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64 Cards in this Set

  • Front
  • Back
Which parish must a proceeding be brought to open a succession?
The parish where the decedent was domiciled.
Venue is nonwaivable.
Can witnesses be compelled to testify at trial?
Yes. Any witness in a civil case who resides or who is employed in the state may be subpoenaed and compelled to atten trial wherever held in the state. If the witness lives more than 25 miles from the trial venue, plaintiff must deposit with the clerk of court sufficient funds to cover 20cents per mile, $25 per day for hotel, $5 per day for meals.
Can you ever depose counsel of record?
Only if under extraordinary circumstances and by order of the district court after a contradictory hearing. It is very unusual due to attorney- client privilege.
What does it mean when a lawyer files a pleading for a client?
That the attorney has read the pleading, it is reasonably well grounded in fact (objective standard); that it is warranted by existing law or a good faith argument for the extension , modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass, delay or increase the cost of litigation.
Can counsel take any action for client sued by an interdict?
Yes. File a dilatory exception for lack of procedural capacity since interdicts may not file suit in their own name. Rather, a curator must first be appointed by the court to file suit on behalf of Brother.
What is the delay for requesting service of citation on all named defendants in a civil action?
Service of citation must be requested on all named defendants within 90 days of commencement of the action.
If the request for citation is not timely made, what action, if any, can be taken to obtain dismissal of the action?
To dismiss the action you would file a contradictory motion to dismiss for failure to request timely service.
What is the Judge's duty as to the instruction of the jury?
The court must instruct the jurors on the law applicable to the cause. The court must reduce the instructions to writing. The court must further instruct the jury that it may take with it or have sent to it a written copy of all instructions and charges and any object or document received in evidence when a physical examination therof is required to enable the jury tor each its verdict.
What must you do in order to preserve you objection ot the improper charge? When?
Plaintiff may not assign as error the giving of any instruction unless you object thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which you object and the grounds of your objection. If you object prior to the time the jury retires, you will be given an opportunity to make the objection out of the hearing of the jury.
What do you need to show in order to get a TRO?
The applicant must show by verfied petition or supporting affidavit that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or his attorney cab be heard in opposition; and the applicant's attorney certifies in writing to the court the efforts he make to give notice to the opposition or the reason notice should not be required.
How can you obtain the depositions of corporate or other entity officials without knowing their identity?
File an article 1442 notice of an organization, naming as the deponent, the entity, and setting forth the matters on which the examination is requested. The organization must then designate one or more officers or other persons to testify as to the matters known or reasonably available to the corporation.
What action if any can you take to protect sensitive information from discovery?
Seek a protective order requesting the court to prohibit discovery or order that discovery be had on specified terms and conditions. Trade secrets and sensitive financial information are proper sujects for such an order.
Identify three kinds of exceptions and explain the general purpose or function of each kind.
Declinatory exceptions- used by the exceptor to decline the jurisdiction of the court.
Dilatory exception- interposed to delay the progress of the action due to objections to the form of the proceeding or for more information.
Peremptory exceptions- used to defeat or dismiss the action
When can you assert claims against co- defendants?
Asserting a cross- claim against a co-defendant requires that the demand arise out of the transaction or occurrence that is the subject matter of the original action.
When should you file a petition for writ of attachment (to have inventory seized)
When debtor is a non- resident with no duly appointed agent in the state for service of process. The court may exercise quasi in rem jurisdiction over the debtor by attaching his property in Louisiana. The judgment can only be executed against attached property.
What is a motion for additur?
A motion filed on the issue of quantum (instead of a new trial) when the verdict is clearly contrary to the weight of the evidence and a new trial could be granted on that basis alone. usually when the jury awards to little money as compensation.
How does the judge increase a jury award and what is the legal name?
Quantum must be clearly seperable from other issues in the case. Defendant must also consent to additur as an alternative to a new trial. If additur is entered, the then the court will reformt he jury verdict in accordance with the motion. The legal name is additur.
What do you do when you are of the opinion that the evidence was completely insufficient to support the jury's veridct on liability and was contrary to the law even though you are happy with the damage award?
File a contradictory motion- judgment notwithstanding the verdict (JNOV)or, in the alternative, a motion for a new trial. The new trial motion may be brought on all or part of the issues and on the grounds that the liability verdict was clearly contrary to the law and evidence.
What are the time delays for filing JNOV or a motion for a new trial?
Must be filed within 7 days after signing of judgment or mailing or service of notice of judgment.
What are the standards for JNOV and motion for a new trial?
JNOV- granted when the facts and inferences, considered in light most favorable to the non- moving party, point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not find for the opposing party.
New Trial- "the trial judge is free to evaluate the evidence without favoring either party; he may draw his own inferences and conclusions and may evaluate the credibility of the witnesses. (state v. wright)
What is the quickest way to accomplish the seizure and sale of property and where do you file it?
A petition for executory process may be filed either in the parish where the property is situated or the parish of Debtor's domicile.
When does a person have the right to executory process?
When the document (namely a mortgage) has a confession of judgment and is executed by authentic act. Such are prerequistes to use the executory process which, upon default by the debtor permits rapid foreclosure and sale of the mortgaged property, without obtaining a personal judgment against the debtor.
What can a debtor do to arrest the seizure and sale of property without posting security?
File a petition for injunction to arrest the seizure and sale of the property.
Why is a debtor allowed to arrest the seizure and sale of property without posting security?
Because no security is required for a preliminary injunction filed on the grounds that the debt secured has been extinguished.
Where does a debtor file a motion to arrest the seizure and sale of property?
The petition for injunction must be filed in the court where the executory proceeding is pending, either in the executory proceeding or in a separate suit.
How and when do you obtain a deficiency judgment?
You can obtain a deficiency judgment against a debtor if the property was sold under executory process after appraisal. To obtain the deficiency judgment, you can either convert the executory proceeding into an ordinary proceeding or file a separate suit. In either case, Debtor must be cited, and all delays and formalities of ordinary proceedings must be observed.
When may a juror be stricken for cause?
When, inter alia, the juroro has formed an opinion or is otherwise not impartial.
What can defense counsel or judge to cure the harm caused by a prospective juror?
Defendant Counsel should request the judge to issue a curative instruction to the other prospective jurors to disregard comments. If the judge seeks to rehabilitate juror and concludes that she has been rehabilitated then Defense counsel can use a peremptory challenge.
Bystander is hit by a roofer and sues roofer and homeowner. Roofer is an independent contractor and homeowner wants to be let out of the trial. What do you do?
File a motion for summary judgment asserting that there is no genuine issue of material fact and that homeowner is entitled to judgment as a matter of law since there is no claim extending to an independent contractor (no vicarious liability)
What does homeowner have to prove in order to succeed in SJ?
Affadavits from
1. competent affiants
2. on personal knowledge
3. containgin facts admissible at trial
(depositions etc.)
Should the judge allow the jury to hear the testimony of expert physician again and review all medical records that have been put into evidence after the close of trial?
The judge has discretion as to whether to allow this. If he does he should bring the jurors back into court and read the expert's testimony and with respect to medical records, the court may after giving notice to the parties, allow the jury to either exam then in court or in the jury room
What is the legal delay for answering a petition that is served pursuan to the LA Code of Civil Pro.?
Fifteen days from the date of service.
What is the legal delay for answering a petition that is served pursuant to the LA Long Arm Statute?
Thrity days from the date of service.
What is the legal delay for answering a request for admissions?
Fifteen days after service of the request for admissions.
What is the legal delay for applying for an appellate court rehearing after receiving an appellate court opinion?
Within 14 days of the mailing of the notice of judgment and opinion by the court of appeal.
What is the legal delay for applying for a writ of certiorari to the LA Sup. Court after receiving an appellate court opinion?
Within 30 days of the mailing of notice of judgment and opinion by the court of appeal.
What is the legal delay for filing a suspensive appeal?
Within 30 days of expiration of the delay for applying for a new trial.
What is the legal delay to appeal the issuance of a preliminary injunction?
Within 15 days from the date of the order.
What may a defendant in the principal action assert in a reconventional demand?
Any cause of action which he may have against the plaintiff in the principal action, regardless of the lack of connexity between the principal and reconventional demand. The reconventional demand may claim relief exceeding the amount sought in the principal demand.
Do City courts have jurisdiction over partition proceedings?
What do you do if your client dies mid- lawsuit unrelated to the current lawsuit?
Amend the petitionto assert a survival action and file a motion to have plaintiff's legal successor substituted to represent the interest of the deceased plaintiff. The motion may be filed ex parte. The death need not be related to the original lawsuit.
What do you do if your client makes an offer to settle a case and P does not respond?
Make a written offer to settle all claims at least 30 days prior to trial and state that the offer is made pursuant to La Code of Civ. Pro Art. 970. The offer is made without admitting liability. If the offer is refused and the final judgment obtained by the plaintiff is at least 25% less than the amount of the offer, the P must pay D's costs, exclusive of attorney's fees, incurred after the offer was made, as fixed by the court. This is called a motion for judgment on offer of judgment.
When must a respondent answer and appeal?
Must answer an appeal if respondent desires inter alia, damages against the appellant. If no answer he is foreclosed from seeking damages.
What is the correct procedure for interdicting a person?
File a petition for interdiction which should included the proposed curator's name, domicile, address, age and identify the person being interdicted as the defendant, and the proposed curator, her education, and reason for being appointed. The petition should also state the reason for interdictionand the extent of interdiction. The petition must be personally served on interdictee. the court will appoint an attorney if interdictee does not appear and may appoint someone to exam interdictee. The examiner's report must be filed at least 7 days before the hearing, which will be by summary proceeding and by preference. The burden of proof is on petitioner to prove the facts by clear and convincing evidence.
In order to bring a claim against a co- defendant the claim must...
arise out of the transaction or occurrence which is the subject matter of the original partition action. The action must bear connexity, factual or legal, to the original claim.
What do you do if during trial you discover the claim has prescribed?
File an exception of prescription. This is a peremptory exception which can be filed at any time in the trial or appellate court.
What do you do if opposing counsel makes standing objections during a deposition?
The Code of Civ. Pro. requires that any objection during a deposition shall be stated concisely and in a non- argumentative and non- suggestive manner. It is proper to object. The only objections which are waived if not timely made are those which pertain to errors which could be cured if the objections were promptly made at the deposition such as the form of the question.
What can you do if opposing counsel is delving into personal matters during a deposition?
1. You may instruct the deponent not to answer when necessary to prevent harassing questions or questions which seek information that is not reasonably calculated to lead to the discovery of admissible evidence, or
2. you can move to terminate the deposition alleging that it is being conducted in bad faith, or to annoy, embarass, or oppress the deponent.
After answering interrogatories identifying all known witnesses, two weeks before trial you learn of another witness, which you do not intend to call to the stand. The testimony will be adverse to your client- do you have a responsibility to tell opposing counsel about this witness?
There is no duty to supplement discovery responses which are complete when made. However, one exception to this rule is that there is a duty to supplement regarding the identity of new witness with knowledge of discoverable matters. Therefore, counsel must divulge the identity of the new witness.
Your client has been sued for a tort. After investigation you find that the tort was caused by a manufacturers defect. What action should you take for you client and why?
Counsel should file a third party demand against the manufacturer so that they may be libale to client for all or part of the principle demand made by plaintiff.
What are the obligations of an attorney as an officer of the court?
He must conduct himself at all times with decorum and in a manner consistent with the dignity and authority of the court. He must treat the court, its officers, jurors, witnesses and opposing counsel with due respect; he must not interrupt opposing counsel or impede the orderly administration of justice; and he must not knowingly encourage or produce false evidence or make false representations or otherwise deceive the court.
What happens when you take over a case only to find that no further action has been taken for four years besides the claim and unanwsered request for discovery?
Client need not take any action. Since there has not been any step in the prosectuion or defense
When is a suspensive appeal effective?
When both the petition for appeal and the suspensive appeal bond are properly and timely filed. A suspensive appeal must be perfected within 30 days of the expiration of the delay for a new trial (when no new trial has been requested). An appellant's late filed appeal bond is an irregularity imputable to the appellant which enables Opponent to move for dismissal of the suspensive appeal. The motion to dismiss must be filed within 3 days of the return day or the date the record is lodged, whichever is later.
How much time do you have to answer an original petition in district court?
15 days from the date of service of the petition or 30 if the long arm statute applies.
To answer a petition after an exception has been overruled?
10 days after the exception is overruled.
To amend the petition without leave of the court?
Any time before the answer is served.
To amend an answer?
Any time within 10 days after it has been served.
To file a suspensive appeal?
within 30 days of the expiration of the delay for applying for a new trial.
To file a devolutive appeal?
within 60 days of the expiration of the dely for applying for a new trial.
To answer an appeal in a court of appeals?
An appellee is not required to answer an appeal unless he desires to have the judgment modified, revised or reversed or unless he demands damages agaisnt the appellant. In such cases, the appellee must answer within 15 days after the return day or the lodging of the record, whichever is later.
To answer interrogatories?
Answer to interrogatories are due within 15 days after service of the interrogatories.
To apply for a new trial?
15 days after service of the interrogatories.
To appeal the issuance of preliminary injunction?
15 days from the date of judgment.
What steps must you take to place Client in possession of a leased premises when the tennant refuses to vacate the premises after notice and ten days?
The notices must not allow less than 5 days from the date of delivery to vacate the leased premises. The lessor then may cause the tenant to be summarily cited by a court of competent jurisdiction to show cause why it should not be ordered to deliver possession to the lessor. The lessor's rule to show cause shall state the grounds upon which the eviction is sought. The court shall give notice of the rule to the tenant at least 3 days prior to the hearing on the rule. If the tenant gets evicted the tenant has 24 hours to comply or else the court shall issue immediately a warrant to deliver the premises to the lessor. If tenant wants to dispute he has to file a suspensive appeal he has 24 hours to perfect the appeal by issuing bond.