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YOUR ANSWERS MUST BE LIMITED TO THE 5 LINES PROVIDED AFTER EACH
QUESTION. ANYTHING MORE THAN 5 LINES WILL NOT BE GRADED.
A. PLEADINGS
Plaintiff’s Original Petition, in part, alleges the
following:
I.
Plaintiff is a citizen and resident of Las Cruces, Dona Ana
County, New Mexico.
Defendant Big Guys Trucking Co., is a Texas corporation with its
principal place of business in San Antonio, Texas.
Defendant Truck Driver is a citizen and resident of San Antonio, Texas.
Both Defendants may be personally served at 123 Alamo Street, San Antonio, Texas.
II.
This suit is filed in Bexar County District Court. Venue is
proper in the district court of Bexar County (San Antonio) because the motor vehicle
accident which is the subject of this suit occurred in Bexar County, Texas.
1. May Defendants remove this
case to the federal district court, assuming the amount in controversy is sufficient?
Explain.
2. May defendant transfer venue
of this case to the state district court for Dona Ana County, New Mexico? Explain.
The petition continues as follows:
III.
Plaintiff states that Defendants negligently caused him serious bodily injury
for which he now sues. Damages are sought in excess of the minimum jurisdictional limits
of the court.
3. Assume plaintiff pleads no more factual information concerning liability or
damages in the petition. What pleading can Defendant file to force a more detailed
allegation in Plaintiff's pleading? Explain.
4. Assume the court orders
Plaintiff to furnish more detailed allegations concerning liability and damages. What
action, if any, may the trial court take if Plaintiff fails to do so? Explain.
5. If Defendant answers the
petition with a general denial pursuant to Tex. R. Civ. P., Rule 92 and nothing more, will
it put in issue the following matters:
(a) Plaintiff’s contributory negligence? Explain.
(b) That the suit is barred by
the applicable statute of limitations? Explain.
(c) Defendant’s discharge in bankruptcy? Explain.
6. Plaintiff named Big Guys
Trucking Co. in the petition as a corporation, but it is in fact a partnership. What
should Defendant do to bring this defect to the attention of the court? Explain.
B. PRETRIAL DISPOSITION
In a medical malpractice action, Plaintiff’s expert witness
testifies in a pretrial deposition as follows: "Plaintiff might very well have been
injured because of the negligence of the Defendant, Dr. Tirado. It's entirely
possible." This is the only evidence available to plaintiff on the cause of his
injury.
7. (a) Once the court-imposed discovery cutoff date has passed,
is there a motion Defendant can bring to obtain a pretrial disposition of the case in his
favor as a matter of law? Explain.
C. DISCOVERY
A Notice of Deposition in the case of Plaintiff v. Big Guys
Trucking Co., set in Bexar County District Court, is sent to Plaintiff by Defendants.
The Notice recites that Defendants intend to take the deposition of Plaintiff at a certain
time, date and place in San Antonio, Texas.
9. Can Plaintiff quash this deposition notice on the ground that
it compels him to appear and give testimony at a place outside of his county of residence,
which is Dona Ana County, New Mexico? Explain.
10. Assume the notice also
contained a duces tecum directing Plaintiff to "bring with him all medical
bills, medical reports, pay stubs or other documents in his possession evidencing medical
bills incurred or lost wages incurred by virtue of the accident in question."
(a) What kind of motion could Plaintiff bring if he believes he
should not be compelled to produce those documents at deposition? Explain.
(b) Would such a motion be
likely to succeed? Explain.
Note: The Texas Supreme Court recently revised significant
portions of the Texas Rule of Civil Procedure, and the revisions are effective January 1,
1999. The following questions are based on those revisions.
Assume Plaintiff’s Original Petition asserts the following
in its first numbered paragraph: "Plaintiff intends that this automobile accident
case be covered under Discovery Plan Level 2, Texas Rule of Civil Procedure 190.3."
11. (a) State the total number of hours of oral deposition
each side (i.e., all the litigants with generally common interests, e.g., the two
defendants in this case, are on the same "side") may have under this plan.
(b) State the total number of interrogatories a
party may serve on any other party under this plan.
(c) State when discovery will close in cases
like this automobile accident case.
12. How may a party obtain additional deposition hours if
needed? Explain.
13. State whether the following
discovery materials, which are required to be served on the parties, are also required to
be filed with the court:
(a) Discovery requests, deposition notices, and subpoenas?
(b) Responses and objections to discovery requests and
deposition notices?
(c) Documents and tangible things produced in discovery?
D. TRIAL
The following takes place in chambers with a court reporter
present prior to the trial of a breach of contract case:
| Counsel for Plaintiff: |
We’ve reviewed Defendant’s
Motion in Limine and can agree to all ten of his paragraphs. |
| Counsel for Defendant: |
We have objections to paragraphs 1 and 2 to Plaintiff's Motion in
Limine, Judge. The other eight paragraphs are agreed. |
| The Court: |
Defendant’s Paragraphs 1 through
10 are granted. Plaintiff's paragraphs 3 through 10 are granted. Let’s hear from
Plaintiff on the remainder of Plaintiff’s Motion in Limine. |
| Counsel for Plaintiff: |
Your Honor, Paragraphs 1 and 2 are
aimed at what we believe is improper parol evidence the defendant is going to try to
introduce. In this breach of contract case, Defendant plans to offer parol evidence of
similar contracts Plaintiff has with third parties who are unrelated to this transaction.
The parol evidence is hearsay and irrelevant. We seek its exclusion. |
| Counsel for Defendant: |
Judge, Plaintiff doesn’t want to
live up to his end of the contract. The evidence we intend to introduce is competent
evidence of the intent of the parties -- that’s what these other contracts will show.
This is competent evidence that Defendant did not breach the contract. |
| The Court: |
(Addressed to Counsel for Defendant)
Well, don’t say anything about these other contracts on voir dire or in opening
statement. Let’s confer when you’re at the point in your case when you want to
introduce the evidence. |
During voir dire, defense counsel states to the venire, "My
client will tell you all about how the Plaintiff has performed on many other similar
contracts to show you what the parties intended and that Defendant breached no contract
here!" Plaintiff objects on the ground that this statement violates the court's in
limine instructions. The court says to defense counsel, "Move along, counsel."
14. Does the court’s "ruling" on Paragraphs 1
and 2 in Plaintiff’s Motion in Limine preserve any error created when defense counsel
said what he said about the "other contracts" during voir dire? Explain.
15. Does Plaintiff’s
objection and the court’s admonition to "move on" preserve any error?
Explain.
16. Assume that, because of defense
counsel’s statement during voir dire, plaintiff does not object later when Defendant
testifies about "other contracts" and you cross-examine Defendant extensively on
the point. After an adverse jury verdict, you file a Motion for a New Trial based on the
same grounds you urged in the Motion in Limine. The court denies the Motion for New Trial,
and you appeal, assigning as error that the "other contracts" evidence should
not have been admitted. How should the appellate court rule on your appeal? Explain.
17. If you believe that legally
insufficient evidence has been produced to support an essential element of
Plaintiff’s cause of action, what motion should you, as Defendant, file in order to
obtain a disposition of the case in your favor at each the following stages of the
litigation:
(a) Pretrial?
(b) At the close of Plaintiff’s case?
(c) Assuming an adverse jury verdict, after
receipt of the verdict and before entry of judgment?
18. (a) Draft a jury question that requires the
jury to specify which party’s negligence, Plaintiff or Defendant, proximately caused
the automobile accident.
(b) What must you do to preserve any error by
the trial court if the trail court refused to pose to the jury the question you drafted
above? Explain.
19. Defendant contends that the
automobile accident in question is the result of a "superseding and intervening
cause; that is, the act of some other person over whom Defendant had no control." May
this defense properly be submitted as a jury question? Explain.
20. During your appeal of the
adverse verdict in the automobile accident case, you wish to supplement the appellate
record with medical records you inadvertently failed to introduce at trial and you file a
Motion for Leave to do so. Should the appellate court allow you to supplement the record?
Explain.
YOUR ANSWERS MUST BE LIMITED TO
THE 5 LINES PROVIDED AFTER EACH QUESTION. ANYTHING MORE THAN 5 LINES WILL NOT BE GRADED.
CRIMINAL PROCEDURE AND EVIDENCE
The following recitations and questions relate to the
proceedings in the first case in which you have been appointed to represent a criminal
defendant. Your client, Milton Marks, was charged with "obscenity" in violation
of Penal Code §43.23(c), a Class A misdemeanor. He was found in possession of a porn
magazine, "Nasty Girls."
The first thing that happens is that the assistant district
attorney, a high school friend of yours, invites you to review her file and tells you,
"I’ll let your man plead for two years probation, non-deferred and a $4,000
fine, also probated." Smiling, she tells you the offer is good for one week.
After you review the district attorney’s file and before
you have interviewed your client, you conclude, based upon the written materials you see,
that the State’s case is very strong. You advise your Mr. Marks that he should accept
the deal offered by the assistant district attorney.
1. Have you breached any duty to your client by giving him
that advice at this stage of your representation? Explain.
2. If Mr. Marks pleads guilty
because of your advice that was based solely on your single review of the file, but after
conviction changes his mind, upon what ground, if any, may he seek a new trial? Explain.
Assume that Mr. Marks does not accept the assistant district
attorney’s offer and the case goes to trial. While the jury is deliberating, the
assistant district attorney offers your client one-year deferred adjudication with no
fine.
3. (a) What duty do you have to Mr. Marks before rejecting
this offer? Explain.
(b) Assume that the jury convicts your client
and assesses the maximum penalty. On appeal, Mr. Marks’ newly appointed appellate
counsel argues that you failed to communicate the plea bargain offer to Mr. Marks and that
Mr. Marks would have accepted it had he known about it. On what basis may the appellate
court remand for a new trial? Explain.
Penal Code §§ 43.21 and 43.23(c) provide in pertinent part as
follows:
§ 43.21. Definitions
(a) In this subchapter:
(1) "Obscene" means material . . . that:
(A) the average person, applying contemporary community
standards, would find that taken as a whole appeals to a prurient interest in sex;
(B) depicts or describes:
(i) patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or simulated, including sexual
intercourse . . . ; and
(C) taken as a whole, lacks serious literary, artistic,
political, and scientific value
* * *
(4) "Patently offensive" means so offensive on its
face as to affront current community standards of decency.
§ 43.23(c) --
(c) A person commits an offense if, knowing its content and
character, he:
(1) Promotes or possesses with intent to promote any obscene
material . . . ;
(d) An offense under subsection (c) is a Class A misdemeanor.
* * *
(g) It is an affirmative defense to prosecution under this
section that the person who possesses or promotes material . . . proscribed by this
section does so for a bona fide medical, psychiatric, judicial, legislative or law
enforcement purpose.
INDICTMENT AND INFORMATION
The information that charged Mr. Marks with obscenity read in
pertinent part as follows:
Defendant Milton Marks did then and there possess, with intent
to promote, obscene material, to wit, one magazine, "Nasty Girls," which depicts
patently offensive representations or descriptions of ultimate sex acts, to wit: sexual
intercourse.
4. Does the information properly set forth the culpable mental state required
to support a conviction for violation of Penal Code § 43.23(c)? Explain.
5. At what stage in the
proceedings against Mr. Marks must you bring to the attention of the court a defect in the
information in order to maintain a motion to set aside the information? Explain.
6. What will be the result on appeal if the
trial court declines to set aside the information despite a timely motion made by the
defendant? Explain.
JURY CHARGE
A portion of the jury charge given by the court at the request
of the district attorney states as follows:
I.
Our law provides that a person commits an offense if he, knowing
its content and character, possesses obscene material with intent to promote.
II.
"Obscene" means material that:
(A) the average person, applying contemporary community
standards, would find that taken as a whole appeals to a prurient interest in sex;
(B) depicts or describes patently offensive representations or
descriptions of ultimate sex acts, normal or perverted, actual or simulated, including
sexual intercourse;
(C) taken as a whole, lacks serious literary, artistic,
political and scientific value.
"Patently offensive" means so offensive on its face as
to affront current community standards of decency.
III.
If you find that the Defendant commits such act, find him "guilty;" if
not, find him "not guilty."
7. In what respect, if any, is Paragraph III of
this charge deficient? Explain.
8. What action must you take to
preserve for appeal any error in the court’s charge? Explain.
Assume Mr. Marks produces evidence that he possessed the copy of "Nasty
Girls" for a "bona fide medical, psychiatric or legal purpose," asserting
that he was using it as part of his research for an article entitled "Pornography in
the 90's - The Sky's the Limit" that was to be published in The Journal of
Psychiatry.
9. Would it be error for the
court to refuse to charge the jury that this is an affirmative defense which, if credited,
would require an acquittal? Explain.
10. Which of the following
standards of proof is applicable to Mr. Marks’ affirmative defense: beyond a
reasonable doubt; clear and convincing; substantial evidence; or preponderance of the
evidence? Explain.
11. Assume Mr. Marks produced
evidence that, as a result of a "severe mental disease or defect" (i.e., sexual
addiction), he did not know his conduct was wrong. Must the court include this as a
defense in its charge to the jury? Explain.
12. Are the following correct
statements of law? Explain your answer:
(a) If the issue of the existence of a defense is
submitted to the jury, the court shall charge that a reasonable doubt on the issue
requires that the defendant be acquitted.
(b) If the issue of the
existence of an affirmative defense is submitted to the jury, the court shall
charge that the defendant must prove the affirmative defense by a preponderance of the
evidence.
TRIAL
The trial of Mr. Marks commences with jury selection. After the
panel of prospective veniremen is seated and before voir dire and questioning commence,
the following dialogue occurs:
| The State: |
Judge, we want a shuffle. |
| The Defense: |
We object, Judge. Counsel is too late
with her request. |
13. What procedure is invoked by the State’s motion, and is it timely?
Explain.
14. What does it mean when,
following the selection of the jury and the conclusion of opening statements, the
prosecution invokes "The Rule?" Explain.
15. Are any particular classes of witnesses
excepted from the effect of "The Rule?" Explain.
16. Once a jury is seated and
sworn, may the State dismiss the information on the ground that a critical witness for the
State is unavailable and later refile the same information? Explain.
17. Are the following items
discoverable from the State in a criminal action:
(a) Police reports if discovery is sought before the trial?
Explain.
(b) The State’s expert
reports after the expert has testified at the trial and used the report to refresh his/her
recollection? Explain.
(c) Grand Jury testimony if discovery is sought
before the trial? Explain.
(d) Sample of physical evidence
such as drugs or blood to enable the defense to test the material before trial? Explain.
EVIDENCE
The following foundation for the admission of reputation
evidence to establish Mr. Mark's reputation was given at trial:
| Defense: |
Are you acquainted with my client, the
Defendant, Mr. Marks? |
| Witness: |
Oh, yes! |
| Defense: |
How long have you known him? |
| Witness: |
Over five years. His family lives here
in South Park where I live. |
| Defense: |
Do you know his reputation for being a
peaceable and law abiding citizen? |
| Witness: |
Yes. |
| Defense: |
Is it good or bad? |
| State: |
Objection. Improper foundation. |
| Court: |
Overruled. |
| Witness: |
His reputation is extremely good. |
18. Does the foregoing testimony
establish the proper foundation for the reputation evidence? Explain.
Assume the testimony continues as follows on cross-examination:
| State: |
Have you heard that Mr. Marks had
impersonated a police officer and assaulted citizens for committing traffic offenses? |
| Defense: |
Objection, Your Honor. This is pure
unadulterated garbage! |
| Court: |
Overruled. |
19. Is the court’s ruling on the defense objection correct? Explain.
Assume the State called Kenny, a witness who testified against Mr. Marks,
severely impugning his reputation for being peaceable and law-abiding. The following
occurs on cross-examination:
| Defense: |
Did you give a recorded statement to
the police in this matter? |
| Kenny: |
Yes, I did. |
| Defense: |
Your Honor, we want the recorded
statement under Gaskin. |
20. Should the Court order the
State to turn the recorded statement over to you? Explain.
since July 21, 2003
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