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149 Cards in this Set

  • Front
  • Back
What does it mean to preserve error?
It means to do what is required to get appellate review of the error that occurred in the trial court.
What are the steps to preserve error?
1. Make a specific and timely objection
2. Get an adverse ruling on the objection (sustained for objectee, and overruled for objector)
3. Make sure that the objection and ruling is on the record.
*If a court overrules a general objection, no error is preserved. Pursue an adverse ruling by asking for a strike, curative instructions, mistrial, etc.)
How can a judge prevent error?
by refusing to let evidence in.
How can a judge cure error?
by instructing the jury, striking the evidence, granting a mistrial, etc.)
What is a counselor's role at trial, in regards to preserving error?
to act as a referee, counsel should call the fouls, and make sure that error is preserved for appeal.
Does a trial court have discretion to determine what the law is, and apply it to a case?
No. If a trial court may not determine what law is, and to do so is an abuse of discretion.
Is it abuse of discretion for a trial court to rule differently than an appellate court would have?
No, so long as the judge was acting within his discretionary power, then there is no abuse of discretion.
What is the No Harm No Foul concept?
if the legal error that was committed by the trial court is not prejudicial, or if it does not result in injury, then the trial court's choice does not amount to an abuse of discretion.
What questions should you ask to determine if there was an abuse of discretion?
Did the judge act without reference to any guiding rules and principles? If Yes, then it is abuse

Was the Judge's ruling arbitrary or unreasonable?

Did the error result in any harm?
What is Mandamus?
An interlocutory appeal that occurs in the middle of trial. It is an extraordinary remedy used when CLEAR abuse of discretion has occurred in the trial court, and you do not want to wait to see if you will win or not.
ex. - error of law, the judge applied the wrong law.
How many zones of evidence are there?
Five
What is zone 1?
judge ruled as a matter of law b/c there is no evidence to support the outcome, or you don't state a cause of action.
What is zone 2?
there is some evidence, but it is insufficient to support the outcome; it will always go back to the jury to decide; can't go to SC b/c it doesn't weigh evidence.
What is zone 3?
the evidence is sufficient to uphold the jury finding.
What is zone 4?
the weight of the evidence is in support of a different outcome; it will always go back to the jury to decide; can't go to SC b/c it doesn't weigh evidence.
What is zone 5?
judge ruled as a matter of law b/c the evidence conclusively supports the outcome
Based on the evidence below, what zone are we in:

Betty claims Charlie stole a cookie. Charlie has a guilty look.
Zone 1. There is no evidence, or there exits only a mere scintilla of evidence to support the claim that Charlie stole a cookie. Here, a judge can decide the case on SJ based on lack of evidence to support the claim.
Based on the evidence below, what zone are we in:

Betty claims Charlie stole a cookie. Charlie has a guilty look, is not hungry at dinner, and has cookie crumbs and chocolate all over his shirt.
Zone 3. A reasonable juror could conclude that the evidence presented shows Charlie's guilt. On appeal, the jury findings will be upheld.
Based on the evidence below, what zone are we in:

Charlie confessed to stealing the cookie.
Zone 5. There is conclusive evidence to support a finding of guilt at law. The judge can decide this case without a jury present because the facts are not in dispute.
Based on the evidence below, what zone are we in:

Betty claims Charlie stole a cookie. Charlie has a guilty look, is not hungry at dinner, and has cookie crumbs and chocolate all over his shirt. Betty also finds a half eaten cookie in Charlie's pocket.
Zone 4. Most of the evidence presented suggests that Charlie is guilty of stealing the cookies. If the jury finds him not guilty, the plaintiff will move for a new trial, stating that the weight of the evidence supports a different finding.
Based on the evidence below, what zone are we in:

Betty claims Charlie stole a cookie, Charlie has a guilty look and claims he isn't hungry at dinnertime.
Zone 2. There is very little evidence to support Charlie's guilt. The jury will decide whether he is guilty. If he is found guilty, Defense will move for a new trial stating that there is insufficient evidence to support the findings.
Who decides the outcome of a case based on evidence in zones 2-4?
The jury, as finders of fact.
Who decides the outcome of a case with evidence that falls in zones 1 or 5?
The judge as a matter of law.
What is the Equal Inference Rule?
a fact finder cannot infer an ultimate fact (a fact that you win or lose a case on) from meager circumstantial evidence (a guilty look) if that meager evidence can give rise to any other theory (guilty look could mean something else). Equal inference must be given to the other alternatives and the meager circumstantial evidence can't support either theory.
When does the Equal Inference Rule apply?
Only with meager evidence.
What is Circumstantial Evidence?
Evidence that is inferred from other facts. It can always support a verdict.
What is Direct Evidence?
Evidence that directly proves that something happened.

