Indiana Pleading & Practice For Bar Exam

Front 1

What are the 4 most commonly tested items on the bar exam?

Back 1

Jurisdiction (both personal and subject matter)

12(b)(6) motions to dismiss. 

Discovery (scope and enforcing) 

MSJ/Rule 56 

Front 2

How is a civil action commenced?

Back 2

File complaint. 

Attorney for P files Appearance

Pay the filing fee - which also stops S/L

Front 3

In what 3 ways can a complaint be filed?

Back 3

In person. 

Mail to clerk for filing. 

File with judge in open court (rare). 

Front 4

What stops the running of the statute of limitations?

Back 4

Paying the filing fee - NOT merely by filing/file-stamping. 

Front 5

How soon after commencement of an action must service of process occur? 

Back 5

There is no time limit w/in which service must be accomplished - just be reasonable. 

Front 6

Who prepares summons and subpoenas that are served on the other party?

Back 6

Attorneys do, as officers of the court. 

Front 7

Which Trial Rule is the more formal method of serving people and when does it apply?

Back 7

Trial Rule 4 applies when bringing in a new person into the lawsuit (non-parties). 

Front 8

Service of process upon an individual under TR 4 may be made by 3 means . . . 

Back 8

(1) Send via certified/registered mail (not regular mail)

(2) By personal service (person 18 years or older + sign affidavit)

(3) Hand delivery to last known address + regular mail. 

Front 9

How to serve an organization that is already not part of the litigation (so TR 4 applies)?

Back 9

Send to highest executive officer (Pres., CEO), 

or

Send it to registered agent. 

Front 10

If the defendant is a partnership, who gets served?

Back 10

Any one of the general partners (doesn't have to be the managing partner). 

Front 11

If the defendant is a STATE government, who gets served?

Back 11

The Attorney General's Office

AND

The highest executive official in that gov dept. 

Front 12

If defendant is a LOCAL government (city, town), who gets served? 

Back 12

Highest executive (Mayor or head of town council); 

AND

If the local gov has a city/town attorney, serve them too. 

Front 13

Service by publication can be used as a "last resort" if every reasonable effort has been made but failed. What is published?

Back 13

(1) the summons, NOT the complaint. 

(2) name of defendant; 

(3) court name;

(4) cause number; 

(5) title of action (Smith v. Jones)

(6) name and address of plaintiff's attorney. 

(7) statement of nature of the case (tort for personal injury).

Front 14

Service by publication must be published ____ in a newspaper authorized by law to publish notices. The first publication must occur "______" after the complaint is filed. Succeeding publicaitons must occur at least _____ days, but not more than ________ days after the preceding publication.

Back 14

3 times 

"promptly"

7 days

14 days 

ex., if publish July 1st, then 7th, then last on 14th. 

Front 15

When is service by publication deemed completed? Why does this matter?

Back 15

At the end of the last (the third) publication. 

Then clock runs for defendant to respond. 

Front 16

The Due Process Clause of the US Const. requires that certain "________ ________" exist between the _____ _____ and the party over whom the Court seeks to exercise control. 

Back 16

minimum contacts

 

forum state 

Front 17

Minimum contacts test is used to satisfy personal jurisdiction; what 3 factors are weighed to determine if this test is met?

Back 17

(1) nature and quality of D's contacts with state; 

(2) quantity of D's contacts; or

(3) relationship between the contact and the cause of action (ex., only one contact but that contact caused the damages at issue). 

Front 18

Under TR 4.4, any non-resident person/entity submits to personal juris. if the cause of action arises from any of the acts committed:

[there are many, but 8 are the most common]

Back 18

(1) doing business in IN; 

(2) causing PI or prop. damage inside the state; 

(3) causing PI or prop. damage inside state by an act occurring outside of the state IF the person regularly does business in the state; 

(4) contracting to sell goods or services in the state; 

(5) own or possess any real property in the state; 

(6) contract to insure property or people in state (gets-in insurance co.'s)

(7) if domestic relations issue, living in a marital relationship; 

(8) disturbing peace or violating a protective order even if don't live here. 

Front 19

Can parties contract to agree to submit themselves to the jurisdiction of IN courts?

Back 19

Yes - can always consent to personal jurisdiction even though would not otherwise be subject. 

Front 20

How can a D waive the right to object to a court's personal jurisdiction? [2 things to know]

Back 20

If the defendant fails to TIMELY ASSERT/RAISE it as a defense. 

 

The court will NOT raise this defense sua sponte. If D fails to do it, he waives right to object.

Front 21

Describe 2 ways in which lack of personal juris. can be raised? 

Back 21

(1) raise as affirmative defense in answer to complaint. 

(2) file a Motion to Dismiss for Lack of Personal Jurisdiction under Rule 12(b)(2).

Front 22

List 3 ways in which a D could unintentionally waive a personal juris. defense:

Back 22

(1) file a motion to dismiss for failure to state a claim (12(b)(6)) w/out simultaneously arguing lack of personal jurisdiction. 

(2) Answer complaint but fail to assert affirm. defense of personal juris. 

(3) Move to change venue before answering complaint and raising it as affirm. defense. 

Front 23

Subject matter jurisdiction concerns the courts authority over . . .  .

Back 23

this particular type of claim/action. 

Front 24

What are 3 instances where Indiana general courts will def. not have jurisdiction? 

Back 24

Bankruptcy matters; 

Tax matters (even though there is an Ind. Tax Court); 

If administrative remedies exist which have not first been exhausted. 

Front 25

Can a court's lack of subject matter juris. be waived by the parties to the action or by the court? For instance, if it fails to object?

Back 25

No. This can never be waived. Even if a party fails to object right away, can raise it later. 

Front 26

If a court does not have subject matter jurisdiction, what happens to the case?

Back 26

It gets dismissed. 

Front 27

Describe 3 ways in which a defense of lack of subject matter juris. can be raised. 

Back 27

(1) affirmative defense w/ the answer. 

(2) in Motion to Dismiss for Lack of Subject Matter Jurisdiction - 12(b)(1). 

(3) Can be raised by court sua sponte (on its own). This is true even at appellate level, court determines trial court never had subject matter juris.

Front 28

_____________ is the location of a lawsuit, typically the county the case should be in. 

Back 28

Venue

Front 29

What are common criteria for determining whether a county is a "preferred venue" county?

Back 29

Where D resides

Where the accident/event occurred. 

If case involves real estate, wherever its located.

If stipulated to by parties (choice of forum) 

If a corp., where principal office is located. 

Front 30

Can a P file in a non-preferred venue?

Back 30

Yes, but D can file a motion to transfer and if so, then it MUST be transferred to a county that is a preferred venue. 

Front 31

Can more than one county be a preferred venue?

Back 31

Yes. 

Front 32

When no other criteria would suggest which county is the preferred county, what is the "fall back?"

Back 32

Go with the county where plaintiff resides. 

Front 33

When can the P's county of residence be the preferred venue county?

Back 33

(1) parties agree/choice of forum provision. 

(2) if no other factors/options indicate another county is the preferred county. 

Front 34

Who files a tranver of venue to a preferred venue court?

Back 34

Defendant. 

Front 35

Who pays the filing fee and other costs associated with transferring venue?

Back 35

Plaintiff. 

