Texas Pretrial Flashcards
What is the scope of discovery?
information is not privileged and is relevant documents and tangible things persons with knowledge of relevant facts trial witnesses testifying and consulting experts indemnity and insurance agreements settlement agreements statements - written or recorded potential parties contentions
What does responding party file to avoid responding to a discovery response?
Motion to Protection.
What do you file to force discovery response when responding party objects?
Motion to Compel
What are the interrogatory limits in the different levels of discovery?
level 1 - 15 interrogatories
level 2 - 25 interrogatories
level 3 - unlimited but judge can place a limit
30 days to respond, 50 days if request made before party answers
What are the request for production limits in different levels of discovery?
level 1 - 15 requests
level 2&3 - unlimited but judge can place a limit
30 days to respond, 50 days if request made before party answers
What are the request for admissions limits in different level’s of discovery?
level 1 - 15 admissions
level 2&3 - unlimited but judge can place a limit
30 days to respond, 50 days if request made before party answers
What are the limits on request for disclosure?
there are no objections to request for disclosure
30 days to respond, 50 days if request made before party answers
filed at least 30 days before close of discovery
level 1 - all relevant documents in party’s possession
what can be requested in requests for disclosure?
parties potential parties legal theories of claims or defenses people with knowledge or relevant facts testifying expert witnesses economic damages indemnity/insurance agreements settlement agreements witness statements medical records medical authorization responsible 3rd parties in level 1 - can ask for all relevant documents in party's possession
what are the 2 steps for asserting privilege?
withholding statement
privilege log
what is required in a withholding statement?
state material being withheld, identify request, assert the privilege
what is required in the privilege log?
identify the material withheld without disclosing privilege
assert the specific privilege
when and how is a privilege asserted?
party asserts privilege in response to request. Upon receiving the request the other party can request the material and privilege be identified. Asserting party prepares a privilege log within 15 days.
what is the rule for request for production, entry on land?
Requesting party must give notice to all owners of the property even if they are not parties. Give timing, describe the nature and scope of entry, disclose methods and procedure for testing and sampling. Includes entering property or testing equipment etc.
What is the obligation to supplement?
A party must amend or supplement production if the party discovers additional information, documents, or witnesses after it has already responded to discovery. The supplement must be done as soon as reasonably possible and at least 30 days before trial.
what types of discovery can be used to obtain insurance information?
Request for Disclosure
interrogatories
request for production.
What is the limit on insurance information?
Responding party is required to disclose insurance to the requesting party but the information is not admissible as evidence.
Are witness statements discoverable?
yes, written or recorded witness statements are discoverable even if witness does not sign them.
Notes taken during the interview or statement are work product and are not discoverable.
What is the work product rule?
Attorney’s core work product is protected from discovery. Includes material prepared, mental impressions, of attorney and his agents or communications between attorney and client in anticipation of litigation.
What happens when a document is inadvertently produced.
Producing party can use clawback provision to retrieve the document within 30 days of discovering it. Receiving party must return document and cannot use it.
What is the rule for medical authorization?
Responding party is required to provide one if the suit involves claims of injuries. Allows the requesting party to get authenticated records from the custodian of the records.
What is the deadline for request for admissions and what happens if party misses deadline?
party must respond within 30 days, 50 days if request made before answer. They are deemed admitted if not answered in time.
How can a responding party correct failure to respond to request for admissions on time?
File a motion to withdraw, must show the court a good reason for failing to respond on time and the withdraw must not prejudice the other parties.
How do you determine the amount in controversy?
it’s stated in the pleadings, used to determine jurisdiction and discovery control plan. Discovery cannot continue unless amount in controversy is stated.
What is included in amount in controversy
damages, attorney fees, interest. can supplement when it changes over time. court costs not included
are claims aggregated
multiple plaintiff claims are aggregated
multiple defendant claims are not aggregated
1 plaintiff,multiple defendants are not aggregated
jurisdictional limits for district court
over $500
slander
jurisdictional limit for county court
$200 - $10k depending on county
jurisdiction limit for justice of the peace
$200 - $10k
forcible detainer
jurisdiction limit for probate court
dominant jurisdiction over probate and guardianship matters in counties that have statutory probate court, otherwise use county court at law.
court can decide to transfer matters to district court at it’s discretion
rule on amount in controversy and jurisdiction?
pleading must state amount in controversy to ensure it is within the jurisdictional limits of the court.
can subject matter jurisdiction be waived?
no, only personal jurisdiction can be waived.
what is the effect, on statute of limitations, of filing in the wrong court?
stops the statute of limitations period.
what is the most important thing about filing a motion for recusal?
make sure there’s good grounds for it because you will alienate the judge by filing one.
What are the grounds for disqualification of a judge?
1 personal interested in the subject matter of the case
2 related to party withing 3 degree relation
4 worked on the matter or attorney associated with judge worked on the matter at the time
can order granting or denying motion to Recuse be appealed?
order denying can be reviewed for abuse of discretion
order granting is final and cannot be reviewed
can order granting or denying disqualification be appealed?
yes, it is mandamusable
What are the grounds for recusal?
- impartiality questioned
2 bias or prejudice regarding subject matter
3 personal knowledge of evidence
4 spouse or 1st degree relation is a lawyer in case
What judges can you object to?
retired administrative judges
temporary judges
can not object to active judges
you only get 1 objection to judges
how long do you have to object to a judge?
no later than 7 days
can you object if a judge who lost the last election is assigned to your case?
yes, and you get unlimited objections on judges who lost the last election.
what is the plain language rule?
You use statutory language to determine legislative intent unless there are ambiguities.
what is the effect of signing pleadings?
attorney certifies that:
1 it is proper, has proper purpose and not to harass
2 claims and defenses have a basis in law
3 there is evidence to support allegations and facts
4 denials and assertions are warranted by evidence
Who can enter a motion for sanctions?
court on it’s own initiative
any party in proceeding
what types of sanctions can a court impose?
1 direct violator to perform or refrain from performing an act
2 impose a fine or penalty
3 order violator to pay other party’s fees and expenses
How do you determine the attorney in charge?
It is the first attorney listed in pleading. An attorney can also be designated. once an attorney is the attorney in charge it can only be changed in writing. All communication for that party is sent to attorney in charge.
When can an attorney withdraw and what must he do to withdraw?
attorney may withdraw by filing a written motion if
1 there is good cause to withdraw.
2 withdrawal is not adverse to client’s interest
3 client persists in course of action that is criminal or fraudulent
4 client used lawyer to perpetrate crime or fraud
5 client wants to pursue objective lawyer doesn’t agree with
6 attorney fees not paid
7 financial burden on attorney
Can a party object to a motion to withdraw?
yes a party can object of consent to the withdrawal. it must be stated in the motion.
what happens if another attorney is not substituted when an attorney withdraws?
motion must state: motion delivered to the party party notified of right to reject motion whether party consents party's last known address list of pending settings and deadlines
what happens if judge approves motion to withdraw?
Judge is not required to approve motion. If judge approves motion attorney must take reasonable steps to ensure client’s interests are protected, turn over file, advise of pending deadlines, return unearned fees, and ensure client has adequate counsel. new attorney must be designated as attorney in charge
What can judge do if motion to withdraw is filed on the eve of trial?
deny motion and make attorney try the case
give the client a continuance so he can find a new layer
A person can appeal an interlocutory order if it:
1 it appoints a receiver or trustee
2 overrules a motion to vacate
3 certifies or refuses to certify class action
4 ruling on temporary injunction
5 denies summary judgment based on immunity or constitutional right
6 grants or denies special appearance
7 grants or denies plea to the jurisdiction
What is the effect of an interlocutory appeal?
it stays court proceeds and trial pending resolution of appeal.
A person can appeal a judgment under the General Arbitration Act if it:
denies application to compel arbitration
grants application to stay arbitration
what is a writ of mandamus?
When a court commands a lower court or a public official to act in accordance with the law. There must be an abuse of discretion and no other remedy.
What type of evidence is considered at a hearing for a special appearance?
Witness testimony and previously filed documents and affidavits.
What is the difference between the clerk’s record and the reporter’s record?
Clerk’s record includes all documents filed with the court.
Reporters records is the transcripts of the hearings or trial.
How do you preserve error for an appeal?
with timely objections and motions with specific grounds. Ask the court to make a ruling or refuse to rule on the record. objection will be overrule if not timely.
What is harmless error?
When a court makes error that doesn’t cause an improper judgment or didn’t prevent appellant from properly presenting their case.
What happens when court’s error only affects part of the case?
The appellate court can order a new trial on that issue alone instead of an entire new trial.
What is the standard method of filing documents with the court?
electronic filing is required in most counties, pro se parties may file hard copies.
Are all documents filed with the court?
All pleadings, motions and applications must be filed with the court and served on all parties.
Discovery can be exchanged between the parties. Mail is considered served when mailed, faxes and emails when transmitted. 3 days are added to response when mailed.
What is the rule for counting days?
day of act is 0, Sat, Sun & holidays can’t count as last day, 5 day notices do not include Sat Sun & holidays but some 3 day notices include Sat Sun & holidays.
When will the court grant an enlargement of time to respond?
When it is made before the deadline and good cause exists.
What are the exceptions to electronic filing requirements?
Wills, documents filed under seal or in camera, and documents with restricted access.
What do you have to do to initiate a lawsuit?
file a petition, pay fee, request clerk issue a citation, pay fee, request service of citation & petition, and pay fee.
What documents are served on defendants to require an answer?
The citation issued by clerk and a copy of the petition is served on defendant.
How long does a defendant have to respond to a petition?
by 10 am, on the monday next after the expiration of 20 days after the date of service of citation.
What is the proper form of service?
delivery in person by constable, person authorized by court, or authorized process server.
CMRR or registered mail
substitute service - leave with or publication
Who gets served?
Individual - individual
Partnership - any partner
Corporation - registered agent, officer, Secretary of State
LLC - member/manager depending on they type
nonprofit - committee member authorized to perform chief executive function
How to serve nonresidents?
when they are in the state through registered agent secretary of state long arm statute drivers - Chairperson of the Texas Transportation commission
How soon do you have to serve someone and does it affect the statute of limitations
You must make a diligent effort to serve someone as soon as the citation is issued. If a diligent effort is made the SOL can be tolled, if a diligent effort is not made then SOL can be used as a defense
What can a defendant do if service is defective?
Can file a motion to quash service to buy time or file an answer and waive defective service.
What are the 3 pleadings used to overturn a default judgment?
motion for new trial
restricted appeal
bill of review
What is the deadline for appealing a default judgment
Motion for new trial - 30 days
restricted appeal - 6 months
bill of review 4 years
what is the most common defense against a default judgment?
- lack of notice
not a defense if notice is refused
What are the new trial Craddock factors?
must show court:
1 default not intentional
2 meritorious defense exists
3 new trial would cause neither delay nor undue prejudice
3 elements for Bill of Review?
- meritorious defense existed (in pretrial)
trial on:
2 petition prevented from defense
3 petitioner was not negligent
How does a court assert in personam jurisdiction over a non resident?
1 long arm statute
2 jurisdiction is consistent with federal and state constitutional due process guarantees
What are minimum contacts?
when a defendant purposefully avails itself of the privilege of conducting activities in the forum state
Who has the burden in a special appearance?
defendant must prove there is no jurisdiction
What action must a defendant take to fight personal jurisdiction and when must the action be taken?
defendant must file a verified special appearance before or concurrent with any other pleading, failure to do so can waive right to challenge personal jurisdiction.
How do you serve an out of state defendant who is not registered with the secretary of state?
serve through the secretary of state using the long arm statute one you establish minimum contacts.
What is the due order of pleadings?
Failure to file pleadings in a specific order can result in waiving protection.
1 verified special appearance
2 motion to transfer
3 answer
Can you argue a motion or conduct discovery while the special appearance is pending?
No, arguing a motion or filing discovery waives jurisdiction. The court will allow jurisdictional discovery to prove up special appearance.
Is jurisdiction waived if the special appearance is not verified?
No, the court will allow you to fix the error but it must be done ASAP.
What type of evidence is admissible in a special appearance hearing?
pleadings, stipulations, affidavits, attachments, discovery, and testimony
What are defendant’s options if special appearance is overruled?
file an interlocutory appeal
mandamus
sue in proper county or proper state
what is the standard of review when appealing ruling on a special appearance?
de novo
can you appeal an appellate’s court ruling on a special appearance?
no, the Supreme Court will not hear an appeal of the special appearance but can still hear an appeal of the case.
can you collaterally attack on a default judgment if service was not proper?
yes, there must be proper service to support a default judgment.
can you collaterally attack a default judgment after making a special appearance?
no, making a special appearance subjects you to the jurisdiction of the court if you loose the special appearance.
do you have to meet all 6 factors for forum non conveniens?
no, they are factors not elements.
what are the 6 factors for forum non conveniens?
