Practice Exams Flashcards
To avoid the entry of default, what must D do?
D must file an answer by 10 AM on the first Monday after the expiration of 20 days from date D was served with process.
The case is currently in the county where P’s principal office is, but the events took place in another county. How can D transfer the case to that other county?
D must file a motion to transfer venue. Under the due order of pleading rule, a motion to transfer venue must be filed before any plea or pleading other than a special appearance. D may file a consolidated response without waiving the venue challenge.
The case is currently in the county where P’s principal office is, but the events took place in another county. Should court grant D’s motion to transfer venue?
Yes. Venue based on P’s residence (principal office) is not available because one of the general venue rules applies. Venue is proper in County because all or substantially all of the events giving rise to the claim occurred there, and the case should be transferred to this proper venue.
P’s original petition fails to state the maximum amount of money P seeks from D. What must D do to get clarification?
D must file a special exception seeking a specification of damages and asking the court to require P to amend so as to specify the maximum amount claimed.
D must object in writing, call for a hearing, and get a ruling on the exception to avoid waiver. Here, the court should order P to replead.
What are the 5 forms of discovery for D to learn more about the facts and circumstances relating to the drill explosion/contract breach claim?
- requests for disclosure,
- requests for production and inspection of document/tangible things,
- interrogatories to a party,
- requests for admissions, and
- depositions.
D served written interrogatories to P by mail. P responded to these in 31 days. Is this timely?
Ordinarily, a party must respond to discovery within 30 days. However, when discovery request is served by mail, three days are added to this period. Because P responded within 31 days, the objections and responses are timely.
P requests documents that D stated were protected by attorney-client privilege. What must be done to protect this privilege?
Because claims of attorney-client privilege are exempted from the withholding statement and privilege log requirements, P’s attorney need not respond to D’s attorney’s letter. But it must prepare itself for a hearing on the matter, or alternatively, it could request a court hearing on the matter itself. No time limits are specified in this rule. At the hearing, the court may take evidence and/or conduct in an in camera inspection of the documents to ensure that the attorney-client privilege claim is valid.
D wants to join a third-party Supplier to the lawsuit with P. What must D do?
D must file a third-party petition and have it served on a newly named third-party defendant. Since more than 30 days have passed since the initial lawsuit was filed, D will also need leave of court to file the third-party complaint.
P requests a deposition of D’s president, who is unaware of the events at issue for the claim. What should D do?
D’s president should file a motion for a protective order. To the motion, he should attach an affidavit stating his lack of knowledge on the blowout. To have the deposition taken, P will have to show that the president’s deposition (at least) is reasonably calculated to lead to discoverable information and that less intrusive forms of discovery are unavailable.
P’s service of interrogatories calls for the opinion of D’s expert witness. What is the result when D objects?
Court should sustain D’s objections to P’s service of interrogatories and request for production on the expert witness. Interrogatories and requests for production may be directed at parties only. The expert witness is not a party and thus P’s discovery requests were improper. Rather, P should have directed requests for disclosure or a request for written reports of an expert to D, or it could have sought the expert’s deposition.
If D does not respond to P’s requests for admission asking D to admit certain facts, what is the result?
The requests are deemed admitted. A matter admitted is conclusively established as to the party making the admission. D may file a motion to withdraw the admission, and the court may allow withdrawal of the admission if D shows good cause and the court finds that P will not be unduly prejudiced.
T/F: Objections to questions are limited to “Objection, form” or “Objection, leading,” but on request by the opposing party, the objecting attorney must provide her reasoning for her objection.
True.
D produces paper reports about the incident but P believes they may be tampered. Can P request for electronic records instead?
P is entitled to discovery of the documents in electronic format. To obtain discovery of electronic information, P must specifically request the information and specify the form in which it wants the information to be produced. D must produce the information that is reasonably available in its ordinary course of business.
How can P strike a juror, who was previously not hired by P?
P can attempt to have the juror excused for cause due to bias. If that challenge is unsuccessful, P can use a peremptory challenge to have the juror excused. To preserve the denial of a for cause challenge on appeal, attorney for Ps must state to the court that they will exhaust all of their peremptory challenges and that after exercising their peremptory challenges, specific objectionable jurors would remain on the jury list.
P calls D’s witness first before laying foundation. D objects. What is the result?
The court should overrule the objection. In a civil case, P may call D adversely at any time during his case in chief. P need not testify before calling D or otherwise lay a foundation for his claims.
During trial, P’s witness states that he heard D’s agent say “x” about the incident. Is this admissible?
Yes. A statement offered against a party is not hearsay if it was made by the party’s employee about a matter in the scope of employment and during the employment relationship.
The court granted D’s motion in limine and instructs P’s attorney not to mention or question the witness about prior incidents related to claim at issue. To preserve evidence, what must P do?
P should request a hearing outside of the presence and hearing of the jury to see if the judge will reconsider his ruling on the evidence. If the ruling is adverse to P, it should make an offer of proof, against outside the presence of the jury, to make a record for appeal of the precise nature of the evidence the trial judge excluded.
D’s attorney thinks that P introduced factually insufficient evidence to prove its claim. What can D do?
To bring the matter to the court’s attention, D should file a motion for a directed verdict. P should respond by stating that the evidence must be viewed in the light most favorable to it, and the moving party must allege that no evidence has been introduced on the issue or that the evidence used to support is conclusive. Since the motion claims that the evidence is “merely” factually insufficient, the motion should be denied and the case should go to the jury.
What should we expect?
Diversity of citizenship, aka no P can be a citizen of any state as any D.
When can a suit be removed from state court?
D has to file a notice of removal w/in 30 days after being served process:
(1) there’s diversity of citizenship + $75K
(2) no D is a citizen of where suit is file
What’s the main method to get PJ?
Minimum contacts
- does something in TX
- cause of action from TX or has systematic + continuous contact
- does not offend notion of fair play + substantial justice
How do you attack PJ in state court?
D files a sworn special appearance before any pleading (follow due order of pleading rule). Special pleading only for non-residents.
What happens if normal service of process doesn’t work?
File a motion for substituted service and show that you’ve used diligence to serve D.
How do you serve an out-of-state D with a long-arm statute?
Service is on secretary of state as agent for D. P can only do this if D is doing business in TX, does not maintain regular place of business in TX and does not have a designated agent in TX.
