Ch 4 Flashcards
Defendant
Party sued
Plaintiff
Party who files civil action
Counterclaim
Filed when defendant wants to sue the plaintiff
Counter plaintiff
Counter defendant
When a counter claim occurs, the plaintiff becomes the
counter defendant and the defendant becomes the counter
Plaintiff
Third party defendants
Someone has a liability to defendant when defendant
Has liability to plaintiff
Standing to sue
Plaintiff established he Is entitled to have court decide
Dispute
2 requirements to establish standing to sue
1 plaintiff must allege litigation involves case or controversy
2 plaintiff must allege personal stake in resolution
Showing adversarial relationship btw plaintiff and defendant
Personal jurisdiction
Court has authority to all parties in case
Summons
Notice to appear in court
Gives court personal jurisdiction over defendant
No case can proceed forward without existence of both…
Subject matter and personal jurisdiction
Long-arm statutes
Provide for service of process beyond state boundaries
Service of process
Mail delivered summons
3 valid reasons for long-arm statutes
1 defendant has committed tort within the state
2 owns property within state that is subject matter of lawsuit
3 has entered into contract within state or transacted the
Business that is subject matter of lawsuit within state
Extradition
Process of requesting and transporting prisoner from
One state to another
Class-action suit
One or more plaintiffs file suit on their own behalf and on
Behalf of all other persons who may have similar claim
8 parts of pretrial procedure
1 plaintiff files complaint
2 complaints and summons served on defendant
3 defendant files motion or answer with possible
counterclaim and defenses
4 court rules on motions
5 plaintiff files reply to answer
6 attorneys conduct discovery procedures
7 parties may file motions for summary judgement or
Judgement on pleadings
8 court conducts pretrial conference
Sample complaint, what 3 things does it explain?
1 sets parties (plaintiff and defendant)
2 explains how court has subject matter jurisdiction over
The case
3 explains how parties can be served
Pleadings
Legal documents filed with court to begin litigation process
Complaint, where is it delivered
Lawsuits begin with plaintiff filing a pleading with court clerk
Contains allegations by plaintiff and request for relief sought
It’s then delivered to the defendant
Answer
Written response to the complaint by the defendant
Default
Occurs if defendant doesn’t respond to the complaint
The court enters an order of default granting plaintiff
Relief sought by complaint
Discovery process
Designed to ensure that results of lawsuits are based on
merits of the controversy;
not based on skill or cunning Of the counsel
What does discovery ensure?
What does this usually lead to?
Ensures that each side is fully aware of all facts involved
In case and intentions of parties
Usually leads to settlements and avoiding actual court
Method of discovery: Interrogatories
Present series of questions to opposite parties must be
Answered by party receiving them
Least expensive method of discovery
Request for production of documents
After answers to interrogatories are received, either party
Might ask the other to produce these specific documents
Very important to the lawsuit’s outcome
Method of discovery: depositions
Note: most expensive discovery method
Lawyers ask oral response of all potential witnesses
And all spoken words are recorded by court reporter
Leads to written transcript as permanent record for
testimony
Request for an admission, 2) what is its overall effect
Occurs After some or all methods of discovery are used
either Party may request the other to admit certain issues
Presented in pleadings are no longer relevant
2) narrows issues, makes settlement more likely
The usual rule for allowing discovery
As long as info sought leads to admissible evidence during
Trial
Litigation hold
Preserves all relevant data from being destroyed, altered
Or mutilated
Filing a motion with the court
When question of law is at issue, parties seek pretrial determination of their rights
Statute of limitations
Defendant moves to dismiss suit for reasons as matter
Of law prevent plaintiff from winning his suit
Motion for Judgement of pleadings
Asks judge to decide case based solely on complaint and
Answer
Motion for summary judgement
Seeks similar conclusion to litigation prior to trial
Party filing this motion is asking judge to base decision
Not only on pleadings, but other evidence
Affidavits
Evidence presented in form of sworn statements
Frivolous cases
Lawyers pay fine if case is determined to be frivolous
Voir dire
Examination allows court and attorneys for each party to
Examine each individual juror for qualifications and ability
To be fair and impartial
Peremptory challenge
No cause of reason needs to be given to excuse
prospective juror
Motion for directed verdict (under rule 50: AKA Judgement as a Matter of Law)
Court can only direct for 1 party, if evidence establishes
As matter of law that party making motion is entitled to verdict
Jury instructions, when do they occur? Define. Purpose
Following closing arguments
Judge acquaints jury with law applicable to case
Brings facts and law together in orderly manner
10 steps of a trial
1 Voir dire - parties and their attorneys select jury
2 attorney’s present opening statements
3 plaintiff presents evidence through witnesses
4 defendant moves for directed verdict
5 defendant presents evidence through witnesses
6 attorney’s present closing arguments
7 court instructs jury on the law
8 jury deliberates and makes verdict
9Judge enters judgement on verdict
10 losing party files post trial motion
Burden of truth (2 meanings depending on context), burden of persuasion
1 burden or responsibility person has to come forward with
Evidence on issue
2 responsibility person has to be persuasive to specific fact
(burden of persuasion)
What can the burden of truth often determine?
Often determines outcome for one side or the other
Beyond reasonable doubt
Burden of proof for criminal cases
Convince jury that defendant is guilty so jury has no
reasonable doubt
2 standards for burden of proof in civil cases?
1 preponderance of evidence
2 clear and convincing proof
What burden of proof standard is typically used in contract and tort cases?
Preponderance of evidence
Preponderance of evidence
Achieved when greater weight of evidence in support
Of proposition than against it
Clear and convincing proof
Requires more evidence than preponderance of evidence
And less than beyond a reasonable doubt
Verdict
Decision of jury
Judgement
Judges decision to be in favor of the verdict or not
Judgement notwithstanding the verdict
Judge finds verdict is erroneous
1 Appellant
2 Appellee
1 Appealing party
2 successful party in trial court
1 Petitioner
2 respondent
1 party initiating petition for centiorari
2 other party in case
7 steps of appellate review
1) party receiving adverse judgment files notice of appeal
2) parties file briefs in reviewing court
3) oral argument made in reviewing court
4) reviewing court announces decision
5) further review may be requested by petition to higher court
6) higher court allows or denies further review
7) final decision
Brief
Filed by each party
Contain short description of case, factual summary,
Legal points and authorities, reason for decisions
Oral argument
Specified amount of time attorney is given to orally to court
Their position on the case
5 things lawyers must show to preserve argument for appeal?
1 objection is made 2 in timely manner 3 challenging evidence on specific grounds 4 lower court's ruling was wrong 5 the error harmed your client
Execution of judgment
Sheriff or marshal seizes some property if debtor, sells
It at public auction and applies proceeds to creditor’s claim
Garnishment
Method of enforcement has portion of debtor’s wages
Paid to court, which then pays creditor
Res judicata
Final decision of court
Conclusive on all issues between parties
Decided on appeal or time for appeal has expired