They are the ones that filed in a non-preferred venue so they took the risk that it would be transferred. 

Front 36

Can an order granting/denying a transfer of venue be appealed?

If so, when must the challenge be raised?

When is it appealed?

Back 36

Yes. 

Can appeal it immediately (interlocutory). 

Raise it w/in 20 days after served with complaint. 

Front 37

Transfer of venue only applies when party challenges that the venue is not ___________. 

Change of venue applies when a party claims . . . .  (and give example). 

Back 37

a preferred venue

 

that there is bias or prejudice in the county to preclude a fair trial (ex., county itself is a party to the action).

Front 38

How to obtain a change of venue:

-What is filed?

-When is it filed?

 

Back 38

A Verified Motion must state the grounds for the change of venue. 

 

Must be filed w/in 10 days after the issues are first "closes on the merits" (a D's original/first answer is filed). 

Front 39

-Can a third party D or impleaded party seek a change of venue after being added to the action?

 

Can an intervening party obtain a change of venue?

Back 39

Yes. Even if the right to change venue has already time lapsed for the other parties that were already in the case. 

 

No. An intervening party takes the case as he or she finds it. 

Front 40

In an action against multiple Ds, how many changes of venue can the Ds obtain?

Back 40

Each SIDE [all Ds collectively] only gets one change of venue. 

Front 41

Who can seek a change of judge?

Back 41

Either a Plaintiff or a Defendant. 

Front 42

Does the court have discretion to decide whether to grant an application for change of judge?

Back 42

No - it is automatically granted. 

Front 43

When must an application for change of judge be filed?

Back 43

10 days after answers are filed. 

Front 44

Must the party explain why they are requesting a change of judge?

Back 44

No - can give any reason or no reason. 

Front 45

Describe three ways in which a new judge can be selected following the filing of a motion to change judge?

Back 45

(1) by agreement of the parties (pick one). 

(2) the judge you're changing from provides panel of judges and each side strikes from panel; or 

(3) local rules specify the process. 

Front 46

At what point after filing an application for a change of judge is the original judge divested of jurisdiction? Is there an exception?

Back 46

Immediately.

Exception: old judge maintains emergency jurisdiction until new judge is appointed. 

Front 47

For parties who are already in the case, each party has to be served with every order, pleading, motion, discovery, etc. - how can they be served?

Back 47

Regular mail is sufficient. 

(can also hand deliver or send via certified mail)

Front 48

Service by mail is deemed complete when . . . [mailed? or received?]

Back 48

mailed.

 

Front 49

How does a party evidence the date on which he satisfied the service requriement of Rule 5 (the less formal rule)

Back 49

Attach certificate of service stating mailed via regular mail on x date. 

Front 50

With the exception of ________, all papers subsequent to the complaint which are required to be served upon a party must be promptly filed with the court. 

Back 50

Discovery. 

Front 51

Who maintains the originals of discovery documents? 

Back 51

Whoever made the original maintains it. 

ex., if you took the deposition, you maintain original transcript. 

ex., if you responded to written discovery, send the COPY and keep the original. 

Front 52

Ordinarily discovery is NOT filed with the court, but in what 3 circumstances would you file it?

Back 52

(1) there is a discovery dispute; 

(2) the discovery either support/oppose a motion for summary judgment; or

(3) it will be used in trial. 

Front 53

Docs can be filed in court in person or via mail. What is the benefit of mailing a doc for filing to the clerk by registered/certified mail?

Back 53

If you send by regular mail, it is deemed filed the date the clerk receives it. But if you send it via certified/registered mail, it is deemed filed the day you send it (clerk back-dates it). 

Front 54

When calculating the amount of time allowed for filing papers, etc. which day do you exclude and which day do you include?

Back 54

Exclude the first day. 

Include the last day UNLESS the LAST day is a Saturday, Sunday, or legal holiday - if so, go to next normal day. 

Front 55

When calculating time for filing/responding, do you include weekends or holidays?

Back 55

Yes! EXCEPT don't include it if it falls on the last day (the day you are supposed to respond/file).

Front 56

How long does a D have to file an answer to a complaint or cross-claim? When does clock start ticking?

Back 56

20 days (23 if mailed via regular or certified mail) from proper service. 

 

Front 57

A Rule 12 Motion to Dismiss (any type) must be filed within how many days after service of complaint or similar pleading?

Back 57

20 days (23 if mailed via regular or certified mail) from proper service. 

Front 58

What constitutes "proper service" when its served by mail?

Back 58

When its mailed. 

Front 59

If a motion to dismiss is filed and DENIED when must a responsive pleading (the answer) be filed?

Back 59

10 days from the date court denied the motion to dismiss. 

Front 60

If a motion to dismiss is GRANTED, the plaintiff can file an amended complaint - how long does P have to do so?

 

If the P does nothing, what happens?

Back 60

10 days following an order granting the dismissal. 

Case dismissed. 

Front 61

How long does a D have to file an answer to a complaint to avoid a default judgment? 

Back 61

20 days; if served via certified mail then 23 days to respond. 

Front 62

Attorneys and judges speak generally about "pleadings" but technicallyk pleadings only include these 4 items and their corresponding responses. 

Back 62

(1) complaint and answer to complaint. 

(2) counterclaim and a reply/response to counterclaim. 

(3) cross-claim and reply/response to cross-claim. 

(4) a third party complaint and a response to that third party complaint. 

Note - each of these assert claims or defenses (that's how to remember)

Front 63

What is the "notice pleading" standard and when does it apply?

Back 63

Statements of claims or defenses must be "short, plain, and concise." Do not plead evidence, just state the allegation. 

 

It applies to all pleadings EXCEPT when alleging FRAUD or MISTAKE. 

Front 64

Failure to deny any allegation, except allegations pertaining to damages, results in what?

Back 64

An admission! 

If you don't answer complaint at all, all allegatons are deemed admitted. Or if you skip a paragraph, then you've admitted it by failing to specifically address it. 

Front 65

What are the 3 optional responses to allegations in a complaint?

Back 65

Admit

Deny

Without sufficient information to either admit or deny the allegation. 

Front 66

What are the 6 most common affirmative defenses set forth in TR 8(c)?

Back 66

(1) accord and satisfaction (already paid); 

(2) P waived all/some claims against D; 

(3) Estoppel; 

(4) Lack of jurisdiction (personal or subject matter); 

(5) Failure of consideration (if contract case); or

(6) Fraud. 

Front 67

Failure to raise an affirmative defense in the answer/first responsive pleading results in what?

 

What if you discover you may have had an affirmative defense later in the case via discovery?

Back 67

Waiver. 

 

Move to Amend Answer

Front 68

Although Trial Rule 8 permits "notice pleading" what two types of claims/defenses must be specifically alleged in the complaint?

Back 68

Fraud and Mistake 

Front 69

For claims/defenses involving FRAUD or MISTAKE, they must be plead with ________, meaning the who, what, when, where, and why. 

Back 69

specificity 

Front 70

If the claim/defense involves a written instrument, what do you do with it? How does this affect the complaint?

Back 70

-Attach the ENTIRE doc to the complaint. 

-The doc is then incorporated into the complaint. 

Front 71

When an attorney signs a pleading or motion, he is certifing that  . . . 

Back 71

(1) has read the document; 

(2) believes the allegations are "well grounded in fact and in law." 

Front 72

If an attorney brings a claim/defense that is _________, __________, or __________, the court may permit an award of attorney's fees to the other party. 

Back 72

Frivilous

Unreasonable 

Groundless 

Front 73

When a document such as a pleading, motion, or affidavit is verified, the following PRECISE language must be included:

Back 73

"I affirm under the penalties for perjury that the foregoing information is true." 

Front 74

When must a counterclaim be asserted?

Back 74

When the defendant answers the complaint. 
Otherwise, have to seek leave to file it later if you find new grounds for one. 

Front 75

What is a compulsory counterclaim?

[2 items to know] 

Back 75

It relates to a claim arising out of same transaction/event as the present lawsuit. 

 

It MUST be asserted in this action or you waive the right to assert it in another action. 

Front 76

A defendant's compulsory counterclaim is not barred by the statute of limitations if it is filed AFTER the statute has run so long as . . . [2 things]

Back 76

(1) the counterclaim arises out of the same transaction/event

(2) it is asserted to defeat or diminish the opposing party's claim (in other words, its asserted as a defense).

Front 77

What is a permissive counterclaim?

Back 77

One that could be asserted in this action but it doesn't have to be because it does not relate to the underlying claim. If don't assert it, it is NOT waived.

(Ex., you sue me for personal injury, but I could counterclaim against you instead of suing you separately for your breach of contract - totally separte/nothing to do with P's claim, but save time).  

Front 78

What is a cross-claim?

Back 78

A claim asserted by one defendant against another defendant. 

Front 79

When are cross-claims generally asserted?

Back 79

When defendant answers the complaint. 

But, D may seek leave to cross-claim later if he learns about that ability later. 

Front 80

What is a third-party claim?

Back 80

A claim by a defendant against a person or entity that is not currently a party. In other words, Defendant is bringing-in a new party. 

Front 81

If a defendant wishes to make a third-party claim (bring in a new party) it can be done only if it [two things]

Back 81

(1) relates to plaintiff's claim against defendant. 

(2) defendant is doing this to pass his liability onto the third party defendant, either in whole or in part. 

Front 82

Since third party defendants are brought in as NEW parties to the litigation, how must the third-party complaint be served upon them?

Back 82

By Rule 4/More formal service rules apply, so:

-Proper due process and proper notice.

-Service by personal service, certified mail, or as last resort via publication. 

Front 83

When can a party amend his pleading as a matter of right?

Back 83

Can do it BEFORE the other side has responded w/out having to get permission from court. 

Front 84

When must a party get permission to amend a pleading (this is done by filing a motion for leave to amend)?

Back 84

Once an answer has been filed in the case. 

Front 85

When will a court not grant a motion for leave to amend a pleading?

Back 85

When the amendment would unduly prejudice another party. 

Front 86

Name the 8 types of Motions to Dismiss 

Back 86

(1) Lack of Subject Matter Jurisdiction 

(2) Lack of Personal Jurisdiction 

(3) Incorrect Venue

(4) Insufficiency of Process (something wrong w/ summons)

(5) Insufficient Service (you published notice, but I'm your neighbor)

(6) Failure to State a Claim

(7) Failure to Join a Necessary Party 

(8) Action Alreading Pending in another Jurisdiction 

Front 87

If judge grants defendant's motion to dismiss, does the plaintiff then have an automatic right to re-plead their complaint?

And if so, how soon must it be filed?

Back 87

Yes. 

w/in 10 days after SERVICE of court's order granting the motion to dismiss. 

Front 88

When would you file a 12(b)(6) Motion to Dismiss for Failure to State a Claim?

Back 88

When the complaint itself demonstrates that the plaintiff failed to state a claim against defendant upon which relief may be granted and therefore defendant is entitled to judgment in his favor as a matter of law. 

Front 89

If the court grants the defendant's motion to dismiss, and the plaintiff chooses not to amend the complaint, what happens?

Back 89

Res Judicata. 

Plaintiff loses and is precluded from ever bringing the claim again. 

Front 90

May a defendant file a motion to dismiss and not an answer?

What if the court denies the motion?

Back 90

Yes. 

Defendant then has 10 days after notice of the court's action unless the court gives a different time. 

Front 91

In what 3 circumstances are motions to dismiss for failure to state a claim used?

Back 91

(1) P's allegations are insufficient to state a claim (didn't even plead all the elements of a claim)

(2) P's allegations in complaint actually demonstrate a bar to recovery (statute of limitations ran). 

(3) P's complaint makes a claim that is not recognized under Indiana law. 

Front 92

What will a judge look to in determining whether to grant/deny a motion to dismiss?

[4 items to know]

Back 92

-Only the 4 corners of a complaint and any written docs that are incorporated into the complaint (attached). 

-Court will treat the allegations in complaint as true. 

-NO extrinsic evidence or affidavits (facts). 

-Can examine a supportin brief discussing law. 

Front 93

If the defendant includes extraneous matters in the motion to dismiss and the court decides not to exclude them, how will the motion to dismiss be treated?

Back 93

It will be treated as a Motion for Summary Judgment rather than throwing it out. 

Front 94

A Motion for Judgment on the Pleadings (TR 12(C)) is like a motion to dismiss for failure to state a claim, except . . . 

Back 94

Motion to dismiss only examines the complaint; but a motion for judgment on the pleadings will consider the complaint AND the answer. 

Front 95

When can a party file a motion for judgment on the pleadings?

Back 95

Anytime after an answer has been filed. 

Front 96

Who can raise a motion for judgment on the pleadings?

Back 96

Either party (P or D)

Front 97

With a motion to dismiss, if the court grants it the plaintiff has an automatic right to re-plead? Is the same true for motions for judgments on the pleadings?

Back 97

No - if court grants it, there is no automatic right to replead. 

Front 98

Typical example of how a motion for judgment on the pleadings works/why it would be filed is where Defendant's answer to complaint admits the material allegations of plaintiff's claim and fails to assert any _________ ___________, then plaintiff will be entitled to judgment on the pleadings.

Back 98

Sufficient/Appropriate Defenses. 

Front 99

If the defendant first answered the complaint and then later filed a motion to dismiss, in evaluating the motion to dismiss, what are the 2 options available to the court and what results for the plaintiff?

Back 99

(1) Treat as motion to dismiss, but only consider the plaintiff's complaint and any incorporated docs but ignore D's answer (incl. affirm. defenses). If grant in favor of D, P still has right to re-plead. --or-- 

(2) court could convert this to a motion for judgment on the pleadings and consider both complaint and the answer. If finds for D, P is precluded from re-pleading.

Front 100

Joinder is used to bring in a party for the sake of a just adjudication. A person who is subject to service MUST be joined as a party if:

(2 things which make someone an "Indispensible Party")

Back 100

(1) complete relief is not possible with out that person. 

(2) the person has an interest in the lawsuit and if the person doesn't join the suit, it subjects one of the parties to the risk of double-liabilty. 

Front 101

Is joinder permitted even if the person being joined relates to only one of many claims?

Back 101

Yes. Only one of the claims must arise out of a transaction in which all were involved. 

Front 102

What actions may be taken by the court when a plaintiff fails to name an indispensible party in his complaint?

Back 102

(1) court can order the person be added. 

