TX Civ Pro

Question 1

Justice Courts have jurisdiction over cases up to what amount in controversy?

Answer 1

$10,000

Question 2

Constitutional County Courts have jurisdiction over cases for what amount in controversy?

Answer 2

From $200.01 - $10,000

Question 3

District courts have jurisdiction over cases for what amount in controversy?

Answer 3

Any case that exceeds $500

Question 4

The original petition serves what two purposes?

Answer 4

1. Give fair notice to the parties of the facts and legal theories
2. Guides the trial judge for the purpose of admitting evidence and in charging the jury

Question 5

What are the formal requirements for an original petition?

Answer 5

1. names of parties and their residences
2. statement giving sufficient fair notice of claim
3. statement that damages are within the jurisdictional limit of the court and the amount of damages
4. a demand for judgment for all other relief which the party deems himself entitled
5. just be signed by party and attorney

Question 6

Suppose plaintiff is injured in defendant’s store. Plaintiff files an original petition alleging injuries to his back and neck. Ten days before trial, plaintiff’s doctor diagnoses injuries to plaintiff’s foot. Five days before trial, plaintiff files an amended petition seeking recovery of damages for injury to his foot. Defendant objects to the amendment. Should the court sustain the objection?

Answer 6

Yes. An amendment may be made without leave of court if it is made more than 7 days before trial. A motion seeking leave of court is required if the amended pleading is filed within 7 days before trial.

Question 7

Minimum contacts

Answer 7

1. The non-resident defendant or foreign corporation must purposefully do some act or consummate some transaction in Texas
2. The cause of action must arise from, or be connected with, this act or transaction
3. The assumption of jurisdiction by Texas must not offend traditional notions of fair play and substantial justice

Question 8

What happens if the plaintiff is unsuccessful in attempting to serve the defendant either in person or by mail?

Answer 8

The plaintiff may file a motion with an affidavit stating the usual place of abode or business of the defendant and asserting facts showing that service has been attempting, but unsuccessful.

The court may then authorize service by leaving a copy of the citation and petition with anyone over 16 years of age at the location specified in the affidavit, or by any manner that will reasonably give the defendant notice of the suit.

Question 9

What if a plaintiff cannot find the defendant or his residence, how can the plaintiff serve the defendant?

Answer 9

The clerk of the court can issue service by publication

Question 10

Suppose plaintiff sues defendant for personal injuries and the case is ordered to mediation. At mediation, the parties agree to settle for a payment of $10,000 and the execution of mutual releases. The mediator had all parties sign a written agreement to that effect. The next day, plaintiff informs her attorney that she was too hasty in settling and that she is sure she can get more money at trial. The defense attorney wants to enforce the written agreement and files a “Motion to Enter Consent Judgment.” Can the court properly enter a consent judgment upon proof of the signed settlement agreement?

Answer 10

No. A consent judgment cannot be entered unless at the time the judgment is rendered, all parties consent to the judgment. Since plaintiff has withdrawn her consent before rendition, a consent judgment would be improper.

Question 11

Elements for minimum contacts?

Answer 11

There are three elements to establish minimum contacts: (i) the foreign corporation purposely entered into a contract with the plaintiff in Texas, (ii) the cause of action arose from such transaction, and (iii) the assumption of jurisdiction does not offend traditional notions of fair play and substantial justice.

Question 12

Many of P’s most important customers are major employers in Tarrant County. Their employees are outraged at the widget failures. Critical news coverage has been extensive. Aside from mandatory or permissive issues, do D’s have any other basis for a change of venue and, if so, what is required to bring the argument before court?

Answer 12

Yes, D’s have another basis for a change of venue. To bring the argument before the court, D must file a motion to change venue. The motion must be supported by D’s own affidavits and the affidavits of at least three credible persons who are residents of the county of suit, asserting that there is such a prejudice against D in the county of suit that they cannot obtain a fair and impartial trial.

Question 13

D was properly served with citation and mailed the suit papers and citation to his attorney. The package, however, was misdelivered. D did not file an answer. P obtained a default judgment against D. Describe one remedy that D may have to attack the default judgment in the trial court, and the time deadlines, if any, for such remedy.

