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(c) 2002. Daragh Carter, U.H.L.C. Instructions: Click on Slide show at the top of the screen and select View Show. Use the down arrow (cursor key) to.

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Presentation on theme: "(c) 2002. Daragh Carter, U.H.L.C. Instructions: Click on Slide show at the top of the screen and select View Show. Use the down arrow (cursor key) to."— Presentation transcript:

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2 (c) Daragh Carter, U.H.L.C. Instructions: Click on Slide show at the top of the screen and select View Show. Use the down arrow (cursor key) to flip through the slides. The question slides on screen, then the answer slides in below it (keep hitting the down arrow until the full answer is shown).

3 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 1. Consideration of what two factors is necessary for a proper examination of personal jurisdiction? A: Due Process Requirements and State Long Arm Statute

4 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 2. What is tag jurisdiction? A: Its when the defendant entered the forum state and was personally served with the complaint.

5 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 3. Name, but dont fully explain, the 7 tests for personal 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

6 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 4. Recite the Minimum Contacts Test. A: Due process requires that the defendant have sufficient contacts with the forum state such that jurisdiction is consistent with traditional notions of fair play and substantial justice.

7 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 5. Recite the Specific Jurisdiction Test. A: Due process requires that the litigation be arising out of or related to the defendants contact(s) with the forum state.

8 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 6. Recite the General Jurisdiction Test. A: Due process requires that if the litigation is unrelated to the defendants contact(s) with the forum state that the defendant have systematic and continuous contacts with the forum state.

9 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 7. Recite the Purposeful Availment Test. A: Due process requires that the defendant have purposefully availed himself/herself/itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.

10 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 8. Recite the Reasonable Anticipation Test. A: Due process requires that the defendants contacts with the forum state be such that the defendant could reasonably anticipate being haled into court there.

11 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 9. Recite the Commercial Defendant/Compelling Balance test. A: Originates from Justice Brennan in Burger King. The scales should be tipped against a commercial defendant such that they must make a compelling showing of convenience factors in order to defeat jurisdiction.

12 (c) Daragh Carter, U.H.L.C. Personal 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 the forum states long-arm statute. Texas long-arm statute is a limits of due process long-arm Statute: so long as jurisdiction is consistent with due process, then jurisdiction is appropriate.

13 (c) Daragh Carter, U.H.L.C. Personal 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 between the defendant, the forum and the litigation. The defendant must have sufficient minimum contacts with the forum state, and the litigation must be related to those contact(s).

14 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 12. Name two ways to challenge personal jurisdiction and any risks associated with them. A: (1) Dont appear and attack jurisdiction when the other sides moves for a judgment in your state, but: risky because you have lost the chance to argue the case on its merits. (2) Make a special appearance (must be the first thing you do, otherwise appearing is an automatic consent to jurisdiction). In Federal court this would be achieved with a Motion to Dismiss (which can be filed with an answer).

15 (c) Daragh Carter, U.H.L.C. Personal Jurisdiction 13. What is the due process requirement as regards notice? A: Due process requires that notice be reasonably calculated to reach the defendant.

16 (c) Daragh Carter, U.H.L.C. Service of Process 14. What are the 4 ways to correctly serve an individual (under the FRCP)? A: (1) Personal in-hand service (2) Leave it with the defendants dwelling or usual place of abode, with a person of suitable age and discretion, then residing therein (3) Serve it upon their agent (4) Per state law methods.

17 (c) Daragh Carter, U.H.L.C. Service of Process 15. 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 general or managing agent (3) Serve an agent authorized by appointment or law.

18 (c) Daragh Carter, U.H.L.C. Service of Process 16. Name Texas rule for substituted service, and briefly explain how it works. A: Texas Rule 106 allows a judge to authorize any method of service that is reasonably calculated to result in effective service on the defendant, when usual methods of service have failed.

19 (c) Daragh Carter, U.H.L.C. Service of Process 17. Bonus Point: What methods of service does Texas state law permit? A: (1) Personal In-Hand Service (2) Certified Mail.

20 (c) Daragh Carter, U.H.L.C. Service of Process 18. Applying Texas state law, what steps are involved in serving an 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 filestamp the complaint and issue a summons, then send that certified mail to the Sec. Of State who is legally obliged to serve it upon the Defendant by sending it certified mail to their address. The Sec. Of State would then attach the return mail receipt to the summons and complaint along with a certificate of service, and send these documents back to the attorney. Service complete!

