TX Trial & Appellate Practice Questions -
Carlson And Answers Graded A+!!!
Determine what pretrial action is appropriate in the following situation to obtain favorable trial
court rulings or other action and to preserve complaints for appellate review.
(1) Assume that you represent a plaintiff in a large metropolitan county. Although the case has
only recently been filed in the district court, as a result of the failure of one of your associates to
appear at a regularly scheduled docket call, the case has been dismissed for want of
prosecution. What actions must you take to reinstate the case on the district court's docket? -
ANS File a verified motion to reinstate within 30 days after the date the order of dismissal
was signed. Motion must set forth the grounds of reinstatement. Serve the motion on the other
side, and then prove up your grounds at a hearing.
Rule 165a - trial court SHALL reinstate the case if it finds that the failure to act was not
intentional nor the result of conscious indifference, but instead accident or mistake or otherwise
reasonably explained. Very liberal standard to meet to get your case reinstated.
Generally the TXSC does not support disposing cases on procedural grounds without giving
opportunity to explain
(2) Assume that you are a litigation lawyer practicing in Dallas County. You have been hired to
handle the trial of an action filed in another Texas county. The case has been set for trial on the
district court's jury docket for the second week in October. Assuming that you represent a
plaintiff, what actions should you take to protect the October trial setting? - ANS Look at the
local rules and see what's required. Might be appearing at docket call, might not have to do
anything
(3) Assume that you represent the defendant in the case described in the preceding question,
under what circumstances will you be able to obtain a continuance and what procedures must
be followed in seeking a continuance of the trial setting? - ANS It's a lot.
251 - must file defense prior to any continuance application.
Motion for continuance must be for sufficient cause supported by affidavit, or consent of the
parties, or operation of law.
252, 253, or 254 depending on your grounds.
,*RULE 251. CONTINUANCE* - No application for a continuance shall be heard before the
defendant files his defense, nor shall any continuance be granted except for sufficient cause
supported by affidavit, or by consent of the parties, or by operation of law.
If the ground of CONTINUANCE be the *want of testimony*, the party applying therefor shall -
ANS 1) make affidavit that
2) such testimony is material,
3) showing the materiality thereof, and
4) that he has used due diligence to procure such testimony, stating such diligence, and
5) the cause of failure, if known; that such testimony cannot be procured from any other source;
and,
6) it if be for the absence of a witness, he shall state the name and residence of the witness,
and what he expects to prove by him; and
7) also state that the continuance is not sought for delay only, but that justice may be done;
provided that, on a first application for a continuance, it shall not be necessary to show that the
absent testimony cannot be procured from any other source.
The failure to obtain the deposition of any witness residing within 100 miles of the courthouse or
the county in which the suit is pending shall not be regarded as want of diligence when diligence
has been used to secure the personal attendance of such witness under the rules of law, unless
by reason of age, infirmity or sickness, or official duty, the witness will be unable to attend the
court, or unless such witness is about to leave, or has left, the State or county in which the suit
is pending and will not probably be present at the trial.
RULE 253. ABSENCE OF COUNSEL AS GROUND FOR CONTINUANCE Except as provided
elsewhere in these rules, absence of counsel ... - ANS will not be good cause for a
continuance or postponement of the cause when called for trial, except it be allowed in the
discretion of the court, upon cause shown or upon matters within the knowledge or information
of the judge to be stated on the record.
Jury trial right?
(1) An action for specific performance of an earnest money contract for the sale of land? - ANS
Yes, this is a "cause" and there are fact issues. Right to jury trial
Jury trial right?
(2) An action for compensatory damages against a liability insurer based on the defendant's bad
faith violation of provisions of the Insurance Code? - ANS Yes, this is a cause. Similar
claims that weren't statutory were tried to a jury at common law, so protected by the TXC Bill of
Rights.
,Jury trial right?
(3) An appeal of an administrative ruling of the Texas Liquor Control Board revoking a liquor
license brought in the district court after exhaustion of administrative remedies? - ANS No
right to a trial by jury because appeals of administrative proceedings are not "causes" under the
juridical article.
Which civil cases are exempt from jury trials because they are not a "cause"?
Decided on a case-by-case basis:
-civil contempt proceedings,
-election contests,
-habeas corpus proceedings for the custody of minor children,
-suit for removal of a sheriff,
-appeals in administrative proceedings,
and others.
Have a right to jury trial in all other causes.
Jury trial right?
(4) An action for divorce and division of matrimonial property coupled with a suit affecting the
parent-child relationship for child custody and child support? - ANS Right to jury trial in
divorce cases exists by statute and under the Bill of Rights provision at common law.
However, there is NO right jury trial in child support litigation, BUT there is a right jury in most
child custody cases.
When the jury's verdict is merely advisory, as in the determination of equitable division of
matrimonial property, or child support, there is no right to compel the trial judge to submit the
matter to a jury.
In Winsett v. Edgar, the Fort Worth Court of Appeals held that there is no right to jury trial in an
action for a protective order in a family violence case.
Jury trial right?
(5) A trespass to try title action brought to settle a boundary dispute between adjoining
landowners? - ANS Yes, this is a cause, so there is a right to a trial by jury.
Strategically good idea to have jury if:
, (1) You represent the defendant, a publicly held corporation, which the government has charged
with water pollution and seeks civil penalties. - ANS No, jurors have to drink water. Likely to
be biased against D.
unless your in really small county where the D is the primary employer.
Strategically good idea to have jury if:
(2) You represent the heirs of a deceased man whose body was embalmed by a funeral home in
contravention of the heirs' instructions and contrary to their deeply held religious beliefs. The
heirs claim damages for severe emotional distress and for psychological counseling. - ANS
Look at where venue is proper. What county?
Different counties have different potential jury pools.
Some juries would feel like "get over it." Don't give damages for emotional distress.
Urban counties more likely to give these kinds of damages. In Harris Cty, very diverse jury pool.
Might be more sympathetic to the psychological harm.
Strategically good idea to have jury if:
(3) You represent the plaintiff in a products liability action based on the defendant's failure to
warn of dangers in using the product. The defendant contends that the plaintiff misused the
product and that the dangers were open and obvious to an ordinary user of the product. What if
you represent the defendant? - ANS From D perspective, jury pretty attractive if open and
obvious.
Strategically good idea to have jury if:
(4) You represent a defendant sued in a lender liability action for charging usurious interest and
for unreasonable collection efforts. - ANS Do NOT want jury if D. Jurors are not going to
look favorably on predatory lenders.
During voir dire in a personal injury action, D counsel asks whether the D's wealth and the P's
forlorn condition would influence the jury in answering liability questions. P's counsel objects
because the sought to preview jury's likely votes - ANS P's counsel is trying to inject bias
into the case by discussing the comparative wealth of the parties. This is probably an improper
question.
Wealth of D is not necessary inadmissible; particularly when punitive DAS are sought, wealth is
a relevant factor.
But the way this question is asked is probably improper.
