Instructions:

1
Civil Procedure 1 Review Questions
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).
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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
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Personal Jurisdiction
2. What is tag jurisdiction?
A Its when the defendant entered the forum
state and was personally served with the
complaint.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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).
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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).
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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.
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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.
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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.
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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.
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Service of Process
17. Bonus Point What methods of service does
Texas state law permit?
A (1) Personal In-Hand Service (2) Certified
Mail.
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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!
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Venue
19. In a diversity case, where is proper venue?
A 1st 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.
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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.
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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.
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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.
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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.
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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!
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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!
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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Pleadings
47. Do the FRCP permit a general denial?
A No, the defendant must parse the complaint
and answer each numbered allegation.
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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).
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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.
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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.
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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.
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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.
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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.
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Multiple 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 as secondarily
liable to them, in the event that they are held
liable to the plaintiff.
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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.
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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.
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Multiple Parties Claims
56. What is consolidation?
A Putting two or more cases together for
convenience.
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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.
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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?)
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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.
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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.
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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.
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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.
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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
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Discovery
64. What does relevant mean, for the purposes
of discovery?
A Relevant means Reasonably calculated to lead
to admissible evidence.
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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Discovery
77. What is tripping?
A Unnecessarily hindering the discovery of
relevant, non-privileged Information, e.g. by
hiding documents, destroying evidence, etc.
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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.
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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.
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Discovery
80. How many written interrogatories are
permitted under FRCP?
A 25.
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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).
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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.
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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).
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Pretrial Orders
84. Under what limited circumstance can a
pre-trial order be set aside?
A When it is necessary to prevent manifest
injustice.
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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
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Summary Judgment
86. What is the standard for summary judgment?
A There must be no genuine issue of material
fact.
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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.
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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.
91
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.
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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.
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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.
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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.
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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.
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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.
97
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.
98
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)
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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.
100
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
101
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.
102
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.
103
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.
104
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.
105
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).
106
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.
107
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.
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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
109
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).
110
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.
111
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.
112
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.
113
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.
114
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.
115
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.
116
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.
117
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.
118
You's done.