Burden of Persuasion/ Adjucation w/ Trial

Question 1

Under Rule 41, (Voluntary dismissal) when may a P dismiss an action w/o a court order?

Answer 1

1. by filing a notice of dismissal before the opposing party serves an answer

OR

2. before the opposing party files a motion for summary judgement

OR

3. Stipulation of dismissal signed by all parties

Question 2

Unless the notice or stipulation states otherwise the dismissal is _____

Answer 2

without prejudice

Question 3

What is the order of trial in a jury case? (10 steps)

O/D/R/FA/I

Answer 3

1. Plaintiff’s opening statement
2. Defendant’s opening statement
3. Plaintiff’s presentation of direct evidence
4. Defendant’s presentation of direct evidence
5. Plaintiff’s presentation of rebuttal evidence
6. Defendant’s presentation of rebuttal evidence
7. Opening final argument by plaintiff
8. Defendant’s final argument
9. Closing final argument by plaintiff
10. Giving instructions to the jury

Question 4

What is the difference in the order of a trial in jury cases vs. non jury cases?

Answer 4

In non jury cases, there are no opening or closing statements and there is no instruction to the jury

Question 5

Who is the fact-finder in a trial?

Answer 5

The jury

Question 6

A party waives its right to a jury trial unless its demand is _____

Answer 6

properly served and filed

Question 7

Which rules outline the way in which a party demands a jury trial and the procedure for the court when a demand for a jury trial has or has not been made?

Answer 7

Rule 38 & Rule 39

Question 8

What is the required size of a jury?

Answer 8

Jury must have at least 6 persons and no more than 12 persons (some states allow less than 6 in civil trials)

Question 9

What is the Batson challenge?

Answer 9

The batson challenge says that you cannot strike a juror based on race, gender, or financial status

Question 10

Once the moving party meets its initial burden of production, the burden shifts to _____

Answer 10

The non-movant

Question 11

When is judgment as a matter of law (Rule 50) triggered?

Answer 11

When there will be no legally sufficient evidentiary basis for a jury to render a verdict

Question 12

What are the 3 circumstances where judgment as a matter of law can be raised

Answer 12

1. End of plaintiffs case and chief
2. End of D’s case, by the P
3. After the jury returns the verdict

Question 13

What is the standard of review for judgment as a matter of law?

Answer 13

Judge must look at all evidence in the record, drawing inferences in favor of non-moving party, making no credibility determinations, and disregarding what a jury is not required to believe

Question 14

What is the required size of the jury?

Answer 14

6 people required, but up to 12 allowed

Question 15

Under Rule 41, if a P files the same claim they voluntarily dismissed, what may they be required to do?

Answer 15

1. Pay part cost of the previous action

2. Stay the proceeding until P has complied with previous order