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Motion to transfer
venue
file this motion prior to or concurrent with all other motions TERM 2
When parties must serve answers
DEFINITION 2 parties must file answers by 10 AM on Monday, after the expiration of 20 days from the date of service of the citation and petition TERM 3
Five things parties can request from each
other in requests for disclosure
DEFINITION 3 1). correct party names 2). damages 3). fact witnesses4). retained testifying experts5). medical records TERM 4
When request for admission should be filed
DEFINITION 4 30 days, otherwise the request will be admittedIf party fails to respond to the request within 30 days, can file a motion to withdraw the admission motion must show good cause for filing the untimely response prove the withdrawal of the request for admission will not prejudice the moving party TERM 5
How to request medical records/documents
from non-parties
DEFINITION 5 1). file subpoena to produce medical records/documents2). or, can file a subpoena to appear for oral deposition/deposition on written questions with a request for the production of medical documents
Inconvenient Deposition
Meeting
Party can file a protective order or motion to quash must file 3 business days after service of the notice of deposition the deposition is stayed until the motion can be determined TERM 7
Objections during deposition
DEFINITION 7
- objection, leading (for questions)2) objection, form (for questions)3) objection non-responsive (for testimony) TERM 8
If party seeks to be dismissed from case,
could file
DEFINITION 8 (a) traditional motion for summary judgment - must show that there was no genuine issue of material fact. to counter a motion for summary judgment, the non-moving party can attach deposition transcript to response. This will show that there is a genuine issue of material fact. (b) no-evidence motion for summary judgment - moving party must illustrate that the opposing party produced insufficient evidence TERM 9
Necessary Witness Testimony Unavail.
DEFINITION 9 if party did not depose necessary witness, or the necessary witness is unavailable, party could file a motion for continuance. party must attach affidavit to the motion. affidavit should contain:1). witness' name and address2) statement that the witness' testimony is material to the case3) testimony cannot be obtained from another source4) continuance not sought for delay TERM 10
Peremptory strikes
DEFINITION 10 each side normally gets 6 1) if side has 2 D., ct. can grant each D. 6 strikes if the parties are antagonistic to each other with respect to an issue submitted to the jury 2) strikes should be distributed equally; to ensure this, P. can file a motion to equalize
Steps party must take to file suit and get
other parties to respond
clerk must issue citationparty must serve process in any manner available at law TERM 17
Interlocutory appeal for
venue
DEFINITION 17 is proper. TERM 18
what happens if trial ct. rules incorrectly on
motion to transfer venue
DEFINITION 18 there must be a new trial TERM 19
special exception motion
DEFINITION 19 get party to specifically plead facts on a claim TERM 20
procedural steps to submit jury question
DEFINITION 20 in answer to petition, the party should raise the allegations in an affirmative defense if properly pleaded, and evidence is introduced, a jury question may be submitted
5 types of discovery
- requests for disclosure2) interrogatories3) request for the production of documents4) request for admissions5) oral and written depositions TERM 22
two types of written discovery available to
determine if party has insurance
DEFINITION 22
- request for production of documents2) request for disclosureparties are entitled to the production of medical authorization and medical records if these material are pertinent to a case at issue TERM 23
Statements made to police
officers
DEFINITION 23 not privileged and cannot be introduced in court TERM 24
Motion in limine
DEFINITION 24 should be filed if party wants evidence or an indictment to not be introduced/mentioned to the jury1) motion must be in writing 2) must state that the indictment or evidence should not be introduced to the jury; evidence is irrelevant; or that its probative value is substantially outweighed by the danger of unfair prejudice TERM 25
Expert Report (testifying expert not
mentioned in discovery responses)
DEFINITION 25 if testifying expert for party not mentioned in discovery responses, and opposing party files a motion to strike the testifying expert, the expert will likely not be struck, if: the expert produced a report, which was served on all the parties
Motion for abatement
should be filed if opposing party files an additional action in another venue/ct. and there will be two simultaneous casesmotion would allow for second case to be postponed TERM 32
Response to request for production
DEFINITION 32 should be in writing should be submitted within 30 days after the date of service if the request is served before answers are due, then the party being served has 50 days to issue a request for production motion TERM 33
Motion to compel
DEFINITION 33 If party not satisfied with what opposing party produces, could file a motion to compel production of documents. If this is not effective, party can request sanctions or an order of contempt TERM 34
Summary Judgment Response
DEFINITION 34 -responding party should produce evidence that shows there is a genuine issue of material fact. the response to the summary judgment must be submitted no later than 7 days before the hearing-response to the affidavit should be submitted no later than 7 days before the hearing TERM 35
Challenge to jury strikes based on gender and
racial discrimination
DEFINITION 35 party must file Batson challenge after voir dire and before jury is sworn in party must state that opposing party struck jurors on a basis of their gender or ethnicity opposing party should argue that it has an ethnicity neutral explanation for the jury strikes
Marital Communication Privilege
privilege that prevents communications between spouses from being introduced in court communications inadmissible unless spouses were co-conspirators in a crime spouse can prevent spouse from testifying in court TERM 37
Atty. reservations with jury
questions
DEFINITION 37 if atty. has reservations, should - object to the jury instructions and questions in writing should present objections before the charge is read to the jury TERM 38
If jury deadlocked and wants to postpone
deliberations
DEFINITION 38 judge should provide the jury with verdict urging instructions, encouraging the jury to continue deliberating. The note should not be coercive. TERM 39
Jury fails to answer questions submitted to it
by the court
DEFINITION 39 reject the verdict and provide written instructions on how to correct the defect and direct the jury to continue deliberating TERM 40
Determining
venue
DEFINITION 40 Defendants residence Defendants PPB or Inc. if the above are not possible, then the P. residence or place of domicile
If party states that does not have witnesses to
testify with personal knowledge in deposition
opposing party can file a notice for deposition on the party party must designate at a reasonable time before the deposition 1 or more individuals to testify on its behalf, and set fourth matters that it will testify to if party does not select witnesses, opposing party can file a motion to compel and order for sanctions to be imposed TERM 47
When jury trial request and fee payment
should be received
DEFINITION 47 30 days before the trial is scheduled to occur TERM 48
Dealing with jurors that appear biased - voir
dire
DEFINITION 48 lawyer should move to challenge the juror for cause on the ground that the lawyer is prejudiced against D. and will be unable to apply the law lawyer should also move for a peremptory strike To support the strike, should ask juror if her opinion is so firm in her mind to influence her verdict TERM 49
If party fails to list witness to testify in
trial
DEFINITION 49
- the ct. should overrule an objection from an opposing party, directing the ct. to not allow the party to list the witness 2) even though the ct. will likely overrule the objection, party had duty to list witness in its discovery response 3) including witness should not be a problem if the party had a good faith cause for failing to list the witness TERM 50
Information discussed in
settlement/compromise agreements
DEFINITION 50 should be kept confidential/privileged. This also applies to statements made in settlement negotiations.
if party files special exception pleading yet
fails to address allegations material to case
file a motion to dismiss file a motion to strike the allegation if a court granted the special exception pleading, it is likely that the ct. will also grant the motion to strike the allegations if the failure is incurable TERM 52
Verified denial motion
DEFINITION 52 A corporation should file a verified denial motion to assert its corporate capacity and protect its officers, directors and shareholders from personal liability TERM 53
When/where should affirmative defenses be
filed
DEFINITION 53 Affirmative defenses should be flied in an answer or an amended answer 7 days before trial TERM 54
Interrogatories
DEFINITION 54 Party entitled to 50 interrogatories ; no limit on requests for production as long as they are not overwhelming or burdensome TERM 55
if party fails to produce witness at
deposition
DEFINITION 55 parties can bring a motion to compel discovery or request that sanctions be imposed
Raising limitation defense later in case
a party seeks to raise a limitations defense later in a case, the party must raise an affirmative defense. This involves amending the partys answer 7 days before trial. TERM 62
Request for disclosure
DEFINITION 62 not subject to any objection TERM 63
Interrogatory request on party for witnesses
DEFINITION 63 if a party submits an interrogatory to an opposing party, requesting the identities of the opposing partys trial witnesses, the opposing party must comply with the interrogatory. the discovery rules allow parties to obtain the names, addresses and telephone numbers of any person who is expected to testify at trial TERM 64
Compulsory counterclaim
DEFINITION 64 If a claim directly related to a case arises while a case is pending, a party must file a compulsory counterclaim to avoid waiving the claim. The party cannot wait to file another suit. TERM 65
court fails to include instruction on
unavoidable accident or sudden emergency,
what objection can be made
DEFINITION 65 If the ct. fails to include an instruction on unavoidable accident or sudden emergency, what objection can a party make? A party must make a specific objection on the record that the court failed to include the instruction, which he pleaded and offered evidence for To preserve the error, the party must submit a written request for the ct. to include the missing defenses, provide in writing correct instructions on his defenses and obtain a ruling from the ct.
