LA BAR EXAM CODE OF LOUISIANA CIVIL PROCEDURE Flashcards
What parish or parishes would be proper venue for the lawsuit(s)?
Venue would be proper in the parish where Sample Co., a domestic corporation, has its registered office.
(insert parish)
Venue would also be proper in the parish where damages were sustained and where the wrongful conduct occurred. (insert parish)
Sample Parish is also proper venue because that is the parish where services under this repair contract were to be performed.
Other Parish would also be a proper venue option because it is where defendant Guy resides.
How would defendants challenge improper venue?
What pleading must be filed and when?
Are they likely to prevail?
Defendants should file a declinatory exception of improper venue prior to or in their answer.
Yes. There is no basis for venue in Example Parish, parish of plaintiff’s domicile, without the addition of another joint or solidary obligor such as a long-arm or insurance defendant, in which case plaintiff’s domicile would then be a proper venue under Article 73.
How does a plaintiff request that a judge order the clerk of court to process the suit?
Petition for a writ of mandamus which will direct the clerk of court to perform his ministerial duty to process the suit. Processing suits is a non-discretionary function which the clerk of court is required by law to perform.
What can a plaintiff do if one of the defendants has been served but hasn’t filed anything?
Plaintiff should seek a default judgment against Defendant since his time to answer has long since expired. Once the applicable time period has elapsed, plaintiff may have a default judgment entered by presenting a prima facie case. Plaintiff may do so with affidavit proof and a proposed judgment. The evidence must be admitted into the record but no testimony is necessary unless the court requires it. A default judgment will then be entered and it is a final judgment against Defendant.
If the plaintiff did not ask for a trial by jury in the petition, but defendant wants one later on in the case, what must defendant do to ensure trial by jury?
Defendant should request a jury trial in its answer or within ten days of the filing of any pleadings that raise an issue triable by a jury. It must also file a bond or cash deposit in an amount and at a time set by the court to cover jury costs, as well as pay the clerk $150 as jury filing fees.
How can a defendant add a third party?
A third party petition.
How may the Defendant effect service of process on the third party defendant(s)?
3rd Party Def. must be served under Louisiana’s long-arm statute. This is done by either mailing the citation and petition by certified or registered mail or actual delivery to the defendant by commercial courier. If service cannot be made by either of these methods, the court will order service to be made on an attorney at law (curator ad hoc) appointed by the court to represent the non-resident defendant 3rd Party Def..
What must Defendant file in the record to prove service was made on 3rd Party Defendant Example Co?
Defendant should file into the record an affidavit attaching proof of delivery to defendant along with date, place and manner of delivery.
What pleading must 3rd Party Example Co. file to contest jurisdiction of Louisiana over it in this matter, and when must it be filed?
3rd Party Example Co., should file a declinatory exception of lack of personal jurisdiction prior to or in its answer.
What is a basis for possible jurisdiction over Example Co. when Example Co. does not sell products to any Louisiana distributor?
There are several possible bases for the assertion of specific jurisdiction under Louisiana’s long-arm statute.
First, Tangi Electric contracted with Portland Electric to supply it with these particular electrical breakers in Louisiana and this tort cause of action (products liability) is considered to have arisen from the activity of contracting to supply goods in Louisiana.
Second, the defective manufacture of the electrical breakers is an act committed outside Louisiana causing damage (the fire) within the state and would provide specific jurisdiction if Portland Electric regularly does or solicits business in Louisiana or derives substantial revenue from its goods used in Louisiana. This is a highly unlikely predicate under these facts since the company does not sell to any Louisiana distributors and has no offices in the state. Nonetheless, it does have distribution offices in three contiguous states through which its products likely reach Louisiana residents. The question is whether the collective revenue from those sales is deemed “substantial” enough for jurisdiction.
Third, a manufacturer of a product such as electrical breakers, which caused damage in Louisiana, would be subject to personal jurisdiction if, at the time of the sale to Tangi electric, Portland Electric could have foreseen or expected its product could end up in Louisiana by reason of its nature and marketing practices. Given the geographical proximity of its distributors it may be reasonable to expect its products would reach Louisiana residents even though it had no Louisiana based distributors. This may indeed provide the strongest basis for specific jurisdiction, though some courts and U.S. Supreme Court Justices might require a stronger showing of purposeful availment.