(2) if court doesn't have personal jurisdiction over that person then the court is forced to dismiss the case. 

(3) court can do "whatever justice requires" and allow case to continue even in the absence of the party (rarely will court do this). 

Front 103

Who has the burden to raise the absence of an indispensible party?

Does failure to raise constitute waiver?

Back 103

Defendant. 

Yes.

Front 104

Does the rule on joinder apply to class actions?

Back 104

No. 

Front 105

For class action certification, what 4 prerequisites of TR 23(A) must ALL be satisfied?

Back 105

*hint: "PACT"

Practicality (only practical way)

Adequacy (of both representative and the atty)

Commonality (issues of law and fact apply to entire class)

typicality (claims and defenses raised will be typical of entire class)

Front 106

In addition to the 4 prereqs of 23(A) which must all be satisfied for class action certification, ONE of the following of 23(B) must also be satisfied. 

Back 106

*hint: "RIP"

(1) Risk of varying results if class is not certified and people have to bring their claims individually; OR

(2) Injunctive relief is appropriate to all members of the class; OR 

(3) Predominance of legal and factual questions are similar to the class (always satisfied if you already satisfied all of the 4 prereqs of 23(A)).

Front 107

If the court certifies a class action, it wil order that notice of the lawsuit be given to class members by the best means avaialble. The notice must advise each class member of 3 things:

Back 107

(1) they have the right to opt-out, otherwise they are in. 

(2) Any judgment or settlement applies to them if they dont' opt out. 

(3) Even if they don't opt out, they have a right to appear in the case by their own attorney. 

Front 108

With respect to settlements, how is the court's role different for class actions than for non-class action cases?

Back 108

With class action settlements, the court has to approve the settlement. 

Front 109

A party asserting an interest in an action and asks to be joined as either a plaintiff or a defendant is known as a __________ __________.

Back 109

Intervening party. 

Front 110

When MUST a person be permitted to intervene in an action as a matter of right?

Back 110

When they have an unconditional right by statute. 

ex., lienholder over a property in a foreclosure action. 

Front 111

When MAY a person be permitted to intervene in an action?

Back 111

When there is a statutory right that is conditional.

ex., a declaratory judgment action asking judge to interpret a contract. 

Front 112

Is an order granting/denying a motion to intervene?

Back 112

It is interlocutory unless it is made a final appealable order under Trial Rule 54(B). 

Front 113

A notice of a pretrial conference must be given to all parties by the clerk of the court at least ____ days in advance.

Back 113

30

Front 114

At least ____ days before the pretrial conference, attorneys are required to meet in person or by telephone to [4 things]

Back 114

10 days

Exchange exhibits and exhibit lists. 

Exchange final witness lists. 

Exchange or discuss stipulations at trial that can be agreed to. 

Discuss settlement. 

Front 115

Parties may obtain discovery by one or more of the following 6 methods:

Back 115

(1) oral depositions; 

(2) depositions via written questions (rare); 

(3) interrogatories; 

(4) requests for production of documents or things; 

(5) physical or mental examinations; 

(6) requests for admissions. 

Front 116

The rule on the scope of discovery is . . .

[2 items]

Back 116

(1) Any matter which is not privileged and which is relevant to the action is discoverable. 

(2) Even information that would be inadmissible at trial is discoverable so lon gas the information sought is "reasonably calculated" to "lead to the discovery of admissible evidence."

Front 117

Trial preparation materials or "work product" (impressions, strategy) [is or, is not] discoverable. 

Back 117

Is not discoverable. 

Front 118

Witness identity [is or, is not] discoverable. 

Something that a witness told you and you took notes on [is or, is not] discoverable. 

Info obtained from a witness and then turned into a statement or affidavit for which witness will read and sign [is or, is not] discoverable. 

Back 118

Witness identity = discoverable 

Notes on a witness = not discoverable. 

Witness statement or affidavit = discoverable. 

Front 119

What is a "testify expert?"

Back 119

An expert who you expect to tesitfy at trial (you will name them as an expert witness). 

Front 120

A party may use discovery to inquire as to the following information about a testifying expert: [4 items]

Back 120

(1) identity of the expert; 

(2) subject matter he/she will testify to; 

(3) the substance of the facts or opinions he/she will testify to; and

(4) the grounds for each opinion. 

Front 121

Information that you give and get from an expert witness/testifying expert [is or, is not] discoverable. 

Back 121

Is discoverable! 

Front 122

What is a "consulting expert?"

Back 122

Someone you hire to assist you but who will not be testifying at trial. 

Ex., if products defects case, hire engineer to help you as the attorney understand the design. 

Front 123

For a consulting expert who will not be testifying at trial, is the identity, opinion, or communication between you and the expert discoveable?

Back 123

Not discoverable. 

Front 124

What if, after consulting a "consulting expert" you decide you'd like to have them testify after all. What will be discoverable?

Back 124

Everything! Even info that came about before you thought you'd have them testify. 

Front 125

A party from whom discovery is sought might seek a protective order from the court if they can show good cause that they need to be protected from ________, __________, or ________ _________.

Back 125

Annoyance

Embarassment

Undue Expense

Front 126

Describe 5 things that may be required by a protective order:

Back 126

(1) prohibit certain discovery on a certain item. (ex., if this is a labor case, don't ask Coca Cola about secret formula).

(2) limit discovery. 

(3) allow discovery only at a certain time or place. 

(4) allow discovery only by a certain method. 

(5) keep certain info confidential or form public view. 

Front 127

Under Indiana Trial Rules, discovery methods may be used in any sequence, however as a practical matter, what type of discovery is often conducted first? Why?

Back 127

Written first (interrogatories, requests for production, or admissions) so that you are more informed before taking depositions. 

Front 128

Who can take a deposition and who can be deposed?

Back 128

Any part may take a deposition. 

Any other party or any person may be deposed. 

Front 129

The only time constraint for oral depos is imposed by Trial Rule 30.

What are 2 things to know about the timing? 

hint: when can P begin taking D's depo w/out asking for special permission?

Back 129

Plaintiff who wants to take defendant's deposition w/in 20 days after service of summons and complaint must first obtain permission from the court. 

Defendant can take a deposition at any time. But if defendant does it before 20 days w/in complaint, then plaintiff doesn't have to wait. 

Front 130

A party who desires to take a depo of a party or a person must give reasonable notice to ____________.

Also, what info must be included in the notice? [4 things]

Back 130

Notice to ALL other parties (even those not being deposed). 

(1) date of depo; 

(2) time of depo; 

(3) place of depo; 

(4) name and address of party whose deposition you're going to take. 

Front 131

If you want to depose a non-party what action must you take?

 

What if you also want to ask that non-party to bring documents to the depo?

Back 131

Have to serve a non-party with a subpoena. 

 

If want non-party to bring docs, have to serve them a Subpeona Duces Tecum. 

Front 132

If you want to depose another PARTY and require that party to also bring docs to depo, what do you have to do?

Back 132

Send a notice of deposition AND a request for production of documents. 

Front 133

Trial Rule 30(B)(6) permits a party to name an organization as a deponent. How is it determined who will testify on behalf of the org?

Back 133

Party taking the depo will give notice and designate the type of info being looked for. 

Company then designates 1 or more person who will testify and answer Qs on that info on behalf of the company. 

