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La Civ Pro > Prior exam topics > Flashcards

Prior exam topics Flashcards

1
Q

are juries allowed to see a transcript of testimony during deliberations

A

no but if they really want to, judge can order them back into chambers and read them the transcript

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2
Q

JNOV standard to grant

A

considering all evidence in light most favorable to non moving party

the facts and inferences so strongly and overwhelmingly favor the moving party that

reasonable persons could not reach a contrary result

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3
Q

JNOV time period to file

A

within 7 days of MAILING OR SERVICE of judgment

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4
Q

motion for new trial standard to grant

A

considering all the evidence WITHOUT favoring either party

drawing her own inferences and conclusions , and evaluating the credibility of witnesses

finding that the verdict was clearly contrary to law and evidence

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5
Q

if you want to increase damage award

A

motion for additur

must be consented to

in alternative move for new trial on the issue of quantum

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6
Q

if something is really bad and client wants to stop it immediately

A

file a petition for a temporary restraining order

must meet standard of irreparable harm, incapable of being compensated by money damages

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7
Q

if venue was improper, defense counsel files

A

declinatory exception of improper venue

note must be filed before or in answer to be timely

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8
Q

if defendant is out of state corporation with no office/PPB in state, how to serve?

A

send first class mail with citation and petition

if no response

then court may appoint attorney to represent

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9
Q

if defendant believes no personal jurisdiction, defense counsel

A

files declinatory exception of lack of personal jurisdiction

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10
Q

juror lives 200 miles away. how to get to testify?

A

serve subpoena

plaintiff must make deposit with clerk OR provide check with subpoena to cover travel expenses at $.20 a mile and fee of $25/day plus $5/day for hotels and meals

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11
Q

how to get a resolution on contract terms now?

A

file aa petition for declaratory judgment

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12
Q

if money judgment is about to expire

A

means that 10 years has passed since date issued

file ex parte motion to revive judgment, affidavit stating no payment has been made (no notice or service required)

must be filed in court and suit in which judgment issued

filing interrupts 10 years prescription

after revival judgment granted, clerk of court should mail to judgment debtor’s last known address

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13
Q

if judgment is currently valid against debtor, how to determine if defendant has seizable assets

A

file motion to examine judgment debtor in court that rendered judgment

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14
Q

if defendant in money judgment has seizable assets, how to seize

A

plaintiff should file petition for garnishment where garnishee (entity w/ assets or paying wages) has PJ

then serve citation, petition, garnishment interrogatories, and notice of seizure on ganishee

once entity admits that it holds funds / pays debtor, then writ of fieri fifas issued to entity to deliver funds

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15
Q

if discovery is way too intrusive / broad, defendant counsel should

A

file a motion for protective order

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16
Q

how long does tenant plaintiff have to file suspensive appeal bond amount?

A

24 hours after eviction judgment issued after losing trial

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17
Q

when lawyer signs a pleading, he certifies:

A

after reading it and a reasonable inquiry, to the best of her knowledge, information, and belief:

(1) the pleading is not being used to harass, delay, or increase costs
(2) the pleading is warranted by existing law or a nonfrivolous argument to extend existing law
(3) the claim has or is likely to have evidentiary support AND
(4) each denial is warranted by evidence or reasonable based on lack of information

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18
Q

lawyer’s signature impart certification under 863 for X filings:

A

petitions
answers
written motions
exceptions

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19
Q

if appellate court rules that suspensive appeal bond is insufficient, how to cure?

A

within 4 days of judgment holding bond insufficient, must furnish new or supplemental bond with new or additional surety

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20
Q

if RFP and petition filed at same time, how long to respond to RFP?

A

within 30 days of service of petition

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21
Q

if one defendant was not served within 90 days, what can D do to get dismissed? any defenses for plaintiff?

A

either file a declinatory exception to insufficiency of service
OR
motion for involuntary dismissal

plaintiff may only defend by showing good cause as to why service was not requested within time period

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22
Q

petition did not request jury trial. how/when can defendants lawyers request jury trial?

A

either in answer or within 10 days after service of last pleading, including answer.

moving party must also file bond to cover court costs, plus $150 jury filing fee

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23
Q

how many interrogaatories available without requesting leave of court?

A
  1. only to parties.
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24
Q

D may amend his answer within __ days without leave of court

A

10

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25
Q

how to depose a corporation, without knowing who specifically you need to depose?

A

file 1442 notice of deposition on the corporation

name corporation as deponent, list topics you want to discuss

corporation then names offiicers who will be deposed on corporations’ behalf

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26
Q

question is about objections in deposition. discuss.

A

objections during depositions should be made concisely, and in a non- suggestive manner. improper to instruct the witness how to answer through long objections.

the only objections that are waivied if not made during deposition is that as to objection to the form of the question

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27
Q

question is about burdensome discovery, what can defense counsel do.

A

file a motion for protective order

showing that discovery requests are burdensome, and intended to annoy and oppress defendants.

also plead that information is irrelevant and not calculated to lead to the discovery of admissible evidence, and as such is beyond the scope of discovery

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28
Q

time limits and pleadings to test expert’s qualifications

A

60 days before trial file motion for pretrial hearing to determine whether expert qualifes

contradictory hearing must be held no less than 30 dayas before trial

judge must issue ruling within 5 days of hearing

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29
Q

offer of judgment rules and timeline

A

20 days or more before trial

either party may make a written offer to settle all claims without admission of liability

must specify amount.

to accept, must serve within 10 days of reciept of offer

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30
Q

motion to reduce damages awarded by jury

A

motion for remittur

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31
Q

motion for new trial period to file

A

must be filed within 7 days of MAILING OR SERVICE of notice of judgment

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32
Q

suspensive and devoluative appeal deadlines to file

A

30 days for suspensive, 60 days for devoluative

runs from date of denial of motion for JNOV/new trial
OR
if no JNOV/new trial motion filed, from the date at which that right expired.

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33
Q

time frame to answer appeaal

A

15 days from return day or lodging of record of aappeal

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34
Q

action to establish ownership if not in posession

A

petitory action

standard = prove that has title that is good against the world

35
Q

action to establish ownership iif in posession

A

posessory action

36
Q

timeline to enjoin some bad effect that will cause irreparable harm

A

file ex parte TRO - effective up to 10 days
hold hearing between 2 and 10 days to issue preliminary injunction
after full trial, permanent injunction available

37
Q

sanctions available for violations of article 863

A

judge may impose on attorney or represented party:

sanctions, including order to pay attorney fees and expenses incurred because of filing of pleading

38
Q

at end of plaintiff’s case before jury, defense can move for ____ to have case dismissed

A

move for directed verdict on grounds that P has shown no right to relief

standard = facts and inferences are so overwhelmingly in favor of the moving party that reasonable minds could not reach a contrary verdict

39
Q

if mortgage includes confession of judgment, how to proceed to enforce mortgage as creditor?

A

file executory process

attach to petition = promissory note, authentic act of mortgage, certified copy fo board of directors resolution authorizing debt; and mortgage including confession of judgment

** remember that to proceed in executory process, mortgage must be by authentic act

40
Q

what does sheriff do in foreclosure suit when property directed by court to do so?

A

(1) sheriff seizes property
(2) gives notice to defendant owners
(3) provides Mennonite notices to all other third party lien holders
(4) advertises sale
(5) appraises the property
(6) hold 1st auction of property
(7) if property does not get 2/3 of appraised value at 1st auction, hold 2nd auction with minimum of sheriff’s fees + superior lien holders
(8) distribute proceeds to appropriate parties

41
Q

if foreclosed property does not sell for amount owing to bank, bank lawyers file

A

convert executory process into ordinary proceeding or file seperate suit to proceed in

deficiency judgment.

42
Q

after a default judgment, your client either (1) is not liable for the debt to which he was defaulted or (2) was improperly served. what do you do?

A

(1) too late to exert peremptory exception of no cause of action. client had opportunity to be heard, so no nullity for vice of substance. therefore, nothing to be done, is liable
(2) for improper service, seek nullity of judgment for vices of form – ie, insufficiency of service

43
Q

if facts show that suit has met abandonment threshold, what do you recommend to client?

A

recommend do nothing. the suit has already been deemed abandoned if at any time three years passes without any party taking any steps in prosecuting or defending a claim.