What should the plaintiff do if he would like to know specific information from defendant co. in discovery but plaintiff does not know which official/representative of defendant co. to name in discovery filings?
Plaintiff’s attorney may take the deposition of an organization by naming Defendant Example Co. in the deposition notice and designating the matters on which they would like to depose a representative of Defendant Example Co.. Defendant Example Co. will then be required to designate one or more persons on its behalf to appear at the deposition and answer under oath the questions posed by Plaintiff’s attorney. This is commonly referred to as a “1442 deposition”.
If plaintiff suspects that defendant has a history of ___ what forms of discovery could plaintiff serve to seek that information?
Plaintiff’s attorney can depose Def. and question him under oath about any past faulty repairs of which he is aware; or it can serve interrogatories on Def. Co. seeking answers to those questions.
Plaintiff’s insurance company, after they paid Plaintiff for his damage caused by Def., files an intervention as a plaintiff in Plaintiff’s suit against Def. Co. seeking to recover by way of subrogation the amount Ins. Co. paid Pltff. Defendants filed an exception of prescription. How should the court rule and why?
The court should deny the exception of prescription. The timely filing of Pltff’s suit interrupted prescription on Ins’s subrogation claim seeking recovery of the insurance proceeds paid by Ins to Pltff, its insured. There is only one principle cause of action here damages caused by the negligence of Sample Example Co. and Def. Ins Co.’s subrogation claim is part of Pltff’s cause of action because Ins Co has already paid part of the damages being sought by Pltff and Ins Co is entitled to recover to the extent of those payments as partial subrogee. Therefore, Pltff and Ins Co share the same cause of action and, as such, timely suit by either interrupts prescription for both.
Expert witness reports were exchanged, and the discovery depositions of both experts were taken. Pltff believes that the defense expert is completely unqualified to give expert testimony in the suit and that his methodology is “junk science.”
What motion should Pltff file to test the expert’s qualifications and opinions?
What is the time deadline for bringing the motion?
Pltff can file a motion for a pretrial hearing to determine whether the defense expert qualifies as an expert or whether his methodologies are reliable under the Code of Evidence.
The motion must be filed not later than 60 days before trial.
The deadline for discovery has not passed, and a trial date has not been set. However, Def. Co. believes all the evidence needed to support the dismissal of Pltff Co.’s claim for loss of business income has been fully discovered. What motion must Def. Co. file to seek the dismissal of Pltff Co.’s claim for loss of business income? What showing must Def. Co. make in its motion to prevail? What type of evidence may Def. Co. submit to support its motion. and when may Def. Co. file its motion? Explain fully.
Hy-Cycle must file a motion for summary judgment asserting that based on the pleadings and evidence adduced in the case, there is no genuine issue of material fact left to be decided and that it is entitled to a judgment dismissing it from the case as a matter of law. Hy-Cycle has the burden of proof on the motion.
However, since Eco-Tours has the burden of proof at trial on its products liability claim, Hy-Cycle’s burden on the motion does not require it to negate all essential elements of the claim. Rather, it only has to point out the absence of factual support for one or more elements. Here, the deposition testimony of the engineer who stated under oath that Batty Batteries, not Hy-Cycle, manufactured the battery packs shows that there is no factual dispute as to who the manufacturer was of the component part that contained the defect. Unless Eco-Tours can demonstrate otherwise, it will be unable to prove an essential element of its products liability claim against Hy-Cycle.
In support of its motion for summary judgment, Hy-Cycle may submit pleadings, memoranda, affidavits, depositions, answers to interrogatories, written stipulations, and admissions.
Any supporting affidavits must be made by a competent affiant; on their personal knowledge; and based on facts admissible at trial. Hy-Cycle may file the motion at any time.
The motion and affidavits must be served at least 65 davs prior to trial.
