Trials

Question 1

hypo: when you have a number of similar lawsuits, involving similar but not the same issues of law and fact
ex: lawsuits against city for imposing new tax

Answer 1

in pursuit of consistent judgement and judicial efficiency, all similar cases will be moved to the same Section or Division in which the first filed action is pending

“consolidation of trials”

Question 2

consolidation of trials will not be done if:

Answer 2

if consolidation will cause jury confusion
if consolidation would prevent a fair and impartial trial
give one party an undue advantage
or prejudice the rights of any party

Question 3

a court may order seperate trials in order to

Answer 3

determine liability or damages

with consent of parties
if it will simplify the proceedings, permit more orderly disposition of case, or otherwise be in interest of justice.

Question 4

2 mandatory continuance ciricumstances

Answer 4

the court must grant a continuance if the parties are unable, with due diligence, to obtain material evidence

a court must grant a continuance
if a material witness has absented himself without the contrivance of the party requesting the continuance.
then, adverse party can prevent continuance by requiring the requesting party to disclose under oath the expected testimony of the absent witness
and if the adverse party admits the witness would so testify, the case will proceed to trial

Question 5

how to get objected-to evidence into the record anyway

this is when at trial, a voice objection is sustained

Answer 5

the party whose evidence was successfully objected to may make an offer of proof

this evidence is excluded from the trial but is in the appellate review record

at party’s request, court may allow excluded evidence to be offered subject to cross examination (1) on the record during a recess or (2) by deposition within 30 days of conclusion of trial.

Question 6

voluntary dismissal rule

Answer 6

plaintiff can obtain a voluntary dismissal without prejudice prior to any appearance of record by the defendant; following any appearance by the defendant, court may decline to grant dismissal e except with prejudice

Question 7

valid motion to involuntary dismissal trigger

Answer 7

in an action tried without a jury:

any party can move for an involuntary dismissal after close of plaintiff’s case, asserting that plaintiff has not shown any right to relief on the facts and law.

granted if court concludes by the preponderance of the evidence. court evaluates plaintiff’s evidence without applying any special inferences in favor of plaintiffs

also, in favor of defendant for whom service has not been requested within 90 days, unless good cause shown. for this defendant, interruption of prescription considered never to have occurred.

also, if plaintiff fails to appear at trial

Question 8

plaintiff has the right to a jury trial except

Answer 8

if there is no claim that rises to level of $50k

suits against a political subdivision (ie, city), but jury trials are allowed against the state.

Question 9

**when to request jury trial

Answer 9

request must be made within 10 days of the filing of any pleading that raises an issue triable by jury
OR
within 10 days of the withdrawal of the other party’s request for trial by jury

Question 10

2 types of challenges to a juror’s suitability to be selected

Answer 10

peremptory challenges

challenges for cause

Question 11

peremptory challenges

Answer 11

if 12 member jury, get 6 peremptory challenges, up to 4 additional if multiple parties

if 6 member jury, get 3 peremptory challenges, up to 2 additional if multiple parties

Question 12

peremptory challenge definition

Answer 12

a challenge to a juror that you can make without stating why you don’t want the juror, as long as not on any constitutionally impermissible basis

Question 13

juror challenges for cause reasons

Answer 13

(1) lack legal qualifications
(2) juror has formed an opinion or is otherwise not impartial
(3) relations between juror and party or attorney would influence juror
(4) juror has been on a jury of a case with similar facts
(5) if the juror takes the 5th amendment on voir dire

Question 14

time period for peremptory challenge

Answer 14

can be made up to the time the jury haas been accepted and sworn

Question 15

challenges for cause time period

Answer 15

can be issued up to the time of taking of evidence

Question 16

judge’s commentary in front of jury

Answer 16

cannot comment on the facts

can instruct jury throughout the trial

must instruct the jury on the law after the trial

Question 17

during deliberations, jury has right to review evidence - specific rules

Answer 17

they may see any physical object or evidence brought to jury room
if they want to hear testimony again, they will be brought to the courtroom and that testimony transcript will be read to them

Question 18

jury instructions

Answer 18

party may file written request for jury instructions

court must reduce instructions and charges to writing

Question 19

juror’s actions

Answer 19

can take notes, can use during deliberations

not preserved for appeal, destroyed after verdict

Question 20

jury size & jurors needed for verdict

Answer 20

juries are usually 12 people, then need 9 jurors for verdict

if 6 person verdict, then 5 jurors for verdict

Question 21

directed verdict

Answer 21

in a jury trial, either party can make a motion for directed verdict

must state grounds on which motion based

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

Question 22

*judgement not withstanding the verdict time period and standard

Answer 22

time period = filed within 7 days, exclusive of holidays, from the mailing or notice of the signing of judgement

standard for granting = after considering all the evidence in the light most favorable to the non-moving party, if the facts and inferences so strongly and overwhelmingly favor one party that reasonable persons could not reach a contrary result

Question 23

hypo: if damage award from trial is clearly excessive or clearly inadequate, and the court could hold a new trial on damages alone (ie, severable), then court can =

Answer 23

court can enter remittitur to reduce damages

court can enter additur to increase damages

court must ask consent from impacted party as an alternative to granting new trial on damages alone

appeal of reformed judgement is allowed if party disagrees with court’s calculation of damages

Question 24

special verdict form

Answer 24

in which court submits written questions to jury

if tort case, then special verdict form must have questions regarding fault, cause, comparable fault, damages in dollars

Question 25

general verdict form

Answer 25

court submits interrogatories about findings of facts necessary to verdict
along with general verdict forms

if fact answers are internally inconsistent, new trial or ask jury to reconsider

Question 26

interlocutory judgment definition

Answer 26

an interlocutory judgment does not determine the merits

Question 27

final judgment amendments

Answer 27

allowed only to correct errors of calculation or alter phraseology
not to alter the substance

Question 28

partial final judgments that are immediately appealable

Answer 28

are those rendered with finality by the court even though all the issues have not been adjudicated when:
court dismisses suit as to less than all parties
grants motion for judgment on the pleadings
grants motion for summary judgment

Question 29

hypo: if court dismisses suit as to less than all the parties, could be motion for summary judgment, etc

Answer 29

then that is a partial final judgment and is immediately appealable

Question 30

findings of fact and reasons for judgment in non-jury cases

Answer 30

the court must issue written findings of fact and reasons for judgment when requested by party to do so within 1 0 days of notice of judgment

Question 31

after jury trial, court must prepare and sign a judgment in accordance with the verdict

Answer 31

within 10 days of verdict

Question 32

after compromise reached between parties, and recited into records

Answer 32

court may order counsel to prepare and submit a judgment within 20 days of recital

Question 33

declaratory judgments

Answer 33

type of final judgment

used to determine rights of parties before contract has been breached

Question 34

3 grounds for motion for a new trial

Answer 34

(1) a verdict is clearly contrary to law and evidence
(2) discovery of new evidence which could not have been discovered with due diligence before or during trial
(3) when a juror is bribed or compromised

Question 35

motion for new trial timing and standard

Answer 35

must be filed within 7 days from mailing or service o f signing of judgment

judge may evaluate all evidence without favoring either party

Question 36

two types of action of nullity

Answer 36

annulment for vices of form

annulment for vices of substance

Question 37

annulment for vices of form rule

Answer 37

final judgment shall be annulled if rendered by incompetent person;
against someone improperly served;
against someone against whom valid default judgment wasnt properly entered;
or rendered by court lacking SMJ

timing: may be brought at any time
may be asserted collaterally, ie, on appeal

exception: if defendant who voluntarily acquiesced to judgment cannot so move

Question 38

hypo: default judgment was issued without waiting the full 2 days

Answer 38

move for annulment of judgment for vices of form

Question 39

annulment for vices of substance

Answer 39

final judgment obtained by fraud or ill practices may be annulled

timing: must be brought within 1 year from discovery

must be asserted directly, not collaterally (on appeal)

Question 40

hypo: suit filed with a bunch of disparate actions alleged by different plaintiff suing one defendant. what does attorney do?

Answer 40

file dilatory exception for improper cumulation of actions

Question 41

term for motion to increase damages without new trial

Answer 41

motion for additur

Question 42

if you do want a new trial on damages, what do you file?

Answer 42

motion for new trial on issue of quantum

Question 43

in order for judge to issue additur as alternative to new trial, parties must do what?

Answer 43

consent