Louisiana Civil Procedure Flashcards
(216 cards)
1
Q
What can you do when a Defendant does not comply with a judgment against him to do something?
A
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.
2
Q
What is it called and when can someone sue their co-defendant?
A
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.
3
Q
What is the process when someone fails to vacate the premises in an eviction process?
A
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.
4
Q
When a lawyer signs a pleading filed for the client, what does the lawyer signify, if anything?
A
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
5
Q
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?
A
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.
6
Q
What must be filed in support of a summary judgment motion to establish the relief sought?
A
Affidavits that show that the affiant is competent, that the allegations are based on personal knowledge, and attest to facts admissible at trial.
7
Q
Where is venue proper for a partnership?
A
Venue is proper where the Partnership’s principal place of business is located.
8
Q
Where is venue proper for a corporation?
A
Where the corporation has its registered office
9
Q
Where is venue proper for a tort?
A
Where the tort occurred and where the damage was sustained.
10
Q
Where is venue proper for an LLC?
A
The location of the LLC’s registered office
11
Q
When should a peremptory exception of prescription be filed for a tort action?
A
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.
12
Q
How can you revive a money judgment that was recorded in the mortgage records of the correct parish?
A
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.
13
Q
How can you learn from the Judgment Debtor whether someone has assets that could satisfy a money judgment?
A
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.
14
Q
If a judgment debtor has substantial funds in a bank that can pay the outstanding money judgment, what should you file?
A
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.
15
Q
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.
A
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.
16
Q
What must a Judge require from a party asserting a TRO to protect the restrained party?
A
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.
17
Q
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?
A
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.
18
Q
How can you get an advance for a succession?
A
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.
19
Q
What should you file if you believe a lawsuit is improper because there is a mandatory arbitration clause?
A
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.
20
Q
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?
A
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.
21
Q
Where do you file a judicial emancipation?
A
A joint petition between a parent and child for emancipation should be filed in the parish where either the child or parent is domiciled.
22
Q
What is required in a motion for judicial emancipation?
A
- 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
23
Q
What happens in an emancipation proceeding
A
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.
24
Q
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?
A
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.
25
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.
26
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
27
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:
1. 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
2. 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
28
What should you file if venue is improper?
A declinatory exception of improper venue. It must be filed prior to, or on the Answer.
29
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.
30
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.
31
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?
1. 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.
2. 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.
32
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.
33
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.
33
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.
34
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.
35
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.
36
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.
37
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.
38
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.
39
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.
40
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.
41
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.
42
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.
43
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.
44
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.
45
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.
46
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.
47
What are the three kinds of exceptions?
Declinatory exceptions
Peremptory Exceptions
Dilatory Exceptions
48
What is a declinatory exception?
A declinaotry exception is used by the executor to decline the jurisdiction of the court.
49
What is a peremptory exception?
Peremptory exceptions are used to defeat or dismiss the action.
50
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.
51
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.
52
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.
53
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.
54
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.
55
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.
56
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.
57
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.
58
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.
59
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.
60
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.
61
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.
62
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
1. there is a community of interest between the parties: arise out of similar facts or legal commonality
2. Each action is within the jurisdiction of the court and venue is proper
3. The actions are mutually consistent and employe the same form of procedure
63
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.
64
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
1. A description of the property, the price, and conditions of the proposed sale
2. The tutor's recommendation that the sale be approved because of its FMV proposed price
3. 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.
65
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.
66
How can you serve a subpoena on a physician who has had difficulty scheduling a deposition?
1. Personal service by the sheriff of the parish where the action is pending
2. A non-party physician can also be served by making personal service on any clerical employee of the doctor
3. 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.
67
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
1. is not being used for any improper purpose such as to harass, delay or increase costs
2. is warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of an existing law
3. has or is likely to have evidentiary support
4. each denial is warranted by the evidence or reasonably based on lack of information or belief
68
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.
69
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
70
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
71
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.
72
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.
73
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.
74
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.
75
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.
76
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.
77
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.
78
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.
79
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
80
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.
81
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.
82
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.
83
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.
84
What are the four types of discovery?
Request for production of documents
Interrogatories
Depositions
Request for admissions
85
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.
86
Client visits you after receiving an executory process seizure notice regarding a home recently purchased. The seizure was issued by seller's lender who alleges seller has not fulfilled his payment. Client thought the sale proceeds would be used to pay off outstanding loan. What can client do to stop the executory process?
When a mortgagor has sold property to a third party and that property is subsequently seized pursuant to executory process, you can seek injunction on the grounds that the debt has been extinguished.
You need to file a petition for an injunction in the court where the executory process is pending.
Since executory process proceeds rapidly, you need to request a preliminary injunction to arrest the seizure and sale of the home, in which case the hearing must be held before the sale.
Security is not required when one of the grounds for the injunction is that the debt secured by the mortgage has been extinguished.
87
What do you do if you want to challenge the validity of a testament.
Prepare an opposition to the petition for probate.
88
What are the pleadings and who bears the burden of proof in a contest over the validity of a testament?
First, there is an opposition to the petition to probate. Then a responsive pleading may be filed by summary proceeding.