After adequate discovery, the court fixed a trial date. Pltff has now decided to file a Motion for Summary Judgment seeking a determination by the judge that Defendants are liable for the fire and to set the damages.
When is the last day that Pltff can file and serve the motion?
Pltff has timely filed and served the Motion for Summary Judgment. The court has set a hearing date on the motion. When is the latest day before the hearing date when Defendants can file and serve oppositions to the motion?
When is the last day for the court to render a judgment on the motion?
Assume that the judge denied the Motion for Summary Judgment. The case proceeded to a jury trial. At the close of Pltff’s case, Defendants believe Pltff, under the evidence and applicable law, has shown no right to any relief against Defendants and they want to have Pltff’s case dismissed. What should Defendants do to have Pltff’s case dismissed at this point?
The summary judgment motion and supporting affidavits and memorandum must be served at least 65 days prior to trial.
The opposing memorandum and affidavits must be served at least 15 days before the hearing.
Any judgment must be entered 20 days before trial.
Defendants should move for a directed verdict upon the ground that plaintiff has shown no right to relief.
Assume that the jury trial of this matter has begun, and the entire jury has been sworn and accepted. Before beginning of the taking of evidence, a juror says “Example Def. Co. did a lousy job at my home last year, but I think I could be fair to them.” What, if anything, should Example Def. Co. do to have this juror removed?
Example Def. Co. should exercise a challenge for cause based on the juror having formed an opinion in the case or not otherwise being impartial. Although the jury has been accepted and sworn, for cause challenges may be made up to the beginning of the taking of evidence, which has not yet occurred in this case.
Which of the following is not a valid reason to challenge a potential juror for cause?
A juror may be challenged for cause based on any of the following:
(i) the juror lacks legal qualification (18 years old, resident of Louisiana and U.S. citizen, can read and write, and no felony conviction);
(ii) the juror has formed an opinion or is otherwise not impartial;
(iii) relations between the juror and the party or attorney would influence the juror;
(iv) the juror has been on a jury hearing the same case or one arising out of the same facts; or
(v) the juror “takes the Fifth” on voir dire.
Pltff expects a breach of contract soon, and seeks to bring legal action in advance of breach, what is the appropriate legal action, if any, that Pltff should file and what kind of relief should the court provide in conjunction therewith?
Pltff should file a petition for declaratory judgment asking the court to determine the rights and obligations of the parties under the contract. The declaratory judgment is a type of final judgment which likely will preempt a breach based on the disputed terms and avoid a subsequent breach of contract action.
Pltff expects anticipated breach of partnership agreement by one partner. What can he do?
Pltff atty should file a declaratory judgment action on behalf of the client seeking a declaration of the rights, status and legal relations between the partners as governed by the Partnership Agreement. The atty should ask the court to declare that the action contemplated by Partner violates the agreement. The availability of monetary damages caused by Partner’s threatened action does not preclude the availability of declaratory relief and any such declaration by the court would have the force and effect of a final judgment.
When a lawyer has signed a pleading for a client and has filed it with the clerk of court, what does the lawyer certify personally?
When a lawyer signs a pleading, she is certifying that she has read it and that to the best of her knowledge, information and belief formed after reasonable inquiry: (1) it is not being used for any improper purpose such as to harass, delay or increase costs; (2) it is warranted by existing law or by a non-frivolous argument for the extension, modification or reversal of existing law; (3) it has or is likely to have (after investigation or discovery evidentiary support; and (4) each denial is warranted by the evidence or reasonably based on lack of information or belief.
List five obligations an attorney has as an officer of the court.
As an officer of the court, an attorney must:
(i) conduct himself with decorum consistent with the dignity and authority of the court;
(ii) treat all participants with due respect;
(iii) not interrupt opposing counsel or impede orderly judicial business;
(iv) not encourage or produce false evidence; and
(v) not deceive the court.
DEDIT
A lawyer’s signature on a discovery request, response, or objection constitutes a certification by the lawyer of what? Repeat of previous question!
