CH 3 - Sources of Law, Courts, Disputes Flashcards
Declaration/statement of-facts made voluntarily and confirmed by oath/affirmation, taken before a person having authority to administer such oath.
Affidavit
An assertion in an answer to a complaint that even if defendant has acted as plaintiff alleges, the defendant’s conduct was not the real cause of harm to plaintiff
Affirmative defense
assertion
a confident and forceful statement of fact or belief.
Alternative dispute resolution (ADR)
Alternative techniques (negotiation, mediation, arbitration, med-arb, arb-med, mini-trails, and summary jury trials) to resolve disputes without litigation
The instrument by which a defendant admits or denies the various allegations stated in the complaint against them.
Answer
The party appealing a case
Appellant
Appellee
the other party in a case being appealed
In the event of a dispute arising out of a contract, the parties will arbitrate specific issues in a stated manner
Arbitration clause
Arb-med
Parties to a dispute present their case to an arbitrator who makes an award but keeps it secret while the parties try to resolve the dispute through mediation. A failed mediation means the arbitration decision is binding.
A trial in which a judge, not a jury, decides all issues
Bench trial
Choice-of-forum clause
A contractual clause wherein parties agree in advance the jurisdiction in which a dispute must be litigated.
The identification of the place where the court’s decision in a particular case, a statute, or regulation is printed can be accessed. Case citations include the names of the parties, the court, and the date of the decision.
Citation
The methods, procedures, and practices that govern the processing of a civil lawsuit from start to finish.
Civil procedure
Litigation/arbitration brought on behalf of a group of persons (class) with a common interest by a representative
Class action
A type of ADR that combines mediation and negotiations
Collaborative law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to “trouble shoot and problem solve” rather than to fight and win.
Collaborative law
A legal claim by defendant in opposition to/deduction from the claim of the plaintiff
Counterclaim
Attorney-client privilege does not protect client communications made to further a crime or illegal act
Crime-fraud exception
de novo
A de novo proceeding takes place when a successfully appealed case will be litigated again from the beginning.
a judgement that may be entered in favor of the plaintiff if the defendant does not file an answer within the time required
Default judgement
the oral questioning of any person who may have helpful information about the facts of a case
Deposition
A judge’s order to a jury to return a particular verdict. After presenting evidence in a jury trial, either party may assert that the other side has not produced enough evidence to support the legal claim/defense. The moving party then requests that the judge direct that a verdict be entered in favor of them.
Directed verdict
motion
A motion is a written request or proposal to the court to obtain an asked-for order, ruling, or direction.
Process of collecting evidence to support claims in lawsuit
Discovery
Discretionary review
The principle whereby the Supreme Court has the power to decide which cases within its jurisdiction it will adjudicate (make a formal judgement on a disputed matter.)
Dismissed with the provision that the plaintiff may not assert the same claims in another case
Dismissed with prejudice
Dispute negotiation
Backward-looking negotiation that addresses past events that have caused disagreement
Diversity jurisdiction
The power of U.S. district courts to decide lawsuits between citizens of two different states when amount in controversy exceeds 75K
All the judges of a court of appeals sit together to hear and decide a particularly important or close case
en banc hearing
In a diversity action in federal court, except as to matters governed by the US constitution and acts of congress, the law to be applied in any case is the law of the state in which the federal court hearing the case is situated.
Erie doctrine
Federal law requiring courts to honor agreement to arbitrate and arbitration awards
Federal arbitration act (FAA)
Federal question
A question in a lawsuit that concerns federal law
Federal Rules of Civil Procedure (FRCP)
The procedural rules that govern civil litigation in US district courts.
Final-offer arbitration
Each side submits its “best and final” offer to the arbitrator, who must choose one of the two proposals
Personal jurisdiction based on the residence or activities of the person being sued. It is the power that a court has over the defendant itself, rather than interest in property itself.
in personam jurisdiction
in rem jurisdiction
Jurisdiction over property based on the location of the property at issue in the lawsuit
Interrogation
written question to a party to a lawsuit and its attorney
Judgment n.o.v.
Aka judgement non-withstanding. A judgment in which the judge reverses the jury verdict on the grounds that the evidence of the prevailing party was so weak that no reasonable jury could have resolved the dispute in that party’s favor.
Litigation hold precedure
The suspension of a company’s usual document disposal procedures when there is a reason to believe the documents are relevant to pending/potential litigation
Long-arm statute
the subjection of an out-of-state defendant to state jurisdiction when the defendant is doing business/commits a civil wrong in the state
Mandatory arbitration
When one party will not do business with the other unless it agrees to arbitrate any future disputes
Med-arb
Parties to a dispute enter mediation with the commitment to submit the dispute to binding arbitration if mediation fails to resolve the conflict. (Note: in arb-med, the dispute is submitted to arbitration prior to mediation)
Minitrial
Method of ADR in which lawyers present their cases in a trial format before a neutral third party, who acts as an adviser, or before executives of the parties to the dispute. The parties to the dispute then meet to try to resolve their differences
Motion for judgement on the pleadings
A motion filed immediately after the complaint and answer have been filed. One party, usually the defendant, argues that the pleadings alone demonstrate that the action is futile.
An individual who hears complaints, engages in fact finding, and promotes informal forms of dispute resolution
Ombudsperson
Partial summary judgement
A summary judgment granted on some issues of a case while other issues proceed to trial.
Personal jurisdiction
The power of a state court to hear (decide) a civil case based upon residence or location of activities of the person being sued
Pleadings
The formal allegations by the parties to a lawsuit of their respective claims and defenses.
After considering all the evidence presented in the prehearing and the hearing, the arbitrator makes his or
her award in the final ___ phase
posthearing
The request for relief in a complaint
Prayer
First stage in arbitration: parties submit trial-like briefs, supporting documents, written statements to make their case
Prehearing
The power of a court of appeal to send a case back to a lower court for reconsideration
Remand
The published volumes of case decisions by a particular court or group of courts
Reporter
A collection of common law rules in a particular subject area - persuasive rather than authoritative sources of law
Restatement
Delivery of legal documents, such as complaint in a lawsuit, to the party required to respond to them
Service of process
A conference a judge holds to give each side a candid assessment of the strengths/weaknesses of its case and the likely outcome if the case goes to trial
Settlement conference
The situation in which different US Courts of Appeal disagree on a legal issue
Split in circuits
intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.
An instruction by the judge to the jury that the jury may presume that missing or altered evidence would have been unfavourable to the party causing its alteration
Spoliation inference
Requirement that a party must have a sufficient stake/interest in a controversy to bring a lawsuit, and will benefit from a favorable ruling
Standing
To stand by a decision. Once a court resolves a particular issue, other courts addressing a similar legal problem generally follow the initial court’s decision.
stare decisis
Jurisdiction over cases of a particular type
Subject matter jurisdiction
A test to determine whether attorney-client privilege can be extended to a party who is not the client of the attroney. The tests holds true if the employee’s communication with a corporation’s lawyer is made at the direction of the employee’s supervisors and in the course and scope of the employee’s employment
subject matter test
A legal test used to decide when a company can protect from disclosure communications or discussions of a company employee with counsel for the company; to be protected by attorney–client privilege, the subject matter of the communication or discussion must relate to that employee’s duties and be made at the direction of a corporate superior.
A procedural device available for disposition of a controversy without trial. A judge grants ___ only if:
- all of the written evidence before the court clearly establishes that there are no disputed issues of material fact
- the party who requested the ___ is entitled to prevail as a matter of law
Summary judgement
ADR method in which parties to a dispute put their cases before a real jury, which renders a nonbinding decision
Summary jury trial (SJT)
The official notice to a defendant that a lawsuit is pending against the defendant in a particular court
an order to appear before a judge or magistrate, or the writ containing such an order.
Summons
Forward-looking negotiations concerned with desired relationships and future variable shared gains
Transactional negotiations
To nullify a previous court’s ruling - courts of appeals have the power to do this
Vacate
Questioning of potential jurors to determine possible bias
voir dire “speak the truth”
Protection of information, including the private memoranda and personal thoughts of the attorney, created by the attorney while preparing a case for trial
work-product doctrine
An order issued by the U.S. Supreme Court when it decides to hear a case, ordering the lower court to certify the record of proceedings below and send it up to the U.S. Supreme Court
Writ of certiorari
