Ch. 3: Civil Dispute Resolutions Flashcards
En Banc
“On the Bench”
Reverse
Indicates that it annuls or avoids the judgment, or vacates the decree, of the trial court.
Modify
Change the lower court’s judgment.
Remand
To send back. The sending by the appellate court of a cause back to the same court out of which it came, for the purpose of having some further action taken on it there.
Appeal by right
Mandatory review by a higher court.
Affirm
Uphold the lower court’s judgment.
Writ of certiorari
To be informed of. It is most commonly used to refer to the Supreme Court of the United States, which uses the writ of certiorari as a discretionary device to choose the cases it wishes to hear.
Certiorari
To be more fully informed
Inferior trial courts
Hear minor criminal cases such as traffic offenses and civil cases involving small amounts of money and conduct preliminary hearings in more serious criminal cases
Small claims courts
Inferior civil courts with jurisdiction limited by dollar amount.
Jurisdiction
The right and power of a court to adjudicate concerning the subject matter in a given case.
Subject matter jurisdiction
Authority of a court to decide a particular kind of case.
Exclusive Federal jurisdiction
Exclusive federal jurisdiction jurisdiction that permits only the federal courts to hear a case
Concurrent Federal jurisdiction
Authority of more than one court to hear the same case.
Federal question
Any case arising under the Constitution, statutes, or treaties of the United States.
Diversity of citizenship
There is no common state citizenship between the plaintiffs and the defendants in a suit.
Conflict of laws rules
That branch of jurisprudence, arising from the diversity of the laws of different nations, states, or jurisdictions, that reconciles the inconsistencies, or decides which law is to govern in a particular case.
Stare decisis
Precedent is a principle or rule established in a legal case that becomes authoritative to a court or other tribunal when deciding subsequent cases with similar legal issues or facts.
Jurisdiction over the parties
Power of a court to bind the parties to a suit.
Personal jurisdiction (In Personam)
Jurisdiction based on claims against a person, in contrast to jurisdiction over his property.
Long-arm statutes
A law that gives a court the power to exercise personal jurisdiction over a defendant who is not a resident of the state.
In rem jurisdiction
A court’s power to exercise authority over property or a status against a person when the court does not have in personam jurisdiction over that person.
Quasi in rem jurisdiction
A technical term used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions, which are said to be in personam.
Venue
“Jurisdiction” of the court means the inherent power to decide a case, whereas “venue” designates the particular county or city in which a court with jurisdiction may hear and determine the case.
Litigation
Process of taking legal action.
Class action
Lawsuit filed or defended by an individual or small group acting on behalf of a large group
Pleadings
A series of responsive, formal, written statements in which each side to a lawsuit states its claims and defenses
Complaint
The pleading which sets forth a claim for relief.
Summons
Writ or process directed to the sheriff or other proper officer, requiring him to notify the person named that an action has been commenced against him in the court from which the process has issued and that he is required to appear, on a day named, and answer the complaint in such action.
Default judgment
Judgment against a defendant who fails to respond to a complaint.
Pretrial motions
A request made to the court by the defense or prosecution before a trial to address specific issues that may impact the case.
Demurrer
An allegation of a defendant that even if the facts as stated in the pleading to which objection is taken be true, their legal consequences are not such as to require the demurring party to answer them or to proceed further with the cause.
Answer
The answer is the formal written statement made by a defendant setting forth the ground of his defense
Affirmative defense
A response that attacks the plaintiff’s legal right to bring an action as opposed to attacking the truth of the claim.
Counterclaim
A claim presented by a defendant in opposition to or deduction from the claim of the plaintiff.
Reply
Plaintiff’s pleading in response to the defendant’s answer.
Judgment on the pleadings
Final binding determination on the merits made by the judge after the pleadings.
Discovery
The pretrial devices that can be used by one party to obtain facts and information about the case from the other party in order to assist the party’s preparation for trial
Depositions
The testimony of a witness taken upon interrogatories, not in court, but intended to be used in court.
Written interrogatories
Written questions submitted to a party from his or her adversary to ascertain answers that are prepared in writing and signed under oath and that have relevance to the issues in a lawsuit.
Pretrial conference
Pretrial conference a conference between the judge and the attorneys to simplify the issues in dispute and to attempt to settle the dispute without trial
Summary judgment
Any party to a civil action to move for a summary judgment on a claim, counterclaim, or cross-claim when he believes that there is no genuine issue of material fact and that he is entitled to prevail as a matter of law.
Voir dire
Preliminary examination of potential jurors.
Challenges for cause
A request to remove a potential juror from a case because they may be unable to be impartial.
Peremptory challenges
A defendant’s or lawyer’s objection to a proposed juror, made without needing to give a reason. (Limited amount of times)
Opening statement
A speech given by a lawyer at the beginning of a trial to outline the case to the jury
Direct Examination
Initial questioning of a witness, by the party that called them to the stand
Cross-examination
Formal interrogation of a witness called by the other party in a court of law to challenge or extend testimony already given.
Directed verdict
In a case in which the party with the burden of proof has failed to present a prima facie case for jury consideration, the trial judge may order the entry of a verdict without allowing the jury to consider it because, as a matter of law, there can be only one such verdict.
Closing argument
Lawyer’s final opportunity to convince a jury or judge to rule in their client’s favor during a trial.
Jury instructions
A body of persons selected and summoned by law and sworn to try the facts of a case and to find according to the law and the evidence.
General Verdict
Verdict in which the jury decides which party should win the case, without listing its specific findings on any disputed issues.
Special verdict
Verdict in which the jury gives its findings on particular factual issues, without necessarily stating a general conclusion on which party should win the whole case.
Appeal
Resort to a superior (appellate) court to review the decision of an inferior (trial) court or administrative agency.
Writ of execution
Order served by sheriff upon debtor demanding payment of a court judgment against debtor.
Garnishment
A statutory proceeding whereby a person’s property, money, or credits in the possession or control of another are applied to payment of the former’s debt to a third person.
Full faith and credit
The clause’s purpose is to ensure that judgments are consistent across the country and to prevent conflict between states
Arbitration
The reference of a dispute to an impartial (third) person chosen by the parties, who agree in advance to abide by the arbitrator’s award issued after a hearing at which both parties have an opportunity to be heard.
Consensual arbitration
Arbitration voluntarily entered into by the parties.
Compulsory arbitration
Arbitration required by statute for specific types of disputes.
Award
The decision of an arbitrator.
Conciliation
Nonbinding process in which a third party acts as an intermediary between disputing parties.
Mediation
Nonbinding process in which a third party acts as an intermediary between the disputing parties and proposes solutions for them to consider.
Med-arb
Binding process in which a third party serves first as a mediator and then as an arbitrator for those issues not resolved through mediation