At a contradictory trial to probate the testament, the proponent bears the burden of proving the authenticity of the testament and its compliance with all the formal requirements of law.
89
You have cases for the same client for the same incident in division A, B, C, and D of a parish courthouse. What can you do?
Consolidate the actions. Separate actions may be consolidated when there are common issues of law and fact involved in each case.
The motion must be filed in the division where the first filed suit is pending and if consolidation is ordered, the other pending cases will be transferred to that division.
If a trial date has already been set, you must also prove that consolidation is in the interest of justice.
90
The judge is not going to give the jury charge you submitted and you believe is vital for the consideration f your client's position. How can you complain about it and preserve the issue for appeal?
You must object before the jury retires to consider the verdict or immediately after the jury retires, specifically your complaint that these two charges were improperly omitted from the instructions. If you object before the jury retires, you will be allowed to make the objection out of the hearing of the jury.
91
How do you serve someone under the long arm statute?
Either mail the citation and petition by certified or registered mail or actual delivery to the defendant by commercial courier
92
What are potential bases for the assertion of specific jurisdiction under Louisiana's long arm statute?
If the cause of action arose from the activity of contracting to supply in Louisiana,
or if the defective manufacture is an act committed outside of Louisiana but the damage occurred in the state, there would be specific jurisdiction if they regular do or solicit business in Louisiana or derive substantial revenue from its goods used in Louisiana
or a manufacturer of a product which causes damage in Louisiana would be subject to personal jurisdiction if, at the time of sale, the manufacturer could have foreseen or expected its product would end up in Louisiana by reason of its nature and marketing practices.
The exercise must still be constitutional.
93
Your client is served with discovery requests seeking potentially thousands of documents from your client that you think are neither relevant to the litigation nor reasonably calculated to lead to the discovery of admissible evidence. You further believe that the discovery was propounded to cause your client to incur unnecessary effort and expense. What if anything can you file to restrict the discovery?
You should fine a protective order, which is available to prevent abusive discovery practices which seek non-discoverable information which impose an undue burden or expense upon the party to whom the discovery request is directed.
Available remedies to restrict this particular overly broad request would be to prohibit the request altogether, order that the discovery only be had under specified conditions, or limit the scope of the request.
94
During jury deliberations, the foreperson sent a note to the judge stating that the jury would like to see a transcript of the testimony of the treating physician and his medical records which were admitted into evidence. Defense counsel objects. How should the judge rule?
The trial judge should sustain D's objection with respect to the testimony. If the jury, after deliberations begin, want to review the treating physician's testimony and records, the jurors must be brought into the courtroom where the court may have the testimony read to them after giving notice to the parties.
The court may allow the jury to examine the medical records only in the courtroom or may allow them to take the records in the jury room.
95
You think jury verdict is inadequate given the serious injuries suffered by P. What can you file?
Motion for additur. This is an alternative to a motion for a 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.
96
You want to depose a company about something, but you do not know which officials are most likely to have knowledge on these subjects. What action can you take to obtain the depositions of these officials without knowing their identities?
Take a deposition of an organization by naming the general company in the deposition notice and designating the matters listed in the question as matters on which they would like to depose a representative.
This is called a 1442 deposition.
97
What do you do if the jury has been sworn and accepted, and then you learn of a juror's opinion.
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 taking of the evidence, which has not occurred in this case.
It is too late to use a peremptory challenge which must be made before the jury has been accepted and sworn.
In response to the cause challenge, the court may seek to rehabilitate the juror to determine that he or she can indeed be impartial, as they proclaim to be.
98
What is the delay for requesting service of citation on all named defendants in a civil action? If the request for service of 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 commencement of the action. The action may be dismissed either by the defendant upon whom citation was not timely requested by his filing a declinatory exception of insufficiency of process or by a contradictory motion to dismiss for failure to request timely service to be filed by any other party.
99
What are the four pleadings to which Louisiana code of civil procedure art. 863 applies?
Petitions
Answers
Written motions
Exceptions
100
When can a third party intervene in a lawsuit?
Third parties may intervene in a lawsuit to enforce a right related to the pending suit.
101
P did not request a jury trial, what must D do if they want a jury trial?
D's lawyers must request a jury trial within 10 days after service of the last pleading that raises an issue triable by a jury or the granting of another party's motion to withdraw the jury demand. Since a P did not request a jury trial, D must make their request within 10 days after D files his answer.
The request for a jury trial must be accompanied by a bond or cash deposit in an amount and at a time by the court. Simultaneously with posting bond, D may also have to pay the clerk court jury filing fees as determined by local rules of court.
102
How many interrogatories can you propound without seeking leave of court?
35
103
P has been served with answers. But D wants to amend their answer, how long do they have to do so?
D must amend his answer within 10 days after the original answer has been served.
104
D's lawyer believes these documents are not relevant to the litigation and not reasonably calculated to lead to the discovery of admissible evidence. D also believes that discovery was propounded by P to cause D to incur unnecessary effort and expense. What can D do?
Defendants can file a motion for a protective order showing that P's discovery requests for thousands of documents are unreasonably burdensome and expensive and are intended to annoy and oppress D. Moreover, the information being sought is irrelevant not calculated to lead to the discovery of admissible evidence and, as such, is beyond the scope of discovery.
105
After depositions of P and D, it appears that fault for the rear-end collision is not at issue. What motion can P's lawyer bring to have the judge decide in advance of the trial that D and O are liable for the accident? What should be submitted with that motion? What is the deadline by which the court should render its judgment on the motion?
A motion for partial summary judgment adjudging D and O are liable for the accident.
Plaintiff must file supporting affidavits along with the motion. The affidavit must be made by competent affiants, on personal knowledge, attesting to the facts admissible at trial.
The court must render a judgment within a reasonable time, but no later than 20 days before trial.
106
D and O file an appeal. How many days, from the lodging of the record or return date, whichever is later, does P have to answer the appeal?
P has 15 days from the later of the return day or lodging of the record of appeal within which to answer the appeal.
107
What sanctions may a judge impose, and against whom, for violations of CCP art. 863?
The judge may impose upon the person who made the certification or the represented party, or both, an appropriate sanction, including an order to pay the other attorney reasonable expenses and attorneys fees incurred because of the filing of the pleading.
108
P propounded interrogatories to D. P believed the answers were insufficient or evasive. P filed a motion to compel. The judge granted the motion, giving D 15 days to supplement and completely respond with answers. D has failed to supplement and completely respond. What motion should P file? What orders may the court issue to penalize D for his failure?
P would file a motion for sanctions.
The court may order the imposition of several sanctions against D including: finding the matters or designated facts which were the subject of the interrogatories to be established; prohibiting D from using designated evidence; striking pleadings or rendering a default judgment against D' enter an order treating D's failure to answer as a contempt of court; or require D to pay the reasonable expenses, including attorney's fees, caused by the failure unless the failure was substantially justified or the award of expenses would be unjust.
109
P served D with a request for admission of facts. D denied the facts. P believes the facts are discoverable, are not privileged, and related to the defenses of D. At the trial, P proved those facts and incurred expenses for witnesses and attorneys fees. What motion may P file against D to recover those expenses. What are the four possible defenses of D which would defeat the motion?
P may file a motion for an order requiring D to pay him the reasonable expenses, including reasonable attorney fees incurred in proving at trial the matters denied by D.
The defense to such a motion are that: the requests for admission were held objectionable under art. 1467; the admissions were of no substantial importance; D had reasonable ground to believe he would prevail on the matter; or that there was other good reason for the failure to admit.
110
What motion can you bring to test the expert's qualifications and opinions? What is the time delay for binging the motion? What is the deadline for the judge to rule on the motion?
A motion for pretrial hearing to determine whether the witness qualifies as an expert or whether his methodologies are reliable under art. 702-05 of the code of evidence.
111
What obligations, if any, do the attorneys have as officers of the court?
As an officer of the court, an attorney must conduct himself with decorum consistent with the dignity and authority of the court; treat all participants with due respect; not interrupt opposing counsel or impede orderly judicial business; not encourage or produce false evidence; not deceive the court
112
What are the other methods can you take a deposition?
Depositions by telephone or other electronic means, such as online depositions, are allowed if the parties agree or the court orders it.
113
How many days do you have to serve a motion for summary judgment?
You must file and serve it at least 65 days prior to trial. The motion will be granted if they can show there is no genuine issue of material fact and that they are entitled to a judgment as a matter of law.
114
When must you file an answer?
15 days after service
115
What are the prerequisites to establish in order to maintain the suit as a class action?
1. Numerosity: They must show that the class is so numerous that joinder of all members is impracticable. Impracticable does not mean impossible.
2. Common question of law and fact or fact common to the class.
3. Claims asserted are typical claims of the class.
4. As representative parties, you will fairly and adequately protect the interests of the class.
5. Class may be objectively defined in terms of ascertainable criteria.
Art. 591(B) must be satisfied:question of law and fact common to the case predominate over any questions affecting only individual members and that a class action is the most fair and efficient type of adjudication ; same nucleus of operative facts; concentrate the litigation in this forum where the event took place and where the relevant witnesses are located; pose any extraordinary difficulties in class action management; class action is more fair and efficient judicial mechanism for adjudicating these judgments on liability or damages; rely on the same law for resolution.
116
What result does the striking of class allegations have on the lawsuit?
The lawsuit may continue between the plaintiffs and the defendants
117
Once class relief has been stricken, can you demand to reinstate the class relief?
Yes. The stricken demand for class relief may be reinstated upon a showing of good cause.
118
What are the prescription periods for filing a class action petition?
Liberative prescription is suspended upon the filing of a class action petition.
Prescription begins to run again as to all class members 30 days after notice is given that the class has been dismissed.
119
What are the timing requirements for filing a petition?
You must request service of citation on all named defendants within 90 days of commencement of the action.
You have 21 days after service of the petition within which to file an answer.
You must request a jury trial within 10 days of filing of any pleading that raises an issue triable by jury.
120
There are two lawsuits filed over the same merits. What can you assert to challenge litigating the merits of the second lawsuit?
You should file a declinatory exception of lis pendent. You must assert in the exception that there are two Louisiana lawsuits pending in more than one court on the same transaction between the same parties in the same capacities. The later filed suit will be dismissed and the P will only be allowed to prosecute lawsuit 1.
This is a declinatory exception which must be filed before or in the answer to the second lawsuit.
121
What should you file if you want to inspect someone's property with an expert to make your own determination about the cause of the incident?
You must serve the owner of the land with a request for entry upon land to inspect the property. The request must contain the items to be inspected with reasonable particularity and specify the reasonable time, place, and manner of making the inspection.
122
case proceeds to trial by a jury of 12. Absent a stipulation by the parties, how many jurors must concur to render a verdict?
9 jurors must concur.
123
What is the most appropriate procedural mechanism for a D to use in addressing a petition which requests a specific monetary amount of general damages ina tort suit?
A motion to strike. A motion to strike is teh appropriate mechanism to rid a petitoin of improperly pleaded monetary damages.
124
Lack of procedural capacity, unauthorized use of a summary proceeding, and improper culmination of actions, inlcuding improper joinder of parties are what type of exceptions?
Dilatory exceptions
125
What type of exception is nonjoinder of party?
It is a peremptory exception.
126
What is the standard for granting a JNOV motion?
The judge must view the evidence, including witness testimony, in the light most favorable to the nonmoving party.
127
What is the standard for granting a new trial motion?
The trial judge is free to evaluate the evidence without favoring either party. The judge may draw their own conclusions about witness crediblity.
128
What is the time period for filing a moitin for a judgment not withstanding the verdict? JNOV
7 days from the mailing or service of notice of signing of judgment
129
Can you have a jury trial agianst the state?
Yes. Louisiana Revised Statutes prohibit jury trials agaisnt political subdivisions such as a city, but allows jury trials aginst the state upon request.
130
Does prescription need to be affirmatively alleged?
Yes. It is the only peremptory exception that must be affirmatlively alleged.
131
P has completed the presentation in his case in an action tried to a jury. D believes that, upon the facts adduced during P's case and applicable law, P has shown no right to relief against D and desires to have P's case dismissed without D putting on any evidence. What if anything can be done?
IF the attempt in subpart A fails, what impact, if any does this failure have on the right of D to offer evidence?
Move for a directed verdict on the grounds that P has shown no right to relief.
The standard for granting the motion is that the facts and inferences are so overwhelming in favor of the moving party that reasonable minds could not reach a contrary verdict.
Denial of the motion would not preclude D from putting on evidence in support of his case nor would it preclude the court from granting D a JNOV on the same grounds after verdict is rendered.
132
What obligations, if any, does an attorney have as an officer of the court?
As an officer of the court, an attorney must conduct himself with decorum consistent with the dignity and authority of the court:
-treat all participants with due respect
-not interrupt opposing counsel or impede orderly judicial business
-not encourage false evidence
-not deceive the court
133
When a foreign corporation is licensed to do business is Louisiana, where would venue be proper?
Parish of principal business establishment as designated in the application to do busienss
134
When is the latest date before trial you can file a motion for summary judgment and supporting documents?
65 days before trial
135
When is the latest day before a hearing for summary jugdment that you can file opposition?
15 days before the hearing
136
When is the last day a court can render a judgment on a motion for summary judgment?
20 days before trial
137
P believes that D's expert is unqualified to give expert testimony and that "junk science" is being used. What motion can you file and when?
You file a motion for a pretrial hearing to determine if the expert qualifies as an expert and whether the methodologies are reliable under the Code of Evidence.
The motion must be filed no later than 60 days before trial.
138
Opposing lawyer schedules a time and place for a deposition of a witness but no subpoena was served and the witness does not show up. Your client is annoyed, what can you do?
The subpoena would have compelled the person's appearance at the deposition.
You should move the court to order the opposition to pay reasonable expenses incurred including reasonable attorney's fees.
139
If a civil trial is by a jury of 6, how many of the jurors must concur to render a verdict unless the parties stipulate otherwise?
5
140
If a civil trial is by a jury of 12, how many of the jurors must concur to render a verdict unless the parties stipulate otherwise?
9
141
What steps can someone take to change the venue in a suit which is now pending?
Declinatory exception of improper venue, either with or before their answer or any pleading seeking substantive relief; but not later than the entry of default judgment
142
Plaintiff believes that the trial court's ruling is incorrect and would like to gain a better understanding of the trial court's reasons for decisions beyond their simple statement on the bench. What can P do and when?
Plaintiff must request the court to issue written findings of fact and reasons for judgment within 10 days of mailing the notice of the signing of judgment.
143
Can you appeal a final judgment dismissing a lawsuit with prejudice under res judicata claims?
Yes. Dismissing a suit as to less than all the parties is a partial final judgment. Such partial final judgments are immediately appealable without any designation by the court as a final judgment.
144
D failed to respond to request for discovery after a motion to compel discovery. What should P do? What action should judge order in response? (Describe any correct four actions for full credit)
File a motion for sanctions.
