Home > Preview
The flashcards below were created by user
on FreezingBlue Flashcards.
what are the steps to file a civil suit?
1. A civil suit is commenced by FILING A PETITION in the office of the clerk.
what is the DUE ORDER OF PLEADINGS RULE?
- First = file a special appearance to challenge jx;
- Then = file a motion to transfer venue.
- Then = anything else.
how does P compel D to respond to his suit?
- P must obtain service on D.
- P must serve D with process.
- D must be served with:
- 1. a COPY OF THE PETITION; and
- 2. the CITATION issued by the clerk.
- (citation = summons)
- (petition = complaint)
who must P serve an out of state D?
P serves out of state D at the Texas Secretary of State.
what must P allege in order to show that court has SMJ over alien corporation who is doing biz in Tx?
- that D is a non resident, with no place of biz in Texas, no registered agent, and has been doing biz in tx.
- Show that D has munimum contacts with TX
where is venue proper?
- in the county where all or a substantial part of the events took place
- county where D lives.
what (and when) should D file if he does not think the court has PJ over him?
- D should file a special appearance challenging the court's pj.
- The special appearance must be filed before any other pleading.
- The special appearance must also be filed before the answer date.
can a party get an interlocutory appeal from an order granting a motion to transfer venue?
- The party must appeal the venue decision AFTER final judgment.
can P file a motion asking the court for a jury trial on a venue question?
- The court - not the jury - decides venue questions based on the pleadings
what happens to the judgment if on appeal it is ruled that venue was improper?
- The judgment is REVERSED and the case REMANDED to trial court for a new trial.
- The standard the court apples is the "reversible error" standard.
when is D's answer due?
at 10:00am on the first Monday after 20 days of service.
what is a special exception pleading?
- Either party may use a special exception to attack a defective pleading by an adverse party.
- Ex: P flies a negligence case w/o stating any underlying facts.
- If sustained, pleader has the right to replead.
What are tools of discovery under the TX civ pro rules?
- 1. written depositions;
- 2. oral depositions;
- 3. interrogatories to party;
- 4. request for admission;
- 5. request for disclosure;
- 6. request for production and inspection;
- 7. motions for physical examinations.
what are the types of discovery plans?
- 1. level 1;
- P seeks only $ relief under $100,000 OR a suit for divorce not including children where estate is under $50,000.
- 2. level 2;
- Does not fit level 1 or 3.
- Most common plan.
- Default plan is parties don't ask for a level.
- 3. level 3
- the court comes up with a tailored plan for the case depending on what the parties ask.
who may be deposed?
- ANYBODY who may have information related the litigation.
- You should get a subpoena for non-parties.
Is there a specific order parties should use discovery tools?
Can a party request for a medical authorization instead of medical records?
- YES. The requesting party has the option of seeking an authorization INSTEAD of medical records.
if P requests production of priv work product material, what should D do to avoid production?
D should file an objection claiming that priv work product is not discoverable.
can a party obtain statements form another party if other party does not want to disclose them?
- with request for disclosure, a party can obtain ANY W statement the other party has, regardless of when the statement was made.
- NOTE: statements are NOT protected under the work product privilege.
where should depositions be held?
- depositions are generally held in the party of suit (unless the parties agree otherwise).
- * Place designated for depos must be reasonable. (where the party lives, or works, or was served, or where suit was filed.
how does D get an affirmative defense submitted as a question to the jury?
- Plead affirmative defenses as grounds for defense in the answer.
- If the pleaded evidence is produced, then D can have it submitted as a question to the jury.
when must affirmative defenses be raised?
- with the first answer.
- Affirmative defenses must be pleaded as grounds for defense and D (if submitted by D) will have the burden of proof.
what should D file if after investigating he discovers he has an affirmative defense?
- S should file an amended answer asserting the affirmative defense at least 7 days b/4 trial.
- If not at least 7 days before trial, then file a motion seeking leave of court to modify.
P files a jury demand with his first motion.
Then P changes his mind and files a motion to withdraw the case from the jury docket. D objects.
How should court rule?
- Assuming P paid for the trial fee, court should DENY.
- Jury withdrawal motion is only proper if ALL PARTIES AGREEE.
what is the limit of requests for production for discovery level 1 cases?
- limit is 15 requests for production for level 1.
- level 1 = 15 requests for production
P files suit against D1 and D2. D's get evidence that X guy is responsible for P's injuries in the case.
What should D's file to support his evidence and to support a jury question re. X's fault?
D's should file a motion to add X as a responsible third party.
when may a party amend a pleading?
- A party may amend a pleading so long as it does not operate as a surprise.
- If it's within 7 days of trial, you must seek court leave to amend.
when may a party amend to join a claim against a 3pD?
when the claim arises out of the same t/o.
what should P do if D's allege -generally- that P's contributory negligence what the cause of the injuries P is suing for?
- P should file special exceptions.
- P should ask the court to require the D to replead their case with specificity or,
- in the alternative, strike their pleadings.
what does P need to do if he wants a jury trial?
- 1. file a written request for jury trial;
- 2. pay jury fee a reasonable time b/4 trial (at least 30 days before trial)
how many peremptory challenges are parties allowed?
- each party is allowed:
- district court = 6 each
- county court = 3 each
what pleading should a party file in order to try to prevent certain information from being mentioned to the jury during trial?
- a MOTION IN LIMINE.
- - if granted, parties will not be allowed to mention the certain info during trial.
may P call D as his W in P's case in chief?
- there is no rule requiring establishing a prima facie case b/4 calling an adverse party to the stand to testify.
what happens if a party fails to mention an expert's expected testimony and the counter party files a motion to strike the EW?
- The party who failed to disclose the EW info can overcome a motion to strike if he can show that:
- 1. there was good cause for the non-sislcoure;
- 2. that the other party will suffer no surprise or prejudice.
what is the collateral source rule?
The rule prohibits ev of insurance to prove that a party's medical expenses may be covered by insurance.
does producing hearsay in response to a discovery request make that hearsay admissible during trial as evidence?
- D could (for ex) provide uncertified copies of medical records for discovery, that's fine.
- But this does NOT mean that he gets to introduce it as evidence because it would be hearsay because the doc is self serving.
- NOTE: producing a document in response to a discovery request authenticates the doc for use against the producing party if there has been no objection.
- So, if D asks P for medical records during discovery and P proceeds copies. These copies are authenticated for use by D against P unless there is objection.
what can P file if P thinks that D, after cloning his case, failed to prove whatever D wanted to change P agasint?
- File a JMOL (judgment as a matter of law) or DIRECTED VERDICT.
- This tells the court that D failed to prove any of the elements that D set out to prove.
what is the limit for damages for past medical expenses?
- Limit is what P has already paid or incurred.
- If jury awards an mount in excess of what's already paid, award will be reduced to cover past (Paid) medical expenses.
how may jurors must vote the same way for a verdict to be valid?
- if 12 ppl jury = 10 jurors must agree
- if 6 ppl jury = 5 jurors must agree
- NOTE: verdict need NOT be unanimous.
if jury returns a verdict and either P or D thinks that the evidence produced at trial is insufficient for such a verdict, what should the party do?
- File a judgment notwithstanding the verdict.
- This motion challenges the legal sufficiency of the evidence.
when does a court's plenary power expire?
- the trial court's plenary power to set aside, modify, or amend judgment expires 30 days after the motion for a new trial is denied.
- The motion for a new trial will be overruled by operation of law 75 days after signing of the judgment.
- The court's plenary powers expire 105 days after the signing of the judgment.
when does a judgment become final?
- The court's plenary power expires 105 days after signing of a judgment.
- If a party signs a motion for a new trial, the court has 30 days to rule on it or its overruled by operation of law.
- The regular plenary power is 75 days, so when you add the 30 days, you get 105 days.
what pleading should a party file if they think there is no legal or factual basis for the claim?
- A no evidence motion for summary judgment.
- I is appropriate after adequate time for discovery, and its filed on the ground that there is no evidence of one or more essential elements of a claim on which the non-moving party has a burden of proof at trial.
- NOTE: the motion should specify the element as to which there is no ev and challenge the legal sufficiency on the record.
Can defendant have a an absentee designated as a RTP (responsible third party)?
- - pursuant to the Responsible 3P statute
If party wants to raise a statute of limitations defense, how and when should they do it?
- 1. File an AMENDED ANSWER alleging the affirmative defense of SOL.
- 2. Amendment may be made w/o leave of court if done BEFORE 7 DAYS prior to trial.
- 3. if filed within 7 days prior to trial, motion seeking leave of court must be filed.
what is the form of discovery that is NOT subject to any objections?
REQUEST FOR DISCLOSURE
what should D do if he raised affirmative defenses on the pleadings and offered supportive ev during trial but the defenses are not included in the jury instructions?
How does he preserve error?
- 1. request submission of the defenses.
- Preserve error by:
- 1. making a WRITTEN REQUEST FOR INSTRUCTIONS;
- 2. give to court in writing substantially correctly worded instructions;
- 3. get a WRITTEN RULING.
how many jurors must render a CIVIL verdict when there are 12 of them impaneled?
- 1010 out of the original 12 is enough
- - case proceeds without need of consent of parties.
P files suit against biz org wrongly naming the type of biz org...
biz org wants wants to correct, what should biz org file?
- VERIFIED DENIAL
- this gives NOTICE that party intends to raise correct status.
- NOTE: then file plea in abatement to raise correct status
what is a plea in abatement?
sets forth an obstacle to further prosecution of the suit, sets forth the effective cure, asks court to suspend suit until other party (p) corrects defect.
if there is a pre fight arbitration agreement, what should D file?
- Motion to compel arbitration.
- * Arbitration and award is an affirmative defense.
P's atty serves D's doctor a notice for deposition and D's atty immediately notifies P's atty that D's atty won't be able to make it to the deposition and ask for it to be reschedule
RESHCEDULE A DEPO FOR CAUSE
- D can file a MOTION FOR A PROTECTIVE ORDER
- a MOTION TO QUASH the notice of depo
- NOTE: file within 3 days of service.