Ch 4 Litigation Flashcards
Litigation?
Is the process that helps the business community resolve actual disputes
With lawsuits it can take a lot of…..
Time, money, and energy on everyone involved . people take advantage of this
Impartial dispute resolution process is essential to.
any system that preserves private property interests. It is needed to conduct business and enforce rights.
Plaintiff?
Party who files a civil action
Defendant?
Party sued by the plaintiff or a person against whom a criminal charge is filed by state
Third - Party defendant?
Parties brought in by the defendant to complete the determination of a controversy
Counterclaim?
Filed by the defendant to sue plaintiff.
Causes of action defendant has against the plaintiff
Counter plaintiff?
Parties to the counterclaim
Defendant becomes counterplaintiff
Plaintiff becomes counter defendant
Pleadings?
A notice that is the beginning stage of a lawsuit in which parties formally submit their claims and defenses.
What is filed for the lawsuit
Standing to sue? What is a standing? -
Plaintiff establishing that he/she is entitled to have the court decide the dispute
To establish a standing, plaintiff must allege:
Litigation involves a case or controversy.
(source and nature of the plaintiff’s allegations.)
Personal stake in the resolution of the controversy
Assert their personal legal position and not those of third party
Personal Jurisdiction?
The court on having authority over the parties to the case and authority of subject matter
Personal Jurisdiction over the defendant obtained by: -
Summons . Service of process
Long - Arm Statutes?
Provision for the service of process beyond the boundaries of the state (jurisdiction of the party even though they are in another state) $75,000 needed. –>Allows a court to obtain jurisdiction over defendant outside its borders
Summons?
filed with the complaint…Notice to appear in court. It is a service of process
Personal jurisdiction is obtained under long-arm statutes only when…
requiring defendant to appear does not violate due process
Extradition?
Voluntary turning in of prisoner from one state to another by the presiding governors (Criminal litigation)
Long-arm statute allows a court to obtain jurisdiction over defendant outside its borders when defendant:
- Has committed a tort within the state.
- Owns property within the state that is the subject matter of the lawsuit.
- Has entered into a contract or transacted business within the state.-that is subject matter
For any court to exercise authority in any given case, which of the following must happen:
Court has jurisdiction of subject matter.
Court can exercise personal jurisdiction of the defendant. Plaintiff has standing to bring the case before the court
Class Action Suits?
One or more plaintiffs file suit on their own behalf and on behalf of all other persons who may have a similar claim.
- Involve matters in which no one member of the class has sufficient financial interest to warrant litigation.
- Plaintiffs seeking to bring class-action suit must pay all court costs.
What are pleadings?
Legal documents that are filed with a court to begin the litigation process
Complaint?
Pleading filed by plaintiff with the court clerk
Contains allegations by the plaintiff and statement or request of relief sought
Answer?
Response in the form of written pleading by defendant
Default?
Order entered by court when defendant does not respond in any way
After receiving an answer plaintiff files a reply that:
Admits or denies each allegation of the defendant’s counterclaims
What is S.O.L - STATUTE OF LIMITATIONS? -
state’s time limit after which a suit cannot be filed
S.O.L - Contract Action? -
6 years
S.O.L - Personal Injury? -
3 years
S.O.L - Intentional Tort? -
2 years
S.O.L - Minors? -
3 years from accident…2 years after they reach maturity
What is discovery?
Is to ensure that each side is fully aware of all the facts involved in the case and of the intentions of the parties.
What does discovery ensure?
Ensure that the results of lawsuits are based on the merits of the controversy and not on the ability or skill of counsel
Methods of Discovery:
Interrogatories, Request for production of documents, Depositions, Request for an admission
Discovery - What is interrogatories?
Interrogatories must be answered by the party receiving them. All the words spoken during deposition are recorded by a court reporter.
Discovery - What is the request for production of documents?
Either party asking the other to produce specific documents
Discovery - What is a deposition?
Lawyer orally asks questions of the possible witness, court reporter takes down the exact answers
Discovery - Request for admission?
Requesting the other to admit or deny that certain issues presented in the pleadings are no longer in dispute. All deemed admitted if not answered in time
Scope of Discovery?
Information is considered discoverable when it can lead to evidence admissible during a trial..
When a question about scope of what is discoverable arises party objecting to discovery seeks the judge’s opinion.
Discovery procedures are intended to be used freely by parties without court’s supervision. Judges provide a liberal interpretation of the degree of discoverable information
Abuse of Discovery?