1 alternate venue exists
2 adequate remedy in alternate venue
3 substantial injustice
4 jurisdiction over all parties in alternate venue
5 balance of private & public interests
6 no unreasonable duplication or proliferation of litigation
can the court set conditions when granting or denying a forum non conveniens?
yes, the court can set conditions and withdraw it’s order in the interests of justice.
When must a forum non conveniens be files and how much notice is required?
Filed within 180 days of when motion to transfer venue is due. Must give notice at least 21 days before hearing. Hearing must be at least 30 days before trial.
Factors for opposing a forum selection clause?
1 enforcement unreasonable or unjust
2 clause invalid for fraud or overreaching
3 contravene’s public policy
4 forum seriously inconvenient for trial
Is a choice of law clause enforceable even if it contradicts laws of the state?
yes, unless
1 the state has no relationship to the parties or transaction or
2 it contradicts a fundamental policy the state has an material interest in enforcing
3 results in substantial injustice
On what basis is a choice of law clause opposed?
if it is obtained by improper means - misrepresentation, duress, undue influence, or mistake.
Is a choice of law clause enforceable in an adhesion contract?
yes if the party is given notice of the clause ahead of time. the provision must be conspicuous and stand out in the contract or it is voidable.
What is the proper venue for a suit?
1 county where all or a substantial portion of the events giving rise to the claim occur
2 county of residence of defendant
3 principal office of defendant
4 county of residence of plaintiff
How does the mailbox rule affect discovery responses?
responses are considered made when mailed
mailing requests adds 3 days to time to respond
When must a motion to transfer venue be filed?
prior to or contemporaneously with an answer or any other pleading except a special appearance, failure to do so waives right to challenge venue.
what is mandatory venue?
when a case is required to be filed in a specific county, they can’t be transferred to other counties.
what is permissive venue?
when it’s possible to hear a case in a particular county, once filed in the proper venue, the case can’t be moved without consent of the parties.
what is improper venue
when a case is filed in a county that cannot hear it
standard of review for venue challenges
after judgment - if improper it’s reversible error, no harmless error rule
interlocutory appeal - de novo
mandamus - abuse of discretion
how do you determine principal office
where decision makers conduct daily affairs of organization
office not subordinate or controlled by another Texas office
venue rule for executor, administrator or guardian?
if suit related to estate venue is proper where estate is
if suit related to representative’s conduct venue is proper where representative resides
venue rule for insurance?
venue proper where policy holder or beneficiary reside at the time cause of action accrued or where insurance company principal office is
venue rule for contract in writing?
venue is proper where contract signed, where action commences or where agreed in contract
examples of cases with mandatory venue
1 land 2 landlord tenant 3 injunctions in suit, 4 head of state department 5 counties 6 political subdivision 7 libel or slander 8 prison inmate 9 major transactions
venue rule for multiple defendants
once you establish venue over one defendant it is proper against all defendants
venue rule for multiple plaintiffs
plaintiffs must establish venue independently of other plaintiffs, subject to interlocutory appeal
venue procedure
1 plead venue in petition 2 motion to transfer venue 3 due order of pleadings 4 state venue not proper 5 deny venue facts or waive 6 specify proper venue & allege venue facts 7 burden shifts to plaintiff
deadlines for venue challenge
45 days notice of hearing
response due 30 days before hearing
can file up to 7 days before hearing with leave of court
who decides venue?
judge only, no jury
is venue established when events occurred or when suit filed?
when events occurred, prevents forum shopping
what effect does waiver of venue by one defendant have on other defendants?
no effect, other defendants can still challenge venue
does a motion for continuance waive venue?
no, special appearance and continuance do not waive venue challenge
does discovery waive venue?
no it does not waive venue challenges but will waive jurisdiction challenges
can venue be changed if it is in a proper county?
no, once it has been decided it is fixed, can only be transferred by agreement of the parties.
what type of evidence is use in venue hearing?
pleadings, stipulations, affidavits and attachments, no testimony from witnesses
How do you add new parties after the deadline to add new parties?
Plaintiff can file amended petition naming new parties. Since the deadline has passed, plaintiff must ask for leave of court to amend petition.
When are affirmative defenses raised?
Affirmative defenses are raised in answer or amended answer and must be plead separately. They are filed at least 7 days before trial but can be filed withing 7 days of trial with leave of the court.
What is a special exception and why is it used?