Front 134

There are no evidentiary objectiosn in depositions bc there is no judge there to rule on evidence. But what types of objections are approriate to make and are WAIVED if not made during the depo? [2 types] 

Back 134

(1) manner in which depo is being taken (ex., person is beligerant). 

(2) the form of the quesiton (ex., confusing, double-negative). 

Front 135

Even though there is an objection, the other side must answer unless . . . 

Back 135

The answer is subject to a claim of privilege. 

Front 136

What 3 primary uses do depos have in court proceedings?

Back 136

(1) use depo testimony/transcript in lieu of live testimony; 

(2) use depo testimony to impeach a witness at trial; 

(3) use depo to support or oppose a MSJ. 

Front 137

Upon whom may interrogatories be served?

Back 137

Parties only. 

Front 138

Who must sign interrogatories?

Back 138

Signed and verified by the party himself/herslef - not by the attorney. 

Lawyer also signs, but w/ respect to objections.H

Front 139

ow many days does have a party have to serve answers to interrogatories?

Back 139

30 days to respond. 

add 3 days if sent via mail. 

Front 140

If a party fails to respond or only provides a partial response, what recourse is available?

Back 140

File a motion to compel or seek other discovery sanctions. 

Front 141

Upon whom may a request for production of documents or things be served?

Back 141

A party or a non-party. 

Front 142

If serving a request for production upon a non-party, what must be done?

 

What if serving on a party?

Back 142

Non-party: Send Request and Subpoena via Rule 4 Service but even BEFORE can do that, have to send a copy of the proposed request and subpeona to ALL other parties at least 15 days prior to serving to non-party (unless its a bona fide emergency). 

Party: Send them the request by regular mail or personally. 

Front 143

How many days does a person have to respond to a request for production?

Back 143

30 days; add 3 if served via certified mail. 

Front 144

Documents produced pursuant to a request for production must be produced in one of two ways:

Back 144

(1) produce in a way that corresponds to the individually numbered request; 

(2) produce htem as they are kept in ordinary course of business (maybe not in same order as the request). 

Front 145

Failure to produce docuemnts in response to a RFP or to permit entry upon and inspection of land or property may subject the responding party to . . . 

Back 145

a motion to compel discovery or other discovery sanctions available under Trial Rule 37. 

Front 146

When is it appropriate to seek an independent* physical or mental examination of a party?

 

*independent is misleading, bc its actually the opposing side that is requesting it. 

Back 146

when the party (usually the P) has put his or her physical or mental condition into issue. 

Ex., personal injury case. 

Front 147

 A ______ _____ is required per Trial Rule 35 when seeking a physical or mental examination of a party. But in practice, the parties usually just agree since its essential to the case.

Back 147

Court order. 

Front 148

Who must notice of physical or mental examination be sent and what is in it?

Back 148

Notice sent to person to be examined and ALL the other parties.

 

Time, place, manner, and scope of examination.  

Front 149

When a party files a claim and places his physical or mental condition in issue, to what extend does the party waive his doctor-patient privilege?

Back 149

Only to the extent of the injury.

ex, if alleging back injury, the waiver would not apply to totally irrelevant medical history or ailments (acne 10 years ago). 

Front 150

What a party files a claim and places his physical or mental condition in issue, what types of evidence can be discovered (bc doctor-patient privilege is waived)?

Back 150

Medical records, examination of plaintiff or P's doctor, or opposing side will hire their own doctor to examine. 

Front 151

Upon whom may Requests for Admissions be served?

Back 151

Parties only. 

Front 152

How long does a party have in which to resond to a request for admissions?

Back 152

30 days to respond; 33 days if served by mail. 

Front 153

What happens if party fails to respond to a request for admission w/in the deadline?

Back 153

They are deemed automatically ADMITTED. 

Front 154

What 3 things to know about responding to a request for admission?

Back 154

-Must specifically state the bases for any objection. 

-If the answer is not admitted, it must be specifically denied or must set forth in detail the reasons why he cannot truthfully admit or deny. 

-A party cannot give lack of info or knowledge as a reason for failing to admit/deny unless he also states that he made a reasonable inquiry and the info found is not sufficient or would be unreasonable or burdensome. 

Front 155

Pior to filing a motiont o compel discovery or a motion for a protective order, what must the moving party first do pursuant to Trial Rule 26(F)?

Back 155

Try to informally resolve the dispute w/ other attorney before involving the court. 

If unsuccesful, must state in motion to compel that you already tried to make good faith effort to resolve dispute informally but failed. 

Front 156

If a party fails to respond to discovery the court may enter an order that requires the party to . . . 

Back 156

respond AND to pay reasonable expenses and attorney's fees incurred in obtaining the order. 

Front 157

What are some forms of sanctions that a court may impose for disobeying the court's order compelling discovery? [7 options]

Back 157

(1) judicially declare certain facts as admitted. 

(2) bar noncompliant party from submitting evidence on related claim. 

(3) strike portions of pleadings that relate to claim/defenses. 

(4) if P is noncompliant, stay proceedings until comply w/ the disco order. 

(5) hold delinquent party in contempt of court - including jail! 

(6) court can dismiss case or render default judgment (usually only after repeated multiple violations). 

(7) Award attorney's fees incurred due to the non-compliance.

Front 158

What type of discovery is best if you want to get plaintiff's witness list and amount of damages? Why?

Back 158

Interrogatories. 

Although you could depose plaintiff, he/she won't have these answers, the attorney will. So send interrogatories to the Plaintiff and bc they are written, P's attorney can provide this info. 

Front 159

Who prepares and sends subpeonas?

Back 159

Attorneys, as officers of the court. 

Front 160

What are 3 common uses of subpoenas?

Back 160

(1) Command or compel a person/entity who is NOT a party to produce docs or things.

(2) Compel a person who is not a party to be deposed. 

(3) Compel a witness to testify at an evidentiary hearing or a trial. 

Front 161

Describe 2 ways in which a subpoena may be served. 

Back 161

(1) Rule 4/formal form of service (personal service or certified mail. 

(2) Personal service via process server. 

Front 162

A process server locates John Smith to serve Mr. Smith with the subpoena. The server asks, "are you John Smith?" Smith says yes. Server then says "You've been served with a subpoena" and hands it over to Mr. Smith, who refuses to even touch it. Has service been complete?

Back 162

Yes - even if the recipient of the subpoena doesn't take it, server can just lay it on the ground and it still counts. 

Front 163

If a person disobeys a properly served subpoena, what two things might result?

Back 163

(1) found inc ontempt of court. 

(2) attendance may be enforced by attachment. 

Front 164

For civil actions there is a right to a trial by jury if the claim is at _______, but not at _________.

Back 164

Law

not at equity. 

Front 165

A _________ actions determines the rights and responsibilities of parties, such as when seeking an injunction. 

Back 165

Equitable. 

Front 166

_______ actions usually involve money damages.

Back 166

Law 

Front 167

If an action includes both legal and equitble claims, such as an action for both money damages and injunctive relief, the action may be ______ and tried to both the ______ and to a ________.

Back 167

Separated

Court

Jury 

Front 168

How and when must a jury demand be made?

Back 168

(1) in writing - not orally. 

(2) w/in 10 days after first answer is filed in the case.