21 (c) Daragh Carter, U.H.L.C. Venue 19. In a diversity case, where is proper venue? A: 1 st : Where all defendants reside. If not that then (2) where the substantial part of the acts or omissions took place. If not that then (3) where the Defendant is subject to personal jurisdiction or where the defendant can be found.

22 (c) Daragh Carter, U.H.L.C. Venue 20. For the purposes of Venue, where does a corporation reside? A: For venue purposes, a corporation resides wherever it is subject to personal jurisdiction.

23 (c) Daragh Carter, U.H.L.C. Venue 21. Recite the FRCP transfer of venue rule? (Essentially the circumstances under which a court may transfer a case to another court. A: For the convenience of parties and witnesses, and in the interests of justice, a district court may transfer a case to the district where it might 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.

24 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 22. There are 3 types of subject matter jurisdiction. Name (but dont explain them). A: (1) Federal Question Arising Under jurisdiction (2) Diversity Jurisdiction (3) Supplemental Jurisdiction.

25 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 23. What is required in order for Federal Question jurisdiction to exist? A: The claim must be arising under the constitution, laws and treatises of the United States.

26 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 24. Prof. Crump sang us a song to get us to remember something specific about federal question jurisdiction. The name of the song says it all. What was it? A: Its got to be in the claim. In order for there to be Federal Question jurisdiction, the federal question must be in the plaintiffs claim. A federal defense (or anticipation of a federal defense) just isnt enough!

27 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 25. Name and briefly explain the two tests for Federal Question Jurisdiction. A: (1) The Creation test: Does Federal law create the claim? (2) Ingredient Test: Is federal law a substantial ingredient in the claim?

28 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 26. Name the requirements for Diversity Jurisdiction. A: The plaintiff(s) and defendant(s) must be citizens of different states (or citizens of a US state and a foreign state) and the amount in controversy must exceed $75,000 exclusive of interest and costs.

29 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 27. For the purposes of diversity jurisdiction, does citizenship mean residence or domicile? A: Domicile. Just because youre living there temporarily doesnt necessarily make you a citizen. [ The case we read involved out-of-state students in Louisiana for a year studying.]

30 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 28. For the purposes of diversity jurisdiction, where does a corporation have its citizenship? A: A corporation can have multiple citizenships, including any state in which it is incorporated and where it has its principle place of business.

31 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 29. Name and briefly explain the two tests for a corporations principle place of business. A: The Nerve Test – where the corporation has its nerve center, which is essentially it corporate HQ. The Muscle Test – where the corporation conducts the bulk of its activities.

32 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 30. Recite the circumstance when supplemental jurisdiction can be used to hear a claim that a Federal court does not normally have jurisdiction over. A: A court may hear a non-jurisdictional supplemental claim when it is so related to the original jurisdictional claim that they form part of the same case or controversy.

33 (c) Daragh Carter, U.H.L.C. Subject 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 state law (2) When the original claim has been dismissed early in the case (3) When the supplemental claim predominates over the original claim (4) In other exceptional circumstances.

34 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 32. When is a claim subject to removal? A: When the federal district court would have had original jurisdiction over the claim.

35 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 33. Name the special exception that would prevent a defendant removing a claim from a state court to a federal district court. A: If the defendant is a local defendant, i.e. they are a citizen of the forum state. Local defendants cannot remove from their own state court to a federal court because they do not face any local bias, hence have no grounds for removal.

36 (c) Daragh Carter, U.H.L.C. Subject Matter Jurisdiction 34. What is the time limit for a defendant to remove a claim, and what is the time limit for a plaintiff to remand the claim back? A: The defendant must remove the claim within 30 days of learning that it is removable. The plaintiff then has 30 days to file for remand. For a diversity case, the time limit for removal is 1 year.

37 (c) Daragh Carter, U.H.L.C. The Erie Doctrine 35. Name, but dont explain, the 5 tests used to determine whether state substantive law or federal procedural law should be applied in a given case. A: (1) Deference to controlling federal rule test (2) Outcome Determinative Test (3) Definitive Outcome Determinative Test (4) Balancing State and Federal Interests Test (5) Policies of Erie Test.

38 (c) Daragh Carter, U.H.L.C. The Erie Doctrine 36. Recite the Deference to controlling federal rule test. A: (1) If there is a controlling federal rule on point, and it is constitutional, it will be considered procedural and applied. NOTE: This is the controlling test in the analysis!

