Untested Materials

Term

Definition

[Workers' Comp] What is the first step in any workplace-injury problem?

Classify coverage and employer status: subscriber, third-party tortfeasor, or nonsubscriber.

[Workers' Comp] When does subscriber exclusivity generally apply?

Coverage + employer status + work-related injury generally make workers' comp the exclusive remedy.

[Workers' Comp] What special tort remedy survives subscriber exclusivity after a work-related death?

Surviving spouse/heirs may seek exemplary damages for employer gross negligence or intentional act/omission causing death.

[Workers' Comp] Which defenses does a nonsubscriber lose under §406.033?

Employee contributory/comparative negligence, assumption of risk, and fellow-employee negligence.

[Workers' Comp] Which employee-conduct defenses may a nonsubscriber still assert?

Employee intentionally caused the injury or was intoxicated; employer may also contest duty, breach, causation, and damages.

[Workers' Comp] Does §406.033 eliminate the employee's burden to prove employer negligence?

No. The employee must still prove employer/agent negligence and proximate cause.

[Workers' Comp] Can a nonsubscriber allocate fault to the injured employee under Chapter 33?

No. Keng/§406.033 bar employee-fault apportionment.

[Workers' Comp] Can a nonsubscriber allocate fault to a genuine outside third party?

Potentially yes, if Chapter 33 applies and evidence supports submission; ETMC Athens preserves this distinction.

[Workers' Comp] What is the rule on a pre-injury waiver of nonsubscriber rights?

It is void and unenforceable under §406.033(e).

[Workers' Comp] What timing trap applies to a post-injury nonsubscriber waiver?

It generally cannot be obtained before the 10th business day and must satisfy the statutory knowing/voluntary requirements.

[Workers' Comp] Is an arbitration agreement the same as a prohibited pre-injury waiver?

No. Arbitration selects a forum and may be enforceable even though a pre-injury waiver of the substantive right is void.

[Workers' Comp] What happens to a claimant's net excess after carrier reimbursement in a third-party recovery?

The excess generally becomes an advance against future workers' compensation benefits under Chapter 417.

[Ethics] Who decides whether to accept a settlement?

The client. The lawyer advises and negotiates but cannot accept without client authority.

[Ethics] What core formalities apply to a contingent fee?

It must satisfy Rule 1.04, be written and signed, explain fee/expense calculation, and end with a written closing statement.

[Ethics] When may lawyers in different firms divide a fee?

Under Rule 1.04(f), based on proportion of services or joint responsibility, with required client consent/disclosure.

[Ethics] What is the basic rule on sharing legal fees with nonlawyers?

Generally prohibited by Rule 5.04, subject only to narrow rule-based exceptions.

[Ethics] Why can a limited policy create a conflict among multiple PI clients?

Their allocation interests may become materially adverse; counsel cannot simply pick winners among co-clients.

[Ethics] What does an aggregate settlement require?

Each client must consent after consultation disclosing all claims and each person's participation in the settlement.

[Ethics] What must a lawyer do with client or third-party settlement funds?

Keep them separate, promptly notify/account, deliver undisputed funds, and safeguard any genuinely disputed protected amount.

[Ethics] What kind of third-party claim to settlement funds triggers Rule 1.15 protection?

A matured legal or equitable interest in the particular funds, not merely an ordinary unsecured creditor claim.

[Ethics] How is Rule 1.05 confidentiality broader than attorney-client privilege?

It covers information relating to representation, not just privileged confidential lawyer-client communications.

[Ethics] What is the core Rule 4.02 no-contact rule?

Do not communicate about the subject with a person known to be represented unless authorized by law or counsel.

[Ethics] Does a family member automatically gain settlement authority for a diminished-capacity client?

No. Analyze Rule 1.17 and lawful decision-making authority; maintain the client relationship as far as reasonably possible.

[Ethics] Can duties arise from a consultation even if the person never hires the lawyer?

Yes. Rule 1.18 can impose duties to a prospective client before engagement.

[Extraordinary Remedies] What must support an ex parte TRO?

Specific sworn facts showing immediate and irreparable injury before notice and a hearing can occur.

[Extraordinary Remedies] What is the initial maximum duration of an ex parte Texas TRO?

14 days, with one like-period extension for good cause; further extensions generally require consent/unopposed posture.

[Extraordinary Remedies] What notice is ordinarily required to move to dissolve or modify an ex parte TRO?

Two days' notice, unless the court sets a shorter period.

[Extraordinary Remedies] What does Rule 683 require in a TRO or injunction order?

Reasons, specificity, and detailed restrained acts without incorporating another document; a TI must also set the case for trial.

[Extraordinary Remedies] What does Rule 684 require before a TRO or temporary injunction issues?

Security/bond.

[Extraordinary Remedies] What are the Texas temporary-injunction elements?

Cause of action + probable right to relief + probable, imminent, irreparable injury in the interim.

[Extraordinary Remedies] What is the findings-and-conclusions deadline mnemonic?

20 request → 20 court → 30 past-due notice → 40 extended court deadline → 10 additional/amended request.

[Extraordinary Remedies] Under Lehmann, when is a non-conventional-trial order final?

When it actually disposes of all parties/claims or clearly and unequivocally states final disposition of all claims and parties.

[Extraordinary Remedies] What is the basic mandamus standard?

Clear abuse of discretion and no adequate remedy by appeal.

[Extraordinary Remedies] What is the ordinary Texas civil jury-demand timing?

Written demand and fee a reasonable time before trial, but not less than 30 days before trial.

[Texas Discovery] What oral-deposition objections are prescribed?

To questions: 'Objection, leading' and 'Objection, form.' To testimony: 'Objection, non-responsive.'

[Texas Discovery] Which oral-deposition objections are waived if not made at the deposition?

Leading, form, and nonresponsive objections.

[Texas Discovery] When may counsel instruct a deposition witness not to answer?

Privilege, court order/rule, abusive question, necessarily misleading answer, or suspension to obtain a ruling.

[Texas Discovery] When does a time/place challenge automatically stay a deposition?

When the motion is filed by the third business day after service of the notice.

[Texas Discovery] What is the individual oral-deposition time limit?

Six hours per side per individual witness; breaks do not count.

[Texas Discovery] How much notice is generally required for video/nonstenographic recording?

At least five days.

[Texas Discovery] Does a deposition notice alone compel a nonparty eyewitness?

Ordinarily no; a subpoena is required.

[Texas Discovery] What must an organization do for a corporate-representative deposition?

Choose one or more designees and prepare them on reasonably available organizational information for properly described topics.

[Texas Discovery] Must a corporate representative have personal knowledge of the events?

No. The organization must educate the designee about information known or reasonably available to it.

[Texas Discovery] What is the DWQ timing mnemonic?

20–10–5–3–5.

[Intentional Torts] What are the elements of battery?

Intent + harmful or offensive contact + causation; contact need not cause physical injury.

[Intentional Torts] What are the elements of assault?

Intentional creation of reasonable apprehension of imminent harmful or offensive contact; actual contact is unnecessary.

[Intentional Torts] What are the elements of false imprisonment?

Willful detention + without consent + without authority of law.

[Intentional Torts] What must be analyzed before a store can rely on shopkeeper/detention privilege?

Reasonable grounds, reasonable manner, and reasonable duration; the privilege is not absolute.

[Intentional Torts] What are the elements of IIED?

Intentional/reckless conduct + extreme and outrageous conduct + causation + severe emotional distress.

[Intentional Torts] Why is IIED called a 'gap-filler'?

It generally cannot duplicate another recognized tort that already covers the gravamen of the conduct.

[Intentional Torts] What is the key distinction between malicious prosecution and abuse of process?

Malicious prosecution attacks wrongful institution/continuation; abuse of process targets improper collateral use after process issues.

[Intentional Torts] What is the limitations period for malicious prosecution, libel, and slander?

Generally one year.

[Intentional Torts] Does Texas recognize false-light invasion of privacy?

No. Recognized privacy torts include intrusion, public disclosure of private facts, and appropriation.

[Intentional Torts] What special element applies to interference with prospective business relations?

The defendant's conduct must be independently tortious or unlawful.

[Employer Liability] What is respondeat superior?

Vicarious liability for an employee's negligent acts committed within the course and scope of employment.

[Employer Liability] What must negligent hiring/retention generally connect?

Employer duty/breach + employee tort + proximate causation linking both the employee tort and employer negligence to the injury.

[Employer Liability] Is negligent hiring simply another name for respondeat superior?

No. It is a direct-negligence theory aimed at the employer's own conduct.

[Employer Liability] Why does a course-and-scope stipulation matter in ordinary-negligence trucking cases?

It may make derivative direct-negligence theories duplicative under the Patterson/Rosell line reflected in the course materials.

[Employer Liability] Does a vicarious-liability stipulation necessarily eliminate employer gross-negligence theories?

No. The course materials recognize an exception when gross negligence/exemplary damages are independently alleged.

[Commercial Vehicles] When is Chapter 72.052 bifurcation mandatory?

On a timely defendant motion in a covered commercial-motor-vehicle action.

[Commercial Vehicles] What is the Chapter 72.052 motion deadline?

Later of 120 days after the defendant's original answer or 30 days after a claimant adds a covered claim.

[Commercial Vehicles] What is decided in Phase 1 under Chapter 72.052?

Liability for and amount of compensatory damages.

[Commercial Vehicles] What is decided in Phase 2 under Chapter 72.052?

Liability for and amount of exemplary damages.

[Premises/Contractors] What extra showing can Chapter 95 require from an independent-contractor plaintiff?

When Chapter 95 applies, the owner generally must retain/exercise control and have actual knowledge of the danger or condition.

[Chapter 33] At what claimant responsibility percentage is recovery barred?

More than 50% responsibility bars recovery under §33.001.

[Chapter 33] What two basic reductions occur before judgment under §33.012?

Reduce for the claimant's percentage of responsibility and apply the legally applicable settlement credit.

[Chapter 33] Is every defendant jointly and severally liable for the entire judgment?

No. Liability is generally several unless §33.013's statutory threshold or specified conduct creates joint-and-several liability.

