submitted as questions to the jury
02/12: Name five types of discovery authorized by the Texas Rules of Civil Procedure.
Requests for disclosure, requests for production, requests for admissions, interrogatories, and depositions (oral and written).
02/12: The police report indicates that Dan was unable to show proof of financial responsibility at the scene of the collision.Nam two types of written discovery available to Paul to determine if Dan has insurance and, if so, the extent of his policy limits? Explain fully.
Paul can obtain the desired information either a request for disclosure or interrogatories
02/12: In response to Dan’s Requests for Disclosure as authorized by the Texas Rules of Civil Procedure, Paul produces copies of his medical bills and records. Dan requested a medical authorization. Paul objects to Dan’s request for a medical authorization upon privacy concerns.Dan sets a hearing on Paul’s discovery objection regarding a medical authorization, asserting that Paul must produce a medical authorization and that the production of records and bills is not sufficient.How should the court rule on Paul’s objection? Explain fully.
a court should overrule paul’s objection. The request for disclosure rule provides for production of medical records, or in lieu thereof, an authorization. However, it has been held that the requesting party has the option of seeking an authorization instead of medical records.
02/12: Paul, Dan, and Fred were all deposed. Following the transcription and delivery of the depositions, Paul served a Request for Admissions on Dan. Dan objected to the Request for Admissions on the basis that the matters addressed in the Request for Admissions could have been raised and addressed in the deposition of Dan and therefore have been waived by Paul.How should the court rule on Dan’s objection? Explain fully.
the court should overrule Dan’s objection. Depositions and requests for admissions are both permissible forms of discovery and may take place in any order or sequence. The rules do not require the use of oral depositions for matters that are within the scope of the request for admissions rules.
02/12: Dan served a notice to take a deposition by written questions of the investigating police officer along with a subpoena duces tecum for his report and field notes. Paul objected to the notice on the basis that therehas been no showing that the officer cannot be available for trial in person, and therefore the notice of deposition by written questions is not authorized by the Texas Rules of Civil Procedure.How should the court rule on Paul’s objection? Explain fully.
the court should overrule paul’s objection. Depositions are authorized for any person who may have information related to the litigation. There is simply no prerequisite that the deponent be unavailable at trial to take a deposition on written questions.
02/12: Paul amends the lawsuit to add Fred as a party defendant and seeks money damages from Fred. Foilowing the completion of all discovery, Fred believes there is no evidence to support a jury question on the issue of his negligence.What pleading should Fred file to bring this issue to the attention of the trial court? Explain fully.
Fred should file a no evidence motion for summary judgment. After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements (i.e. negligence) on which the opposing party (i.e. Paul) would have the burden of proof at trial.
02/12: During the investigation of the accident by the police, Fred tells the police that the wreck was his fault because he was going the wrong way on a one way street and Dan could not have seen him coming. Dan offers this evidence at trial through the investigating police officer. Fred objects and asserts that his statement is privileged and not admissible, because he made the statement to the police during an official investigation.How should the court rule on the objection? Explain fully.
the court should overrule the privilege objection. Under Texas law, there is no “official investigation privilege.” Statements made to police officers investigating crimes and accidents are frequently admitted.
02/12: Paul was previously indicted for felony forgery. The indictment was later dismissed with prejudice.What pleading should Paul file to prevent this former indictment from being mentioned to the jury panel during opening statement? Explain fully.
Paul should file a motion in limine. If granted, the parties will not be able to mention the indictment during jury selection or opening statement and must obtain a ruling on the of admissibility of evidence of the indictment outside the presence and hearing of the jury for referring to it during the presentation of evidence.
02/12: At the pre-trial conference three days before trial, Dan reminded the parties and the court that he has retained an accident reconstructionist and plans to call the expert at trial. Although the expert had presented a report (which had been served on all parties) and had been deposed (with notice to all parties), Dan’s attorney had not listed the reconstructionist as a testifying expert in discovery responses.Paul filed a motion to strike Dan’s reconstruction expert. Dan objected to the motion to strike. How should the court rule? Explain fully.
the court should deny paul’s motion to strike Dan’s expert. In order to overcome the motion and his own failure to list the expert in discovery responses, Dan will have to show good cause for the nondisclosure or that the opposing party (i.e. Paul) will suffer no surprise or prejudice. Paul had the expert’s report, deposed the expert, and was reminded of the fact that the witness would testify at trial. Paul suffered neither surprise nor prejudice as a result of Dan’s nondisclosure in his discovery responses.
02/12: At trial, Paul proffered unauthenticated copies of his medical records and medical bills to support his claim for damages.Fred and Dan objected to the proffer on the basis of hearsay. Paul responded that these copies were produced to all parties in his discovery responses and that all parties had notice of the proffered evidence. Further, Paul noted that no prior objection to the proffered evidence had been urged.How should the court rule on the hearsay objections of Fred and Dan? Explain fully.
A court should sustain the hearsay objections. Producing hearsay in response to discovery requests is not make inadmissible hearsay admissible, even in the absence of a prior objection. Production of a document in response to written discovery authenticates the document for use against the producing party in the absence of prior objection. Here, however, the objection is not lack of authentication, but hearsay. Moreover, since Paul is the producing party, the documents are authenticated for use against Paul, not for paul’s use against others.
02/12: At the conclusion of Paul’s case, Dan believed that Paul failed to prove that Dan was negligent on the occasion in question or that his conduct was a cause of the collision.What action should Dan take to bring this issue to the attention of the trial court? Explain fully.
Dan should file a motion for a directed or an instructed verdict. When an opponent rests or closes, a party can seek a directed verdict on the ground that the opponent (Paul) has failed to produce any evidence on at least one element of a ground of recovery (negligence or causation). The question states that Dan believes that Paul has “failed to prove” that Dan was negligent or caused the accident. The standard requires that Dan that Paul failed to produce any evidence of these elements, not merely his “belief” that the proof was insufficient.
02/12: After several hours of deliberations, the presiding juror reported to the court (by way of a written note) that nine of the twelve jurors agreed on their answers to all of the jury questions propounded to them. The presiding juror asked the court to accept the verdict.Is the trial court authorized to accept a verdict of nine jurors, if all nine jurors agree on the answers to all questions propounded to them? Explain fully.
no. In the absence of an agreement by the parties, a verdict may be rendered by the concurrence, as to each and all answers made, of the same 10 or more members of the original jury of 12. The verdict is the written declaration by a jury of its verdict. The verdict is ordinarily recorded on the instrument containing the courts charge in a space prepared by the court, not on a “note” from the presiding juror.
02/12: The jury awarded $20,000 to Paul for his past medical expenses. The parties had previously stipulated that Paul’s health insurance carrier paid $12,000 to Paul’s health care providers and that as a result all of Paul’s remaining medical expenses were completely discharged.Paul filed a motion for a judgment for $20,000 for his past medical expenses. How should the court rule? Explain fully.
the court should deny the motion, unless it believes the defendants waived the stipulation by failing to object to evidence of additional past medical expenses. If Paul offered no evidence beyond the $12,000 stipulated, then the court should set aside the award on no evidence grounds. If Paul did offer evidence to support the $20,000 award, then the court may consider whether the defendants waived enforcement of the stipulation.
07/12: Assuming Mercy and Prime contest venue, what are the counties of proper venue for Wilda’s lawsuit? Explain fully.
the counties of proper venue for Wilda’s suit are Travis county and Dallas County. Venue is proper in the county where all or a substantial part of the events or omissions giving rise to the claim occurred, making Travis county a proper venue because all of the events giving rise to Wilda’s suit occurred there. Venue is also proper in the county of a non natural defendants principal office in this state, making Dallas County a proper venue because Prime’s principal place of business is in Dallas County.
07/12: Wilda files suit against Mercy and Prime, and each defendant is served pursuant to the Civil Practice and Remedies Code.What pleading must Mercy and Prime file in order to avoid the entry of a default judgment against them, and when must that pleading be filed? Explain fully.
the defendants can file pre-answer pleadings—known as dilatory pleas—such as a special appearance or a motion to transfer venue, or they can file an answer raising matters—known as Pleas in bar—such as a denials or affirmative defenses. Finally, the defendants can file aconsolidated reply raising both types of matters. The pleading chosen by the defendant’s must be filed within the time for the answer: by 10:00 AM on the first Monday after the expiration of 20 days from the date of service of process
07/12: Wilda sues “Prime Pizza” as a named defendant. The shareholders of Prime Pizza, Inc. want to seek the protection of their corporate entity and avoid individual liability, if any. What pleading must Prime file in order to assert its corporate status and protect its shareholders from individual liability? Explain fully.
prime should file a verified denial because it is not liable in the capacity in which it has been sued. Then, prime should allege the same matters in a verified plea in abatement, which raises the capacity issue and asks the court to take action on the defect.
07/12: Following the accident, Wilda accepted free medical care in the emergency room of Mercy. She signed several documents while she was in the emergency room. Mercy believes that one of these documents releases all of Wilda’s claims.What pleading must Mercy file to bring this alleged defense to the attention of the court, and when should it be filed?
mercy should raise this issue as an affirmative defense in its reply to Wilda’s petition. The affirmative defense should be filed within the time for filing the answer. If the defense is not raised in the original answer, it may be added in an amended answer without leave of court if it is made more than seven days before trial. Otherwise, a motion seeking leave of court is required.
