Louisiana Civil Procedure Flashcards
What can you do when a Defendant does not comply with a judgment against him to do something?
File a writ of distringas
A writ of distringas orders a defendant to do an act, other than delivery of a thing, if they refuse to comply with a court order.
What is it called and when can someone sue their co-defendant?
A co-defendant can assert a cross-claim against a co-defendant if the demand arises out of the transaction or occurrence that is the subject matter of the original action.
What is the process when someone fails to vacate the premises in an eviction process?
The client may serve a rule to show cause to deliver to the premises.
The rule to show cause will be heard no sooner than the third day after service.
If tenant fails to vacate within 24 hours of judgment, the court must issue a warrant directing the sheriff to take possession. THe Sheriff can break down the door, if necessary, and there is no suspension appeal unless tenant contested the rule and posted an appeal bond within 24 hours of the judgment of eviction.
When a lawyer signs a pleading filed for the client, what does the lawyer signify, if anything?
When a lawyer signs a pleading for a client, he is certifying that he has read the pleading and to the best of his knowledge, information, and belief formed after a reasonable inquiry, the pleading:
- is not being used for any improper purpose such as to harass, delay, or increase costs
- is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law
- has or is likely to have evidentiary support
- each denial is warranted by the evidence or reasonably based on lack of information or belief
If you represent an insurance carrier and after depositions, you are certain that the insurance policy excludes this type of claim. What can you file on behalf of Insurer to attempt to extract Insurer from litigation prior to trial?
Insured can file a motion for summary judgment based on its claim that there is no genuine issue of material fact regarding the policy’s coverage and that the Insurer is entitled to a judgment dismissing it from the case as a matter of law.
While the Insurer does bear the burden of proof regarding the policy’s coverage at trial, Insurer’s burden on the motion only requires it to show that there is no factual support for any one element of the employer’s cross claim.
If insured fails to produce factual support sufficient to meet his burden of proof at trial on the cross-claim, there is no genuine issue of material fact for the court to decide and the summary judgment motion will be granted.
What must be filed in support of a summary judgment motion to establish the relief sought?
Affidavits that show that the affiant is competent, that the allegations are based on personal knowledge, and attest to facts admissible at trial.
Where is venue proper for a partnership?
Venue is proper where the Partnership’s principal place of business is located.
Where is venue proper for a corporation?
Where the corporation has its registered office
Where is venue proper for a tort?
Where the tort occurred and where the damage was sustained.
Where is venue proper for an LLC?
The location of the LLC’s registered office
When should a peremptory exception of prescription be filed for a tort action?
When it has been over a year since the injury, the cause of action has prescribed unless the claim was timely filed in a court of competent jurisdiction and venue.
How can you revive a money judgment that was recorded in the mortgage records of the correct parish?
The plaintiff can file an ex parte motion to revive the judgment in the court and suit in which the judgment was rendered. The filing of the motion to revive interrupts the ten year prescriptive period. The motion must include an affidavit of plaintiff stating that the original judgment has not been satisfied. Service and citation of the motion is not necessary.
How can you learn from the Judgment Debtor whether someone has assets that could satisfy a money judgment?
File a motion for examination of the judgment debtor which may include a request that the judgment debtor bring financial books and records to the examination.
The motion must be filed in the court which rendered the judgment.
If a judgment debtor has substantial funds in a bank that can pay the outstanding money judgment, what should you file?
You should file a writ to fieri facias. Plaintiff should file a petition for garnisment in the parish where the bank may be sued.
Plaintiff serves the citation, petition, garnishment interrogatories, and a notice of seizure on the bank garnishee.
The bank will have 30 days to answer the interrogatories.
Once the Bank admits it hast the judgment debtor’s funds, the court will order Bank to deliver the funds to a sheriff.
What action can you bring for a noise complaint? What would you assert in the pleadings and what must you establish to obtain the relief sought.
File a temporary restraining order (TRO) which must assert that the client will suffer irreparable harm if injunctive relief is not granted.
Irreparable harm is harm which is incapable of being compensated for by money damages.
Client’s petition must be verified and contain an attorney certification regarding efforts made to provide notice to the loud party.
What must a Judge require from a party asserting a TRO to protect the restrained party?
Judge may require the party asserting a TRO to furnish security in an amount sufficient to indemnify the restrained party for any losses or damage incurred as a result of the wrongful issuance of the TRO.
If a party can prove that they were not loud enough to issue a TRO, what should they file to obtain resolution without waiting for trial?
The party can file a motion to dissolve the TRO upon two day’s notice to the party that filed the TRO. The court will hear the motion as expeditiously as justice may require.
How can you get an advance for a succession?
Seek an interim allowance for the maintenance during the administration of the succession. If the succession is sufficiently solvent, the heir would be entitled to a reasonable periodic allowance for his maintenance, provided that the court concludes that such an allowance is necessary and the advances are within the amount eventually due to them.
Heir may compel such payment by contradictory motion against the succession representative. Notice of the filing of a petition requesting authority to pay an allowance or of a contradictory motion to compel such payment must be published once and state that any opposition must be filed within 10 days of the date of publication.
What should you file if you believe a lawsuit is improper because there is a mandatory arbitration clause?
They could file
1. either a dilatory exception of prematurity or a motion to stay the proceedings in the trial court pending arbitration and
2. a motion to compel arbitration
In each pleading, assert that any disputes arising from the contract must be resolved by arbitration as is required by the contract.
If a trial court rejects an argument that the lawsuit should go into arbitration because there is a mandatory arbitration clause, what can you do?
Since a decision by the trial court rejecting the argument is an interlocutory judgment rather than a final judgment on the merits, an appeal of that decision is not available.
You can seek a review of the trial court’s ruling by filing an application for supervisory writ in the appropriate State Court of Appeal alleging the trial court erred.
Where do you file a judicial emancipation?
A joint petition between a parent and child for emancipation should be filed in the parish where either the child or parent is domiciled.
What is required in a motion for judicial emancipation?
- The child’s name, domicile, age, and current address
- Why good cause exists for the emancipation
- Whether they are requesting a limited judicial emancipation and the effects of majority they are seeking to confer upon the child
- A descriptive list and location of the child’s property
What happens in an emancipation proceeding
The hearing is a summary proceeding in which the child must be present, except for good cause shown.
If it is a joint petition, the emancipation can be granted without a hearing with the consent of the parent, the child, and the court.
A judge sustains the opponent’s objections to a specific line of questioning you intend to cover with your expert witness you believe is crucial to the outcome of the case. How can you preserve your objection so the excluded area of testimony can be reviewed and considered by an appellate court?
No formal exception to the judge’s ruling excluding this evidence is necessary.
Voice your objection to the ruling and make it known that you want to preserve the matter for appeal. This is known as “proffer” or “offer of proof”.
The court will then allow me to pursue the excluded line of questioning with my expert, subject to cross-examination, on the record at a recess or other such time designated by the court or by deposition within 30 days of the exclusion of the end of trial, whichever is later. The excluded testimony will be held inadmissible.
How can you recover if a settlement offer is not accepted but would have been satisfactory compared to the damages?
Motion for judgment on offer of judgment.
Make a written offer to settle all claims at least 20 days prior to trial and state that the offer is made pursuant to La. Code of Civ. Proc. art. 970.
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 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.
Plaintiff must serve written notice that the offer is accepted within 10 days after service of the offer of judgment.
What are the requirements for a detailed descriptive list of succession property?
A detailed descriptive list must
1. be sworn to and subscribed by the person filing it
2. show the location of all items of succession property and
3. set forth the fair market value of each item as of the date of the death of the deceased
How can you enforce a judgment obtained in another state against a Louisiana resident?