He certifies that he has read the request, response, or objection and that to the best of his knowledge, information and belief formed after reasonable inquiry it is: consistent with the discovery rules and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; not interposed for any improper purpose such as to harass or increase unnecessary costs; and it’s not unreasonable, unduly burdensome, or expensive given the nature of the litigation.
In a civil suit between Def and Pltff, Def failed to respond to discovery propounded by Pltff. Pltff filed a motion to compel discovery. After a hearing on the motion, the judge ordered Def to respond to the discovery within 15 days. Def, after 15 days from the order, has still failed to respond to the discovery. What action should Pltff take?
Pltff should file a motion for sanctions due to Def’s failure to respond to court ordered discovery.
A jury returned a verdict in favor of Pltff and against Def in the amount of $1 million. Def believes that the evidence was insufficient to support this verdict of $1 million in damages and that the verdict was contrary to the law, but Def does not contest the jury’s liability finding.
What are the options for relief from this verdict that Def can file in the trial court?
What are the time delays for filing the options available to Def?
What standards should the judge use in analyzing the jury’s verdict in order to determine the availability of the options asserted by Def?
The judge denied Def’s attempt to obtain post-trial relief. The judge’s order was mailed by the clerk of court to all counsel. What is the last day on which Def can file for a suspensive appeal?
Def has three options. He can file a motion for a judgment notwithstanding the verdict (JNOV), or, in the alternative, a motion for a new trial on the issue of damages alone; or a motion for remittitur to reduce the amount of the award.
The JNOV and new trial motions must be filed within 7 days, exclusive of legal holidays, after the clerk has mailed or the sheriff has served the notice of signing of judgment. For remittitur, the court determines the time within which remittitur will be considered
The standard for granting the JNOV motion is after considering the evidence in the light most favorable to the non-moving party (here it is Pltff), if the facts and inferences so strongly and overwhelmingly favor defendant that reasonable persons could not reach a contrary result, the court should grant the motion. However, if there is substantial evidence of such quality and weight that reasonable persons might reach a different conclusion, the motion should be denied. The standard for granting a new trial motion is similar to that of a JNOV except that the judge is free to evaluate the evidence without favoring either party; the judge may draw his own inferences and conclusions and evaluate the credibility of the witnesses. The court should grant the motion if the verdict on damages is clearly contrary to the law and evidence.
The remittitur should be granted if the damage award is so excessive that a new trial could be granted on that basis alone; and if the issue of quantum is clearly separable from the other issues in the case.
Pltff must consent to a remittitur, as an alternative to a new trial, before it is entered.
Def must file for a suspensive appeal within 30 days of when the judgment denying the JNOV or new trial motion was mailed.
Plaintiff has a money judgment rendered in her favor and against Judgment Debtor for $150,000. The judgment was rendered on March 2, 2010. The judgment has never been collected due to Judgment Debtor’s limited means, but Plaintiff recently learned that Judgment Debtor got “millions of dollars” from a winning lottery ticket.
Plaintiff is concerned that the judgment may soon prescribe due to the passage of 10 years unless she takes certain steps to prevent the prescription. What steps must Plaintiff take to prevent the judgment from prescribing, what, if anything, must Plaintiff file, and where it must be filed?
Plaintiff has taken the proper steps to prevent her judgment from prescribing and now seeks to determine whether Judgment Debtor actually has any assets that might be used to satisfy the judgment. What must Plaintiff file to learn from Judgment Debtor whether he has any assets to satisfy the judgment?
Plaintiff has learned that Judgment Debtor has in a local bank more than sufficient funds to pay all money owed to Plaintiff. Please briefly explain what Plaintiff must file so that Plaintiff can have her judgment satisfied from Judgment Debtor’s bank funds.
Plaintiff may revive the judgment any time before it prescribes which is ten years from March 2, 2010, the date it was rendered. He can do so by filing an ex parte motion in the court and suit in which the judgment was rendered. The filing of the motion interrupts the ten year prescriptive period. The motion must include an affidavit by plaintiff stating that the original judgment has not been satisfied.
File a motion for examination of the judgment debtor, which may include a request that Judgment Debtor bring her financial books and records to the examination. The motion must be filed in the court that rendered the judgment.
Plaintiff may garnish the bank funds under a writ of fieri facias. Plaintiff should file a petition for garnishment in the parish where the local bank may be sued under article 42 only or article 77. Plaintiff should then serve the citation, petition, garnishment interrogatories, and notice of seizure on the bank garnishee. Local bank will have 15 days to answer the interrogatories. Once local bank admits it has Judgment Debtor’s funds, the court will order the bank to deliver the funds to the sheriff.
Def was served with discovery requests seeking potentially thousands of documents that Def thinks are neither relevant to the litigation nor reasonably calculated to lead to the discovery of admissible evidence. Def further believes that the discovery was propounded to cause him to incur unnecessary effort and expense. What can Def file with the court to restrict this discovery, and what standard is the court to apply?
Def can file a motion for a protective order showing that the discovery requests for thousands of documents are unreasonably burdensome and expensive and are intended to annoy and oppress him. Moreover, the information being sought is irrelevant and not calculated to lead to the discovery of admissible evidence and, as such, is beyond the scope of discovery.
Pltff’s atty was deposing a key employee of Defendant in a contract dispute. As Pltff atty proceeded with questioning, Pltff atty noticed that the defense attorney continued to make lengthy objections that were providing guidance and instruction to the witness as to how to answer the questions. Are such obiections appropriate under the Louisiana Code of Civil Procedure? Explain why or why not.
No. Any objection during a deposition must be stated concisely and in a non- argumentative and non-suggestive manner. While defense counsel certainly has the right to make objections, it is improper to unduly instruct the witness as to how to answer the questions during the course of the deposition.
How can Louisiana courts have specific personal jurisdiction over a Sample Co? Explain full.
There are four bases for a Louisiana court to assert specific jurisdiction over Hy-Cycle.
First, Hy-Cycle regularly sells its Ninjango product in Louisiana to Motorcycle Express, a Louisiana based motorcycle dealership. Since the Ninjango is Motor Cycle Express’ bestselling motorcycle, it is reasonable to assume that its purchases from Hy-Cycle occur with some regularity. These sales would easily constitute transacting business in Louisiana.
Secondly, these sales also constitute contracting to supply things in Louisiana.
Thirdly, the defective manufacture of the Ninjango in Michigan would implicate an act or omission outside of Louisiana causing damage (namely, Eco-Tours’ loss revenue from being unable to rent the motorcycles) in Louisiana. Hy-Cycle regularly does business in Louisiana, as described above, and derives substantial revenue from its products being regularly purchased by Motorcycle Express.
Fourthly, Hy-Cycle manufactures a product, the Ninjango, which caused economic damage to Eco-Tours while expecting that its product would be found in Louisiana since it regularly sold its cycles to a Louisiana motorcycle retailer. Since Eco-Tours’ redhibitory defect cause of action arises directly from each of the aforementioned activities of Hv-Cycle in Louisiana, specific jurisdiction would apply.
Moreover, the minimum contacts requirement for long-arm jurisdiction is met by Hy-Cycle purposely directing its business activity to Louisiana residents by registering to do business in Louisiana and regularly selling its products to a Louisiana reseller.
It would also be fair and not unduly burdensome to hale Hy-Cycle into a Louisiana court to defend this action given its registration to do business here. Also, Eco-Tours has a strong interest in obtaining relief in its home state rather than the far more burdensome litigation option of suing Hy-Cycle in the distant fora of Michigan or Delaware.
Prior to deposing Pltff Co. or its employees, Def. Co. would like to have Pltff Co. authenticate a copy of the 2020 Ninjango User Manual and confirm that it received a copy. May Def. Co. accomplish this through written discovery? If so, how? Explain fully.
Yes. There are two written discovery mechanisms by which Def Co. can authenticate a copy of the User Manual. First, it can serve a Request for Production of Documents with Eco-Tours, the plaintiff and a party to the action, asking it to produce an authentic copy of the User Manual in its possession for the 2020 Ninjango motorcycle. Eco-Tours would then have to produce the copy for inspection or copying or object to the request within 30 days after service of the request.
Secondly, Def Co. can serve Eco-Tours with a Request for Admissions asking it to admit or deny that it received an authentic copy of the User Manual. Eco-Tours would then have 30 days after service of the request to respond or object.
Under what circumstances, if any, may Plttf Co. take depositions via remote electronic means?
Depositions by telephone or remote electronic means may be taken if the parties agree or the court orders it.
Pltff co. would like to know about Def. Co’s electronically stored sales information. Can Pltff request this in
discovery?
Business records may be produced in response to an interrogatory. Def. Co. can tell Pltff Co. where to find such information in lieu of answering interrogatories.
There is no requirement to produce the documents in a manner specified in a request. Responsive documents can thus be produced as if that is how they are organized in the usual course of business or produce them to correspond to the RPD.
Pltff filed the same lawsuit in two parishes. Def answered both. Pltff proceeded with one.
The Lawsuit in Parish #1 proceeded to trial on November 2, 2021, and final judgment was entered in favor of Pltff a week later. No appeal was taken.
On January 31, 2022, Pltff propounds discovery to Def. Co. in the Lawsuit in Parish #2. Def. Co. objects on the basis that Pltff obtained a final judgment in the Lawsuit in Parish #1.
Pltff asserts that Def Co. waived its objections by not excepting to the Lawsuit in Parish #1. Is Pltff Co. correct? Are there steps Def. Co. can still take to avoid litigating the claims filled against it in the Lawsuit in Parish #2? Explain full.
Yes, Pltff Co. is correct. Def. Co. waived its objection by not timely filing a declinatory exception of lis pendens. Each of these lawsuits are identical, involving the same transactions between the same parties in the same capacities. However, lis pendens is a declinatory exception which Def. Co. was required to file before it answered the petitions in both suits. It is too late to do so now.
Nonetheless. even though Def. Co. failed to timely object, the first judgment in the Lawsuit in Parish #1 is conclusive, and as such res judicata, as to the Lawsuit in Parish #2. Therefore, Def. Co. can still file a peremptory exception of res judicata in the Lawsuit in Parish #2 lawsuit to have that case dismissed and avoid litigating those claims. Peremptory exceptions can be pleaded at any time, even after the answer has been filed.
Please identify the necessary prerequisites for the Smiths to bring their lawsuit as a class action on behalf of all class members. For each prerequisite, provide a detailed argument describing how the Smiths can meet the prerequisite based on the facts provided.
There are five absolute prerequisites the Smiths must establish in order to maintain their suit as a class action.
First, they must show that the class is so numerous that joinder of all members is impracticable. Impracticable does not mean impossible. However, the thousand or so potential class plaintiffs is likely too large a number to be cumulated in one action. Therefore, the numerosity requirement is likely met.
Secondly, the Smiths would have to establish that there are common questions of law or fact common to the class. This commonality requirement is also likely met since resolution of the home owners’ property damage claims turn on the same legal question of Acme Energy’s and Vessel Systems’ negligence in maintaining or repairing the vessel tank. There are also likely common questions of fact regarding property exposure to and damage caused by release of the caustic material.
Thirdly, the Smiths would have to show that the claims they asserted are typical of the claims of the class. This typicality requirement is also met since the Smiths likely suffered the same type of property damage due to defendants’ negligence as other home owners in Hackberry.
Fourthly, The Smiths must show that as representative parties, they will fairly and adequately protect the interests of the class. This requirement is easily met since Class Counsel has the experience and resources to adequately represent the class.
Fifthly, the Smiths must show that the class may be objectively defined in terms of ascertainable criteria. This requirement is also likely met as considerations such as a property’s distance from the leak, volume of material entering the property, types of property damaged and the types of damage that occurred are objective criteria which can shape and define the parameters of the class so that the court can determine the consistency of the class for purposes of conclusiveness of any judgment.