07/12: Prime believes that Big is responsible for the accident because Big’s employees had a chance to pick up the sign or warn Wilda of the sign. Big is now in bankruptcy.What pleading must Prime file in order to secure a jury question on Big’s liability, if any, for the accident? Explain fully.
prime could file a third party petition against big, but it would be futile because of big’s bankruptcy. Instead, prime should file a motion for leave to designate big as a responsible third party. If the motion is granted, big’s conduct will be considered by the jury when allocating fault for Wilda’s injuries, despite big’s bankruptcy
07/12: Name five types of discovery authorized by the Texas Rules of Civil Procedure.
requests for production, requests for admissions, requests for disclosure, interrogatories, oral and written depositions
07/12: Mercy’s lawyer tells Wilda’s lawyer that he knows what caused the accident because he has the names and addresses of five or six witnesses to the accident.What documents can Wilda serve upon Mercy to secure the names of potential witnesses to the accident? Explain fully.
the scope of discovery includes the name, address, and telephone number of persons having knowledge of relevant facts, such as a witness to an accident. Wilda can get this information by serving mercy with a request for disclosure or interrogatories.
07/12: Prime’s attorney conducted an investigation of the accident and interviewed several potential witnesses to the accident. Although no statements were taken, the attorney for Prime made and kept copious notes about these interviews. Wilda serves a request for production upon Prime seeking production of the attorney’s notes.Prime objects to the request for production of its attorney’s notes as being protected from discovery. How should the court rule? Explain fully.
a court should sustain Prime’s objection. Work product includes any material or mental impressions developed in anticipation of litigation or for trial. “Core” work product of an atty includes the attorneys mental impressions, opinions, and conclusions and is absolutely privileged. The notes made by Prime’s lawyer are protected from disclosure by the work product privilege.
07/12: Mercy serves 30 requests for admissions and 30 interrogatories upon Wilda. Wilda objects to the requests for admissions and interrogatories because the number of admissions and interrogatories served is in violation of the Rules of Civil Procedure. How should the court rule on Wilda’s objections to the requests for admissions and interrogatories? Explain fully.
The court should deny Wilda’s objection to the requests for admissions because there is no limit to the number of requests for admissions in the rules. The court should sustain the objection to the interrogatories because interrogatories are limited to 15 in cases of a level 1 discovery control plan and to 25 in cases with a level 2 discovery control plan, and there is no mention in the facts of the order creating a level 3 plan allowing a greater number of interrogatories. But note that interrogatories asking a party to identify or authenticate a document are unlimited.
07/12: Prime’s store manager took several photographs immediately after Wilda fell. Wilda serves a request for production on Prime seeking production of the photographs. Prime asserts that the photographs are privileged and not subject to production under the investigatory privilege.How should the court rule on the assertion of privilege? Explain fully.
the court should deny the claim of privilege to the requests for production of photographs. There is no “investigatory privilege.” Instead, there is a work product privilege. Initially, the photos appear to be work product because they were made in anticipation of litigation by a party or the parties representative. Ordinarily, this “other” work product is discoverable only on a showing that the party seeking discovery has a substantial need of the material and is unable to obtain the substantial equivalent. However, there is a specific rule providing that photographs of the underlying facts like the scene of the accident are not work product protected from discovery. The photographs are discoverable.
07/12: Mercy serves interrogatories on Wilda seeking the names and addresses of any and all medical providers from whom she sought treatment for the ten years immediately preceding the accident.Wilda objects to the interrogatories on the basis of an invasion of her privacy, immateriality, and relevancy. How should the court rule? Explain fully.
these objections should be overruled. In general, a party may obtain discovery of any matter that is not privileged and is relevant to the subject matter of the pending action. The objecting party must do more than state an objection. The objecting party must also demonstrate that it is a valid objection. Here, the objecting party must demonstrate why the evidence is irrelevant and immaterial. Because Wilda has not done that, the objection should be overruled. As to the invasion of privacy objection, the doctor-patient privilege exists, in part, to ensure patient privacy. A party should not, however, object, as the plaintiff does here, to assert a privilege. Instead, the party must state a privilege asserted, which would be the doctor-patient privilege. NOTE: BOLE SAYS THAT PRIOR MED HISTORY IS ALWAYS RELEVANT AND SUBJECT TO DISCOVERY IN PERSONAL INJURY CASES.
07/12: Wilda’s deposition reveals that she was talking on her cell phone when the accident occurred. What pleading should Mercy and Prime file in order to support a jury question on Wilda’s responsibility, if any, for causing the accident? Explain fully.
mercy and Prime should raise the issue as an affirmative defense based on an allegation that Wilda’s conduct caused or contributed to causing the accident and her injuries. If not included in the original answer, the issue can be added in an amended answer without leave of court if filed more than seven days before trial. This pleading will support a jury question dealing with Wilda’s responsibility for the accident
07/12: Quick Clean was an independent contractor whose job was to clean the hospital cafeteria twice a day. In the ordinary course of its business, Quick Clean kept records of all of its activities. Wilda obtains copies of the business records of Quick Clean and a business records affidavit. Wilda advises the parties that she plans to use them as pre-trial and trial evidence.Mercy and Prime object on the basis that the “records” are hearsay as to them, although they could be used against Quick Clean. How should the court rule? Explain fully.
the court should overrule the objection. The business records exception to the hearsay rule provides that records of regularly conducted activity are not excluded by the hearsay rule, even if offered against a party who did not make the record. Here, the records were regularly kept in the ordinary course of Quick Clean’s business and therefore are admissible, even against mercy and prime.
07/12: After discovery is complete, Mercy believes that there is no evidence that it is factually or legally liable for the accident and injury to Wilda.What pleading should Mercy file to bring to the court’s attention the issue of no factual or legal basis for Wilda’s claims against Mercy? Explain fully.
mercy should file a no evidence motion for summary judgment. After adequate time for discovery, a party may file a motion for summary judgment on the ground that there was no evidence of one or more essential elements of a claim on which the nonmoving party, Wilda, would have the burden of proof at trial. The motion must specifically state the element as to which there is no evidence and challenge the legal sufficiency of the evidence in the record.
07/12: During Mercy’s investigation of the accident, it discovers a written statement given by Jane (a Prime manager) to the hospital, that she had also slipped on the sign and told the Prime maintenance department that the sign was a problem. Wilda seeks production of Jane’s statement. Prime objects to the production of the statement because: (1) Jane was not authorized to give a statement and therefore it cannot be admissible against Prime; and (2) the statement is privileged because it was given during an internal investigation by Prime. How should the court rule? Explain fully.
the hearsay objection should be overruled because Jane’s statement is a vicarious party admission and, therefore, not hearsay. A statement made by an employee of a party during the employment about a matter within the scope of that employment is admissible when offered against the employer. An employer need not specifically authorize an employee to make a particular statement in order for this hearsay exclusion to apply. Jane’s statement was made during her employment with Prime and was about the matter within the scope of her employment, the safety of its signage. Prime’s second objection should also be overruled. There is no “investigation privilege.”
07/12: The trial court sets the case for trial for the first time with thirty days (30) notice to all counsel.Mercy objects to the trial setting. How should the court rule? Explain fully.
the court should sustain the objection. The rules provide that a party is entitled to reasonable notice of not less than 45 days of a first setting for trial.
07/12: Prime was recently cited by the USDA for food safety violations. The citations, however, were subsequently dismissed.What pleading should Prime file to prevent these matters from being discussed during voir dire or opening statement? Explain fully.
prime should file a motion in limine. If granted, the parties will not be able to mention the USDA citation during jury selection or opening statement and will have to approach the bench and get a ruling on the admissibility of the evidence outside of the hearing of the jury.
07/12: On the first day of trial the weather is terrible, and very few potential jurors show up for jury duty. The trial court tells the lawyers that each side will receive four peremptory strikes in addition to their challenges for cause. Wilda objects to the court’s decision to limit her to four peremptory strikes even though all parties are given the same number of peremptory strikes. Is the trial court authorized to limit the parties to an equal number of peremptory strikes under these circumstances? Explain fully.
no. The rules provide that each party is entitled to six peremptory challenges in a case tried in a district court. The rules do not provide for a reduction of the number of challenges. The rules do give the court discretion to equalize challenges upon motion of a party to avoid giving an unfair advantage to one side as a result of being given additional challenges, but these facts do not raise a case of an unfair allocation of charges.
07/12: At the conclusion of Wilda’s case, Mercy files a motion for directed verdict. which the trial court denies. Following the return of the jury verdict, Mercy still believes that there is legally insufficient evidence to support the jury verdict and moves the trial court for a judgment notwithstanding the verdict.Is the trial court authorized to grant the motion for judgment nonvithstanding the verdict in spite of the fact that it overruled the motion for directed verdict? Explain fully.
yes. The motion for a directed verdict and a motion for JNOV both challenge the legal sufficiency of the evidence. However, the motion for a directed verdict is based on the evidence in the record when an opponent rests or closes, while a motion for judgment JNOV is based on the record after the court receives a verdict adverse to the moving party. Although both motions challenging the legal sufficiency of the evidence, the evidentiary record on which the motions are based is different and a party may make both motions in the same case without any conflict.
07/12: Following the entry of a judgment by the trial court finding Mercy liable, Mercy files a motion for new trial. Assuming no other action is taken by any party, and the trial court docs not rule on the motion for new trial. When will the judgment become final? Explain fully.
if a party moves for new trial, the trial court’s plenary power extends to 30 days from the date the motion is overruled either by written order or by operation of law. Because the motion is deemed overruled by operation of law on the 75th day after the court signs the judgment, a trial court’s plenary power expire on the 105th day after it signs the judgment, and the judgment will be final.
02/13: How should the court rule on Dave’s motion to transfer venue? Explain your answer.
The court should deny the motion to transfer venue. Venue is proper in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred. The events giving rise to Paula’s claim occurred at the big box store in Travis county. Therefore, venue is proper in Travis county. Venue would also have been proper in Hay’s county, as the county of defendant’s residence, but the plaintiff chose not to file suit there.
02/13: Dave is properly served with citation.When is Dave’s answer due?
