Motions Flashcards
When a party can move for summary judgement
no genuine issue as to any material fact
within 120 days of date notice of issue.
Court can set a shorter time
not less than 30 days from date note of issue was filed.
any action except matrimonial.
Pretrial Motion
Motion to Dismiss - grounds
(11)
- Lack SMJ
- Indispensable or Necessary Party
- Failure to state a CoA for which relief can be granted
- Written evidence precludes the claim
- Lack of Capacity to sue
- action pending between parties in another court.
- CoA has been decided or legally barred
- Counterclaim cannot be interposed in the action
- lack PJ
- lack of jurisdiction because of improper service
- party is non-profit corporation and immune to liability
Considerations for Summary Judgement
Standard - no GENUINE ISSUE of MATERIAL FACT.
considering all evidence and inferences in
light most favorable to opposing party,
jury could not possibly find in the opposing parties favor.
Motion for Immediate Trial
issue in motion to dismiss or summary judgement is dispositive
or liability is clear
and only issue is amount of damages,
court can order an immediate trial on issue.
Trial Motions
Motion for Judgement During Trial
judgement as a matter of law
after close of opposing party’s evidence on issue
or any time on the basis of admissions.
must specifically state grounds
Does not waive right to right to jury trial
or right to present further evidence,
even if made jointly by all parties
Med-Mal Action Based on Lack of Informed Consent
Motion for Judgement During Trial
motion for judgement at end of plaintiffs case
must be granted if plaintiff
FAILED to present EXPERT testimony that doctor breached standard of care
Trial Motions - Mistrial
During trial
Prejudicial mistake
so serious it cannot be cured by a jury instruction
prejudiced party can move for mistrial
Must Object at time of prejudicial event
When granted a trial is rescheduled with a new jury
Trial Motions - Motion for a New Trial
made at any time - even during trial
granted if court finds it in the interest of justice
Post Trial Motions
one motion per party attacking verdict
must raise every ground for post trial relief
other objections are waived
made before presiding judge within 15 days of decision
Court has no power after appeal from final judgement is submitted
Post Trial Motions - Trial Not Involving a Jury
upon motion, or by courts own initiative,
the court can set aside decision and:
- Make new findings of fact, conclusions of law, with or without new testimony
- give a new decision and direct entry of judgement
- order a new trial
Additional circumstances where a judge may order a new trial
- Verdict contrary to weight of evidence
- interest of justice
- jury cannot agree
Disclosure - Generally
Called discovery in the federal rules
All matters material (relevant) to any part of case are discoverable unless specifically precluded.
When there is doubt, assuming material and subject to disclosure.
Exemptions from Disclosure
evidence compiled for law-enforcement purposes
Privileged material
Attorney work product
Material prepared in anticipation of litigation is work product
except
(1) substantial need and (2) party cant obtain a substantial equivalent without (3) undue hardship.
Disclosure Devices - Request for Admission of Fact- timing
requested after service of the answer
OR
within 20 days of the service of a summons
not later than 20 days before trial
Request is for admission of fact
moving party reasonably believes no substantial dispute.
Responses to Request for Admission of Fact
Responding within 20 days after service of requestor:
- deny requested admission; or
- States in detail reasons why cant admit them (trade secrets, privilege, etc)
Court allows admissions to be withdrawn or amended as it deems just.
subject to objections to admissibility at trial
Depositions - Examinations Before Trial
deposition of any party allowed once action commences
depositions prior to answer - only on leave of court.
court permission required to depose incarcerated person
Notice of Deposition Requirements
20 day notice for oral deposition
w/o court order or stipulation of parties.
Notice includes
time, location, name and address of each person deposed.
On agreement of the parties or out of state depositions, written questions may be taken
Requirements for conducting Depositions
- Taken before a person authorized to administer oaths.
a. Attorney’s excluded from administering oath.
b. Witness cannot be related to administrator by blood. - Depositions proceed as if in court.
a. Cross examination by adverse party and on direct by own counsel
Basis for Objecting to Depositions being offered into evidence
- Any reason results in exclusion by a testifying witness at trial;
- the form and conduct of the deposition
ie. form of questions or failed administration of oath.
