Texas Board of Law Examiners

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Plaintiff's Original Unverified Petition filed January 29, 1999, alleges, in pertinent part, the following facts:

To the Honorable Judge of Said Court:

1. Plaintiff intends that his suit be covered by Level 2, Discovery Control Plan, pursuant to Rule 190.3, Texas Rules of Civil Procedure.

1. Under this Discovery Control Plan,

(a) How many interrogatories may one party serve on any other party?

(b) How many hours of oral deposition are permitted each "side" under this discovery control plan?

(c) Assuming one "side" in this litigation designates more than two experts, how many additional hours of total deposition time may the opposing side have for each additional expert designated?

(d) What discovery level (1, 2 or 3) applies if Plaintiff does not or cannot plead an appropriate discovery level pursuant to the Rule?

(e) Does Plaintiff's pleading of "Level 2" discovery foreclose his propounding a "Request for Disclosure" under Rule 194? Explain your answer.

Assume the Petition continues:

(Plaintiff's Original Petition-cont.)

2. Plaintiff Pedro Martinez is an individual and the parent and next friend of his minor daughter, Plaintiff Mijita. Both are residents and citizens of Maverick County, Texas.

3. Defendant EZ Go, Inc. is a Delaware Corp. doing business in this state as "Quick-N-EZ Convenience Stores." Defendant operates one of its convenience stores in Eagle Pass, Maverick County, Texas. This Defendant may be served at its corporate headquarters in Boise, Idaho at 123 Main Street, by serving Mr. Nathan, Vice President.

4. Although the tort that forms the basis of this suit occurred at one of the Defendant's stores in Amarillo, (Potter County), Texas, venue is proper in this district court of Maverick County, Texas, since Defendant maintains a retail convenience store in Eagle Pass, Maverick County, Texas.

2. Assuming the factual recitations in Paragraph 4 are correct, is venue properly maintainable in Maverick County? Explain your answer.

3. Is it necessary in this particular case to invoke Texas' "Long Arm" statute to obtain proper service on the Defendant? Explain your answer.

4. May Defendant EZ Go, Inc. remove this case to the proper federal district court (assuming there is $75,000.00 in controversy)? Explain your answer.

5. On January 2, 1999, the minor Plaintiff, Mijita, an invitee in Defendant's retail store in Amarillo, Texas, slipped and fell on a foreign substance located on the floor. The foreign substance made the premises unreasonably dangerous and Defendant knew or should have known of the unreasonably dangerous condition. Defendant's failure to warn Plaintiff of such condition or otherwise make the premises safe for invitees constitutes actionable negligence.

5. Assume Defendant wishes to file a general denial in response to the entire petition. Draft the substance of an appropriate and effective general denial in the space provided below:

6. Assume Defendant wishes to assert the following affirmative defenses. Use the space provided below to draft appropriate language for each defense:

(a) Contributory negligence:

(b) Sole cause:

(c) Superseding intervening cause (conduct of third party):

(d) Act of God:

(e) Statute of limitations:

7. Which, if any, of the above affirmative defenses must Defendant verify?

8. Explain your answers to the following questions regarding the due order of pleading:

(a) Defendant wishes to challenge venue. First Defendant files a general denial. Immediately after the general denial, Defendant files a pleading entitled only "Motion to Transfer." How should the court rule on the Motion to Transfer?

(b) Defendant wishes to challenge the sufficiency of service. Defendant files a timely Motion to Quash and does not file an original answer within the time prescribed by law after service. Assume the Motion to Quash is granted. Must Defendant file a responsive pleading or is plaintiff first required to reissue citation?

(c) Defendant wishes to challenge personal jurisdiction. First, Defendant files a special appearance. Second, Defendant files an original answer. May Defendant still challenge personal jurisdiction?

9. What discovery instrument may Plaintiff serve on Defendant to allow Plaintiff to inspect and photograph the premises and site of the accident at the Quick-N-EZ store? Is Plaintiff entitled over Defendant's objection to interview employees of Defendant at the scene of the accident during the inspection and photography session? Explain your answers.

c/o (counsel of record)

Take notice that pursuant to Rule 201, the Texas Rules of Civil Procedure, Plaintiff will take the oral deposition of the person or persons designated by Defendant EZ Go, Inc., to testify concerning the following matters at the law office of Plaintiff's counsel commencing at 10:00 a.m. on [Day X].

