Last Push Rapid Fire MBE Subjects (Civil) Flashcards
What does FRCP stand for?
Federal Rules of Civil Procedure
FRCP governs the procedures for civil proceedings in United States district courts.
What is the time frame for amending pleadings after an original complaint is filed?
21 days after service of the answer or FRCP 12 motion
This allows a party to amend their pleading without needing to seek permission from the court.
When can a party amend their pleadings as a matter of course?
Once
This is typically allowed within a specified period after the original complaint or response.
What is required to amend pleadings to add issues tried by consent?
Consent of the opposing party or court’s permission
This ensures that all parties are in agreement regarding the amendments made to the pleadings.
What is the significance of amending pleadings in the context of trial?
It allows for the inclusion of issues that were actually tried, even if they were not originally part of the pleadings
This can impact the outcome of a trial by ensuring all relevant issues are considered.
What is compulsory joinder?
A requirement to join additional parties in a lawsuit to prevent the court from granting incomplete relief to existing parties or prejudicing absent persons’ interests
It also aims to avoid subjecting existing parties to multiple or inconsistent obligations.
What is permissive joinder?
The ability to join additional parties in a lawsuit if claims by or against the person arise out of the same transaction or occurrence and a common question of fact or law will arise
This is governed by FROP 20.
What is the significance of jurisdiction in a lawsuit?
Jurisdiction is essential as it determines the court’s authority to hear a case and the subject matter involved
In the context, jurisdiction is referenced as ‘creservo’.
Fill in the blank: Compulsory joinder is necessary to prevent _______.
[incomplete relief]
It ensures that all necessary parties are included to address the full scope of the issues.
True or False: Permissive joinder is mandatory for all parties involved in a lawsuit.
False
Permissive joinder allows for the option to join parties, not a requirement.
What can happen if a party is not joined in a lawsuit?
The existing parties may face multiple or inconsistent obligations
This underscores the importance of compulsory joinder.
What does FROP stand for in the context of joinder?
[Federal Rules of Procedure]
Specifically, it refers to the rules that govern the joinder of parties in federal courts.
What is a deposition?
A written or oral examination of a party or witness under oath
Depositions can be used to question witnesses and their answers may be used at trial if inconsistent.
How many depositions can be taken per party?
10 per party
This limit applies regardless of the number of parties involved in the case.
What are interrogatories?
Written questions served by one party on another party that inquire about any facts, opinions, and contentions within the scope of discovery
Interrogatories are a primary method to ascertain facts and information that might lead to other evidence.
What is the limit on the number of interrogatories that can be served?
Serve up to 25
This limit is set to manage the scope and complexity of discovery.
What is the due date for written responses to interrogatories?
30 days from service
This timeframe allows the receiving party adequate time to formulate their responses.
What is a request for production?
A request served on a party to produce and allow inspection of documents, electronic information, tangible items, or land
There is no limit on the number of requests for production that can be made.
What is the due date for written responses to requests for production?
30 days from service
This ensures timely access to the requested items.
What are requests for admission?
Requests served on another party to admit the truth of facts within the scope of discovery
There is no limit on the number of requests for admission that can be made.
What is the due date for written responses to requests for admission?
30 days from service
This allows the responding party sufficient time to verify and respond to the requests.
What is a physical or mental examination?
An examination of a party ordered by the court or agreed upon by the parties if the conditions are controversial
These examinations are typically used to assess the physical or mental state relevant to the case.
What is the main benefit of using interrogatories?
They are simple and inexpensive
Interrogatories are considered the most efficient way to identify facts and potential evidence.
True or False: A subpoena is a written court order that compels a person to appear in court or produce documents.
True
A subpoena can be used alongside other discovery methods to ensure compliance.
Fill in the blank: Interrogatories are primarily used to _______.
identify facts and lead to other evidence
This method is crucial for gathering information that may support a party’s case.
What is the rule number that governs the discovery of expert materials?
FRCP 26(b)(4)
FRCP stands for Federal Rule of Civil Procedure.
Under what circumstances are facts known or opinions held by a nontestifying expert discoverable?
• Relate to court ordered physical/mental examination
• Exceptional circumstances make it impracticable to obtain information by other means
Are drafts of expert reports and disclosures discoverable?