44
Q

an executory proceeding is available for foreclosure when

A

(1) the mortgage was an authentic act form AND

(2) contained a confession of judgment clause

45
Q

venue for executory foreclosure of immovable property

A

(1) parish where immovable located OR

(2) parish of the individual debtor’s domicile

46
Q

in opposition to a declinatory exception for lack of personal jurisdiction, may plaintiff submit discovery to defendant?

A

yes. plaintiff is entitled to submit evidence in opposition to declinatory exception
therefore, to obtain evidence, plaintiff may submit discovery requests.

note: only proper if discovery limited to jurisdiction-specific questions

47
Q

note: when joint tortfeasors are being sued, venue is proper where

A

where venue is proper for either defendant, because

venue which is proper as to either of joint obligors is proper as to both joint obligors

48
Q

when filing a suspensive appeal, what is time limit for appeal and for bond?

A

30 days from the expiration of the period of time to file a JNOV/m4nt OR from denial of such
for both appeal filing and bond filing

49
Q

if time for declinatory exception has passed, how to get suit into proper venue?

A

file a motion of forum non conveniens, alleging the transfer is necessary for the convenience of witnesses and evidence and in the interest of justice.

note: if suit was filed in plaintiff’s domicile, this is available only when the original venue was IMPROPER, not just inconvenient

50
Q

Deposition may be taken over electronic or phone means when

A

Parties consent
Or
By court order

51
Q

Civil trial jury verdict requires how many jurors out of 6 or 12?

A

5 of 6

9 of 12

52
Q

As an officer of the court attorney must

A

Conduct himself with decorum consistent with dignity and authority of the court

Treat all participants with due respect

Not interrupt opposing counsel or impede orderly business

Not encourage false evidence

53
Q

if court has already ruled in plaintiff’s favor on a motion to compel discovery, and defendant still does not respond, what action should plaintiff take and what are the three valid responses?

A

file a motion for sanctions

court should grant sanctions. they may:

(1) deem the matter proved
(2) exclude defendant’s evidence or
(3) impose costs and attorneys fees against defendant
(4) strike pleadings or enter default judgment against D
(5) hold D in contempt

54
Q

landlord wants to evict. what must she do

A

after tenant is in violation of the lease
must give written notice to tenant
to vacate within 5 days

55
Q

if tenant does not vacate after written notice and five days, landlord may

A

file a rule to show cause to deliver the premises

rule will be heard 3 or more days after service of the rule

if tenant fails to vacate within 24 hours of judgment on rule, court will issue warrant directing sheriff to take possession

56
Q

how may tenant remain in possession after an adverse ruling on the rule to show cause filed by landlord?

A

tenant may file a suspensive appeal and bond within 24 hours of judgment of eviction

note: has lost this right if he did not contest rule at hearing

57
Q

if someone holds money and multiple claimants, what does that person/entity do?

A

file a concursus pleading.

name all the claimants as defendants

venue is where the property in dispute is situated

deposit disputed money into the registry of the court

then court determines who gets what

58
Q

if a defendant has been served but has done nothing by 30 days after being served, then what is available?

A

default judgment

59
Q

how does default judgment proceed?

A

plaintiff files a motion to entry of a preliminary default

after two days, exclusive of weekends and holidays, plaintiff may appear and prove the default by showing that defendant failed to answer

then final default judgment will be entered. is same as final judgment on the merits

60
Q

party wishes judge to explain judgment rendered from bench or in writing. what can party do?

A

within 10 days of mailing of judgment,

party can request the court to issue written findings of fact and reasons for judgment

61
Q

if defendant A is dismissed, can plaintiff appeal?

A

yes. under 1915A, a partial final judgement is one that dismisses less than all the parties.

partial final judgments are immediately appealable

62
Q

can an exception of prescription be filed the night before trial?

A

yes. peremptory exceptions may be filed any time up to and during trial.

63
Q

if person died and was not a domiciliary of louisiana, where file succession?

A

if in Louisiana, then mandatory to open succession where immovable property located.

64
Q

4 bases to challenge a juror for cause

A

(1) lack of legal qualification such as age
(2) has formed an opinion or is otherwise not impartial
(3) relations between juror and party or attorney would influence juror
(4) juror takes the 5th during voir dire

65
Q

motion for summary judgment - when filed /when response due

A

motion for summary judgment must be filed and served at least 65 days before trial.

non-movant’s opposing documents must be served 15 days before hearing

66
Q

mandatory grounds for judge’s recusal from a case

A

when he:

(1) is a witness
(2) has been employed or consulted as attny in the case
(3) has been associated with a party attorney while the case was ongoing, and the judge participated in the representation
(4) is a spouse, parent, child, or immediate family member of party or party attorney
(5) is biased, prejudiced or interested in the case

67
Q

what documents may be filed in support of or in opposition to a motion for summary judgment?

A

(1) pleadings
(2) memoranda
(3) affidavits
(4) depositions
(5) answers to interrogatories
(6) certified medical records
(7) written stipulations
(8) admissions

68
Q

how to be able to ask jury to consider the fault of a non-party in calculating contributory negligence?

A

in answer, defendant must plead the affirmative defense of the third party’s negligence or fault.

at trial, must introduce and file evidence regarding the third party;s fault

then before jury instructions are made, file request with judge to instruct jury at their option to consider fault of third party

69
Q

if a party identifies a witness after responding to discovery request completely, duty to disclose?

A

yes. normally, no duty to disclose, but when a new previously unidentified witness has come forward, responding party must supplement

70
Q

motion for new trial shoulud be granted beyond the evidentiary evaluation when

A

(1) new evidence has come to light which could not have been discovered before trial with due diligence
OR
(2) the jury was bribed or there was jury misconduct

71
Q

long arm personal jurisdiction analysis (2)

A

consider
(1) was the injury to plaintiff done in louisiana, caused by defendant’s tortious conduct outside of louisiana PLUS did defendant regularly do or solicit business, or engage in persistent course of conduct, or derive substantial revenue from lousiana?
OR
(2) could D foreseeably have anticipated that the product might be found in louisiana by reason of its nature and defendant’s marketing practices?

THEN ADD
constitutional analysis of fair play and substantial justice

72
Q

if judge does a dumb thing and a party is prejudiced, what do you do?

A

file a supervisory writ seeking review

must be filed within reasonable time, not to exceed 30 days from action

73
Q

in discovery, if defendant has interrogatories that are answerable by documents subject to an RFP, how to make life easier?

A

can state in interrogatories where in RFP documents the answers may be found

74
Q

what are some reasons that a court may deny consolidation of two actions?

A 
if consolidation could - 
cause jury confusion; 
prevent a fair and impartial trial; 
give a party an undue advantage; or 
prejudice a party.
75
Q

if someone dies intestate with assets under $___k, how to proceed?

A

under $125k, it’s a small succession

for this to be completed, no need to file any judicial proceedings.

instead, heirs should execute an affidavit that states: date of death, name and address of heirs, itemized list of property, heir’s interest in said property, statement that heirs accept succession, and affidavit of correctness

an original of affidavit should be given to banks, etc for property payment; also filed in conveyance records of parish where immovable property if any is owned

76
Q

what does a lawyer’s signature on discovery response certify?

A

after reading it and after reasonable inquiry to the best of her knowledge and belief:
(1) the response is consistent w ith discovery rules
(2) warranted by law
(3) not interposed for any improper purpose such as to delay or increase costs
AND
(4) not unreasonable, unduly burdensome given the nature of the litigation

77
Q

what does defendant do when multiple suits filed against him by same plaintiff?

A

file a declinatory exception of lis pendens in the parish where the first of identical suits was filed.

78
Q

in a motion for summary judgment, when and what documents does plaintiff file reply to opposition?

A

5 days before trial

no documents may be attached

79
Q

judge must rule on motion for summary judgment when?

A

at least 20 days before trial

80
Q

how to get appointed as independent executor?

A

if appointed by testament, then file the testament with the court as sufficient authorization

81
Q

definition of irreparable harm in TRO context

A

= that which is incapable of being compensated for by money damages

82
Q

to get jury trial, what must plaintiff do in petition?

A

demand jury trial

state that damages will exceed threshold for jury trial of $50,000

83
Q

JNOV full standard language

A

After considering the evidence in the light most favorable to Plaintiff, if the facts and inferences so strongly and overwhelmingly favor Driver that reasonable persons could not reach a contrary result, the court should grant the motion. However, if there is substantial evidence of such quality and weight that reasonable persons might reach a different conclusion, the motion should be denied.

La Civ Pro (7 decks)

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