Prior exam topics Flashcards
are juries allowed to see a transcript of testimony during deliberations
no but if they really want to, judge can order them back into chambers and read them the transcript
JNOV standard to grant
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
JNOV time period to file
within 7 days of MAILING OR SERVICE of judgment
motion for new trial standard to grant
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
if you want to increase damage award
motion for additur
must be consented to
in alternative move for new trial on the issue of quantum
if something is really bad and client wants to stop it immediately
file a petition for a temporary restraining order
must meet standard of irreparable harm, incapable of being compensated by money damages
if venue was improper, defense counsel files
declinatory exception of improper venue
note must be filed before or in answer to be timely
if defendant is out of state corporation with no office/PPB in state, how to serve?
send first class mail with citation and petition
if no response
then court may appoint attorney to represent
if defendant believes no personal jurisdiction, defense counsel
files declinatory exception of lack of personal jurisdiction
juror lives 200 miles away. how to get to testify?
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
how to get a resolution on contract terms now?
file aa petition for declaratory judgment
if money judgment is about to expire
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
if judgment is currently valid against debtor, how to determine if defendant has seizable assets
file motion to examine judgment debtor in court that rendered judgment
if defendant in money judgment has seizable assets, how to seize
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
if discovery is way too intrusive / broad, defendant counsel should
file a motion for protective order
how long does tenant plaintiff have to file suspensive appeal bond amount?
24 hours after eviction judgment issued after losing trial
when lawyer signs a pleading, he certifies:
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
lawyer’s signature impart certification under 863 for X filings:
petitions
answers
written motions
exceptions
if appellate court rules that suspensive appeal bond is insufficient, how to cure?
within 4 days of judgment holding bond insufficient, must furnish new or supplemental bond with new or additional surety
if RFP and petition filed at same time, how long to respond to RFP?
within 30 days of service of petition
if one defendant was not served within 90 days, what can D do to get dismissed? any defenses for plaintiff?
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
petition did not request jury trial. how/when can defendants lawyers request jury trial?
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
how many interrogaatories available without requesting leave of court?
- only to parties.
D may amend his answer within __ days without leave of court
10
how to depose a corporation, without knowing who specifically you need to depose?
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
question is about objections in deposition. discuss.
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
question is about burdensome discovery, what can defense counsel do.
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
time limits and pleadings to test expert’s qualifications
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
offer of judgment rules and timeline
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
motion to reduce damages awarded by jury
motion for remittur
motion for new trial period to file
must be filed within 7 days of MAILING OR SERVICE of notice of judgment
suspensive and devoluative appeal deadlines to file
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.
time frame to answer appeaal
15 days from return day or lodging of record of aappeal
action to establish ownership if not in posession
petitory action
standard = prove that has title that is good against the world
action to establish ownership iif in posession
posessory action
timeline to enjoin some bad effect that will cause irreparable harm
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
sanctions available for violations of article 863
judge may impose on attorney or represented party:
sanctions, including order to pay attorney fees and expenses incurred because of filing of pleading
at end of plaintiff’s case before jury, defense can move for ____ to have case dismissed
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
if mortgage includes confession of judgment, how to proceed to enforce mortgage as creditor?
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
what does sheriff do in foreclosure suit when property directed by court to do so?
(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
if foreclosed property does not sell for amount owing to bank, bank lawyers file
convert executory process into ordinary proceeding or file seperate suit to proceed in
deficiency judgment.
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?
(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
if facts show that suit has met abandonment threshold, what do you recommend to client?
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.
an executory proceeding is available for foreclosure when
(1) the mortgage was an authentic act form AND
(2) contained a confession of judgment clause
venue for executory foreclosure of immovable property
(1) parish where immovable located OR
(2) parish of the individual debtor’s domicile
in opposition to a declinatory exception for lack of personal jurisdiction, may plaintiff submit discovery to defendant?
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
note: when joint tortfeasors are being sued, venue is proper where
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
when filing a suspensive appeal, what is time limit for appeal and for bond?
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
if time for declinatory exception has passed, how to get suit into proper venue?
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
Deposition may be taken over electronic or phone means when
Parties consent
Or
By court order
Civil trial jury verdict requires how many jurors out of 6 or 12?
5 of 6
9 of 12
As an officer of the court attorney must
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
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?
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
landlord wants to evict. what must she do
after tenant is in violation of the lease
must give written notice to tenant
to vacate within 5 days
if tenant does not vacate after written notice and five days, landlord may
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
how may tenant remain in possession after an adverse ruling on the rule to show cause filed by landlord?
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
if someone holds money and multiple claimants, what does that person/entity do?
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
if a defendant has been served but has done nothing by 30 days after being served, then what is available?
default judgment
how does default judgment proceed?
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
party wishes judge to explain judgment rendered from bench or in writing. what can party do?
within 10 days of mailing of judgment,
party can request the court to issue written findings of fact and reasons for judgment
if defendant A is dismissed, can plaintiff appeal?
yes. under 1915A, a partial final judgement is one that dismisses less than all the parties.
partial final judgments are immediately appealable
can an exception of prescription be filed the night before trial?
yes. peremptory exceptions may be filed any time up to and during trial.
if person died and was not a domiciliary of louisiana, where file succession?
if in Louisiana, then mandatory to open succession where immovable property located.
4 bases to challenge a juror for cause
(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
motion for summary judgment - when filed /when response due
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
mandatory grounds for judge’s recusal from a case
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
what documents may be filed in support of or in opposition to a motion for summary judgment?
(1) pleadings
(2) memoranda
(3) affidavits
(4) depositions
(5) answers to interrogatories
(6) certified medical records
(7) written stipulations
(8) admissions
how to be able to ask jury to consider the fault of a non-party in calculating contributory negligence?
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
if a party identifies a witness after responding to discovery request completely, duty to disclose?
yes. normally, no duty to disclose, but when a new previously unidentified witness has come forward, responding party must supplement
motion for new trial shoulud be granted beyond the evidentiary evaluation when
(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
long arm personal jurisdiction analysis (2)
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
if judge does a dumb thing and a party is prejudiced, what do you do?
file a supervisory writ seeking review
must be filed within reasonable time, not to exceed 30 days from action
in discovery, if defendant has interrogatories that are answerable by documents subject to an RFP, how to make life easier?
can state in interrogatories where in RFP documents the answers may be found
what are some reasons that a court may deny consolidation of two actions?
if consolidation could - cause jury confusion; prevent a fair and impartial trial; give a party an undue advantage; or prejudice a party.
if someone dies intestate with assets under $___k, how to proceed?
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
what does a lawyer’s signature on discovery response certify?
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
what does defendant do when multiple suits filed against him by same plaintiff?
file a declinatory exception of lis pendens in the parish where the first of identical suits was filed.
in a motion for summary judgment, when and what documents does plaintiff file reply to opposition?
5 days before trial
no documents may be attached
judge must rule on motion for summary judgment when?
at least 20 days before trial
how to get appointed as independent executor?
if appointed by testament, then file the testament with the court as sufficient authorization
definition of irreparable harm in TRO context
= that which is incapable of being compensated for by money damages
to get jury trial, what must plaintiff do in petition?
demand jury trial
state that damages will exceed threshold for jury trial of $50,000
JNOV full standard language
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.
