Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

Civil Procedure > Adjudication and Appeals > Flashcards

Adjudication and Appeals Flashcards

1
Q

What is the difference between a TRO and a preliminary injunction?

A

A TRO maintains status quo until a hearing for a preliminary injunction. A preliminary injunction maintains status quo until trial.

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

When may a TRO be issued ex parte?

A

A TRO may be issued ex parte only if the applicant files under oath saying she will suffer immediate and irreparable harm if she must wait until the other side is heard, and her lawyer certifies the efforts to give notice or why notice should not be required.

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

What must an applicant do if a TRO is issued?

A

The applicant must post bond to cover the other party’s costs and damages if it turns out restraint was improper.

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

What are the contents of a TRO?

A

The TRO must specifically state its terms, describe in detail what must be done or be refrained from, state why the TRO was issued, and why the threatened injury to the applicant was irreparable.

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

What is the duration of a TRO?

A

14 days, but it may be extended for another 14 days with good cause.

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

What if a TRO is extended beyond 28 days?

A

It will be treated as a preliminary injunction.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

May a preliminary injunction be issued ex parte?

A

No.

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

Who has the burden of proof for a preliminary injunction?

A

The applicant.

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

What must an applicant show to get a preliminary injunction?

A

(1) she is likely to suffer irreparable harm if the injunction is not granted
(2) she will likely win on the merits of the underlying case
(3) the balance of hardships favors the applicant
(4) the injunction is in the public interest

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

What must an applicant do if she prevails on a preliminary injuction?

A

The applicant must post bond to cover the other party’s costs and damages if it turns out the injunction was improper.

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

What are the contents of a preliminary injunction?

A

The preliminary injunction must specifically state its terms, describe in detail what must be done or be refrained from, and state why the it was issued. Additionally, the court must state specific findings of fact and conclusions of law.

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

Is a preliminary injunction appealable?

A

Yes, a grant or denial of a preliminary injunction is appealable as a matter of right.

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

When may a plaintiff voluntarily dismiss a case without leave from the court?

A

The plaintiff may voluntarily dismiss before the defendant serves an answer or a motion or when the parties stipulate to dismissal.

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

Is a voluntary dismissal “with prejudice”?

A

The first voluntary dismissal is without prejudice. The second is with prejudice. This is true even if the first case was filed in state court.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

When does a default occur?

A

A default occurs when the defendant does not respond to the complaint in time.

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

What is a default?

A

A default is a notation in by the clerk of the court.

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

How does a plaintiff get a default?

A

The plaintiff must move for entry of default and show that the defendant has not responded.

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

May a defendant respond late to a complaint?

A

Yes, a defendant may respond until a default is entered.

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

Does a default entitle a plaintiff to relief?

A

No, a plaintiff must seek a default judgment.

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

When can the clerk of the court issue a default judgment?

A

The clerk of the court can issue a default judgment when the defendant has not responded at all, the claim is a for a sum certain, the plaintiff gives an affidavit of the sum, and the defendant is not a minor or incompetent.

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

When must the court enter a default judgment?

A

When the claim does not meet the criteria for the clerk of the court to enter it.

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

Is the defendant entitled to notice of a hearing for a default judgment?

A

Yes, if the defendant has responded in some way.

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

Is the plaintiff’s recovery limited in a default judgment?

A

Yes, to the amount pleaded in the complaint.

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

When may a default judgment be set aside?

