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Texas Civil Procedure -- 5 Years
Terms in this set (21)
When must a defendant file its answer to avoid the entry of a default judgment against it?
The answer must be filed by 10AM on the Monday next after 20 days from service of process.
When does the defendant have a valid basis to remove the case to federal court based on diversity of citizenship?
Defendant has a valid basis to remove a case to federal court when there is complete diversity of citizenship between all plaintiffs and all defendants; and the amount in controversy exceeds $75,000.
What pleading must a defendant file to move a case to a different county; and when must the pleading be filed?
A defendant should file a motion to transfer venue to move a case to a different county; and it should be filed before or concurrently with any responsive pleading, except a special appearance.
Where is venue proper?
Venue is proper:
1. in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred;
2. If D is a natural person, in the county of the D's residence at the time the cause of action accrued;
3. If D is not a natural person, in the county of the D's principal place of busines; or
4. If none of the above applies, then in the county in which the plaintiff resides at the time the cause of action accrued.
If a plaintiff's original petition fails to state how much money he seeks to recover from defendant, what pleading should the defendant file to bring this issue to the Court's attention; and what relief, if any, is the defendant entitled to?
The defendant should file a special exception seeking specification of the damages and asking the court to require the plaintiff to amend so as to specify the maximum amount claimed.
What are five forms of discovery available to the defendant to seek more detailed information from the plaintiff?
Request for PAD:
--1. Request for production
--2. Request for admissions
--3. Request for disclosure
4. Oral depositions
When is the plaintiff's response/objections to written interrogatories timely?
The plaintiff's service of response is due 30 days after receipt of the interrogatories, or on day 31. When the response is mailed back to the defendant, it is timely when put into the mail on day 31.
If a plaintiff states in a response to a request for production that he has withheld certain documents under a claim of attorney-client privilege, what action must the plaintiff's attorney take to preserve that privilege and when?
The attorney must serve response that describes the information or materials withheld and assert a specific privilege for each item withheld within 15 days of service of the request.
What pleading must a plaintiff file if it decides to add a 3rd party to a suit?
The plaintiff must file an amended petition on the 3rd party to add him as a defendant. The amended pleading may be made without leave of court if it is filed more than 7 days prior to trial. However, if it is filed within 7 days prior to trial or after commencement of trial, it requires leave of court.
What pleading should a defendant file to resist the production of its officer for deposition where the officer has no knowledge of the information sought?
The defendant should file a motion for a protective order or a motion to quash and it should be accompanied by an affidavit denying personal knowledge of the facts.
What are the ONLY permissible discovery tools regarding experts?
Requests for disclosure, written reports, and depositions. Not interrogatories or requests for production.
What is the effect when a defendant fails to timely respond to a request for admissions; and what, if anything, can he do to change it?
Failure to timely respond to a request for admission results in deemed admissions. The defendant should file a motion to withdraw the deemed admissions, showing both good cause for failure to timely respond and that the plaintiff would not be unduly prejudiced by the withdrawal of the admissions.
Does an objecting attorney need a valid basis for the objection; or is i.e., "objection, form" proper?
Upon request for the basis of
an objection, the objecting attorney must provide a clear and concise explanation of the basis for
An attorney is incorrect in refusing to give a basis for a "form" objection in a deposition.
If a plaintiff, in a request for production of documents in electronic form, is given only paper documents by the defendant, is the plaintiff entitled to the documents in electronic form when they are available; and if so, what action must the plaintiff take to obtain such production?
The plaintiff is entitled to production of the documents in electronic form because it requested the documents in such form. Plaintiff should file a motion to compel productions of the documents in electronic form.
What action must a defendant's attorney take in response to a no-evidence motion for summary judgment on each defense asserted by the defendant; and when must he take it?
Defendant should file a response to plaintiff's no-evidence motion for summary judgment. The response should contain summary judgment evidence raising a genuine issue of material fact with respect to each of defendant's
defenses. The response should be filed no later than 7 days before the summary judgment hearing.
What procedural steps can a defendant take to strike a potential juror who states, "I used to work for Defendant, but they fired me; but I can still be fair?" Explain fully.
Defendant should first challenge the juror for cause on the basis of bias or prejudice. Almost all examines knew that if the for-cause challenge was not successful, Driller could use a peremptory strike to remove the juror.
When can you challenge a juror for cause?
Generally, a juror may be challenged for cause when some legal reason exists to disqualify the juror. There are unlimited challenges for cause in any court. A party may challenge a juror for cause if a prospective juror:
1. is interested directly or indirectly in the subject matter of the case;
2. is a witness in the case;
3. has a bias or prejudice in favor of or against a party in the case; or
4. is related to a party in the case.
When may a plaintiff call a defendant as a witness during the plaintiff's case in chief?
A plaintiff may call a defendant adversely at any time during its case-in-chief, and no foundation
need be laid.
While on the stand, an employee of Plaintiff testifies that he talked to Defendant's chief financial officer about the overpayment. Plaintiff's attorney asks what the officer said. Defendant's attorney objects to the question on the basis of hearsay.
How should the Court rile on the objection? Explain your answer.
The trial court should overrule Defendant's objection to the witness's testimony because the testimony was an admission by a party opponent, and not hearsay.
If a Plaintiff's motion in limine is granted, what action must the Defendant take to 1) introduce the limited evidence and 2) preserve error if the evidence is not allowed? Explain your answer.
The Defendant must approach the bench outside the jury's presence and request a final ruling on Plaintiff's motion in limine. If the judge refused to admit the evidence, Defendant must make an offer of proof or "bill of exceptions" to put the proposed evidence into the record for appellate review.
For plaintiff prevail, what is the minimum number of jurors that must agree in state district court, state county court, state justice of the peace court?
State district court -- 10 out of 12
State county court -- 5 out of 6
State justice of the peace court -- 5 out of 6
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