Answer 13

To attack the default judgment, D can file, within 30 days, an equitable motion for new trial. For the motion to be granted, D must establish that: (i) its failure to answer was not intentional or result of conscious indifference but due to a mistake or accident, (ii) it has a meritorious defense, and (iii) the granting of the motion will not occasion any delay or otherwise work an injury to the plaintiff.

Question 14

D files a timely answer and also files a counterclaim against P for accounts she has not paid. She had bought widgets from D on account. What elements must D satisfy to meet the requirements for bringing a suit on a sworn account under TRCP 185?

Answer 14

To meet the requirements for bringing suit on a sworn account, D must by sworn affidavit allege that: (i) the claim is for liquidated money on a written contract where a systematic record has been kept; (ii) the claim is within the knowledge of the affiant, just and true, and is due; and (iii) all just and lawful offsets, payments, and credits have been allowed.

Question 15

D’s counterclaim against P met all requirements for a suit on a sworn account. P filed a general denial. Without offering any supporting evidence on his counterclaim, D moves to preclude P from offering any evidence at trial in defense of his counterclaim. How should the court rule?

Answer 15

The court should rule in favor of D. TRCP 185 requires a party resisting a claim for suit on a sworn account to file a written denial under oath (not a general denial) in order to offer evidence in denial of the claim. P’s answer is not a proper answer under this rule, and therefore, the trial court must sustain D’s objection.

Question 16

P has established venue on claims against D1 because their contract specified venue in Tarrant County. However, because D2 was an out-of-state corporation, there was no venue clause in the contract between P and D2. Does D2 have any valid objections to venue?

Answer 16

There are two possible answers to this question.

The first is that no, D2 does not have any valid objections to venue because P may use the county of her residence, Tarrant, under the general venue rule when the defendant is a nonresident and the cause of action arose outside of Texas.

The second is that no, D2 does not have any vlicd objections to venue because P may use the permissive exception (suit on a written contract), which allows suit to be brought in the county where the defendant is to perform. Here, D2 was to perform his obligation by delivering the widgets to P’s warehouse in Tarrant County.

Question 17

P designated Level 2 of the Discovery Control Plan for this case. D’s counterclaim for damage to business reputation exceeds the damages prayed for by P. D believes that Level 2 does not allow sufficient discovery for his counterclaim. What, if any, options does D have to adjust the level of discovery?

Answer 17

To adjust level of discovery, D should seek a level 3 discovery plan and have it tailored to a level of discovery D believes is more adequate.

Question 18

List three items of info that must be produced if requested under a Rule 194 request for disclosure, and state when the response is due.

Answer 18

(i) correct names of parties to the suit
(ii) the name, address, and telephone number of any potential party
(iii) the amount and any method of of calculating economic damages.

The response is due 30 days after service upon P or 30 days after service on a D unless the defendant is served before time to answer the suit, and in that event the defendant has 50 days.

Question 19

Assume this is a level 2 case. A depo of a witness is now entering the 60th hour of cumulative time taken thus far in deposing witnesses, by the side examine this witness. What objection or instruction, if any, is available to counsel who wants to end the deposition?

Answer 19

The Texas rules provide that if the time limitations for a deposition have expired, a party or the witness may suspend the oral deposition.

Question 20

D wants to physically view and examine the refrigerated facility where P stored the widgets. P objects. What valid options does D have to obtain access?

Answer 20

To gain access to P’s facility, D should file a request or motion for entry upon the property. This allows a party to gain entry upon property to inspect, measure, survey, photograph, or sample the property in question.

Question 21

D’s designated expert witness reviewed a report of D’s consulting witness. At his deep, D’s expert testified that he reviewed this report. P immediately requests that D produce the report of the consulting witness. D declines to produce it. How should the court rule?

Answer 21

The court should grant P’s request. Once a testifying witness reviews a report by a consulting expert, the report becomes discoverable.

Question 22

After full discovery, P failed to produce any evidence of defect in the widgets. What pretrial procedures are available to D to possibly avoid the necessity for trial?