Mistrial - jurors (11 instead of 12)
If a party seeks a mistrial because there are 11 jurors on a panel, instead of 12, due to illness, the ct. should not grant a mistrial. only 9 jurors are required to render a verdict a jury may continue to deliberate if 3 jurors are absent due to illness/disability TERM 67
Jury fails to answer all
questions
DEFINITION 67 If a jury fails to answer all of its instructed questions, and a party files a mistrial, the ct. should not grant the mistrial. Instead, the ct. should allow the jury to deliberate and answer all of the questions. TERM 68
How party should respond to a motion to
change venue
DEFINITION 68 file an affidavit, and if necessary, discovery materials, to make a prima facie case of his factual allegations and deny the venue facts raised in the opposing partys motion TERM 69
If party seeks to verify the nature and extent
of a person's injuries
DEFINITION 69 D. must file a motion for an order compelling Pauls medical exam. by a qualified physician the motion must show good cause and allege that the medical condition is in controversy motion must be filed 30 days before the end of discovery, and must be served on all of the parties TERM 70
Response to a discovery request for
privileged information
DEFINITION 70 ). If party receives discovery request from D. calling for the production of material that a party considers privileged, how can the party preserve the privilege? by withholding the privileged information from the discovery it produces this is accomplished by filing either in the response or in a separate document, a withholding statement, stating o that information responsive to the request is being withheld o that identifies the request to which the information relates o that identifies the privilege asserted
how to determine if party has liability
insurance
can file a request for disclosures. This discovery motion must be filed 30 days before the end of discovery. TERM 77
If juror is injured cannot serve as juror, not
appropriate to request mistrial
DEFINITION 77 The court should overrule partys motion for mistrial. In a Texas district court, the jury consists of 12 jurors, but a verdict may be rendered by the concurrence of 10 members of the original 12- member jury. When as many as three jurors die or become disabled, the remaining nine jurors of the original jury may render a verdict. However, if fewer than the original 12 render a verdict, the verdict must be signed by each juror concurring therein. TERM 78
Statement by a party opponent
DEFINITION 78 if D. employee issues a statement in court which, subverts its case against P., the statement is a statement made by a party opponent. TERM 79
Video recordings of witnesses at deposition
DEFINITION 79 Party is allowed to play video recording of witness testifying during deposition at trial. Under the rules of evidence, a deposition taken in the same proceeding as the trial is not hearsay, and the deponent does not need to be unavailable for the deposition to be used as evidence. TERM 80
Grounds for new trial - juror
misconduct
DEFINITION 80 A juror cannot testify about statements or matters that occurred during the jury's deliberations. This includes anything that affected a juror's mental processes and influenced that juror in joining or dissenting from the verdict. Generally, the only thing a juror may testify about is whether an outside influence was improperly brought to bear. To constitute outside influence, the information must have come from a source outside the jury.
if party fails to include witnesses in response
must amend or supplement its response. This must occur 30 days before trial begins. TERM 82
repeated objections to questions during
deposition
DEFINITION 82 If a party makes repeated objections to questions asked during a deposition, the opposing party may request for a suspension of the deposition a motion for protective order sanctions If this occurs, the court will likely grant the request. Also, objections to questions in a deposition are for leading questions and form of the question. Testimony objections are limited to form. TERM 83
if party's testimony in court different from
testimony in depo. atty. must
DEFINITION 83 show the witness the contents of his previous testimony and the time, place and to whom the testimony was made. Also, the witness should be given the opportunity to explain or deny the testimony. TERM 84
hearsay objections to
questions
DEFINITION 84 If more than 1 hearsay objections are applicable to a question, mention them. TERM 85
certified copy of an official record
DEFINITION 85 Certified copy of an official record is self-authenticating
