Pleading & Practice - Indiana Bar Exam

Front 1

What are the two (2) things you need to also do when you file the complaint for your client under Trial Rule 3?

Back 1

1. file your appearance, and

2. pay the filing fee

Front 2

Service of Process:

Rule 4 Service -

What are the four (4) ways to serve process on an individual?

Back 2

1. certified mail,

2. personal service,

3. leave copy at home (+mail), and

4. service on an agent

Front 3

Service of Process:

Service on Organizations -

Are the methods the same as an individual?

Who do you serve?

Back 3

Partnership = any general partner

Organization = highest exec., or agent

State Org. = AG + Exec. of Org.

Local Org. = Officer + Town Attorney

Front 4

Service of Process:

When do you use "Service by Publication"?

Back 4

Only as a last resort.

Front 5

Personal Jurisdiction:

What is the authority over?

What does it require?

Back 5

- authority over the person or entity.

- it requires "minimum contacts"

Front 6

Personal Jurisdiction:

What is the three (3) part test for PJ?

Back 6

1. quality of contacts,

2. quantity of contacts, and

3. how these contacts relate to the lawsuit.

Front 7

General Jurisdiction:

Applies if the defendant's activities in IN are ____________ and _____________?

Back 7

"continuous and systematic"

Front 8

Specific Jurisdiction:

Applies when Defendant's activities are __________ and ___________, but these activities had an ___________ on the forum state.

Back 8

"limited and sporadic"

"impact"

Front 9

Personal Jurisdiction:

Long-Arm Statute (Rule 4.4)

What nine (9) times will PJ reach out to the Defendant?

[C.R.I.S.P. - B.O.D.S.]

Back 9

C = Consents to PJ

R = Restraining Order

I = Insurance

S = Supplies Goods / Services

P = Personal Injury

B = Business

O = Owns Real Property

D = Damage to Property

S = Spouse

Front 10

Personal Jurisdiction:

When are the two times to assert lack of PJ as an affirmative defense?

Back 10

1. in the answer to the complaint, or

2. In a 12(b)(2) Motion to Dismiss

Front 11

Personal Jurisdiction:

These three (3) things, will effectuate a "Waiver" of PJ as an affirmative defense?

Back 11

1. fail to raise in answer,

2. move for change of venue,

3. file Rule 12(b)(6) Motion

Front 12

Rule 5 Service:

What is Rule 5 Service?

What must you do to use Rule 5 Service?

When is Rule 5 Service satisfied?

Back 12

- Service by Mail

- put "Certificate of Service" at the bottom of the pleading.

- When mailed

Front 13

Time Issues in the Response to Complaint:

How long do you have to - File the "Answer"?

Back 13

20 days

Front 14

Time Issues in the Response to Complaint:

How long do you have to - File Rule 12 Motion to Dismiss?

Back 14

20 days

Front 15

Time Issues in the Response to Complaint:

How long does P have to respond if Motion to Dismiss is granted?

How long does D have to "answer" the complaint if it is denied?

Back 15

10 days

10 days

Front 16

Answers to the Complaint:

What are the three (3) ways you can "answer" the allegations of the Complaint?

Back 16

1. admit

2. deny

3. insufficient info to admit or deny

Front 17

Affirmative Defenses (Rule 8c):

What are the seven (7) "affirmative defenses" you can place in your answer?

[W.A.F.E.L.L.L.]

Back 17

1. Waiver

2. Accord and satisfaction

3. Fraud

4. Estoppel

5. Lack of PJ

6. Lack of SMJ

7. Lack of consideration

Front 18

What two (2) matters require "pleading with specificity" in the answer and complaint?

Back 18

1. Fraud, and

2. Mistake

Front 19

Complaint and Answer Stage:

You get "attorney's fees" if the claim or defense is __________, __________, or ____________? (3)

Back 19

1. frivolous

2. groundless, or

3. unreasonable

Front 20

Amendments to Pleadings:

What is the ability to "amend the pleading" considered?

Back 20

A Matter of Right

Front 21

Amendments to Pleadings:

How often can you "amend" before the answer?

Can you "amend" after the answer has been filed?

Back 21

One Time

Only with the Court's Permission

Front 22

Attacks on the Pleadings:

What are the six (6) common basis for dismissal?

