Bar Exam Cram- Civil Procedure Ii

Front 1

If D wants to respond to a no answer judgment, D must file a motion for new trial within:

Back 1

30 days of the date the judgment is signed.

Front 2

If there is no legal reason to set aside judgment, D must demonstrate the following equitable grounds in order to obtain relief:

Back 2

1) failure to answer the lawsuit was not intentional or the result of conscious indifference, but was due to mistake or accident.

2) set up a meritorious defense

3) show that there is no delay or injury to P by granting a new trial.

Front 3

At any time before P has introduce all of his evidence other than rebuttal evidence, P may file a motion seeking an order of nonsuit. A nonsuit:

Back 3

dismisses the case w/o prejudice to re-file. The order granting the non-suit should recite that the motion is granted and the case is dismissed without prejudice to refile.

Front 4

Nonsuits do not prejudice the right of adverse parties to be heard on pending claims for affirmative relief or:

Back 4

excuse payment of all costs.

Front 5

If the evidentiary record establishes that the moving party is entitled to judgment as a matter of law, A party may move for SJ using one of two standards:

Back 5

1) no genuine issue of material fact

2) no evidence

Front 6

In filing a motion for SJ, the party must:

Back 6

1) allege that there are no genuine issues as to any material facts.

2) he/or she is entitled to the judgment as a matter of law.

Front 7

In filing SJ, the burden of proof is on the:

Back 7

moving party to show sufficient conclusive facts that entitle it to a judgment as a matter of law.

Front 8

If Plaintiff raises a fact issue or question in response to a motion for SJ:

Back 8

he/or she has satisfied his/her burden and the motion for summary judgment should be denied.

Front 9

After adequate time for discovery, a party may move for summary judgment on the grounds that there is no evidence of one or more essential elements of a claim or defense on which the non-moving party would have the burden of proof. The motion must:

Back 9

specifically state the elements as to which there is no evidence.

Front 10

No evidence motions need not contain SJ evidence and should be granted unless:

Back 10

the non-moving party produces evidence raising a genuine issue of material fact.

Front 11

SJ motion must be filed and served at least:

Back 11

21 days before the time specified for the hearing.

Front 12

SJ motion and any supporting affidavits must be filed and served at least

Back 12

21 days before the time specified for the hearing.

Front 13

the adverse party may file and serve opposing affidavits or other written response to the motion for SJ, but they must do so at least

Back 13

7 days prior to the hearing.

Front 14

no oral testimony regarding a SJ motion:

Back 14

will be received at the hearing.

Front 15

Discovery materials not on file with the court may be used as SJ evidence if it is distributed to all parties with a statement of intent to use it as SJ proof.

Back 15

Materials must be filed and serve 21 days before trial if (supporting the motion) or 7 days (if opposing the motion).

Front 16

Affidavits in support of a SJ motion must be made on personal knowledge and affirmatively show that the affiant would be confident to testify and state:

Back 16

facts that would be admissible in evidence.

Front 17

SJ that disposes of all issues and parties is a final judgment that may be appealed. The denial of SJ is a:

Back 17

non appealable interlocutory judgment.

Front 18

Settlement is by contract. If settlement involves a minor it must be court approved. If there is a conflict between the minor and the minor's guardian the court will:

Back 18

appoint a guardian ad litem to determine if a conflict actually exists and if so protect the interest of the minor. This is a limited role unless expanded by the court.

Front 19

If a settlement offer is made and rejected and the judgment is significantly less favorable to the rejecting party than the settlement offer, the offering party:

Back 19

recovers litigation costs from the rejection party.

Front 20

If Plaintiff is the rejecting party, significantly less favorable means that P's judgment is less than 80% of the rejected settlement offer. If D is the rejecting party, significantly less favorable means that P's judgment is:

Back 20

more than 120% of the rejected settlement offer.

Front 21

In order to perfect a right to a jury trial, civil litigants must file a written request for a jury and pay the jury fee not less than:

Back 21

30 days before the trial date.

Front 22

If the request or payment for a jury is late and the opposing party objects, the requesting party must show that:

Back 22

1) granting the request will not injure the other party;

2) disrupt the court's docket;

3) or impede the ordinary handling of the court's business.

Front 23

A party is entitled to a reasonable notice of a first trial setting. The notice must be given:

Back 23

not less than 45 days.

Front 24

If a party is not given 45 days, they should object to trial without proper notice and file:

Back 24

a motion for continuance.

Front 25

a motion for continuance must be:

Back 25

1) in writing

2) under oath

3) show sufficient cause supported by affidavit, unless all parties agree to a continuance.

Front 26

the trial court's granting or denial of an application for continuance will not be disturbed unless:

Back 26

the record shows a clear abuse of discretion.

Front 27

If P learns that a pivotal witness cannot take the stand, P should submit an affidavit with motion asserting:

Back 27

1) the testimony is material and explain why

2) dilligence was exercised to secure testimony

3) the cause of the problem

4) the testimony is not available from another source

5) the name and address of the witness and the substance of the testimony

6) the continuation is not sought for delay but for justice.

Front 28

If P files a motion in limine asking the court to order opposing counsel and her witnesses not to mention or ask questions about a matter w/o approaching the judge for a final ruling; and the court grants it. The court will:

Back 28

instruct opposing counsel to follow this procedure at trial.

Front 29

If P files a motion in limine asking the court to order opposing counsel and her witnesses not to mention or ask questions about a matter w/o approaching the judge for a final ruling; and the court grants it. The court will:

Back 29

instruct opposing counsel to follow this procedure at trial.