39 (c) Daragh Carter, U.H.L.C. The Erie Doctrine 37. Recite the outcome determinative test. A: If the application of federal or state law will determine the outcome of the case, then state substantive law should be applied.

40 (c) Daragh Carter, U.H.L.C. The Erie Doctrine 38. Recite the Definitive outcome determinative test. A: Essentially a stronger version of the previous test, this test states that if the application of federal or state law will absolutely, definitively determine the outcome of the case, then state law will be applied.

41 (c) Daragh Carter, U.H.L.C. The Erie Doctrine 39. Recite the balancing state/federal interests test. A: Depending upon whether the forum state whose law would be applied or federal law has a particularly strong interest in having their law applied to decide the case, the law with the strongest interest will be applied.

42 (c) Daragh Carter, U.H.L.C. The Erie Doctrine 40. Recite the policies of Erie Test. A: If the application of federal law would result in either irrational differences in decisions between state and federal courts or would increase forum shopping, then the law of the forum state will be applied.

43 (c) Daragh Carter, U.H.L.C. The Erie Doctrine 40. Crump put his hand inside Rehnquist and spoke in a silly voice in class to teach us what principle about choice of law situations? A: That in a choice of law situation, a federal judge should act as a Ventriloquists dummy to a state judge, and should apply the same choice of law principles that a state judge would apply.

44 (c) Daragh Carter, U.H.L.C. The 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 with the most significant relationship to the parties or event.

45 (c) Daragh Carter, U.H.L.C. Pleadings 43. What is a variance? A: A variance occurs when you plead one thing, but prove something else. The case we discussed in class involved a lady injured when plaster fell from the ceiling of the movie theater and scared her causing her to kick the seat in front of her, injuring her leg. She alleged a leaky roof, but it turned out it was a flooded bathroom in a room above.

46 (c) Daragh Carter, U.H.L.C. Pleadings 44. What is the standard for dismissal of a federal complaint? A: Assume everything that the plaintiff alleges is true, but the law Says they still cant win anything, then the complaint it subject to dismissal.

47 (c) Daragh Carter, U.H.L.C. Pleadings 45. What is the standard for specificity of a federal complaint? A: A claim must give a short and plain statement that gives the defendant reasonable notice of the claim.

48 (c) Daragh Carter, U.H.L.C. Pleadings 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. youve got to set them out in your complaint). A few examples are: lost wages, attorney fees, pain and suffering.

49 (c) Daragh Carter, U.H.L.C. Pleadings 47. Do the FRCP permit a general denial? A: No, the defendant must parse the complaint and answer each numbered allegation.

50 (c) Daragh Carter, U.H.L.C. Pleadings 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 as harassment (2) that the claim is founded upon existing law, or there is a non-frivolous argument for a change to the law (3) that the claim is based upon a reasonable investigation (4) that the claim has evidentiary support (or it will have after discovery).

51 (c) Daragh Carter, U.H.L.C. Pleadings 49. Under the latest (post-1993) version of Rule 11, how would an attorney seek sanctions against opposing counsel? A: Draw up the motion and serve it on the other side. The other side then has a 21 day safe harbor in which to amend or withdraw the complaint. If they dont cure then file for sanctions with the court. Side note: Sanctions are not mandatory under Rule 11, and the attorney is required to conduct a reasonable investigation.

52 (c) Daragh Carter, U.H.L.C. Pleadings 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 dont yet have evidentiary support.

53 (c) Daragh Carter, U.H.L.C. Pleadings 51. Under what circumstances may an attorney amend a complaint? A: Once as a matter of course early on, before any responsive pleadings (I.e. an answer) is filed. After that with written permission of the other side or with the Courts permission.

54 (c) Daragh Carter, U.H.L.C. Pleadings 52. When does the FRCP say that permission to amend should be given? A: Permission to amend should be freely given as justice so requires. Note: Crump has said not to be mislead by this. Judges have wide latitude to refuse amendments, particularly if there have been a lot of prior amendments or its late in the case.

55 (c) Daragh Carter, U.H.L.C. Multiple Parties & Claims 53. What is a counterclaim and a cross-claim, and when should 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 transaction or series of occurrences.