[Chapter 33] Can a nonsettling defendant seek contribution from a settling person?

Generally no. §33.015(d) bars contribution against a settling person.

[Chapter 33] Are settlement credit and contribution the same doctrine?

No. A defendant may receive an applicable settlement credit even though contribution against the settlor is barred.

[Chapter 33] Should workers' compensation benefits be treated as an ordinary §33.012 settlement credit?

No. §33.012(e) keeps workers' comp benefits out of the ordinary settlement-credit mechanism.

[Damages] What must be shown for future medical expenses?

A reasonable probability that future injury-related medical expenses will be necessary, with evidence supporting a reasonably probable amount.

[Damages] Is an economist required to prove loss of earning capacity?

No. The measure is impaired capacity to earn; evidence may support it even without an economist.

[Damages] What makes physical impairment a distinct damages element?

A significant limitation producing loss beyond pain/suffering and earning-capacity loss; avoid double recovery.

[Damages] What is the general Chapter 41 exemplary-damages cap structure?

Greater of $200,000 or 2× economic damages + noneconomic damages up to $750,000, subject to statutory exceptions.

[Federal Civ Pro] What creates federal-question jurisdiction?

A federal issue must ordinarily appear on the face of the well-pleaded complaint; a federal defense usually is not enough.

[Federal Civ Pro] What statute governs supplemental jurisdiction?

28 U.S.C. §1367.

[Federal Civ Pro] What is the basic §1367(a) relationship requirement?

The supplemental claim must form part of the same Article III case or controversy as the claim within original jurisdiction.

[Federal Civ Pro] What is the key diversity-case warning under §1367(b)?

Certain plaintiff claims/joinder cannot use supplemental jurisdiction to evade §1332's diversity requirements.

[Federal Civ Pro] Which Rule 12 defenses can be waived if omitted from the first Rule 12 response?

Personal jurisdiction, venue, process, and service: Rule 12(b)(2)-(5).

[Federal Civ Pro] What pleading standard applies after removal?

Federal Rule 8 and Twombly/Iqbal plausibility; fraud/mistake circumstances require Rule 9(b) particularity.

[Federal Civ Pro] What is Rule 11's party-motion safe harbor?

21 days.

[Federal Civ Pro] Does Rule 11 govern discovery papers?

No. Rule 11(d) excludes discovery; Rules 26(g) and 37 supply discovery certification/sanctions.

[Federal Civ Pro] When are initial disclosures ordinarily due?

Within 14 days after the Rule 26(f) conference, absent a different rule/order.

[Federal Civ Pro] What disclosure does a retained testifying expert ordinarily provide?

A Rule 26(a)(2)(B) written report.

[Federal Civ Pro] What is the ordinary consequence of an unjustified, harmful Rule 26 disclosure failure?

Rule 37(c)(1) exclusion unless the failure was substantially justified or harmless.

[Federal Civ Pro] What are the federal jury-demand and verdict baselines?

Demand: 14 days after the last pleading directed to the issue; jury: 6–12 and unanimous unless stipulated otherwise.

[Evidence] How is habit different from character evidence?

Habit/routine practice may prove conduct on a specific occasion without using propensity reasoning; Rule 406 permits it.

[Evidence] What is the basic Rule 404(b) rule for other acts?

Not to prove character/propensity, but potentially admissible for another purpose such as motive, intent, knowledge, or absence of mistake.

[Evidence] What is the basic recorded-recollection rule?

If the witness once knew, now cannot recall fully, and made/adopted an accurate record while fresh, it may be read into evidence.

[Evidence] Can a learned treatise itself be received as an exhibit?

Generally no. Once established as reliable authority, qualifying statements may be read into evidence.

[Evidence] What is the basic business-record foundation?

Made near the time by/from someone with knowledge, kept in regular activity, made as a regular practice, and trustworthy.

[Evidence] What is a present-sense impression?

A statement describing or explaining an event or condition made while or immediately after the declarant perceived it.

[Evidence] What is an excited utterance?

A statement relating to a startling event or condition made while the declarant remains under the stress of excitement.

[Evidence] What medical-treatment statements can fit Rule 803(4)?

Statements made for and reasonably pertinent to diagnosis/treatment describing history, symptoms, inception, or general cause.

[Liens/Subrogation] What is the first question in any reimbursement problem?

Who paid, and what statute, contract, plan, or federal program creates the recovery right?

[Liens/Subrogation] What governs traditional Medicare reimbursement?

Federal Medicare Secondary Payer law; related conditional payments may be recovered after settlement/judgment/payment.

[Liens/Subrogation] What rule governs Medicare's procurement-cost reduction?

42 C.F.R. §411.37, not Texas Chapter 140 or workers' comp fee rules.

[Liens/Subrogation] After Gallardo, what is the key Medicaid allocation line?

Medical versus nonmedical damages; authorized recovery can include both past- and future-medical portions.

[Liens/Subrogation] What is the Chapter 140 ceiling concept for a represented claimant?

Covered payors share the lesser-of branches, including the 50% gross-recovery ceiling, reduced by statutory fees/procurement costs.