The court may
-deem the matter proved
-exclude D's evidence
-strike pleadings or enter a default judgment against D
-assess costs and attorney's fees against the D or
-order D in contempt
145
A lawsuit for money judgment has been pending against D for 4 years. D recently retained new counsel to defend him in the lawsuit following the untimely death of his prior counsel. In reviewing the file, new counsel determined that discovery was propounded to D at the same time the lawsuit was filed and the discovery has never been answered. No other action or activity has occurred in the case.
What course of action should D take?
D does not to take any action because this case is deemed abandoned because no step in the prosecution or defense of the case has been taken for a period of 3 years.
However, any interested person can move for a formal order of dismissal of an abandoned case if they desire.
146
Client no longer wants to own property in co-ownership with his brother. What type of civil action is available? How would judge rule?
Partition by licitation
The court may order a public auction after advertisements and the proceeds will be divided equally between the co-owners
147
List four bases for which a juror may be challenged for cause.
The juror lacks legal qualification
The juror has formed an opinion or is not otherwise impartial
Relations between the juror and the party or attorney would influence the juror
Juror takes the 5th during voire dire
148
What is the burden to prove minimum contacts?
P has the burden to establish sufficient minimum contacts. If the court finds there are sufficient minimum contacts, the burden shifts to the defendant to show that the assertion of jurisdiction is unfair. In making this determination, the court will consider the burden of D defending a suit in LA, La's interest in the dispute and P's interest in obtaining relief.
149
Following the jury's verdict in favor of P, driver and owner timely file motions for new trial and for judgment notwithstanding the verdict. What are the possible grounds upon which judge should grant a new trial?
What are the standards that the judge should use in analyzing the jury's verdict in order to determine whether to grant a judgment notwithstanding the verdict?
The peremptory grounds for granting a new trial are when the verdict or judgment appears clearly contrary to the law and evidence, discovery of new evidence, and jury bribery or misconduct. Of these, the only ground applicable would be that the judgment is contrary to the law and evidence.
Since all parties objected to the judgment prepared by the judge, presumably, the parties would view the judgment as legally erroneous. The discretionary basis for granting a new trial would likely be futile since judge drafted the very judgment being challenged.
After considering all the evidence in the light most favorable to the non-moving party, if the facts and inferences so strongly and overwhelmingly favor one party that reasonable persons could not reach a contrary result, the court should grant the motion. However, if there is a substantial evidence of such quality and weight that reasonable persons might reach a contrary conclusion, the motion should be denied.
150
A timber company is coming on your land and cutting timber. The company has a deed to the land signed by the clerk of court and record in the Conveyance Records of the parish. What can you file to prevent the company from cutting the timber? When must you file?
What can you file immediately to prevent the logging and transport? What must you show to be successful?
What proceedings may the alleged former owner who sold to the company bring to recognize his claim of ownership in the property?
A mortgage company claims to have a mortgage on the property granted by the former owner. What action can the mortgage company take to protect its interest?
File a petition for preliminary and permanent injunction and a possessory action. A possessory action is used when the P is in possession but is being disturbed. P is in possession of the property and her possession is being disturbed by the cutting of trees. She must prove she had possession the land at the time of the disturbance and that she had quiet and uninterrupted possession for more than a year immediately proper to the disturbance. For injunctive relief, P needs to show that they suffered irreparable injury from the cutting of timber on their property.
P should file a petition for issuance of a temporary restraining order which must assert that they will suffer irreparable harm if he timber company is not enjoined from cutting. Irreparable harm is harm that is incapable of being compensated for by money damages. P's petition must be verified and contain an attorney certification regarding efforts made to provide notice of her intent to seek a TRO in the event she proceeds ex party.
Other owner should file a petition to intervene P's suit against the company in opposing the possessory action. Other owner should file a petitory action via reconvention demand asserting that he is the owner. He must prove he acquired ownership froma. previous owner or by acquisitive prescription.
The proper venue is the parish where the property is situtaed or the parish of the defendant company's domicile. The proper venue for the intervening action is the same (where the action was brought_.
The mortgage company should file a petition to intervene in either P or former owner's claim.
151
When a lawyer signs a discovery response, what do they personally certify?
The lawyer certifies that they have read the request, response, or objection and that to the best of they knowledge, information and belief formed after reasonable inquiry:
-consistent with the discovery rules and is warranted by existing law or a good faith argument for the extension, modification, or reversal of exiting law
-not imposed for any improper purpose such as to harass or increase unnecessary costs
-not unreasonable, unduly burdensome, or expensive given the nature of the litigation
152
What are the mandatory grounds for recusal of a judge from a particular case?
A judge must be. recused when they
-are a witness
-have been employed or consulted as an attorney in the cause or have been associated with an attorney during the latter's employment in the cause and the judge participated in the representation
-is a spouse of a party or of an attorney employed in the cause or the judge's parent, child, or immediate family member is a party or attorney employed in the cause
-is biased, prejudiced or interested in the cause
153
List four reasons for which a court should deny the consolidation of two separate actions for trial.
Cases should not be consolidated if it would: cause jury confusion, prevent a fair trial, give a party an undue advantage, cause prejudice to any party
154
What are the only documents that may be filed in support of, or in opposition to, a motion for summary judgment?
pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, admissions
155
P knows his former accountant has documents that would be helpful, but the accountant will not give P the documents. The accountant will not need to testify. What can P do to get records from accountant?