56 (c) Daragh Carter, U.H.L.C. Multiple Parties & Claims 54. Explain what an impleader is. A: Impleader is used by a defendant against a 3 rd party defendant. The original defendant wants to hold the 3 rd party defendant as secondarily liable to them, in the event that they are held liable to the plaintiff.

57 (c) Daragh Carter, U.H.L.C. Multiple 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 back of B, who crashes into the back of A. A will sue B for the damages caused, so B would then implead C and being secondarily liable to him in the event he is held liable to A. Remember: B would have to say C is liable to him and not to A.

58 (c) Daragh Carter, U.H.L.C. Multiple Parties & Claims 55. What is joinder? A: Multiple plaintiffs or defendants joining together in a single action. Each individual is asserting a right arising out of the same transaction or occurrence and based on the same question of law or fact.

59 (c) Daragh Carter, U.H.L.C. Multiple Parties & Claims 56. What is consolidation? A: Putting two or more cases together for convenience.

60 (c) Daragh Carter, U.H.L.C. Multiple Parties & Claims 57. What is severance? A: Breaking one trial into two separate trials because it would be unfair/unjust to continue with a single trial.

61 (c) Daragh Carter, U.H.L.C. Multiple Parties & Claims 58. What is separate trials? A: Breaking off a single issue and creating a separate trial on that specific issue. (Example: Aquaslide – who made the slide?)

62 (c) Daragh Carter, U.H.L.C. Multiple Parties & Claims 59. What is intervention? A: When a party wishes to enter a suit in progress because they believe they have a right that will be impaired if they are not a party.

63 (c) Daragh Carter, U.H.L.C. Multiple Parties & Claims 60. What is interpleader and how does it operate? A: Interpleader is used by a defendant facing inconsistent claims from multiple plaintiffs. The interpleader causes the plaintiffs to litigate out their differences in court to decide who is entitled to recover. The defendant was use an injunction to enjoin the plaintiffs against filing suit on this issue outside the interplead suit.

64 (c) Daragh Carter, U.H.L.C. Multiple Parties & Claims 61. Name the 4 prerequisites for a class action law suit and explain 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 claims of the class as a whole. (4) Adequacy of Representation: Representative parties must be able to adequately/competently represent interests of class as a whole.

65 (c) Daragh Carter, U.H.L.C. Multiple Parties & Claims 62. What 4 factor test is used to determine if a type C class action (Common questions predominate/class action superior means of Managing 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 the class action can be certified. Those that are tend to settle faster.

66 (c) Daragh Carter, U.H.L.C. Discovery 63. Name the 5 elements Crump broke the discovery rule into. A: (1)Work Product. (2) Privileged (3) Protective Order (4) Relevant (5) Limits

67 (c) Daragh Carter, U.H.L.C. Discovery 64. What does relevant mean, for the purposes of discovery? A : Relevant means Reasonably calculated to lead to admissible evidence.

68 (c) Daragh Carter, U.H.L.C. Discovery 65. What is Work product and opinion work product? A : Work product is materials prepared in anticipation of litigation by a party or its representative. Crump calls it litigation preparation materials. Opinion work product is absolutely protected. Typically refers to an attorneys case strategy notes (e.g. written list of issues in the case).

69 (c) Daragh Carter, U.H.L.C. Discovery 66. What is the standard for the escape valve from work product being protected from disclosure? A : The side seeking discovery of work product must show undue hardship or substantial need.

70 (c) Daragh Carter, U.H.L.C. Discovery 67. Experts specially retained and expected to testify and experts who are specially retained but not expected to testify. Discoverable? A : Those expected to testify ARE discoverable. Those not expected to testify normally are not discoverable.

71 (c) Daragh Carter, U.H.L.C. Discovery 68. Experts informally consulted and experts consulted for purposes unrelated to the litigation. Discoverable? A : Experts informally consulted are not discoverable; the rules dont say this, but a case Crump has us read said so. Experts consulted for a matter not related to the litigation are fully discoverable.

72 (c) Daragh Carter, U.H.L.C. Discovery 69. What test does a judge apply in deciding on a protective order? A : The balance beam test, weighing the potential harm caused by allowing discovery versus the potential benefit of allowing it.

73 (c) Daragh Carter, U.H.L.C. Discovery 70. Give some examples of what a judge might do in making a protective order. A : Examples include: not be discovered, discovered by a different means, that trade secrets not be revealed, confidentiality agreement.

74 (c) Daragh Carter, U.H.L.C. Discovery 71. What does subpoena duces tecum mean, and who is it for? A : It means bring with you and is used for non-parties and it operates to make them produce discoverable material. Note: Under amended rule 45, the non-party can just send the stuff in.

75 (c) Daragh Carter, U.H.L.C. Discovery 72. What is the deposition funnel sequence? A : The deposing counsel has the witness narrate what happened without interrupting them, then narrows the issues as time progresses.

76 (c) Daragh Carter, U.H.L.C. Discovery 73. What must be disclosed under self-initiated disclosures? A : (1) The names and addresses of parties and witnesses likely to have discoverable information (2) Documents likely to have discoverable info (3) Relevant insurance policies (4) Damage calculations.

77 (c) Daragh Carter, U.H.L.C. Discovery 74. What does the duty to supplement require and when? A : Duty to supplement requires a party to inform the other side when it discovers that testimony is incomplete or incorrect.

78 (c) Daragh Carter, U.H.L.C. Discovery 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, illness In Texas courts an attorney has free use of the deposition.

79 (c) Daragh Carter, U.H.L.C. Discovery 76. What is pushing? A : A type of discovery abuse that uses heavy-handed techniques to create a burden, e.g. asking for same documents twice.

80 (c) Daragh Carter, U.H.L.C. Discovery 77. What is tripping? A : Unnecessarily hindering the discovery of relevant, non-privileged Information, e.g. by hiding documents, destroying evidence, etc.

81 (c) Daragh Carter, U.H.L.C. Discovery 78. When are merit sanctions applied? Give some examples of the types of sanctions possible. A : Merit sanctions are for Gross negligence or wilfullness. Examples include: establish facts, preclude facts, establish/preclude order, dismissal, contempt.

82 (c) Daragh Carter, U.H.L.C. Discovery 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.

83 (c) Daragh Carter, U.H.L.C. Discovery 80. How many written interrogatories are permitted under FRCP? A : 25.

84 (c) Daragh Carter, U.H.L.C. Discovery 81. How many oral depositions are permitted under FRCP? A : 10 (but you can ask the judge to do more if you need them).

85 (c) Daragh Carter, U.H.L.C. Pretrial 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 jury charges.

86 (c) Daragh Carter, U.H.L.C. Pretrial 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 of evidence to catalog (e.g. big case, thousand of documents).

87 (c) Daragh Carter, U.H.L.C. Pretrial Orders 84. Under what limited circumstance can a pre-trial order be set aside? A : When it is necessary to prevent manifest injustice.

88 (c) Daragh Carter, U.H.L.C. Life As a Litigator 85. 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

89 (c) Daragh Carter, U.H.L.C. Summary Judgment 86. What is the standard for summary judgment? A : There must be no genuine issue of material fact.

90 (c) Daragh Carter, U.H.L.C. Summary 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 they still cannot prove a requirement of their claim.

91 (c) Daragh Carter, U.H.L.C. Summary Judgment 88. Under what circumstances can a default judgment be set aside? A : For mistake or excusable neglect. This motion must be made within 1 year of judgment being entered.

92 (c) Daragh Carter, U.H.L.C. Trial 89. In what types of cases is a person entitled to a jury trial? When are They not entitled to one? A : Jury trial is available if the action arises under common law and the amount in controversy exceeds $20. No right to a jury trial if it is an equitable action.

93 (c) Daragh Carter, U.H.L.C. Trial 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.

94 (c) Daragh Carter, U.H.L.C. Trial 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 last responsive pleading otherwise the right is waived.

95 (c) Daragh Carter, U.H.L.C. Trial 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 begins or within 7 days of when the defect should have been detected.

96 (c) Daragh Carter, U.H.L.C. Trial 93. Challenges for cause and peremptories? How many, and what are they for? A : Challenges for cause – unlimited. Used to exclude jurors with unavoidable bias toward the parties or the subject matter. Peremptories – 3. Used to exclude jurors for whatever attorney wants but must not be based on race or gender.

97 (c) Daragh Carter, U.H.L.C. Trial 94. You think your opponent used peremptories to exclude only black women because of their race & gender? How do you go about objecting to their strikes? A : Use statistical inference (3 of 3 are black women) to raise the issue of improper strikes. Opponent must then provide a neutral explanation for their strikes.

98 (c) Daragh Carter, U.H.L.C. Trial 95. Under FRCP, who may conduct voir dire examination? A : The judge can let the attorneys do it all, let them do some and he does some, or judge can do it all. If the judge does it all, he must take written suggestions for questions from counsels.

