Consideration of what two factors is necessary for a proper

examination of personal jurisdiction?

It’s when the defendant entered the forum state and was personally served with the complaint

Name, but don’t fully explain, the 7 tests for

personal jurisdiction.

(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”

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.

Due process requires that the litigation be arising out of or

related to the defendants contact(s) with the forum state

Due process requires that if the litigation is unrelated to the defendant’s contact(s) with the forum state that the defendant have systematic and continuous contacts with the forum state

Recite the Purposeful Availment Test.

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 it’s laws

Due process requires that the defendant’s contacts with the forum state be such that the defendant could reasonably anticipate being haled into court there

Recite the State Long-Arm Statute “Test”.

Bonus Point for knowing Texas’ long-arm statute model

Due process requires that jurisdiction be consistent with the forum state’s 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.

Quasi-In Rem Jurisdiction now requires a “3-way nexus”

between what?

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).

Name two ways to challenge personal jurisdiction and any

risks associated with them.

(1) Don’t 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 it’s 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).

What is the due process requirement as regards notice?

Due process requires that notice be reasonably calculated

to reach the defendant.

What are the 4 ways to correctly serve an individual

(under the FRCP)?

(1) Personal in-hand service (2) Leave it with the defendant’s

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.

What are the 3 ways to correctly serve a corporation

(under the FRCP)?

: (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.

Name Texas’ rule for substituted service, and briefly

explain how it works.

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.

Bonus Point: What methods of service does Texas state

law permit?

(1) Personal In-Hand Service (2) Certified Mail.

Applying Texas state law, what steps are involved in serving

an out-of-state defendant

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!

In a diversity case, where is proper venue?

1st: Where all defendant’s 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.

For the purposes of Venue, where does a corporation

reside?

For venue purposes, a corporation resides wherever it is

subject to personal jurisdiction.

Recite the FRCP transfer of venue rule? (Essentially the

circumstances under which a court may transfer a case to another

court.

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.

Where it might have been brought” refers to whom?

There are 3 types of subject matter jurisdiction. Name

(but don’t explain them).

(1) Federal Question “Arising Under” jurisdiction

(2) Diversity Jurisdiction (3) Supplemental Jurisdiction

What is required in order for Federal Question jurisdiction

to exist?

The claim must be arising under the constitution, laws and

treatises of the United States.

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?

“It’s got to be in the claim”. In order for there to be

Federal Question jurisdiction, the federal question must be in

the plaintiff’s claim.

A federal defense (or anticipation of a federal defense) just isn’t

enough!

Name and briefly explain the two tests for Federal Question

Jurisdiction.

(1) The Creation test: Does Federal law create the claim?

(2) Ingredient Test: Is federal law a substantial ingredient in

the claim?

Name the requirements for Diversity Jurisdiction.

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.

For the purposes of diversity jurisdiction, does “citizenship”

mean “residence” or “domicile”?

Domicile. Just because you’re living there temporarily

doesn’t necessarily make you a citizen.

[ The case we read involved out-of-state students in Louisiana

for a year studying.]

For the purposes of diversity jurisdiction, where does a

corporation have its citizenship?

A corporation can have multiple citizenships, including any state in which it is incorporated and where it has its principle place of business.

Name and briefly explain the two tests for a corporations

principle place of business.

The “Nerve Test” – where the corporation has it’s nerve

center, which is essentially it corporate HQ.

The “Muscle Test” – where the corporation conducts the

bulk of it’s activities.

Recite the circumstance when supplemental jurisdiction

can be used to hear a claim that a Federal court does not normally

have jurisdiction over.

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.

What are the 4 exceptions where a court may, at its discretion,

opt not to hear a supplemental claim?

(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.

When the federal district court would have had original

jurisdiction over the claim.

Name the special exception that would prevent a defendant

removing a claim from a state court to a federal district court

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.

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

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.

Name, but don’t explain, the 5 tests used to determine

whether state substantive law or federal procedural law should

be applied in a given case.

(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.

(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

If the application of federal or state law will determine the outcome of the case, then state substantive law should be applied

Recite the Definitive outcome determinative test.

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.

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.

Recite the policies of Erie Test.

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.

Crump put his hand inside “Rehnquist” and spoke in a

silly voice in class to teach us what principle about choice of law situations

That in a choice of law situation, a federal judge should act as a

Ventriloquist’s dummy to a state judge, and should apply the same

choice of law principles that a state judge would apply.

Name two choice of law principles.

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

What is a variance?

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.

What is the standard for dismissal of a federal complaint?

Assume everything that the plaintiff alleges is true, but the law Says they still can’t win anything, then the complaint it subject to

dismissal.

A claim must give a short and plain statement that gives

the defendant reasonable notice of the claim.

How must special damages be pleaded and give a few

examples of special damages?

Special damages must be stated with “specificity” (I.e. you’ve got to set them out in your complaint). A few examples are: lost wages, attorney fees, pain and suffering.

No, the defendant must “parse” the complaint and answer each

numbered allegation.

When an attorney signs a complaint, this is an automatic

certification of what 4 things?

(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).

. Under the latest (post-1993) version of Rule 11, how would

an attorney seek sanctions against opposing counsel?

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 don’t 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

Crump provided 7 “commandments” for avoiding sanctions.

What are they?

(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 don’t yet have

evidentiary support.

Under what circumstances may an attorney amend a

complaint?

: 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

Court’s permission.

When does the FRCP say that permission to amend

should be given?

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.

What is a counterclaim and a cross-claim, and when

should they be granted?

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.

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.

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.

What is joinder?

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.

What is consolidation?

Putting two or more cases together for convenience.

What is severance?

Breaking one trial into two separate trials because it would be unfair/unjust to continue with a single trial.

Breaking off a single issue and creating a separate trial on that

specific issue. (Example: Aquaslide – who made the slide?)

What is intervention?

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.

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

Name the 4 prerequisites for a class action law suit and

explain each.

(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 ableto adequately/competently represent interests of class as a whole.

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

(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.

Name the 5 elements Crump broke the discovery rule into.

(1)Work Product.

(2) Privileged

(3) Protective Order

(4) Relevant

(5) Limits

Relevant means “Reasonably calculated to lead to admissible evidence”.

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

attorney’s case strategy notes (e.g. written list of issues in the case).

What is the standard for the escape valve from work product

being protected from disclosure?

The side seeking discovery of work product must show

undue hardship or substantial need.

Experts specially retained and expected to testify and experts

who are specially retained but not expected to testify. Discoverable

Those expected to testify ARE discoverable. Those not expected

to testify normally are not discoverable.

Experts informally consulted and experts consulted for purposes

unrelated to the litigation. Discoverable?

Experts informally consulted are not discoverable; the rules don’t

say this, but a case Crump has us read said so. Experts consulted for

a matter not related to the litigation are fully discoverable.

What test does a judge apply in deciding on a protective order?

The balance beam test, weighing the potential harm caused by allowing discovery versus the potential “benefit” of allowing it.

Give some examples of what a judge might do in making

a protective order.

Examples include: not be discovered, discovered by a different means, that trade secrets not be revealed, confidentiality agreement

What does “subpoena duces tecum” mean, and who is it for?

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.

The deposing counsel has the witness narrate what happened without interrupting them, then narrows the issues as time progresses.

(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.

What does the duty to supplement require and when?

Duty to supplement requires a party to inform the other side when it discovers that testimony is incomplete or incorrect

When can you use a deposition in federal court?

Bonus point: what about in Texas?

(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.

What is “pushing”?

A type of discovery abuse that uses heavy-handed techniques

to create a burden, e.g. asking for same documents twice.

What is “tripping”?

Unnecessarily hindering the discovery of relevant, non-privileged Information, e.g. by hiding documents, destroying evidence, etc.

When are merit sanctions applied? Give some examples of the

types of sanctions possible.

Merit sanctions are for “Gross negligence” or “wilfullness”. Examples include: establish facts, preclude facts, establish/preclude

order, dismissal, contempt.

(1) Request for admissions or denials

(2) Written interrogatories.

(3) Request to produce/inspect.(4) Oral deposition(s).(5) Request for admissions or denials

25.

10 (but you can ask the judge to do more if you need them).

To sharpen the issues and to try and dispose of the case efficiently, including discussion of settlement, mediation and requested jury

charges.

Who usually drafts the pre-trial order?

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).

Under what limited circumstance can a pre-trial order be set aside?

When it is necessary to prevent manifest injustice.

(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

There must be no genuine issue of material fact.

Name the 3 ways to get a summary judgment?

(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.

For mistake or excusable neglect. This motion must be made within 1 year of judgment being entered.

In what types of cases is a person entitled to a jury trial? When are

They not entitled to one?

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.

Can you receive a jury trial for a “mixed claim” – one with

common law and an equitable element?

Yes. It depends what the real substance/main part of the claim is.

How long do you have to demand a jury trial and what happens

if you forget?

Must be demanded within 10 days of the filing of the last

responsive pleading otherwise the right is waived.

If you wish to challenge the jury array because you think a

cognizable group (e.g. Asians) is excluded, when must you do so?

Must be challenged before examination of the jury begins

or within 7 days of when the defect should have been detected

Challenges for cause and peremptories? How many, and what

are they for?

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

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?

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

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.

(1) Introduce legal concepts.

(2) Ingratiation (“I’m David, my opponent is Goliath”)

(3) Gain commitment

(4) Inject prejudice (illegal)

(5) Inoculation (against harmful facts)

What is “invoking the rule”?

It causes all of the witnesses to have to leave the court room so

they don’t hear other witness testimony.

Exclusionary rule – what things are excluded?

(1) When prejudice/confusion outweighs benefit to the case.

(2) Settlement offers

(3) Insurance information

(4) Hearsay

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.

What 4 steps should an attorney take during jury argument

if the jurors are getting special interrogatories?

(1) Read the interrogatories to the jurors

(2) Translate them

(3) Marshal the evidence

(4) Give the jury a canned answer to each interrogatory

Name one disadvantage and one advantage to using special

interrogatories versus a general charge.

Advantage: Jury decides with their head not their heart.

Disadvantage: Attorneys will bicker over the wording.

If there is a Rule 49 conflict (jury’s answers to special

interrogatories conflict), what 3 things can the judge do to fix it?

(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

Judgment as a matter of law is the “new name” for what

two motions?

Directed verdict and Judgment n.o.v. (notwithstanding the

verdict).

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 don’t

What must an attorney do to preserve the option to move for

judgment as a matter of law after the verdict?

You must move for judgment as a matter of law before the verdict in order to raise sufficiency of the evidence after the verdict

Name some examples of circumstances where a judge might

grant a motion for a new trial?

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

What is the standard for when the judge is weighing the

evidence against the jury’s verdict in deciding whether to grant a

new trial?

The jury’s finding must be against the great weight of the evidence

(not the “preponderance” of the evidence).

Relief from judgment: the judge’s pen slips and he adds a zero

to the damages amount. When can this be cured?

Clerical errors can be cured any time.

. Give some examples of when relief from final judgment can

be granted.

(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

What is the standard for an appeals court to overrule a judge’s

fact finding?

They will only overrule the trial court’s fact finding if it is

clearly erroneous. If there are two possible plausible inferences, they

won’t second guess the trial judge and overrule him.

30 days. Court can grant an additional 30 for good cause.

What’s a supersedeas bond?

It’s money a party who has had a judgment entered against

them put up to show that they are good for the judgment. It’s used  to stay the judgment until after the appeal.

If the clerk fails to notify an attorney of entry of a judgment,

does this affect the time he has to appeal?

No. Just because the clerk didn’t tell you, that doesn’t alter the

30 day time limit.

What is the final judgment rule, and what is the escape valve?

Only final judgments are appealable. Final as to all parties and

claims, so if one of two claims is dismissed, that’s not a final judgment.

Escape valve: Rule 54(b) partial judgment that disposes of a claim

completely.

What is mandamus?

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.