Presentation on theme: "Civil Procedure 1 Review Questions"— Presentation transcript:
1Civil Procedure 1 Review Questions Instructions:Click on “Slide show” at the top of the screen and select “ViewShow”.Use the down arrow (cursor key) to flip through the slides. Thequestion slides on screen, then the answer slides in below it(keep hitting the down arrow until the full answer is shown).(c) Daragh Carter, U.H.L.C.
2Personal Jurisdiction 1. Consideration of what two factors is necessary for a properexamination of personal jurisdiction?A: Due Process Requirements and State Long Arm Statute(c) Daragh Carter, U.H.L.C.
3Personal Jurisdiction 2. What is “tag jurisdiction”?A: It’s when the defendant entered the forum state and waspersonally served with the complaint.(c) Daragh Carter, U.H.L.C.
4Personal Jurisdiction 3. Name, but don’t fully explain, the 7 tests forpersonal jurisdiction.A: (1) Minimum Contacts (“Fair Play”) Test(2) General Jurisdiction Test(3) Specific Jurisdiction Test(4) Purposeful Availment Test(5) Reasonable Anticipation Test(6) Commercial Defendant Compelling Balance of Convenience Test(7) State Long Arm Statute “Test”(c) Daragh Carter, U.H.L.C.
5Personal Jurisdiction 4. Recite the Minimum Contacts Test.A: Due process requires that the defendant have sufficientcontacts with the forum state such that jurisdiction is consistentwith traditional notions of fair play and substantial justice.(c) Daragh Carter, U.H.L.C.
6Personal Jurisdiction 5. Recite the Specific Jurisdiction Test.A: Due process requires that the litigation be arising out of orrelated to the defendants contact(s) with the forum state.(c) Daragh Carter, U.H.L.C.
7Personal Jurisdiction 6. Recite the General Jurisdiction Test.A: Due process requires that if the litigation is unrelated to thedefendant’s contact(s) with the forum state that the defendanthave systematic and continuous contacts with the forum state.(c) Daragh Carter, U.H.L.C.
8Personal Jurisdiction 7. Recite the Purposeful Availment Test.A: Due process requires that the defendant have purposefullyavailed himself/herself/itself of the privilege of conductingactivities within the forum state, thus invoking the benefits andprotections of it’s laws.(c) Daragh Carter, U.H.L.C.
9Personal Jurisdiction 8. Recite the Reasonable Anticipation Test.A: Due process requires that the defendant’s contacts with theforum state be such that the defendant could reasonably anticipatebeing haled into court there.(c) Daragh Carter, U.H.L.C.
10Personal Jurisdiction 9. Recite the Commercial Defendant/Compelling Balance test.A: Originates from Justice Brennan in Burger King. The scalesshould be tipped against a commercial defendant such that theymust make a compelling showing of convenience factors in orderto defeat jurisdiction.(c) Daragh Carter, U.H.L.C.
11Personal Jurisdiction 10. Recite the State Long-Arm Statute “Test”.Bonus Point for knowing Texas’ long-arm statute model.A: Due process requires that jurisdiction be consistent with theforum state’s long-arm statute.Texas’ long-arm statute is a “limits of due process” long-armStatute: so long as jurisdiction is consistent with due process, thenjurisdiction is appropriate.(c) Daragh Carter, U.H.L.C.
12Personal Jurisdiction 11. Quasi-In Rem Jurisdiction now requires a “3-way nexus”between what?A: Quasi-In Rem jurisdiction now requires a 3 way nexus betweenthe defendant, the forum and the litigation. The defendant musthave sufficient minimum contacts with the forum state, and thelitigation must be related to those contact(s).(c) Daragh Carter, U.H.L.C.
13Personal Jurisdiction 12. Name two ways to challenge personal jurisdiction and anyrisks associated with them.A: (1) Don’t appear and attack jurisdiction when the other sidesmoves for a judgment in your state, but: risky because you havelost the chance to argue the case on it’s merits.(2) Make a special appearance (must be the first thing you do,otherwise appearing is an automatic consent to jurisdiction). InFederal court this would be achieved with a Motion to Dismiss(which can be filed with an answer).(c) Daragh Carter, U.H.L.C.
