Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar prep - civ pro > 4 - Adjudication > Flashcards

4 - Adjudication Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

injunctive relief

A

A court order directing D to either do something or refrain from doing something

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

preliminary injunction

A

An order that maintains the status quo until trial.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

temporary restraining order (TRO)

A

An order that maintains the status quo until the preliminary injunction hearing.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

ex parte

A

When a court does something without giving notice to the other party.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

temporary restraining order (TRO)

Can the court issue a TRO ex parte?

A

Yes, a court can issue a TRO ex parte IN LIMITED CIRCUMSTANCES.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

temporary restraining order (TRO)

When is an ex parte TRO proper?

A

Ex parte TRO is propery ONLY IF:

  1. Applicant files a paper UNDER OATH clearly showing that if the TRO is not issued, he will suffer immediate and irreparable harm if he must wait until the other side is heard.
  2. Applicant’s lawyer certifies in writing his efforts to give oral or written notice to D or D’s lawyer or why such notice should not be required under the circumstances.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

temporary restraining order (TRO)

Why must applicant post a bond if the court issues the TRO?

A

If the court issues the TRO, applicant must post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

temporary restraining order (TRO)

What must the TRO state?

A

The TRO must state its terms in specificity, describe IN DETAIL what D must do or refrain from doing, and state why it was issued and why the threatened injury to P was irreparable.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

temporary restraining order (TRO)

If the court issues the TRO, when must the order be served on D?

A

If the court issues the TRO, the order must be served on D as soon as possible.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

temporary restraining order (TRO)

If the court issues the TRO, what can D do?

A

If the court issues the TRO, D can move to dissolve the TRO or to modify the TRO.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

temporary restraining order (TRO)

When is the TRO effective?

A

TRO is effective for no more than 14 days or lesser time stated by court.
If applicant shows good cause before expiration, it can be extended for up to another 14 days.
TRO cannot extend beyond 28 days.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

preliminary injunction

What is the purpose of a preliminary injunction?

A

Preliminary injunction maintains the status quo until the court can adjudicate the underlying claim on the merits.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

preliminary injunction

Can a preliminary injunction be granted ex parte?

A

No, a preliminary injunction can NEVER be granted ex parte.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

preliminary injunction

What must the applicant for the preliminary injunction show?

A

The burden is on the applicant to show:

  1. He is likely to suffer irreparable harm if the injunction is not issued;
  2. He is likely to win on the merits of the underlying case.
  3. The balance of hardship favors him (threatened harm to applicant outweighs harm to other party if the injunction is issued) AND
  4. The injunction is in the public interest
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

preliminary injunction

Is there ever a right to an injunction?

A

No, an injunction is always discretionary with the court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

preliminary injunction

Why must applicant post a bond if the court issues the preliminary injunction?

A

If the court issues the preliminary injunction, applicant must post a bond to cover the other side’s costs and damages caused if it turns out the restraint is wrongful.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

preliminary injunction

What must the preliminary injunction state?

A

The preliminary injunction must state its terms in specificity, describe IN DETAIL what D must do or refrain from doing, and state why it was issued.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

preliminary injunction

What must a preliminary injunction hearing state that is different from a TRO?

A

In granting or denying the preliminary injuction, the court must make specific findings of fact AND separate conclusions of law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

preliminary injunction

Is an order granting or denying preliminary injunction immediately appealable?

A

An order granting or denying preliminary injunction is immediately appealable, even though it is not a fiinal judgment.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

pretrial adjudication - methods

A

voluntary dismissal
default and default judgment
motion to dismiss for failure to state a claim
motion for summary judgment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

pretrial adjudication

voluntary dismissal

A

voluntary dismissal - a motion to withdraw from the case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

pretrial adjudication

voluntary dismissal - filing

A

P has a right to take a voluntary dismissal by filing a “notice of dismissal.”
Filing must be done before D serves an answer OR motion for summary judgment.
If P files a timely notice, the case is dismissed without prejudice. (P can refile the case.)
If P files a notice of dismissal in the second case, the case is dismissed with prejudice. (P can not file another case.)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

pretrial adjudication

default

A

default - A notation by the court clerk on the docket sheet of the case that D did not respond to the complaint in time (21 days after being served with process or 60 days from mailing of waiver if waived service)
P must move for default, which cuts off D’s right to respond.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

pretrial adjudication

default judgment

A

Entitles P to recover in the case based on the default.
Clerk of court can enter default judgment if:
1. D made no response at all
2. The claim itself is for a sum certain in money
3. Claimant gives an affidavit of the sum owed AND
4. D is not a minor or incompetent
If all 4 are not met, P must apply to the court for default judgment.

