Procedure And Evidence - Civil

Front 1

When is the answer to complaint due?

Back 1

The Monday after 20 days from date the defendant is served.

Front 2

What pleading will be filed to raise the defense applicable when plaintiff has agreed to cash settlement, what is the defense, and is verification required?

Back 2

File a general denial and answer further with the affirmative defense of release. This defense does not require verification.

Front 3

What motion is available when defendant is entitled to judgment as a matter of law and when can it be filed?

Back 3

File a motion for summary judgment. It can be filed any time after the defendant's answer is filed.

Front 4

What forms of proof can be brought to support a summary judgment based upon a defense of release?

Back 4

1. Affidavits
2. The release itself (attached to affidavits)
3. Any other discovery device (e.g., request for admissions, take a deposition, etc.)

Front 5

How should judge rule on summary judgment if plaintiff raises ____________?

Back 5

Court should deny summary judgment. Plaintiff has raised an issue of fact, namely __________.

Front 6

When can plaintiff appeal summary judgment?

When can defendant?

Back 6

If court affirms summary judgment and disposes of all issues, plaintiff has final judgment which can be appealed.

Denial of summary judgment is a nonappealable interlocutory judgment.

Front 7

How can defendant object to or resist a subpoena for production of documents?

Back 7

Defendant can object to trial court within 30 days after service.

Front 8

What reasons may an attorney give to instruct witness to not answer question during oral deposition?

Back 8

1. to preserve privilege
2. comply with court order or rules of civil procedure
3. protect witness from abusive or misleading question

Front 9

What objections can attorney voice during oral deposition?

Back 9

1. Objection, leading
2. Objection, form

Front 10

When may a party not reveal an expert or the expert's report?

Back 10

Expert must be "purely consulting expert".

However, if testifying expert reviews report, expert becomes merely consulting expert. Party must disclose expert and report is discoverable.

Front 11

What two modes of discovery are available to compel discovery from non-parties?

Back 11

1. Oral Deposition

2. Depositions to written questions.

Front 12

What limits apply to distance non-party can be required to travel to comply with discovery requests?

Back 12

To county not more than 150 miles from residence or place of service.

Front 13

What privileges protect notes of attorneys taken in meeting with client?

Back 13

1. Core work product: contain impressions, opinions and conclusions and therefore privileged

2. Other work product: conditionally privileged.

3. Attorney-client privilege: confidential communication between lawyer and client.

Front 14

When can court compel medical records of a party?

Back 14

In suits where medical condition is relied upon as part of the claim, patient-physician privilege does not apply. E.g., personal injury

Front 15

What two classes are exempt from "The Rule"?

Back 15

1. All parties and spouses of parties

2. Officer or employee of non-natural persons who are parties, designated as representative by attorney.

Front 16

What ruling might judge make for witnesses violating "The Rule" and what is the standard of review for these rulings?

Back 16

The court may:
- Exclude testimony
- Exclude only part of testimony
- Hold witness in contempt
- Allow witness to testify
(or any combination thereof)

Standard of review is abuse of discretion.

Front 17

Can a party impeach its own witness?

Back 17

Yes. Party can attack the credibility of any witness, including witnesses called in direct.

Front 18

How can a witness be examined for personal knowledge, and if request is denied, how do you preserve error?

Back 18

1. Request to take witness on voir dire.

2. If court refuses, make offer of proof.

Front 19

How do you lay the predicate for a business record?

Back 19

Ask custodian of record:
1. Was it the practice of business to keep records such as this one?
2. Were these records made in the regular course of business?
3. Were the records made at or near the time of the events recorded?

Front 20

How do you preserve an objection about an incomplete jury instruction, and when must objection be made?

Back 20

Must object prior to charge being read to jury.

Must be in writing or read to the court reporter in presence of judge and opposing counsel.

Must be specific, asserting missing elements.

Front 21

When must the court rule on parties' requests and objections to the jury charge?

Back 21

Before the charge is read to the jury. If in writing, court to note ruling thereon and sign officially. Otherwise, dictate to court reporter. Either way, ruling in the trial record.

Front 22

If defendant evidence factually insufficient to support jury finding, what motion should be filed and when?

Back 22

File motion for new trial, no later than 30 days after judgment is signed.

Front 23

What happens if trial court does not issue any ruling on motion for new trial?

Back 23

Motion automatically overruled after 75 days from when judgment is signed.

Front 24

What is meant by a trial court's "plenary power" over its judgment?

Back 24

Plenary power means "full power"; trial judge can modify, vacate, or change judgment at any time during plenary period.