There are two options, in both, the venue is the debtor’s domiciliary parish:
- Bring an ordinary proceeding against the Louisiana judgment debtor to have the out of state judgment recognized and made the judgment of a Louisiana court
- Faster option:
Utlize the procedure under the Enforcement of Foreign Judgment Act which requires:
i) annexing an authenticated copy of the judgment to an ex parte petition and filing an affidavit with the last known address of the judgment debtor and judgment creditor
ii) clerk sends notice to the debtor
iii) the out of state judgment may then be executed 30 days after mailing of the notice
What should you file if venue is improper?
A declinatory exception of improper venue. It must be filed prior to, or on the Answer.
How can you serve someone under Louisiana’s Long Arm Atatute?
Mail the citation and petition by certified or registered mail or actual delivery to the defendant by commercial courier.
If the service cannot be made by either of these methods, the court will order service to be made on an attorney at law to represent the non-resident defendant.
How can a lawyer find out if opponent has liability insurance that might provide coverage in the suit?
They can propound interrogatories seeking answers to those questions.
Alternatively, they can serve requests for production of documents asking to produce all copies of all policies that might provide coverage.
Otherwise, they can depose a representative of the company and make inquiries during the deposition.
During voire dire, a juror has an opinion of the defendant but says that they think they could still be fair. What could the defendant do to challenge the potential juror?
- You could exercise a challange for cause based on the juror having formed an opinion in the case or not otherwise being impartial.
–> The court may reject this challenge since the juror asserted that they could nonetheless be fair. The court may seek to rehabilitate the juror and determine that he can be impartial. - Alternatively, the defendant could exercise one of its peremptory challenges to strike the juror. Each side gets 6 peremptory challenges if it is a 12 member jury and 3 peremptory challenges if it is a 6 member jury. No reason needs to be given for using a peremptory challenge.
If you learn of a new witness who was not on the initial interrogatory list?
Generally, there is no duty to supplement discovery responses which were complete when made.
However, one exception to this rule is that there is a duty to supplement regarding the identity of a new witness with knowledge of discoverable matters. Therefore, counsel must divulge the identity of this new witness.
Fraud was not alleged in the answer, yet the defense in a deposition is interrogating with a line of questioning that you believe is an attempt to accuse your client of fraudulent conduct. What should you do?
Object to the line of questioning regarding fraudulent conduct based upon the defendant’s waiver of fraud as an affirmative defense.
Fraud is an affirmative defense that must be pleaded in the answer. Defendant’s failure to include fraud results in its waiver as an affirmative offense. Consequently, defendant is precluded from introducing any evidence of fraud.
Fraud was not alleged in the answer, yet the defense in a deposition is interrogating with a line of questioning that you believe is an attempt to accuse your client of fraudulent conduct. What should you do?
Object to the line of questioning regarding fraudulent conduct based upon the defendant’s waiver of fraud as an affirmative defense.
Fraud is an affirmative defense that must be pleaded in the answer. Defendant’s failure to include fraud results in its waiver as an affirmative offense. Consequently, defendant is precluded from introducing any evidence of fraud.
What is work product?
Writing prepared by a party, in anticipation of litigation, are not discoverable unless denial will cause unfair prejudice, undo hardship, or injustice to the party seeking discovery.
What is proper domiciliary service?
It requires service on a person of suitable age and discretion at the dwelling house or usual place of abode of the person to be served.
What should you file if you believe after a bench trial, that plaintiff has failed to offer evidence to establish her cause of action?
Motion for involuntary dismissal on the grounds that upon the facts and the law, plaintiff has shown no right to relief.
How does a court decide a motion for involuntary dismissal?
The court must evaluate the evidence to determine whether plaintiff proved their cause by a preponderance to the evidence.
Unlike a directed verdict in a jury trial, no special inferences in favor of the plaintiff are permitted.
What can you do if new information is found after a jury verdict?
File a motion for a new trial on the ground of discovery of new evidence which could not have been discoverable with due diligence prior to the completion of the trial.
The motion must be filed within 7 days, excluding holidays, from mailing or service of notice of signing of judgment.
To obtain a new trial based on newly discovered evidence, you need to show that the evidence was discovered after trial and that reasonable diligence was exercised in seeking to discover the evidence.