25
Q

pretrial adjudication

default judgment - hearing

A

Judge will hold a hearing and has discretion to enter judgment. D can get notice of the hearing ONLY if he appeared in the case.

26
Q

pretrial adjudication

default judgment - recovery

A

In a default judgment, you cannot recover more than you pleaded.
If you pled for damages, you cannot recover for an injunction.
The only way to recover different from the pleading is to go to trial.

27
Q

pretrial adjudication

motion to set aside

A

Moving the court to set aside a default or default judgment by showing of good cause and MUST HAVE a viable defense.

28
Q

pretrial adjudication

motion to dismiss for failure to state a claim

A

If P’s complaint fails to state a claim, case can be dismissed.
Court ignores P’s legal conclusions, looks only at P’s allegation of facts in the complaint, and asks, “If those facts were true, would P win a judgment.”
If no, then court should dismiss the case.

29
Q

pretrial adjudication

motion on the pleadings

A

Like motion to dismiss for failure to state a claim, but it is made after D has answered.

30
Q

pretrial adjudication

summary judgment

A
  1. No genuine dispute of material fact
  2. Entitled to judgment as a matter of law
    Court views the evidence in the light most favorable to the nonmoving party
31
Q

pretrial adjudication
summary judgment
Must the court enter summary judgment?

A

If the moving party shows no genuine dispute of material fact and is entitled to judgment as a matter of law, the court does not have to enter summary judgment as it is always discretionary.

32
Q

pretrial adjudication
summary judgment
Can the summary judgment motion be for partial judgment for one or more of several claims?

A

Yes, partial summary judgment or summary adjudication can be the motion.

33
Q

pretrial adjudication

summary judgment - timing

A

Any party can move for summary judgment NO LATER THAN 30 DAYS after the close of discovery.

34
Q

pretrial adjudication
summary judgment
Can the court look at evidence when evaluating summary judgment?

A

The court looks at evidence in the light most favorable to the nonmoving party.
Affidavits, declarations, deposition testimony and interrogatory answers are all evidence that can be considered because they were given under oath.

35
Q

pretrial adjudication
summary judgment
pleadings as evidence

A

Generally, pleadings are not evidence because they are not under oath. But if D failed to deny an allegation by P, it can be treated as a fact for summary judgment.

36
Q 
conference & meetings
rule 26(f) conference
A

At least 21 days before scheduling order, parties meet and confer to discuss production of required initial disclosures, claims, defenses, settlement, and preservation of discoverable information. They must also present a detailed discovery plan to the court.

37
Q

conference & meetings

scheduling order

A

Order scheduling cut-offs for joinder, amendment, motions, completion of discovery, etc. A roadmap for how the litigation proceeds up to trial.

38
Q

conference & meetings

pretrial conference

A

Meeting to process the case and foster settlement.
Final pretrial conference will determine the issues to be tried and evidence to be proffered at trial.
This is recorded in the pretrial conference order, which is a roadmap of the issues to be tried, evidence to be presented at trial, witnesses, etc.
No surprises at trial.

39
Q

trial, judgment and post-trial motions

jury trial

A

A jury determines the facts and returns the verdict.

If we don’t have a jury, judge determines the facts and returns the verdict in a bench trial.

40
Q

trial, judgment and post-trial motions

jury trial - 7th AMD

A

7th AMD preserves the right to jury in civil actions at law but not suits at equity.
Must demand a jury in writing no later than 14 days after service of the last pleading raising jury triable issue. If you don’t, you waive the right to a jury.
If a case involves both law and equity, the jury decides the facts underlying the damages claim but not the equity claim.
Jury issues will be decided first, then facts for the judge.
7th AMD does NOT apply in state court

41
Q

trial, judgment and post-trial motions
jury trial - selection of jury
voir dire

A

voir dire - jury selection process

42
Q

trial, judgment and post-trial motions
jury trial - selection of jury
juror challenges

A

asking the court to remove potential jurors

for cause and peremptory

43
Q

trial, judgment and post-trial motions
jury trial - selection of jury
juror challenges - for cause

A

for cause - juror struck for a reason

no limit to the number of for cause challenges

44
Q

trial, judgment and post-trial motions
jury trial - selection of jury
juror challenges - peremptory

A

peremptory - juror struck for no reason
limit 3 peremptory challenges per side
May ONLY be used in a race neutral and gender neutral manner because jury selection is state action.

