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49 Cards in this Set
- Front
- Back
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Does a settlement reached during trial, but before verdict, in a case in which a minor is involved require court approval? Is so, what must occur before the court can approve the settlement?
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a. Yes – where minor is involved court must approve settlement.
b. Court must establish whether there are potential conflicts b/w minor and minor’s next friend. c. If potential conflicts exist, court may appoint a guardian ad litem to protect child’s interest. |
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If a party fails to timely request jury, or pay jury fee, what must party show to permit a jury trial.
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(Mnemonic: WAND – “it will take a magic WAND to meet these elements”)
a. Availability – that there is a jury available, b. No Delay or Inconvenience for jury to be had c. Docket will not be disrupted & ordinary court business not impeded, and d. Won’t prejudice the opposing party |
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What facts must be stated in a Business Records Affidavit?
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(Mnemonic: BRAR Business Records Affidavit Recorded)
a. Record made during ordinary course of business, b. At or near time of event, c. By person with knowledge or from information provided to him from person w/ firsthand knowledge, and d. Regular business practice to make such records (i.e. weren’t made specifically for this request or occasion) |
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If a party wants court to rule on one or more issues of the case prior to trial, what pleading can party file to obtain a ruling on the issue, and when can they file it?
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a. Motion for Summary Judgment on the issue or issues
i. Movant must present evidence to conclusively establish the issue so that there is no genuine issue of material fact regarding it. ii. Can be file anytime after non-movant has appeared |
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List 5 categories of items that can be requested under requests for disclosures
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(Mnemonic: client want’s you to withhold… MR I CANT)
a. Medical Records b. Retained testifying experts information c. Insurance coverage & policy information related to suit d. Correct names of all parties to the lawsuit, e. Amount & method of calculating damages sought f. Names, address, and phone of any fact witnesses expected to testify, g. Theories of recovery or defense |
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Under Discovery level 2, what are limitations on discovery period, the total time for oral depositions and the total number of interrogatories?
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Discovery limitations: earlier of:
i. 30 days before trial, or ii. Earlier of 9 months from date of first oral deposition, or due date of first written response to discovery. Oral Depo. Time – no more than 50 hours of oral depo. Per party Total Interrogatories – 25 per party |
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When should the hearing on motion to transfer venue be set, and what may court consider in ruling on the objection to the venue?
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a. Movant must give at least 45 days notice
b. Court determines motion based on leadings, stipulations, affidavits, discovery, and other pertinent attachments. |
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If a party believes that the amount of damages found by the jury is excessive, what pleading should the party file, and what should the pleading state?
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a. Seek remittitur, either in motion for new trial, or a separate motion.
b. Ask the court to reduce damages b/c they are excessive, and c. Suggest the amount by which judgment should be reduced. |
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When is a party’s response to discovery motion or request due?
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a. 30 days after receipt of request,
b. UNLESS request served before answer was due, then 50 days to respond to the request |
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What pleading must a party file to be able to inspect property during discovery, and what must pleading contain?
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a. Motion for Entry Upon Property
b. Must state: i. Time & Place of inspection, ii. Manner, Conditions, and Scope of Inpection, and iii. Person by whom inspection will be made. |
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What pleading must a party file if it wants to object to the time and place for the noticed deposition, and when must it be filed?
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a. Motion to Quash, or Motion for Protective Order
b. If filed w/in 3 business days of receipt of notice – Deposition is stayed until the motion can be decided. |
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What must a corporation, or organization do to comply with a notice of deposition?
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a. Within Reasonable time before date of deposition,
b. Designate one or more individuals to testify on its behalf, and c. Set forth the matters for which each individual will testify |
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When noticing a corporation, or company, for oral deposition, what must be included in the notice aside from the time & place of the deposition?
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a. Must describe with particularity
b. The matters on which the examination is requested. |
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What remedies are available, and against whom, if party finds out that party’s attorney filed an affidavit which party knew was untrue at the time affidavit was filed?
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a. Motion for Sanction against party and attorney
b. Can seek attorney’s fees, monetary sanctions, stiking of pleadings, preclusion of evidence, and any other relief court might grant. |
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What remedy is available to a plaintiff when defendant fails to timely file an answer to her lawsuit?
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a. Plaintiff can seek a default judgment.
b. Must show that: i. Petition states a cause of action w/in court’s jurisdiction, ii. Defendants were duly served and failed to answer, and iii. Citation & return of service has been in the court file for 10 days – exclusive of day of filing and day of judgment. |
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If all parties have requested and paid a jury fee, and then a party subsequently files a motion to remove case from jury docket, and opponent objects, how should court rule?
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a. Court should deny the motion.
b. Under the rules, the trial court cannot withdraw a case from the jury docket over a party’s objection if proper request made, and jury fee has been timely paid. |
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If a party is a Texas corporation and not a sole proprietorship as pleaded by the plaintiff, how should party give notice to the parties and the court that it is a corporation and intends to seek the protection of that status for its shareholders?
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a. File a verified denial alleging that it has been sued in the wrong capacity.
b. This would give notice to the parties and the court that party seeks the protection of corporate status for its shareholders. c. Should also file a verified motion to abate identifying the impediment to the continuation of the suit, identifying an effective cure, and requesting that the court suspend the suit until the plaintiff cures the defect. |
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What steps must be taken to impeach a witness during examination of the witness on the basis of a prior inconsistent statement?
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a. Witness must be informed of each of the following, and given an opportunity to explain or deny:
i. Contents of the statement, ii. Place & time statement was made, and iii. Person to whom statement was made |
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How does a party challenge the qualifications of opposing expert witness, and what must he show the court?
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a. Pre-trial Daubert Motion
b. Show expert not qualified by knowledge, skill, experience, training, or education to offer his opinion. |
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When must a party make an expert available for deposition if expert report was NOT PRODUCED at time expert was designated as an expert?
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If expert report not produced at time of designation:
Must make expert available reasonably promptly after designating him. |
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When must a party make an expert available for deposition if expert report WAS PRODUCED at time expert was designated as an expert?
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If report was produced at time of designation:
Do not have to make expert available for deposition until AFTER ALL OTHER EXPERTS have been designated. |
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If on day of trial D asks court to remove case from jury docket b/c P has not paid the jury fee, and P immediately pays the jury fee and asks court to keep case on jury docket. How should the court rule?
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a. Court should keep case on docket
b. While P was required to request & pay fee w/in reasonable time, no later than 30 days before trial, c. Court should allow as long as P can show that it will not: i. Prejudice D, ii. Disrupt court’s docket, or iii. Impede the ordinary handling of court’s business. |
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When opponent files MSJ, and in support attaches its experts affidavit which consists only following statement:
“My name is Edward Expert. I am competent to execute this affidavit, which is based on my personal knowledge. In my opinion, the sole cause of the accident in which P alleges he was injured was the defective cart made by Manufacturer.” What must P’s response to the MSJ contain in order for court to deny the motion? |
a. Object to sufficiency of affidavit,
b. Move to strike affidavit as conclusory, c. Raise a genuine issue of material fact in response, d. Experts statement is conclusory, and not supported by facts, nor evidence, e. Affidavit does not establish that Expert is qualified by skill, training, or knowledge to make such statement. |
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When must a party file a 3d party impleader petition?
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a. Without leave – w/in 30 days after it serves its answer.
b. With Leave – anytime after 30 days from filing answer |
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If a party develops evidence demonstrating that another defendant was negligent, what pleading should the party file in support of its evidence, and to support a jury question concerning the negligence of the other defendant?
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a. Party should file a motion for leave to designate other defendant as a Responsible Third Party (RTP).
b. An RTP is anyone who is alleged to have caused or contributed to the harm for which recovery of damages is sought. |
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What pleading should a party file to object to and abate the deposition of an expert when the time or date noticed for the deposition is contested by the party, and when should it be filed?
What is the effect of the filing? |
a. Party should file either a motion to quash the notice of deposition or a motion for protective order.
b. The motion must identify a reasonable time and place with which it will comply. c. The motion must be filed as soon as possible, but before the date set for the deposition. d. If the motion is filed within three (3) business days after service of the notice of deposition, the deposition is automatically stayed until the motion can be determined. |
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If in response to disclosures, party produces relevant medical records, but refuses to produce a properly executed medical authorization, how should the court rule if opponent moves court to compel party to also provide properly executed medical release?
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a. The court should grant the party’s Motion to Compel and order P to produce a properly executed medical authorization in addition to the medical records.
b. The Request for Disclosure rule provides that a party is entitled to get all medical records and bills reasonably related to the injury, or in lieu of this, an authorization permitting the disclosure of such medical records and bills; c. But recent case law indicates that: “the option belongs to the party requesting disclosure, not the one responding to it. d. Thus, if a legitimate request is sought, then the respondent cannot unilaterally comply with the request by simply delivering selected medical records.” |
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If P’s petition incorrectly names Defendant, what pleading should D file to assert its corporate capacity in order to protect its officers, directors, and shareholders from personal liability?
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a. To assert its corporate capacity and protect its officers, D should file a verified denial alleging that it has been sued in the wrong capacity.
b. In addition, D should file a verified plea in abatement identifying the impediment to the continuation of the suit, identifying the cure, and asking the court to suspend the suit until plaintiff amends the petition to correct the defect. |
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After a plaintiff re-pleads his case, but does not specify allegations of gross negligence, what pleading can defendants file regarding the amended petition, and how should the court rule?
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a. If Plaintiff’s amended petition did not cure the objectionable allegations or made a good-faith attempt to do so, defendants should file a Motion to Dismiss or strike the gross negligence allegations.
b. If the court granted the Special Exception ordering Plaintiff to re-plead to include the gross negligence allegations, it will most likely grant the motion to dismiss/strike if it determines that the defects in plaintiff’s petition are incurable. |
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How and when should [party] respond to opponents motion for summary judgment, and to the party’s affidavit [sole piece of evidence] attached to the motion?
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a. Party should file a response to the motion or summary judgment, and
b. Argue that an affidavit based solely on information and belief of the party is insufficient to raise a genuine issue of fact, and is improper summary judgment evidence. c. Response, which may be supported by affidavits, must be filed no later than 7 days before the hearing date. |
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Where a person is listed as a trial witness by one or more defendants, and another defendant wishes to call the person as a witness, but opposing party objects, how should the court rule?
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a. General rule is that a party must disclose all witnesses it expects to testify w/in 7 days before trial, otherwise witness may be precluded.
b. However, if party can show good cause, and that the opposing party will not be prejudiced, court may allow it. c. Here, probably no prejudice b/c opponent already had knowledge of witness and his expected testimony from the other defendants, so court might allow. |
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If a party contends that it has no person, employee, or agent who can or will testify as a witness b/c no one in company has personal knowledge about the incident, how can opponent compel the party to produce a witness for deposition?
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a. Serve a notice of deposition describing w/ reasonable particularity the matters on which examination is requested.
b. Party must then designate, w/in a reasonable time prior to depo, one or more individuals to testify on its behalf, setting forth the matters on which each person will testify. c. If not complied with, opponent can move for court order and sanctions. |
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Parties both file notices of cross depositions, but notice the depositions in different places, afterwhich both parties file motion to quash deposition. Upon a hearing, in what county should court order the depositions to take place?
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a. Under the rule, depositions may be taken in the county where suit is pending, or
b. In the county of witness residence, employement, or where he regularly conducts business c. If parties cannot agree, court should order depositions take place in county where suit is pending. |
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How can a party obtain information regarding an opposing party’s expert witness’ investigation when expert has NOT FILED a report?
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a. May serve a request for disclosure specifically requesting the general substance of the expert’s mental impressions and opinions.
b. Since no report was furnished, may also depose the expert to get this information. |
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How must service of process be performed upon an out of state party not registered w/ Texas Sec. of State?
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a. Tex. Long-arm statute by serving on sec. of state where party resides or has its principal place of business.
b. Secretary of state will forward copies of citation and petition to the party via registered mail. |
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What pleading must defendant file to add another defendant, and when must such pleading be filed?
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a. File & serve 3d party petition impleading the additional party.
b. Must allege that additional defendant is liable for all or party of plaintiff’s claim against original defendant. c. Must be filed w/in 30 days after it serves it’s answer, or may do so at a time thereafter with leave of court. |
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What objections, if any, should the attorney’s make to the proposed jury questions [question left off one of the defendants for purposes of apportioning liability], and when and how should the objections be made?
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a. Object on ground that jury question is defective in that failed to submit conduct of all parties b/c one party was omitted.
b. Objections should be made before charge is read to the jury, and c. Objections should be made outside the presence of the jury. |
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What basis does a party have for complaining about the conduct of an opposing attorney during depositions? What steps must the attorney take to bring the matter to the court’s attention?
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a. He may argue that the objections are improper because the only objections allowed during depositions are objections to form, leading, or non-responsive.
b. He should suspend the deposition and move for sanctions, along with any other permissible relief from the court. |
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8. If a party knows the identity of doctors who treated Plaintiff for personal injuries, how can party obtain pertinent medical records directly from the treating doctors? Explain fully.
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a. Party may serve a subpoena on doctors compelling production of the medical records, without requiring them to appear for deposition, or
b. May serve subpoena to appear for either oral depo or depo on written questions, along w/ the request for production of the medical records |
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If a request for medical records in a personal injury action is objected to, or held as privilege, how can the party seeking the records bring the matter to the court, and how should the court rule?
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a. Motion to Compel the production of the medical Records.
b. Court should grant the motion because withholding party is seeking damages for personal injury. c. Court should order that the personal and confidential information be redacted from the records. |
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What can a party do pre-trial to challenge an expert and his opinion?
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a. File pre-trial Daubert motion to challenge admissibility of experts testimony.
b. Motion should allege that expert is not qualified by Knowledge, Skill, Experience, Training, or Education to offer his opinion, and c. That expert’s opinion is not reliable. |
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During a deposition, what objections may be made to questions being asked, and what objections may be made to testimony made during the deposition?
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a. Questions Asked: objection form, Objection leading
b. Testimony made: objection, non-responsive. |
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What must a party do if a party inadvertently discloses privileged material?
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a. Within 10 days,
b. Amends response, identifying the privileged information produced, and c. States the privilege asserted |
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How can a party withhold privileged information requested in discovery.
a. Either filing in the response, or in separate document, a withholding statement which states: |
Either filing in the response, or in separate document, a withholding statement which states:
a. Information requested is being withheld, b. Identifies the request to which information relates, and c. Identifies the privilege asserted. |
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How can defendant’s verify the nature and extent of Plaintiff’s injuries?
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a. Δ must file motion for court order compelling P’s medical examination by a qualified physician.
b. Motion must show good cause, alleging that medical condition is at controversy. c. Motion must filed 30 days before discovery period ends, and must be served upon P and all parties. |
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When must defendants file answer to petition? When is discovery due if request was served with original citation and petition?
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a. By 10 am on the Monday next after the exipiration of 20 days following the service of process upon defendant.
b. Generally, discover due w/in 30 days of request, but if served before defendant’s answers were due, their discover responses are due 50 days after service of the request. |
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How should party respond to objection as to venue, and how should court rule?
a. Respond by filing affidavits, and discovery materials if necessary, to make a prima facie case of his venue allegations, and denying venue allegations in the opponent’s motion to transfer venue. b. Court should overrule motion if venue is proper in pleading, and no mandatory venue exists. |
a. Respond by filing affidavits, and discovery materials if necessary, to make a prima facie case of his venue allegations, and denying venue allegations in the opponent’s motion to transfer venue.
b. Court should overrule motion if venue is proper in pleading, and no mandatory venue exists. |
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When can a Δ remove to federal Court?
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If diversity jurisdiction or federal question.
a. Diversity jurisdiction requires COMPLETE diversity, b. If plaintiff and at least one defendant are Texas residents, there is no diversity, and thus no basis for removal to Federal Court. |
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What may a court consider in ruling on an objection to jurisdiction? How should Court Rule?
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a. Court may consider pleadings, stipulations, affidavits, discover, and oral testimony.
b. Court should deny motion because Δ has sufficient minimum contacts. It’s activities in the state (advertising & sales), and the cause of action arises from it’s activities within the state. |
