Ch. 3 The Legal Proceedings of Business Flashcards
What are pleadings?
the complaint and the answer taken together
What is the complaint?
contains a statement alleging (1) the facts showing that the court has subject-matter and personal jurisdiction (2) facts establishing the plaintiffs basis for relief (3) the remedy the plaintiff is seeking
What is service of process?
formally notifying the defendant of a lawsuit
What is a summons?
a notice requiring the defendant to appear in court and answer the complaint within a specified time period
What is a default judgment?
A default judgement would mean that the defendant failed to respond to the summons and so the plaintiff is automatically granted their remedy
Do the courts require that the defendant be formally served?
No, in most cases the defendant knows they are being sued and has the right to waive their their right to be served. If they waive the their rights they receive additional time to respond to the complaint.
What is an answer?
the defendants response to the complaint
What is an affirmative defense?
admitting the truth to the complaint but raising new facts to show that the defendant should not be held liable for damages
What is a counterclaim?
denying the allegations and setting forth their own claim
What is a motion?
a procedural request submitted to the court by an attorney on behalf of her or his client
What is a pretrial motion?
include the motion to dismiss, the motion for judgment on the pleadings, motion to change the venue, and the motion for summary judgment
What is a motion to dismiss?
asking the court to dismiss the case for the reasons stated in the motion
What is a motion for the judgment on the pleadings?
asks the court to decide the issue solely on the on the pleadings without proceeding to trial
What is a motion for summary judgment?
asks a court to grant a judgment in the party’s favor without a trial. this will only be granted if there is no dispute on the facts and the only question is how the law applies to the facts
What is an affidavit?
sworn statements by parties or witnesses
What is admissible evidence?
evidence that the court would allow to be presented during the trial
What is a discovery?
the process of obtaining information from the opposing party or from witnesses prior to the trial. gaining access to witnesses, documents, records, and other types of evidence. only relevant info is discoverable
What is a deposition?
sworn testimony by a party to the lawsuit or any witness, recorded by an authorized court official. to “impeach” a party is to challenge their credibility if they change their testimony
What is an interrogatory?
written questions for which written answers are prepared and then signed under oath. This is different from a deposition in that the responses are calculated and not in the moment and expressive.
What is a request for examinations?
when the physical or mental state of one party is in question, the other party can ask for a physical or mental examination
What is e-evidence?
all computer generated or electronically recorded info. the discovery of e-evidence is timely and expensive
What is a pretrial conference?
a meeting that takes place before the trial begins
What is the right to trial by jury?
the right to be tried in front of a jury. most trials aren’t actually tried in front of a jury, if the party does not request a jury it is assumed they are waiving this right
What is voir dire?
the selection process of a jury. during this time a party may challenge a certain number of prospective jurors peremptorily (ask that individual not to be sworn in as a juror without reason). or they can challenge for cause.
What are the rules of evidence?
a series of rules that have been created by the courts to ensure that any evidence presented during the trial is fair and reliable
What is relevant evidence?
the evidence that tends to prove or disprove a fact in question or to establish the degree of probability of a fact or action
What is hearsay?
the testimony someone gives in court about a statement made by someone else who was not under oath at the time of the statement
What is a direct examination?
examining the witness called to the stand by your party
What is cross examination?
questioning the other parties witness
What is reexamination?
reexamining your witness
What is recross-examination?
requisitioning the other parties witness
What is an expert witness?
a person who by virtue of education, training, skill, or experience has specialized knowledge in a particular area beyond that of an average person
What is a motion for a judgment as a matter of law? (motion for a directed verdict)
at the end of the plaintiffs case the defendant has the opportunity to ask the judge to direct a verdict for the defendant on the ground that the plaintiff has presented no important evidence to support his or her claim
What is a rebuttal?
offering additional evidence that refutes the defendants case or trying to poke holes in their testimony
What is a rejoinder?
after the rebuttal of the plaintiff, the defendant then has the opportunity to answer through rejoinder
What is the closing argument?
each attorney summarizes the facts and evidence presented during the trial and indicated why the facts and evidence support his or her clients claim
What is a preponderance of evidence?
presenting a factual claim that is more likely to be true than the defendants
What is a verdict?
specifies the jury’s factual findings, when the jury has reached a decision
What a motion for a new trial?
the losing party may request this and the judge may or may not grant the request only if they believe the the jury was in error
What is a motion for judgment n.o.v. ?
(non obstante veredicto) “notwithstanding the verdict” such a motion will be granted only if the jury’s verdict was unreasonable and erroneous
What is a brief?
a formal legal document outlining the facts and issues of the case, the judges rulings or jury’s findings that should be reversed or modified, and the applicable law
What are the courts options after reviewing a case?
- affirm 2. reverse 3. remand (send back) 4. affirm or reverse in part 5. modify the decision
What is a writ of execution?
an order directing the sherif to seize and sell the defendants nonexempt assets or property
