Civ Pro P&E Summary - Texas
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1. When must an answer be
filed to avoid default
judgment?
2/08, 7/08
2. Under the General Venue
Statute Where is Venue
Proper?
7/08, 7/10, 7/11
3. How do you object to
venue? When?
2/08, 7/08, 7/10
4. 5 Things in a Request for
Disclosure
7/08
5. When must a response
denying a discovery
request be filed?
7/08
6. How is a discovery
admission withdrawn
when it was admitted
because you didn't
respond in time?
7/08
7. What do you do when the
opposing party objects to
your discovery request or
doesn't comply fully?
2/08, 7/08, 7/10
8. How can records be
obtained from non-
party?
7/08
By 10:00 am on Monday after
the expiration of 20 days from
the date of service of the citation
and petition.
1. Where all or a substantial part
of the events occurred
2. Where the DEFENDANT
RESIDES.
3. Where the corporate
defendant has its PRINCIPAL
PLACE OF BUSINESS.
1. File a MOTION TO
TRANSFER VENUE alleging the
factual and legal basis for the
transfer.
2. Per due order of pleading in
Texas, motion must be filed
PRIOR TO or CONCURRENT
WITH all OTHER PLEADINGS
or motions.
1. Correct party names
2. Damages
3. Fact Witnesses
4. Retained testifying experts.
5. Medical records.
1. Within 30 days from the date
of service.
2. After 30 days, it is deemed
admitted without the necessity of
a court order.
File a MOTION TO
WITHDRAW the deemed
admission showing
1. good cause for the untimely
filing of the response, and
2. that the withdrawal will not
unduly prejudice Peter.
File a MOTION TO COMPEL, as
allowed under the rules of
discovery.
1. SUBPOENA them compelling
them to produce the records
(without requiring them to
appear for deposition)
2. File a request for production,
and subpoena them for oral or
written deposition.
9. What can an attorney do to
when the client is served with
a deposition request without
the attorney's knowledge,
and the attorney can't
attend?
7/08, 7/10
10. During a deposition, what
objections are allowed?
What if the other attorney
makes other objections?
7/08
11. What does a respondent do if
they believe there is no merit
for the lawsuit against them?
7/08, 7/11
12. What is the response to a
Motion for Summary
Judgment? When?
2/08, 7/08
1. File a MOTION TO
QUASH, or a protective
order.
2. If filed by the 3rd
business day after service of
notices of deposition,
deposition is stayed until
motion can be determined
1. "Objection, LEADING"
2. "Objection, FORM"
3. "Objection, NON-
RESPONSIVE"
Argue that the opposing
counsel's objections are
improper. Judge should
suspend the deposition and
move for sanctions.
1. File a traditional
MOTION FOR SUMMARY
JUDGMENT and argue
there is no GENUINE
ISSUE OF MATERIAL
FACT.
2. FILE A NO EVIDENCE
MOTION FOR SUMMARY
JUDGMENT and argue
that the plaintiff has
offered no evidence to
support his claim.
1. Object to the summary
judgment.
2. Present the ___
(evidence) showing that s a
GENUINE ISSUE OF
MATERIAL FACT exists.
3. Response should be filed
NO LATER THAN SEVEN
DAYS PRIOR TO THE
HEARING.
13. What do you do when 1. File a MOTION FOR
one of your witnesses CONTINUANCE.
might not be available 2. Argue the witness is not
on the day of the available.
deposition? 3. Support the motion with an
affidavit providing the witness's
7/08 name and address, stating the
witness is material and why;
4. Due diligence was used to
procure the testimony but
TESTIMONY IS NOT AVAILABLE
FROM ANY OTHER SOURCE,
and
5. Continuance is NOT SOUGTH
FOR DELAY.
14. How are peremptory 1. Two-party case: Each side
strikes allocated in a entitled to SIX PEREMPTORY
two-party case? STRIKES.
In a multiple party 2. Multiple Party case: Each
case? defendant will probably get SIX
PEREMPTORY STRIKES.
7/08
Because the court has decided that
the parties are antagonistic to
each other, it has the discretion to
determine the number of strikes to
give to each side, or to equalize the
strikes by increasing the strikes on
one side or decreasing the strikes
on the other, or both.
