Texas Civil Procedure Flashcards
1
Q
What are the two levels of civil courts in Texas?
A
Trial and Appellate.
2
Q
What are the trial courts in Texas civil courts?
A
1) District Court;
2) County Court at Law;
3) Constitutional County Court; AND
4) Justice of the Peace Court.
3
Q
How do you know which Texas civil court has subject matter jurisdiction (power to hear a particular case)?
A
Determined by the amount in controversy.
1) District Courts - Courts of GENERAL JURISDICTION with an amount in controversy requirement of $500.01 (unclear on whether it could be 200.01) AND UP (no upper limit).
2) County Courts at Law - Created by the legislature for certain counties. AIC requirement is between $200.01 and $200,000.
3) Constitutional County Court - Created by Texas Constitution. The county judges presides over this court. Court has civil jurisdiction over claims with AIC between $200.01 and $10,000.
4) Justice of the Peace Court - Civil jurisdiction over minor civil actions where the amount in controversey is not more than $10,000.
4
Q
Hypo: Bob asserts a claim against Jim for $80,000. Which Texas trial courts have SMJ over the case?
A
DC and the CCL.
5
Q
How is the AIC determined?
A
1) Single Plaintiff / Single Defendant - Plaintiff can aggregate multiple claims against the defendant to meet the amount in controversy.
2) Multiple Plaintiffs / Single Defendant - All claims by multiple plaintiffs against the same defendant are aggregated to determine the AIC.
3) Multiple Defendants - Separate, independent, and distinct claims against multiple defendants are NOT aggregated.
6
Q
Where does the plaintiff put his amount in controversy?
A
TRCP requires that a pleading MUST include a specific statement of the amount of monetary relief sought.
7
Q
What happens if the plaintiff fails to plead the maximum amount claimed in damages?
A
The defendant files a SPECIAL EXCEPTION, which requires the plaintiff to specify the maximum amount claimed.
8
Q
What if the AIC pleaded is outside the jurisdictional limits of the court?
A
The defendant files a PLEA TO THE JURISDICTION, because the court does not have the authority to hear the case (a challenge to the court’s subject matter jurisdiction).
9
Q
What are some other grounds for challenges to the SMJ of a Texas court?
A
1) Governmental immunity from suit;
2) Justiciability; OR
3) Another texas trial court has exclusive jurisdiction.
10
Q
Explain the Appellate courts and their jurisdiction in Texas.
A
There are 14 intermediate courts of appeals in Texas. They have intermediate appellate jurisdiction in civil cases appealed from the district and county courts when the amount in controversy or the judgment rendered EXCEEDS $100.
The jurisdiction of the intermediate courts of appeals over civil cases is MANDATORY.
11
Q
How is an appeal initiated?
A
With a NOTICE OF APPEAL.
12
Q
What must a notice of appeal include?
A
1) The trial court’s name and case’s trial court number and style;
2) The date of the judgment or order appealed from;
3) A statement that the party desires to appeal;
4) The court to which the appeal is taken; AND
5) The name of each party filing the notice of appeal.
13
Q
When must a notice of appeal be filed?
A
WITHIN 30 DAYS OF THE DATE THE JUDGMENT WAS SIGNED.
14
Q
What is the effect of a notice of appeal on the trial court’s judgment?
A
The filing of a notice of appeal DOES NOT SUSPEND ENFORCEMENT of the trial court’s judgment.
15
Q
How may a judgment debtor party suspend enforcement of the judgment?
A
1) Obtaining a written agreement with the judgment creditor;
2) Filing with the trial court clerk a good and sufficient bond;
3) Making a deposit with the clerk in lieu of a bond; OR
4) Providing alternate security as ordered by the court.
16
Q
What jurisdiction does the Texas Supreme Court have?
A
This is the highest CIVIL court in the state. Has APPELLATE JURISDICTION over cases decided by the intermediate courts of appeals in Texas.
Has DISCRETION to grant review of a decision by the intermediate appellate court.
An appeal is made to the Texas Supreme Court by filing a petition for review.
17
Q
What is filed for the Texas Supreme Court on appeal?
A
A petition for review.
18
Q
The defendant may challenge the plaintiff’s choice of venue if it is ______________.
A
Improper.
19
Q
What does the Texas venue scheme look like?
A
1) Mandatory Venue Provisions;
2) Permissive Venue Provisions; AND
3) General Venue Rules
20
Q
What is the General Venue Rule?
A
All lawsuits must be brought in the county where:
1) All or a substantial part of the events that gave rise to the action took place;
2) The defendant resides at the time of the event;
3) The defendant’s principal office in the state, if the defendant is not a natural person; OR
4) If none of these situations apply, the county where the plaintiff resided at the time of the event.
21
Q
What is a residence?
A
A fixed place of abode that one occupies or intends to occupy permanently.
22
Q
What is a principal office?
A
Place where the decision makers for the organization within the company conduct the daily affairs of the organization. The place where a company has its headquarters.
YOU MAY HAVE MORE THAN ONE PRINCIPAL OFFICE.
23
Q
How is venue challenged?
A
Plaintiff has first choice to fix venue by filing the suit.
The Defendant challenges the plaintiff’s choice by filing a MOTION TO TRANSFER venue.
24
Q
What grounds are bases for transferring venue?
A
1) Plaintiff’s choice of venue is improper under the rules;
2) The case should be transferred to another proper venue on convenience and justice grounds;
3) The parties consent to a transfer; OR
4) A local prejudice makes it unfair for the case to be heard in the county of suit.