Answer 22

For D to avoid the necessity of a trial, it should file a no evidence motion for summary judgment. The motion may be filed after an adequate time for discovery has elapsed (that is satisfied here because full discovery has taken place.

Question 23

During jury selection in a state district court, how many peremptory challenges does each defendant have?

Answer 23

Each party is entitled to six peremptory challenges in district court. With two defendants, each defendant is entitled to six peremptory challenges if the defendants are antagonistic on any issue to be submitted to the jury. If not, then the defendants will share the six challenges.

Question 24

The court granted D’s motion in liming precluding references to other litigation filed or pending against D. In opening statements, P’s attorney referred to the fact that D has been sued 10 times, “so he ought feel at home in the courtroom.” What valid objections or motions are available to D, and when should they be asserted?

Answer 24

The objection available to D is that P violating the motion in liming. But note that the motion in liming is only a preliminary ruling. D must object at the time P makes the statements to preserve error, obtain a ruling by the court disallowing the evidence, and have the court properly instruct the jury to disregard the statement.

Question 25

D made a written request that P produce, for inspection, her employees’ written reports evaluating the function of the widgets she purchased from D after they were returned to her by her customers with claims that they were defective. P responded that she lost the reports and could not find them. D believes that it has been prejudiced in not being able to review these reports. What relief, if any, is available to D to cure the arguable prejudice?

Answer 25

Case law allows the trial court to sanction P, including disallowing the evidence or possibly dismissing P’s case. In addition, the court may instruct the jury in the jury charge to the effect that if a party (P) fails to produce evidence that is under her control and reasonably available to her and not reasonably available to the adverse party (D), then the jury may infer that the evidence is unfavorable to the party who could have produced it and did not.

Question 26

P has told her husband all about the problems at her business and what was in the lost records. Her husband was not involved in the business and had no part in the disappearance of the records and could not find them. D believes that it has been prejudiced in not being able to review these reports. What relief, if any, is available to D to cure the arguable prejudice?

Answer 26

The court should sustain P’s objection. P’s communication to her husband about the problems appears to be a confidential communication made by P to her spouse that was not intended for disclosure to any other person. Hence, it is privileged and not discoverable.

Question 27

The jury returns a very large verdict for P. D feel that its is a result of emotion and is not supported by the evidence. What motions, if any, are available to D to prevent the court from entering judgment on the verdict, and when must they be filed?

Answer 27

If D believes that there is no evidence, they should seek a JNOV. Although the rules do not have a time limit for its filing, case law provides that the motion for JNOV may be filed after the court has entered judgment but before the judgment becomes final.

Question 28

D wants to file a motion for new trial. What is the deadline for filing the motion?

Answer 28

A motion for new trial must be filed within 30 days after the judgment assigned by the trial court.

Question 29

After judgment is entered, D files a motion for new trial. What effect, if any, does this have on the court’s plenary power over the judgment?

Answer 29

When a motion for new trial is filed, the court’s plenary power over the judgment is extended until 30 days after all such timely motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.

Question 30

What must D plead to contest venue? What form of proof is considered by the court in determining the motion? What evidence, if any, must D file with the motion?

Answer 30

To contest venue, D must plead that the county of suit is not a county of proper venue or a mandatory provision applies, and venue should be transferred to another specific county of proper venue. The court may consider affidavits and all forms of discovery in ruling on the motion. D is not required to file any evidence with the motion to transfer venue.

Question 31

If D fails to file a responsive pleading by the required time after service of process, what elements must P prove to establish a right to a default judgment?

Answer 31

To establish a right to a default judgment, P must show that: (i) the court has subject matter idx, (ii) the court has idx over D by proper service of process, (iii) a 10 days exclusive of the day of filing the citation and the day of the default judgment. D admits all issues of liability, but not unliquidated damages, which P will have to prove to obtain a default judgment.

Question 32

P’s have served their responses to D’s request for disclosure. They discover a few months later that they did not disclose two witnesses, who are not favorable to P’s case. What, if any, obligation do Ps have to produce this information? Within what time must they do so?