15. How do you object to a Make a HEARSAY OBJECTION,
statement made out of based on the the grounds that it
court? was an
1. OUT-OF-COURT STATEMENT
2/08, 7/08 made by
2. SOMEONE OTHER THAN THE
DECLARANT, for the
3. TRUTH OFTHE MATTER
ASSERTED.
16. To suggest your client Object on the grounds that
is liable, plaintiff tries evidence of furnishing or
to introduces evidence promising to pay medical bills
that your insurance caused by an injury is
paid for the plaintiff's inadmissible to prove liability for
medical bills. How do an injury
you respond?
7/08
17. Plaintiff tries to 1. Object on grounds that the
impeach your client by impeachment is improper.
offering evidence of 2. UNDER THE RULES OF
your client's conviction EVIDENCE, you can impeach by
of a misdemeanor. offering a CONVICTION OF A
How do you respond? FELONY or a CRIME OF MORAL
TURPITUDE, but not a
7/08 misdemeanor.
18. Response when
opposing party tries to
introduce testimony of a
mediator from a
previous mediation
proceeding?
2/08, 7/08, 7/11
19. The court submits to the
jury a question asking
who's at fault, but the
question omits a party.
What do you do?
When?
2/0, 7/08
20. What motion can a
defendant file if the
amount the jury awards
to the plaintiff for future
medical expenses is not
supported by evidence?
7/08, 7/10
21. How does the plaintiff
provide the defendant
with formal notice of the
lawsuit?
2/08
22. How does a defendant
reply to a motion to
change venue?
2/08
23. When a defendant that
has been served has his
own claim that arose
from the same
transaction as the
plaintiff's suit, what
does he do, and when?
2/08
Object on the grounds that any
communication about the
subject of a dispute made by a
participant in an ADR procedure
is
1. CONFIDENTIAL,
2. NOT SUBJECT TO
DISCLOSURE, and
3. CANNOT BE USED AS
EVIDENCE.
1. Object on the ground that the
jury question omits ___ (party).
The objection should be
SPECIFIC in identifying the
error, be IN WRITING, and
made OUTSIDE THE
PRESENCE OF THE JURY.
2. Objection should should be
made BEFORE THE CHARGE IS
READ TO TO THE JURY.
File a MOTION JNOV
(judgment notwithstanding the
verdict) asking the court to
disregard the jury findings
because there is no evidence to
support the amount.
1. Have court clerk issue the
citation.
2. Serve defendant (or registered
agent) with CITATION AND
PETITION.
3. Served by personal delivery, or
sent registered or certified mail.
1. File affidavits to make a
PRIMA FACIE CASE that venue
is proper.
1. With the RESPONSE, file a
COUNTERCLAIM.
2. It will be COMPULSORY if it
arises from the same
transaction.
3. If defendant fails to raise the
counterclaim, it will be waived.
24. What does Plaintiff do when
Plaintiff serves defendant, but
before defendant files answer,
defendant sues plaintiff in
another jurisdiction?
2/08
25. Five forms of Discovery
permissible by TRCP
2/08, 7/10
26. When and in what manner
should a party respond to a
request for production?
2/08
27. What should a defendant file if
the plaintiff's petition does not
state damages (or that any
kind of defect needs to be
cured)?
2/08
File a PLEA IN
ABATEMENT in the
OTHER jurisdiction.
Argue that the
1. First jurisdiction has
dominant jurisdiction
because the lawsuit was
filed there first;
2. In the first suite
VENUE IS PROPER;
3. First suit is STILL
PENDING, and;
4. The two suits involve
29.
the SAME PARTIES and
SAME DISPUTE.
1. Request for Disclosure
2. Request for Production
of Documents
3. Oral or Written
Depositions.
30.
4. Interrogatories.
5. Requests for
admission
1. Serve a written
response within 30 days
after the date of service of
the request for
documents.
2. A) Produce the
documents, b) make a
31.
WRITTEN OBJECTION,
c) ASSERT A
PRIVILEGE
1. Defendant should file
a SPECIAL EXCEPTION
to inform the plaintiff
that a defect in the
32.
pleading needs to be
cured.
2. Court should order
plaintiff to AMEND the
pleading.
33.
28. What do you do File a BATSON CHALLENGE;
when opposing 1. Must make a PRIMA FACIE case
party uses that opposing counsel ssed his strikes
peremptory strikes in a DISCRIMINATORY MANNER.
to remove all 2. Make challenge AFTER VOIR
jurors of a DIRE, but BEFORE JURY IS SWORN.
particular race? 3. Burden then shifts to opposing party
When? to offer a RACE-NEUTRAL
What is opposing explanation of each suspect challenge.
party's response?
2/08
Prior to trial, what 1. File a MOTION IN LIMINE, to
should be filed to preclude IRRELEVANT and
keep opposing POTENTIALLY PREJUDICIAL
counsel from information.
entering evidence? 2. Should be IN WRITING.
3. Supported by EVIDENCE.
2/08, 7/10, 7/11
Opposing counsel 1. OBJECT on the ground that the
tries to call your conversation was a privileged
client's ex-wife to confidential communication between
testify about a spouses.
conversation they 2. Client has the right, even after the
had WHILE they marriage ends, to prevent his ex-wife
were married. from disclosing the information.
What do you do? 3. Doesn't apply to fraud.
2/08
The jury sends the 1. Provide WRITTEN
court a note saying SUPPLEMENTAL VERDICT-URGING
it's deadlocked. instructions (a.k.a. ALLEN CHARGE)
What does the encouraging the jury to continue
court tell the jury? deliberating.
2/08
What should the 1. The court should reject the verdict as
court do if the jury incomplete if ALL MATERIAL
returns an QUESTIONS submitted to the jury were
incomplete not answered.
response? 2. The court should provide written
instructions pointing out the defect.
What must a Plaintiff must allege in his lawsuit that
plaintiff allege in a Defendant is a
lawsuit against a 1. nonresident, who has ENGAGED IN
nonresident and BUSINESS in Texas,
who must be 2. that it does not maintain a regular
served? place of business in Texas, 3. Does not
have a designated agent for service of
07/11 process, the 4. The lawsuit arises from
the nonresident's business in Texas.
Pat may SERVE THE SECRETARY OF
STATE as agent for service on the
nonresident
34. What pleading should File a VERIFIED SPECIAL
be filed to object to APPEARANCE, which under the
being sued in Texas, DUE ORDER OF PLEADING in
and when should it be Texas, must be filed before the
filed? time for filing the answer; that is,
prior to any other pleading, plea,
7/11 or motion.
35. You object to Opposing The Court should sustain the
counsel demands for a objection to the demand for a jury
jury trial on venue. trial on the venue issue, since
How should the court under the rules, all venue
respond? challenges are determined by the
court without the aid of a
7/11 jury.
36. Is a party entitled to an No, generally there are no
interlocutory appeal of interlocutory appeals of venue
the Court's order determinations. However, in the
denying a motion to event that the appellate court rules
transfer venue? that venue was improper, it is
reversible error.
7/11
37. Opposing counsel 1. The Court should sustain the
submits 50 separate objection to the 50 interrogatories
interrogatories and since, under the rules ONLY 25
requests for admission INTERROGATORIES are allowed.
to Pat. You object. How 2. Court should overrule the
should court rule? objection regarding the Requests
for Admissions. REQUESTS FOR
7/11 ADMISSIONS ARE UNLIMITED,
unless the Court finds that the
requests are unduly burdensome
and harassing.
38. Opposing counsel 1. ASSERT A PRIVILEGE, and
requests production of either in its response or a separate
your written notes as document,
well as names and 2. Make a WITHHOLDING
addresses of STATEMENT which must A) state
witnesses. How do you that the information responsive to
avoid production? the written discovery request is
being withheld, B) identify the
07/11 request
to which the information or
material relates, and C) identify
the privilege asserted.
3. Names and addresses of the
witnesses MUST BE PRODUCED,
since they are persons having
knowledge of relevant facts, and
discoverable under the rules.
39. What instrument should be
filed to determine whether
opposing counsel has
insurance coverage?
7/11
40. Where should depositions
take place?
7/11
41. What should a defendant
file when he believes the
plaintiff did not read
warning labels before being
injured? When?
7/10, 7/11
42. A party files a jury demand
with the original petition,
then files a motion to
withdraw the jury demand.
Opposing counsel objects.
How should court rule?
7/11
43. When opposing party files a
motion saying your client
was at fault, but the motion
includes no facts, what
pleading is filed to request
the party to specify the
facts?
7/10, 7/11
44. Opposing party plans to say
they don't have insurance
and that a large verdict will
destroy them. You object
and file a motion to exclude
the evidence. How should
court rule?
7/11
To determine whether
opposing party has
insurance coverage, you
should file a Request for
Disclosure. However, this
may also be obtained
through Interrogatories.
In the absence of an
agreement, party depositions
may be taken in the county
of suit;
1. In its answer, by 10:00
am on Monday after the
expiration of 20 days,
defendant should raise the
AFFIRMATIVE DEFENSE
of contributory negligent.
2. IF ANSWER WAS
ALREADY FILED, amend
answer to include the
affirmative defense, within 7
DAYS BEFORE TRIAL, or
else leave of court will be
required.
The Court should deny Pat's
motion to withdraw his jury
demand since the rules
require
that A PARTY MANY NOT
WITHDRAW HIS JURY
DEMAND OVER THE
OBJECTIONS OF ADVERSE
PARTIES.
File a SPECIAL EXCEPTION
requesting that opposing
party re-plead with
specificity the facts they rely
upon to support their
contributory negligent
defense.
Court should grant your
motion to exclude the
evidence that opposing party
is not covered by liability
insurance. Under the rules
evidence, whether or not a a
person was insured against
liability IS NOT
ADMISSIBLE upon the issue
whether THE PERSON
ACTED NEGLIGENTLY or
otherwise wrongfully.
45. At trial, plaintiff's neighbor
says that before the the
accident plaintiff told
neighbor the product was
dangerous. Defendant's
counsel objects as hearsay.
How should court respond?
7/11
46. What does defendant file if
defendant believes the
evidence is legally
insufficient to support jury
findings and judgment
against him?
7/11
47. If a revised petition, filed as
a result of a Special
Exception, still has defects,
what do you do?
7/10
48. Petition names "Defendant
Construction" and not
"Defendant Construction,
Inc." as a defendant. What
pleading should defendant
file to assert its corporate
capacity in order to protect
its officers, directors, and
shareholders from personal
liability?
7/10
The Court should overrule 49. What recourse is 1. Move for sanctions against the
the objection since this available when a party party and make a motion for an
testimony is not hearsay, but fails to produce a order compelling discovery.
rather it constitutes an witness at the 2. The sanctions may include a
ADMISSION BY A PARTY deposition as noticed? request opposing party be ordered
OPPONENT, which is to pay reasonable expenses,
admissible under the rules. 7/10 including attorney​s fees. 3. In
addition, you may move the court to
render a default judgment against
opposing party or to strike its
File a MOTION FOR
pleadings.
DIRECTED VERDICT and
argue that the evidence was 50. After the judgment is The motion for new trial will be
legally insufficient to signed, and a party considered
support jury findings and files motion for a new overruled by operation of law on
judgment against defendant. trial. If no action is the expiration of 75 days after the
taken by any party, judgment was signed.
when, if ever, will the
judgment become
file a Motion to Dismiss or
final?
strike
the gross negligence
7/10
allegations. If the court
granted the Special
Exception ordering
Paul to re-plead to include
the gross negligence
allegations, it will most
likely
grant the motion to
dismiss/strike if it
determines that the defects
in plaintiff​s petition
are incurable
1. File a VERIFIED DENIAL
alleging that it has been
sued in the wrong capacity.
2. In addition, Defendant
should file a VERIFIED
PLEA IN ABATEMENT
identifying the (A)
impediment to the
continuation of the suit, (B)
identifying the cure, and (C)
asking the court to
SUSPEND THE SUIT until
plaintiff amends the petition
to correct the defect.