25
What is the procedure to challenge venue when local prejudice exists?
Motion to Change Venue.
26
What is the deadline to file a motion to transfer? What is the penalty for untimely filing?
MUST be filed before any other pleading or motion. Motion to transfer venue is filed prior to or concurrently with the filing of the answer.
A venue objection is WAIVED if not timely filed.
27
What does a motion to transfer venue contain?
1) Denial of plaintiff's venue facts alleged in the petition;
2) Explanation why venue is improper;
3) Allege another proper county of venue with specific venue facts; AND
4) Request the court transfer the case to that county.
28
What is the Plaintiff's proof requirement once venue is challenged?
The burden is on the plaintiff to establish by PRIMA FACIE PROOF that venue is proper in the original county of suit.
Prima Facie proof may be established through affidavits, discovery products, and other sources of information.
29
What happens after submitting a motion to transfer?
The motion will be set for hearing by the defendant.
EACH party is entitled to at least 45 DAYS NOTICE OF THE HEARING.
The plaintiff's response and evidence must be filed at least 30 DAYS before the hearing date.
Defendant must submit any additional reply and evidence at least 7 DAYS before the hearing.
30
How is personal jurisdiction established?
Defendant must be given formal NOTICE of the lawsuit through service of process and the defendant must have sufficient minimum contacts with Texas such that it is fair for the Texas court to exercise jurisdiction over the defendant.
Texas has a general LONG-ARM STATUTE that allows for PJ over nonresident defendants if they engage in activities in Texas that constitute "DOING BUSINESS."
Stretches as far as Constitutional Due Process will allow.
31
What is service of process?
Process = CITATION AND PETITION TOGETHER
Who? - Sheriffs, clerks of the court, and private process servers may serve process.
Methods:
1) Hand delivery;
2) Certified mail with return receipt requested; AND
3) Other means by court order
32
What is the procedure for serving process?
1) Plaintiff files petition;
2) Clerk of Court prepares citation;
3) An authorized person serves process; AND
4) Process server returns verification of service.
33
What is the deadline for an answer to service of process?
AFTER being served, the defendant MUST file an answer.
DEADLINE: BY 10:00am ON THE MONDAY NEXT FOLLOWING THE EXPIRATION OF 20 DAYS AFTER THE DATE OF SERVICE.
IF no answer by the deadline, plaintiff may obtain a DEFAULT JUDGMENT against the defendant.
34
What must a plaintiff do if answer is not timely filed?
File a motion for Default Judgment;
IF plaintiff's damages are unliquidated, he will have to prove those damage in a hearing.
35
How is process served on a corporation?
Made by serving:
1) Its registered agent (special agent whose identity is on file with the Secretary of State);
2) The President; OR
3) The Vice President.
36
Can process be served on the Secretary of State?
Yes if the Secretary of State is statutorily the defendant's Agent. Secretary of State will forward the process to the defendant. This is called a "Whitney Certificate." This verifies that the SOS forwarded the process to the defendant.
37
Can the Secretary of State be served on behalf of a nonresident?
Yes, under the Texas Long-Arm Statute if various conditions are satisfied.
Plaintiff's petition must allege that:
1) SOS is the agent for service of the nonresident defendant;
2) Nonresident defendant is engaged in business in Texas;
3) Nonresident defendant does NOT maintain a regular place of business in Texas;
4) Nonresident does not have a designated agent for service of process in Texas; AND
5) Lawsuit arises from the nonresident's business in Texas.
38
How does a nonresident defendant object to the court's personal jurisdiction?
BY FILING A SPECIAL APPEARANCE.
Purpose: Objection to jurisdiction on the ground that the party is NOT AMENABLE TO PROCESS issued by the courts of this state.
39
What is the deadline to file a special appearance?
MUST FILE AS FIRST PLEADING BEFORE THE ANSWER DEADLINE.
IF filed AFTER the answer, that WAIVES personal jurisdiction because it is considered a general appearance.
40
How is a special appearance made?
Must be made by SWORN motion.
The evidence considered is:
1) Affidavits filed by the parties;
2) Stipulations;
3) Pleadings;
4) Results of discovery processes; AND
5) Oral testimony
41
What is a defendant allowed to do after timely filing a special appearance that will not waive the special appearances?
Special Appearance is NOT waived if other pleadings or motions are filed after special appearance AS LONG AS the documents do NOT acknowledge the trial court's jurisdiction.
A defendant does not waive its special appearance by utilizing discovery processes related to the special appearance.
42
What must a defendant show in a special appearance to show that there are no minimum contacts with the state?
1) No purposeful availment (did not purposefully avail itself of the benefits and protections of Texas law);
2) No Specific Jurisdiction (the plaintiff's cause of action does NOT arise from or relate to the nonresident defendant's contacts with Texas (that any contact with the state is not substantially connected to operative facts of litigation);
3) No General Jurisdiction - The nonresident defendant did not have continuous and systematic contacts with Texas;
4) PJ would violate traditional notions of fair play and substantial justice. The exercise of jurisdiction by the court would violate traditional notions of fair play and substantial justice.
43
What are "pleadings" generally?
Written instruments that frame facts and underlying legal theories (causes of action and defenses) at issue.
Petition - Must contain a short statement of the causes of action sufficient to give fair notice of the claims involved.
Answer - Defendant makes a general appearance by filing an answer which may include challenges to:
1) Court's PJ over the parties - done by special appearance;
2) Venue (done by motion to transfer); OR
3) Appropriateness of forum (motion to on forum non conveniens grounds).
44
What is the "Due Order of Pleading Rule?"
MUST BE FOLLOWED.
SPECIAL APPEARANCE MUST BE FILED FIRST, followed by motion to transfer venue, and then answer.
45
How does a plaintiff go about pleading damage?
Original pleading must include a statement as to the amount of damages sought within the following ranges:
1) Only monetary relief $100,000 or less;
2) Non-monetary relief and monetary relief of $100,000 or less;
3) Monetary relief over $100,000, but not more than $200,000;
4) Monetary relief over $200,000, but not more than $1,000,000; OR
5) Monetary relief OVER $1,000,000.
46
What is an expedited action process?
Applies when plaintiff affirmatively pleads that he is seeking only monetary damages aggregating $100,000 or less.
There are special limitations on discovery, trial settings, continuances, time limits for trial, alternative dispute resolution, and expert testimony.
47
What must an answer state?
EVERY ANSWER MUST INCLUDE A GENERAL DENIAL.
This Denies all of the allegations in the petition and puts plaintiff to its burden of proof on all of the causes of action alleged.
48
What are special denials?
For these defenses, a general denial is insufficient to put the plaintiff's allegations at issue. Usually MUST be verified based on personal knowledge.
Examples of Special Denials:
1) Legal capacity of the parties to sue or be sued;
2) A denial that a party is incorporated or is a partnership;
3) That an absent party must be joined to the case;
4) That the defendant or a person under the defendant's authority executed a written instrument that is the subject of the suit;
5) A denial of the genuineness of an endorsement of a written instrument that is the subject of the suit;
6) That the written instrument is without consideration; AND
7) A denial of a suit on an account.
49
What are affirmative defenses?
A defense as to the plaintiff should not recover on her cause of action. The defendant has the burden of proof at trial.
Examples include:
1) Contributory negligence;
2) Duress;
3) Estoppel;
4) Laches;
5) Release;
6) Res Judicata;
7) Statute of Frauds;
8) Statute of Limitations; AND
9) Waiver
50
What are compulsory counterclaims?
A defendant should include in its answer any claims for affirmative relief it has against the plaintiff. A counterclaim is COMPULSORY IF:
1) Within court's jurisdictional limits;
2) It is not subject of a pending action;
3) The claim is mature and owned by the defendant at the time of the filing of the ANSWER;
4) It arose out of the SAME TRANSACTION OR OCCURRENCE that is the subject matter of the opposing party's claim;
5) It is against the opposing party in the same capacity; AND
6) It does not require the presence of third-parties over whom the court cannot acquire jurisdiction.
51
What is a cross-claim?
A claim for affirmative relief against another co-party.
52
What is Third-Party Practice and Designation?
A defendant may join a non-party who may be liable for all or part of the damages by filing a Third-Party Petition (third-party practice).
A defendant may also DESIGNATE a person as a responsible third party (RTP) WITHOUT FORMALLY JOINING THE PARTY by filing a motion for leave to designate a RTP.
53
What again is the deadline for an answer?
Defendant MUST file a WRITTEN answer with the CLERK WHO ISSUED THE CITATION by 10:00 am on the Monday next following the expiration of 20 DAYS after the date of service.
54
How are defects in pleadings challenged?
1) SPECIAL EXCEPTION - Defects apparent on the FACE of the pleadings are challenged by special exception. Points out pleading defect with PARTICULARITY and explains how defect MAY BE CURED. If granted, opposing party must amend his pleadings. If re-pleading does not cure defect, CASE MAY BE DISMISSED.
2) Plea in Abatement - Defects that are NOT APPARENT FROM THE FACE OF THE PLEADINGS but that may be proven by extrinsic evidence are challenged by a plea in abatement (happens when another case on the same issue has already been filed in a different county).
55
How can parties amend their pleadings?
Texas policy allows the parties to LIBERALLY AMEND their pleadings to add new causes of action and defenses to cure defects.
1) AS A MATTER OF RIGHT - before deadline in trial court's scheduling order;
2) If no scheduling order controls the deadline: may be amended at least 7 DAYS before trial;
3) DURING TRIAL - should file a trial amendment.
56
How does an opposing party challenge amended pleadings?
Motion to strike amended pleadings;
Trial court should not permit the amendment of pleadings if the amendment would SURPRISE OR PREJUDICE the opposing party (on the eve of trial or during trial that adds a new substantive cause of action).
57
What are frivolous pleadings?
Pleadings that are GROUNDLESS and brought in BAD FAITH or for HARASSMENT.
Pleadings that have NO EVIDENTIARY SUPPORT or are not likely to have it after a reasonable opportunity for further investigation and discovery.
58
What is the punishment for filing a frivolous pleading?
Possible Sanctions include:
1) Paying opposing party's attorney's fees and expenses related to contesting the pleading;
2) Excluding evidence;
3) Striking pleadings;
4) Ordering payment of a monetary penalty; AND
5) Ultimately, dismissing a party and/or case.
The court may sanction the party and/or the attorney, depending on who was at fault for the pleading.
59
What is a baseless cause of action?
May move to dismiss a cause of action on the ground that there is NO BASIS IN LAW OR FACT.
The motion must:
1) State that it is made pursuant to the specific baseless cause of action rule;
2) Identify each cause of action to which it applies; AND
3) State specifically the reasons the cause of action has no basis in law, fact, or both.