(A video recording of a crime occurring.)
What is considered as having No Evidence?
Either having no actual evidence, or having only a mere scintilla of evidence. If this happens, you are in zone 1.

Less than a scintilla occurs when the evidence is so weak as to do no more that create a mere surmise or suspicion of a fact.
How many times can a trial court grant a MNT based on insufficient evidence?
Twice, but it can grant a third new trial for any other reason.
How many times can an appellate court send a case back to trial based on insufficient evidence?
An unlimited number of times.
What is a judgment?
An order of the court that disposes of parties or claims. It can be interlocutory or final.
When does the appellate time table begin running?
Upon the signing of a final judgment.
What is a Summary Judgment?
A final decision made by a judge when there are no disputed facts at issue.
When is SJ proper?
when you can dispose of a claim without the necessity of a trial. This happens when there are no disputed facts in a case, and only a determination of law is necessary.
How can you win a SJ?
1. Prove as a matter of law all of the elements of a claim, or all of the elements of a defense to a claim; (movant) or,
2. Conclusively disprove at least on element of your opponent's cause of action or defense. (non-movant)
Can you get a SJ on just one element of a case?
Yes, then you can wait to prove the other elements at trial.
How long must the court wait to hear arguments for SJ?
21 days, so that the other side has time to respond
When must the non-movant respond to the motion for SJ by?
No later than 7 days prior to the SJ hearing. Although, they are not required to file a response, as the burden is on the movant.
Can the court extend the timelines for SJ hearings?
Yes, under rule 5, a court can extend timelines if there is a showing of "good cause"
How do you show "Good Cause?"
You must show that:
1. the failure to respond was not intentional or the result of conscious indifference, but rather the result of accident or mistake, and
2. that allowing the late result will occasion no undue delay or otherwise injure the party seeking SJ.
How should a court rule on SJ if the evidence presented falls within zones 2-4?
The court should deny the motion, as there are disputes of fact, and a jury is needed to be the finder of those facts.
If SJ is granted, can it be appealed?
yes. It acts as a final judgment in that it disposes of all parties and claims, and it can be appealed.
Is a partial SJ appealable?
No. A partial SJ does not dispose of all parties and claims. Therefore, it is not appealable because the case is not over yet, and no final judgment has been rendered.
How you can you make a partial SJ final?
1. Sever that issue/Party from the others. (It's final on the day of severance)
2. Dispose of all parties and claims.
3.Leman language - you can include language stating that the SJ disposes of all parties and claims to make it final, but this is appealable error.
What happens if a Motion for SJ is denied?
You must proceed to trial. You cannot appeal the denial, since no parties or claims have yet been disposed of.

*exception - if the court grants one MSJ, and denies another on the same issue, both can go up on appeal for expediency purposes.
If you make a motion based on no evidence, and your opponent fails to bring forth evidence, what happens?
Under rule 166a(I), the court must grant your motion.

*In practice, courts deny these motions, and they aren't appealable. This is b/c 30% of all SJ motions are reversed.
What happens on appeal if the Trial Court grants a SJ without explanation?
The SJ will be affirmed if any meritorious grounds lie within the grounds raised in the SJ motion.
What are the two types of SJ?
Traditional, 166a(c)