Front 169

What if a party fails to make a timely jury demand?

Back 169

Right to a trial by jury is WAIVED. 

Front 170

If a jury demand has been made, how can it be withdrawn?

Back 170

Only if ALL PARTIES consent, regardless if they ever made a request for a jury.  

Front 171

How many persons sit on a jury in civil cases and what is the max # of alternates?

Back 171

6

3

Front 172

Each side gets ____ peremptory challenges which are used to strike a juror for ______

Back 172

3

for any reason - don't have to explain.

Front 173

How many jurors can be striken for cause, and what does one have to show?

Back 173

Unlimited # of for-cause challenges.

Show bias, prejudice, interest. 

Front 174

If an action involves multiple claims or multiple parties, the court may enter a judgment that relates to less than all claims or parties. However, it is not immediately appealable unless the court includes this express determination in the written judgment:

Once this is done the type of appeal is a ________ appeal. 

By including this "magic" language, the judge has [done what?]

Back 174

There is no just reason for delay of appeal and the judge is expressly directing entry of judgment. 

 

Interlocutory. 

Certified it for appeal. 

Front 175

Once the judge has certified the case for interlocutory appeal, how long does an agved party have to ASK the COA to accept the appeal?

Back 175

30 days from the trial court certifying it. 

Front 176

Must a party be the one to ask a court to certify the case for interlocutory appeal?

Back 176

No - it can be a party or the court on its own. 

Front 177

When is a plaintiff entitled to judgment against a defendant "by default?"

Back 177

Defendant was properly served process under Rule 4 and they had 20 (or 23, if via certified mailed) to answer but failed. Then everything in complaint is deemed admitted. 

Front 178

Under what circumstances MAY a default judgment be set aside by the court?

Back 178

(1) D didn't get proper notice of complaint; 

(2) excusable neglect (was super busy - unlikely).

(3) Mistake (calendared for wrong week). 

Front 179

A _______ judgment is one which resolves an actual controversy or declares the rights and responsibilities between the parties. For instance, you want a provision in a contract to be interpreted. 

Back 179

Declaratory. 

Front 180

A __________ for ___________ _________ is a written motion usually accompanied with a brief that presents the case, including affidavits, discovery, etc. supporting your case to get the court to find in your favor. 

Back 180

Motion for Summary Judgment. 

Front 181

When is it appropriate for the court to grant a motion for summary judgment?

Back 181

When the moving party has demonstrated that there are "no genuine issues of material fact" and therefore the party is entitled to summary judgment" as a matter of law." 

(no facts in dispute + law is in our favor).

Front 182

When may a defendant may file a MSJ?

Back 182

At any time in the case.

Could even do it as a responsive pleading (though typically need to wait for discovery to have enough evidence to meet the MSJ standard). 

Front 183

The MSJ, designations, and any supporting affidavits must be filed and served on [who?]

How must they be served?

Back 183

ALL parties. 

Can mail them - the informal requirements of Rule 5 apply. 

Front 184

How long does an adverse party have to respond to a MSJ, file his own designations and file and serve any opposing affidavits?

Back 184

30 days to respond; 33 if was served by mail. 

Front 185

In dealing with MSJ, does Trial Rule 56 permit a reply brief?

Back 185

No, but usually the moving party does respond. 

Front 186

When a moving party files MSJ, he must also file a "designation" which does what?

Back 186

Designates all the materials that you want the judge to consider that you contend support your MSJ. 

Typically includes pleading, discovery responses, affidavits, deposition testimony. 

Front 187

When the opposing party responds to a MSJ, he must file two types of "designations" what are they and what are their purposes?

Back 187

(1) Affidavits which set forth facts that would be admissible evidence. 

(2) Designation of Material Facts which argue existence of genuine issues of material fact which preclude summary judgment. 

Front 188

Affidavits supporting or opposing a MSJ must bemade upon personal knowledge by a person competent to testify to the matters stated therein and must set forth facts which would be admissible in evidence at trial. What action may be taken if an opposing party files affidavits containing hearsay or other items inadmissible at trial?

Back 188

Use the Rules of Evidence to determine whether something is admissible. 

 

Opposing party has to object and move to strike the inadmissible portions - otherwise, they come in!

Front 189

Are hearings on MSJ required?

Back 189

No, but they may be requested. 

If no hearing, court decides the case on the briefs and materials submitted. 

Front 190

The standard of summary judgment which I must recite verbatim is:

Back 190

"Summary judgment must be granted if it appears that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law."

Front 191

For a MSJ, the moving party has just one designation, which are ___________.  the nonmoving party (the one oppsoing the MSJ) has two, which are . . . 

Back 191

Affidavits. 

 

Affidavits and Designations of Material Facts

Front 192

Is the denial of a MSJ immediately appealable?

Back 192

No. 

Front 193

Relief from a trial court judgment or order may be obtained by filing a ________ to ________ with the trial court.

Back 193

Motion to Reconsider. 

Front 194

Common reasons to ask a trial court to reconsider its judgment include: [4 items]

Back 194

(1) mistake/surprise/excusable neglect. 

(2) something was discovered after it was too late to file a motion to correct error and had judge known it, he would have decided differently. 

(3) fraud or misconduct by opposing side. 

(4) "any other reason justifying relief." 

Front 195

A _____ ______ _____ is an emergency order that seeks to maintain the status quo in some way for a temporary period of time, usually as a prelude to an injunction. 

Back 195

Temporary Restraining Order.

Front 196

A TRO may be granted W/OUT NOTICE to the other party IF [2 things]

Back 196

(1) it clearly appears fron an affidavit or verified complaint that IRREPARABLE HARM will result by delay; 

(2) the applicant's attorney CERTIFIES IN WRITING to the court the EFFORTS made to give the adverse party notice. 

Front 197

A TRO granted w/out notice automatically expires after ______ days.

Back 197

10 days. 

Front 198

A TRO can be extended if _____ _____ is shown, although typically a TRO is temporary while waiting for a _________ _________. 

Back 198

good cause

 

Preliminary Injunction. 

Front 199

A _______ __________ seeks to maintain the status quo of the parties during the lawsuit with the idea that if you win the lawsuit, it will become a permanent injunction. 

Back 199

Preliminary injunction. 

Front 200

To obtain a preliminary injunction, must the other side have notice? Must they be heard?

Back 200

Yes. Unlike a TRO, must have notice AND opportunity to be heard.

Front 201

What must a moving party demonstrate in order to obtain a preliminary injunction?

Back 201

(1) reasonable likelihood of success on teh merits of case; 

(2) remedies at law are inadequate and will suffer irreparable harm w/out the injunction; (ex., if they continue dumping toxins into river then no amount of money will fix the damage). 

(3) the threatened injury outweighs any harm that would be caused to D if the preliminary injunction is issued. 

(4) there is some public interest that will be served by the injunction (ex., company dumping chemicals into river). 

Front 202

Can a denied request for a prelminary injunction be immediately appealed?

Back 202

Yes - it is permitted as an appeal of an interlocutory order. 

Front 203

If a judgment resolves or disposes of one or more, but LESS THAN ALL claims and parties, what procedural method could be used to attempt to make it a final judgment which could be immediately appealed?

How soon must the appeal be filed w/ the COA?

Back 203

Rule 54 magic language!

