http://www.top-law-schools.com/archives/viewtopic.php?f=3&t=51782 CIV PRO 1. Defendant wins a jury verdict in federal court.

Plaintiff moves for judgment notwithstanding the verdict and for a new trial. If the judge grants judgment notwithstanding the verdict, a. Defendant may move for new trial for the first time in the court of appeals. b. Defendant now may move for a new trial in the trial court. c. The judge must conditionally rule on plaintiff's motion for new trial. d. Both b and c are correct. e. None of the above is correct. 2. If defendant, a product manufacturer, settles with an injured plaintiff and fears a later claim for indemnity by an independent distributor whom plaintiff next may sue, defendant can hope to prevent having to pay again by: a. Asserting the defense of res judicata. b. Asserting the defense of good faith. c. Including provision for indemnity by plaintiff in the settlement documents. d. Moving the court to approve the settlement. e. Filing an interpleader action. 3. Under the Erie doctrine, in a tort suit governed by state law but filed in federal court, the governing choice of law provision is determined by: a. Lex loci delicti. b. The law of the place of the wrong. c. The law of the place of the injury. d. The law of the state having the most significant relationship to the issue. e. The law of the state where the suit is filed. 4. Plaintiff, a resident of San Antonio, Texas, files a federal suit in Dallas, Texas against a resident of Dallas, Texas, alleging a federal civil rights violation, which is alleged to have occurred in Houston, Texas. Absent diversity, if defendant moves to transfer, the court has power to transfer to the district and division including which of the following cities? a. Houston. b. San Antonio. c. Either San Antonio or Houston. d. Washington, D.C. e. None of the above. 5. Two plaintiffs file suit against three defendants in a federal forum, alleging only one claim, to the effect that the defendants, "while soliciting and obtaining a contract for plaintiffs' services as marketing agents, acted in concert to commit numerous acts of fraud that proximately caused damages to

plaintiffs in the form of lost profits from sales of plaintiffs' widgets in the amount of at least $500,000." This allegation of the complaint probably: a. Is sufficient because it conforms to the requirement of notice pleading. b. Is insufficient because it fails to conform to the requirement of notice pleading. c. Is sufficient because it states a cause of action. d. Is insufficient because on its face it is subject to an affirmative defense. e. Is insufficient because it is not plead with particularity. 6. The defense of good faith to a civil rights claim in federal court under section 1983: a. Must be plead within 10 days of service of the complaint. b. Cannot be based on an answer including only admissions and denials. c. Is subject to a motion for judgment on the pleadings as a matter of course. d. Requires proof by clear and convincing evidence. e. Fits none of the above descriptions. 7. A process server properly gives defendant's 30-year old roommate a federal summons and complaint at their common dwelling. But the roommate misunderstands; he mails the papers back to the district clerk, who destroys them; and defendant never has notice of the suit. Under these circumstances, the service probably is: a. Invalid under the due process clause. b. Invalid because defendant was not personally served. c. Invalid because the facts do not show the roommate to be defendant's agent. d. Invalid because the facts do not show that defendant delivered a proper acknowledgment to plaintiff. e. Valid. 8. Which of the following statements about jury trial in federal court is correct? a. The right to jury trial extends to all statutory claims. b. The right to jury trial does not extend to any claims under statutes enacted after the adoption of the Constitution. c. The trial judge may conduct the voir dire entirely. d. The use of voter registration records in summoning the array is unusual. e. None of the above. 9. Plaintiff, to prove a contract, offers evidence that he mailed a communication to defendant containing the words "I offer to buy 100 widgets at $100 each" and that he received a letter signed by defendant saying "I accept." This evidence probably: a. Is inadmissible hearsay. b. Is inadmissible because it is not relevant. c. Is admissible because it fits the so-called "business records" exception to the hearsay rule. d. Is admissible because it is not hearsay. e. Fits none of the above descriptions.

