Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

TX Essays (M. Walker) > TX Civil Procedure > Flashcards

TX Civil Procedure Flashcards

1
Q

Special Appearance

A
  1. due order of pleadings
  2. filed prior to any other plea, pleading, or motion
  3. D plead and prove the TX ct lacks PJ
  4. non-resident
  5. don’t have sufficient min contacts
  6. offend traditional notions of fair play and sub justice
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

LAS

A
  1. SOS is an agent for service of process for _______, a non-resident corporation that engaged in business in Texas;
  2. that ________ does not maintain a regular place of business in Texas or a designated agent for service of process;
  3. and that the suit arises out of the non-resident’s business in Texas.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Special Appearance

A
  1. due order of pleading
  2. filed prior to any other plea, pleading, or motion
  3. ∆ plead and prove that the TX ct lacks personal jurisdiction
  4. non-residents
  5. do not have sufficient minimum contacts
  6. offend the traditional notions of fair play and substantial justice
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Service of Lawsuit

A
  1. court clerk issue citation
  2. serve along w/ petition
  3. on ∆ or registered agent
  4. directed to ∆
  5. served any methods allowed under TX law
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Answer

A
  1. ∆s must file an answer by 10:00 a.m.
  2. on the first Monday
  3. after the expiration of 20 days
  4. from the date the ∆ was served with process
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Venue

A
  1. Under due order of pleading
  2. motion to transfer venue must be filed prior to or concurrent with any other plea, pleading, or motion
  3. except for the special appearance.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

General Venue Statute: Venue is Proper

A
  1. where a substantial part of claim occurred,
  2. where ∆ resides, or
  3. location of ∆ corporation’s principal place of business is at the time accident occurred
  4. Last resort: where Π resides.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

MTTV Should Allege

A
  1. _______ county is not proper county
  2. state the legal and factual basis for transfer
  3. request venue must be transferred to another county of proper venue
  4. Alleging not proper county or is inconvenient
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What Ct Considers for MTTV

A
  1. pleadings
  2. stipulations made btw parties
  3. affidavits
  4. result of discovery processes
  5. oral testimony
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Response to MTTV

A
  1. File affidavits
  2. discovery materials
  3. make a prima facie case of factual allegations
  4. deny venue facts raised in Π’s motion
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Implead

A
  1. to add a party file a 3rd P petition impleading the new party at any time AFTER ACTION COMMENCES.
  2. Petition should ALLEGE THAT THE 3RD P is LIABLE for all/part of the claims.
  3. DO NOT NEED LEAVE of court if files w/in 30 DAYS AFTER it SERVES its ANSWER. But, after this time, must get leave of court
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Counter Claim

A
  1. party should raise the issue in its response by filing a counterclaim, which is COMPULSORY in this case since arises from same transaction
  2. if party fails to raise a counterclaim, it will be waived.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Plea in Abatement

A
  1. party should file a motion/plea in abatement in the court where the 2nd suit was filed
  2. should argue that 1st county has dominant jurisdiction since his lawsuit was filed first in that county
  3. that venue is proper in that suit
  4. that the suit is still pending
  5. and the 2 suits involve the same parties and same dispute.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Discovery Level 2

A
  1. each side may have no more than 50 hours of oral depositions to examine and CX parties and witnesses
  2. one side designates MORE THAN TWO EXPERTS, the opposing side may have an ADDITIONAL SIX HOURS of total deposition time for each additional expert.
  3. any party may serve on any other party not more than 25 WRITTEN INTERROGATORIES.
  4. begins when suit is filed and continues until the earlier of:
    a. 30 DAYS BEFORE TRIAL DATE, or
    b. 9 MONTHS AFTER the EARLIER of the DATE of the FIRST ORAL DEPOSITION or the DUE DATE of the FIRST RESPONSE to discovery.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

5 Forms of Discovery

A

(D A P I D written/oral)

  1. Requests for disclosures
  2. Requests for admissions
  3. Request for production of documents
  4. Interrogatories
  5. Oral or written depositions
  6. Request to order medical exams
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Request for Admissions

A
  1. due 30 days from day of service of request.
  2. BUT IF request is served before ∆s answer/concurrent w/ the answer → response is due 50 days after days of service of the request
  3. untimely response → automatically deemed admitted as a matter of law without need for a court order.
  4. Party may file a Motion to Withdraw the deemed admission and show good cause for its failure to respond and that the opposing party will not be unduly prejudiced by the striking of the deemed admissions.
  5. Also applies to request for production
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Party Hiding Something

A

file motion to compel, if necessary suctions or contempt

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Request for Disclosure

A

(M A D E N)

  1. Medical Records.
  2. Name, address and phone number of fact witnesses.
  3. Method of calculating damages.
  4. Information regarding retained testifying experts.
  5. Correct party names.
  6. Can’t object
19
Q

Objecting to Written Discovery Based on Privilege

A
  1. must assert privilege w/in time period for the response by w/holding privileged information from the discovery it produces.
  2. filing either in the response itself or in the a separate document, a w/holding stmt stating:
    a) that the information responsive to the request is being WITHHELD;
    b) identifies the REQUESTS to which the information relates; and
    c) that identifies the PRIVILEGE being asserted.
20
Q

Snap Back Rule

A
  1. party who inadvertently produced did not waive the privilege, if w/in 10 days after discovering the inadvertent production of the privileged communications
  2. it AMENDS THE RESPONSE, IDENTIFYING THE INFO PRODUCED AND STATING THE PRIVILEGE asserted.
  3. other party who was supplied the privileged comm.. must then promptly return the privileged comm.
21
Q

Deposing Opposition’s Expert Witness

A
  1. NO REPORT furnished → party MUST TENDER EXPERT for deposition REASONABLY PROMPTLY after designation and BEFORE the OTHER PARTY is REQUIRED TO DESIGNATE experts.
  2. Report provided → can’t compel deposition until all experts designated.
  3. Party seeking deposition must send a notice of oral deposition of the expert the party seeks to depose
22
Q

Deposing Opposition’s Expert Witness

A
  1. NO REPORT furnished → party MUST TENDER EXPERT for deposition REASONABLY PROMPTLY after designation and BEFORE the OTHER PARTY is REQUIRED TO DESIGNATE experts.
  2. Report provided → can’t compel deposition until all experts designated.
  3. Party seeking deposition must send a notice of oral deposition of the expert the party seeks to depose
23
Q

Deposing Witnesses

A
  1. Depo may be taken in W’S RESIDENCE or COUNTY of W’s EMPLOYMENT or regular BUSINESS
  2. If corp claims it has no one who was present at the accident → serve a NOTICE OF DEPOSITION on ∆ DESCRIBING WITH PARTICULARITY the matters on which the exam is requested.
  3. ∆ in response must designate a reas time before depo, 1 or more persons who will testify.
  4. If party refuses to designate → move for a motion to compel and ultimately sanctions
  5. To do away with – file motion to quash or motion for a protective order
  6. If filed by 3rd business day after service of notice of depo → depo stayed until motion can be determined
24
Q

Consulting Experts

A
  1. Purely consulting expert’s reports, mental processes, and strategy are not discoverable.
  2. Testifying expert reviews consulting expert’s report → you can make a motion to compel production of report because consulting expert’s status lost.
25
Q

Pre-Trial Daubert Motion

A
  1. Remedy to challenge the designation of an expert
  2. Motion should allege that expert is not qualified by SKEET (skill, knowledge, experience, education, training) to offer his expert opinion, and his opinion is therefore not reliable.
  3. Factors that the court should evaluate in determining the admissibility of the expert’s scientific evidence (usually just ask to name 3):
    i. Extent to which the THEORY has or can be TESTED;
    ii. Extent to which the TECHNIQUES relies on the SUBJECTIVE interpretation of the expert;
    iii. Whether the theory has been subjected to PEER REVIEW and/or publication;
    iv. Technique’s known or potential RATE OF ERROR;
    v. Whether the underlying theory or techniques has GENERALLY BEEN ACCEPTED as valid by the RELEVANT SCIENTIFIC COMMUNITY; and
    vi. The NON-JUDICIAL USES which have been made of the theory or technique.
26
Q

Compelling Medical Exam

A
  1. ∆s must file a motion for an order compelling Π’s medical examination by a qualified physician.
  2. The motion must show good cause and allege that the medical condition is in controversy.
  3. The motion must be filed 30 days before the end of the discovery period and must be served on Π as well as on all parties
  4. The order must be in writing and must specify the time, place, manner, conditions, scope of the exam and identify the person by whom it will be made.
27
Q

Obtaining Medical Records Directly from Doc

A
  1. serve subpoena on drs compelling them to produce the medical records w/o requiring them to appear for deposition
  2. or may serve a subpoena to appear for depo on written question, along w/ a request for production of medical records
28
Q

Business Records Exception

A

(i. e. for getting medical records in)
1. To obtain ________ records in admissible form, party should prepare an affidavit for the custodian of the records.
2. The affidavit must show:
a. That the records were created NEAR OR AT THE TIME of the event;
b. By a PERSON with knowledge or from information transmitted by a person with first-hand knowledge;
c. That records were made in the regular course of business; and
d. That it was the regular practice of the business to make the record.

29
Q

Motion for Continuance

A
  1. supported by AFFIDAVIT
  2. providing NAME OF UNAV. W,
  3. WHY W is UNAV.
  4. DUE DILIGENCE has been used to procure testimony, 4. testimony NOT AVAILABLE from ANOTHER SOURCE 5. and that continuance is NOT SOUGHT FOR DELAY
30
Q

Motion for Summary Judgment

A
  1. To adjudicate before trial, ∆ should file either a traditional summary judgment motion or a no-evidence motion for summary judgment, or both.
  2. As to the first, ∆ should argue that there is no genuine issue of material fact regarding ∆’s liability to Π.
  3. As to the no-evidence motion, ∆ should argue that π has not offered any evidence to support her claim of liability against the ∆ at trial.
  4. Response Due – No later than 7 days before the hearing.
31
Q

Request for Jury Trial

A
  1. Π required to file a WRITTEN REQUEST for a jury trial 2. and pay a fee w/in a reas time before the case is set for trial
  2. BUT no less than 30 days before trial.
32
Q

Striking Jurors

A
  1. For Cause
  2. Peremptory Strikes: In a two-party case, EACH SIDE entitled to 6 in district court → 6 total, even if 2 ∆s
    a. UNLESS shown they are antagonistic to each other on issue to be submitted to jury.
    b. Must make a motion to equalize peremptory strikes, which will result in the opposing party getting equalized strikes as well.
  3. Batson Challenge: Party can challenge and argue that peremptory strikes EXERCISED IN A DISCRIMINATORY manner designed TO EXCLUDE PANELISTS solely on the basis of a protected classification (i.e. race).
    a. Challenge must be made after voir dire and before jury sworn and excluded panelists dismissed.
    b. Once CHALLENGER makes a PRIMA FACIE showing of DISCRIMINATORY EXCLUSION, then BURDEN SHIFTS to proponent to OFFER a NEUTRAL REASON for the strike.
33
Q

Motion in Limine

A
  1. To preserve error for appeal, must make objection and get an adverse ruling.
  2. Party should file a MIL to prevent the presentation of potentially prejudicial info in front of the jury before a ruling on its admissibility can be obtained.
  3. Motion must be in WRITING and it should state specifically, the evidence that party anticipates his opponent will attempt to introduce in front of the jury, why the evidence is IRRELEVANT, or that the PV is substantially OUTWEIGHED BY the danger of UNFAIR PREJUDICE.
  4. If granted, opposing party must approach the bench for a ruling on the admissibility before referring to it during trial.
34
Q

Invoking the Rule

A
  1. If you want to exclude witnesses during trial, you must invoke the rule, which asks the judge to swear in the testifying witnesses and order them excluded from the courtroom during trial so they cannot hear the testimony given by other witnesses.
  2. Witnesses shall be instructed by the court not to converse with each other or with anyone about the case other than the attorneys, except with the judge’s permission, nor to read any report of or comment upon testimony in the case.
  3. Rule does not apply to parties and spouses
  4. Exception: spouse excluded if party to fraud being tried in court
35
Q

Mediation

A
  1. any communication about the subject of the dispute made by a participant in ADR is confidential, not subject to disclosure and cannot be used as evidence against the participant in any judicial or administrative proceeding.
36
Q

Mediation

A
  1. any communication about the subject of the dispute made by a participant in ADR is confidential, not subject to disclosure and cannot be used as evidence against the participant in any judicial or administrative proceeding.
37
Q

Calling Undisclosed W to Testify at Trial

A
  1. If a party fails to disclose a witness’s identity in its RFDs, then the court should sustain the opposing party’s objection
  2. unless the court can find good cause for the offering party’s failure to disclose the identity of the witness through a supplemental response
  3. and that allowing the witness’s testimony will not unfairly prejudice the other parties.
38
Q

Rule of Optional Completeness

A
  1. If offering only a portion of a document into evidence, you should object on the ground of optional completeness and request that the remainder of the document be accepted as evidence.
  2. Party offering the remainder must show that:
    a) the other party introduced only a part of the document;
    b) the remainder of the document should be admitted so that in fairness it can be considered contemporaneously with the original part produced.
39
Q

Admission of Statements Made at Mediation

A
  1. Any communication about the subject of a dispute made by a participant in an ADR procedure is confidential, is not subject to disclosure, and cannot be used as evidence against the participant in any judicial or administrative proceeding.
40
Q

Objection to Jury Charges

A
  1. Must be made before the charges are read to the jury. 2. Objections should be
    a) specific
    b) clearly identifying the error and
    c) explaining the grounds for the complaint
    d) made in writing, and
    e) outside the presence of the jury.
41
Q

Hung Jury

A
  1. court should provide written supplemental verdict-urging instructions and encourage jury to continue w/ deliberations.
  2. Courts instructions cannot be coercive though.
42
Q

Incomplete Jury Charge Returned

A
  1. court should reject the verdict if incomplete – if all material questions submitted have not been answered. 2. Court should provid proper written instructions pointing out defect and retire the jury for further deliberation
43
Q

Judgment not Withstanding the Verdict (JNOV)

A
  1. What you file if evidence doesn’t support the jury’s verdict.
  2. ∆s should file a JNOV or a motion for judgment notwithstanding the verdict asking the court to disregard the jury finding since there is no evidence to support it.
44
Q

Motion for New Trial

A
  1. Must be filed prior to or within 30 days after the date the judgment is signed (the time of plenary power).
  2. If the court does not rule on the timely-filed motion, it becomes overruled by operation of law within 75 days after the judgment is signed.
  3. This is a juror misconduct remedy.
    a) File affidavit with motion alleging juror misconduct, materiality, and that the misconduct hurt the case.
    b) Court should hold a hearing on the motion to receive evidence of juror misconduct and grant new trial if warranted.
    c) Juror’s testimony will be limited to the alleged misconduct.

TX Essays (M. Walker) (12 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions