Upgrade to remove ads
Civ Pro P&E - Common Questions
Terms in this set (51)
What is the general SOL on a tort action?
By when must an Answer be filed by D?
By 10 a.m. on the first Monday after the expiration of 20 days from the date the D was served with process.
What can P do if D does not timely file an Answer?
P can affirmatively seek the entry of a default judgment. P will have to (1) show that the court has subject matter jurisdiction; (2) show that proper service was made; (3) allege a cause of action; and (4) show that the return has been on file 10 days exclusive of the day of filing the citation and the day of the default judgment.
What is the due order of pleadings?
A special appearance must be filed before any of D's other pleas, pleadings, or motions. If D fails to comply he makes a general appearance, consents to jurisdiction, and waives all defects in service of process. If D files an Answer before anything else, he waives his right to transfer venue.
In what venue may a lawsuit be brought?
(1) in the county in which all of a substantial part of the events or omissions giving rise to the claim occurred; or (2) if D is a natural person, county of D's residence; or (3) if D is a corp., county of D's principle office in the State; or (4) if none of the above apply, county where P permanently resided at the time of the accrual of the cause of action.
What pleading must D file if they want to keep the suit from proceeding in a Texas court?
Party should file a special appearance. In a special appearance, the party should assert that it is not amenable to service of process issued by the courts of Texas. The special appearance must be verified. It must be filed before any other plea, pleading, or motion or it is waived.
What must P assert if D files a special appearance?
The issue in a special appearance is whether D, a non-resident, has minimum contacts w/ TX. D has the burden of proof and must negate all grounds of personal jurisdiction. P may oppose special appearance by producing evidence to show that D purposefully did some act or consummated some transaction in TX.
What pleading must someone file if he wants suit somewhere else and what must be alleged?
File a Motion to Transfer Venue, which must be filed before any other pleading other than a special appearance. Motion should state that the action should be transferred to another county of proper venue and should allege that the current county is not proper, state the legal and factual basis for the transfer, and request transfer to the specified county.
What should a response to the Motion to Transfer Venue contain?
Response should present prima facie proof of matters specifically denied by the D, and specifically deny any of D's venue facts which the P wishes to contest. At a hearing, court can consider affidavits, pleadings, stipulations, & discovery, but no oral testimony.
What should a party file when the other party files a lawsuit involving the same parties/dispute in another county?
File a plea in abatement alleging that the suit in the first county was commenced first, still pending, and that the 2 suits involve the same parties and controversy. Should be verified by affidavit. Court should grant the plea b/c the 2 actions involve the same subject matter and the first county has "dominant jurisdiction."
What must a party file in order to properly object to a claim against him in the same suit as claims against other parties?
Motion to Sever. Argue that severance is proper if the claims involve more than 1 cause of action, the severed claim could be independently asserted in another lawsuit, the severed cause does not involve the same facts or issues. Or file a Motion for Separate Trials asking that the claims be filed separately. Court will not grant the MTS if the claims involve facts and issues that are intricately related. BUT the court may grant a MFST.
What may a party seek in discovery?
Anything that is relevant and not privileged. Attorney client communication made in anticipation of litigation is privileged and not discoverable.
Name 5 types of discovery specifically authorized by the Texas Code of Civil Procedure?
(1) Request for Disclosure, (2) Request for Production, (3) Interrogatories, (4) Request for Admissions, (5) Depositions.
Name 5 categories of information or materials that you can request in a Request for Disclosure?
(1) correct names of the parties; (2) names of potential parties; (3) name of anyone who may be designated as a responsible 3rd party; (4) the amount of economic damages; and (5) any witness statements
Are rebuttal and impeachment witnesses discoverable?
No, because cannot be reasonably anticipated before trial.
What can counsel do if they do not timely reply to Request for Admissions?
They are deemed admitted, but counsel should file a motion seeking withdrawal of the admissions. Court may allow withdrawal if counsel shows good cause and the court finds that the other party will not be unduly prejudiced by the withdrawal.
What steps must an attorney take to protect from discovery information and material that are privileged?
Within the time for the response, the attorney must state, in a response or in a separate document, that information or material responsive to the request that has been withheld, the request to which the materials relate, and the privilege asserted. This is known as a "withholding statement."
After asserting a privilege in a response to discovery requests, the party who requested discovery may file a written request asking the party who asserted the privilege to identify the information and material in question. How must the party who asserted the privilege respond?
The party asserting the privilege must respond by serving a privilege log - a response that describes the information or material withheld and asserts a specific privilege for each item withheld. The response should not reveal the privileged information itself and it must be served within 15 days of service of the request.
How much notice must be given for a deposition?
Notice must be served on the parties a reasonable time before the depo 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 a subpoena for production of documents.
What must you do to object to the time & place in notice of deposition?
Must file a Motion for Protective Order or a Motion to Quash the notice of deposition. The motion must be filed within the time permitted for a response, before the time specified for compliance in the notice of deposition.
Under what circumstances may a deponent confer with his lawyer during a deposition? What may a lawyer instruct a W not to answer a question during a deposition?
Private conferences between the W and the W's attorney during the actual taking of a depo are improper except for the purpose of determining whether a privilege should be asserted. An attorney may instruct a W not to answer only if doing so is necessary to preserve a privilege, to comply with a court order, or to protect a W from an abusive question or one that requires a misleading response.
What are the permissible objections in a deposition?
1. "Objection, leading." 2. "Objection, form." 3. "Objection, non-responsive." Argumentative or suggestive objections waive the objection
What must you do to obtain medical records without taking oral depositions?
Prepare an affidavit for the custodian of medical records. The affidavit must show the same elements as the business records exception to hearsay.
What happens if you inadvertently disclose privileged material?
The privileged materials must be returned to the party and cannot be used to support the other party's claims. The claim to privilege is not waived provided that within 10 days after the inadvertent production was discovered, the party amends his response, identifies the material produced, and states the privilege was asserted.
What should a party file in order to abandon its claims against a party, and what must the court's order recite if the party wants to reserve the right to re-file the claims at a later date?
Motion or Notice of Non-Suit the party. The court should sign the order, dismissing the claim against the party without prejudice to file the claim at a later date.
What showing must a party make in an application for continuance if a number of W's were unable to be deposed?
Must assert by affidavit: (1) that the testimony is material and show its materiality; (2) due diligence to procure the testimony was used, stating such diligence; (3) the cause of the failure if known; (4) that such testimony cannot be procured from any other source; (5) the nature of the absent testimony; and (6) that the continuance is not sought for delay, but so that justice may be done.
What must you do to exclude expert testimony at trial?
File a pretrial Daubert motion to challenge the admissibility of the expert's testimony. The motion should allege the expert is not qualified by knowledge, skill, experience, training, or education to offer his opinion and that his opinion is not reliable.
When is a counterclaim compulsory?
A counterclaim is compulsory if it arises out of the same occurrence that is the subject matter of the principal action. Failure to assert it in the present suit means it is barred in subsequent litigation.
Are things prepared for mediation confidential?
Things prepared for mediation are confidential unless independently discoverable.
What do you do if a Plaintiff fails to properly plead?
D can file a Special Exception seeking a specification of pleadings and ask the court to require Plaintiff to amend. D should object in writing, call for a hearing, and get a ruling on the exception on the record.
What do you do if you don't want irrelevant stuff (divorce) coming into trial?
File a motion in limine, which, if granted, would prohibit the P's lawyer from mentioning the stuff in voir dire and opening statement and require the D's lawyer to approach the bench for a ruling on admissibility before presenting it to the jury. To preserve error, D should object to the reference, request a jury instruction to disregard the reference, and if the instruction is given, move for a mistrial.
What if the other side wants to bring in stuff from mediation (or any ADR)?
The ADR statute provides a communication made by a participant in a mediation is confidential, not subject to disclosure, and may not be used as evidence against the participant in any judicial proceeding.
What should you do if you notice that the other side's witnesses are all in the courtroom and you don't want them in the courtroom after trial testimony starts?
Ask the court to invoke the rule requiring sequestration of W's so that the W's cannot hear other W's testimony, and the court will instruct the W's not to converse with others about the case. Exceptions to the rule: parties, their spouses, and expert witnesses.
What do you need to show if you call a W that you didn't designate in your discovery responses?
You have a duty to supplement your discovery responses. You must show the court good cause for failure to list the witness in the original or supplemental responses or that no unfair surprise or unfair prejudice to the D will occur.
How can you introduce evidence of a prior inconsistent statement to impeach a witness?
Prior to offering the statement, the witness must be informed of each of the following and given an opportunity to explain or deny (1) the contents of the statement; (2) the place and time they were made; and (3) the person to whom the statement was made.
Is a statement by a party opponent employee's admissible?
Yes the statement of a party's employee is admissible when offered against the party so long as the statement concerned a matter within the scope of employment and was made during the existence of the employment relationship.
Is an offer to pay medical/hospital expenses admissible?
No, this is inadmissible to prove liability for injuries.
Is an offer to compromise a disputed claim admissible?
No, it is not admissible to prove either liability or the amount of damages.
What is the confidential marital communications privilege?
Permits one spouse to prevent the other spouse from testifying as to confidential communications between them made during the marriage. This privilege survives the marriage.
Are convictions admissible to impeach a witness?
No, unless the convictions are felonies or crimes of moral turpitude. (check remoteness for TX)
Can you impeach using a conviction more than 10 years old?
A felony conviction more than 10 years old from release or completion of probation is inadmissible unless court finds that in the interest of justice the probative value of the conviction substantially outweighs its prejudicial effect.
What should you file, pretrial, in order to defeat a claim or defense of the other side?
File a traditional MSJ or a no-evidence MSJ. Traditional MSJ must allege that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. No evidence MSJ must allege that the non-movant cannot produce any proof to support an element of the claim or defense.
What should you do if opposing counsel referred to matters that the court had excluded from evidence?
Object on the ground that the party has referred to a matter outside the record. If sustained, you can request an instruction that the jury disregard the statement. If the instruction is given, you would then have to request a mistrial in order to obtain the adverse ruling necessary to preserve the issue for appeal. Some references to matters outside the record are not curable by instruction. No objection is required to such matters during argument. The issue can be raised for the first time in a motion for new trial.
If the other side presents no evidence to show you are liable, what can you do?
Make a motion for a directed verdict, which is based on the argument that there are no controverted fact issues for the jury's determination.
When and how should parties object to a proposed jury charge?
Parties should present their objection before the charge is read to the jury. The objection should be specific, clearly identifying the errors and explaining the grounds for complaints, it should be made in writing, or on the record, and outside the presence of the jury. The parties should get a ruling on their objections.
How can you preserve error for appeal if the judge fails to instruct the jury properly?
Make written requests for instructions, tender in writing substantially correctly worded instructions, and obtain a written ruling on these submissions. They must have been raised in the pleadings and supported by "some evidence" at trial.
What happens if someone in the jury must leave?
A verdict may be rendered by the concurrence of 10 members of the original 12 person jury. When the missing juror is "disabled from sitting" the case can proceed even without the consent of both parties.
What happens if the jury fails to answer all questions as instructed in the jury verdict?
If material questions are not answered, the court should reject the verdict and, with proper instructions pointing out the defect, retire the jury for additional deliberations.
If a juror communicates with an outside party or is influenced by a person or newspaper, etc. who is not part of the jury, what may a party do?
File a motion for new trial. Support it by an an affidavit alleging juror misconduct (third party communications during deliberations), materiality, and that the misconduct hurt her case. While jurors CANNOT testify as to deliberations, a juror may testify whether any imporper outside influence was brought to bear on any juror.
What should you do if after the jury verdict you beleive that there is no evidence to support the jury's finding of fault?
File a Motion for Judgment Not Withstanding the Verdict (JNOV) challenging the legal sufficiency of the evidence supporting the jury's finding of fault. This motion is proper when "knocking out" (no evidence supports) one or more jury findings entitles the movant to judgment. Whiel the rules do not have a time limit for its filing, case law suggests that it may be filed after the court has entered judgment but before it becomes final.
If a party files a motion for new trial after judgment is signed, and does not request a hearing on the motion, when will the judgment become final?
The motion is considered overruled by operation of law 75 days after the court signs the judgment. If a timely motion for new trial is filed, the trial court has plenary power over the judgment until 30 days after the motion is overruled, either by written order or by operation of law. If no action is taken by any party after filing the motion, the judgment will become final on the 105th day after the court signs the judgment.
YOU MIGHT ALSO LIKE...
South Texas Civil Procedure & Evidence
Texas Bar- Civ P&E
Texas Civil P&E
OTHER SETS BY THIS CREATOR
Crim Pro P&E
Pro Res Restrictions on Rights to Practice
Pro Res Chapter 11
Pro Res Chapter 1