What is the delay for requesting service of citation on all named defendants in a civil action? If the request of service citation is not timely made, what action, if any, can be taken to obtain dismissal of the action?
Service of citation must be requested on all named defendants within 90 days of the commencement of the action.
The action may be dismissed either by the defendant upon whom citation was not timely requested by his filing a declamatory exception of insufficiency of service of process or by a contradictory motion to dismiss for failure to request timely service filed by either party.
What is a motion for summary judgment?
A motion for summary judgment is based on a claim that there is no genuine issue of material fact regarding the claim.
Who bears the burden of proving a summary judgment motion?
The person who does not have the burden to prove the general claim must only prove the there is an absence of factual support for one or more essential elements of the claim.
You would prove this through offering facts in affidavits which show the affiant is competent, based on personal knowledge, and attest to facts admissible in trial.
What can you do to change forum is improper but answers have already been given?
An exception improper venue is a declinatory exception which must be filed proper to or with the answer.
The only other option is to file a motion to transfer based on forum non convenient. A court may transfer a case to another district court where it might have been brought for the convenience of the parties and witnesses in the interest of justice.
Rule that you cannot lead a witness from an objection in a deposition
The Code of Civil Procedure requires that any objection during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner. While defense counsel 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 these objections.
Most objections are preserved for trial even if not made during the deposition. For example, failing to object to the competency of a witness, relevancy or materiality during deposition does not waive conusel’s right to object at trial.
The only objections which are waived if not made timely at the deposition are those which pertain to errors which could have been cured if the objections were promptly made at the deposition, such as form of the question.
A partner is about to breach the partnership agreement which would cause monetary damages. Can you do anything?
Yes, you can file a declaratory judgment action seeking declaration of the rights, status, and legal relations between the partners as governed by the partnership agreement. Specifically, ask the court to declare that the action contemplated by the Partner violates the agreement.
The availability of monetary damages caused but eh partner’s threatened action does not preclude the availability of declaratory relief and any such declaration would have the force and effect of a final judgment.
What are some factors that a court will consider in a peremptory exception of nonjoinder.
If a party could be deemed necessary for just adjudication, and they do not join, there could be a peremptory exception of nonjoinder.
First, the court must be able to grant complete relief in the party’s absence.
Second, the absence must not impair or impede with the claimants ability to protect their interest in obtaining a judgment.
Third, there must be no risk of the existing parties being subject to multiple or inconsistent obligations.
If the necessary party is not joined, he may be precluded from asserting the rights later.
Defendant requests for a trial by jury in their answer. Nine months after, D files a motion to withdraw its request, which is granted. Can P request a trial by jury?
Yes. Plaintiff may request a jury trial within 10 days of the granting of D’s motion to withdraw its jury demand.
What are the three kinds of exceptions?
Declinatory exceptions
Peremptory Exceptions
Dilatory Exceptions
What is a declinatory exception?
A declinaotry exception is used by the executor to decline the jurisdiction of the court.
What is a peremptory exception?
Peremptory exceptions are used to defeat or dismiss the action.
What is a dilatory exception?
Dilatory exceptions are interposed to delay the progress of an action due to the objections to the form of the proceeding or for more information.
How can you file a petition for interdiction? Where can you file it? Who has the burden?
A petition for interdiction will appoint a curator to manage the affairs of the interdict.
The petition needs to be filed with the parish of the interdict’s domicile and include, inter alia, the proposed curator, why the curator should be appointed, the reasons and extent of the interdiction, and the interdicts living relatives.
The petition must be personally served on the interdict.
If the interdict is unable to appear at court, an attorney will be appointed to represent her.
The hearing or trial will be a summary proceeding and by preference. The petitioner has the burden of proving the necessity of the interdiction by clear and convincing evidence.
Who and what is the burden for an interdiction?
The petitioner has the burden of proving the necessity of the interdiction by clear and convincing evidence.
What type of judgment is one that dismisses one of the defendants to the suit without dismissing the others?
