Kelsey Doc. 59 good questions, nicely answered!

Q: 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.

Q: 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.

Q: What can counsel do if they do not timely reply to Request for Admissions?

They are deemed admitted . A matter admitted under this rule is conclusively established as to the party making the admission (i.e. no contrary evidence can be introduced at trial). 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 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.

Whether there is interlocutory appeal or mandamus available for venue ruling?

Generally the decision on venue is not reviewable until after final judgment. Two exceptions allow immediate review: mandatory venue provisions, which are reviewable by mandamus, and joinder of multiple plaintiffs, which is reviewable by interlocutory appeal.

What is an effect on final judgment if any of an erroneous venue ruling by trial court? If trial court gets the venue determination wrong, it is reversible error after final judgment. There is NOT any harmless error analysis

If trial court gets the venue determination wrong, it is reversible error after final judgment. There is NOT any harmless error analysis

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?

(i) Request for Disclosure, (ii) Request for Production, (iii) Interrogatories, (iv) Request for Admissions, (v) Depositions, (vi) mental and physical examination, (vii) entry upon land requests. (DEAD IMP). Existence and contents of insurance agreements are within the scope of discovery, through (i), (ii), and (iii).

Name 5 categories of information or materials that you can request in a Request for Disclosure?

(i) correct names of the parties; (ii) names of potential parties; (iii) name of anyone who may be designated as a responsible 3rd party; (iv) the amount of economic damages; and (v) 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. A matter admitted under this rule is conclusively established as to the party making the admission (i.e. no contrary evidence can be introduced at trial). 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 bust 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.

Where will party depositions take place if the parties cannot agree?

The deposition will take place in the county of suit for party depositions.

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 w/in the time permitted for a response, before the time specified for compliance in the notice of deposition.

Under what circumstances may a deponent confer w/ his lawyer during a deposition? When may a lawyer instruct a W not to answer a question during a deposition?

Private conferences b/t 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 w/ 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”; and 3. “Objection, non-responsive”. Argumentative or suggestive objections waive the objection (i.e. these objections are waived if not stated as such during the oral deposition). Any other objections are to be raised later. If requested the objecting party must give a clear and concise explanation of an objection or the objection is waived.

Is the introduction of deposition testimony admissible at trial?

Texas rules of evidence state that a deposition taken in the same proceeding is NOT hearsay and unavailability of the deponent is not a requirement for admissibility.

What must you do to obtain medical records without taking oral depositions?

Party may request through disclosure an authorization permitting disclosure of such medical records and bills, that are reasonably related to the injuries asserted by the plaintiff.

How can a party obtain witness statements or attorney’s notes?

A witness statement is discoverable through request for disclosures. It is (i) a written statement signed or adopted or approved by the person making it or (ii) a recording or substantially verbatim transcription of the recording. Notes taken during a conversation with a witness are not a witness statement, they are the attorney’s notes and thus work product.

How can a party obtain the names of trial witnesses?

The names of trial witnesses are expressly included within the scope of discovery. Names of witnesses to an accident would be discoverable through a request for disclosure (name, address, and telephone number of persons with relevant facts, and a brief statement of each identified persons’ connection with the case.

How does party ask a witness about business records/photographs that were previously produced by the adverse party when that party objected that they had not been properly authenticated?

A party’s production of documents in response to written discovery authenticates those documents for use against that party unless the producing party objects to the authenticity of the document. The objection must have a good-faith factual and legal basis and typically must be logged within 10 days of actual notice of when documents will be used.

How many interrogatories, requests for production, and requests for admission may a party use?

Limits to interrogatories depend on discovery level (15 under level 1 and 25 under level 2). As far as limitations on requests for production or admission, they are unlimited UNLESS in discovery level 1 then 15 for each.

What happens if you inadvertently disclose privileged materials?

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 w/in 10 days after the inadvertent production was discovered, the party amends his response, identifies the material produced, and states the privilege asserted.

What should a party file in order to abandon its claim 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 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: (i) that the testimony is material and show its materiality; (ii) due diligence to procure the testimony was used, stating such diligence; (iii) the cause of the failure if known; (iv) that such testimony cannot be procured from any other source; (v) the nature of the absent testimony; and (vi) 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.

What do you do if 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. Plaintiff can also use to require defendant to plead with more particularity. Third party defendant can also use to get the defendant/third party plaintiff to state in detail facts and circumstances on which it is relying.

What are defendant’s affirmative defenses and when must they be raised? (ID SCRAP FEW)

Certain defenses must be verified (sworn to). One such defense is sued the in the wrong capacity meaning that defendant is not liable in the capacity it has been sued. Other defenses include AOR, arbitration award, estoppell, failure of consideration, illegality, duress, Release, accord & satisfaction, SOL, and contributory negligence. Defendant must specifically plead affirmative defenses and can do so by amending its answer at least 7 days before trial without leave of court. If amend within 7 days of trial leave of court is required and leave should be granted unless other party shows surprise.

How can a defendant bring a third party defendant into the lawsuit and when can he do so?

Defendant may file a petition and serve the third party with petition and citation within 30 days of his answer w/o leave of court. If after 30 days defendant must seek leave of court to file the petition. This practice actually brings the third party into the lawsuit.

How can defendant bring in a responsible third party(RTP) and when must he do so?

A defendant can designate a RTP by filing a motion for leave to designate. The procedure is limited to cases based on tort and DTPA. The motion must be filed on or before 60th day before trial date unless the court finds good cause to allow the motion to filed at a later date. Defendant cannot designate the RTP where the SOL has expired if the defendant failed to timely disclose RTP after plaintiff made the Request for Disclosure about the name, address, and telephone number of any person who pay be designated as a RTP.

How can either party bring in additional party defendants?

Additional parties may be brought in by the plaintiff or defendant under terms set by the court but not at a time nor in a manner to unreasonably delay the trial of the case

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. The oral communication or written material used in an ADR procedure is admissible or discoverable if it is admissible or discoverable independent of the procedure (i.e. witness statements used at a mediation).

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: party W’s, their spouses, and expert W’s.

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 mush show the court good cause for failure to list the W 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 (i) the contents of the statement; (ii) the place and time they were made; and (iii) the person to whom the statement was made.

How can you introduce evidence of a prior conviction to impeach the witness?

A witness’s credibility can be impeached by a prior conviction if the crime was a felony or involved moral turpitude AND the court decides that the probative value of admitting the evidence outweighs its prejudicial effect to a party. The conviction cannot be more than 10 years since the date of conviction or of the witness’s release, whichever is later, UNLESS the court determines, in the interest of justice that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. The conviction cannot be from a juvenile adjudication or misdemeanors.

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 w/in the scope of employment and was made during the existence of the employment relationship.

What is the confidential marital communications privilege?

Permits one spouse to prevent the other spouse from testifying as to confidential communications b/t them made during the marriage. This privilege survives the marriage.

Are convictions admissible to impeach a W?

No, unless the convictions are felonies or crimes of moral turpitude. Note: traffic violations are neither felonies nor crimes of moral turpitude.

Can you impeach using a conviction more than 10 yrs old?

A felony conviction more than 10 yrs old from release or completion of probation is inadmissible unless court finds that in the interests of justice the probative value of the conviction substantially outweighs its prejudicial effect.

What is the effect of late payment of jury fees and how does a party withdraw a case from a jury docket?

No jury trial will be had unless a written request is filed a reasonable time before the date set for the non-jury trial (not less than 30 days in advance) and the fee is paid within the time for making the request. But an untimely payment should NOT prevent a jury trial UNLESS it would interfere with the court’s docket or delay the trial or injure the opposing party. If one party requested a jury trial and paid the feed, the suit cannot be withdrawn from the jury docket w/o consent of all the parties.

What is the proper allocation of jury strikes?

Each party is entitled to 6 preemptory challenges. If there are multiple parties the trial judge must decide whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issue to be submitted to the jury, before the exercise of the preemptory challenges. In mult party caes a lititgant must move to equalize strikes before using preemptory challenges. Trial judge must equalize so no litigant or isde is given an unfair advantage because of the way the litigants are aligned and the number of challenges awarded to each litigant or side.

What is a common challenge for cause and how many do you get?

Parties can challenge for cause based on bias or prejudice, which is a statutory ground for disqualification. Each party gets unlimited challenges for cause. If overruled the party would use a preemptory strike. To preserve error on the overruled challenge, attorneys must inform the trial court that they have to use a peremptory strike on the biased juror that they would have used on somebody else, leaving them with an objectionable panelist who must be identified before the jury is chosen.

What should you do if opposing counsel referred to matters that the court had excluded from evidence?

You should 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 or (JMOL), which is based on the argument that there are no controverted fact issues for the jury’s determination and judgment should be entered in movants favor as a matter of law. Motion for directed verdict appropriate when plaintiff rests or when defendant rests or after both sides close.

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 gets super sick and has to 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 w/o the consent of both parties. Can proceed with 9 ONLY IF 3 have died or become disabled (9 is the minimum allowed) but those 9 would have to unanimously agree.

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. (RPR)

If a juror communicates with an outside party or is influenced by a person or newspaper etc. who is not a part of the jury, what may a party do?

File a motion for new trial. Support by 1) affidavit, alleging juror misconduct (third party communications during deliberations), 2) materiality, and that the misconduct 3) harmed her case. While jurors CANNOT testify as to deliberations, a juror may testify whether any improper outside influence was brought to bear on any juror.

What should you do if after the jury verdict you believe that there is no evidence to support for the jury’s finding of fault?

File a Motion for Judgment Not Withstanding the Verdict (JNOV) AKA Renewed JMOL 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. While 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.

What amount of past medical expenses should be entered in the judgment where jury has awarded an amount but the opposing party has stipulated that the insurance carrier has paid a lower amount and that has discharged the plaintiff’s medical expenses?

Recovery of medical expenses is limited to the amounts actually paid or incurred. Recovery is precluded for expenses that neither the plaintiff nor anyone acting on his behalf will recover.

What result if at trial the defendant wants to introduce a copy of the plaintiff’s personal group health insurance policy to show that plaintiff really would not incur these costs and plaintiff objects?

The court should sustain the objection to the proffer of the policy because group medical coverage is a collateral source and inadmissible.

New Rule: Plaintiff’s petition asserted that Plaintiff sought monetary relief of less than 100k, including all damages, costs, pre-judgment interest and attorney’s fees. When must case proceed to trial and what time limits if any are placed on the trial?

This puts the case in the expedited action process. On any party’s request the court must set the trial date for the Level 1 case within 90 days after the discovery period ends. Each side is allowed no more than 8 hours for jury selection, opening statements, presentation of evidence, examination and cross, and closing arguments. Amount of time can be extended to 12 hours per side upon a motion and showing good cause.

New rule: After defendant answered, plaintiff served 12 interrogatories upon defendant; each interrogatory had two subparts. Defendant objected to number of interrogatories. Plaintiff filed a motion requesting that the court order defendant to answer the interrogatories. How should the court rule on the motion?

Overrule the motion because if you count each subpart then you actually have 24 which is good under level 2 but not good for level 1.

New rule: Assume court overruled the above motion. Upset with the ruling the plaintiff wants to get the case out of expedited action process. What pleading if any should plaintiff file to get the case out of the expedited actions process? IF the court were to rule in plaintiff’s favor what would happen in terms of discovery?

File a motion to remove the case from level 1 and show good cause OR if you change the pleading that seeks an amount more than $100k you can seek to leave level 1.

Kelsey Doc

59 important questions on Kelsey Doc