In addition to the above referenced five absolute prerequisites, the Smiths must show that an additional criterion under Article 591(B) is also satisfied. Here, the most applicable one would be that the questions of law or fact common to the class predominate over any questions affecting only individual members and that a class action is the most fair and efficient type of adjudication. Here, the Smiths’ is the only lawsuit filed for these claims so there is no previously commenced litigation from other putative class members nor is there any other indication under these facts that other class members have an interest in bringing their individual claims in a separate action. It would also be desirable to concentrate this litigation in the forum (Cameron Parish) where the event took place and where the relevant witnesses are located. One thousand potential class members does not pose any extraordinary difficulties in class action management and a class action is likely a far more fair and efficient judicial mechanism for adjudicating these similar claims than would hearing a thousand individual lawsuits which could yield inconsistent judgments on liability or damages. All of these claims rely on the same nucleus of operative facts a faulty pressure valve that caused a toxic substance to leak from the storage tank and damage surrounding properties; and the claims all rely on the same law for resolution the negligence of defendants in the construction or maintenance of the vessel tank and component parts such as the defective pressure valve. Thus, common questions of law and fact likely predominate over individual questions such as the amount of damages or contributing fault of individual members.
What is an important point to remember about venue?
There are many rules to try to remember as to venue. If you get stuck on the exam, a good shorthand way to remember is that venue is usually proper where (i) the property is located, (ii) where the events happened, or (iii) where the defendant is located. That won’t always get you to the correct answer, but the odds are in your favor.
In a computation of time problem - is the day of the act, event, or default counted?
No. But, the last day of the period is counted unless it is a legal holiday.
Def failed to raise the defenses of failure of consideration, mitigation of damages, negligence or fault of the plaintiff and others, duress, error or mistake, estoppel, extinguishment of obligation, illegality, and fraud in Def’s answer. Now, at trial, Def wishes to assert these defenses - can he?
A defendant is precluded from raising an affirmative defense that was not included in the answer to a petition. In other words – When a defendant fails to timely plead an affirmative defense in his answer, he will be prohibited from offering evidence in support of that defense.
Pltff wishes to subpoena information that Def. Co. has exchanged with his attorney? Can he?
Privileged material is not discoverable. Writings prepared by a party, in anticipation of litigation, are not discoverable unless a denial will cause unfair prejudice, undue hardship, or injustice to the party seeking discovery.
Pltff atty is reviewing documents and discovers numerous pre-lawsuit emails between nonlawyer, upper level mgmt employees of the client in which they discuss possible strategies and other issues that may arise in litigation. Can Def. obtain these docs through discovery?
These emails should not be produced because they are privileged work-product. Writings prepared by a party, in anticipation of litigation, are not discoverable unless denial will cause unfair prejudice, undue hardship, or injustice to the party seeking discovery. These emails meet the definition of work-product since they were prepared by upper level employees of a party discussing litigation strategies.
Two weeks before trial, you learn of a new, previously unidentified witness who observed the accident. You do not plan to call this witness at tiral, since her testimony will be adverse to your client’s interests. What responsibility, if any, do you have to divulge the identity of this new witness to opposing counsel?
Generally, there is no duty to supplement discovery responses which were complete when made. However, one exception to the rule is that there is a duty to supplement regarding, as is the case here, the identity off a new witness with knowledge of discoverable matters. therefore, counsel must divulge the identity of this new witness.
You are defending a personal injury case in which you believe the evidence plainly demonstrates that, despite the clear liability of your client, the damages are very minor. You have made what you consider to be a reasonable settlement offer to the plaintiff’s counsel, which has been rejected without counteroffer.
Your client, confident that a trial verdict will not exceed his settlement offer and frustrated with the ongoing costs of defending the claim, asks you if anything can be done to recover those costs from Plaintiff who has refused to respond to your offer. Explain in detail what, if anything, can be done in this situation.
The answer to this question is: Defendant must make a written offer pursuant to Article 970 to settle all claims at least 20 days prior to trial and state that the offer is made. The offer may be made without admitting liability. If the offer is not accepted and the final judgment obtained by the plaintiff-offeree is at least 25% less than the amount of the offer of judgment, the plaintiff must pay defendant’s costs, exclusive of attorney fees, incurred after the offer was made, as fixed by the court.