A special exception is filed by defendant and must point out defect, omission, obscurity, duplicity, generality or other insufficiency in pleading. The court will order plaintiff to amend or replead, failure to do so will result in a dismissal of the pleading/case. Failure to file special exceptions waives defects in pleading.
Name some affirmative defenses.
contributory/comparative negligence, necessity, statute of limitations, settlement/release of claims, accord and satisfaction, arbitration and award, assumption of risk, bankruptcy, duress, estoppel, fraud, failure of consideration, illegality, laches, license, res judicata, statute of frauds,waiver
Which defenses must be verified by affidavit?
plaintiff lack of capacity plaintiff not entitle to sue in this capacity defendant sued in wrong capacity suit pending in another court defect of parties usury denial of partnership denial of execution of document not using assumed name
Requirements for petition?
1 names and addresses of parties 2 statement that gives notice of claim 3 statement that damages are in limits of court 4 discovery/relief level 5 demand for judgment 6 prayer
signing of pleadings
signed by attorney, list bar number, address, phone and email, first attorney listed is attorney of record.
pro se may sign and provide address and phone number
what is the difference between amended pleading and supplemental pleading?
amended pleading contains entire pleading and replaces previous pleading. supplemental pleading adds to previously filed pleading and only contains changes.
What constitutes fair notice?
when the defendant is served and the petition clearly states a cause of action, the nature of the claims, and relief sought.
Does the plaintiff have to state actual amount sought in petition?
no, plaintiff can pick a level using a maximum and minimum amount.
What is the difference between special damages and general damages?
general damages are asked for in general pray while special damages must be specifically stated.
What is the interest rate for a judgment?
1 contract rate or
2 18% a year or
3 between 5% & 15% depending on Federal Reserve
prejudgment interest based on post judgment interest
What do you file to dismiss an action not recognized under Texas Law?
TRCP 91 motion to dismiss a baseless cause of action within 60 days. The court will decide based on pleadings and will not consider evidence. Court will grant if all alleged facts are true and plaintiff is not entitled to relief. The prevailing party is entitled to attorney fees.
Does a rule 91a motion waive special appearance?
No, personal appearance and venue are not waived. filing party does submit to the court’s jurisdiction and is bound by the court’s decision. 91a’s are front loaded and designed to be heard fast.
Is the movant entitled to attorney’s fees if the nonmovant nonsuits the claim?
No, movant is only entitled to attorney’s fees if the trial court or appellate court rules on the motion in his favor.
What is the misnomer of pleadings rule?
The court may, at it’s discretion, redesignate a pleading to correct an error if it is in the interest of justice.
can pleadings be amended after the statute of limitations passes?
yes, as long as the original pleadings are filed timely, subsequent amendments are allowed after the statute of limitations has passed.
what is the latest a pleading can be amended?
Pleadings can be amended up to 7 days before trial. A party must ask for leave of the court to amended within 7 days of trial.
what are respondent’s options if the court allows movant to file an amendment right before trial?
file motion to to strike pleading based on surprise. If that fails, ask for a continuance.
Who bears the burden on an affirmative defense?
the defendant bears the burden of proving.
What is the rule for conditions precedent?
Presumed to have occurred if plead unless the opposing party specifically denies them.
In a negligence case, what must plaintiff prove if defendant files a general denial?
all the elements of negligence - duty, breach, causation and damages
what is an inferential rebuttal?
an act of god, new and independent cause, sole proximate cause, emergency or unavoidable accident that allows defendant to deny liability by inference.
what is the result of pleading an inferential rebuttal?
It allows defendant to get a jury instruction. It doesn’t change plaintiff’s burden of proof but requires plaintiff to rebut the issue.
What is the difference between counterclaims and cross claims?
counterclaim is made by defendant against plaintiff. cross claims are made between 2 defendants.
what is a compulsory counterclaim?
a claim that must be brought in the cause of action because it arises from the same transaction or occurrence that is the subject matter of the opposing party’s claim.
what is a permissive counterclaim?
A counterclaim that can be brought up in this litigation or in a separate lawsuit.
what is a trial amendment?
amendment filed when issues are tried with express or implied consent of the parties. A party must amend pleadings during trial to address these issues.
If you plead level 1 and the jury grants you a larger verdict, are you allowed to amend?
No, level 1 is designed for fast discovery because of the lower amount of awards. The courts will limit the award in fairness to the parties.
What is a plea in abatement?
A pleading to pause case due to a deficiency in the pleadings. If the case already exists in another county then the first county will have dominant jurisdiction.