No evidence, 166a(I)
What happens in a MSJ hearing when the movant presents evidence that moves the case into zone 5?
The burden shifts to the non-movant to present contradictory evidence. If non-movant succeeds in creating a fact issue, then the evidence will return to zone 2-4, and the motion will have to be denied so that a finder of fact can determine the evidence.
How are conflicts in a witness' testimony treated?
As issues of fact, to be determined by the jury.
How is the court to treat non-movant's evidence?
As if it is true, indulge every inference in favor of the non-movant, and resolve all doubts in their favor. If after all of this the evidence is still in zone 1 or 5, then the SJ is granted.
How is a No Evidence SJ different from Traditional SJ's?
You can file them after an adequate time for discovery has passed, as opposed to filing it anytime after a non-movant has answered. Also, the mere filing of a no evidence SJ shifts the burden of proof to the non-movant immediately. (this does not happen in a tradition SJ)
What are the factors for determining whether adequate time and opportunity for discovery has passed?
1. The nature of the case
2. Nature of the evidence
3. Length of time
4. Amount of time when motion is set
5. Amount of discovery that has already taken place
6. Equity argument - someone should not abuse SJ and prevail
7. It is not when discovery is complete, but when there has been adequate time and opportunity.
How can you get a judge removed?
1. Objecting to a visiting judge (Active, Non-Active, and Defeated Judges)
2. File a motion to disqualify a presiding judge (If raised after the case is over, it is called a collateral attack on the judge).
3. File a motion to recuse a presiding Judge.
For what reasons can a judge be disqualified?
Under rule 18b(i):
-Judge or his partner served as a lawyer on the case
-Judge has a financial interest in the case
-One or more of the parties in the case are related to the judge by third degree. (Cousins are 4th degree)
What are the grounds for recusal of a judge?
Rule 18b(ii):
-impartiality is questionable
-Bias
-Personal knowledge of facts
-Judge's Spouse, parent or child is a lawyer in the case
-Judge's family has financial interest in case
What can a judge do when presented with a motion for recusal against himself?
He may grant the motion, or refer it to an associate judge. He may not deny it unless it is the third motion to recuse made by the party.
What is a rule 166 order?
Rule 166 allows judges to set deadlines to shorten the trial process and narrow the issues, so a rule 166 order sets the time frames up for when certain phases of the trial must be completed. Any deadlines set in a rule 166 order supersede the deadlines in the general rules.
What are death penalty sanctions?
Sanctions that strike a party's pleadings, which nullifies any defense a party has to a lawsuit regardless of the merits of the underlying claims.
What is the three part test in order to impose Death Penalty Sanctions?
1. There must be a direct relationship between the punishment and what the did (does the punishment fit the crime?)
2. The sanctions cannot be excessive
3. There must not be any other available sanctions
How do you invoke your right to a jury trial?
1. Make a timely demand (at least 30 days before trial, and a letter to the clerk is sufficient)
2. Pay the fee (within 10 days of trial, if not you waive your right to jury trial)
If you miss the deadline to file your Jury demand, what can you do?
You can file for a continuance, so that you can then make a timely filing. In Texas this should be granted because we have a strong presumption that a person is entitled to a jury trial, unless it will cause undue burden or delay.
Is it abuse of discretion to deny a continuance?
No, unless the court was part of the problem, i.e. made the parties believe it was a jury trial, and then refused to cure that problem.
In what situations can a court deny a jury trial, even if you timely filed and paid the fee?
-Advisory hearings
-You fail to appear at trial
-Civil contempt hearings
-Election contests
-Habeas Corpus proceedings for the custody of a minor child
-suit for removal of a sheriff
-Appeals in administrative proceedings
-Motions in zone 1 or 5
How can you waive a jury trial?
-If you fail to timely file
-If you fail to pay the fee
-By contract
-Failing to appear at trial
-Failing to object if the trial erroneously begins without the jury present after a timely demand.

*a party's waiver in the 1st trial does not prevent it from timely demanding a jury if the case is remanded for a second trial.
What two ways can trial be set?
1. Send a letter to the court coordinator requesting a date
2. Court sets date and sends notice
How much notice is each party entitled to the first time trial is set?
45 days, so you can make a timely jury demand
How much notice are parties entitled to after the first trial?
Reasonable notice, not necessarily 45 days.
When are priority settings mandated?
-Temporary Injunctions
-Criminal cases
-Election contests
-Actions under the Texas Election Code
-Claims under the FELAA
-matters in which delay will cause physical or economic harm to the parties or the public
-Matters involving con law rights
-Issues of public concern or affecting public welfare.
What is preferential setting?
It means the court puts the case at the top of the docket, so it gets preference over all overs
Is it a due process violation to sign a default order before the case is called for trial?
Yes
What are local rules?
Rules that are particular to a certain county court. In order to be enforceable, it must have supreme court approval, and if it is in conflict the the TRCP then the TRCP controls.
Can local rules alter time periods?
No, under rule 3a.
What is a subpoena?
A command to give testimony or to appear to give documents for deposition or by trial.
Does a subpoena have to be served by a process server?
No, it can be issued and served by attorneys, either pre-trial or for trial.
What are the types of subpoena's?
Trial Subpoena - appear and give testimony

Discovery Subpoena - (Subp. Duces Tecum) - give documents.
How must every subpoena be issued?
-In the name of the State of Texas
-contain the style of the suit and its cause number
-State the court in which the suit is pending
-State the date on which the subpoena is issued
-Identify the person to whom the subpoena is directed
-State the time, place, and nature of the action required by the person to whom the subpoena is directed. Rule 176.2
-State the party at whose instance the sub was issued
What can the court do to a person who fails to appear in response to a subpoena?
Court can hold them in contempt, imprison, or assign fines to them.
What is a legislative continuance?
Happens when the attorney is a member of the legislature, and legislature is in session when the trial date is set. The court will give a leg. continuance.
What is the latest date before trial that you can amend your pleadings?
7 days prior to trial.
What happens to prior pleadings when you file an amended pleading?
The amended pleading completely supersedes the prior pleadings, this is why you need to make sure your amended pleadings include complete information on each of your causes of action. If you fail to put one of your COA's in, it is gone.
What are supplemental pleadings?
Pleadings that add to the prior pleadings you made. If you would like to add another COA, then use a supplemental pleading.
What is a suit on sworn account?
It is a lawsuit filed to collect on money due on an account that has been signed on by a consumer.
What type of denial do you need in a suit on sworn account, so that the opposing party cannot win on pleadings alone?
A verified denial (a denial sworn under oath). If you just plead a general denial, then you cannot offer any supporting evidence to show the debt is due, and the opposing party will win on the pleadings. With a verified denial, the case is thrown into trial.
What is a motion in limine?
a motion to ask the court to issue an order prohibiting the other side (attorneys and witnesses) from mentioning certain highly prejudicial information at any time during the trial, until the court has the opportunity to rule on its admissibility. (Common Law Rule, no statute on point)
Is a motion in limine a ruling on the evidence?
No. It only serves to make a party approach the bench before bringing in evidence on a subject b/c it may be prejudicial, instead of simply presenting it to the jury and giving instructions later to make them forget it was said. (Keep the skunk out of the jury box)
What should you do if your motion in limine is denied?
Make a specific and timely objection, and get a ruling on the record.
What can you do if someone violates the in limine order?
File a motion for contempt or move for a mistrial. Courts that have ordered sanctions have been reversed.
What does it mean to bifurcate a trial?
To bifurcate a trial is to separate certain issues from each other, and try them before the jury separately. The same jury hears and decides both issues, and only one judgment is issued at the end of trial.
What does it mean to separate a trial?
Separate trials use separate juries to decide different issues within a COA, and this results in separate cases and separate judgments.
When can you bifurcate a case?
At any time, except where the issue of liability and damages are so intertwined that a jury would have to retry liability in order to find causation.
Can a trial court grant a partial new trial?
Yes, on "clearly separable" issues, when it can be done with fairness. A trial court may not grant a separate trial on unliquidated damages alone, when liability is contested.
Who may file for the bifurcation of a trial?
Only the defendant, by filing a timely motion.

*Exception- Muriel ruled that either side may ask for the bifurcation of trial, so if you are plaintiff, you can try to use this to argue for your bifurcation motion.
Is bifurcation required if it is requested for?
If bifurcation was requested by a defendant in a punitive damage case, then yes. If the court refuses to bifurcate in that situation, it is error but it will likely be ruled as harmless and thus not reversible.
In a bifurcated trial, if you have a 10/2 jury verdict on the first issue of negligence, what must occur on the later issues of malice and punitive damages?
The same 10 jurors finding guilty on the first issue must agree to the malice and punitive damages questions as well.
When do Texas Courts (and the Majority of Courts) typically bifurcate?
Typically before the Malice or Gross Negligence issues .
When do minority courts typically bifurcate?
Before the punitive damages stage of trial.

* here the D's net worth is not allowed in until the punitive damages stage so that the jury is not skewed and rule against D based on net worth.
What type of case most commonly has bifurcation?
Criminal cases, you deal with guilt first, and then punishment after guilt is established.
In Texas, citizens have an absolute right to pro se representation. What is the only exception to this rule?
Corporations. They must be represented by an attorney.
What is the first thing that happens at trial?
Announcements. This is where the attorneys will announce their names and their role to the court. (i.e. Defense counsel, etc.)
What happens after announcements?
Each side will present any pre-trial motions to the court.
The jury selection process is also known as?
Voir dire, which occurs after pre-trial motions.
After opening statements, who presents their case in chief first? (Criminal Case)
The Prosecution will deliver their case in chief first, followed by the defendant's case in chief (if D has a burden).
What happens after the cases are presented?
There is time for rebuttal should either side wish to rebut.
After rebuttals, a charge conference is held. What is prepared at that time?
A Jury charge.
What is a jury charge?
It is the question or set of questions that the jury is charged to answer in the case.
After the Jury charge has been created and read to the Jury, what occurs?
Final arguments, P first, D second, and P goes last because it has the burden of proof.
After final arguments, what happens?
The jury deliberates, and delivers its verdict.
What happens after the jury announces it verdict?
The judge signs the judgment, and any post trial motions are made.
What is a jury shuffle?
a way of reordering the panel.
Who can ask for a jury shuffle?
Either side can ask for a shuffle of they don't like the people at the front of the list.
Can you ask for a jury shuffle at any time?
No, it must happen prior to any questions being asked. Questionnaires act as questions once either side has seen the answers. Jury cards do not count as questions.
How many jury shuffles can there be?
Only one.
Why do you question a jury?
1. So that you may intelligently exercise your peremptory strikes
2. To identify reasons why they are not qualified to serve (grounds for challenge for cause).
What is a peremptory strike?
It is a type of strike each side is given so that a juror may be stricken without cause. You cannot use a peremptory strike to strike members for race, sex, or any other kind of discriminatory reason.
How many peremptory strikes do you get?
Generally each side gets 6 strikes, but only 3 in county court.

This number can be increased, depending on the number of parties.