14Personal Jurisdiction 13. What is the due process requirement as regards notice?A: Due process requires that notice be reasonably calculatedto reach the defendant.(c) Daragh Carter, U.H.L.C.
15Service of Process14. What are the 4 ways to correctly serve an individual(under the FRCP)?A: (1) Personal in-hand service (2) Leave it with the defendant’sdwelling or usual place of abode, with a person of suitable ageand discretion, then residing therein (3) Serve it upon their agent(4) Per state law methods.(c) Daragh Carter, U.H.L.C.
16Service of Process15. What are the 3 ways to correctly serve a corporation(under the FRCP)?A: (1) Per State Law Methods (2) Serve it on an officer or generalor managing agent (3) Serve an agent authorized by appointmentor law.(c) Daragh Carter, U.H.L.C.
17Service of Process16. Name Texas’ rule for substituted service, and brieflyexplain how it works.A: Texas Rule 106 allows a judge to authorize any method ofservice that is reasonably calculated to result in effective serviceon the defendant, when usual methods of service have failed.(c) Daragh Carter, U.H.L.C.
18Service of Process17. Bonus Point: What methods of service does Texas statelaw permit?A: (1) Personal In-Hand Service (2) Certified Mail.(c) Daragh Carter, U.H.L.C.
19Service of Process18. Applying Texas state law, what steps are involved in servingan out-of-state defendant?A: Texas law permits service on the secretary of state in Austin,so you would go to the courthouse and have the clerk filestampthe complaint and issue a summons, then send that certified mailto the Sec. Of State who is legally obliged to serve it upon theDefendant by sending it certified mail to their address. The Sec. OfState would then attach the return mail receipt to the summonsand complaint along with a certificate of service, and send thesedocuments back to the attorney. Service complete!(c) Daragh Carter, U.H.L.C.
20Venue 19. In a diversity case, where is proper venue? A: 1st: Where all defendant’s reside. If not that then (2) wherethe substantial part of the acts or omissions took place. If notthat then (3) where the Defendant is subject to personal jurisdictionor where the defendant can be found.(c) Daragh Carter, U.H.L.C.
21Venue 20. For the purposes of Venue, where does a corporation reside? A: For venue purposes, a corporation resides wherever it issubject to personal jurisdiction.(c) Daragh Carter, U.H.L.C.
22Venue 21. Recite the FRCP transfer of venue rule? (Essentially the circumstances under which a court may transfer a case to anothercourt.A: For the convenience of parties and witnesses, and in the interestsof justice, a district court may transfer a case to the district where itmight have been brought.21(a). “Where it might have been brought” refers to whom?A. This refers to where the Plaintiff might have brought the case.(c) Daragh Carter, U.H.L.C.
23Subject Matter Jurisdiction 22. There are 3 types of subject matter jurisdiction. Name(but don’t explain them).A: (1) Federal Question “Arising Under” jurisdiction(2) Diversity Jurisdiction (3) Supplemental Jurisdiction.(c) Daragh Carter, U.H.L.C.
24Subject Matter Jurisdiction 23. What is required in order for Federal Question jurisdictionto exist?A: The claim must be arising under the constitution, laws andtreatises of the United States.(c) Daragh Carter, U.H.L.C.
25Subject Matter Jurisdiction 24. Prof. Crump sang us a song to get us to remember somethingspecific about federal question jurisdiction. The name of the songsays it all. What was it?A: “It’s got to be in the claim”. In order for there to beFederal Question jurisdiction, the federal question must be inthe plaintiff’s claim.A federal defense (or anticipation of a federal defense) just isn’tenough!(c) Daragh Carter, U.H.L.C.
26Subject Matter Jurisdiction 25. Name and briefly explain the two tests for Federal QuestionJurisdiction.A: (1) The Creation test: Does Federal law create the claim?(2) Ingredient Test: Is federal law a substantial ingredient inthe claim?(c) Daragh Carter, U.H.L.C.
27Subject Matter Jurisdiction 26. Name the requirements for Diversity Jurisdiction.A: The plaintiff(s) and defendant(s) must be citizens of differentstates (or citizens of a US state and a foreign state) and the amountin controversy must exceed $75,000 exclusive of interest and costs.(c) Daragh Carter, U.H.L.C.