No
What type of communications between attorney and testifying expert are discoverable?
• Communications relating to expert’s compensation
• Communications identifying facts, data, or assumptions provided by attorney
What is the general principle regarding the discoverability of materials held by an expert witness expected to testify at trial?
They are discoverable with two exceptions:
• Drafts of expert reports or disclosures
• Privileged attorney-expert communications
Fill in the blank: All attorney-expert communications are privileged unless they relate to the expert’s _______ or identify facts, data, or assumptions provided by the attorney.
[compensation]
What discovery methods can parties use to obtain nonprivileged information?
Various methods, including requests for production
What criteria must nonprivileged information meet to be discoverable?
It must be relevant to any claim or defense and proportional to the needs of the case.
What is the role of the pharmacist in this case?
The pharmacist was hired by the competitor’s attorney to examine the case and testify as an expert at trial.
What did the attorney provide to the pharmacist after reading her draft report?
The attorney provided additional facts and data that were missing in the draft.
Why is the email not considered a privileged communication?
The pharmacist relied on the facts and data provided in the email to revise her report.
What must the attorney do regarding the email?
The attorney must produce the email.
What are interrogatories?
Interrogatories are a discovery request in which a party serves written questions on another party that inquire about any matter within the scope of discovery.
Can interrogatories be served on a nonparty such as an expert?
No, interrogatories may not be served on a nonparty such as an expert expected to testify at trial.
Are the contents of the email discoverable through interrogatories served on the pharmacist?
No, the contents of the email are not discoverable through interrogatories served on the nonparty pharmacist.
Are drafts of expert reports discoverable?
No, drafts of expert reports are not discoverable.
What are the two exceptions to attorney-expert communication privilege?
- Related to the expert’s compensation
- Identify facts, data, or assumptions provided by the attorney that the expert considered or relied on in forming his/her opinions.
True or False: All attorney-expert communications are privileged.
True
What is a crossclaim?
A claim for relief asserted against a coparty, e.g., a defendant against a codefendant.
Crossclaims arise in the context of multiple parties in a lawsuit.
Are crossclaims compulsory or permissive?
Permissive.
Crossclaims are not mandatory and can be asserted at the discretion of the party.
Under what condition can a crossclaim be asserted?
If it arises from the same transaction or occurrence as another claim in the lawsuit.
This requirement ensures that the claims are related and can be efficiently handled in the same legal proceeding.
In the example, what is the relationship between the first driver’s claim and the bicyclist’s claims?
Both arise from the same accident.
This connection allows the first driver to assert a crossclaim against the second driver.
True or False: A crossclaim can be made against any party in a lawsuit.
False.
A crossclaim can only be made against a coparty.
Fill in the blank: A crossclaim is asserted against a _______.
coparty.
This term refers to another party involved in the same legal action.
What standard does a federal appellate court apply when reviewing a district court’s discretionary certification order authorizing a class action?
Abuse of discretion standard
What are the four prerequisites for proper class action certification?
1) Numerosity 2) Commonality 3) Typicality 4) Adequacy of representation
What is a prejudicial risk in the context of class action certification?
A risk of (1) inconsistent decisions regarding the parties or (2) impairing absent class members’ interests
What defines a common question type of class action?
Common questions of law or fact predominate over individual questions and a class action is the best method to resolve the dispute
What is meant by final equitable relief in class action certification?
Injunctive or declaratory relief that is appropriate because the opposing party’s actions generally apply to the whole class
Is a certified ‘final equitable relief’ class action valid if it seeks incidental monetary damages?
Yes, if the damages flow from liability to the class and do not require individualized determinations
Is a certified ‘final equitable relief’ class action valid if it also seeks individualized monetary relief?
No, it is invalid
What was the conclusion regarding the district court’s certification of the couple’s suit as a ‘final equitable relief’ class action?
The district court abused its discretion in certifying the suit
True or False: A class action can be certified if it primarily seeks individual monetary relief.
False
Fill in the blank: A class action is valid if it satisfies four prerequisites and is one of the following types: prejudicial risk, common question, or _______.
[final equitable relief]
What is a preliminary injunction?
A temporary court order that commands or prohibits certain actions while the case is pending before the court.