If alternate jurors are sat, you get one additional strike for every two alternates.
What is a challenge for cause?
It is a challenge to disqualify a juror from hearing the case because they fail to meet certain qualification criteria. You get an unlimited number of challenges, so you always use these first before using peremptory strikes.
What is the strike zone?
The range in the pool of jurors that could possibly serve on the jury (after challenges are made), if all of the strikes were exercised by each party. Any jurors beyond the strike zone will never serve on the jury, so you don't want to waste your strikes on them.
How do you calculate the strike zone?
Count to 24 (this is the number of strikes on each side, plus 12 jurors), skipping over the jurors that are gone for cause. Those 24 jurors are in the strike zone.
How many jurors in a civil case do you need to get a verdict?
You need a 10-2 decision to get a verdict. 5-1 in county court.
What happens to a verdict if you lose a juror?
Then a 10-1 verdict will be sufficient.
If 3 of the original 12 jurors are lost (not for misconduct), can you get a verdict?
Yes, if you lose 3 of the 12 jurors because they were sick or died, and the panel comes back unanimously, then the verdict will stand. If it is not unanimous, or the jurors were struck for misconduct, you cannot get a verdict.
What happens if you don't get a 10-2 verdict?
If there were punitive damages, and you fail to get a 10-2 verdict, then you will not get the damages. It is not considered as a hung jury.
How many jurors on a criminal case must agree before a defendant can be found guilty?
All of them must unanimously agree.
What are the two types of questions you ask on Voir Dire?
1. questions to help you determine where to use your peremptory strikes
2. questions that reveal reasons to challenge for cause.
Can you ask questions that lead the jury to feel sympathetic or prejudice toward someone during Voir Dire?
No! Questions about bias and prejudice are ok, but you cannot reveal facts about the case and then ask if they would be biased toward your case.
Can you tell the jury what the effect of their answers will be?
No!
Can you ask the jury to commit to any action during voir dire?
No! This is called contracting with the jury and it may not be done.
When can a juror be generally disqualified?
-Under the age of 18
-not a citizen of the state and county
-not qualified to vote
-not of sound mind and good moral character
-unable to read or write
-has served as a petit juror for six days during the preceding 3 months(county) or 6 months (district)
-is a convicted felon
-is under indictment for theft or felony
How can a juror be statutorily disqualified?
-Juror is a witness in the case
-Juror has an interest in the case
-Juror is related to a party within the 3rd degree
-Juror is biased, i.e. friendship
-Juror served as a juror on an earlier trial of the case or a different case with the same fact questions.
How can you be exempt from jury duty?
-Over age 70
-Legal custody/caretaker of child under 10
-High school or college student
-Officer or employee in the legislative branch
-has served in the last two years
-primary caretaker of an invalid
-Cannot speak english
-mental or physical incapacties
-conflicts with religious holy day
-
How do you preserve error on a denial of challenge for cause?
-Inform the court (on the record) that all of your strikes are gone, but there still remains an objectionable juror on the panel that you would have used a strike on had you not had to use it on the for-cause juror instead. Request additional strikes. If the court gives you an adverse ruling you have preserved error.
What is reapportionment?
It is the redistribution of peremptory strikes among parties that occurs upon a motion of co-defendant's who are antagonistic to one another. If antagonism exists, it is error not to reapportion the strikes.
What does it mean to have improper motive to strike a juror?
When a party strikes a juror or class of jurors based on race, gender, or ethnicity. Age is not improper motive to strike in Texas.
What does it mean to invoke the rule?
"The Rule" is the rule of sequestration, and it means that witnesses, unless they are exempted, must remove from the court room while other witnesses are testifying, and that none of those witnesses may discuss any part of the case with anyone (except attorneys), nor may they read anything about the case.
What is the policy behind the rule of sequestration?
To prevent witnesses from changing their testimony based on what other witnesses say.
Who is exempted from "the Rule"?
One corporate representative, a party who is natural person, a victim, an essential person to the presentation of the case, and in a civil case a spouse of a party (they are excluded from criminal cases)
What happens when the "rule" is violated?
That witness' testimony may be completely excluded, a portion may be excluded, the court can allow it if it was harmless, or the court can hold the witness in contempt.
Who gets to open/close arguments?
the party with the burden.
What is a jury view?
It is where the jury is taken to the scene of an incident so that they may view it for themselves. This is not allowed in Texas, and amounts to harmful error if it is done.
What is a Rule 11 agreement?
Rule 11 simply states that all agreements between parties must be in writing, and it specifies what that writing must contain to be valid. So a rule 11 agreement is a written and executed agreement between parties that is filed with the papers as part of the record.
On cross examination, what are the rules in Texas?
You may ask about anything you want, it is wide open so long as the statements are relevant and admissible. You are NOT limited to the information discussed on direct.
When you have proof that a witness is lying, can you state that to the court?
No, you may offer proof of the witness saying one thing before and then immediately remind the court of what the witness just said, but you cannot, after putting the two together, then state that the a witness is lying. The jury must infer.
What is a leading question?
A question that suggests the answer.
When can you lead a witness with your questions?
on cross examination, unless the witness is friendly
What is a friendly witness?
this occurs when the opposing counsel calls one of your witnesses up to testify.
What is an Adverse or Hostile Witness?
Adverse is a witness for the other side

Hostile is an uncooperative or reluctant witness who is being difficult.
The Daubert case covers...?
The admission of expert testimony at the federal level.

It states that witnesses must be qualified, the proposed testimony must be scientific, and it must assist the trier of fact to understand the evidence or to determine a fact in issue.
To Be Continued...
...