File a subpoena duces tecum
156
In a jury trial, D believes a third party not in the suit contributed to the accident. D wants jury to measure the fault of third party without naming them in the suit. How can D do this?
At trial, D should file a written request for proposed jury instructions requesting that the jury be instructed to consider the fault of the third party in the comparative fault allocation of fault amongst all persons who contributed to P's harm. Defendant may file these written requests for jury instructions at the close of the evidence or at such earlier time as the court reasonably directs.
157
Landlord owns a house that they rent out monthly to tenant under oral lease. Tenant has not paid for 2 months. What can landlord do to reclaim possession of the house?
Because tenant violated lease, their right to occupancy ceases.
Landlord should deliver written notice to tenant to vacate the premises within 5 days of delivery of the notice. If tenant fails to vacate, landlord should serve a rule to show cause to deliver the premises. This rule will be heard no earlier than the 3rd day after service of the rule to show cause.
158
Landlord has received a judgment from the court which orders the tenant evicted. Tenant was served with the judgment but refuses to move out. What is the next step?
If tenant fails to vacate within 24 hours of judgment, the court will issue a warrant directing the sheriff to take possession.
159
Devolutive Appeal
There may be execution of the judgment during the time the appeal is pending. No bond is required.
-within 60days of: the expiration for filing or ruling ona motion for new trial or JNOV
160
Suspensive Appeal
This type of appeal will suspend the execution of judgment during the time the appeal is pending Posting of a bond is required.
-within 30 days of the expiration or ruling on a motion for new trial or JNOV
161
How can you make the clerk of court process your suit?
File a writ of mandamus which will direct the clerk of court to perform his ministerial duty to process the suit.
162
What is the time limit for filing a motion for a pretrial hearing to determine whether defense expert qualifies?
60 days before trial
163
When can you file a JNOV?
7 days after clerk mails notice of final judgment
164
When must you answer interrogatories?
within 30 days of service of the petition
165
Small succession definition
Under $125,000
Sole heir is decedent or surviving spouse
Intestate
No debts
Prove by affidavit in mortgage records
166
How do you inform the opposing party of a deposition you have scheduled?
You must give reasonable notice in writing to all parties in the case. The notice must state the date, time, and place for taking the deposition and the name and address of the deponent.
If the testimony is recorded by other than stenographic means, the manner of recording, preserving and filing the deposition must be noted in the the notice.
167
When will a court issue a subpoena?
After being presented proof of service of the notice of deposition
168
Can a non-party be compelled to a deposition?
Yes, if they are subpoenaed. Otherwise, they are not obligated to attend.
169
When can you add a third party demand?
When it is not barred by prescription at the time the main demand was filed
AND
must be filed within 90 days of the main demand
170
What do you need for a jury trial?
One plaintiff alleges at least 10k, other random requirements
171
How can you serve an LLC if there is a registered agent?
You must request the sheriff in the parish where service is to be made to personally serve the agent of process. It must be made within 90 days of filing suit.
172
What steps must you take to permit an expert to inspect a boat?
Request for production of things that sets forth:
-the items to be inspected describing each with particularity
-specify a reasonable time, place, and manner of making the inspection and performing the related acts
The owner of the thing must respond within 30 days of being served stating whether you permit or object to the request
173
What should you file if you want to prohibit an inspection of a thing?
A protective order prohibiting the inspection by showing that the request is oppressive, or will cause undue burden or expense.
You must do this within 30 days of being served the request.
174
When must a contradictory hearing about an expert's qualification happen?
A contradictory haring on the motion must be made at least 30 days before trial.
175
During the course of trial, what obligations do the attorneys have as officers of the court?
As an officer of the court, an attorney must conduct herself with
-decorum consistent with the dignity and authority of the court
-treat others with due respect
-not interrupt opposing counsel or impede proceedings
-not knowingly encourage or produce false evidence.
Violation is punishable as a contempt of court.
176
What is a motion for judgment on the pleadings?
It can be filed by any party after the answer has been filed.
The court will consider the pleadings and all of the allegations not denied and all of the Defendants allegations as true in deciding the motion.
177
What type of exception is a no cause of action?
Peremptory
178
How can you avoid having to respond to an interrogatory for business records?
If the answers to the interrogatory can be obtained from the business records they can specify where to find the records if the burden of doing so is substantially the same.
You must do this within 30 days.
179
What expenses are related to a motion to compel to answer an interrogatory?
Expenses including attorney's fees associated with the motion may be awarded to the prevailing party unless the court finds that the motion or opposition thereto was substantially justified or circumstances make the award of expenses unjust.
180
What should be in a request for production of things?
It should describe the times to be inspected with reasonable particularity.
The owner of the thing must serve written response within 30 days of being served with the request stating whether the inspection will be permitted or objecting to it.
181
Does Plaintiff get a copy of the exam report after a request to compel to submit to an exam?
If the Plaintiff requests a copy of the exam report, they must get it.
However, by doing so, they have waived any past or future patient-physician privileged pertaining to their disputed condition and will then be required to send defendant reports of any exams, past or future, for the same conditions.