A partial final judgment. When a court dismisses one party from the suit, a final judgment can be rendered and signed by the court without an express designation by the court that this is an appealable final judgment.
What is the delay to file an appeal for a partial final judgment?
The delay to file the appeal begins to run from the date of the mailing of the notice of the judgment.
A suspensive appeal must be taken within 30 days of the time of filing a motion for a new trial or a JNOV.
A devolutive appeal must be taken within 60 days of the time of filing a motion for a new trial or a JNOV.
A motion for a new trial or JNOV must be filed within 7 days, exclusive of holidays of mailing of notice of signing judgment.
Witness lives in Houma, which is 300 miles from Bossier Parish where lawsuit is pending. Can witness be compelled to testify in Bossier parish?
The witness may be subpoenaed to provide testimony at the trial. Any witness in a civil case who resides or who is employed in the state may be subpoenaed and compelled to attend trial wherever held in the state.
However, if the witness resides more than 25 miles from the trial venue, plaintiff must deposit with the clerk of court sufficient funds to cover witness’ traveling expenses to and from the court at a rate of 20 cents a mile, a witness fee of $25 a day and hotel and meal expenses at a rate of $5 a day.
Can an attorney representing a client be deposed?
Usually not, this would likely be testimony privileged under attorney-client communications.
No attorney of record representing the plaintiff or the defendant may be deposed except under extraordinary circumstances and then only by order of the district court after contradictory hearing.
When is a suit abandoned?
When there has not been any step in the prosecution or the defense of the case for three years. Abandonment is effective without a formal order, but client could file an ex party motion to dismiss on grounds of abandonment and the court will enter a formal order of dismissal.
What is a motion of additur?
It is an alternative to a motion for new trial, on the issue of quantum, when the verdict is clearly contrary to the weight of the evidence and a new trial could be granted on that basis alone.
If a Judge decides to increase the jury award, what are the procedures that Judge must utilize to grant the increase? What is the legal name given to such an increase?
Additur - Quantum must be clearly separable from other issues of the case. Defendant must consent to additur as an alternative to a new trial. If additur is entered, then the court will reform the jury verdict in accordance with the motion.
When should a JNOV motion be granted?
A JNOV should be granted when the facts and inferences, considered in the light most favorable to the opposing party, point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not find for the opposing party.
When should a motion for a new trial be granted?
The trial judge is free to evaluate the evidence without favoring either party. He may draw on his own inferences and conclusions and may also evaluate the credibility of the witnesses.
How can you challenge the combination of multiple actions in one petition?
You can file a dilatory exception of improper cumulation of actions. Two or more parties may be joined in the same suit as Plaintiffs against a single defendant only if
- there is a community of interest between the parties: arise out of similar facts or legal commonality
- Each action is within the jurisdiction of the court and venue is proper
- The actions are mutually consistent and employe the same form of procedure
How does asserting a later, reconvention demand against a plaintiff with an affirmative defense impact the case?
They can be heard.
While affirmative defenses must be plead in the answer under penalty of waiver, the defendant raised them in a reconvention demand.
If the plaintiff failed to timely objection by a motion or exception, it is deemed as the Plaintiff’s waiver of right to oppose defendant’s belated assertion that the affirmative defenses through the improper vehicle of a reconvention demand. A plaintiff cannot wait until trial to voice their objection.
Second, the plaintiff cannot claim surprise at trail and resultant prejudice. One of the primary reasons for requiring affirmative defenses to be pled in the answer is to avoid surprise to the plaintiff at trial, a circumstance the Plaintiff cannot assert if it was in the reconvention demand.
What must a tutor do to allow minors to sell their interest in immovable property, assuming the offer is fair?
The tutor must file a petition to set forth
- A description of the property, the price, and conditions of the proposed sale
- The tutor’s recommendation that the sale be approved because of its FMV proposed price
- The written concurrence of the undertutor
The court may require evidence prior to approval. If the under tutor does not occur, the tutor will have to rule the under tutor to court to show while the reccomendation should not be approved.