Get trial court to write "there is no just reason for delay" and it expressly renders judgment on it. 

Have 30 days to get COA to accept that interlocutory appeal. 

Front 204

If a final judgment, including a judgment that was made final by "magic words" is not immediately appealed w/in 30 days, then what result?

Back 204

Waiver of the right to appeal. Can never appeal!

Front 205

An interlocutory order [that isn't one of the special 3 types] may be certified for immediate appeal in the discretion of the trial court. If certified, the appealing party has 30 days after the order to file the motion with the COA asking the COA to accept the appeal. The motion to the COA must demonstrate at least 1 of 3 grounds exist to warrant the appeal:

Back 205

(1) appellant will suffer substantial harm if this is not appealed immediately and it turns out the trial order is erroneous. 

(2) trial court's order involves a substantial Q of law that COA should consider right now. 

(3) any remedy by appeal that might obtain later/after trial court's final judgment will be inadequate. 

Front 206

Final judgments resolve all claims against all parties and are labeled a "final judgment" and can be appealed [when?] and the appeal is [discretionary/right of appeal?]

Back 206

Appeal immediately. 

You have a right to appeal. 

Front 207

Certain types of interlocutory orders (there are 3) can be appealed [when?]. Is the appeal discertionary?

Back 207

(1) order requiring party to pay money; 

(2) order requiring transfer of real estate; 

(3) order that grants/denies a preliminary injunction. 

Immediately. 

Appeal is discretion - up to COA whether to grant. 

Front 208

For any other order that is not one of the 3 interlocutory orders and is not a final judgment, you have to get the trial court to write the magic words AND pursuant to Appellate Rule 14(B) the COA must . . . 

Back 208

actually accept it. 

Front 209

If an appeal is being taken from a final judgment, you have ____ days within which to take one of two actions [name the two actions].

Back 209

30 days. 

(1) file motion to correct errors with trial court and give them a chance to fix - this is in trial court's discretion. 

(2) initiate an appeal of a final judgment by filing a notice of appeal w/ clerk fo the appellate and supreme court (one clerk serves both). 

Front 210

A motion to ______ ____ is just an optional preliminary step before initiating an appeal. Except, it is a mandatory prereq for appeal in 2 instances.

Back 210

Correct Errors. 

(1) claiming jury verdict was excessive or inadequate. 

(2) newly discovered evidence that would have made a difference in the final judgment (ex., jury misconduct). 

Front 211

If you file a motion to correct errors (whether or not it is optional or mandatory) what does this do for the running of clock in getting the notice of appeal filed in time?

Back 211

It stops the clock. 

Front 212

How long after a trial court's entry of a final judgment or appealable final order within which to  file a motion to correct errors?

Back 212

30 days - firm, no enlargements. 

Front 213

If a motion to correct errors is not ruled upon w/in ______ days after it was filed or within _____ days after a hearing on the motion, the motion is automatically deemed ________ and the clock starts to run to appeal to COA. 

Back 213

45

30

Denied.

Front 214

If a Motion to correct errors is granted, What two options does the opposing party have to seek relief?

Back 214

(1) file its own motion to correct error w/in 30 days; 

(2) initiate their own appeal w/in 30 days. 

Front 215

If no Motion to Correct Errors is filed, a notice of appeal must be filed within _____ days following an entry of an appealable interlocutory order or trial court's final judgment. 

Back 215

30. 

Front 216

Where is the Notice of Appeal actually filed?

Back 216

With the Clerk of the Supreme Court and Appellate Clerk (they are one and the same). 

Front 217

Who must be served with a copy of the Notice of Appeal?

Back 217

(1) ALL parties of record in trial court case. 

(2) trial court clerk. 

(3) trial court court reporter. 

(4) trial court judge. 

Front 218

A ______ _____ which is used when appealing a trial court judgment contains a CCS, all filings, motions, briefs, pleadings, complaint and answer, transcripts, and anything relevant to the substance of the case.

Back 218

Appellate Record. 

Front 219

Who prepares the Appellate Record? When is it due?

Back 219

Trial court clerk. 

w/in 30 days after filing notice of appeal. 

Front 220

If the Appellate Record is not timely prepared, what action may be taken by the appellant to compel completion of Appellate Record?

Back 220

Trial court clerk can seek leave but it is appellant attorney's job to file motion asking for additional time to put everything together. 

Front 221

If a motion is filed with an appellate court, how long does opposing party have w/in which to respond to that motion?

Back 221

15 days (add 3 if served by mail). 

Front 222

When must a motion for extension of time be filed in order to be considered by the appellate court?

Back 222

At least 7 days before the due date that you seek to extend. Otherwise, its denied. 

Front 223

Motions for extensions of time will NOT be granted for (2 types)

Back 223

(1) for petition for rehearing (asking COA to reconsider); 

(2) for the 30 days you have to appeal to IN S. Ct. after COA made its decision. 

Front 224

Describe 3 situations in which an appellee may file a motion to have the appellant's appeal involuntary dismissed?

Back 224

(1) appeal is premature bc no final judgment at trial court (trial court didn't resolve all claims between all parties); 

(2) there is some procedural defect; 

(3) there is some fact arising outside of the record that demonstrates appeal is moot (ex., settlement). 

Front 225

A pending appeal does not automatically stay the effect or enforceability of a judgment or order of a trial court. So a party may file a ______ to ______ with the trial court requesting a stay pending the outcome of an appeal. 

Back 225

Motion to Stay. 

Front 226

After you've file a motion to stay with the trial court, when could you file it direclty with the COA?

Back 226

Only if the trial court denied your motion to stay. 

Front 227

What must be included in any Motion to Stay filed w/ the COA?

Back 227

(1) certified copy of trial court's judgment that you are seeking to ahve stayed; 

(2) copy of your motion; 

(3) certified copy of trial judge's order denying your motion to stay; and 

(4) any other relevant portion of the record helpful to COA to determine whether the stay action should be imposed. 

Front 228

What 3 briefs are typically filed in an appeal to the COA?

Back 228

Appellant's Brief

Appellee's Response Brief

Appellant's Reply Brief 

Front 229

Appellant's Brief must be filed within ______ days after trial clerk files its notice w/ COA and the transcript adn the record below has been completed. 

Back 229

w/in 30 days 

Front 230

Appellant's Brief must contain these 10 items:

Back 230

(1) table of contents;  (2) statement of authorities (caselaw and statutes relied on);  (3) statement of the issues/errors you claim trial court made; (4) statement of the case/procedural history;  (5) statement of material facts;  (6) summary of your argument;  (7) actual argument (full blown argument);  (8) a conclusion;  (9) word cout certification; and 

(10) certificate of service showing you served this on all other parties. 

Front 231

How long following the filing of the Appellant's brief does the appellee have to file the appelee's brief?

Back 231

30 days; 33 if served via mail. 

Front 232

How long after the filing of the appelee's brief does the appellant have to file a reply brief?

Back 232

15 days (add 33 if served via mail). 

Front 233

What restrictions on the content of the appellant's reply brief exist?

Back 233

Appellant's reply brief cannot raise any new issues that were not contained in appellant's brief. 

Front 234

What is the page and word limitation for both the appellant's brief and the appellee's brief?

Back 234

30 pages and 14,000 words. 