Dave’s is due at 10:00 AM on the first Monday after the expiration of 20 days from the date of service, unless that Monday is a legal holiday, in which case the answer is due at the end of the next day that is not a Saturday, Sunday, or legal holiday.
02/13: Dave fails to timely file his answer. Paula files a motion for a default judgment and the motion is set for a hearing. The day before the hearing, Dave files his original answer to Paula’s suit. At the hearing, Paula urges the court to enter a default judgment against Dave. How should the court rule? Explain your answer.
The court should deny Paula’s motion. A court may not render a default judgment against a defendant when the defendant has filed an answer, even if the defendants answer was late.
02/13:Dan sues Box as a third party defendant. Dave’s pleading regarding the responsibility of Box simply alleges, “Box’s negligence was a proximate cause of the occurrence in question and the injury to Paula.”What pleading should Box file in order to require Dave to state in detail the facts and circumstances upon which Dave relies to support his claim of negligence and causation against Box? Explain your answer.
box should file a special exception. The special exception must be in writing, point out the pleading excepted to—here, Dan’s third party petition—and point out intelligently and with particularity a defect in the pleading—here, the generality of Dan’s negligence allegation. Box must also request a hearing, and get a ruling on the special exception or any pleading defects are waived
02/13: Name five types of discovery authorized by the Texas Rules of Civil Procedure.
requests for disclosure, requests for production, requests for admissions, interrogatories, oral and written depositions
02/13: Name one type of discovery authorized by the Texas Rules of Civil Procedure that will allow Paula’s attorney to determine if any defendant is covered by liability insurance?
a party may obtain information regarding indemnity and insurance agreements through a request for disclosure.
02/13: Through duly served discovery, Dave requests that Paula produce a properly executed medical authorization. Paula declines to produce the authorization relying on privacy concerns, but does agree to produce the medical records and bills that resulted from the occurrence in question.Dave files a motion to compel Paula to produce a medical authorization. How should the court rule? Explain your answer.
a court should probably grant the motion. In a personal injury suit, a party may request all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills. Some Texas case law holds that the requesting party may choose which he prefers, the authorization or the records themselves.
02/13: At the time of the occurrence in question, Box’s store manager recorded and transcribed three statements about the incident, including a statement from Paula. Through authorized discovery, Paula requests a copy of all three statements. Box produces a copy of Paula’s statement, but refuses to produce a copy of the other two transcribed statements claiming the statements are part of its investigation. Paula files a motion to compel production of the two other statements. How should the court rule?
the motion to compel should be granted. With a request for disclosure, a party may obtain any witness statement another party has, regardless of when the statement was made. A witness statement includes a stenographic recording and a substantially identical transcript of such a recording. The definition of work product does not include such witness statements, even if made in anticipation of litigation.BOLE: “statements” of what ever source are always subject to discovery and requests for production
02/13: Box contends that at the time Paula gave a statement, she executed a full and final release of all claims against Box regarding the occurrence in question. Paula disputes the ‘ release” and its effectiveness.What pleading should Box file to bring this defense to the attention of the court and jury, and to support the admission of evidence on the release issue? Explain your answer.
box must file an answer that sets forth the affirmative defense of release. Failure to do so will ultimately waives the defense and would prohibit box from offering evidence to support the defense.
02/13: Paula serves thirty (30) separate Requests for Production of Documents on Box through its attorney.Box objects to the Requests for Production for the reason that it is required to respond to only twenty-five separate Requests for Production of Documents. How should the court rule on Box’s objection? Explain your answer.
the court should overrule Box’s objection. None of the three discovery control plan levels impose a limit on the number of requests for production. [editor’s note: as of March 2013, parties are limited to 15 requests for production in cases governed by control plan level 1]
02/13: Paula amends her petition and adds Box as a party defendant and seeks money damages from Box for her personal injuries received as a result of the occurrence in question. Discovery is ongoing and the case is not set for trial.Box objects to Paula’s amended petition adding Box as a party defendant. Box avers that Paula was required to make Box a party defendant in her original petition and that she has to file a second lawsuit, making her claims for damages against Box in that suit.How should the court rule on Box’s objection? Explain your answer.
the objection should be overruled. A party may amend a pleading so long as it does not operate as a surprise, except a party must seek court leave to amend within seven days of trial. A plaintiff may amend to join a claim against a third party defendant so long as the claim arises out of the same transaction or occurrence that is the subject of the plaintiff’s claim against the third party plaintiff (i.e. the defendant). Here Paula’s amendment is not within seven days of trial, Box asserts no surprise, and Paula’s claim arises from the same transaction or occurrence as for claim against Dave.
02/13: One hundred and twenty (120) days before the court’s published “ready for trial” date, Dave requests a jury trial and pays a jury fee. Paula files a motion to strike the jury demand because the discovery and pleading deadlines have passed. How should the court rule on Paula’s motion to strike Dave’s jury demand? Explain your answer.
Paula’s motion should be denied. A written request for a jury trial must be filed and the jury fee must be paid a reasonable time before trial, but not less than 30 days before trial. More than 30 days before trial, the burden is on the objecting party to show unreasonableness. Paula is unlikely to be able to show that filing the request and paying the fee 120 days ahead of trial is unreasonable.
02/13: The case proceeds to trial, and a jury panel is brought to the court for voir dire.How many peremptory challenges are available to each party and can the court preventDave and Box from collaborating in making their challenges?
each party is entitled to six peremptory challenges in district court as a general rule (three in county court). In multiparty cases, a court must determine whether parties aligned on the same side of the docket are antagonistic with respect to any jury issue. If there is no antagonism, a court may equalize the number of strikes so that no party is given an unfair advantage. While the Texas rules of civil procedure do not authorize a court to prevent collaboration amongst parties, case law does and, in any event, collaboration amongst the defendants is an indication of no antagonism, in which case the two defendants should together share the same number of strikes as the plaintiff
02/13: As the trial begins, Paula calls Dave as her first witness. Dave objects, stating that Paula cannot call him as her first witness since she has the burden of proof. Dave contends that Paula must present other evidence to establish a prima facia case, before she can call a defendant as a witness.How should the court rule on Dave’s objection? Explain your answer.
the objection should be overruled. A plaintiff may call the defendant as a witness in her case in chief and there is no rule requiring proof of a Prima facie case before calling a party witness adversely
02/13: Box’s store manager testifies that Dave told him on the day of the occurrence. “I did not see the rack because I was on my cell phone talking to my Mother; that rack was not there last week.”Dave objects to the statements as hearsay. How should the court rule? Explain your answer.
the objection should be overruled. The statement is an admission by a party opponent. The statement of a party is not hearsay when offered against that party. Here the statement is dave’s, a party to the suit, and is being offered against him by another party.
02/13: Paula intends to prove that Dave is often distracted. She proffers as evidence a certified copy of Dave’s driving record which shows that Dave has six class C misdemeanor convictions for traffic violations.Dave objects to the proffer. 1-low should the court rule? Explain your answer.
a court should sustain the objection. The evidence is impermissible character evidence. In a civil case, generally evidence of a person’s disposition or propensity is not admissible to prove conduct in conformity with the disposition or propensity on a particular occasion. Here, Paula is attempting to prove Dave has a general disposition to be distracted in order to prove he was distracted in the store at the time of the accident
02/13: Prior to trial, the parties attended a mediation conference. At the mediation, Box’s store manager tells the Mediator that the rack in question lacked the store’s mandated shelf-protection device, which is designed to prevent the very accident that occurred. He also tells the Mediator that Box was responsible for the accident, but disputes the extent and duration of Paula’s injuries.Paula calls the Mediator as a witness at trial to elicit testimony about the manager’s prior statement. Box objects to this evidence and line of questioning. How should the court rule? Explain your answer.
a court should sustain the objection. Statements of fact made in the context of discussing the settlement of a claim that is disputed at the time of the discussions either as to amount or validity or not admissible. Here, the statement was made during the mediation to reach settlement and the claim was disputed as to amount and, therefore,a statement of fact is not admissibleBOLE: all matter and information exchanged in mediation is confidential and settlement negotiations/offers are not admissible.
02/13: At trial, Paula claims she will incur significant future medical expenses. Box proffers a copy of her personal group health insurance policy to show that Paula will not really incur the medical expenses because they will be covered by that policy.Paula objects to the proffer of this evidence. Ho\v should the court rule? Explain your answer.
the court should sustain the objection. The collateral source rule prohibits evidence of insurance to prove that the parties medical expenses may be covered by insurance.
02/13: The jury returns a verdict favorable to Paula. Box and its attorney believe that the evidence presented at trial is insufficient to support a judgment against Box.What pleading should Box file to bring this issue to the attention of the trial court?Explain your answer.
box should file a motion for judgment notwithstanding the verdict. The motion for judgment notwithstanding the verdict challenges the legal sufficiency of the evidence. A motion for new trial should be filed if box also wishes to challenge the factual sufficiency of the evidence.