Answer 32

Ps are required to supplement their responses reasonably promptly after discovering the necessity. It is presumed that an amended response made less than 30 days before trial is not made reasonably promptly.

Question 33

In its initial disclosure, D accidentally produced to P a detailed memo from Ds lawyers, marked PRIVILEGED AND CONFIDENTIAL. In the memo, D’s lawyer evaluates the issues and potential exposure in the case. D discovers the inadvertent disclosure 20 days following its production and immediately requests that P returns the document. P refuses. What remedy, if any, does D have to compel the return of the document from P?

Answer 33

To obtain the return of privileged documents accidentally produced, D must, within 10 days or a shorter time by court order, after discovering that such production was made, amend the response, identifying the material produced and stating the privilege asserted.

Question 34

P is being deposed. What objections, if any, may P’s counsel make at the deposition?

Answer 34

P’s counsel can make three objections: (i) objection, leading; (ii) objection, form; (iii) objection, non responsive.

Question 35

P has kept a specimen section of pipe that was removed when repairs were done. D wants to inspect and test it. What procedure, if any, is available to D to obtain access tot he specimen pipe section for inspection and testing?

Answer 35

To inspect and test the pipe, D should file a request for production and inspection and specify the items to be produced and inspected, either by individual item or by category. The request must specify a reasonable time and place for production and must state the means, manner, and procedure for testing.

Question 36

D designates an expert witness whose qualifications seem questionable to P. The expert claims that he can tell what caused the pipe to fail just by looking at it. What procedure, if any, is available to P to obtain a determination of whether this individual is qualified to testify as an expert witness?

Answer 36

Prior to trial, any party may request the trial court make a determination that an expert is qualified to testify on an issue in the case.

Question 37

What factors must the court consider in determining the admissibility of expert opinion testimony?

Answer 37

The court must consider, but is not limited to: (i) the extent to which the theory has been based on or can be tested; (ii) the extent to which the technique relies upon subjective interpretation of the expert; (iii) whether the theory has been subjected to peer review and/or publication; (iv) the technique’s potential rate of error; (v) whether the underlying theory or technique has generally been accepted as valid by the relevant scientific community; and (vi) the nonjudicial uses which have been made of theory or technique.

Question 38

Aside from bias or prejudice, identify two bases for challenging a prospective juror for cause.

Answer 38

(i) the juror is a witness in the case

(ii) juror is related within the third degree of consanguinity or affinity

Question 39

At trial, P offered evidence concerning additional home repairs that had not been listed as part of their original claim and which had not been referred to in their pleadings or discovery answers. D did not object to the evidence at the time of P’s offer, but now objects to the submission of a jury question for these damages. How should P respond to overcome D’s objection?

Answer 39

P should seek a trial amendment on these unpled issues because D failed to object at the time of offer and now can hardly assert surprise. The trial court should allow the amendment and therefore there would be pleadings to support a jury question on these damages.

Question 40

On cross-examination, D’s counsel ask P to explain her religious beliefs, which he considers to be vastly different from and offensive to the local community, in order cast doubt on her credibility. What valid objection, if any, should P make to this line of questioning?

Answer 40

P’s counsel should object that the evidence of P’s religious beliefs is inadmissible to impair or enhance her credibility under rule 610.

Question 41

D produces a great number of documents in its response to P’s request for production. 19 days before trial, P notified D of their intent to offer some of these documents into evidence at trial. At trial, P offered the documents into trial. D objects that they have not been properly authenticated. How should the court rule on D’s objection?

Answer 41

The court should deny the objection. The Texas rules provide that a party’s production of a document in response to written discovery authenticates the document for use against that party during trial, unless within 10 days after the party receives notice that the document will be used, the party objects to the authenticity of the document. D’s objection was too late.

Question 42

P has rested his case. D believes that P has omitted proof of an element of their case. What motion should D present, when should it be presented, and on what grounds should it be based?

Answer 42

D should move for a directed verdict after P rests his case, asserting that P has no evidence on a specific element of their case. The motion should assert that P has failed to produce some evidence on that element, entitling D to a direct verdict.