Aggression during discovery on the part of any party can damage the litigation process.
Engaging in a strategy of open warfare leading to trial causes resource damage and greater lawyer expense.
Discovery imposes a tremendous burden on the judicial system.
Defendant should be open and responsive to reasonable requests of the plaintiff.
Abuse of Discovery is one of the reasons for…
High costs of litigation
Motions are…?
Pretrial determination of their rights
Judgment on the pleadings?
Motions which asks the judge to decide the case based only on the complaint and its answer
Summary judgement?
Motion asking the judge to base a decision on the pleadings and on other evidence
In a summary judgement, what is an affidavit?
evidence in the form of sworn statements
Types of Pretrial Motions:
Motions to dismiss, including for Statute of Limitations
Motion for judgement on the pleadings
Motions: Frivolous Litigations / Rule 11
Motion to Compel Discovery
Motion in Limine (excluding evidence from trail)
Jury Selection -
Prior to calling of the case, court clerk will have summoned prospective jurors
Voir dire is?
Speaking the Truth. Voir dire allows the court and attorneys to examine potential jurors as to his or her qualifications and ability to be fair
Peremptory challenge?
No cause or reason needs to be given to excuse a prospective juror
Trial Steps (10) -
1 - Voir Dire - Parties and their attorneys select their jury
2 - Attorney present opening statements
3 - Plaintiff presents evidence through witness
4 - Defendant moves for directed verdict/judgment as a matter of law
5 - Defendant presents evidence through witness
6 - Attorneys preset closing arguments
7 - Courts instructs jury on the law
8 - Jury deliberates and makes decision (verdict) 5/6 or 10/12 jury vote
9 - Judge enters judgment on verdict
10 - Losing party files post trial motion
What SC case outlawed racial discrimination in peremptory challenges?
Batson v. Kentucky
What SC case banned gender discrimination in the jury selection process?
J.E.B. v. Alabama
Courts are divided about banning discrimination on _________ in peremptory challenges -
religion
Directed Verdict?
Motion by defendant to determining that there is no legally sufficient evidentiary basis for a reasonable jury to reach a different conclusion.
Jury instructions?
Judge informing the jury with the law applicable to the case
Burden of Proof - Criminal Cases -
Beyond reasonable doubt
Burden of Proof - Civil cases -
Two standards
1) Preponderance of evidence.
2) Clear and convincing proof
(used in contract and tort cases)
What is beyond reasonable doubt?
Prosecution in a criminal case has the burden of convincing the trier of fact that the defendant is guilty without doubt.
Preponderance of evidence?
Requires that a party convince the jury that the facts are as he or she contends.
-Greater weight of evidence in support of the proposition than there is against it.
Clear and convincing proof?
Used in situations where the law requires more than a simple preponderance but less than proof beyond a reasonable doubt.
What is the Jury’s Job ?
to determine what the facts are and to apply the law to these facts as instructed by the judge
Verdict?
Decision by the jury announced in the courtroom when jury’s deliberations are over
Post verdict Judgement… is?
The judge agrees with the verdict of the Jury or not
Post trial issues - Appellant?
Party appealing when the result at the trial court level is reached
Post trial issues - Appellee? -
Successful party in the trial court
Post trial issues - Petitioner? -
Party initiating the petition for a writ of certiorari is filed to the Supreme Court
Post trial issues - Respondent? -
Opponent party in the petition for appeal
Appellate Procedures - Brief? -
Short description of the case by each party to the trial. -Brief includes factual summary, legal points and authorities, and arguments for reversing or affirming the lower court decision.
Appellate Procedures - Oral argument? -
Specified amount of time given to attorneys to explain orally to the court their position in the case.
Oral argument is used less frequently today with courts often relying on written briefs.
Enforcement of the Judgments and decrees - Execution? -
When a court official seizes some property of the debtor, sells it at public auction, and applies the proceeds to the creditor’s claim
Enforcement of the Judgments and decrees - Garnishment? -
Involves having wages garnished, which in turn pays the creditor
Res Judicata -
Case has been finally decided on appeal. Time for appeal has expired and a cause of action finally determined by a competent court cannot be litigated by the parties anywhere.
When the party who is dissatisfied with the Jury’s verdict files a posttrial motion with the judge, they are seeking?
Judgment notwithstanding the verdict (state)
or
Motion for judgment as a matter of law (federal)