182
Where may a witness be subpoenaed for a deposition?
In a parish where they reside or are employed. The subpoena must be served within a reasonable time before the deposition.
183
What should you do as the plaintiff if you want to add a codefendant and you have already gotten an answer?
You must obtain leave of court to amend. Amendments are freely granted by the court unless it would prejudice the Defendant because it is late in the litigation.
Consider prescription.
184
When must you disclose the identity of the retained expert and provide expert report?
At least 90 days before trial
185
When must the defendants disclose the identity of their rebuttal experts and provide rebuttal expert reports?
Within 30 days after Pam provides her expert report
186
What are the form requirements for a testifying expert's report, and what information must be included within the report?
The testifying exert's report must be written and signed by the expert. The report must include the expert's opinions and reasons therefor and any data or information upon which those opinions are based. The report must include exhibits, the expert's qualifications, their publications of the last 10 years, their compensation for providing expert services, and all cases in the preceding 4 years in which they have testified.
187
What is a concourses proceeding?
One where a company that has money or property may deposit it in the registry of the court while the claimants assert competing claims.
The venue is the tract of land the parish is situated.
The court would determine who is rightfully entitled to the disputed funds and order payment to that person.
Defendants are the two claimants.
188
It has been over four weeks since all defendants were properly served. One defendant has filed nothing in the suit. In order to advance the suit and bring it to its conclusion, what can P do?
Obtain a default judgment against the D's that failed to timely answer.
Once the applicable time period elapses, the plaintiff may have a default judgment entered by presenting a prima facie case. The Plaintiff may submit proof by affidavit unless the court desires to hear oral testimony.
A final default judgment will be entered and is considered a final judgment the same as if it was tried on the merits.
189
What is the venue for enforcing a foreign judgment?
The parish where the debtor is domiciled or the. parish where the immovable property is located.
190
What is irreparable harm?
Harm that cannot be compensated by money damages?
191
When should cases not be consolidated?
If they would cause the jury confusion
If they would prevent a fair trial
If they give a party an undue advantage
Cause prejudice to any party
192
How many days do you have to deliver written notice to vacate?
5 days
193
What can P do to further object to a witness and prevent them from testifying?
File a supervisory writ in the appropriate court of appeal seeking review of the trial court's judgment denying P's motion to exclude the witness from testifying and staying the trial until the court decides the writ.
The writ must be filed within a reasonable time set by the trial court, not to exceed 30 days from the date of the trial court's judgment
194
What are the peremptory grounds for granting a new trial?
-Verdict is clearly contrary to the evidence
-Discovery of new evidence could not have been obtained with due diligence before or during trial
-Jury bribery or misconduct
195
What is the judgment debtor rule?
Filing and serving a motion for examination of the judgment debtor.
The court will order the judgment debtor to appear with their financial records no less than 5 days from service and he will be questioned under oath.
196
What is the appropriate procedure for pursuing a succession in a small succession without a judicial opening of a succession?
Execute an affidavit setting forth the date of death, that they died intestate, and marital statute.
The affadavit must also include:
-names and addresses of heirs and relationship
-description and value of the estate property
description of heirs' interest in property inherited
-affirmation by heir-affiant that he/she accepts the succession
-affiant of correctness
A multiple original of the affidavit will be sufficient authority for the payment or delivery of property. The multiple original must also be filed in the conveyance office where immovable property is located.
197
When is the reply memorandum to an opposition for summary judgment due?
5 days before the hearing
No additional documents may be filed with the reply.
198
P wants to have a judgment modified or revised. D has already perfected their suspensive appeal. What can P do?
They must file an answer to the appeal within 15 days from the later of the return day or lodging of the record of appeal
199
If a civil trial is by a jury of 6, how many must concur unless the parties stipulate otherwise?
5 unless stipulated otherwise
200
It has been 6 months since the clerk of court mailed to all parties notice of the signing of a money judgment in favor of P against D. Has taken no action in the suit since that time. Plaintiff is aware that D owns a tract of immovable property in the parish of the judgment.
What action may P take to enforce the jdugment against the immovable property owned by D?
A petition for a writ of firer facias (FIFA) directing the sheriff to seize and sell the tract of immovable property in teh parish where the property is located.
Pursuant to the writ, the sheriff would seize the proeprty and make a return to the clerk within 1 year of issuance of the writ. Sheriff would notify D of the sezuire and send Mennonite notices to any inferior mortgage holders on the seized tract who requested notice in the mortgage records.
Notice of the sale of this immovable must be published in 2 advertisements, the first 20 days before the sale and at least 7 days before the sale.
The tract will be appraised unlesss appraisal was waived and the first sale will be held at which the bid must be at least 2/3 of its appraised value. IF not, a second sale must be held which the property can be sold for whatever price it may bring as long as it is enough to cover the costs of the sale and pay off superior creditors.
The sheriff will then distribute the proceeds paying the highest-ranking creditors first and pass the act of sale.
201
When can you make an incidental demand?
When it is not barred by prescription because it was not barred at teh time the main demand was filed
And
It is filed within 90 days of service of the main demand
202
Plaintiff has learned that judgment debtor has in a local bank more than sufficient funds to pay all of the money owed to P. Briefly explain what P must file so that P can have her judgment satisfied.