Front 30

If P files a motion in limine asking the court to order opposing counsel and her witnesses not to mention or ask questions about a matter w/o approaching the judge for a final ruling, and the court grants the request; the court will:

Back 30

instruct opposing counsel to follow the procedure at trial.

Front 31

To properly preserve error, D must:

Back 31

1) object at the time P makes the statement

2) obtain a ruling by the court disallowing the evidence; and

3) have the court instruct the jury to disregard the statement.

Front 32

Attorney's can demand a shuffle of the panel of prospective jurors if the demand is made:

Back 32

prior to voir dire. There can be only one shuffle per case.

Front 33

There are unlimited juror challenges for cause. A party may challenge a juror for cause if the prospective juror:

Back 33

1) is interested directly or indirectly in the subject matter of the case.

2) is a witness in the case

3) has bias or prejudice in favor of or against a party in the case.

4) is related to a party in the case.

Front 34

If the court denies a jury challenge, the challenging attorney must show prejudice. He must make known the identity of the juror that he will be unable to strike peremptorily due:

Back 34

to the use of the strike on an unqualified juror.

Front 35

A peremptory challenge is one which strikes a juror for:

Back 35

any reason or no reason.

Front 36

In a case with only one party on each side, each party is entitled to:

Back 36

1) 6 peremptory challenges in a district court

2) 3 in a county court.

Front 37

In a case where there are co-parties, they split the 6 peremptory challenges unless they are antagonistic co-parties in which case:

Back 37

they get 6 each.

Front 38

If a court grants one side additional peremptory challenges, the opposing side may make a motion to equalize:

Back 38

so that no side or litigant has an unfair advantage.

Front 39

Batson challenge:

Back 39

an objection that a jury panelist was excluded because of some prohibited classification.

Front 40

A person whose presence is shown to be essential at trial (expert witness) will not be forced to exit the room during testimony:

Back 40

under the rule.

Front 41

The motion for directed or instructed verdict is the method used to present a party's argument that there are no:

Back 41

controverted fact issues for the jury's determination.

Front 42

A party may make a motion for a directed or instructed verdict when:

Back 42

1) an opponent rests

2) when an opponent closes

3) when all parties close

Front 43

P may succesfully move for directed verdict by showing that:

Back 43

1) P has conclusively proven all elements of one ground of recovery AND

2) D has failed to produce any evidence on one element of each ground of the defense.

Front 44

A defendant may move for a directed verdict by showing that:

Back 44

1) D has conclusively proven all elements of at least one ground of defense OR

2) P has failed to produce any evidence on at least one element of each ground of recovery.

Front 45

There are two basic requirements for properly preserving error:

Back 45

1) all complaints must be made before the charge is read to the jury and outside their presence.

2) all complaints must be ruled on by the judge.

Front 46

For an Omission, an attorney must ROT:

Back 46

R-equest a submission

O-btain a judgment

T-ender in writing a substantially correctly worded question, instruction, or definition.

Front 47

For a Defect, an attorney must SOO

Back 47

S-tate basis of objection

O-bject to specific portion of the charge in writing or dictated to the court reporter

O-btain a ruling

Front 48

In state district court, the minimum number of jurors that must agree for a ruling is:

Back 48

10 out of 12 jurors.

Front 49

In state county court, the number of jurors that must agree for a ruling is:

Back 49

5 out of 6 jurors.

Front 50

In state justice of the peace court the number of jurors needed to sustain a verdict is:

Back 50

5 out of 6 jurors.

Front 51

Exemplary damages may only be awarded if the jury is:

Back 51

unanimous with regard to finding liability for actual damage, and the amount of exemplary damage.

Front 52

If a jury is deadlocked the court can give them a:

Back 52

supplemental verdict inducing instruction. (cannot be coercive)

Front 53

A JNOV motion should be used to:

Back 53

1) challenge the legal sufficiency of the evidence

2) assert that the evidence conclusively establishes a fact opposite to the jury's finding.

Front 54

A bench trial request that the judge make findings of fact and conclusions of law must be filed with the clerk and served on all parties:

Back 54

1) within 20 days after a final judgment is signed

2) the judge must respond in writing in 20 days.

Front 55

A motion for a new trial is a pre-requisite for an appeal with regard to:

Back 55

1) a complaint of inadequate or excessive damages found by the jury

2) a complaint on which evidence must be heard (jury misconduct (outside influence only), newly discovered evidence.)

3) a complaint of factual insufficiency to support a jury finding (usually used by D)

4) complaint that the jury's finding is against the great weight and sufficiency of the evidence. (usually used by D)

5) an incurable jury argument, if not otherwise ruled on by the trial judge.

Front 56

the original and any amended motions for new trial must be filed within:

Back 56

30 days after judgment is signed.

Front 57

The trial court has plenary powers for:

Back 57

30 days

Front 58

If a party moves for a new trial, the court's plenary power extends to:

Back 58

30 days from the date the motion is overruled either by written order or operation of law.

Front 59

Because the motion for new trial will be deemed overruled by operation of law on the 75th day after the court signs judgment, the trial court's plenary power will expire at the latest:

Back 59

on the 105th day from the date the judgment is signed.

Front 60

The following interlocutory orders are appealable:

Back 60

1) the certification or refusal to certify a class in a class action

2) the grant or denial of a temporary injunction

3) the grant or denial of D's special appearance

4) the appointment of a receiver or trustee

Front 61

The ADR statute provides that neither party nor mediator may be compelled to disclose to any person including the court any:

Back 61

confidential information given to the mediator by any party unless the parties agree otherwise.