28Subject Matter Jurisdiction 27. For the purposes of diversity jurisdiction, does “citizenship”mean “residence” or “domicile”?A: Domicile. Just because you’re living there temporarilydoesn’t necessarily make you a citizen.[ The case we read involved out-of-state students in Louisianafor a year studying.](c) Daragh Carter, U.H.L.C.
29Subject Matter Jurisdiction 28. For the purposes of diversity jurisdiction, where does acorporation have its citizenship?A: A corporation can have multiple citizenships, including anystate in which it is incorporated and where it has its principleplace of business.(c) Daragh Carter, U.H.L.C.
30Subject Matter Jurisdiction 29. Name and briefly explain the two tests for a corporationsprinciple place of business.A: The “Nerve Test” – where the corporation has it’s nervecenter, which is essentially it corporate HQ.The “Muscle Test” – where the corporation conducts thebulk of it’s activities.(c) Daragh Carter, U.H.L.C.
31Subject Matter Jurisdiction 30. Recite the circumstance when supplemental jurisdictioncan be used to hear a claim that a Federal court does not normallyhave jurisdiction over.A: A court may hear a non-jurisdictional supplemental claim whenit is so related to the original jurisdictional claim that theyform part of the same case or controversy.(c) Daragh Carter, U.H.L.C.
32Subject Matter Jurisdiction 31. What are the 4 exceptions where a court may, at its discretion,opt not to hear a supplemental claim?A: (1) When the claim presents a novel or complex question of statelaw (2) When the original claim has been dismissed early in the case(3) When the supplemental claim predominates over the originalclaim (4) In other exceptional circumstances.(c) Daragh Carter, U.H.L.C.
33Subject Matter Jurisdiction 32. When is a claim subject to removal?A: When the federal district court would have had originaljurisdiction over the claim.(c) Daragh Carter, U.H.L.C.
34Subject Matter Jurisdiction 33. Name the special exception that would prevent a defendantremoving a claim from a state court to a federal district court.A: If the defendant is a “local defendant”, i.e. they are acitizen of the forum state.Local defendants cannot remove from their own state court toa federal court because they do not face any local bias, hence haveno grounds for removal.(c) Daragh Carter, U.H.L.C.
35Subject Matter Jurisdiction 34. What is the time limit for a defendant to remove a claim, andwhat is the time limit for a plaintiff to remand the claim back?A: The defendant must remove the claim within 30 days oflearning that it is removable. The plaintiff then has 30 days tofile for remand.For a diversity case, the time limit for removal is 1 year.(c) Daragh Carter, U.H.L.C.
36The Erie Doctrine35. Name, but don’t explain, the 5 tests used to determinewhether state substantive law or federal procedural law shouldbe applied in a given case.A: (1) Deference to controlling federal rule test (2) OutcomeDeterminative Test (3) Definitive Outcome Determinative Test(4) Balancing State and Federal Interests Test (5) Policies ofErie Test.(c) Daragh Carter, U.H.L.C.
37The Erie Doctrine36. Recite the Deference to controlling federal rule test.A: (1) If there is a controlling federal rule on point, and it isconstitutional, it will be considered procedural and applied.NOTE: This is the controlling test in the analysis!(c) Daragh Carter, U.H.L.C.
38The Erie Doctrine 37. Recite the outcome determinative test. A: If the application of federal or state law will determine theoutcome of the case, then state substantive law should be applied.(c) Daragh Carter, U.H.L.C.
39The Erie Doctrine38. Recite the Definitive outcome determinative test.A: Essentially a stronger version of the previous test, this teststates that if the application of federal or state law will absolutely,definitively determine the outcome of the case, then state law willbe applied.(c) Daragh Carter, U.H.L.C.
40The Erie Doctrine39. Recite the balancing state/federal interests test.A: Depending upon whether the forum state whose law would beapplied or federal law has a particularly strong interest in havingtheir law applied to decide the case, the law with the strongest interestwill be applied.(c) Daragh Carter, U.H.L.C.
41The Erie Doctrine 40. Recite the policies of Erie Test. A: If the application of federal law would result in either irrationaldifferences in decisions between state and federal courts or wouldincrease forum shopping, then the law of the forum state will beapplied.(c) Daragh Carter, U.H.L.C.