Back 22

1. Failure to State a Claim [12b6 Motion],

2. Jurisdiction,

3. Improper Venue

4. Bad Service / Bad Process

5. Failure to join Necessary Party

6. Same Action Pending in Another Court

Front 23

Attacks on the Pleadings:

Rule 12(b)(6) Motion to Dismiss for "Failure to State a Claim"... Therefore D is entitled to _______________________?

Back 23

Judgment as a matter of law

Front 24

What is the court's decision on a 12(b)(6) Motion to Dismiss based on?

What if you present other evidence?

Back 24

- based on the "four corners" of the document.

- treated like Motion for Summary Judgment.

Front 25

Motion for a More Definite Statement (Rule 12e):

What are you requesting?

Why?

What happens if the other party doesn't "respond" or "cure the defects" within 20 days?

Back 25

- requesting a less ambiguous claim

- as written, you cant respond adequately,

- no response / failure to cure = court will strike the pleading or do anything it feels is just.

Front 26

Joinder of Claims and Remedies (Rule 18):

How many claims may one party join to an action?

Back 26

As many claims as he has against the opposing party.

Front 27

Rule 19 Joinder of "Indespensible Parties":

What makes a party "indespensible"? (2)

Back 27

1. "Complete Relief" - can't be given without them, or

2. "Double or Inconsistent Liability" - would happen.

Front 28

Permissive Joinder (Rule 20):

What three (3) things would give a party "permission" to "join" the current action?

Back 28

1. similar claims and defenses

2. common questions of law and fact,

3. same transaction or occurrence.

Front 29

Class Action Suits (Rule 23):

Step 1 of getting Class Action Certified: You need all of them!

[P.A.C.T.]

Back 29

P = Practical

A = Adequate

C = Common Issues (of law/fact), and

T = Typical (claims and defenses)

Front 30

Class Action Suits (Rule 23):

Step 2 of getting Class Action Suit Certified: You need 1 or more of these?

[R.I.P]

Back 30

R = Risk of varying results,

I = Injunctive Relief Sought

P = Predominant Legal or Factual Issues

Front 31

Intervention (Rule 24):

When a party wants to be added to the lawsuit late...

When two (2) times MUST a court allow a party to "intervene?

Back 31

1. statutorily authorized,

2. property interest in the litigation

Front 32

Intervention (Rule 24):

When a party wants to be added to the lawsuit late...

When two (2) times MAY a court allow a party to "intervene?

Back 32

1. common question of law and fact

2. common defenses

Front 33

Pre-Trial Conferences:

The main purpose of a Pre-Trial Conference is to "Simplify the Issues".

What are the (4) things to consider during a PTC?

Back 33

1. amendments to pleadings

2. stipulations and admissions,

3. witness and exhibit lists, and

4. settlement and ADR

Front 34

Pre-Trial Conference:

How long before the PTC must the attorneys meet privately to discuss the amendments, stipulations, exhibit lists, settlement, etc....

Back 34

10 days

Front 35

Discovery (Rule 26):

What are the six (6) methods of obtaining discovery?

Back 35

1. Oral Depositions

2. Written Depositions

3. Interrogatories

4. Requests for Production

5. Physical/Mental Exams, and

6. Request for Admissions

Front 36

Discovery (Rule 26):

Testimonial Expert Witness -

What four (4) things can you discover about an "expert witness" planning to testify?

Back 36

1. ID

2. Subject Matter of Testimony,

3. Substance of Facts/Opinions, and

4. Grounds for those Opinions

Front 37

Discovery (Rule 26):

Protective Orders from Discovery -

What five (5) grounds can you use to get a "protective order" for your client in regards to discovery?

[ A.E.I.O.U. ]

Back 37

A = Annoyance

E = Embarrassment

I = Injury

O = Oppression

U = Undue Expense

Front 38

Discovery (Rule 26):

Protective Orders from Discovery -

What four (4) things can a court do if they grant the discovery protective order?

Back 38

1. deny it,

2. limit to certain time or place,

3. limit discovery to a certain method, or

4. restrict the discovery from the public record.

Front 39

Oral Depositions:

Who can you get to take part in an Oral Deposition?

What is the main purpose of having them deposed?

Back 39

a party or a non-party

- to get them under oath

Front 40

Oral Depositions:

What must you give to a "party" before taking an oral deposition?

What does this include?

Back 40

Reasonable Notice

Date, Time, Location,

Front 41

Oral Depositions:

What must you use when seeking to depose a "non-party"?

(What Service?)

Back 41

Rule 4 Service

Front 42

Oral Depositions:

If you want a "non-party" to bring information, what do you need to serve them with?

Back 42

Request for Production
+
Subpoena Duces Tecum

Front 43

Oral Depositions:

If you want a "party" to bring information with them to the deposition, what do you serve them with?

Back 43

- Request for Production

+ Subpoena

Front 44

Oral Depositions:

When deposing an "organization" what do you do send along with subpoena?

Back 44

You send them the type of information sought.

- They choose who to send as spokesperson

Front 45

Oral Depositions:

What (2) things are you allowed to object to at a depo?

Back 45

1. form of the question

2. manner of the deposition

Front 46

Written Depositions:

Although rarely used, how does it work?

Back 46

Step 1 - deposing party writes and sends out "Direct" questions,

Step 2 - Responded to with "Cross"

Step 3 - Write "Re-Direct" and send all to the court reporter.

Step 4 - Court reporter asks the witness all questions, and they respond on the record

Front 47

Use of Depositions in Court(Rule 32):

For what four (4) purposes can you use depositions in court?

Back 47

1. in lieu of live testimony

2. to impeach a witness

3. in support of "summary judgment", or

4. to oppose summary judgment

Front 48

Interrogatories (Rule 33):

What are "interrogatories"?

Back 48

Written Questions - for Written Answers.

Front 49

Interrogatories (Rule 33):

Who can you serve with interrogatories?

Back 49

ONLY "parties" to the action

Front 50

Interrogatories (Rule 33):

Who must "verify" the interrogatory you send to a party?

Back 50

The Party and Their Attorney

Front 51

Interrogatories (Rule 33):

How long does a party served with an Interrogatory have to respond?

What happens if they don't?

Back 51

30 days

- Motion to Compel and possibly sanctions

Front 52

Requests for Production (Rule 34):

Who can you serve a Request for Production on?

Back 52

anybody relevant to the action

"party" or "non-party"

Front 53

Requests for Production (Rule 34):

If you serve a Request for Production to a "Non-Party", what must you send also?

Back 53

Subpoena

Front 54

Requests for Production (Rule 34):

How long do you have to respond?

Back 54

30 days

Front 55

Requests for Production (Rule 34):

If served, what must you produce?

Back 55

Written Answers

or the Documents themselves

Front 56

Physical / Mental Examinations (Rule 35):

When are you going to use a Rule 35 exam?

What must you get before taking the exam?

Back 56

When the party's mental or physical state is at issue.

Court Order

Front 57

Physical / Mental Examinations (Rule 35):

You must show ___________?

You must give ___________ to all parties?

Back 57

Good Cause

Notice

Front 58

Physical / Mental Examinations (Rule 35):

What must you always specify in your request?

Back 58

Time, Place, Manner, and Scope of the exam

Front 59

Request for Admission (Rule 36):

Who can you serve them on?

Back 59

ONLY "Parties" to the suit.

Front 60

Request for Admission (Rule 36):

How long do you have to respond?

Back 60

30 days

Front 61

Request for Admission (Rule 36):

If a party fails to respond, what happens?

Back 61

Treated like an admission

(failure could likely be malpractice)

Front 62

Request for Admission (Rule 36):

What method of service do you use?

Back 62

Rule 5

Front 63

Request for Admission (Rule 36):

If you object, how must you do so?

Back 63

- to each question "individually" for good cause.

Front 64

Discovery Sanctions (Rule 37):

After a Motion to Compel is ignored, what are eight (8) types of "sanctions" a court may levy?

[S.P.E.A.D. - C.D.C.]

Back 64

1. strike the pleading

2. prohibit introduction

3. establish facts your seeking

4. attorney's fees

5. dismissal

6. contempt

7. default judgment

8. continuance

Front 65

Discovery Sanctions (Rule 37):

What MUST you prove to the court before you seek their involvement in discovery?

Back 65

That you have tried to resolve the issues without them!

Front 66

Subpoenas (Rule 45): What are the three (3) main uses for subpoenas?

Back 66

1. deposition

2. request for production

3. trial testimony

Front 67

Right to a Jury Trial (Rule 38):

Must demand within ______ days?

If not, then you _________?

Back 67

10 days

waived

Front 68

Right to a Jury Trial (Rule 38):

Once Jury Trial is "demanded", all parties must __________ before it can be "withdrawn"?

Back 68

consent

Front 69

Jury Challenges (Rule 47):

Jury Selection = ____________?

Civil Jury = _____ people?

Civil Jury has _____ alternates?

Back 69

Voir Dire

6

3

Front 70

Jury Challenges (Rule 47):

You get _____ "preemptory challenges?

You have __________ challenges for cause?

Back 70

3

Unlimited

Front 71

What is a "Final Judgment" under Rule 54?

"Magic Language"?

Back 71

- Any order that may be appealed

- "the court issues judgment on this matter"

Front 72

Once a "Final Judgment" is certified, how long do you have to initiate your appeal?

Back 72

30 days

Front 73

Default Judgment (Rule 55):

When do you usually see Default Judgments?

Back 73

When D is properly served, and doesn't respond.

Front 74

Default Judgment (Rule 55):

Why don't courts like "default judgments"?

Back 74

They want to decide judgments "on the merits"!

Front 75

Default Judgment (Rule 55):

Under what three (3) circumstances will courts almost always set aside a "default judgment"?

Back 75

1. lack of actual notice

2. excusable neglect, or

3. mistake

Front 76

Declaratory Judgments (Rule 39):

What two (2) situations are courts most likely to use a "declaratory" judgment?

Back 76

1. to "resolve controversy" between parties

2. to set out "rights and duties" of the parties

(examples: statute improperly applied to action or ambiguous K language).

Front 77

Default Judgment (Rule 55):

What is rarely awarded in default judgments?

Back 77

money damages

Front 78

Motion for Summary Judgment (Rule 56):

A Motion for Summary Judgment is basically a...?

Back 78

Trial on Paper

Front 79

Motion for Summary Judgment (Rule 56):

What is the main thrust of a summary judgment motion?

Back 79

There are "no genuine issues of material fact"

Front 80

Motion for Summary Judgment (Rule 56):

How long must a P wait to file a summary judgment motion after filing the complaint?

What about the defendant?

Back 80

20 days

D can file at any time

Front 81

Motion for Summary Judgment (Rule 56):

How long do you have to respond?

What do you respond with?

Is a reply brief required?

Back 81

30 days

- affidavits, briefs, depos, etc... (anything to show a "material fact is in controversy).

- no, but parties always do.

Front 82

Motion for Summary Judgment (Rule 56):

When is a hearing required?

Back 82

If the party asks for one within 10 days of response.

Front 83

Motion for Summary Judgment (Rule 56):

What are the two "designations" you must file in a "response" to a motion for summary judgment?

Back 83

1. materials which support you, and

2. a list of all "material facts" you claim exist.

Front 84

Using "Affidavits" in Support of Pleadings:

Witness must be __________, and have _________ ___________?

Back 84

Competent

Personal Knowledge

Front 85

Using "Affidavits" in Support of Pleadings:

They must set forth evidence that would be ___________ at trial?

If they don't, a court can strike them in ___________ or in _________?

Back 85

admissible

in whole or in part

Front 86

Motions to Reconsider (Rule 60):

Reasons to File?

[ F - M.E.N.S.A ]

Back 86

F = Fraud

M = Mistake

E = Excusable Neglect

N = New Grounds

S = Surprise

A = Any other good reason

Front 87

Preliminary Injunctions (Rule 65):

What type of remedy are they?

What are you seeking from them?

Back 87

- Equitable Remedies

- You want to "Maintain the Status Quo" through trial.

Front 88

Preliminary Injunctions:

What four (4) things must you prove?

Back 88

1. reasonable likelihood of success (like a mini-trial),

2. remedies at law inadequate,

3. threatened injury to you outweighs harm to opposing party,

4. the public interest would be served

Front 89

Preliminary Injunctions:

Can you appeal them?

How?

Back 89

Yes.

Interlocutory

Front 90

Temporary Restraining Orders (Rule 65):

What is a TRO?

Back 90

Emergency Order to Maintain Status Quo

Front 91

Temporary Restraining Orders (Rule 65):

If successful, how long does it last?

Back 91

10 days

Front 92

Temporary Restraining Orders (Rule 65):

Can they be done ex parte?

Back 92

Yes

Front 93

Temporary Restraining Orders (Rule 65):

What must you show to get a TRO?

Back 93

Good Cause

Front 94

Local Rules of Court (Rule 81):

Can each Court adopt their own rules?

Back 94

Yes

Front 95

Local Rules of Court (Rule 81):

If a Court adopts their own rules, what must they not be inconsistent with?

Back 95

Indiana Trial Rules

Front 96

Local Rules of Court (Rule 81):

Where do you find local rules?

Back 96

with the Court Clerk, or

the Indiana Supreme Court