02/13: The trial court enters a judgment for Paula. Box files a motion for new trial.If no other action is taken by any party or the trial court, when will the judgment become final? Explain your answer.
the trial court’s plenary power to set aside, modify, or amend the judgment expires 30 days after the motion for new trial is denied. The motion for new trial will be overruled by operation of law (because we are told the trial court will do nothing else) 75 days after the signing of the judgment. So, the courts plenary power expires 105 days after the signing of the judgment. Where, as here, any party has filed a motion for new trial, a party must perfect its appeal within 90 days of the day the judgment is signed
- During the final days of his presidency, many of the President’s Cabinet members began leaking rather embarrassing stories about the President to the press. In one such story, which appeared in a newspaper, an unidentified Cabinet member was quoted as saying that the President pardoned the owner of a professional baseball team, for a previous felony conviction because the owner promised to give the President a lifetime pass to all future games. Upset by these news “leaks,” the President, in his last official act, issued an executive order banning all executive employees from having conversations with members of the press unless prior permission had been obtained from an administrative supervisor. The executive order called for the dismissal of any employee willfully in violation of that order.After the President left office, the press made repeated references to the executive order and derisively referred to it as the President’s legacy. Nonetheless, after the new President took office he promised to abide by the order. Thereafter one of the Vice President’s senior advisers, leaked a story to a magazine stating that the Vice President told staff members that the only reason he visited a city following an earthquake was because he wanted to play golf at a nearby golf course. The magazine printed the story and named the senior adviser as the source. In compliance with civil service regulations, a hearing was conducted and the senior adviser was found to have violated the executive order barring unauthorized conununications with print media. Subsequently, the senior adviser was summarily dismissed from his executive staff position.The senior adviser brings an appropriate action seeking reinstatement and challenges the constitutionality of the executive order. If this case reaches the U.S. Supreme Court, the justices should rule the executive order is(A) constitutional, because governmental employment is a privilege and not a right.(B) constitutional, because the President has plenary power to set forth employment regulations for executive department employees.(C) unconstitutional, because Congress, not the President, has authority to regulate the terms and conditions of federal employment.(D) unconstitutional, because the President cannot broadly limit all executive employees’ freedom of speech and association.
- (D) Choice (A) is incorrect. As a general rule, the President may terminate, without Congress’s approval, those appointees, like his advisers. However, the President may not violate the federal Constitution in doing so. In this instance, the President’s order requiring his appointees to obtain prior permission to speak probably violates the FirstAmendment. Choice (B) is incorrect. The President may not draft regulations that violate the constitutional rights of the employees. After all, the President is no mere employer; he or she is a state actor, and the Constitution protects people, including governmental employees, from constitutional violations by state actors in their official capacity. Choice (C) is too narrow. The President has the authority to regulate the terms and conditions of federal employment for certain employees, especially those, like his advisers who are directly and solely responsible to the President. While the President has the power both to issue executive orders and to remove purely executive officers appointed by him without being subject to any Congressional limitation, the scope of these powers must not contravene federal constitutional limitations, such as the First Amendment rights of freedom of speech and association. The executive order banning all executive employees from having conversations with members of the press unless prior permission has been obtained from an administrative supervisor probably violates the First Amendment as an overbroad prior restraint limiting otherwise protected speech. The executive order is, therefore, unconstitutional. Therefore, choice (D) is the correct answer.
- A devastating earthquake struck a foreign country. The earthquake destroyed hundreds of homes and buildings. Thousands of residents were killed, injured, and left homeless by the earthquake. The leader of the foreign country sought the assistance of the United States in providing emergency aid.The President initially wanted to send troops from a west coast military base but learned that they were out on training maneuvers. As a result, the President issued an executive order directing members of a federal agency under the supervision of the Immigration and Naturalization Service, to travel to the foreign country to engage in emergency rescue operations. This federal agency’s main function is to patrol the borders to prevent illegal aliens from entering the United States.A member of this federal agency refused to comply with the executive order and assist in the relief effort. He claimed that participating in such operations in a foreign country is beyond the scope of his job responsibilities. He brought suit in federal court challenging the validity of the President’s executive order. Assuming the member of the federal agency has adequate standing, the court should rule the executive order(A) valid, because as commander-in-chief, the President has unfettered authority to require federal employees to participate in an international relief effort.(B) valid, because employees of an executive agency can be required to perform such emergency functions.(C) invalid, because the executive order is beyond the scope of presidential power absent congressional authorization.(D) invalid, because the director of the INS, not the President, has the power to issue directives to federal agencies under its supervision.
- (B) The Constitution gives the President broad authority with respect to foreign affairs. Article II, Section 2 explicitly enumerates a number of powers given him in this area (e.g., commander-in-chief power, treaty-making power, and the right to appoint am bassadors). However, the President’s power over foreign affairs is not plenary or absolute. Rather, the President and Congress have concurrent powers over foreign affairs. To be sure, Congress is given war power authority and treaties must be ratified by two-thirds of the Senate. In this regard, choice (A) is not the best answer for two reasons. First, it is doubtful that the President would have authority as commander- in-chief to mobilize nonmilitary federal employees in this manner. Second, the President’s authority to direct foreign affairs is not “unfettered” or absolute. Choice (B) would be a better answer, since the President as Chief Executive would probably have authority to direct executive employees to engage in such an international relief effort. Choice (C) is incorrect. This is a little too strong. To avoid violating the principle of the separation of powers, it is wise for the President to seek congressional approval for an executive order. However, it is not necessary in all instances that the President seek approval from Congress before issuing his executive order. This is especially true for issues that are related to foreign affairs. Choice (D) is a bit too narrow. The INS is encompassed under the Department of Homeland Security, which, in turn, is housed under the Executive Branch.
- Congress enacted a statute wherein the government would purchase and operate all of the nation’s airlines.In all likelihood, Congress’s power to enact this legislation will derive from(A) its power to tax and provide for the general welfare.(B) its power to raise and support an army and declare war.(C) its power to regulate commerce.(D) its power to make laws regarding territory and other property belonging to the United States.
- (C) Since Congress has the power to regulate interstate commerce under Article I, Section 8, choice (C) is the best answer. Choice (B) is incorrect because the facts do not state that the United States is at war. Similarly, you may not assume that the airline takeover was a wartime or war-related act. Choice (A) is incorrect. In order to purchase aLL of these airlines, it’s possible that Congress will have to levy higher taxes on Americans. But the question asks under what power Congress may purchase the airlines, not how and if it will pay for them. And Congress can use its commerce clause powers to purchase the airlines. Finally, choice (D) is incorrect. The airlines didn’t belong to the United States at the time of purchase.
- Congress enacted a statute designed to make the stabilization of rents more effective throughout the United States. The statute will be applicable to all leasehold contracts hereafter entered into between landlords and tenants involving residential and commercial properties. The new federal statute is intended to protect tenants from spiraling rents and “profiteering” by landlords without curtailing the supply of rental units or depriving landlords of substantial constitutional rights.The new federal statute would be most clearly constitutional as applied to(A) the rental of a state-owned office building by a state to a privately owned business.(B) the rental of residential property located in the District of Columbia by an individual landlord to a family of six.(C) the rental of an apartment located by a real estate company to an individual tenant.(D) the rental of an office building to a city by an individual landlord.
- (B) ArticLe IV, Section 3, Clause 2 gives Congress power “to dispose of and make all needfuL ruLes and regulations respecting” lands of the United States. Since the District of Columbia is under federal jurisdiction, choice (B) is the best answer. Choice (A) is incorrect. ArticLe IV, Section 3, Clause 2 gives Congress power “to dispose of and make all needful rules and regulations respecting” Lands of the United States. For purposes of this clause, a state does not fall within Congress’s federal jurisdiction. Choice (C) is incorrect. Article IV, Section 3, CLause 2 gives Congress power “to dispose of and make all needful rules and regulations respecting” Lands of the United States. For purposes of this clause, a state does not faLL within Congress’s federaL jurisdiction. Choice (D) is not the best choice. Article IV, Section 3, Clause 2 gives Congress power “to dispose of and make all needful rules and regulations respecting” Lands of the United States. For purposes of this clause, a city does not faLl within Congress’s federal jurisdiction.
- Congress has recently enacted a statute designed to prevent price gouging of gasoline by private retail sellers. To help administer the new statute Congress created a seven-member agency, four members of which were appointed by the President, two by the Senate, and one by the Speaker of the House. The agency was authorized to issue rules interpreting regulations prescribed under existing federal law. It was also authorized to issue “cease and desist” orders after hearings against private retail sellers of gasoline who “intentionally engaged in price gouging.” In this regard, violations of the cease and desist orders were made punishable by fine and/or imprisonment.Which of the following is the strongest constitutional argument against the authority of this agency?(A) Congress may not delegate to the agency power to make interpretations of existing federal laws.(B) Congress may not delegate to the agency power to make “cease and desist” orders, the violation of which is punishable by imprisonment.(C) Congress may not delegate enforcement of a federal law in any governmental body other than the U.S. Attorney General or the courts.(D) Congress may not retain the power to appoint even a minority of members of such an agency.
- (D) Article II, Section 2 specifies that the President shall appoint “with the advice and consent of the Senate,” all “Ambassadors, other public Ministers and Consuls, judges of the Supreme Court, and all other Officers of the United States.” Note that although Congress may appoint officials to exercise such investigative power as it might delegate to one of its own committees, it maynotappoint members oran agency or commission with administrative powers. Such persons are deemed “officers of the United States” and must be appointed pursuant to Article II, Section 2 [Buckleyv. Valeo, 424 U.S. 1 (1976)]. Choice (A) is incorrect. In the fact situation, Congress authorized the agency to do more than interpret the laws. Congress authorized it to punish violators. But such authorization goes beyond what Congress is permitted to do. Under Article II, Section 2, the President shall appoint “with the advice and consent of the Senate,” all “Ambassadors, other public Ministers and ConsuLs, judges of the Supreme Court, and all other Officers of the United States.” In other words, only the President may appoint those with administrative powers to punish law violators. Choice (B) is a good choice, but it’s not the best choice. The problem is larger than one of “cease and desist” orders. For Congress lacks the authority to appoint members to an agency that has any administrative powers, including any powers to punish law violators. Congress would do no better if it had substituted the right to issue cease and desist orders with some other form of punishment. Only the President has authority to appoint members who may exercise administrative power [Buckleyv. Valeo, 424 U.S. 1 (1976)], construing Article II, Section 2. Finally, choice (C) is incorrect. The Attorney General certainly has enforcement powers, given that he is an officer of the Executive Branch. So, too, the courts may issue cease and desist orders. Congress also has the authority under Article I to create agencies that may enforce the law. Congress may not, however, appoint members to these agencies; only the President may do so [Buckleyv. Valeo, 424 U.S. 1 (1976)], construing Article II, Section 2.