Who does a preliminary injunction bind?
- The parties to the case
- Those parties’ officers
- Agents
- Employees
- Attorneys
- Any person in active concert or participation with the aforementioned persons
True or False: A preliminary injunction is a permanent court order.
False
Fill in the blank: A preliminary injunction is issued while the case is _______.
[pending before the court]
What can a party use during discovery to obtain nonprivileged information?
Methods such as request for production
Discovery allows parties to gather evidence relevant to their claims or defenses.
What are the two requirements for obtaining nonprivileged information during discovery?
- Relevant to any party’s claim or defense
- Proportional to the needs of the case
What type of information generally cannot be obtained during discovery?
Privileged information, including work product
Work product includes materials prepared by or for an attorney in anticipation of litigation.
What are the two categories of work product?
- Ordinary
- Opinion
What does ordinary work product contain?
Factual information related to the case
Example: A document containing a witness’s statements.
What does opinion work product contain?
Attorney’s mental impressions, conclusions, opinions, or legal theories
Example: A document containing the attorney’s trial strategy.
Is opinion work product discoverable?
Almost never discoverable
Under what conditions can ordinary work product be discoverable?
- Substantial need for the materials
- Cannot obtain the information without undue hardship
Fill in the blank: Ordinary work product is only discoverable if the requesting party shows a substantial need for the materials and cannot obtain the information without _______.
[undue hardship]
What is an example of undue hardship in obtaining ordinary work product?
The witness dies before the requesting party can interview him/her
What is the purpose of a motion for a court order under FRCP 35?
To request a mental or physical examination based on good cause.
What must a court order specify for a mental or physical examination?
Time, place, manner, conditions, scope, and person performing the exam.
What happens when a party requests and receives the examination report?
The examined party waives any privilege concerning testimony about their condition.
What must the party who sought the examination do after delivering the report?
Request and receive previous reports of the examined party’s condition.
Fill in the blank: A party’s _______ condition must be in controversy for an examination to be ordered.
[mental or physical]
What is an example of good cause for requesting a mental examination?
The information sought cannot be easily attained by other means.
True or False: Requirements for examination under FRCP 35 are unnecessary if parties stipulate to the exam.
True
What is a key factor that validates a court order for examination?
The party’s mental or physical condition is the subject of a claim or defense.
What must the examiner’s report include?
Detailed findings such as diagnoses, conclusions, and test results.
What is the Federal Rule of Civil Procedure abbreviated as?
FRCP
What is indicated by a claim of post-traumatic stress disorder in a lawsuit?
The woman’s mental condition is in controversy.
What condition does the woman claim to suffer from?
Post traumatic stress disorder.
Why is there good cause for a mental examination?
The man likely cannot obtain information about her true mental condition by other means.
Which court may order the woman to undergo a mental examination?
The federal district court in State B.
Is the examining psychiatrist entitled to receive the woman’s prior psychiatric records before conducting the examination?
No.
When must the woman’s prior psychiatric records be disclosed to the man?
If he requests them after the woman requests and receives a copy of the psychiatrist’s report.
Does the party to be examined have an absolute right to choose the examiner?
No.
Who may choose the examiner for the mental examination?
The party requesting the examination.
What happens if the examined party has a valid objection to the chosen examiner?
The court will appoint the examiner.
What are the three requirements for a court to order a physical or mental examination?
- The party’s mental or physical condition is in controversy.
- The motion for the order is based on good cause.
- The order provides notice specifying the time, place, manner, conditions, scope, and person to perform the exam.
What is the scope of discovery?
Any nonprivileged matter that is relevant to claim or defense and proportional to needs of case
Discovery refers to the pre-trial phase in a lawsuit where each party can obtain evidence from the other party.
What must the producing party do to protect privileged matter?
Withhold the information and expressly claim privilege while describing the nature of the undisclosed information
Privileged matter is information that cannot be disclosed in court due to legal protections.
What can a producing party do after production of privileged information?
Promptly notify the receiving party of disclosure and provide basis for privilege
This process helps to maintain the confidentiality of privileged information even after it has been inadvertently disclosed.
What must the receiving party do upon notification of inadvertently disclosed privileged information?
Promptly return, sequester, or destroy original and copies
This action is crucial to prevent further unauthorized access to privileged information.
Fill in the blank: The scope of discovery includes any _______ matter that is relevant to claim or defense.
nonprivileged
True or False: The producing party can simply disclose privileged information without claiming privilege.
False
The producing party must expressly claim privilege and describe the nature of the undisclosed information.
What does the producing party need to provide when claiming privilege after production?
Basis for privilege
This helps clarify why the information should not be disclosed further.
What must the receiving party do to manage inadvertently produced privileged information?
Take reasonable steps to retrieve information already disclosed
This may involve actions such as notifying others who may have accessed the information.
What must parties automatically disclose during discovery?
Certain information through required disclosures
This includes pretrial disclosures that contain specific information.
What information is included in pretrial disclosures?
- Name, address, and phone number of each witness
- Designation of witnesses whose testimony will be presented by deposition
- All documents and exhibits expected to be offered as evidence
Witnesses must be separately identified as those expected to testify at trial and those who may be called if needed.
When must pretrial disclosures be disclosed?
At least 30 days before trial
This allows for timely preparation and objections.
What is the timeframe for objections to the use of deposition testimony, documents, or exhibits?
Within 14 days after the disclosures
Any objection not made within this time is generally waived.
What are the exceptions to waiving an objection not made in time?
- Excused by the court for good cause
- Based on relevance
This allows some flexibility in the objection process.
What did the homeowner do regarding the deposition testimony?
Timely disclosed 45 days before trial
The homeowner attached the deposition transcript to the disclosure.
What action did the company take regarding the deposition testimony?
Untimely objected 21 days after the homeowner’s disclosure
The objection was based on hearsay, not relevance.
What conclusion did the court reach about the company’s objection?
The company waived its objection
The court should not hear the merits of the objection due to the untimely nature.
True or False: A court may set different deadlines for parties to make pretrial disclosures.
True
This indicates that courts have discretion in managing discovery timelines.
What does FRCP 26(b)(4) govern?
The discovery of expert materials.
What type of expert opinions are not discoverable?
Nontestifying expert opinions unless related to court-ordered examinations or exceptional circumstances.
What is the general rule for facts known and opinions held by a testifying expert?
They are generally nonprivileged and discoverable.
Under what circumstances can communications between attorney and expert be discoverable?
If they relate to expert’s compensation or identify facts, data, or assumptions considered by the expert.
What is discovery in the context of a lawsuit?
The pretrial phase during which parties obtain nonprivileged information relevant to claims or defenses.
What are the two criteria for information to be discoverable during the discovery phase?
- Relevant to any party’s claim or defense
- Proportional to the needs of the case.
Fill in the blank: Information held by an expert witness expected to testify at trial is generally _______.
nonprivileged and discoverable.
What are drafts of expert reports and disclosures considered in terms of discoverability?
Not discoverable.
True or False: All information from nontestifying experts is discoverable.
False.
What exceptional circumstances may allow for the discovery of nontestifying expert information?
Circumstances that make it impracticable to obtain information by other means.
What happens to discoverability if a party dies?
Information may become discoverable if they cannot be evaluated.
What power does Article I grant Congress?
The broad power to tax and spend for the general welfare
This power is subject to certain limitations as outlined in the Tenth Amendment.
Is Congress’s power to tax unlimited?
No, it is not unlimited.
The Tenth Amendment places restrictions on this power.
What does the Tenth Amendment prohibit Congress from doing?
Imposing federal taxes on states that discriminate against them or unduly interfere with essential state functions.
Essential state functions include activities such as public schools and state parks.
What types of federal taxes are states immune from under the Tenth Amendment?
Nondiscriminatory federal taxes that apply to the public and private sectors and do not interfere with essential state functions.
This means that taxes must not favor or discriminate against state entities.
Is a federal sales tax that applies to private and public owners of mineral springs discriminatory?
No, it is nondiscriminatory.
It applies equally to all entities selling mineral water.
Does the federal sales tax unduly interfere with essential state functions?
No, it does not.
Selling mineral water is considered a business action, not a traditional government action.
What is likely the court’s stance on the action regarding the federal sales tax?
The court is not likely to dismiss the action.
This is due to the tax being nondiscriminatory and not interfering with essential state functions.