Plaintiff may garnish the bank funds under a writ of fire facias. P should file a petition for garnishment in the parish where the local bank may be sued under art. 42 or 77 only.
P should serve the citation, petition, garnishment interrogatories and notice of seizure on teh bank garnishee.
Local bank will have 30 days to answer the interrogatories.
Once the bank admits it has the Judgment Debtor's funds, the court will order the bak to deliver the funds to the sheriff.
203
A woman and her minor daughter are each 1/2 owners of a tract of land in La. The woman has been approached by someone who has made an offer to purchase the land. She believes the offer is a good deal for both her and the minor child. What further steps must she take to have the authority to sell her minor child's 1/2 interest in the home?
She must file a petition to have herself appointed as tutor for her minor daughter.
The petition should be filed int he parish of her domicile if she is the surviving or custodial parent or where her minor child resides. If she has joint custody, she must petition jointly for appointment as co-tutors in the court where the divorce or judicial separation was granted or where the daughter is domiciled or resides.
If appointed tutor, she will have to take an oath, and cause an inventory to be taken or have a notary prepare a detailed descriptive list of daughter's property.
204
Judgement in favor of P and against D has been rendered. 3 months later, D learns about the jdugment, even though he never received a citation for, or a copy of P's petition.
Upon investigation, D learns that a parish deputy delivered the citation and petition to a neighbor rather than to anyone residing in D's home. What action should D take?
D should file an action for nullity for vices of form which include a judgment rendered agaisnt one, like D, who was never properly served with citation and petition.
The action should be filed in the trial court that rendered the judgment and may be brought at any time and asserted collaterally.
205
What should you file if there is a court action that might change the title to immovable property?
A notice of pendency of action with the Recorder of Mortgages in the parish of the immovable.
The written notice should be signed by P or his attorney stating the court, title, docket number, filing date, and object of the demand in the lawsuit.
This notice will give third parties notice of P's pending suit.
206
During the jury trial, testimony of P's treating physician was presented to the jury by a pre-trial video deposition. The transcript of the deposition testimony was admitted into evidence, along with treating physcian's medical records.
During jury deliberations, the jury foreperson sent a note to the judge sitting they would like to see the transcript of the testimony of treating physcian and his medical records. D objects.
How should trial judge rule on D's objection. What should the judge do in response?
The trial judge should sustain the objection, at least with respect to the testimony. If the jury, after deliberations begin, wants to review the treating physician's testimony and records, the jurors must be brought into the courtroom where the court may have the testimony read to them after giving notice to the parties.
The court may also allow the jury to examine the medical records only in the courtroom or may allow them to take it into the jury room.
207
P believes D's security for a suspensive appeal is insufficient or invalid. What can they do?
P can challenge the sufficiency of the D's suspensive appeal bond by ruling D into the trial court to show cause why the bond should not be decreed insufficient or invalid.
If the alleged insufficiency is based on insolvency of a surety, D has the burden of proving solvency.
208
A judgment has been rendered holding the security insufficient or invalid. What can D do to correct the defects?
D can furnish a new or supplemental bond with a new or additional surety within 4 days of the judgment holding the security insufficient.
209
When is service proper?
Personal service requires tendering process to the person to be served.
Domiciliary service requires service on a person of suitable age and discretion at the dwelling house or usual place of abode for the person to be served.
210
Long Arm Statute specific jurisidction
-Where contracted
-The thing caused damage in LA and the Manufacturer does or solicits business in LA or derives substatial revenue from its good used in LA
-Manufacturer which caused damage in LA could have foreseen product would end up in LA by reason of its nature and marketing practices
THEN International Shoe: Fair and minimum contacts
211
After service has been made, what must the other party file int he records to prove service?
An affidavit of the individual who either
1. Mailed the process to them by registered or certified mail, address to D with sufficient postage affixed and the date of mailing and attaching the return receipt to the affidavit
2. used a commercial courier to make delivery showing the name of the courier, the date and the address at which the process was delivered and attach the couriers information for delivery
3. Actually delivered process to the D
212
Defenses to overcome prescription to add a party
1. Relation back: amended claim adding a party will relate back to the date of the original petition if it arises out of the same conduct, transaction or occurrence
2. Is the party is solitary obligor and both share the responsibilities. Suits against a solidary obligor filed in a court of competent jurisdiction and venue interrupts prescription
213
What are the 5 prerequisites to a class action?
1. Class is so numerous that joinder is impracticable (Numerosity)
2. Common questions of law and fact to the class
3. claims asserted are typical claims of the class (Typicality)
4. Representatives will fairly and adequately protect interests of class
5. Class may be objectively defined by ascertainable criteria
AND art. 519(B)
-question of law or fact common to the class predominate over any wuestions affecting individual members
-fair and efficient judicial mechanism for adjudicating claims
-nucleus of operative fact
-desirable to concentrate litigation
214
How can a stricken demand for class relief be reinstated?
For good cause
215
How do you count days for prescription purposes?
Do NOT include legal holidays (which include weekends)