- The navy wanted to build a naval base on the north shore of an island in Hawaii. Situated along the north shore of this island were coral reefs which are the home of a very rare species of fish that are found only along the north shore area.Congress conducted hearings to decide whether to authorize the construction of the naval base. During the hearings, one of the speakers who addressed the congressional committee was a famous expert on oceanography and marine biology. The expert vehemently opposed the naval plan and stated that the construction would, in his opinion, result in the extinction of the rare species of fish. Congress thereafter approved the construction of the naval base and passed a bill providing necessary authorization and funding for the project.The expert has filed an action in federal district court seeking to enjoin the construction of the naval base on ecological grounds. Does the expert have adequate standing?(A) Yes, because he has a personal stake in the litigation.(B) Yes, because he is a recognized expert on marine biology and he testified at the congressional hearings.(C) No, because the suit presents a nonjusticiable political question.(D) No, because he is not suffering any actual harm or injury.
- (D) The Supreme Court has said that the core of Article Ill’s requirement for cases and controversies is found in the rule that standing is limited to those who allege that they personally have suffered or imminently will suffer an injury. In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Court stated that “the plaintiff must show that he has sustained or is immediately in danger of sustaining some direct iniury as a result of the challenged action.” With respect to standing in environmental cases, the Supreme Court has handed down two conflicting rulings. In Sierra Club v. Morton, 405 U.S. 727 (1972), the Sierra Club sought to prevent construction of a ski resort in Mineral Valley in California. The Court ruled that the Sierra Club lacked standing because there was no allegation that any of the Sierra Club’s members ever had used Mineral Valley. By contrast, in United States v. Students Challenging RegulatoryAgency Procedures, 412 U.S. 669 (1973), the Court upheld the standing of a group of George Washington law students alleging that an administrative rate hike would decrease recycling, which would lead to more use of natural resources and increased pollution. The students maintained that their enjoyment of the forests, streams, and mountains in the Washington, D.C., area would be lessened as a result. The Court upheld the group’s standing because the plaintiffs actually used the environmental area for hikes, biking, and other recreational purposes. In this hypo, there is no showing that the expert is making any personal use of the coral reef area. Therefore, he would lack standing on environmental grounds. Choice (A) is incorrect. The Supreme Court has said that the core of Article Ill’s requirement for cases and controversies is found in the rule that standing is limited to those who allege that they personally have suffered or imminently will suffer an injury [City of LosAngeles v. Lyons, 461 U.S. 95 (1983)]. Professor has not suffered nor will suffer some personal injury. His grievance can be shared by anyone who is interested in preventing damage to the environment. Answer (B) is incorrect. This would seem an intelligent answer, but the expert still lacks standing because standing is limited to those who allege that they personally have suffered or imminently will suffer on injury [City of Los Angeles v. Lyons, 461 U.S. 95 (1983)]. The expert’s expertise cannot compensate for his lack of personal injury. Choice (C) is not correct. The political question doctrine would not permit the court to consider the case because of one or more of the following reasons. One, if the U.S. has appropriated the decision- making on this issue to another branch of the federal government. For example, the judiciary cannot hear cases interpreting the rules for impeachment; only the Senate may do so [U.S. v. Nixon, 418 U.S. 683 (1974)]. Two, if the court feels that, for practical reasons, it should not hear the case. For example, the Supreme Court felt it impractical to supervise electoral districts to prevent partisan gerrymandering. [ Vieth vjubelirer, 541 U.S. 267 (2004)].The extinction of the rare species of fish may present serious environmental problems but does not present issues that are related to the political question doctrine.
- There are 2,000 insurance agents licensed under the general licensing laws of a state. The state legislature recently passed a highly controversial bill that, inter alia, reduces “good driver” automobile insurance rates and prohibits price-fixing and discrimination by insurance companies. This bill passed despite a well-financed and intense lobbying effort mounted by the insurance industry. After this law was enacted, an insurance agent who is a resident of the state, was interviewed by the local newspaper and publicly stated, “the legislature is a bunch of self-serving crooks.” After the statement made newspaper headlines, the state legislature enacted a statute providing that “the state insurance license of the insurance agent is henceforth revoked.” Astonished by the legislature’s action, the insurance agent, who remains unrepentant, seeks your legal advice.You should advise the insurance agent that the state statute revoking her state insurance license is(A) constitutional, because a state license is a privilege and not a right and, therefore, it is not protected by the due process clause.(B) unconstitutional, because it denies her the equal protection of the laws.(C) unconstitutional, because it is a prohibited bill of attainder.(D) unconstitutional, because it is a denial of a privilege or immunity protected by Article IV.
- (C) A bill of attainder is any form of legislative punishment of a named group or individual without judicial trial. Under Article I, Sections 9 and 10, federal and state governments are prohibited from enacting bills of attainder. The statute revoking the state insurance license of the insurance agent is a sufficient form of legislative “punishment” to constitute an impermissible bill of attainder. Choice (A) is incorrect. A state-issued license can be a right protected under the due process clause. Here, the insurance agent did not receive fair notice and a hearing, normal requirements of due process. Choice (B) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). The insurance agent may have been the subject of discrimination by the legislature but not because she is a member of a suspect or quasi-suspect class. Answer (D) is not the best choice. The privileges and immunities clause of Article IV would prevent the state legislature from discriminating against those who are out-of-staters. Even if the legislature discriminated against the insurance agent by revoking her license, it did not discriminate against her because she is an out-of-stater.
- Evidence at Congressional hearings has indicated that thousands of elderly citizens die each year because they cannot afford proper medical and hospital treatment. Based on the evidence presented at these hearings, a senator wishes to introduce a bill providing free medical and hospital care for all citizens 70 years of age and older. The senator, however, intends to include a provision in the bill denying such medical and hospital care benefits to aliens (in the same age category) unless they have been legally admitted for permanent U.S. residency. The senator has asked for your advice regarding his proposed bill. You are understandably concerned about the legality of the aliens proviso.Which of the following is the strongest argument in support of the constitutionality of the provision disqualifying aliens from receiving such medical and hospital benefits?(A) Due to the fact that the medical and hospital benefits will be paid for by the government, they are a privilege not a right and, therefore, are not within the meaning of the Fifth Amendment.(B) The disqualifying provision does not unduly burden either interstate commerce or the right of aliens to travel freely from state to state.(C) The principles of equal protection apply against the states and not against the federal government.(D) The disqualifying provision is reasonably related to legitimate congressional objectives under its immigration, citizenship, and spending powers.
- (D) In light of the decision in Mathews v. Diaz, 426 u.s. 67 (1976), choice (D) is the best answer. In Mathews, the Court applied “relaxed scrutiny” in upholding the validity of a federal statute that conditioned an alien’s eligibility for participation in a federal medical insurance program on the satisfaction of a durational residency requirement, but imposed no similar burden on citizens. The Court was at pains to emphasize that Congress, as an aspect of its broad power over immigration and naturalization, enjoys rights to distinguish among aliens that are not shared by the states. Although (C) is a correct statement of law, it does not provide any rationale supporting or justifying the federal government’s treatment of aliens. Choice (A) is incorrect. That the government is paying for something does not necessarily turn something from a right (which is presumably protected) to a privilege (which presumably isn’t). We still have “state action” and thus the government is bound to respect the Constitution even as it doles out supposed privileges. Choice (B) is incorrect. This seems to be a plausible answer because the dormant commerce clause only governs states and local governments; here, we have Congress. But the fact that Congress does not violate the dormant commerce clause is not the best answer because the call of the question focuses on aliens and, hence, on issues of equal protection. Choice (C) is incorrect. It’s true that the 5th Amendment’s Due Process Clause does not contain an equal protection clause. But the Supreme Court has read into it a doctrine of equal protection that is analogous to the 14th Amendment’s Equal Protection Clause [Boiling v. Sharpe, 347 u.s. 497 (1954)].
- A city has undergone a massive redevelopment project aimed at remodeling and beautifying the downtown area. Recently the city council passed an ordinance prohibiting the placement of any sign with dimensions larger than six feet on the exterior of any commercial building. Furthermore, signs within the guidelines of the ordinance could only relate to advertising the business of the property’s occupant. The intended purpose of the ordinance was to advance the municipality’s interests in traffic safety and aesthetics.An owner of an office building in the newly developed section of town, placed a 10-foot sign on the outside of his building endorsing his brother’s political candidacy. The city council has ordered the owner to remove the sign from his building, but he has refused to take it down until after the election.If the owner challenges the city ordinance, the most likely result is that he will(A) prevail, because the ordinance violates his freedom of speech.(B) prevail, because such a time, place, and manner restriction on private property is discriminatory and overbroad.(C) not prevail, because although commercial speech is protected by the First Amendment, it is subject to greater regulation than other forms of protected speech.(D) not prevail, because the ordinance is rationally related to a legitimate state interest.
- (B) In Metromedia, Inc. v. San Diego, 453 u.s. 490 (1981), the Court struck down a San Diego ordinance which, inter alia, prohibited all billboards containing non-corn mercial messages, except for those messages falling within certain defined categories (e.g., temporary politicaL campaign signs, signs carrying news items or telling the time or temperature, etc.). The Court objected to this handling of non-commercial speech on the grounds that “the city may not choose the appropriate subjects for public discourse”; the city was required to either allow all, or no, non-commercial messages. Here, the Middletown ordinance would have been valid if it were limited to restricting the size of billboards. But since the ordinance also attempted to impose non-content-neutral regulations (by requiring that signs relate only to advertising the business of the owner-occupant), it probably will be struck down under the strict (and often fatal) scrutiny test. Choice (A) is not the best choice. This is an alluring answer, but it’s not the best choice. We want to see what, if anything, is defective with the statute that regulates the speech. So Choice (B) is a stronger choice. Choice (C) is incorrect. It’s true that commercial speech is subject to greater regulation than, say, political speech. But the ordinance in the example indulges in content regulation. So the ordinance will be subject to strict scrutiny and most likely will fail such scrutiny. Choice (D) is incorrect. Strict scrutiny review applies to speech—except for unprotected speech, which is governed by the rational basis test, and time, place, and manner restrictions.