10. Which of the following is not a violation of Fed. R. Civ. P. 11 when one signs and files a complaint? a. Failing to read it. b. Failing to conduct a reasonable investigation of the law and facts. c. Failing to have a good faith belief in the propriety of the filing. d. Failing to include an express certification of compliance. e. None of the above (i.e., all are violations). 11. Which of the following may not be discovered as a matter of course under the federal rules? a. A policy of insurance that may cover the opposing party's liability. b. The opinions of expert witnesses who will testify, obtained through depositions of those witnesses. c. Written statements of witnesses obtained in anticipation of trial by the opposing attorney. d. Both b and c (i.e., neither b nor c is discoverable as a matter of course). e. None of the above (i.e., all are discoverable as a matter of course). 12. The judge concludes that plaintiff won a jury verdict solely because plaintiff's testimony on a heavily contested issue was perjurious but persuasive to the jury. He feels very strongly that this conclusion is correct. He denied defendant's motion for a directed verdict. Under these circumstances, the judge most likely is authorized by the Federal Rules to grant: a. A judgment on the pleadings. b. A judgment notwithstanding the verdict. c. A new trial. d. Either b or c above. e. A summary judgment. 13. Summary judgment most likely may be granted in which of the following cases under the federal rules? a. A suit on a note in which defendant offers an affidavit showing that plaintiff once told a witness he had received full payment but plaintiff now claims by affidavit that he was mistaken and has received no payments. b. A tort claim in which defendant's affidavit says that to the best of defendant's information and belief plaintiff has no injuries and plaintiff has filed no affidavits or discovery products. c. An antitrust case in which all material facts are stipulated but complex questions of law remain to be decided. d. A contract dispute in which plaintiff's and defendant's affidavits are in irreconcilable conflict. e. A civil rights suit in which defendant pleads the affirmative defense of good faith but neither he nor plaintiff has filed affidavits or discovery products to support or oppose the defense. 14. The general verdict is said to be superior to the verdict on special interrogatories for which of the following reasons? a. The general verdict better separates questions of fact from questions of law. b. The general verdict better eliminates prejudice based on personalities. c. The general verdict reduces the need for appellate reversal in the event of submission of an alternate

but erroneous legal theory. d. The general verdict focusses the argument of counsel so as to eliminate irrelevant considerations. e. The general verdict reduces the need for precision of language in the questions submitted to the jury. 15. Plaintiff, a citizen of New York, sues Defendant No. 1, a citizen of Texas, and Defendant No. 2, a citizen of California, in a Texas state court. The petition alleges that Defendant No. 1 defrauded plaintiff of millions of dollars and, in a separate and independent transaction, Defendant No. 2 defrauded plaintiff of unrelated funds in the millions of dollars. Which of the following most probably is correct? a. The suit is removable in its entirety to federal court and is not subject to remand. b. The claim against Defendant No. 2 may alone be removed. c. The claim against Defendant No. 1 may alone be removed. d. The suit is removable in its entirety but the federal judge has discretion to remand the claim against Defendant No. 2. e. The suit is removable in its entirety but the federal judge has discretion to remand the claim against Defendant No. 1. 16. The ADR device known as a "mini-trial" would most likely be useful in which of the following kinds of disputes? a. The parties expect to experience frequently recurring small disputes that depend primarily on resolving questions about the operative facts. b. The parties have a very large dispute that combines complex, novel questions of both fact and law. c. The parties agree on the material facts but vigorously disagree about the governing law. d. In a relatively small case not involving issues of principle, the parties seem unable to reach agreement by negotiation because of personality conflicts. e. The parties agree that a fact finder should make a binding decision, but the cost of providing relevant information would be significantly less with a fact finder having relevant expertise than with a jury. 17. The Balderdash Bank is faced with a claim by a borrower who alleges that the Bank induced him to purchase credit life insurance by fraudulent representations contained in a "disclosure form." The Bank knows of five other borrowers who might make similar claims based on use of identical disclosure forms in their separate but similar transactions. The Bank is worried that it may be sued by the other ten in separate suits with inconsistent results as to whether there were misrepresentations. To prevent this outcome, the Bank may use: a. Res judicata. b. Third party practice. c. Impleader. d. Interpleader. e. None of the above. 18. If the plaintiff suing Balderdash Bank in the previous problem were to include class action allegations in his complaint on behalf of all persons similarly situated, the most obvious impediment to certification

under the known facts would be: a. Numerosity. b. Typicality. c. Commonality. d. Adequate representation. e. Ventricularity. 19. The defendant in a federal civil rights case files an offer of settlement for $50,000 for all claims by plaintiff, including costs and attorney's fees. Plaintiff refuses to accept the offer. The jury finds a total of only $6,000 damages. The parties have stipulated that reasonable attorneys fees and costs before the offer were $20,000 and after the offer were $180,000. Under the Federal Rules the result is that: a. Plaintiff now may recover only the $6,000 damages. b. Plaintiff may recover only the $50,000 offer. c. Plaintiff may recover the $6,000 damages plus the $20,000 pre-offer costs and fees. d. Plaintiff may recover the $6,000 damages plus the $20,000 pre-offer costs and fees plus the $180,000 post-offer costs and fees. e. Plaintiff may recover the $50,000 offer plus the $20,000 pre-offer costs and fees. 20. Which of the following statements about the Federal Rules governing pretrial conferences is correct? a. The court is prohibited from ordering the parties to participate in mediation if one party objects. b. The court is required to enter a scheduling order unless the case is exempted by local rule. c. The court is required to order a discovery plan unless there is no need for discovery. d. Both b and c above are correct. e. None of the above is correct. 21. From what you learned in this course, which of the following steps would an attorney intending to offer a photograph as evidence in a Texas state court most correctly perform first? a. Lay the predicate for its introduction. b. Ask the witness to identify it. c. Formally offer it into evidence. d. Ask the witness to interpret its contents. e. Have it marked with an exhibit number. 22. The deposition of a nonparty witness was taken in a suit that now is in trial. The witness is able to appear at trial, is willing and able to testify live, and is within subpoena range. The deposition properly may be offered into evidence, even over an objection directed at the availability of the live witness and as the only testimony from that witness, in which of the following courts? a. The United States Supreme Court. b. A federal district court. c. A Texas state district court. d. Both b and c above. e. None of the above.

23. Under the Federal Rules, the duty to supplement an answer to an interrogatory is likely to be triggered in which of the following circumstances? a. The party who answered the interrogatory is deposed. b. The party reasonably believes he will be unavailable at trial. c. The parties file a joint pretrial order. d. The party who answered the interrogatory discovers that the answer was untrue when given. e. None of the above. 24. A sues B and C. B moves for summary judgment, and the trial judge grants summary judgment that A take nothing against B. A will most likely be able to appeal this judgment now, notwithstanding the pending claim against C, by invoking: a. The final judgment rule. b. The collateral order doctrine. c. The equitable remedy of mandamus. d. Rule 54(b), but only if the judge expressly recites that there is no just reason for delay and directs entry of judgment. e. The writ of error coram nobis. 25. According to what you learned in this course, which of the following statements about strategy is accurate? a. In impeaching a witness with a prior inconsistent statement (such as a deposition answer that seems to vary from the witness' trial testimony), it's best to establish the contradiction as specifically as is practical. b. In pleading a federal complaint, it's best to confine the central elements of the claim to as specific a statement as is practical. c. In discovery, when the question of privilege is close, it's usually best either to object on privilege grounds or to move for a protective order, but not both. d. If a federal judge announces that he will conduct the voir dire examination entirely himself, it's best to suggest questions orally but not in writing. e. None of the above. 26. You have a judgment for $50,000 against Don Deadbeat. You discover that Don has deposited funds at Bank B that are more than adequate to pay the judgment. Your best means of satisfying the judgment from this source would be to apply for: a. A writ of execution. b. A writ of mandamus. c. A writ of error coram nobis. d. A writ of ne exeat. e. A writ of garnishment. 27. Which of the following statements about federal jurisdiction

is true? a. The minimum amount in controversy for diversity cases was increased recently to $100,000. b. The judge has discretion to dismiss or retain jurisdiction if the plaintiff in a diversity case is a citizen of the forum State. c. The judge has discretion to dismiss or retain jurisdiction if the defendant in a diversity case is a citizen of the forum state. d. Both b and c above are correct. e. None of the above is correct. 28. Which of the following statements about the federal discovery rules is true? a. Interrogatories may be directed to non-parties. b. Requests for admission may be directed to non-parties. c. A physical or mental examination can be obtained upon a showing that the person's condition is in controversy and that the examination is reasonably calculated to lead to admissible evidence. d. A deposition may be taken of a corporation. e. One may more readily discover an opposing party's work product if it is "opinion" work product. 29. Plaintiff's federal complaint contains all the elements of a valid contract claim, but it also unambiguously shows on its face that it is subject to a complete defense of limitations. Defendant's best chance to obtain a favorable disposition on the merits without introduction of additional factual material would be by: a. A motion to dismiss for failure to state a claim upon which relief can be granted. b. A motion to strike. c. A special exception. d. A motion for directed verdict. e. A demurrer. 30. Which of the following is not a requirement for the obtaining of a valid temporary restraining order in the typical federal case? a. The defendant must have adequate prior notice of the hearing on the temporary restraining order. b. The plaintiff must file a bond in the amount set by the court. c. The plaintiff must plead particular facts showing the probability of irreparable injury if the order is not granted. d. The order must set forth the acts that the defendant is prohibited from doing. e. The order must be issued by a judge (i.e., the district clerk is not empowered to issue it of his own authority).