60
When must a motion to dismiss for a baseless cause of action be filed? How long does the court have to reply? What happens to the prevailing party?
WITHIN 60 DAYS after the first pleading containing the challenged cause of action is SERVED on the movant.
Court must grant or deny the motion within 45 DAYS after it is filed.
Court must award prevailing party on the motion all costs and reasonable attorney's fees incurred with respect to the challenged cause of action.
61
Must all claims arising out of the same transaction be brought at once?
Yes. Parties must assert all "same transaction" claims they have against each other in the initial lawsuit. Any "same transaction" claims not brought in the initial lawsuit by the plaintiff will be barred on res judicata grounds if the initial suit proceeds to a final judgment.
Any "same transaction" counterclaims not asserted by the defendant in the initial lawsuit will be BARRED by the COMPULSORY COUNTERCLAIM RULE if the initial suit goes to a final judgment.
62
What happens if claims are improperly joined in a lawsuit?
The remedy is SEVERANCE. The procedure for doing so is called a MOTION FOR SEVERANCE.
Three elements:
1) Controversy must involve more than one cause of action;
2) Severed causes must be ones that would be proper subject of a lawsuit if independently asserted; AND
3) Severed causes must not be so intertwined as to involve the same identical facts and issues.
63
What is a motion for separate trials?
If it is unfair to a party to have properly joined claims tried in the same trial, then they must MOTION FOR SEPARATE TRIALS.
64
If there are "same transaction" claims in separate law suits, what can the court do?
The court may CONSOLIDATE those claims into one case. The party seeking to consolidate files a MOTION TO CONSOLIDATE.
65
What can a person do who wants to join a lawsuit?
File a PETITION IN INTERVENTION.
66
What is a non-suit? What is its effect?
Plaintiff voluntarily dismisses the case at any time BEFORE INTRODUCING EVIDENCE (other than rebuttal evidence).
Plaintiffs have an ABSOLUTE RIGHT to non-suit their OWN claims.
The effect of a non-suit is a dismissal without prejudice.
67
What is interpleader?
When several parties claim monetary proceeds or other property, a disinterested stakeholder may file an INTERPLEADER ACTION to bring all of the parties into the suit that have a possible claim to the proceeds (common with insurance proceeds).
68
Explain joinder of persons needed for just adjudication.
Persons important to resolving a case so that complete relief can be accorded should be joined by parties or court order.
If the person cannot be joined, the court must decide whether to go forward or dismiss the case because the absent party is INDISPENSABLE.
Based on equities:
1) Possible prejudice to the present and absent parties; AND
2) Whether relief can be shaped to avoid or lessen prejudice.
69
What is discovery?
Formal procedure by which parties request RELEVANT information from each other and nonparties. Relevant means anything NOT PRIVILEGED and relates to the subject matter of the pending action.
Inadmissible information is within the scope of discovery if it appears REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE.
Very liberal in scope.
70
What are the permissible forms of discovery?
1) Requests for disclosure;
2) Requests for production and inspection of documents and tangible things;
3) Requests and motions for entry upon and examination of real property;
4) Interrogatories to a party;
5) Requests for admission;
6) Oral or written depositions;
7) Motions for mental or physical examinations;
71
T/F - Discovery requests to nonparties must include the appropriate discovery request and a subpoena.
True.
72
What are discovery control plan levels?
Every case in Texas is governed by a discovery control plan. There are three levels that each regulates the amount of discovery that can be taken.
LEVEL 1 - Plaintiff affirmatively pleads that he seeks $100,000 or less in damages (or divorces involving $50,000 or less):
1) Oral Depositions - Each party has no more than 6 hours in total to examine and cross-examine all witnesses.
2) No more than 15 written interrogatories;
3) No more than 15 written requests for production;
4) No more than 15 written requests for admissions;
5) A party may request disclosure of all documents, electronic information, and tangible items in the possession, custody, or control of the disclosing party that it may use to support its claims or defenses.
LEVEL 2 - This is the DEFAULT LEVEL:
1) Each side has no more than 50 hours in oral depositions to examine and cross-examine opposing parties, experts designated by opposing parties, and persons subject to those parties' control.
2) No more than 25 written interrogatories
LEVEL 3 - Specially tailored to the needs of the individual case.
73
What is the deadline to respond to written discovery requests?
The responding party must serve a written response on the requesting party WITHIN 30 DAYS after service of the request.
EXCEPTION: A defendant served with a request before the defendant's answer is due has 50 DAYS after service of the request to respond.
74
What is discoverable through a request for disclosure?
1) Names of parties;
2) Names, addresses, and telephone numbers of potential parties;
3) Legal theories and factual bases of the opposing party's claims and defenses;
4) Amount and method of calculating economic damages;
5) Name, address, and telephone number of persons that have knowledge of relevant facts and a brief statement of each person's connection with the case;
6) Basic information regarding any testifying expert;
7) Any indemnity and insurance agreements;
8) Any settlement agreements;
9) Any witness statements;
10) In a suit for personal injury, medical records and bills reasonably related to the injury suffered, or an authorization permitting the disclosure of such records; AND
11) Name address, and telephone number of any responsible third parties.
75
What is the effect of a party failing to timely respond to a request for admissions? Is there a cure for failure to do so?
The request is deemed admitted automatically.
A deemed admission conclusively admits to the matter in question, UNLESS the court allows the party to withdraw or amend the admission. To withdraw a deemed admission, the party must:
1) Move to withdraw the admission;
2) Show good cause for the withdrawal; AND
3) Show that opposing party will not be unduly prejudiced by permitting the withdrawal.
76
What can a party do if the opposing party fails to respond adequately to a written discovery request?
File a MOTION TO COMPEL.
77
What if a party fails to list a witness as a trial witness in its response to a written request for disclosures?
Party may not offer witness' testimony at trial, UNLESS the court finds:
1) Good cause for the failure to identify the witness; AND
2) Failure to identify will not unfairly surprise or prejudice other parties.
78
How must service be carried out for an oral deposition?
If deposing an opposing party, then the party must serve a notice of deposition.
If deposing a witness, the party must serve a notice of deposition AND A SUBPOENA.
79
What makes an adequate service of notice of deposition?
MUST be served A REASONABLE TIME before the deposition is taken--10 days advanced notice, without any request for documents, probably meets this standard.
Contents - MUST INCLUDE:
1) Name of the witness;
2) The name of a corporate representative if the organization is a witness;
3) Time and place of deposition;
4) Any alternative means of conducting the deposition; AND
5) Any additional attendees besides the witness, parties, spouses of parties, counsel, and the deposition officer.
80
Where must a deposition take place?
1) The county where the witness resides;
2) County where the witness is employed or regularly transacts business in person;
3) The county of the suit, if the witness is a party or a corporate representative by a party;
4) The county where the witness was served with subpoena, OR WITHIN 150 MILES OF THE PLACE OF SERVICE, if the witness is not a resident or a transient person; OR
5) Any other convenient place directed by the court.
81
How must time and place of a deposition be objected to?
A party or witness may object by filing a MOTION TO QUASH or a MOTION FOR PROTECTIVE ORDER.
82
What information is privileged and thus not discoverable?
WORK-PRODUCT PRIVILEGE:
1) Material prepared or mental impressions developed in anticipation of litigation or for trial by a party or party's representatives; OR
2) A communication made in anticipation of litigation or for trial between a party and the party's representatives, or among the party's representatives.
ATTORNEY-CLIENT PRIVILEGE:
1) A client has a privilege to refuse to disclose and prevent any other person from disclosing CONFIDENTIAL communication made for the purpose of obtaining legal services between the client and the attorney.
83
What is discoverable (not protected) that may be considered work-product?
Discoverable information:
1) About expert witnesses;
2) About trial witnesses;
3) About witness statements;
4) About contentions
5) About trial exhibits;
6) About the name and contact information of any person with knowledge of relevant facts; AND
7) Any photo of underlying facts or any photo that a party intends to offer into evidence.
84
What is a Snap-Back Provision?
A party who produces material or information without intending to waive a claim of privilege does NOT waive the privilege claim IF the producing party identifies the material produced and claims the privilege WITHIN 10 DAYS THAT THE PRODUCTION WAS MADE.
85
What is the procedure for asserting privilege?
Privileged information is responsive to a request. Party asserting privilege should file a WITHHOLDING STATEMENT. The requesting party may then request that the withholding party more specifically identify the information and material withheld by preparing and serving a PRIVILEGE LOG.
After the privilege log is served, the requesting party should have sufficient information to know whether to challenge the claim of privilege.
The court may hold a hearing to resolve disputes about privilege claims.
86
Which expert witnesses can be discovered?
1) Testifying Experts = Discovery
2) Consulting Experts = NO Discovery
3) Consulting Expert + Consulting Expert's Work Reviewed by Testifying Expert = Discovery of Consulting Expert.
87
When is an expert witness a testifying witness?
An expert becomes a testifying expert when the party FORMALLY DESIGNATES the expert as a testifying expert witness (occurs toward the end of the discovery period).
A party seeking affirmative relief designates its testifying experts at least 90 DAYS BEFORE the end of the discovery period.
All other testifying experts are designated at least 60 DAYS BEFORE the end of the discovery period.
88
What discovery tools can be used to discover testifying expert witnesses?
1) Request for disclosure;
2) Oral deposition of expert; AND
3) Expert witness report.
89
How can an expert witness' testimony be challenged?
After discovery, a party may move to exclude an expert witness's testimony on admissibility grounds (the Daubert-Robinson Motion to Exclude the Expert Witness's Testimony).
Possible Grounds for challenge:
1) Expert lacks the qualifications to testify as an expert in the particular field;
2) Expert's testimony is not reliable because it is based on flawed reasoning or an invalid methodology; OR
3) Expert's testimony is irrelevant.
90
What do courts consider when determining if an expert's testimony is reliable?
1) The extent to which the theory can be tested;
2) The technique's potential rate of error;
3) Whether the theory has been or could be subjected to peer review or publication;
4) Whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community;
5) The extent to which the technique relies upon the expert's subjective interpretation; AND
6) Non-judicial uses of the theory or technique.
91
How must a party make a jury demand? What can the opposing party do?
Party must do TWO THINGS:
1) Make a written request for a jury trial (the jury demand); AND
2) Pay the jury fee.
The opposing party can file a MOTION TO STRIKE THE JURY DEMAND.
Ultimately, the jury demands may not be permitted if too much of an inconvenience to the trial court's docket.
92
How is the trial date set?
1) Motion by a party;
2) Court's own initiative; OR
3) Agreement of the parties.
93
What notice is due before trial?
Each party is entitled to at least 45 DAYS NOTICE of a trial setting.
94
Can the trial date be postponed? How?
Yes - MOTION FOR CONTINUANCE
Grounds for continuance:
1) The attorney has a conflicting trial in another court on the same date;
2) The attorney representing a party recently withdrew as counsel of record in the case;
3) A material witness is unavailable to testify at trial, perhaps due to health reasons;
4) A validly supoenaed material witness failed to appear for trial;
5) The party or an attorney is serving as a Texas legislator at the time of the trial setting. Here, continuance is mandatory, unless a substantial right will be defeated by delaying the case OR if the attorney was hired within a short time prior to trial.
95
What procedure must be taken to make a motion for continuance?
1) In Writing;
2) Supported by affidavit;
3) Sufficient Cause; and
4) Notice to the other side.
96
What must a party do if a witness is going to be unavailable at trial?
If the testimony is material and not available from another source, the party must show that due diligence was taken to procure the testimony. The court will take into account what the witness is expected to prove.
Continuance sought will be awarded not for delay but for JUSTICE.
97
What is a motion in limine? What can the losing party do? What if the motion is overruled?
An eve of trial motion that attempts to get a preliminary ruling from the judge that a piece of evidence is not admissible.
Losing party must approach the bench outside jury's presence to ask for a ruling on the admissibility of the evidence before referencing the evidence. There are two outcomes here:
1) Trial court rules evidence is admissible - may be introduced; OR
2) Trial court reaffirms its preliminary ruling - party must make an OFFER OF PROOF outside the jury's presence and ensure that court's ruling is on the record TO PRESERVE ERROR.
NOTE: The party may introduce the evidence without first seeking court permission if the motion in limine is overruled.
98
How is summary judgment sought after?
By pre-trial motion that attempts to recover without the necessity of having a trial. The movant is entitled to win as to that claim or defense in the case where there is no genuine issue of material fact.
Thus, judgment sought after is as a MATTER OF LAW.
TWO TYPES OF SJ MOTIONS:
1) Traditional Motion for SJ - Movant must conclusively establish that there is no genuine issue of material fact and she is entitled to judgment as a matter of law. THE MOVANT PRODUCED EVIDENCE.
2) No Evidence SJ Motions - Movant alleges there is "no evidence" of one or more essential elements of a claim or defense on which the other party has the burden of proof at trial. THE MOVANT DOES NOT PRODUCE EVIDENCE.
99
What is procedure is required for summary judgment?
1) Evidence must be in admissible form;
2) Motion must be set for hearing;
3) Motion and any supporting evidence must be filed and served on opposing counsel at least 21 DAYS BEFORE THE HEARING DATE; AND
4) Response and any controverting evidence must be filed and served NOT LATER THAN 7 DAYS BEFORE THE HEARING DATE?
100
What is the process of jury selection?
Potential jurors are summoned to report. Potential jurors are then dispersed to particular courts to make up the VENIRE PANEL.
VOIR DIRE: The process in which the attorneys question the venire panel. Attorneys introduce the basics of the case to the panelists and gather information so they can later exercise challenges for cause and peremptory challenges.
From the venire panel, 12 PERSONS will comprise the jury in district court; and 6 PERSONS in a county court at law.
101
What is used to challenge the procedure in which potential jurors are summoned?
A MOTION TO CHALLENGE THE ARRAY.
102
How is the venire panel seated?
After the venire members are seated, a party may request a JURY SHUFFLE.
Allows venire panel members to be reordered so that preferred members may be moved to the front rows.
103
How many challenges to remove a juror for cause does each party have? What are grounds for cause?
UNLIMITED
Grounds include:
1) The panel member is a witness in the case;
2) The panel member has an interest in the case;
3) The panel member is related to a party within the 3rd degree;
4) The panel member has served as a juror in an earlier trial of the same case;
5) The panel member has a BIAS or PREJUDICE regarding the case.
104
What must a party do if the trial court denies a challenge for cause?
PARTY MUST PRESERVE ERROR BY DOING THE FOLLOWING:
1) Challenge the panelist for cause and get an adverse ruling;
2) Before giving strikes to the clerk, inform the court that due to the court's refusal to strike the juror for-cause, the party will exhaust its peremptory challenges before striking an objectionable panelist;
3) Identify the specific objectionable panelist who will remain on the jury list once the party uses its last peremptory strike;
4) Request the trial court to compensate for the erroneous ruling on the for-cause challenge by reversing the ruling or granting the party an additional peremptory strike;
5) Give the clerk the list of peremptory strikes; AND
6) The objectionable panelist must actually serve on the jury.
105
What is a peremptory challenge? How many does each party have?
This is a challenge to a panelist without assigning a reason. In a two-party case, each party is entitled to 6 STRIKES IN DISTRICT COURT and 3 STRIKES IN COUNTY COURT AT LAW.
In a multiple party case, EACH SIDE GETS THE SAME NUMBER OF STRIKES
EXCEPTION: Antagonism among the parties on the same side can cause the trial judge to equalize peremptory strikes. If a party wants additional strikes, they must file a MOTION TO REALIGN (motion to equalize).
106
What is a Batson Challenge?
This is a critical restriction on the peremptory challenge right. It states that a party MAY NOT EXERCISE peremptory challenges because of a panelist's RACE, ETHNICITY, or GENDER.
107
How is a Batson hearing carried out?
The challenging party may make a Batson Challenge BEFORE the court impanels the jury and dismisses the excluded panelist.
During the Batson hearing, the Batson challenger must introduce evidence to show that the true reason for the strike was the protected characteristic (race, ethnicity, or gender).
The challenger should make a record of the objection, which includes the racial composition of the panel and identify the panelists excluded by race.
INITIAL BURDEN is on the challenger to make a PRIMA FACIE case of discrimination.
If satisfied, the Batson respondent must produce a LEGITIMATE, NON-DISCRIMINATORY REASON for its decision to strike the juror in question.
It is then up to the Batson challenger to prove that the stated reason is pre-textual and that the real reason is the protected characteristic.
108
What is "The Rule?" What does it mean when a party is "Invoking The Rule?"
Purpose: To prevent witnesses from having their testimony influenced or aligned by listening to the testimony of other witnesses. Makes the witnesses leave the room when one is testifying.
A party may invoke the rule BEFORE TRIAL COMMENCES. After invoked, the judge will place the witnesses under THE RULE by swearing them in and then INSTRUCTING THEM NOT TO CONVERSE WITH OTHER WITNESSES about the case, not to be in the courtroom while testimony in the case is going on, and NOT to read any report or comment about the case.
109
Are there exceptions to "The Rule?"
Yes, the following witnesses are exempt from The Rule:
1) The party and his spouse if the party is a natural person;
2) If the party is a corporation or entity, the corporations designated representative; AND
3) A person whose presence is essential to the presentation of the case (e.g., expert witness).
110
What are the remedies if The Rule is violated? What is the appellate standard?
If The Rule is violated, the judge may decide to exclude the witness from testifying or hold the witness in contempt.
Appellate Standard - The appellate standard for reviewing the trial court's penalty decision is ABUSE OF DISCRETION.
111
What is the "jury charge?" What is the "jury verdict?"
Charge: Comprised of instructions, definitions, and questions given to the jury.
Verdict: Answer to the jury questions stated in the charge. The jury reaches the verdict after FORMAL DELIBERATIONS.
112
What are the steps in the jury charge and verdict procedures?
1) Pretrial submission of proposed charge;
2) Informal charge conference;
3) Proposed charge is given to attorneys for review;
4) Formal charge conference - parties make objections and requests on the record and get formal rulings from the court;
5) Charge is read to the jury;
6) Closing arguments;
7) Jury deliberation;
8) Supplemental instructions;
9) Jury verdict.
113
What is the difference between an objection and a request for submission to the jury charge?
Objection to the jury charge - Attorney orally or in writing states how a question, definition, or instruction in the charge is defective and how it should be corrected. Used when the court is going to submit an erroneous or defective question, instruction, or definition in the charge.
Request for submission to the charge - A written question, definition, or instruction submitted in substantially correct form. Used when the charge omits a question, instruction, or definition.
114
How is error preserved in the jury charge?
PAYNE STANDARD (this is the only test) - Whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.
115
T/F - If party with burden of proof omits an entire cause of action or defense in the jury charge, it is waived.
True.
116
T/F - If an element is omitted and neither party objects, the trial judge may make an express finding as to that omitted element after the jury has been discharged.
True.
117
T/F - If the missing element in the jury charge is brought to the attention of the appellate court, the appellate court may deem a finding that supports the judgment.
True.
118
Explain the jury deliberations. Can a juror testify about the deliberations?
The jury deliberates IN SECRET.
Formal deliberations are protected from subsequent attacks that the jurors did not follow the judge's instructions.
General Rule: A juror MAY NOT TESTIFY about any statements made or matters discussed during the formal jury deliberations or about the effect of anything on a juror's mental processes.
EXCEPTION: A juror may testify about whether an OUTSIDE INFLUENCE was brought to bear upon the jury during formal deliberations.
119
What can a party do that alleges jury misconduct?
FILE A MOTION FOR NEW TRIAL.
120
What if the jurors disagree as to witness testimony?
If so, the jury sends a note to the judge explaining that the jurors disagree as to the statement made by a witness, and the judge may permit the court reporter's notes regarding the witness's testimony to be read back to the jury as to the disputed testimony.
121
How many votes are required to render a verdict?
DISTRICT COURT - 10 of 12
COUNTY COURT AT LAW - 5 of 6
122
What is a dynamite charge?
Jury may notify court that they are deadlocked. If the jurors have not been deliberating for a lengthy amount of time, the court may provide a SUPPLEMENTAL INSTRUCTION to the jury, known as a DYNAMITE CHARGE OR ALLEN CHARGE.
This urges the jury to reach a verdict if at all possible. Tells individual jurors not to surrender their conscientious views found on the evidence UNLESS they are convinced otherwise.
The jurors are told to keep an open mind to every reasonable argument presented by other fellow jurors. Finally, they are told the case may have to be retried before another jury if a verdict is not reached.
123
What if juror answers are incomplete or conflicting as to the juror questions?
The attorneys should alert the court to the problem at the time the verdict is to be given. The court should then instruct the jury to DELIBERATE FURTHER on any unanswered questions and take steps to make sure that the jury answers questions in a way that is not inherently inconsistent.
If there is no agreement on verdict after re-deliberation, the court may declare a mistrial.
124
What is Polling the Jury?
After the verdict is read in open court, any party has the right to have each juror asked individually whether this is truly his or her verdict.
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.
If it is not, the jury may have to retire for FURTHER DELIBERATION.
125
What are the two types of challenges to "sufficiency" of evidence?