- For many years, persons engaged in real estate transactions in a state have utilized installment land contracts. The so-called installment land contract has been popular as a substitute for the mortgage or deed of trust. Under such a contract, the seller agrees to accept, and the buyer agrees to pay, the purchase price in installments over a stipulated period of time. The vendor retains legal title as security for the payment of the purchase price; and the vendee has equitable title under the doctrine of equitable conversion. The most important characteristic of the installment land contract, however, is the forfeiture clause, which provides that if the vendee is in default for 30 days, the vendor may, at his option, declare a forfeiture of the contract, in which case all payments made shall be forfeited as “liquidated” damages and the buyer shall become a tenant at will of the seller.Over the years, many sellers of property under such installment land contracts have declared forfeitures in situations where the prospective buyers were delinquent in their payments, even when the buyer was late with a single payment after nearly all the other payments had been made. In order to remedy this inequitable situation, the state legislature enacted a statute requiring any seller attempting to declare a forfeiture of an installment land contract to do so by instituting a formal foreclosure action in the courts. The new law also provided that prior to the commencement of such a foreclosure action, the seller under such an arrangement must give the buyer a 60-day grace period to make up any delinquent installment payment with interest. The new law expressly applied both to installment land contracts entered into subsequent to its enactment and to installment land contracts already in existence at the time of its enactment.Is this new state statute likely to be held constitutional?(A) Yes, because it is a reasonable regulation of the procedure to be followed in such cases and does not substantially diminish the underlying obligations of the buyer.(B) Yes, because the authority to enact laws regulating real estate sales transactions occurring within the boundaries of individual states is reserved exclusively to the states by the Tenth Amendment.(C) No, because application of the law to installment land contracts entered into prior to its enactment is a violation of the obligation of contracts.(D) No, because application of the law to installment land contracts entered into before or after its enactment is a deprivation of a proprietary interest without due process of the law.
- (A) Although nowhere mentioned in the Constitution, the concept of police powers in the 10th Amendment has developed closely with that of the dormant commerce power to enable a state to regulate issues relating to health, safety, morals, and welfare, including economic welfare. As a general rule, “where the state regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits” [Pike v. Bruce Church, Inc. 397 U.s. 137 (1970)]. The state law requiring sellers under “installment land contracts” to institute foreclosure actions to relieve the harsh effect of forfeiture by allowing the buyer a 60-day reinstatement period serves a legitimate purpose and leaves unchanged the initial monetary obligations of both parties. Therefore, it will be upheld. Choice (A) is correct. In order to protect the health, safety, morals, and welfare of its citizens, a state may enact legislation that impairs contracts under certain conditions. The action of the Utah legislature may be viewed reasonably as a permissible police power modification of the “installment land contract” because no prior underlying contractual obligation has been impaired, since the buyer must still pay in full the original bargained-for purchase price. In general, private parties who enter into contracts may not stop the legislature from exercising its proper police power for the public good. Nowak, p. 376. Choice (B) is incorrect because the authority to enact laws regulating intrastate real estate sales transactions is not reserved exclusively to the states under the 10th Amendment. Such transactions have a cumulative impact on interstate commerce and are subject to the federal commerce power. The court has refused to use the 10th Amendment to reserve subject areas of commerce for state regulation. Choice (C) is also incorrect. Remember that there is no fundamental right to contract in the Constitution. The state’s regulation thus will be subject to rational review. Under rational review, the court probably will find that there is a legitimate government interest in the state’s desire to protect buyers against unfair contracts. Next, the court probably will find that there are rationally related means. In fact, for the right of contract, the Supreme Court has gone so far as to surmise potential justifications under rational review forthe state. [Williamson v. Lee Optical, 348 U.S. 483 (1955)]. Choice (D) is incorrect. Subsequent to the state’s legislation, the bank still retains its right to foreclose on the property. Accordingly, there is most likely no deprivation of property under the due process clause.
- Congress enacted a statute aimed at “countries assisting or furnishing aid or support to nations or movements engaged in hostilities with the United States.” Section 5 of that act authorized and directed the Treasury Department “to issue orders barring entry into the United States any category of goods the sale of which in the United States is likely to improve the economic or balance of payments posture of an assisting country.” The Secretary of State was authorized by Section 6 to define “assisting countries.” Pursuant to Section 5, the Treasury Department issued a regulation, which provided in part that:“Imports of the following categories of goods from assisting countries are hereby prohibited:• . (c) Bulk shipments for resale within the United States of books, pamphlets, flags, decorations or other symbols, excepting, however, scientific, technical, and literary works intended for scholarly purpose…”The State Department designated a foreign country, as an “assisting country,” on the basis of its determination that medical supplies collected by public donation in this country had been sent to another country currently engaged in hostilities with the United States. As a consequence, the Treasury Department issued an order barring practically all products and goods from this foreign country into the United States.A distributor of state and foreign flags, has had a lucrative contract with the foreign country for the importation and sale of their flags in the United States. However, because of the Treasury Department’s order, the foreign country is now barred from importing any of its flags into the United States.In an appropriate federal court, the distributor brings a suit against the Secretary of State and the Treasury Department to set aside the order barring the foreign country’s imports on the grounds that it is inconsistent with the principles of our constitutional form of government. Which of the following is the most proper disposition of the distributor’s suit by the federal court?(A) Suit dismissed, because the distributor does not have standing to bring this action.(B) Suit dismissed, because there is no adversity between the distributor and the defendants.(C) Suit dismissed, because it presents a nonjusticiable political question.(D) Suit dismissed, because it presents a moot issue.
- (C) The doctrine of political questions precludes federal judicial review of nonjusticiable issues (i.e., matters not capable of judicial resolution due to inherent separation of powers limitations). The leading case of Baker v. Carr, 369 U.S. 186 (1962), established a test to identify such nonjusticiable issues. For example, where a textually demonstrable commitment to a coordinate political branch of government has been made, or where there is a lack of judicially manageable standards to resolve the issue, or where judicial resolution would create the potential for embarrassment from multifarious pronouncements by various branches of government, then the judiciary will decline resolution of such nonjusticiabie political questions. Choice (C) is correct because foreign affairs is a nonjusticiable political question over which federal courts will not exercise jurisdiction. Choice (A) is incorrect. Actually, the distributor does have standing insofar as it can show that: The distributor has suffered a direct harm from the governmental law; the governmental law is a “but for” cause of the distributor’s harm; and there is a “substantial likelihood” that the relief sought from the court by the distributor, if granted, would remedy the harm. Choice (B) is incorrect. In order to sue, the distributor would have to show that it has suffered a material harm under the adversity requirement. The facts tell us that the distributor has a “lucrative” contract with the foreign country. Hence, we may assume that the governmental law, by prohibiting this contract, would satisfy the adversity requirement. Choice (D) is incorrect. The case will not be dismissed for mootness because an actual controversy does exist, however the court will refrain from hearing that controversy because it is a nonjusticiable political question.
- A state enacted a statute prohibiting any motor vehicle traveling within the state from having window tinting or glass coating of any kind. The bill passed the state legislature at the urging of state and local law enforcement agencies who argued that tinted windows prevented them from observing interior car activity. Most citizens also supported the bill, especially after a state trooper was killed by an occupant in a window-tinted limousine. The trooper was unable to see that his assailant was armed and dangerous when he approached the vehicle for a speeding infraction.A limousine company operates a limo service in a neighboring state and has a fleet of 68 limos, all of which have tinted windows. Each year, the company makes thousands of trips into the state to transport passengers to the international airport situated 10 miles from the border separating the two states. Since all of its limos are manufactured with tinted windows, the company will incur great expense in ordering limos without tinting.The company brings suit to challenge the constitutionality of the state statute. Assuming that the company has proper standing to assert such an action, which of the following is their strongest constitutional argument to invalidate the aforesaid statute?(A) Because window tinting is permitted on vehicles in neighboring states, this law denies the company the equal protection of laws.(B) Because this law burdens interstate commerce by prohibiting all vehicles with window tinting from entering the state, this law violates the commerce clause.(C) Because window tinting on vehicles is legal in their home state, this law violates the contract clause by preventing the company from fulfilling its obligation to transport passengers into a neighboring state.(D) Because interstate travel is a fundamental right that may not be burdened by state law, it violates the company’s substantive due process rights by arbitrarily and unreasonably regulating economic activity.
- (B) Under Article I, Section 8, Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This plenary federal commerce power is held concurrently with the states, which may freely govern matters that do not require uniform national regulation. For a state regulation affecting interstate commerce to pass judicial scrutiny, the statute must be found reasonable and nondiscriminatoryupon balancing the benefit to the state against the burden imposed on interstate commerce such that no less-restrictive alternative means of regulation is available. Where a state statute imposes a discriminatory burden on out-of-state interests, its validity is seriously in question. The statute effectively prevents the company from doing business in its state. The company’s strongest constitutional argument to invalidate the statute would be the Commerce Clause challenge presented in choice (B). Choice (A) is incorrect because all motorvehicles in the state are treated equally under the law. Choice (D) is incorrect because strong support is given in the facts to demonstrate that the purpose for enacting the statute was neither arbitrary nor unreasonable. Finally, choice (C) is incorrect because the contracts clause of Article I, Section 10 states that no state shall impair the obligation of contracts. Here, no state has prevented the company from fulfilling its contractual obligations, although it may now have to pay more to do so.
- The state registrar of elections refused to put a candidate’s name on the ballot because the registrar believed that the candidate was not a resident of the state. The registrar contended that Article I, Section 2 of the U.S. Constitution specifically required a candidate for the House of Representatives “be an Inhabitant of that State in which he shall be chosen.” As a consequence, the candidate filed suit in state court against the registrar of elections seeking to have her name placed on the ballot. The state court ruled in her favor and determined that the candidate did, in fact, qualify as a resident of the state. The registrar appealed the decision to the state supreme court which, in turn, affirmed the lower court ruling. Thereafter, the candidate’s name was placed on the ballot. After a hotly contested election, the candidate narrowly defeated the incumbent.However, at the time that the candidate was to be seated as a House member, the House of Representatives held hearings on her qualifications and eligibility. By a two-thirds vote, the House determined that the candidate was not a resident of the state at the time of her election and refused to seat her. The candidate then brought suit in federal district court against the Speaker and other officers of the House, seeking back pay and an order that she be seated in the House of Representatives. The defendants demurred, claiming lack of subject matter jurisdiction.Which of the following is the strongest constitutional argument supporting the defendants’ demurrer?(A) There is no case or controversy between the candidate and the officers of the House of Representatives.(B) The case presents a nonjusticiable political question.(C) The suit should have been brought as an original action in the U.S. Supreme Court.(D) Under Article III of the Constitution, the federal courts are not empowered to render advisory opinions.
- (B) This Constitutional Law question focuses on the specific case of Powell v. McCormack, 395 U.S. 486 (1969), but there is an important twist. In Powell, the House of Representatives refused to seat him (after he had been elected) due to the fact that he had wrongfully diverted House funds for his own personal use. In brief, the Court held that the House did not have authority to exclude him since he met all the requirements for membership expressly prescribed in Article I, Section 2 (namely, age, citizenship, and residency). Thus, the Court held that Powell’s claim did not present a political question. In this example, however the issue is whether Kennedy fulfilled the “residency” requirements set forth in Article I, Section 2. Since the House has the unreviewablepowerto determine the “residency” (as well as “age” and “citizenship”) qualifications for its members, the case presents a nonjusticiable political question. Choice (A) is incorrect. Because Powell had demanded back pay (as the candidate had done), the Court held that “a prayer for specific relief prevented a finding of mootness and demonstrated that there was, in fact, a ‘case or controversy.” See Powell, 395 U.S. at 497. Choice (C) is incorrect. Artide Ill, Section 2 states: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” The candidate’s lawsuit does involve governmental officials but not those who are covered by the Supreme Court’s original jurisdiction. Choice (D) is not the best choice. While this summation of Article Ill is correct, the federal court is not being invited to issue an advisory opinion. The court is being invited to adjudicate an actual controversy.
- There has been a great deal of news media coverage regarding the problem of underage drinking. Many high school and college students have been purchasing fraudulent driver’s licenses with phony birthdates showing “proof’ of being 21 years of age or older. As a consequence, many teenagers are able to purchase alcoholic beverages at liquor stores, restaurants, and bars. The situation is becoming especially alarming on many college campuses. A magazine article reported that the majority of freshmen between the ages of 18 and 19 at many colleges had illegally purchased evidence of phony “proof.”With underage drinking reaching epidemic proportions, Congress enacted a statute establishing a federal commission to monitor and curtail alcoholic beverage sales to underage drinkers. To implement the program on a national scale, the bill required each state to pass legislation establishing a local “watchdog” agency to facilitate compliance with congressional intent.A state has filed suit challenging the constitutionality of the federal statute. The law is likely to be held(A) valid, because the sale of alcoholic beverages has a substantial impact on interstate commerce.(B) valid, because the establishment of a state watchdog agency under the auspices of a federal regulatory scheme is consistent with the provisions of the Twenty First Amendment.(C) invalid, because it violates the fundamental principles of state sovereignty embodied by the Eleventh Amendment.(D) invalid, because the federal government may not compel state legislatures to enact and enforce a federal regulatory program.
- (D) The landmark case of New York v. United States, 505 U.S. 144 (1992) clearly limited Congress’s right to interfere with a state’s ability to make and apply laws through legislative, judicial, and administrative functions. Based on principles of state sovereignty under the 10th Amendment, Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. The Court explained that allowing Congress to commandeer state governments would undermine government accountability because Congress could make a decision but the states would take the political heat and be held financially and legally responsible for a decision that was not theirs. Therefore, if a federal law compels state legislative or regulatory activity, the statute is unconstitutional even if there is a compelling need for the federal action. Chemerinsky, p. 233. Under its commerce power, Congress could clearly pass legislation to establish a federal commission to monitor and curtail alcoholic beverage sales to underage drinkers. However, a 10th Amendment violation arises when implementation of the bill requires each state to pass legislation to establish a local “watchdog” agency to facilitate compliance with congressional intent. Congress cannot compel state regulatory activity. The federal statute will be held invalid under the 10th Amendment. Therefore, choice (D) is the correct answer. Choice (A) is not the best answer. It is true that the sale of alcoholic beverages has a substantial impact on interstate commerce. And the commerce clause of Article I, Section 8 states that Congress may regulate commerce with foreign nations, amongthe states, and with the Indian tribes. Accordingly, it would seem likely that Congress may create a watchdog agency to regulate some aspect of alcohol sales. However, New York v. United States, 505 U.S. 144 (1992) held that Congress’s exercise of its commerce clause powers may not infringe on the states’ rights under the 10th Amendment. Specifically, the Supreme Court explained that Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. That would be deemed coercive and violate of the 10th Amendment. Choice (B) is incorrect. The 21st Amendment repealed the 18th Amendment, which had prohibited the manufacture, sale, or transportation of intoxicating liquors. Congress probably will not turn to the 21st Amendment to justify its law. Even if Congress did, it would probably violate the states’ 10th Amendment rights against the federal commandeering of state governments. Choice (C) is incorrect. The 11th Amendment states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The 11th Amendment thus prevents lawsuits by private citizens against the states; it does not protect states from the federal government.
- A women’s action group attempted for many months, unsuccessfully, to reach an agreement with the local professional men’s club to admit women to membership. The women’s group instituted a suit for a declaratory judgment in federal court to determine whether the men’s club was subject to the state’s anti-discrimination act.Prior to the elections for city officials, four members of the women’s group were sent to picket the offices of the mayor and district attorney, both prominent members of the men’s club. Two members walked outside the front of the mayor’s office building, carrying signs that read, “The mayor is supposed to serve all the people but his lunch club is for men ONLY. So don’t vote for him.” The other two pickets walked outside the rear of the district attorney’s office building, carrying similar signs, telling the public not to vote for him. This picketing was carried on from 9 A.M. to 5 P.M.The same day, two more pickets were assigned to carry identical signs in front of the mayor’s official residence. Two pickets also carried duplicate signs in front of the district attorney’s suburban home during the early evening hours. The picketing at all sites was held peacefully without any disturbance. The relevant city ordinances concerning picketing read as follows:“Section 201. No picketing shall be permitted inside of, or on any sidewalk or street immediately adjacent or contiguous to, city hall, without express permission of the mayor. Applications for such permission shall be filed at least three days before such picketing is intended to begin and shall state the purpose, place, and time of the proposed picketing.Section 202. It shall be unlawful for any person to engage in picketing before or about the residence of an individual. Nothing herein shall be deemed to prohibit the holding of a meeting or assembly on any premises used for the discussion of subjects of general public interest.”The federal district court will most likely avoid making a decision on the merits of the suit for declaratory judgment because(A) the case lacks adequate ripeness.(B) there is no case or controversy.(C) the relief sought is essentially for an advisory opinion.(D) the women’s group lacks standing.
- (C) When a federal constitutional claim is premised on an unsettled question of state law, the federal court should “stay its hand” (abstain temporarily), so as to give state courts a chance to settle underlying state law questions. In the present case, the women’s group initially should have brought suit in state court (thereby exhausting all state remedies) before seeking federal judicial review. Clearly, the women’s group is presently “harmed” by the men’s club’s exclusionary membership policy. Therefore, choice (A) is incorrect. Choice (B) is wrong since an actual “case and controversy” is presented by the men’s club’s exclusion of women members. Choice (D) is incorrect. The women’s group would seem to possess standing here: The men’s club has inflicted injury against the women’s group’s members by excluding them; the court can offer a remedy for its injury.
- A teachers union, a nongovernmental entity, seeks to picket the local city school board for its decision to require higher certification for instructors who wish to teach in the gifted and talented classes in elementary school. After a few days of picketing, the school board seeks a temporary injunction in the state court to restrain further picketing of the school board. The school board insists that the teachers union has violated Section 101 of the city’s picketing ordinance. Section 101 reads as follows:“Section 101. No picketing shall be permitted inside of, or on any sidewalk or street immediately adjacent or contiguous to public elementary and secondary schools without express permission of the mayor. Applications for such permission shall be filed at least three days before such picketing is intended to begin and shall state the purpose, place, and time of the proposed picketing.”The court will most likely(A) grant relief, because the teachers unionfailed to follow the procedure outlined in theordinance.(B) grant relief, because the ordinance isconstitutional.(C) deny relief, because the picketing ordinancewas unconstitutional on its face.(D) deny relief, because the ordinance does notprovide procedural due process.