A

A motion to set aside may be granted if the defendant shows good cause and a viable defense.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
What is the difference between a motion to dismiss and a motion for judgment on the pleadings?
A motion for judgment on the pleadings is used when the defendant has filed an answer. A motion to dismiss is used before the answer.
26
How does a judge rule on a motion to dismiss?
The judge looks only at the plaintiff's allegations and determines if the allegations, taken as true, state a plausible claim for relief.
27
What is the standard to grant a motion for summary judgment?
A motion for summary judgment should be granted if the moving party shows, in the light most favorable to the nonmoving party, there is no genuine dispute as to a material fact and she is entitled to judgment as a matter of law.
28
When can a party move for summary judgment?
A party can move for summary judgment no later than 30 days after the close of discovery.
29
What evidence is considered in deciding a motion for summary judgment?
The court will consider evidence that would be admissible at trial (e.g. affidavits, declarations, depositions, and interrogatories).
30
May a court allow a party to gather more evidence to oppose a motion for summary judgment?
Yes, if the party shows by affidavit or declaration what the evidence would be.
31
What is a Rule 26(f) conference?
A Rule 26(f) conference is when the parties meet and confer, at least 21 days before the scheduling order, to discuss production, claims defenses, settlement, and preservation?
32
How long do the parties have to present a discovery plan after the Rule 26(f) conference?
14 days
33
What are the contents of the discovery plan?
The plan must include views and proposals on timing and discovery of ESI.
34
What is a scheduling order?
A scheduling order sets the cut-offs for joinder, amendment, motions and completion of discovery.
35
What is the final pretrial conference?
The final pretrial conference determines the issues to be tried and evidence to be proffered.
36
What is a motion in limine?
A motion in limine is a pretrial motion outside the presence of the jury to decide whether the jury should hear certain evidence.
37
When does 7A guarantee a right to trial by jury?
In federal but not state courts, 7A guarantees a right to trials for civil actions at law but not suits in equity.
38
What is the right to trial by jury when the issues are mixed questions of law and equity?
Facts for the legal questions will be tried to the jury. Facts that relate only to the equitable claim are tried to the judge, generally after the jury trial.
39
How does a party exercise the right to trial by jury?
The party must demand the jury in writing no later than 14 days after service of the last pleading (usually the answer) addressing a jury triable issue.
40
How many jurors may be challenged for cause?
An unlimited number.
41
How many peremptory strikes are available?
Each side is limited to three.
42
What is a peremptory strike?
A peremptory strike is when a party challenges a jury with no reason given.
43
How many jurors are there in federal court?
There must be at least 6 jurors and no more than 12.
44
What does a judge need to do to address jury instructions?
Before the final argument, on the record, the court must say (1) what jury instructions it will give and (2) what proposed instructions it rejected. The parties must be allowed to object on the record, away from the jury.
45
What happens if a party does not object to a jury instruction?
If a party does not object to a jury instruction before the jury is charged, the objection is waived.
46
Can a court revisit a waived objection for a jury instruction?
Only if there was clear error that affected the rights of the parties
47
What is a general verdict?
A general verdict says who wins and, if the plaintiff wins, what the relief is.
48
What is a special verdict?
In a special verdict, the jury answers questions about the facts in dispute. It does not say who wins.
49
What is a general verdict with written questions?
A general verdict with written questions has a general verdict where the jury answers specific questions submitted to it.
50
Who enters a verdict?
If the jury returns a general verdict, the clerk of the court enters it. If the jury returns a special verdict or a general verdict with written questions, and the answers are consistent with each other, the judge approves the verdict and the clerk enters it.
51
What happens if there is an inconsistency between the general verdict and the written questions?
If the answers are consistent with each other but inconsistent with the verdict, the court may enter the appropriate judgment, tell the jury to reconsider, or order a new trial. If the answers are inconsistent, and one or more is inconsistent with the general verdict, no judgment can be entered, but the court can tell the jury to reconsider, or order a new trial.
52
Will a verdict be set aside due to juror misconduct?
No, if the error was harmless.
53
What must a judge do in a bench trial?
Orally on the record or in writing, a judge must record the findings of fact and separately state the conclusions of law. The judge must also enter a judgment with who wins and, if the plaintiff, what the relief is.
54
What is a motion for judgment as a matter of law?
JMOL is like summary judgment, but it comes up at trial instead of before it.
55
What is the standard for JMOL?
The standard is that reasonable people could not disagree on the result, viewing the evidence in the light most favorable to the nonmoving party.
56
When may a party move for JMOL?
A party may move for JMOL any time before the case is submitted to the jury.
57
When may a court grant JMOL?
The court may only grant JMOL after the opposing party has been heard at trial on the issue.
58
What is a renewed motion for judgment as a matter of law?
RJMOL is the same as JMOL but comes up after trial.
59
What happens if RJMOL is granted?
If RJMOL is granted, the court enters judgment for the party that lost the jury verdict.
60
When must RJMOL be made?
RJMOL must be made after JMOL and no more than 28 days after the entry of judgment.
61
When is RJMOL waived?
When the party fails to raise JMOL at trial.
62
Can a party introduce new arguments in an RJMOL?
No, the motion must be made on the same grounds as the JMOL.
63
When can a new trial be granted?
A new trial can be granted when there is any non-harmless error.
64
When must a party move for a new trial?
A party must move within 28 days of the judgment.
65
Must a party move for JMOL or RJMOL before moving for a new trial?
No. Even if RJMOL is waived, a party can still move for a new trial.
66
What is the standard for a jury damages figure that is excessive or inadequte?
The figure "shocks the conscience."
67
What is remittitur?
Remittitur is when the court offers a plaintiff the choice to remit part of the award or have a new trial.
68
Is remittitur allowed in federal courts?
Yes.
69
May a judge lower a damage award rather than use remittitur?
No because lowering the award would violate 7A.
70
What is additur?
Additur is when the court offers the defendant a choice to add to an award or go to a new trial.
71
Is additur allowed in federal court?
No because it violates 7A. Federal courts would have to grant a new trial.
72
What is an offer of judgment?
An offer of judgment is when a defendant submits a formal settlement offer to before trial.
73
When must an offer of judgment be made?
An offer of judgment may be made up to 14 days before trial.
74
What happens if a plaintiff rejects an offer of judgment?
If a plaintiff rejects an offer of judgment and does not do as well at trial, he must pay the defendant's costs.
75
When may a motion to set aside be made for relief from a clerical error?
Any time.
76
When may a motion to set aside be made for relief from and order of judgment for mistake or excusable neglect?
Reasonable time, not more than one year.
77
When may a motion to set aside be made for relief from an order of judgment for fraud, misrepresentation or party misconduct?
Reasonable time, not more than one year.
78
When may a motion to set aside be made for relief from an order of judgment for newly discovered evidence?
Reasonable time, not more than one year.
79
When may a motion to set aside be made for relief from an order of judgment for a void judgment?
Reasonable time, no limit.
80
When is newly discovered evidence grounds to set aside an order or judgment?
Newly discovered evidence must not have been discoverable with due diligence. The facts must have existed at the time of trial.
81
What is the final judgment rule?
A losing party has a right to appeal if the court's order is a final judgment.
82
Are remand orders reviewable on appeal?
No.
83
When must a notice of appeal be filed?
Within 30 days after the entry of judgment.
84
May an injunction be appealed?
Yes, an order granting, denying or modifying a preliminary or permanent injunction is reviewable as of right.
85
Is a TRO appealable?
Only if it is extended beyond 28 days.
86
When is an order appealable under the Interlocutory Appeals Act?
An order is appealable under the interlocutory appeals act when: (1) the judge certified that it involves a controlling issue of law (2) as to which there is substantial ground for difference of opinion, and (3) the court of appeals agrees to hear it
87
What is the collateral order doctrine?
The court of appeals has the discretion to hear a appeal on an issue if it (1) is distinct from the merits of the case (2) involves an important legal question (3) is essentially unreviewable if the parties await judgment
88
May a final judgment on one claim where multiple claims are presented be appealed?
Yes, if the district court directs an entry of final judgment for the clam and makes an express finding that there is no just reason for delay.
89
Is an order granting or denying certification of a class action reviewable?
Yes, at the discretion of the court of appeals.
90
When must an an order granting or denying certification of a class action be appealed?
The party seeking review must do so no later than 14 days after the order.
91
What is a writ of mandamus or prohibition?
A writ of mandamus or prohibition is an original proceeding in the court of appeals to compel a district judge to make or vacate an order.
92
When is a writ of mandamus or prohibition available?
A writ of mandamus or prohibition is available only when the district judge is violating a clear legal duty.
93
What standard of review is used for questions of law?
Questions of law are reviewed de novo.
94
What standard of review is used for questions of fact in a bench trial?
Questions of fact in a bench trial are affirmed unless they are clearly erroneous.
95
What standard of review is used for questions of fact in a jury trial?
Questions of fact in a jury trial will not be disturbed unless reasonable people could not have made the same finding.
96
What standard of review is used for discretionary matters?
Discretionary matters will be affirmed unless the trial judge abused his discretion.
97
What is harmless error?
No reversal is required (even for issues of law) if the error did not affect the outcome of the case.

Civil Procedure (4 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions