P&E

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Author:
jpbehnke
ID:
227510
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P&E
Updated:
2013-07-29 12:27:18
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pande
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Description:
Procedure and evidence for the Texas Bar Exam
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  1. Effect of defendant filing after 20 days after service, but before default judgment is entered
    No default judgment can be entered
  2. Request for Authorization of Medical Records
    • The Request for Disclosure rule provides that in
    • suit alleging physical injury, 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.
  3. Amended answers must be executed at least ____ days before trial.
    7
  4. Mar 1, 2013 effect upon numbers of interrogatories, requests for production, and requests for admission.
    ALL are now limited to fifteen! Parties can also request, however, that parties disclose all documents and tangible things the disclosing party has in its control or possession and may use to support its claims or defenses.
  5. Collateral source rule
    Precludes the introduction of evidence of insurance to prove that some of the plaintiff’s damages have been paid by a collateral source
  6. 3 of 5 things Tex. Judge must tell at guilty/nolo plea
    • 1. Punishment range
    • 2. Prosecutor's recommendation for sentencing is not binding
    • 3. Non-citizen may be deported, excluded from US, and denial of naturalization
  7. 9 indictment requirements
    • "In the name and by the authority of State of Texas";
    • Presented in Disc. Ct. of county where grand jury was in session;
    • Name of accused;
    • Show place where offense committed was w/in jx. of court;
    • Offense committed before presentment of indictment;
    • Act of GJ of proper county;
    • Set forth offense;
    • "Against the peace and dignity of the State."
    • Signed by foreman of GJ
  8. Requirements of Jury Charge (two parts)
    • Abstract (law)
    • Application
  9. Requirements for probation
    • Punishment ≤10 years;
    • Pre-trial sworn application before trial begins for probation;
    • No felony in any jx.
  10. Reasons to challenge GJ array
    • Those impaneled are not those selected;
    • Summoning officer acted corruptly
  11. Contents of a Writ
    • Pet. is being unlawfully confined;
    • Name (description) of person confining pet.;
    • Prayer for habeas corpus
  12. Forms of discovery
    • Disclosure;
    • Production;
    • Interrogatories;
    • Depositions;
    • Requests to enter/examine land;
    • Mental/physical examinations
  13. Number of interrogatories
    25 before Mar. 1, 2013; 15 after.
  14. Civil: Length of Deposition
    • Level 1: 6 hours total, can be extended to 10 by agreement/ct. order
    • Level 2: 50 hours total
  15. Motion for New Trial Deadlines
    • W/in 30 days after verdict;
    • Hearing w/in 10 days after filing;
    • Court can extend hearing date to 75 days;
    • Deemed overruled after 75 days w/ no answer (but ct. still has plenary power 30 days after 75 days, effectively extending its plenary power to 105 days)
  16. Long arm
    • Sufficient contacts;
    • Action stems from those contacts;
    • Comports with traditional notions of fair play and substantial justice
  17. Responses to Requests for Disclosure
    • Name of parties
    • Legal theories
    • Insurance/indemnity agreements
    • Names/addresses of witnesses
    • Method of calculating damages
  18. Warrantless Arrest Presentation Requirements
    Present before magistrate w/o unnecessary delay and no longer than 48 hours
  19. 4 of 6 things magistrate must inform arrestee of
    • Accusations against him;
    • Right to remain silent;
    • Right to counsel;
    • Right to counsel present during any interview w/ cops
  20. General venue provisions
    • D's residence/principal place of business;
    • All/substantial portion of events giving rise to action occurred
  21. Motion to Transfer Venue Requirements (Civ.)
    • Not proper/inconvenient;
    • Specific facts and legal basis;
    • Filed: Before or concurrent w/ other pleadings but after special appearance
  22. No felony has a period for SoL less than ___ years.
    3
  23. Incompetence
    • At time of trial, ∆ does not have:
    • Sufficient present ability to consult with atty w/ a reasonable degree of rational understanding; or
    • Rational and factual understanding of the proceedings against him
  24. Officer's police report in a criminal case is/is not discoverable?
    Not, unless the report contains that to which defendant has an absolute right, such as exculpatory evidence.
  25. (Crim.) Jury request must be submitted before:
    Voir dire begins.
  26. Notice of Intent
    Used to ensure prosecutor will disclose pretrial whether he intends to use certain evidence.
  27. Motion in Limine
    Pretrial motion to keep evidence out of the trial unless atty's sidebar consult with judge to determine admissibility under 403.
  28. Peremptory challenges: Civil
    6 for each side (3 in county court), unless multi-party'd side would be prejudiced, then judge can grant each party 6, unless it would be inequitable, in which case the court can equalize strikes.
  29. Peremptory challenges: Criminal
    • Capital: 15
    • Felony: 10
    • Misdemeanor: 5
  30. If jury grants probation, may the court disregard the recommendation?
    Nope, so long as ∆ is eligible.
  31. (Crim.) Notice of appeal must be effectuate w/in ___ days.
    30. If a motion for new trial is timely filed, raises to 90 days.
  32. What must be included in process?
    Copy of petition along with citation issued by the clerk of the court.
  33. Verified denial
    File to aver you have been sued in the wrong capacity.
  34. Affirmative defense must be plead ____ days before trial.
    ≥7 in an amended answer
  35. (Civ./Crim.) Juror gets sick, leaving less than 12 jurors. Mistrial?
    Civ.: Nope. The verdict can be reached upon agreement of 10 jurors. Must be signed by all jurors, though!

    Crim.: Nope. So long as unanimous. Must be signed by all jurors, though!
  36. What is a writ of habeas corpus?
    Remedy to be used when a person is restrained in his liberty.

    Order issued by a judge directed to anyone having a person in his custody to produce him and show why he is held in custody or under restraint.
  37. Indigency
    • Court must determine separate from ability to meet bail.
    • Factors:
    • income,
    • assets,
    • property owned,
    • outstanding obligations,
    • necessary expenses, and
    • any other relevant factors
  38. Are prosecutors allowed in grand jury room during deliberations?
    No. No one other than the GJ is allowed in the GJ room while the GJ is deliberating.
  39. Timing: Motion to Quash
    Before trial commences; failure to challenge = waiving ability to challenge and to appeal based upon the defect.
  40. Requirements for a confession to be admitted:
    • Accurate, electronic recording was made of the statement;
    • ∆ was given Miranda rights;
    • Knowing, intelligent, and voluntary waiver of those rights; and
    • 20 days before trial defense attorney was provided with a copy of the recording.
  41. Reasons to disqualify a juror
    • Felony conviction;
    • Misdemeanor theft conviction;
    • Under indictment for felony or misdemeanor theft;
    • Insanity
  42. (Crim.) Accomplice testimony enough for conviction?
    Nope.
  43. If a party is sued in the wrong capacity, what should it do to fix its status?
    • File a verified denial to put the parties on notice it was sued in the wrong capacity.
    • File motion to abate until the plaintiff can cure the defect.
  44. (Civ.) How should a party bring up that it believes the statute of limitations has passed?
    Affirmative defense in its answer or it may amend its answer before 7 days before trial (so long it's not a surprise to the other party)
  45. Deadline for Request for Disclosure
    30 days before the end of the discovery period.
  46. Can a case be withdrawn from the jury docket if such withdrawal has been objected to?
    Nope.
  47. Motion for leave to designate responsible third party
    • Alternative to impleading a third party (for instance, third party is bankrupt and wouldn't add anything to liability questions);
    • Allows other defendant to potentially decrease his liability
  48. Are photographs taken in anticipation of litigation privileged?
    Nope. They're specifically excepted by the rule and are discoverable, even if made in anticipation of litigation.
  49. Are witness statements taken in anticipation of litigation privileged?
    Nope. They're specifically excepted by the rule and are discoverable, even if made in anticipation of litigation.
  50. Parties must receive _____ days notice before the first trial setting.
    45
  51. (Civ.) Can a court reduce the number of peremptory strikes each side gets?
    Nope.
  52. (Civ.) How can the court maintain plenary power over a trial for 105 days?
    Court doesn't rule on a motion for a new trial for 75 days, then judgment becomes "final" but court maintains plenary power for 30 more days, making the total 105 days.
  53. 3 Requirements to make a legal warrantless arrest
    • The person who gave the information to the Deputy must be credible;
    • the offense must be a felony; and
    • the offender must be about to escape.
  54. Correct venue for criminal trials
    Generally, whichever county in which the crime occurred. If the crime occurred in more than one county, any of those counties (e.g., kidnapping: where the kidnapping occurred, and where the victim was taken, as well as any counties the kidnapper traveled through)
  55. Examining trial
    • hearing before a magistrate to determine:
    • whether the state has probable cause to hold the defendant under a felony charge;
    • the amount of bail which the defendant is required to post; or
    • whether the defendant should be discharged
  56. Statements at examining trial under oath?
    Nope.
  57. How to attack the sufficiency of the evidence supporting an indictment?
    Can't do it. Motion to quash is only to attack the face of the indictment, not its underlying basis.
  58. (Crim.) Motion for Severance
    Splitting a trial against two defendants into two different trials to prevent prejudice against one bleeding into prejudice against another.
  59. 3 items that must be included in a subpoena
    • The name of the witness;
    • The location and vocation of the witness, if known;
    • That the testimony of the witness is material to the State or the defense;
  60. (Crim.) Is right to counsel absolute during voir dire?
    Nope. Counsel can be present, but is only required in capital cases.
  61. When must objection to disqualified juror be raised?
    Before the verdict is entered.
  62. What can be considered at a motion to transfer venue hearing?
    Affidavits, pleadings, and stipulations. No oral testimony.
  63. Effect of non-suit w/o prejudice
    Dismiss a party, but can rejoin them later if necessary.
  64. How to assert privilege:
    • State:
    • Info responsive to request is being withheld;
    • ID the request to which the info relates; and
    • ID the privilege asserted
  65. When can deponent's lawyer prevent deponent from answering question?
    • Preserve privilege;
    • Comply with court order; and
    • Protect witness from abusive/misleading Q
  66. How to challenge expert witness
    Before trial, motion for Daubert hearing. Allege expert is not qualified as to his SKEET.
  67. How to object to offering improper evidence in trial?
    • Object to the offer.
    • Ask judge to instruct jury to disregard. If he doesn't, object.
    • Ask judge for mistrial. If he doesn't, object.
  68. Requirements for discovery in criminal proceedings?
    • State that you have good cause for requesting discovery
    • (And any other reasons, such as your entitlement to evidence)
  69. 4 continuance motion requirements
    • Name and address of witness;
    • Diligence used in trying to procure witness;
    • His testimony is material to the case; and
    • I did not procure his unavailability
  70. Offer of Proof
    • Method to preserve item for appeal;
    • Offering summary of testimony, or have witness testimony outside the jury's presence;
    • Must be done before jury charge is read to jury
  71. (Crim.) Entitled to jury instruction regarding defendant's failure to testify?
    Yep. Should inform jury that ∆ has const. right not to take the stand and jury should draw no negative inferences therefrom
  72. How to stay a deposition
    Motion to quash; file w/in 3 days of notice and deposition is stayed until motion can be heard
  73. Objections in Depos
    • Form
    • Non-responsive
    • Leading
  74. If a defendant has been held for 90 days and the State has not made ready its case, what must the court do?
    Grant bail or reduce bond
  75. Warnings before testifying before GJ:
    • Testimony under oath;
    • Right against self-incrimination;
    • Right to lawyer outside of chamber;
    • False answers = perjury;
    • Any testimony given may be used against you in later proceedings
  76. (Crim.) How to depo
    • File application for repo w/ clerk of court;
    • Give "good reason" for repo;
    • Give notice to state;
    • Court must then approve
  77. Time allowed for execution of warrant
    3 whole days exclusive of the day of issuance and the day of execution
  78. (Crim.) Physician-patient privilege
    None.
  79. Arrest Warrant
    • "The state of text"
    • Name of person being arrested;
    • Offense
    • Probable cause
  80. (Crim.) Right to bail?
    Yep.
  81. Personal bond
    Amount ∆ has to pay if he fails to show for court (no money up front, like a bail bond)
  82. (Crim.) Rights of ∆
    • Representation;
    • Subpoena witnesses;
    • Present during witness testimony;
    • C-X witnesses;
    • Make a statement
  83. Insanity
    • At time of incident, ∆:
    • Couldn't appreciate the nature of his act or understand the wrongfulness of his conduct (M'Naghten);
    • Must prove by preponderance
  84. Can pretrial hearing testimony be used against ∆?
    Nope.
  85. Presence of ∆ at trial:
    Physical presence is required at felony/misdemeanor cases where punishment is imprisonment

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