Since the matter involves sale of the minor’s immovable property, the court may require the tutor to furnish additional security in an amount fixed by the court.
After a three day bench trial, the plaintiff has failed to offer evidence to establish their cause of action. What should you do?
Make motion for involuntary dismissal on the grounds that upon the facts and the law, plaintiff has shown no right to relief.
In deciding a motion for involuntary dismissal the court must evaluate the evidence to determine whether plaintiff proved his case by a preponderance of the evidence. Unlike a direct verdict in a jury trial, no special inferences in favor of the plaintiff are permitted.
How can you serve a subpoena on a physician who has had difficulty scheduling a deposition?
- Personal service by the sheriff of the parish where the action is pending
- A non-party physician can also be served by making personal service on any clerical employee of the doctor
- If the sheriff is unable to make service after 10 days and diligent effort, a private person who is not a party may be appointed by the court to make service.
When a lawyer signs a pleading filed for a client, what does the lawyer certify personally, if anything?
When a lawyer signs a pleading for a client, he is certifying that he has read the pleading and to the best of his knowledge, information, and belief formed after a reasonable inquiry, the pleading
- is not being used for any improper purpose such as to harass, delay or increase costs
- is warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of an existing law
- has or is likely to have evidentiary support
- each denial is warranted by the evidence or reasonably based on lack of information or belief
You are preparing for trial and have deposed D’s experts who you believe are not employing the proper methodology that is customarily used by experts in the field. What can you file to challenge their qualifications?
You can file a motion for a pretrial hearing to determine whether the methodologies of defendant’s experts are reliable under the Code of Evidence.
This must be done at least 60 days before the trial. With both parties consent and court approval, the motion can be heard any time before the trial.
What and when must a ruling over a pretrial motion over the methodology of experts be completed?
The ruling must occur at least 30 days before trial and it must recite findings of fact, conclusions of law and reasons for judgment. If taken under advisement, the court must provide these no later than five days after the hearing.
The findings of fact, conclusions of law and reasons for judgment must include:
a) why the evidence is reliable under the Code of Evidence
b) the evidence presented at the hearing
c) whether the experts are allowed to testify
d) the reasons for the decision
Where is venue proper?
In parish where:
the contract is executed
the plaintiff executed the contract
the defendant executed the contract
the registered office of a domestic corporation
work or services under the contract were to be performed
a corporation who supervises performance of the contract has an office
What pleadings must you file for a 102 divorce?
Plaintiff initiates an action for divorce under Civil Code Art. 102 by filing and serving a petition containing allegations of jurisdiction and venue (where either party is domiciled or last matrimonial domicile).
After the appropriate period of living separate and apart has elapsed, plaintiff must file a rule to show cause alleging service of the petition, passage of the requisite time period from service and that the spouses have continued to live separate and apart, verified by an affidavit.
This rule to show cause is then served on the defendant or defendant’s representative, unless service is waived by the defendant.
Plaintiff then files another affidavit, executed after filing the rule, attesting that the parties have continued to live separate and apart since the filing of the petition and that the plaintiff desires to be divorced.
You have been appointed by the Court to represent a defendant in an interdiction action. What responsibilities, if any, do you have in conjunction with this appointment?
The interdict’s court appointed attorney must represent the defendant until discharged by the court. The attorney must personally visit and discuss the case with the defendant, including a discussion of the facts, law, rights, and options of the defendant. Failure to do so may result in sanctions but will not invalidate the proceedings.
Are you required to organize and label responsible documents to a request for a production of documents?
Not necessarily. A party may organize produced documents to correspond with the request or produce them as they are kept in the usual course of business. The responsive documents can thus be produced as is if that is how they are organized in the usual course of business.
Does a party have to answer interrogatories if the answers can be found in business records?
No. Where answers to interrogatories can be obtained from business records of a party, that party can specify where in the records the answers may be found if the burden is substantially similar for both parties and make the records available in lieu of answering the interrogatories.