Question 43

In closing argument, P ask for $100,000 in damages, based on evidence offered. The jury awards $1 million. What motion should D file if D wants to ask the court to set aside the jury’s verdict on damages?

Answer 43

If the court enters a judgment for $1 million, D should seek a remittitur and file a motion for new trial asserting that the verdict is excessive and not supported by the evidence in the amount of $900,000.

Question 44

X Corp wants to sue Y Corp (an OK corporation with no contacts in Texas) in Texas district court. What prerequisites must X Corp satisfy in order to serve Y Corp by serving the Texas Secretary of State?

Answer 44

X Corp must allege that Y Corp is a nonresident that has engaged in business in Texas, but does not maintain a regular place of business or person in charge in Texas, nor does it maintain a designated agent for service of process in Texas.

Question 45

Describe the form and contents required for a special appearance?

Answer 45

Must be by sworn motion asserting they are not amendable to service of process issued by the courts of Texas.

Question 46

D is considering removal to US District Court based on federal diversity of citizenship jdx. If D chooses to remove, describe what the removal petition must contain, when it must be filed.

Answer 46

D must file a notice of removal, which is a verified petition setting outage facts that entitle them to removal. The notice of removal must be filed within 30 days after they were served with process in state court.

Question 47

Does the concession by other Ds that venue is proper preclude D from now objecting to venue?

Answer 47

No. Texas venue statutes specially provide that one defendant’s “action or omission” does not impair or diminish the right of any other party to properly challenge venue.

Question 48

D includes a reference to Discovery Level 2 in its petition. If the case proceeds in Texas state district court, describe the limitations on depositions taken and interrogatories propounded by D.

Answer 48

Oral depositions are limited to 50 hours for each side to examine and cross-examine opposing parties, their designated experts, and persons who are subject to their control. Each party may serve not more than 25 interrogatories, including discrete subparts, to all other parties.

Question 49

D is wanting an injunction. What elements must D plead?

Answer 49

D must plead (i) a wrongful act occurred; (ii) it will likely succeed on the merits; and (iii) it will likely suffer harm. To show that it will suffer irreparable harm, D must show that the harm is imminent, that the injury would be irritable, and that it has no other adequate legal remedy.

Question 50

The court enters an injunction against D. Later, P believes D is violating the injunction. What pleading should P file, when should it be filed, and what relief might the court order?

Answer 50

P may file a motion for contempt at any time. The court may punish the violation of an injunction by imposing a fine (not to exceed $500) or imprisonment.

Question 51

At D1’s deposition, counsel for P asks D1, who has his own attorney, about the conversation he had with D2’s attorney about the Ds positions in the case. D1’s counsel asserts attorney-client privilege and instructs D1 not to answer. What procedure should P’s counsel follow in order to obtain a ruling on the objection, and how should the court rule on D1’s privilege objection?

Answer 51

P should file a motion to compel. The court should not grant the motion. Under the joint defense doctrine, communications between lawyers of separate parties who have a common interest in the pending lawsuit, as here, are protected.

Question 52

P designates an expert witness but has not produced his report or opinions. D serves notice for the deposition of the expert. P files a motion to require D to designate its expert witness before the deposition of P’s expert. What, if any, procedure is available to D to proceed with the deposition of P’s expert at this time?

Answer 52

Because P has produced its expert’s report or opinion, D may proceed with the deposition of P’s expert. If the parties cannot resolve the discovery dispute, D may move to compel discovery or move to sanction P for failure to comply with discovery requests.

Question 53

D designates an expert witness and produced his report. Earlier in the litigation, D had also retained a consultant, but considered her to be strictly a consultant expert, and has not designated her as an expert or produced her report. At the expert’s deposition, he disclosed that he had reviewed the consultant’s report, but considered it flawed and disregarded it. P moves to compel production of the consultant’s report. How should the court rule?

Answer 53

The court should grant the request that the report be produced. Texas rules provide that any report reviewed by another expert is discoverable.

Question 54

Assume that P has not produced any evidence in discovery. P’s employees who have been deposed have not expressed opinions on quantifying the amount of damages allegedly sustained by P and caused by D. D files a no evidence summary judgment. What must P do to prevent the court from granting the summary judgment in favor of D?

Answer 54

P should either file a response asserting that an adequate time for discovery has not elapsed or produce evidence (such as an affidavit) raising a genuine issue of material fact on the question of damages.

Question 55

Each of the three defendants is separately represented by different counsel. How many peremptory strikes does each defendant have for the case, and under what circumstances, if any, might defendants be able to obtain additional strikes?

Answer 55

Each party is entitled to 6 peremptory strikes. Party does not mean person - the existence of multiple defendant parties alone does not entitle each defendant six, but each defendant is considered a party if the defendants are advert eon an issue going to the jury.

Question 56

P calls W as a witness, who testifies at trial that he recalls certain conversations with D1. At W’s deposition he could not recall any such conversations. Describe the steps that D2’s attorney should take in order to properly impeach W with his deposition testimony.

Answer 56

First, D2’s lawyer must tell the witness the contents of the statement, and the time, place, and person to whom it was made (here the deposition). The witness must then be given an opportunity to explain or deny the statement. Because the statement is in writing, the lawyer must show the witness the deposition transcript.

Question 57

The expert for D offers opinions at trial beyond those in his report and deposition. P’s attorney objects to this opinion testimony for failure to timely designate or supplement discovery responses. What legal exception to the rule on timely disclosure must D establish in order to overcome the objection to these expert opinions?

Answer 57

There are two exceptions to the rule on timely disclosure. D must show either (i) that there was good cause for the failure to timely amend or supplement the discovery response, or (ii) that the failure to amend or supplement the discovery response will not unfairly surprise or unfairly prejudice P.

Question 58

P testifies at trial. During P’s direct examination he testifies about D’s employment contract, and refers to provisions in paragraph 4-11, copies of which P’s attorney offers for admission into evidence. D’s attorney believes that paragraphs 15-20 are also relevant, but he is not currently examining the witness. What, if any, remedy should D’s attorney request?

Answer 58

Because not all of D’s contract has been introduced on the direct examination of P, D’s attorney may introduce other portions of the contract. Under the doctrine of “optional completeness,” when a writing is introduced by a party, an adverse party may at that time introduce any other part of the writing which in fairness ought be considered with it.

Question 59

In his original petition, P alleged negligence, but did not plead specific facts or omissions. He also alleged damages in excess of the minimum jurisdictional limits of the court. Defendants filed special exception, which the judge orally sustained at a hearing. The judge noted her ruling in the margin of the defendants’ special exceptions. Have the defendants preserved for appeal their objections to the defect in P’s petition?

Answer 59

No. Case law hashed that where notations are not followed by a written order, or some notation on the docket sheet the judge ruled on the special exception, the record does not clearly reflect that the court sustained the objections and the issue has not been preserved for review.

Question 60

The case is assigned Discovery Level 2. When does the discovery period begin and end?

Answer 60

The discovery period begins when the suit is filed and continues until the earlier of: (i) 30 days before the date set for trial; or (ii) 9 months after the date of the first oral deposition or the due date of the first response to written discovery, whichever is earlier.

Question 61

P sends interrogatories to D asking for the names of all impeachment and rebuttal witnesses it expects to call at trial. D objects, claiming work-product doctrine privilege and trial strategy. P files a motion to compel. How should the court rule?

Answer 61

The court should sustain D’s objection. Rule 192.3(d) provides that the names of trial witnesses may be obtained, but the names of impeachment or rebuttal witnesses may not be obtained as the necessity of their testimony cannot reasonably be anticipated before trial.

Question 62

P sends a request for production to D. What must D do to properly preserve work product and attorney-client privileges to the information requested and withhold the documents from production?

Answer 62

D’s response should be a “withholding statement” containing three elements: (i) a statement that information or material responsive to the request has been withheld; (ii) identification of the request to the withheld information or material relates; and (iii) a statement of the privileges relied upon.

Question 63

Assume D properly preserves its privilege claims and does not produce the documents requested. How can P obtain more information from D about the withheld documents to assess the privilege claims?

Answer 63

P can request a D prepare a “privilege log” describing the withheld material and asserting a specific privilege for each item withheld.

Question 64

P was treated by his doctor, who found that P was permanently disabled as a result of the collision. What should D file to obtain a second medical evaluation of P? What showing must D make to prevail on the motion?

Answer 64

D should file a motion under Rule 204 of the TRCP seeking an order compelling P to submit to an exam by a qualified physician. The court may only grant such a motion for good cause shown when a party’s physical condition is in controversy.

Question 65

D retained Dr. Critic as a consulting expert to review P’s doctor’s records and opinions. Dr. Critic provided D with his report. P moves to compel production of the report. How should the court rule?

Answer 65

If Dr. Critic’s report has been reviewed by any testifying expert, then Dr. Critic is considered to be a consulting expert and the report is discoverable. If not reviewed, Dr. Critic is a purely consulting expert, and the report is not discoverable.

Question 66

D wants to take the deposition of P’s designated expert witness. D has not designated any expert witnesses. P refuses to tender the expert witness for deposition. D files a motion to compel. How should the court rule?

Answer 66

If P does not furnish a report when the expert is designated, then he must make the expert witness available reasonably promptly after the designation. However, if P does produce a report when the expert witness is designated, then he need not make the expert witness available for deposition until reasonably promptly after all other experts have been designated.

Question 67

D makes a timely written offer of settlement to P. P rejects the offer. If P obtains a judgment against D, can D still shift its litigation costs and attorney’s fees to P?

Answer 67

D can recover costs and fees if the judgment is significantly less favorable to P than was the settlement offer. To qualify as significantly less, P’s award must be less than 80% of the rejected settlement offer.

Question 68

D has long known the identity of, but not the whereabouts, of W, who witnesses the accident. D locates W one week before trial. D never identified W in response to P requests for disclosure. At trial, D calls W tot he stand. P objects. How should the court rule?

Answer 68

The court must disallow the testimony unless it finds that: (i) there was good cause for D’s failure to timely amend or supplement its discovery response, or (ii) the failure to amend or supplement that discovery response will not unfairly surprise or prejudice P.

Question 69

P’s key witness is sick and unable to testify in court. What must P include in his motion for continuance, which D opposes? What must P do to preserve error if the court overrules the motion?

Answer 69

In a motion support by affidavit, P must set forth the materiality and content of the testimony, that he used due diligence in attempting to produce it,the cause of failure, the name and residence of the witness, and that the continuance is not sought merely for delay, but so that justice may be done. The denial of the motion is sufficient to preserve error, and P only needs to include the denial in the record on appeal.

Question 70

P timely amended his petition against D to allege negligent hiring, negligent entrustment, and negligent maintenance. D has a policy against hiring or retaining any driver who has received three or more citations for traffic violations over a two-year period. In the year before CJ became D’s employee, he had received 4 such citations. At trial, P’s attorney offers evidence of the citations. D and CJ object to the materiality and relevance grounds. How should P respond?

Answer 70

P should respond the the 4 citations are material and relevant to his claim of D’s negligent hiring of CJ. This evidence is relevant because it relates to one of the substantive legal issues of the case. Additionally, this evidence is relevant because it has a tendency to make the existence of a fact that is of consequence to the determination of an action more probable than it would be without evidence.

Question 71

Assume D files the necessary pleading objecting to venue. When should the hearing be scheduled and what may the court consider in ruling on the objection to venue?

Answer 71

Except on leave of court, each party is entitled to 45 days’ notice of a hearing. The court may consider pleadings, any stipulations, affidavits that are filed, and any discovery. No oral testimony is allowed.

Question 72

The original petition generally alleges that the negligence of the defendants proximately caused damages to the plaintiffs. The petition, however, does not allege any specific acts of negligence nor a dollar amount of damages being sought. If the defendants wish to object to the generality of these allegations, what pleading should they file? If the court sustains the objection, what relief, if any, should the court grant?

Answer 72

They should file a special exceptions. The plaintiffs ar entitled to either: (i) stand on the pleadings, or (ii) have a reasonable time to amend or correct the petition. Here, the court should order the plaintiffs to replead.

Question 73

In its responsive pleadings, D claims that Bob was not within the course and scope of his employment at the time of the collision. P believes that the evidence conclusively establishes otherwise. P wants the court to rule on the this issue before trial. What pleading can P file to seek a ruling on this issue and when can P file it?

Answer 73

At any time after the defendant appeared, P may file a traditional motion for summary judgment on this issue. P will be required to present summary judgment evidence that conclusively establishes this issue.

Question 74

On the morning of trial, P realizes that he had never requested a jury trial nor paid the jury fee. P files the jury request and pays the jury fee one hour before the case is called for trial. When the judge asks for announcements, defense counsel objects to the jury requests as untimely. What must be shown to permit a jury trial under these circumstances?

Answer 74

That it will not: (i) injure the defendant; (ii) disrupt the court’s docket; or (iii) impede the ordinary handling of the court’s business.

Question 75

P wants to challenge several veniremen for cause, based on their responses during voir dire. What steps must P take to preserve error if the court denies the challenges for cause?

Answer 75

Prior to exercising its peremptory challenges, P must state to the court that they will exhaust all of their peremptory challenges, and that after exercising their peremptory challenges, specific objectionable jurors would remain on the jury list.

Question 76

During the trial, D called to the stand a witness who claims to have seen P just prior to the incident. D had not previously disclosed the name of the witness to P. What must D establish before the court will permit the testimony?

Answer 76

If P sought the identity of potential witnesses in discovery and D failed to disclose the identity of this witness, then D must show either good cause for the nondisclosure or that P will suffer no prejudice or surprise before the court will permit the testimony. Otherwise, D need not make any showing because there is not duty to make unilateral disclosures concerning the identity of persons having knowledge of relevant facts.

Question 77

Ds each want to exercise six peremptory strikes. What pleading should P file to ensure that Ds do not have an unfair advantage in the allocation of peremptory strikes?

Answer 77

P should file a motion to equalize. The court has a duty to make sure that no side is given an unfair advantage, and should consider any matter brought to the attention of the judge concerning the ends of justice and the elimination of an unfair advantage.

Question 78

On cross-examination, P’s counsel ask D whether he was covered by liability insurance at the time of the collision. What objection should defense counsel make and how should the court rule?

Answer 78

The objection is under TRE 411 - evidence that a person was or was not insured is not admissible on the issue of whether the person acted negligently or otherwise wrongly. The court must sustain the objection.

Question 79

P was injured on January 15, 2002. P’s lawyer filed the lawsuit on January 14, 2004. He did not request the issuance of citation of service until June 15, 2004. D was served with the petition and citation on October 30, 2004. What affirmative defense, if any, should D assert in its answer to the suit?

Answer 79

D should assert the affirmative defense of SOL. Filing a petition is necessary to toll the two-year limitation period. P must also exercise actual diligence thereafter in procuring both issuance and service of citation. In this case, significant delays occurred and preclusion under the SOL may result.

Question 80

P served interrogatories on D, a corporation, with a subpoena duces cecum to produce certain documents at the deposition. How much notice must be given for the deposition, as noticed? If D wants to object to the notice, what must it do and hone must it do it?

Answer 80

Notice must be served on the parties a reasonable time before the deposition is taken. However, the rules also provide that D is entitled to a minimum of 30 days after service before it will be required to respond to the subpoena for production of documents. D can object in writing by stating the legal or factual basis for the objection, along with the extent to which response to the subpoena.

Question 81

After P rests, D believes that the evidence is insufficient to support a verdict for P. How can D raise this issue with the court? If the court allows the case to proceed, can D raise the issue again, and if so, when?

Answer 81

D can file a motion for a directed verdict. If the court allows the case to proceed, D can raise the issue again by renewing the motion for a directed verdict when P closes and when all parties close. D also can make a legal sufficiency attack on the evidence by objection to the charge, motion for judgment notwithstanding the verdict, or a motion for a new trial.