Pleadings Flashcards
What does an attorney’s signature on a pleading signifiy?
(NO I WED)
He has read it and to the best of his knowledge, information, and belief formed after a reasonable inquiry, he certifies:
1. No Improper purpose
2. Warranted by law
3. Evidentiary support
4. Denial warranted by evidence or lack of information or belief
When a lawyer signs a pleading filed for a client, what does he signify personally? (THIS IS ON EVERY EXAM)
He has read the pleading, and to the best of his knowledge, information and belief formed after reasonable inquiry, the plreading is : not being used for improper purpose, warranted by existing law or non frivolous argument for extension, modification, or reversal or existing law; has or is likely to have evidentiary support; and each denial is warranted by the evidence or reasonably based on lack of information or belief
Your plaintiff in a slip and fall case dies, what must you do in order to move litigation forward and what pleadings must you file?
amend petition to assert survival action and file a motion to have plaintiff’s legal successor substituted to represent the interest of the deceased plaintiff. The motion may be filed ex parte. legal successors are the same survivors designated in 2315.1. Death need not be related to slip and fall.
name three types of exceptions
- declinatory exception: declines jurisdiction of court
- dilatory exception: delay progress of action due to objections to form of proceeding or for more information
- peremptory exception: defeat or dismiss action
discovery shows facts that someone is independant contractor vs. testimony otherwise. what can counsel file to try to terminate litigation prior to trial. also explain what evidence to support termination?
counsel should file for motion for summary judgment asserting no issue of material fact as to liability and he is entitled to judgment as a matter of law since undisputed facts show that homeowner is not vicariously liable for the conduct of roofer. Evidenced by testimony and contract. Burden of proof for homeowner simply to point out there is an absence of factual support for one or more of elements essential to the claim.
support with: affidavits from competent affients with personal knowledge and containing facts admissible at trial. (contract and affidavit of homeowner who signed it in this question, testimoney of homeowner to lack of control over roofer also okay)
reasonable settlement offer is made but refused. client wants settlement, asks if anything can be done to recover costs for defending claim. what can be done?
make a written offer to settle all claims at least 20 days prior to trial and state offer is made pursuant to LCCP art. 970. The offer may be made without admitting liability. If offer is not accepted and final judgment is at least 25% less than the amount of the offer of judgment, the plaintiff must pay defendant’s costs, exclusive of attorney’s fees, incurred after offer was made as fixed by court. This is called a motion for judgment on offer of judgment.
you are deposing employee of defendant, noticing defense makes lengthy objections which may be providing guidance to deponent as to how to answer. are such objections appropriate?
no. the code requries any objection during deposition shall be stated concisely and in a non argumentative and non suggestive manner. it is improper to unduly instruct witness how to answer questions during objections
client says old accountant has helpful documents but wont release. you dont want his testimony, just records. how do you obtain wihtout taking testimoney
if not a party to the lawsuit, serve the accountant with a subpoena duces tecum wherein the court orders her to produce the documents. if accountant is a party to the lawsuit, simply propound a request for production of documents.
is video of half of signing of will, without testators oath shown, admissible as evidence?
no. videor of execution of testatment by testator is admissible as evidence of the mental capacity of testator provided the oath is recorded on the video.
petition for divorce. service of petition within 7 days on wifes brother at his office. She works in same office and lives with him. Was service proper
proper domiciliary service requres service on person of suitable age and discreition at the dwelling house or usual place of above of person to be served. Presumable wife, who works in brothers office, does not LIVE THERE> therefore service was improper
How can you obtain witness testimony of one in texas for louisiana action?
if witness willing to testify but doesnt want to travel, can be taken by phone if all parties agree. If unwilling to testify, can compel by issuance of letters rogatory. Since deposition would take place in TX, texas state law would govern compulsory process to require witness to submit. you would given written notice of deposition to all parties and apply to district court for letters rogatory, addressed to the texas court, requesting appropriate texas court to compel attendance at deposition. may also serve witness with subpoena while temporarily in louisiana.
what are the four methods of taking deposition
oral
phone
electronic means (for these three, parties must agree or must be court ordered)
written questions (answered before an officer)
recorded testimony (sent by mail or courier, officer is custodian)
what are letters rogatory?
used for depositions in another state. procedure: reasonable notice in writing to all parties stating time and place of deposition and names and addresses of deponents, application to court for letters rogatory, letters issued to the appropriate authority in jurisdiction requesting depenent to answer letters rogatory
Just obtained judgment for payment to client. time for suspensively appealing has run, but debtor filed petition for devolutive appeal. client wants to execute on judgment as soon as possible. you know debtor employed and owns car, but nothing else is known. can you execute on judgment. if so, how . if you can, identify two steps to determine what other assets are possessed.
client may execute on judgment once time for taking a suspensive appeal has lapsed. a devolutive appeal does not suspend execution of judgment
to begin execution of judgment, client must file for writ of fieri facias (FIFA) which directs the sheriff to seize and sell debtors property. The sheriff can seize at any time wihtin one year of writs issuance. Must serve notice of seizure and file monnonite notices to all third parties who request.
would you grant a defendants motion ot bifurcate into damages and liability, if it appeared to further the judicial process overall, even if plaintiff refused?
no. a court may order separate trials on issues of liability and damages, in a jury or non jury trial, to simplify the proceedings, permit a more orderly disposition of the case, or other wise in the interest of justice. While all of these conditions may be present, the court can only bifurcate the issues of liability and damages on CONSENT of all parties. Since plaintiff denies, I would deny.