1) Legal sufficiency - May be challenged through: (a) summary judgment; (b) motion for directed verdict; (c) objection to the submission of a jury question in the jury charge; (d) motion for judgment notwithstanding the verdict (JNOV); (e) motion to disregard jury findings; OR (f) motion for new trial.
2) Factual sufficiency - May be challenged through: (a) motion for new trial; OR (b) motion for remittitur.
THE TYPE OF CHALLENGE DEPENDS ON THE STAGE OF THE TRIAL.
126
What is the absolute latest date that a Motion for JNOV can be filed?
30 DAYS AFTER THE DATE THE JUDGMENT IS SIGNED.
127
What is the scope of legal sufficiency?
The judge, in deciding a legal sufficiency challenge, should consider the evidence in the light most favorable to the non movant or the jury's finding. Further, the judge should credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.
128
What if the jury verdict was ultimately found to be unjust and manifestly wrong by the weight of the evidence?
A MOTION FOR NEW TRIAL SHOULD BE FILED.
Grounds: May be granted for GOOD CAUSE (a variety of grounds can serve as the basis). Generally, any error by trial court judge could serve as basis for motion.
129
What complaints must be made in a Motion for New Trial?
1) A complaint on which evidence must be heard, such as one of jury misconduct, newly discovered evidence, or failure to set aside a judgment by default;
2) A complaint of factual insufficiency of the evidence to support a jury finding;
3) A complaint that a jury finding is against the overwhelming weight of the evidence;
4) A complaint of inadequacy or excessiveness of the damages found by the jury (a remittitur request); OR
5) Incurable jury argument if not otherwise ruled on by the trial court.
130
What is a remittitur request?
Claims damages awarded by the jury are excessive. May be made as part of a Motion for New Trial. It asks the winning party to remit the part of the damages award that is excessive so that the damages amount is one that is supported by the evidence.
131
What is the trial court's "plenary power."
The power over its judgment that extends to grant a new trial or to vacate, modify, correct, or reform a judgment.
Texas law LIMITS time that the trial court has plenary power over its judgment.
AFTER the plenary power expires, the trial court can only make clerical changes to the judgment, a nunc pro tunc judgment, or vacate the judgment through a bill of review.
The length of plenary power depends on the action of the litigants and the judge. Any motion that seeks a substantive change in the judgment extends the plenary power of the trial court.
132
What if no motion for new trial is filed?
Trial court has 30 DAYS from the date that the judgment is signed to grant a new trial or vacate, modify, or reform the judgment.
133
What if a motion for new trial is overruled? What if the court hasn't made a ruling?
Trial court's plenary power extends an ADDITIONAL 30 DAYS from the date that the motion was overruled.
If a court hasn't made a ruling within 75 DAYS AFTER THE DATE THE JUDGMENT IS SIGNED, the motion is considered OVERRULED BY OPERATION OF LAW. Court's plenary power extends an ADDITIONAL 30 DAYS from the date it is overruled (105 days after the date the judgment was signed).
134
What if a motion for new trial is granted?
The trial court has ongoing plenary power UNTIL the original judgment is reinstated or a new judgment is signed.
135
When can a party file an appeal?
General Rule: Litigant must wait until a FINAL JUDGMENT to appeal.
136
What are interlocutory appeals?
Statutory exceptions to the general rule that allows IMMEDIATE APPEAL as a matter of right. The following are available as interlocutory orders:
1) Orders appointing a receiver or trustee;
2) Class action certification orders;
3) Orders granting or denying a termporary injunction relief;
4) Denial of official-immunity summary judgment;
5) Denial of free speech summary judgment;
6) An order that grants or denies the special appearance of a defendant;
7) An order that grants or denies a plea to the jurisdiction by a governmental unity;
8) Interlocutory orders related to expert witness reports in health care liability claims;
9) An order that denies a motion to dismiss an asbestos or silica-related claim.
137
Can an interlocutory appeal be challenged?
YES with a WRIT OF MANDAMUS - Can challenge an interlocutory ruling in which there is NO STATUTORY RIGHT to interlocutory appeal by seeking a writ of mandamus.
TEST: Whether the relator demonstrates that the lower court's ruling is:
1) A clear abuse of discretion; AND
2) No adequate appellate remedy is available.
138
What are the appellate deadlines?
DEADLINE FOR NOTICE OF APPEAL - WITHIN 30 DAYS from the date a final judgment is signed.
MOTION FOR NEW TRIAL OR MOTION TO MODIFY JUDGMENT - WITHIN 90 DAYS from the date the judgment is signed.
INTERLOCUTORY APPEALS - WITHIN 20 DAYS after the order is signed.
RESTRICTED APPEALS - WITHIN 6 MONTHS after the judgment or order is signed.
139
What is the outcome if a court erroneously denies a motion to transfer?
An erroneous venue ruling on a motion to transfer venue is reversible error. The judgment will be reversed and remanded.
140
T/F - A party who fails to amend a discovery response in a timely manner may not introduce the material or offer the testimony of a witness (other than a named party) who was not previously identified unless the court finds that the failure: (i) was made for good cause or (ii) will not unfairly surprise or prejudice the other parties.
True
141
What should the court do if a party seeks a judgment in the amount awarded by the jury, but the parties have already stipulated that insurance has discharged the plaintiff's expenses?
The judgment of the court should conform to the pleadings, the nature of the case proved, and any verdict, and the court may disregard any jury finding on a question that is not supported by the evidence.