- (C) A frequently tested Constitutional Law area deaLs with Licensing statutes. As ageneral rule, whenever an ordinance is “void on its face,” the defendant need notapply for a permit. In this situation, he is entitled to deliver his speech and can successfuLly defend any subsequent prosecution. An ordinance may be deemed to befacially invalid for the following three reasons: (1) “vagueness,” (2) “overbreadth,”(3) “unfettered discretion” in the licensing official. On the other hand, when an ordinance is valid on its face (although a permit may be arbitrarily denied), the applicant must seek judicial relief before engaging in his speech. See Poulos v. New Hampshire, 345 U.S. 395 (1953). Choice (A) is incorrect. This would be true if the ordinance were constitutional. Here, the ordinance is invalid on its face because it affords the mayor unfettered discretion to deny permits for picketing. Under the ordinance, the mayor may deny permits to those advocating viewpoints that he finds objectionable. Choice (B) is incorrect. The ordinance is unconstitutional because it affords the mayor unfettered discretion to deny permits for picketing. Under the ordinance, the mayor may deny permits to those advocating viewpoints that he finds objectionable. Choice (D) is not the strongest answer. This is a potentially good answer. However, the ordinance will be struck down on its face because it affords the mayor unfettered discretion to deny permits for picketing. Under the ordinance, the mayor may deny permits to those advocating viewpoints that he finds objectionable.
- A group of students from a public state college decide to picket the college for raising tuition. After three days of picketing, the college asks a court to grant a temporary injunction against the picketers. The college claims that the picketers have violated Section 201 of the city’s picketing ordinance. Assume that the court granted the temporary injunction against the students for picketing the college.“Section 201. No picketing shall be permitted inside of, or on any sidewalk or street immediately adjacent or contiguous to public colleges without express permission of the mayor. Applications for such permission shall be filed at least three days before such picketing is intended to begin and shall state the purpose, place, and time of the proposed picketing.”In a subsequent action challenging the constitutionality of Section 201 of the city’s picketing ordinance, the court will most likely rule that the section is(A) constitutional, because the ordinance is a valid exercise of the state’s police power.(B) constitutional, because the ordinance is within the reserved rights of the states under the Tenth Amendment.(C) unconstitutional, because the ordinance is void for vagueness and overbreadth.(D) unconstitutional, because the ordinance violates petitioner’s rights under the First Amendment.
- (D) In Coxv. Louisiana, 379 U.S. 537 (1965), the U.S. Supreme Court held that an analogous ordinance prohibiting “parades or demonstrations along any street except in accordance with a permit issued by the police chief’ was clearly unconstitutional. The Court reasoned that it would be an arbitrary exercise of state police power to enable a public official to determine which expressions of view will be permitted and which will not. Allowing unfettered discretion in local officials in the regulation of the use of streets is an unwarranted abridgement of one’s freedom of speech and assembly as secured by the 1st Amendment and applied to the States by the 14th Amendment. Choice (C) is not the best answer because the statute is neither over- broad nor vague; it is invalid because it gives the mayor the “unfettered discretion” to approve or disapprove permit applications. Choice (A) is incorrect. Courts have stated that the 10th Amendment contains “police powers,” which beLong to local governments. Those police powers permit local governments to regulate speech for purposes of health, safety, welfare, and morals. However, local governments may not pass laws that regulate speech and which are invalid on their face. We have such a law here because it gives the government unfettered discretion to discriminate against certain viewpoints. Such a law is facially invalid. Finally, choice (B) is incorrect. The state is said to have “police powers” under the 10th Amendment, rather than “reserved powers.” Regardless of the term, a state may not use its 10th Amendment powers to pass a law that can permit the state to enjoy unfettered discretion to discriminate against certain viewpoints. Such a law is facially invalid.
- A city passed a picketing ordinance. Section 202 of that ordinance reads:“Section 202. It shall be unlawful for any person to engage in picketing before or about the residence of an individual. Nothing herein shall be deemed to prohibit the holding of a meeting or assembly on any premises used for the discussion of subjects of general public interest.”A group of teachers who work for a public school inside of the city were angry that the principal decreased their salaries. The teachers reacted by picketing on the lawn of the principal’s privately owned house. The teachers were charged with violating Section 202 of the ordinance. The teachers have filed suit attacking the constitutionality of Section 202.The court will most likely declare Section 202(A) constitutional, as a permissible time, place, and manner regulation.(B) constitutional, as a valid exercise of a state’s reserved powers under the Tenth Amendment.(C) unconstitutional, as discriminatory on its face. (D) unconstitutional, as vague and overbroad.
- (A) The government may place reasonable restraints on the time, place, and manner of speech in public areas, such as streets, sidewalks, and parks. A public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood. A three-part test is used to determine the constitutionality of time, place, or manner regulations of speech and assembly in public places. The regulation must: (1) be content-neutral; (2) be narrowlytailored to serve a significant government interest; and (3) leave alternative channels of communication open. Section 202 is content-neutral (the regulation does not prefer some messages over others). It serves the significant government interest of protecting residential privacy. An important aspect of such privacy is the protection of unwilling listeners within their homes from the intrusion of objectionable or unwanted speech. Moreover, Section 202 is narrowly tailored to serve that governmental interest, since, although its ban is complete, it targets and eliminates no more than the exact source of the “evil” it seeks to remedy: offensive and disturbing picketing focused on a “captive” home audience. It does not prohibit more generally directed means of public communication that may not be completely banned in residential areas [Frisby v. Schultz, 487 U.S. 474 (1988)]. Therefore, choice (A) is correct as it comes to the right conclusion and highlights the correct legal issue. Choice (B) is a potentially good answer but certainly it is less precise than (A). Choice (C) is incorrect. For a law that regulates free speech to be declared invalid on its face, it must suffer from one or more of these: (1) “vagueness,” (2) “overbreadth,” (3) “unfettered discretion” in the licensing official. Section 202 does not suffer from any of these. Choice (D) is incorrect. Section 202 is not so vague or overbroad as to be unconstitutional. Alaw is deemed unduly vague if a reasonable person is unable to distinguish what is permitted [City of Chicago v. Morales, 527 U.S. 41 (1999)]. Here, the law is not unduly vague because a reasonable person should be able to determine when picketing is taking place before or about the residence of an individual. A law suffers from overbreadth when it punishes speech that is otherwise protected [Schad v. Borough of Mt. Emphraim, 452 U.S. 61 (1981)]. Here, a person has limited constitutional right of free speech before or about a person’s private property, especially that of a home.
- A state imposes a graduated income tax upon net income calculated under federal law. Section 22 of the city’s reform act of 2010, which is to become effective on January 1, 2010, provides: “Any parent or guardian financially responsible for the education of his ward may claim a direct tax credit against his income tax liability equal to the amount of tuition of a child or children of high school age who does not attend a public high school.” Other provisions define “tuition” very broadly but limit the credit to tuition paid to schools meeting the educational requirements as determined by the state.On December 1, 2009, the parents of two students who attend a public high school in the state sue for a declaratory judgment and injunction in federal court, claiming that Section 22 violates the establishment clause of the First Amendment. The federal court will most likely(A) dismiss the action, because the suit involves a political question.(B) dismiss the action, because the plaintiffs lack standing as taxpayers.(C) dismiss the action, because the issues are not ripe.(D) dismiss the action, because the issues being litigated are moot.
- (C) Since the reform act will not become effective until January 1, 2010, the court will dismiss this action for lack of ripeness. It is crucial that a person asking the court to hold a statute unconstitutional be able to show, not only that the statute is invalid, but also that “he has sustained or is immediately in danger of sustaining some direct injury” as a result of its enforcement. Here, the parents must wait until after the reform act has gone into effect before initiating suit. Choice (A) is incorrect. The court cannot hear the case because the cause of action lacks ripeness. Had the case been ripe, the court would not have been precluded from hearing the case because there is no political question at issue on these facts. A political question is defined as an issue that has been committed to another branch of government. Choice (B) is incorrect because taxpayers generally do not have standing to sue as such [Lujan v. Defenders of Wildlife, 504 u.s. 555 (1992)]. There is a reference to taxes, but the aggrieved parents are not suing as taxpayers. The aggrieved parents are instead arguing that they will suffer a specific harm because they send their children to public schools and thus cannot take advantage of the tax credit. Choice (D) is not the best choice. Article Ill states that the jurisdiction of federal courts only extends to “cases or controversies.” That means federal courts generally may not hear cases that are moot, in other words, those cases where the issues being litigated no longer affect the litigants. For example, there is a probLem of mootness in a suit to overturn a criminal conviction after the convicted dies. In this case, the issues are not moot since the aggrieved parents might suffer harm from the statute.
- A state passed a statute stating that it will pay for one-half of the tuition for any student attending a private school, whether religious or secular, as long as the school meets the educational requirements established by the department of education.The parents of two students who attend a public high school in the state sue for a declaratory judgment and injunction in federal court, claiming that the state statute violates the establishment clause of the First Amendment. Assume that the federal court decides to hear the case on its merits.Which of the following is the state’s LEAST persuasive argument for sustaining the validity of the statute?(A) The state statute benefits the parents or guardians of all the children in private schools, religious and nonreligious.(B) The primary effect of the state statute is not to advance or inhibit religion.(C) The administration of the state statute by the department of education does not foster excessive governmental entanglement with religion.(D) The state statute is a valid exercise of state regulatory action in the field of education.
- (D) Choice (D) is the least persuasive argument because it does not address the establishment clause issue clearly raised by the statute, which forms the basis for the parents’ claims. Even if the statute were a valid exercise of state regulatory action in the field of education, the issue of a potential establishment clause violation would remain. Choices (A), (B), and (C) are correct applications of the law and address the claim raised by the parents. Choice (A) would tend to support the view that the state statute does not violate the establishment clause, since both religionists and nonreligionists can benefit. Choice (B) is a plausible argument insofar as both religionists and non-religionists can benefit from the state statute. Finally, choice (C) is a plausible argument insofar as the government is not required to make determinations about what is a religion.