42The Erie Doctrine40. Crump put his hand inside “Rehnquist” and spoke in asilly voice in class to teach us what principle about choice oflaw situations?A: That in a choice of law situation, a federal judge should act as aVentriloquist’s dummy to a state judge, and should apply the samechoice of law principles that a state judge would apply.(c) Daragh Carter, U.H.L.C.
43The Erie Doctrine 42. Name two choice of law principles. A: (1) Lex Loci Delicti – apply the law of the place of the injury(2) Most significant relationship – apply the law of the place withthe most significant relationship to the parties or event.(c) Daragh Carter, U.H.L.C.
44Pleadings 43. What is a variance? A: A variance occurs when you plead one thing, but provesomething else.The case we discussed in class involved a lady injured when plasterfell from the ceiling of the movie theater and scared her causing her to kick theseat in front of her, injuring her leg. She alleged a leaky roof, but it turned outit was a flooded bathroom in a room above.(c) Daragh Carter, U.H.L.C.
45Pleadings44. What is the standard for dismissal of a federal complaint?A: Assume everything that the plaintiff alleges is true, but the lawSays they still can’t win anything, then the complaint it subject todismissal.(c) Daragh Carter, U.H.L.C.
46Pleadings45. What is the standard for specificity of a federal complaint?A: A claim must give a short and plain statement that givesthe defendant reasonable notice of the claim.(c) Daragh Carter, U.H.L.C.
47Pleadings 46. How must special damages be pleaded and give a few examples of special damages?A: Special damages must be stated with “specificity” (I.e. you’vegot to set them out in your complaint).A few examples are: lost wages, attorney fees, pain and suffering.(c) Daragh Carter, U.H.L.C.
48Pleadings 47. Do the FRCP permit a general denial? A: No, the defendant must “parse” the complaint and answer eachnumbered allegation.(c) Daragh Carter, U.H.L.C.
49Pleadings 48. When an attorney signs a complaint, this is an automatic certification of what 4 things?A: (1) the complaint is not filed for any improper purpose, such asharassment (2) that the claim is founded upon existing law, or thereis a non-frivolous argument for a change to the law (3) that the claimis based upon a reasonable investigation (4) that the claim hasevidentiary support (or it will have after discovery).(c) Daragh Carter, U.H.L.C.
50Pleadings49. Under the latest (post-1993) version of Rule 11, how wouldan attorney seek sanctions against opposing counsel?A: Draw up the motion and serve it on the other side. The otherside then has a 21 day safe harbor in which to amend or withdraw thecomplaint. If they don’t cure then file for sanctions with the court.Side note: Sanctions are not mandatory under Rule 11, and theattorney is required to conduct a reasonable investigation.(c) Daragh Carter, U.H.L.C.
51Pleadings 50. Crump provided 7 “commandments” for avoiding sanctions. What are they?A: (1) Cross examine your client(2) Send a demand letter (and require a response)(3) Conduct prompt discovery(4) Get an expert witness(5) Conduct a reasonable investigation (and document it)(6) Do at least minimal legal research(7) Identify elements of your complaint which don’t yet haveevidentiary support.(c) Daragh Carter, U.H.L.C.
52Pleadings 51. Under what circumstances may an attorney amend a complaint?A: Once as a matter of course early on, before any responsivepleadings (I.e. an answer) is filed.After that with written permission of the other side or with theCourt’s permission.(c) Daragh Carter, U.H.L.C.
53Pleadings 52. When does the FRCP say that permission to amend should be given?A: Permission to amend should be “freely given as justice sorequires”.Note: Crump has said not to be mislead by this. Judges have widelatitude to refuse amendments, particularly if there have been a lotof prior amendments or its late in the case.(c) Daragh Carter, U.H.L.C.
54Multiple Parties & Claims 53. What is a counterclaim and a cross-claim, and whenshould they be granted?A: Counterclaim is a defendant suing a plaintiff who has sued them.Crossclaim is a defendant suing another defendant.Should be granted when they are arising from the same transactionor series of occurrences.(c) Daragh Carter, U.H.L.C.
55Multiple Parties & Claims 54. Explain what an impleader is.A: Impleader is used by a defendant against a 3rd party defendant.The original defendant wants to hold the 3rd party defendant assecondarily liable to them, in the event that they are held liable tothe plaintiff.(c) Daragh Carter, U.H.L.C.
56Multiple Parties & Claims 54(a). Help in understanding impleader:A: Think of impleader as a 3 car accident. In a line of cars, C crashes into the backof B, who crashes into the back of A. A will sue B for the damages caused, so Bwould then implead C and being secondarily liable to him in the event he is heldliable to A. Remember: B would have to say C is liable to him and not to A.(c) Daragh Carter, U.H.L.C.
57Multiple Parties & Claims 55. What is joinder?A: Multiple plaintiffs or defendants joining together in a singleaction. Each individual is asserting a right arising out of the sametransaction or occurrence and based on the same question of lawor fact.(c) Daragh Carter, U.H.L.C.
58Multiple Parties & Claims 56. What is consolidation?A: Putting two or more cases together for convenience.(c) Daragh Carter, U.H.L.C.
59Multiple Parties & Claims 57. What is severance?A: Breaking one trial into two separate trials because it would beunfair/unjust to continue with a single trial.(c) Daragh Carter, U.H.L.C.
60Multiple Parties & Claims 58. What is separate trials?A: Breaking off a single issue and creating a separate trial on thatspecific issue. (Example: Aquaslide – who made the slide?)(c) Daragh Carter, U.H.L.C.
61Multiple Parties & Claims 59. What is intervention?A: When a party wishes to enter a suit in progress because theybelieve they have a right that will be impaired if they are not a party.(c) Daragh Carter, U.H.L.C.
62Multiple Parties & Claims 60. What is interpleader and how does it operate?A: Interpleader is used by a defendant facing inconsistentclaims from multiple plaintiffs. The interpleader causes the plaintiffsto litigate out their differences in court to decide who is entitled torecover. The defendant was use an injunction to enjoin the plaintiffsagainst filing suit on this issue outside the interplead suit.(c) Daragh Carter, U.H.L.C.
63Multiple Parties & Claims 61. Name the 4 prerequisites for a class action law suit andexplain each.A: (1) Numerosity: Plaintiffs too numerous to join in one suit.(2) Commonality: Ps present a common question of law or fact.(3) Typicality: Representative classes claims are typical of the claimsof the class as a whole.(4) Adequacy of Representation: Representative parties must be ableto adequately/competently represent interests of class as a whole.(c) Daragh Carter, U.H.L.C.
64Multiple Parties & Claims 62. What 4 factor test is used to determine if a type C class action(Common questions predominate/class action superior means ofManaging case) is maintainable?A: (1) Class members interests in controlling their own action.(2) Other pending litigation.(3) Appropriateness of the forum.(4) Manageability of the class action.NOTE: A hearing is held as soon as possible to determine if theclass action can be certified. Those that are tend to settle faster.(c) Daragh Carter, U.H.L.C.
65Discovery A: (1)Work Product. (2) Privileged (3) Protective Order 63. Name the 5 elements Crump broke the discovery rule into.A: (1)Work Product.(2) Privileged(3) Protective Order(4) Relevant(5) Limits(c) Daragh Carter, U.H.L.C.
66Discovery64. What does “relevant” mean, for the purposes of discovery?A: Relevant means “Reasonably calculated to lead to admissible evidence”.(c) Daragh Carter, U.H.L.C.
67Discovery 65. What is “Work product” and “opinion work product”? A: Work product is “materials prepared in anticipation of litigationby a party or its representative”.Crump calls it “litigation preparation materials”.Opinion work product is absolutely protected. Typically refers to anattorney’s case strategy notes (e.g. written list of issues in the case).(c) Daragh Carter, U.H.L.C.
68Discovery66. What is the standard for the escape valve from work productbeing protected from disclosure?A: The side seeking discovery of work product must showundue hardship or substantial need.(c) Daragh Carter, U.H.L.C.
69Discovery67. Experts specially retained and expected to testify and expertswho are specially retained but not expected to testify. Discoverable?A: Those expected to testify ARE discoverable. Those not expectedto testify normally are not discoverable.(c) Daragh Carter, U.H.L.C.
70Discovery68. Experts informally consulted and experts consulted for purposesunrelated to the litigation. Discoverable?A: Experts informally consulted are not discoverable; the rules don’tsay this, but a case Crump has us read said so. Experts consulted fora matter not related to the litigation are fully discoverable.(c) Daragh Carter, U.H.L.C.
71Discovery69. What test does a judge apply in deciding on a protective order?A: The balance beam test, weighing the potential harm caused byallowing discovery versus the potential “benefit” of allowing it.(c) Daragh Carter, U.H.L.C.
72Discovery 70. Give some examples of what a judge might do in making a protective order.A: Examples include: not be discovered, discovered by a differentmeans, that trade secrets not be revealed, confidentiality agreement.(c) Daragh Carter, U.H.L.C.
73Discovery71. What does “subpoena duces tecum” mean, and who is it for?A: It means “bring with you” and is used for non-parties and itoperates to make them produce discoverable material.Note: Under amended rule 45, the non-party can just send the stuff in.(c) Daragh Carter, U.H.L.C.
74Discovery 72. What is the deposition funnel sequence? A: The deposing counsel has the witness narrate what happenedwithout interrupting them, then narrows the issues as time progresses.(c) Daragh Carter, U.H.L.C.
75Discovery 73. What must be disclosed under self-initiated disclosures? A: (1) The names and addresses of parties and witnesses likely tohave discoverable information (2) Documents likely to havediscoverable info (3) Relevant insurance policies (4) Damagecalculations.(c) Daragh Carter, U.H.L.C.
76Discovery 74. What does the duty to supplement require and when? A: Duty to supplement requires a party to inform the other sidewhen it discovers that testimony is incomplete or incorrect.(c) Daragh Carter, U.H.L.C.
77Discovery 75. When can you use a deposition in federal court? Bonus point: what about in Texas?A: (1) To impeach a witness on the stand(2) For completeness – if the other side uses part of the deposition(3) When the defendant is a corporation(4) Witness unavailable: dead, 100+ miles away, illnessIn Texas courts an attorney has free use of the deposition.(c) Daragh Carter, U.H.L.C.
78Discovery 76. What is “pushing”? A: A type of discovery abuse that uses heavy-handed techniquesto create a burden, e.g. asking for same documents twice.(c) Daragh Carter, U.H.L.C.
79Discovery 77. What is “tripping”? A: Unnecessarily hindering the discovery of relevant, non-privilegedInformation, e.g. by hiding documents, destroying evidence, etc.(c) Daragh Carter, U.H.L.C.
80Discovery78. When are merit sanctions applied? Give some examples of thetypes of sanctions possible.A: Merit sanctions are for “Gross negligence” or “wilfullness”.Examples include: establish facts, preclude facts, establish/precludeorder, dismissal, contempt.(c) Daragh Carter, U.H.L.C.
81Discovery 79. List the 5 step discovery plan Crump provided. A: (1) Request for admissions or denials(2) Written interrogatories.(3) Request to produce/inspect.(4) Oral deposition(s).(5) Request for admissions or denials.(c) Daragh Carter, U.H.L.C.
82Discovery80. How many written interrogatories are permitted under FRCP?A: 25.(c) Daragh Carter, U.H.L.C.
83Discovery 81. How many oral depositions are permitted under FRCP? A: 10 (but you can ask the judge to do more if you need them).(c) Daragh Carter, U.H.L.C.
84Pretrial Orders 82. What is the purpose of a pre-trial conference? A: To sharpen the issues and to try and dispose of the case efficiently,including discussion of settlement, mediation and requested jurycharges.(c) Daragh Carter, U.H.L.C.
85Pretrial Orders 83. Who usually drafts the pre-trial order? A: The plaintiff. Note that this can be a big burden if there is a lot ofevidence to catalog (e.g. big case, thousand of documents).(c) Daragh Carter, U.H.L.C.
86Pretrial Orders84. Under what limited circumstance can a pre-trial order be set aside?A: When it is necessary to prevent manifest injustice.(c) Daragh Carter, U.H.L.C.
87Life As a Litigator85. List off at least 6 points that you would write on if this came up.A: (1) Time management is key(2) Spend a lot on your office(3) Use a double entry calendar system(4) Billing in 6 minute increments drives people nuts.(5) Try to be the executive monkey.(6) Develop a business plan (or know your firms business plan)(7) Ignore Rambo opponents.(8) Law school ill-prepares you for losing cases(c) Daragh Carter, U.H.L.C.
88Summary Judgment 86. What is the standard for summary judgment? A: There must be no genuine issue of material fact.(c) Daragh Carter, U.H.L.C.
89Summary Judgment 87. Name the 3 ways to get a summary judgment? A: (1) Undisputed showing of an affirmative defense.(2) Disprove a required element of plaintiffs claim(3) Use discovery to reveal all of their evidence to establish that theystill cannot prove a requirement of their claim.(c) Daragh Carter, U.H.L.C.
90Summary Judgment88. Under what circumstances can a default judgment be set aside?A: For mistake or excusable neglect. This motion must be madewithin 1 year of judgment being entered.(c) Daragh Carter, U.H.L.C.
91Trial89. In what types of cases is a person entitled to a jury trial? When areThey not entitled to one?A: Jury trial is available if the action arises under common law and theamount in controversy exceeds $20.No right to a jury trial if it is an equitable action.(c) Daragh Carter, U.H.L.C.
92Trial 90. Can you receive a jury trial for a “mixed claim” – one with common law and an equitable element?A: Yes. It depends what the real substance/main part of the claim is.(c) Daragh Carter, U.H.L.C.
93Trial 91. How long do you have to demand a jury trial and what happens if you forget?A: Must be demanded within 10 days of the filing of the lastresponsive pleading otherwise the right is waived.(c) Daragh Carter, U.H.L.C.
94Trial 92. If you wish to challenge the jury array because you think a cognizable group (e.g. Asians) is excluded, when must you do so?A: Must be challenged before examination of the jury beginsor within 7 days of when the defect should have been detected.(c) Daragh Carter, U.H.L.C.
95Trial 93. Challenges for cause and peremptories? How many, and what are they for?A: Challenges for cause – unlimited. Used to exclude jurors withunavoidable bias toward the parties or the subject matter.Peremptories – 3. Used to exclude jurors for whatever attorney wantsbut must not be based on race or gender.(c) Daragh Carter, U.H.L.C.
96Trial 94. You think your opponent used peremptories to exclude only black women because of their race & gender? How do you goabout objecting to their strikes?A: Use statistical inference (3 of 3 are black women) to raise theissue of improper strikes. Opponent must then provide a neutralexplanation for their strikes.(c) Daragh Carter, U.H.L.C.
97Trial 95. Under FRCP, who may conduct voir dire examination? A: The judge can let the attorneys do it all, let them do some and hedoes some, or judge can do it all. If the judge does it all, he must takewritten suggestions for questions from counsels.(c) Daragh Carter, U.H.L.C.
98Trial 96. List 5 tactics employed during voir dire examination. A: (1) Introduce legal concepts.(2) Ingratiation (“I’m David, my opponent is Goliath”)(3) Gain commitment(4) Inject prejudice (illegal)(5) Inoculation (against harmful facts)(c) Daragh Carter, U.H.L.C.
99Trial 97. What is “invoking the rule”? A: It causes all of the witnesses to have to leave the court room sothey don’t hear other witness testimony.(c) Daragh Carter, U.H.L.C.
100Trial 98. Exclusionary rule – what things are excluded? A: (1) When prejudice/confusion outweighs benefit to the case.(2) Settlement offers(3) Insurance information(4) Hearsay(c) Daragh Carter, U.H.L.C.
101Trial 99. What is hearsay? List some exceptions to hearsay. A: Hearsay is a statement by a person not now testifying offeredto prove the truth of a fact now asserted.Exceptions: Excited utterances, business records, public records,government reports.(c) Daragh Carter, U.H.L.C.
102Trial 100. What 4 steps should an attorney take during jury argument if the jurors are getting special interrogatories?A: (1) Read the interrogatories to the jurors(2) Translate them(3) Marshal the evidence(4) Give the jury a canned answer to each interrogatory.(c) Daragh Carter, U.H.L.C.
103Trial 101. Name one disadvantage and one advantage to using special interrogatories versus a general charge.A: Advantage: Jury decides with their head not their heart.Disadvantage: Attorneys will bicker over the wording.(c) Daragh Carter, U.H.L.C.
104Trial 102. If there is a Rule 49 conflict (jury’s answers to special interrogatories conflict), what 3 things can the judge do to fix it?A: (1) Send the jury back for more deliberations.(2) Order a new trial(3) A judgment can be entered on the special verdicts as they are.(c) Daragh Carter, U.H.L.C.
105Post-Trial Motions103. Judgment as a matter of law is the “new name” for whattwo motions?A: Directed verdict and Judgment n.o.v. (notwithstanding theverdict).(c) Daragh Carter, U.H.L.C.
106Post-Trial Motions104. Recite the standard for judgment as a matter of law.A: Once the non-moving party has been fully heard on an issue, construing thefacts in the most favorable light to the plaintiff, if there is no legally sufficientevidentiary basis for a reasonably jury to find for the non-moving party on the issue,then judgment as a matter of law can be granted.Note: This is a mechanical standard. Judge has no discretion, you get it or you don’t.(c) Daragh Carter, U.H.L.C.
107Post-Trial Motions105. What must an attorney do to preserve the option to move forjudgment as a matter of law after the verdict?A: You must move for judgment as a matter of law before the verdictin order to raise sufficiency of the evidence after the verdict.(c) Daragh Carter, U.H.L.C.
108Post-Trial Motions106. Name some examples of circumstances where a judge mightgrant a motion for a new trial?A: (1) Trial or pre-trial error(2) Error in the jury charge(3) Inadmissible evidence was let in(4) Incorrect rulings during jury selection(5) Showing of newly discovered evidence that could not have beendiscovered with due diligence.(6) Misconduct of jurors or attorneys(c) Daragh Carter, U.H.L.C.
109Post-Trial Motions107. What is the standard for when the judge is weighing theevidence against the jury’s verdict in deciding whether to grant anew trial?A: The jury’s finding must be against the great weight of the evidence(not the “preponderance” of the evidence).(c) Daragh Carter, U.H.L.C.
110Post-Trial Motions108. Relief from judgment: the judge’s pen slips and he adds a zeroto the damages amount. When can this be cured?A: Clerical errors can be cured any time.(c) Daragh Carter, U.H.L.C.
111Post-Trial Motions109. Give some examples of when relief from final judgment canbe granted.A: (1) Mistake or excusable neglect.(2) Newly discovered evidence (must not have been able to discoverwith due diligence before).(3) Fraud or misconduct.Note: The relief motion must be raised within 1 year of judgment.(c) Daragh Carter, U.H.L.C.
112Appeals (Mult. Choice Only) 110. What is the standard for an appeals court to overrule a judge’sfact finding?A: They will only overrule the trial court’s fact finding if it isclearly erroneous. If there are two possible plausible inferences, theywon’t second guess the trial judge and overrule him.(c) Daragh Carter, U.H.L.C.
113Appeals (Mult. Choice Only) 111. What’s the time limit for filing a notice of appeal?A: 30 days. Court can grant an additional 30 for good cause.(c) Daragh Carter, U.H.L.C.
114Appeals (Mult. Choice Only) 112. What’s a supersedeas bond?A: It’s money a party who has had a judgment entered againstthem put up to show that they are good for the judgment. It’s used tostay the judgment until after the appeal.(c) Daragh Carter, U.H.L.C.
115Appeals (Mult. Choice Only) 113. If the clerk fails to notify an attorney of entry of a judgment,does this affect the time he has to appeal?A: No. Just because the clerk didn’t tell you, that doesn’t alter the30 day time limit.(c) Daragh Carter, U.H.L.C.
116Appeals (Mult. Choice Only) 114. What is the final judgment rule, and what is the escape valve?A: Only final judgments are appealable. Final as to all parties andclaims, so if one of two claims is dismissed, that’s not a final judgment.Escape valve: Rule 54(b) partial judgment that disposes of a claimcompletely.(c) Daragh Carter, U.H.L.C.
117Appeals (Mult. Choice Only) 115. What is mandamus?A: An equitable remedy where the appeals court reviews a problemissue in a case, e.g. the judge is going to allow discovery of materialunder client/attorney privilege.(c) Daragh Carter, U.H.L.C.