P/E Flashcards
In Texas, when must a party may move to dismiss a cause of action on the ground that it has no basis in law or fact?
Within 60 days of service of the pleading containing the challenged cause of action.
What is required for severance of a cause of action to be proper?
1) the severed causes of action must be ones that would be the proper subject of a lawsuit if separately asserted;
2) the severed causes of action must not be so intertwined as to involve identical facts and issues,
3) there must be more than one cause of action.
T/F Severance requires the causes of action to involve the same defendants.
F
How many hours of oral depositions does each side get to examine and cross-examine the other side in a Level Two Discovery Plan?
50 hours
In a Level Two Discovery Plan, how many written interrogatories is each party allowed?
25 written interrogatories.
Which level of discovery is the default?
Level Two Discovery Control Plan is the default level.
Requirements for a jury trial?
make a written request for a jury demand and pay the jury fee.
What is the catch all to deny a jury trial?
An untimely jury demand may not be permitted if it is too much of an inconvenience to the trial court.
“No-evidence” motion for summary judgment burden
The burden is on the non-moving party to produce sufficient evidence to demonstrate that a genuine issue of material fact exists.
What’s the Batson challenge burden on the moving party?
The moving party must establish a prima facie case that the other party has exercised peremptory challenges to exclude persons from the jury on the basis of race, ethnicity, or gender.
After the burden shifts in a Batson challenge, what must the nonmovant show?
A legitimate, non-discriminatory explanation for the challenges.
When must a party invoke the rule?
Only before trial.
What is the jury polling process?
During polling, the court reads each jury question and the corresponding answer, calls the name of each juror, and asks if that is the verdict of that juror.
Is a submission of an improper question in the jury charge sufficient to warrant a new trial?
No.
If a motion for new trial is not filed, how many days will the trial court have from the date the judgment is signed to grant a new trial or vacate, modify, or reform the judgment on its own accord?
30 days.
When must the notice be filed when there is no motion for new trial?
30 days.
When is an interlocutory appeal available?
An interlocutory appeal is available as a matter of right from the denial of a free-speech summary judgment.
Identify five forms of discovery permissible under TRE.
Requests for admission, disclosure, and for production or inspection of documents or tangible things; requests and motions for entry upon and examination of real property; interrogatories to a party; oral or written depositions; and motions for mental or physical examinations.
When two cases are going on at the same time, what should a party file to terminate the latter filed proceedings?
A plea in abatement.
In Texas, if a party asks for documents in production, how and when should the opposing party respond?
Opposing party must serve a written response within 30 days after it receives service of the production request, responding to the request or stating objections, privileges, or that the documents cannot be located upon a diligent search. Unless a proper objection is made, it must present copies of the requested documents.
When a party is not satisfied with opponent response to requests for production, how can she raise the issue with the court?
Move for an order compelling compliance with the discovery request or apply for the imposition of sanctions, including attorney’s fees, without first obtaining a court order compelling discovery.
If a party fails to set out amount in damages, what should opposing party do?
File a “special exception” in writing, pointing out the particular pleading objected to, and stating with particularity the specific insufficiency.
If the special exception is granted, the pleading must be amended or risk the claim being struck for case dismissed.
For an affidavit alone to show a genuine issue as to any material fact, what must it say?
That the affidavit is based on personal knowledge.
When must a party respond to a motion for summary judgment?
At least seven days before the date of the hearing on the motion by filing affidavits or a written response alleging insufficiency in Santiago’s affidavit.
What must an nonmovant do when challenged under Batson?
Give a race-neutral explanation for the challenges.
When must a Batson challenge be made?
Before the jury is dismissed.
How can a party get out unfavorable evidence before trial?
File a motion in limine requesting that the court exclude reference to the divorce due to risk of juror bias until the admissibility of that evidence can be determined.
An evidentiary objection to relevance can also be made during trial.
What is a test tip for answering conjunction questions?
Carefully read to see if two questions are asked in one sentence
Is habit evidence admissible to prove conduct in conformity with the habit on a particular occasion?
Yes.
Can habit evidence be introduced against a corporation?
Yes.
In Texas, what is privilege for confidential marital communications?
A privilege that can be asserted by either spouse to prohibit the other from testifying, as long as the communication was not made to enable or aid anyone to commit or plan to commit a crime or fraud
What is the rule for information exchanged in mediation?
Information exchanged in mediation is generally confidential and inadmissible in Texas to prove or disprove the validity or amount of a disputed claim.
When must a party object to a jury charge?
Prior to the jury charge.
When a party objects to a jury charge, what else may he do?
Propose alternate instructions to the Court and opposing counsel within a reasonable time after the charge is given to the parties for examination.
When may a Court choose which proposed instructions to give to the jury?
After opposing counsel responds to proposed instructions.
What is a dynamite charge?
When the judge urges the jury to reach a unanimous verdict if at all possible.
What must a judge refrain from doing when issuing a dynamite charge?
Judge cannot comment on the weight of the evidence, urge the jury to vote a particular way, or ask the foreperson for a numercial vote.
When should a Court discharge a jury for gridlock?
Only when it is altogether improbable that its members can reach a verdict.
What may a Court do when a jury’s verdict is defective or incomplete?
Direct it to be reformed, and the jurors will be required to further deliberate to fix the defects.
When should a party argue relevance?
Every time there is an objection about admissiblity of testimony.
What is relevant?
Testimony that makes a fact of consequence in the case more probable than it would be without the evidence.
A search warrant that is not for a DNA specimen must be executed within how many days of issuance?
Three days of its issuance, exclusive of the day of issuance and the day of execution.
What court has jurisdiction over a felony in Texas?
Criminal district court
When is an examining trial permitted?
Only permitted in a felony case before an indictment is returned.
A grand jury indictment may be set aside when an ______ person was pr
unauthorized
T/F insufficiency of the evidence condidered by the grand jury will set aside a gj indictment?
F
Class A misdemeanors subject to jail time may be charged by _____.
information.
What three offenses cannot be charged by information?
Class C misdemeanor subject to jail time, petty crime, felony murder.
Does the court have to give an admonition to a non US citizen that nolo contendere plea may result in deportation?
Yes
Does the court need to give an admonition as to the identity of the witnesses the prosecution intends to call if the guilty plea is not accepted?
No.
If a defendant refuses to enter a plea, what will the court do?
The court will enter a plea of not guilty.
