Adjudication - Trial Flashcards
What is a nonsuit?
Plaintiff decides to dismiss voluntarily without prejudice.
Only one nonsuit as a matter of right.
Others can be allowed by the court with notice to the other parties. Party taking a nonsuit must inform the court of all previous nonsuits and that number must be reflected in the court order.
Timing of Nonsuit
P has a right to a nonsuit once without prejudice unless any of these are true:
1) Jury is retired from bar
2) Nonjury case submitted to court for a decision
3) Motion to strike evidence is granted
4) Demurrer or special plea is fully argued and awaiting a decision.
If Defendant files a counterclaim, cross claim etc. Plaintiff can take a nonsuit only if D agrees or the claim can be adjudicated independently.
After taking a nonsuit, P wants to refile against same Defendant, where must they refile?
Same court unless it lacks jurisdiction, or venue, or unless good cause is shown to litigate somewhere else.
Default & Default Judgement
Party is in default if they fail to respond to an affirmative pleading within the allowed time.
The court enters default automatically.
If D is in default, they waive notice to further proceedings. However notice will be given to counsel of record or posted service.
They also waive jury trial at further proceedings.
What happens after D defaults?
P moves for entry of Default Judgement
- If damages are liquidated, the Judge will enter a judgement for that amount.
- If damages are not liquidated, P may move for a hearing on damages. P can request a jury for this hearing.
What happens if the Defendant Defaults, plaintiff requests a hearing on the damages, and Defendant then shows up to that hearing and wants to introduce evidence?
He is allowed to appear and litigate damages only. Cannot litigate liability.
Defendant can cross examine witnesses and offer evidence on damages only.
Summary Judgement
No genuine dispute of material fact and the moving party is entitled to a judgement as a matter of law.
Any party can move for summary judgement.
If all parties agree, a motion for summary judgement can be based on deposition testimony.
A party cannot base their motion on affidavits
A conflict in pleadings regarding a material fact, creates a triable issue. So if pleadings show a dispute in material facts, the court may grant summary judgement.
Jury Trial
Circuit Court Only
When there are some legal issues to be tried and some equitable issues, the legal issues will be tried first in front of the jury and then the equity issues by the judge.
The judge is bound by the decision of the judge
Must file a written demand within 10 days after service of the last pleading raising the jury triable issues.
If there is a right to a jury but no party demands it, it is a bench trial unless court orders jury.
Jury Size
More than 25K - 7 people
Less than 25K - 5 people
If parties consent, a 3 person jury may be used.
Challenging a Potential Juror for Cause
When a potential juror is related to a party, has an interest in the case being tried, or has expressed an opinion or bias in the matter, he can be stricken from the panel for cause.
It is reversible error for a court to force a party to use one of there preemptory strikes, when the juror should be stricken for cause.
Each side is entitled to unlimited for cause challenges.
Preemptory Challenges
Each side gets 3 preemptory challenges
Preemptory challenges cannot be based on race or gender.
Can the judge allow the jury to view premises?
Yes, if necessary to a just adjudication
Can the judge allow pleadings into the jury room?
No
Can the judge allow exhibits in the jury room?
Yes at judge’s discretion
If a witness who was excluded (sequestered) from the courtroom sneaks back in to the courtroom and listens to evidence, can the judge nonetheless allow the witness to testify?
Yes in court’s discretion.
Juries & Equitable Causes of Actions
Juries can be used concerning equitable causes of action in certain situations.
Sometimes the juries decision will be binding on the judge and other times merely advisory.
- Any party has the right to demand a jury to decide facts of a special plea. This will be binding.
- The court may on its own motion refer an issue out of chancery. Probably needs to make a finding of conflicting evidence. Advisory.
- Any party may file an affidavit that the case will be rendered doubtful by conflicting evidence of another party, in which case the court may refer issues out of chancery. Advisory
An advisory jury is to “aid the conscience” of the judge, It could be an abuse of discretion if the judge disregards the finding of the jury if supported by substantial evidence.
Presentation of Evidence at Trial
GDC - Testimony given orally
- In a PI case may present evidence of treatment of the injury by a health care provider’s report or by hospital records.
- Medical Report may be admitted if intent to use report was given to the other party at least 10 days in advance of trial.
- Health Care Providers report must be accompanied by a sworn statement that the party was treated by her and that the information contained in the report is true and accurate and fully describes the injury. As well as that any statement of costs in the report is true and accurate.
Hospital Records may be admitted if they are accompanied by a sworn statement by the person who had custody of the records, that the records are true and accurate.
Property Damage:
- if PD is more than $2,500.00 in either Circuit or GDC evidence of such damage may be admitted by an itemized estimate or appraisal of the person who repaired the vehicle.
The estimate must include a statement under oath that (1) he is the motor vehicle repair person qualified to determine the amount of damages (2) length of time that he has done such work and (3) the name and address of his employer.
- A copy of the estimate must be mailed or delivered to adverse party at least 7 days before trial. If not done, it cannot be admitted unless the other party agrees.
If the PD is less than $2,500 no need to give it to the other side in advance of trial.
Trial of Equitable Cause of Action
Evidence is usually by deposition transcript with no live testimony.
Can be oral if the court desires.
Will be oral any time a jury is used.
What is oral presentation of testimony called?
Ore tenus
What is a Motion to Strike Evidence
Essentially same as a JMOL
Defendant would raise it at the end of P’s case saying that looking at the evidence in a light most favorable to the nonmoving party, the Plaintiff has failed to prove their case.
The court will grant the motion if a jury could only properly find one way. Only when it is conclusively apparent that Plaintiff has proven no cause of action.
If a judge feels the standard is met, they would strike the evidence and grant enter summary judgement.
Jury Verdict
Must be unanimous, unless the parties stipulate otherwise.
If it’s not unanimous, hung jury and mistrial
When coming to the verdict, can the jury members all set forth their own damage figures and then divide by the number of jurors?
No. This is called a quotient verdict. They cannot do this. They must come to the verdict as a product of deliberation.
Hard to prove a quotient verdict because the jurors can be asked about overt misconduct, but not about subjective thought process.
Rehearing in General District Court
You can ask for a rehearing, no later than 30 days after the entry of a judgement.
Court must rule on the Motion no later than 45 days of entry of the judgement,
Circuit Court - 21 Day Rule
Every final judgement or decree remains in the breast of the court for 21 days days after entry.
During this period, the court may suspend, vacate, or modify a judgement.
If the court doesn’t suspend, vacate, or modify within the 21 days, they must deny it.
Exception: Fraud. They can vacate a judgement or decree on the basis of fraud for 2 years.