99 (c) Daragh Carter, U.H.L.C. Trial 96. List 5 tactics employed during voir dire examination. A : (1) Introduce legal concepts. (2) Ingratiation (Im David, my opponent is Goliath) (3) Gain commitment (4) Inject prejudice (illegal) (5) Inoculation (against harmful facts)

100 (c) Daragh Carter, U.H.L.C. Trial 97. What is invoking the rule? A : It causes all of the witnesses to have to leave the court room so they dont hear other witness testimony.

101 (c) Daragh Carter, U.H.L.C. Trial 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

102 (c) Daragh Carter, U.H.L.C. Trial 99. What is hearsay? List some exceptions to hearsay. A : Hearsay is a statement by a person not now testifying offered to prove the truth of a fact now asserted. Exceptions: Excited utterances, business records, public records, government reports.

103 (c) Daragh Carter, U.H.L.C. Trial 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.

104 (c) Daragh Carter, U.H.L.C. Trial 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.

105 (c) Daragh Carter, U.H.L.C. Trial 102. If there is a Rule 49 conflict (jurys 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.

106 (c) Daragh Carter, U.H.L.C. Post-Trial Motions 103. Judgment as a matter of law is the new name for what two motions? A : Directed verdict and Judgment n.o.v. (notwithstanding the verdict).

107 (c) Daragh Carter, U.H.L.C. Post-Trial Motions 104. Recite the standard for judgment as a matter of law. A : Once the non-moving party has been fully heard on an issue, construing the facts in the most favorable light to the plaintiff, if there is no legally sufficient evidentiary 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 dont.

108 (c) Daragh Carter, U.H.L.C. Post-Trial Motions 105. What must an attorney do to preserve the option to move for judgment as a matter of law after the verdict? A : You must move for judgment as a matter of law before the verdict in order to raise sufficiency of the evidence after the verdict.

109 (c) Daragh Carter, U.H.L.C. Post-Trial Motions 106. Name some examples of circumstances where a judge might grant 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 been discovered with due diligence. (6) Misconduct of jurors or attorneys

110 (c) Daragh Carter, U.H.L.C. Post-Trial Motions 107. What is the standard for when the judge is weighing the evidence against the jurys verdict in deciding whether to grant a new trial? A : The jurys finding must be against the great weight of the evidence (not the preponderance of the evidence).

111 (c) Daragh Carter, U.H.L.C. Post-Trial Motions 108. Relief from judgment: the judges pen slips and he adds a zero to the damages amount. When can this be cured? A : Clerical errors can be cured any time.

112 (c) Daragh Carter, U.H.L.C. Post-Trial Motions 109. Give some examples of when relief from final judgment can be granted. A : (1) Mistake or excusable neglect. (2) Newly discovered evidence (must not have been able to discover with due diligence before). (3) Fraud or misconduct. Note: The relief motion must be raised within 1 year of judgment.

113 (c) Daragh Carter, U.H.L.C. Appeals (Mult. Choice Only) 110. What is the standard for an appeals court to overrule a judges fact finding? A : They will only overrule the trial courts fact finding if it is clearly erroneous. If there are two possible plausible inferences, they wont second guess the trial judge and overrule him.

114 (c) Daragh Carter, U.H.L.C. Appeals (Mult. Choice Only) 111. Whats the time limit for filing a notice of appeal? A : 30 days. Court can grant an additional 30 for good cause.

115 (c) Daragh Carter, U.H.L.C. Appeals (Mult. Choice Only) 112. Whats a supersedeas bond? A : Its money a party who has had a judgment entered against them put up to show that they are good for the judgment. Its used to stay the judgment until after the appeal.

116 (c) Daragh Carter, U.H.L.C. Appeals (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 didnt tell you, that doesnt alter the 30 day time limit.

117 (c) Daragh Carter, U.H.L.C. Appeals (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 and claims, so if one of two claims is dismissed, thats not a final judgment. Escape valve: Rule 54(b) partial judgment that disposes of a claim completely.

118 (c) Daragh Carter, U.H.L.C. Appeals (Mult. Choice Only) 115. What is mandamus? A : An equitable remedy where the appeals court reviews a problem issue in a case, e.g. the judge is going to allow discovery of material under client/attorney privilege.

119 (c) Daragh Carter, U.H.L.C.


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