After the trial record is lodged with appellate court, Plaintiff files a motion in the trial court to tax expert witness fees and other costs of trial to defendant. Can the trial court hear that motion?
Yes. After an appeal has been perfected, the trial court retains jurisdiction to perform certain acts, including the taxation of costs and expert witness fees.
Do you file a motion to test the sufficiency of an appeal bond in the trial court or at the appellate level?
The motion to test the sufficiency of the appeal bond must be filed in the trial court where the bond was set. The trial court set the bond in its order of appeal and the appeal was conditioned upon the posting of adequate security. The trial court also retains jurisdiction to test the solvency of the surety on the appeal bond after the purported perfection of the appeal.
If there is a judgment that the appellate bond is insufficient, what happens?
Within 4 days, exclusive of holidays, of the judgment holding the original bond insufficient, defendant can furnish a new or supplemental bond with a new or additional surety. The underlying suspensive appeal will then be allowed to proceed.
You represent an insurance company in a jury trial. After the Plaintiff rests their case, you believe they failed too offer evidence necessary to establish their cause of action. What do you do?
Since this is a jury trial, at the close of the Plaintiff’s case, I can make a motion for a directed verdict due to insufficient evidence by plaintiff to establish a prima facie case. In deciding the motion for directed verdict, the court should grant it if the evidence presented points so overwhelmingly in favor of defendant insurance company that only one result is possible. In considering that motion, the court must view the facts and evidentiary inferences in the light most favorable to the plaintiff insured.
What must be included in a tort petition?
Petition for damages which includes a caption and sets forth in numbered paragraph his allegations.
The petition must also set forth the names and domicile of the parties and all causes of actions arising out of, and the material facts of the incident.
It has to be signed by the attorney, designate an address for receipt of service, and concluded with a prayer for relief
What type of judgment is a denial of an exception improper venue? And how can you seek appellate review?
It is an interlocutory judgment which cannot be appealed.
You can seek appellate review of the ruling by filing a supervisory writ in the appropriate state court of appeal within a reasonable time set by the trial court, not to exceed 30 days from the date of the ruling denying improper venue exception.
Where can suit be brought for a foreign corporation not licensed to do business in Louisiana?
Parish of the plaintiff’s domicile or any parish where the corporation is served. A foreign corporation under a long-arm statute can be served in Plaintiff’s domicile jurisdiction.
When can a defendant require a medical examination?
A defendant can file a motion for an order compelling a medical examination when the plaintiff placed his physical and mental health at issues by seeking damages for physical and emotional distress. Defendant is entitled to have the Plaintiff examined to assess the legitimacy and extent of those claimed injuries. Such an exam may be performed by a medical doctor, vocational rehabilitation expert, or licensed clinical psychologist chosen by defendant’s attorney.
When can each type of exception be plead?
Declinatory and dilatory exceptions must be raised prior to or in the answer or prior to entry of a default judgment. When both exceptions are pleaded, they must be filed at the same time or the late-filed one is waived.
Peremptory exceptions can be pleaded at any time in either the trial or appellate court prior to submission of the case for decision. The appellate court may consider the peremptory exception if proof of the objection appears int eh record.
What are the four types of discovery?
Request for production of documents
Interrogatories
Depositions
Request for admissions
Plaintiff is very poor and lacks the means to pay court costs to prosecute the lawsuit. What if anything can you do to help P?
File a request for in forma parers status in an ex party motion or in the petition.
The request must be accompanied by affidavits of the P and a third person other than the attorney that attest to P’s inability to prepay costs.
The opposing party or the clerk of court may traverse and challenge P’s right to proceed in forma paupers but only one rule to traverse, whether by the adverse party or the clerk, will be allowed.
If granted the P will be relieved of the obligation to prepay costs until the conclusion of the case. An account of costs will be kept by public officers to whom costs are owed and if P prevails, he will be relieved of paying the cost. If P loses, an affidavit by the public officers to whom costs are owed will be filed in the mortgage records and have the effect of a judgment against plaintiff for the payment due.