Use of Depositions
impeachment
if current or former party
admissible for any purpose
by party having an adverse interest in matter.
Deposition may be used against a party represented at the time
IF the witness is “Unavailable”
Standard for “Unavailability of a Witness”
Person must be:
- Dead
- More than 100 miles from the place of trial
- Sick
- Imprisoned
- Unable to be compelled to attend through diligence
Interrogatories:
In general, a party may serve interrogatories ,or a demand for particulars, but NOT BOTH. Except for?
- Matrimonial Actions
- negligence - injury to person or property or wrongful death
may not serve interrogatories and conduct depositions of same party without leave of the court.
When Interrogatories may NOT be served on a party
not on defendant before expiration of time for serving responsive pleading except if earlier service is allowed by the court.
Answer to Interrogatories - Requirements
- answer or object in 20 days of service
- answer in writing and under oath.
- question answered separately and fully
- not amended or supplemented except to correct or complete an answer without leave of the court.
Subpoena Duces Tecum - Defined
Demand for production of documents, things for inspection, testing, copying, or photographing.
May be used against non-parties.
used to enter land to survey or inspecting property or something thereon
Subpoena Duces Tecum - Notice Requirements for entry on land
20 days notice
specify date, time, manner, and place of inspection or entry
State property or objects to be inspected
Business Records subject to Subpoena Duces Tecum
Person responsible for maintenance of records must provide affidavit stating:
- He is duly authorized custodian or other qualified witness with authority to make affidavit.
- Records are accurate and are the documents described, which documents are missing and why to the best of his knowledge.
Objection to disclosure of documents subject to subpoena duces tecum
party must respond that document is withheld
explain reason for being withheld
Disclosure of expert witnesses
party must identify each expert witness it expects to call.
- Substance of facts and opinions they will testify
- Qualifications of the expert
- Summary of grounds for experts opinion
Failure to provide proper notice may preclude use of testimony
unless failure is for good cause
Protective Orders
Court may issue on motion or on its own initiative
May prevent the use of a particular disclosure device or discovery of a particular matter or suppress information improperly obtained
Motion to Compel
A party may move to compel compliance with any discovery request
Penalties for Refusal to Comply with Subpoena
- Deciding subject facts in favor of requesting party
- Prohibit designated claim or defenses from producing testimony.
- Striking all or part of the disobedient party’s pleading.
Types of Nonparties the court may require disclosure from via a subpoena
- Person about to depart from the state
- Person outside the state
- Person resides more than 100 miles from place of trial
- unable to attend trial because of infirmity
- Doctor, dentist, or podiatrist who provided treatment to a party
- Any other person provided notice is given and stating reason disclosure is sought
Pre Action Disclosure
Pretrial disclosure is conducted with agreement of parties or court order.
Court order will issue if court finds disclosure is required to aid bringing the action or to preserve evidence.
Request for Physical Examinations
A party can request physical or mental examination of a party where physical condition is specifically IN CONTROVERSY.
Dr Patient privilege is waived if party puts the MATTER IN ISSUE
Experts - disclosure
on request, each party must disclose
Who experts are
qualifications
Substance of facts and opinions and
Summary of the grounds for opinion.
Grounds for Motion to Dismiss that are NEVER Waived
Lack of SMJ
Failure to join necessary party
Failure to state a cause of action
Grounds for Motion to dismiss waived if not brought in answer or motion to dismiss (6) affirmative defenses + 3 others
collateral estoppel discharge in BK' arbitration award res judicata SOL Statute of Frauds
written Evidence Precludes Claim
Lack of capacity
another action pending in another court between same parties
Grounds that must be raised at first opportunty
objection to Personal jurisdiction
ineffective service renders lack of personal jurisdiction
Ineffective Service Objection in your answer
must move for judgement on ineffective service motion within 60 days or it is waived.