Plaintiff wishes to examine the witnesses so designated on the following matters:

1) Defendant EZ Go, Inc.'s policies and procedures regarding cleaning and maintaining its interior floors during working hours.

2) Defendant EZ Go, Inc.'s policies and procedures regarding customer safety.

3) Defendant EZ Go, Inc.'s policies and procedures regarding the investigation of customer accidents.

10. May Defendant quash this notice because it fails to identify the particular witnesses to be interrogated? Explain your answer.

11. What discovery instrument(s) would Plaintiff serve to compel the production of documents at the deposition of an employee of Defendant who has custody or control of such documents, and how long before the date set for the deposition must such instruments be served?

At the court-ordered mediation of this premises liability case, the representative of Defendant's insurance carrier announced after hearing the mediator's introductory remarks, "We don't intend to pay anything on this case…we just came for the doughnuts!"

12. May Plaintiff's counsel successfully apply to the court for sanctions? Explain your answer.

The following occurs at the deposition of Defendant EZ Go, Inc.'s vice president:

Plaintiff's counsel: What documents did you review to prepare for your deposition?

Plaintiff's counsel: Mr. Vice-President, did you review any documents in preparation for this deposition?

Defendant's counsel: Don't answer that! This is outrageous!

Mr. Vice-President: I won't answer that question.

13. Are Defendant's counsel's objection and instruction not to answer valid under the current Texas Rules of Civil Procedure? Explain your answer.

14. Assume instead that Defendant's counsel stated the following: "Objection to the form of the question," and after Plaintiff's counsel's follow-up inquiry defense counsel stated, "This violates the attorney work product doctrine." Assume further that Mr. Vice President had reviewed the "EZ Go, Inc. General Policy Manual," and that he had done so in the presence and at the advice of defense counsel. Is Plaintiff's counsel entitled to discover the fact that Mr. Vice President had reviewed the General Policy Manual? Explain your answer.

15. Assume that Defendant's counsel had prepared for his own use a summary of the testimony of all other witnesses in the case and that Mr. Vice President reviewed the summary prior to giving his deposition. Is the summary protected by the attorney work product privilege so that the summary does not have to be produced during the deposition of Mr. Vice President? Explain your answer.

16. If you wish to avoid producing certain documents that your client has been asked by use of the proper discovery procedure to bring to the deposition, what procedure must you utilize before the taking of the deposition? Explain your answer.

17. For each of the following documents Defendant EZ Go, Inc. has been asked by the use of proper discovery procedure to produce at deposition, state any valid objection you, as defense counsel, may have, or state, "No objection," and, in either case, explain your answers.

(a) A true and correct copy of any insurance agreement that may provide coverage for any damages that Plaintiff may have suffered in the instant case.

(b) Any written or recorded statements taken from any person with knowledge of relevant facts taken by any of the attorneys in the instant case.

(c) All photographs of the scene of the accident taken on the day of the accident in question.

(d) A copy of any statement Plaintiff gave to Defendant's investigators or attorneys in this action.

The trial of Pedro Martinez et al. v. EZ Go, Inc. is now under way:

18. (a) During the opening statement of Plaintiff, the following occurs:

Mr. Pedroza (Plaintiff's counsel): The evidence will show you that the Defendant's manager offered to pay for all of his medical bills right after this slip and fall accident.

Ms. Duran (Defendant's counsel): Objection. Offers of payment of medical expenses settlement are inadmissible.

How should the court rule on this objection? Explain your answer.

(b) Also during opening statement, Plaintiff's counsel stated, "We will bring you evidence to demonstrate that this Defendant has completely changed the type of floor used around the produce display where this accident occurred." Defense counsel objects on the ground that this is evidence of "subsequent remedial measures." How should the court rule on this objection? Explain your answer.