45
Q 
trial, judgment and post-trial motions
jury trial - selection of jury
# of jurors
A

minimum 6 jurors - maximum 12 jurors
Generally, all jurors participate in the verdict unless excused for good cause.
Must be at least 6 jurors to return a verdict, and the verdict must be unanimous.

46
Q

trial, judgment and post-trial motions

jury trial - jury instructions

A

Jury decides facts, but the judge instructs the jury on the law.
Parties submit proposed jury instructions to the judge at the close of all evidence. Before final argument and instruction, court informs the parties on the jury instructions and of its rejection of any jury instructions.

47
Q

trial, judgment and post-trial motions

jury trial - jury instruction objections

A

Parties can make specific objections to the instructions and to the rejection of proposed instructions before final argument and instruction.
If objections are not made before the jury is charged, the party cannot raise a problem w/jury instructions on appeal.
One exception: If a party did not object timely, a court can consider a jury instruction if it contained PLAIN ERROR that affects substantial rights.

48
Q

trial, judgment and post-trial motions

jury trial - types of verdicts

A

General - says who wins and what the relief is (if P won).
Special - Jury answers specific questions about the facts in dispute. The judge then reaches legal conclusions based on the facts found.
General verdict with special interrogatories - Jury gives a general verdict but must also answer specific questions submitted to it. The questions ensure that the jury considered the most important issues.

49
Q

trial, judgment and post-trial motions

jury trial - entry of judgment

A

General verdict - Clerk of court enters the judgment
Special verdict or general verdict w/special interrogatories - Judge approves the judgment and clerk enters it.
If jury did not follow instructions OR if it is internally inconsistent, no judgment can be entered. Court can instruct the jury to reconsider its answers or, if reconsideration won’t fix the problems, it can order a new trial.

50
Q

trial, judgment and post-trial motions

jury trial - juror misconduct

A

Court can set aside the verdict and order a new trial because of juror misconduct.
A juror cannot testify about things occurring or statements made during jury deliberation except to show extraneous prejudicial information or outside influence.
A verdict will not be set aside if the misconduct was harmless.

51
Q

trial, judgment and post-trial motions

bench trial

A

When there is no jury trial, the judge determines the facts at the bench trial.
(7th AMD either did not apply or parties waived trial by jury.)
Judge must record findings of fact on record or in writing.
Judge must record conclusions of law separately from findings of fact.
Judge must enter the judgment telling who wins and the relief (if P won).

52
Q

trial, judgment and post-trial motions

motion for judgment as a matter of law (JMOL)

A

Judge instead of jury rules based on evidence presented at trial.
Granted if reasonable people could not disagree on the result.
Like summary judgment (no genuine dispute of material fact) except it comes AT TRIAL instead of before trial.
Court views the evidence in the light most favorable to the nonmoving party.
Used to be called directed verdict.

53
Q

trial, judgment and post-trial motions

JMOL - timing

A

JMOL can be moved after the other side has been heard at trial.

54
Q

trial, judgment and post-trial motions

Renewed motion for judgment as a matter of law (RJMOL)

A

Same as JMOL but comes up after trial.
May be granted because the jury reached a conclusion that reasonable people could not have reached.
If RJMOL is granted, the court enters judgment for the party that lost the jury verdict.

55
Q

trial, judgment and post-trial motions

RJMOL - timing and requirements

A

RJMOL can be moved within 28 days after entry of judgment.
Absolute prerequisite to bringing RJMOL - must have moved for JMOL at proper time at trial. Failure to do so waives RJMOL.

56
Q

trial, judgment and post-trial motions

motion for new trial

A

judgment was entered but some error at trial requires starting over with a new trial.
Can be based on any non-harmless error that makes the judge think there should be a new trial.
Party must move for this within 28 days after judgment.

57
Q

trial, judgment and post-trial motions

remittitur

A

Taking a lesser amount of damages because the damages figure shocks the conscience.
Must give P the choice of lower figure or new trial.
Available in state and fed ct

58
Q

trial, judgment and post-trial motions

additur

A

Paying a greater amount of damages because the damages figure shocks the conscience.
Must give D the choice of lower figure or new trial.
Only available in state but not fed ct (violates the 7th AMD)

59
Q

trial, judgment and post-trial motions

motion for relief from order or judgment

A

Asking the court to set aside the order or judgment it entered.
clerical error (anytime)
mistake, excusable neglect including viable defense (reasonable time not more than a year)
new evidence that could not have been discovered w/due diligence for a new trial motion (reasonable time not more than a year)
judgment is void (reasonable time w/no max)

Bar prep - civ pro (6 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions