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.