(c) What pretrial procedure would have allowed Defendant's attorney to obtain a pretrial ruling to prohibit Plaintiff's counsel from introducing or commenting on the evidence in items (a) and (b), above?

(d) Assume that during EZ Go's case in chief Defendant's counsel called Dr. Todo Tirado, its medical expert, to testify that after reviewing Plaintiff's medical records he concluded that Plaintiff would experience no problems in the future and "probably hurt himself, if at all--somewhere else!" What procedure could Plaintiff have utilized pretrial to avoid Dr. Tirado's opinion under Daubert/Robinson?

(e) Identify two factors a court will consider under Daubert/Robinson to determine the admissibility of scientific (medical) testimony in a personal injury case and explain your answer.

19. Defendant has pleaded affirmatively the following defenses. After the close of evidence, which of the defenses should the judge submit to the jury in its charge by way of (i) a question or (ii) an instruction, and which, if any, should be determined by the court without jury participation?

For each defense listed below, CIRCLE the correct answer(s):

(a) Contributory negligence:

Question Instruction Determined by court without jury

(b) Sole cause:

Question Instruction Determined by court without jury

(c) Intervening/superseding cause:

Question Instruction Determined by court without jury

(d) Act of God:

Question Instruction Determined by court without jury

(e) Statute of Limitations (in a case where the date of the accrual of the cause of action is undisputed):

Question Instruction Determined by court without jury

20. Assume Defendant's counsel requests that the court in its charge to the jury submit Defendant's theory of the "Act of God" defense in the form of a question rather than an instruction. Plaintiff's counsel objects on the ground that, "This improperly submits an inferential rebuttal issue to the jury." How should the court rule on the objection? Explain your answer.

Derek Kartman has been indicted for the offense of aggravated assault on a police officer. The offense arose out of a family disturbance call made to Kartman's residence by police officers. The officers were dispatched to the Kartman residence after a 911 call from the Kartman's residence, during which the operator heard moaning and screaming and a man yelling in the background.

Police officers announced at the closed door of the Kartman residence, "Police - please open the door." The only response to this was someone moaning and a man screaming, "No Kitty, that's my chicken pot pie, touch it and die!"

1. May police properly force their way into the home at this point without obtaining a search warrant? Explain your answer.

2. Assume that once the police were inside the home, but before anything was said or done to the occupants, the police saw on the arm of the chair where Kartman was seated a small frozen food box marked "chicken pot pie." The police searched the box and found a small but useable amount of marijuana. What procedure may Kartman utilize to prevent the use of that evidence against him in a later trial? Explain your answer.

After the uniformed officers entered the residence, they ordered Kartman to lie on the floor. Kartman resisted and attempted to flee out the front door, saying only, "It's my chicken pot pie." During the struggle to subdue him, police officers were scratched and bruised when Kartman threw a TV set at them. He was finally subdued in the living room. Police officers then asked Kartman for consent to search his locked bedroom. Kartman declined, telling the officers, "No way, blowhard!" The police then forced open the bedroom door and searched the room anyway. They found a crate of illegal assault rifles under the bed.

3. Were there sufficient exigent circumstances at the time to justify extending the search to the bedroom? Explain your answer.

4. Before indictment, the court granted a Motion for Examining Trial filed by Kartman. What purpose does an examining trial serve? Explain your answer.

5. What procedure in Texas law allows you to challenge any defects of substance or form in the indictment?

6. Does the doctrine of fundamental error in indictments allow a defendant to challenge an indictment on appeal without bringing an alleged error in the form of the indictment to the attention of the trial court? Explain your answer.

7. Assume that the district attorney has assured the Court that he is not seeking any jail time because this is Kartman's first offense. If Kartman is indigent, must the Court nonetheless appoint counsel for Kartman in this aggravated assault case? Explain your answer.

8. If Kartman refuses to accept court-appointed counsel, what must the Court do to ensure a fair trial and preserve Kartman's right to self representation? Explain your answer.

State: Tell us, Kenny, were you present on the day in question when Mr. Kartman threw his violent temper tantrum?

Defense: Objection. Assumes a fact in controversy.

The Court: Rephrase the question.

State: Tell us what, if anything, you witnessed in the living room of the Kartman home on the night in question.

Kenny: Well, I wanted some of Kartman's chicken pot pie and reached over for it; the cat, "Kitty" wanted to eat some of it too…Well, Derek just started screaming, "No Kitty! That's my chicken pot pie!" and I got scared and called 911.

State: Were you there when the police arrived?

Kenny: Yes. Kartman kept yelling about his chicken pot pie and then he started throwin' the cheesy poofs around the room. Then the police came in and Kartman threw the TV set at them.

State: What, if anything, did Mr. Kartman say to the police officers?

Defense: Objection! That is improper use of a confession without compliance with Miranda!

9. How should the Court rule on defense counsel's objection at this point? Explain your answer.

10. Assume that the police officers had handcuffed Kartman and then asked him, "What in blazes is going on here?" Should the Court's ruling on defense counsel's objection be any different? Explain your answer.

11. What procedure could defense counsel have used to obtain a pretrial ruling on the admissibility of any oral statements Kartman may have made to the police? Explain your answer.

12. May Kartman call his mother to the stand during the presentation of the defense case to testify about his general reputation for being a peaceful and law-abiding citizen? Explain your answer.

13. If Kartman succeeds in obtaining the desired testimony from his mother, may he prevent the district attorney from cross-examining her about prior specific acts of misconduct committed by Kartman? Explain your answer.

14. Assume that Kartman does not inject his reputation for being a law abiding citizen into evidence. May the district attorney nonetheless call witnesses to testify during the guilt/innocence phase about this particular character trait? Explain your answer.

Against your advice, Kartman takes the witness stand in his own behalf to testify during his guilt/innocence case in chief. The following questions were asked and answers given:

Defense: Did you throw a television set at the police officers?

Kartman: No! I threw it at Kitty--they just got in the way!

Defense: What did you tell the police when they got in your house?

Kartman: I just told them, "Respect my authority!"

The State then inquires:

State: Mr. Kartman, tell us about your conviction last year for felony fraud.

Defense: Objection! Improper impeachment.

15. How should the trial court rule on this objection? Explain your answer.

16. Assume the defense objection is more particular: "Object to the improper attempted impeachment on a collateral matter." How should the trial court rule on this more particular objection? Explain your answer.

17. If Kartman denied having been previously convicted of a felony, may the State then produce extrinsic evidence to establish the conviction? Explain your answer.

1.

Our law provides that a person commits an assault if he intentionally or knowingly threatens imminent bodily injury to another. An assault is aggravated when it is committed with a deadly weapon.

18. Assume the language of the indictment set forth immediately before Question No. 5, on page 16, correctly states the facts as applied to the offense of aggravated assault. Does the foregoing portion of the jury charge as it is now worded correctly set forth the proper application of the law to the facts of the case? Explain your answer.

19. Assume there is nothing in the proposed jury instructions that defines a "deadly weapon." What steps must you take, if you want the term defined, to ensure that a definition is included, and, once the matter is brought to the attention of the trial court, whose responsibility is it to prepare a charge that includes the definition? Explain your answer.

20. In closing argument, the district attorney makes the following statements. Which of them, if any, are objectionable, what objection(s) would you make, and which of them, if any, are not objectionable? Explain your answers.

(a) [Assume for this question that Kartman did not testify at trial.] "What we have here is a failure to communicate! Mr. Kartman has failed to take the stand and tell us what happened on the night in question!"

(b) "The police showed their badges to Mr. Kartman and they didn't need to show any stinking badges-- and what did Kartman say when they showed their badges and arrested him? Not a thing! Not 'I'm innocent!' All he said was, 'Respect my authority!'"

(c) "And what did the police officers testify that they heard Mr. Kartman say when they came in -- and before they arrested him? You heard the officers. All Mr. Kartman was saying was, 'The horror… the horror.'"

(d) "As a prosecutor, I have taken an oath to see that justice is done. All the defense counsel has is a license to steal and lie."

(e) "The whole South Park Community expects a conviction in this case, and I pray that you do your duty!"

  since July 21, 2003

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