Front 235

What is the page and word limit for the reply brief?

Back 235

15 pages and 7,000 words. 

Front 236

Is there any way to get an increase on the word or page limit? [2 ways]

Back 236

(1) ceritfy that you went over word but not page limitation (or vice versa). 

(2) file motion w/ COA asking permission to file a larger brief. 

Front 237

If an appellant initiates an appeal and the appellee also wishes to assert his own "cross-errors" relating to the final judgment or appealable interlocutory order, describe two ways in which an Appellee may assert them. 

Back 237

(1) raise them in the appelle's brief; 

(2) file his own notice of appeal if still w/in 30 days to appeal. 

Front 238

In order to properly appeal an error by the trial court, the error must be timely and properly preserved by ________. 

If thi sis not done, the error is _____. 

Back 238

making an objection on the record. 

Waived. 

Front 239

When and how must certain Rule 12 motion to dismiss defenses be raised in order to preserve them for appeal?

Back 239

(1) raise the issue in a motion to dismiss; or 

(2) assert the defense as an affirmative defense. 

Front 240

When and how must an objection be made that evidence was erroneously admitted at trial?

Back 240

Make timely objection at time court is admitting the evidence; AND state in the objection the specific grounds on which you are objecting (ie., I object to the admission bc the doc contains hearsay). 

Front 241

When and how must an objection be made that evidence was erroneously excluded at trial?

Back 241

Make an objection at time trial judge excluded it AND at trial court make offer of proof telling the judge that if he allowed this to come in, this is what it would say AND that it would make a difference to case (its material). 

Front 242

How do you preserve an error for appeal relating to the giving of a jury instruction?

Back 242

Object on the record tha tinstruction is improper; and tender to judge on the record the instruction you believe should be given instead. 

Front 243

Issues of law are reviewed by appellate courts under a __________ standard of review. 

Back 243

de novo

Front 244

What are 2 types of issues that are deemed to be issues of law reviewable under a de novo standard?

Back 244

Any court order dispsoing of an issue or claim based on legal analysis

 

A decision on a jury instruction (bc they tell the jury what the law is). 

Front 245

Issues which are resolved at the discretion of the trial court are reviewed by appellate courts based upon a ____________ standard of review.

Back 245

Abuse of discretion. 

Front 246

The test for abuse of discretion is . . . 

Back 246

court's discertion "clearly against the logic and the effect of the facts before the trial court or any reasonable inferences that could be drawn from those facts."

Front 247

Describe 2 examples of rulings by a trial court that are "discretionary" and therefore subject to an abuse of discretion standard of review?

Back 247

(1) any ruling by trial court judge on whether to allow an amendment or time extension; 

(2) any ruling by trial judge on whether to grant a motiont o compel discovery. 

Front 248

Fact determinations made by either the trial court judge or jury are rarely overturned by an appellate court but the general standard of review is for a JURY VERDICT is whether there is _______ _______ of _____ value, including ___________ __________ therefrom to support the verdict. 

Back 248

substantial evidence

probative

reasonable inference 

Front 249

If a fact determination is resolved by the trial court judge rather than by a jury, what standard of appellate review?

Back 249

Whether judge's fact determination was "clearly erroneous." 

Front 250

Any time a judge makes a judgment from the bench, the attorney is entitled to ask that the decision by supported by Findings of ______ and Conclusions of ______ which is a written document from the judge. These are "special findings" that can be reviewed by an appellate court via a 2-tiered standard of review:

Back 250

Fact

Law

(1) whether the evidence in record supports the findings; and if so, (2) whether the findings of fact support the judgment. 

Front 251

If a trial court judge enters a "general judgment" which provides no findings setting forth the reasons for the judgment, then the appellate must show that the evidence does not support any _____ that might have been found to support the ______ under any theory. 

Back 251

fact

judgment 

Front 252

An error committed by a trial court may not be sufficient to overturn the trial court's judgment if the appellate court determines that the error was ______, which means . . . . 

Back 252

Harmless

the outcome would have been the same. 

Front 253

Must a petition for rehearing (asking COA to reconsider) be filed as a prereq to asking the IN Supreme Court to hear an appeal?

If so, when must it be filed and how soon is a response due?

Back 253

No. But it could be if you chose to. 

30 days from COA's decision. 

15 days from petition being filed. 

Front 254

How many enlargements of time may a party obtain to file either a petition for rehearing or a response to a petition for a rehearing. 

Back 254

None! No additional time is ever given. 

Front 255

What happens to the time deadline for filing a petition to transfer to the IN Supreme Court when a petition for rehearing is filed with the COA?

Back 255

It is automatically stayed while you ask the COA to reconsider.

Front 256

You have _____ days to file petition for rehearing w/ COA or _____ days to file for transfer to IN S. Ct. If you file petition for rehearing w/ COA and they deny it, then have _____ days to file petition to transfer to In S. Ct.  For the last one, explain. 

Back 256

30 

30 

30 (this is bc the clock is stayed while you're asking the COA to reconsider). 

Front 257

What are the page and word limits for a Petition for Rehearing and any Response?

Back 257

10 pages and 4,200 words. 

Front 258

Is there ever an automatic right of appeal to the IN Supreme Court?

Back 258

No. Have to convince them to take your case. 

Front 259

What grounds are typically considered by the IN S. Ct. in determining whether or not to grant transfer (accept your appeal)?

Back 259

(1) decision of COA is in conflict w/ another COA decision. 

(2) decision of COA is in conflict w/ IN S. Ct. decision. 

(3) decision of COA is in conflict with some federal appellate decision.

(4) COA decision involves important Q of law never previously decided by IN S. Ct. 

(5) COA relied on some erroneous/ambiguous precedent and IN S. Ct. needs to clarify. 

(6) COA's decison departs from previous well accepted law or practice. 

Front 260

How much time does a party have within which to file a Petition to Transfer to the IN S. Ct?

Back 260

30 days from date the COA entered its decision against you. This cannot be extended. H

Front 261

How long does an opposing party have w/in which to file a brief in opposition to a Petition to Transfer to the IN S. Ct.?

Back 261

20 days to file response or opposition. 

Front 262

How long does the petitioning party have w/in which to file a Reply Brief in an IN S. Ct. appeal?

Back 262

10 days to file any reply. 

Front 263

What are the page and word limits for a Petition to Transfer to the IN S. Ct. and a Response Brief?

Back 263

10 pages and 4,200 words.

Front 264

What are the page and word limits for a Reply Brief filed w/in an appeal in the IN S. Ct?

Back 264

3 pages, 1000 words. 

Front 265

In very limited circumstances, you can file a direct appeal to the IN S. Ct. w/out going through the intermediate COA. What is one circumstance?

Back 265

There is a federal or state statute that is held unconst. 

Front 266

Some types of interlocutory orders can be immediately appealed even if the order doesn't dispose of all claims/parties (its not a final judgment). What are 3 common types?

Back 266

(1) order that requires a party to pay money to anybody; 

(2) an order requiring the transfer of real property; 

(3) any order that grants or denies a preliminary injunction.

for any of these 3, don't have to have judge write magic words but still have to convince COA to accept your appeal. 

Front 267

A plaintiff may file a MSJ at any time after ______ days from the commencement of the action. 

Back 267

20 days.