Chapter 1: Litigation and the Paralegal Flashcards
Civil Litigation
The process of resolving private disputes through the court system
Trial
A court proceeding in which parties to a lawsuit present their evidence to a judge or jury and the judge or jury make a decision in favor of one party
Substantive Law
Laws that determine parties’ rights and obligations as opposed to the procedures used to enforce those rights
Procedural Law
Laws that set forth legal procedures or methods used by parties to enforce their rights or to oppose claims made against them
Criminal Law
Laws that prohibit conduct that society deems harmful and provide for punishment in the form of jail, fines, or probation
Criminal Procedure
The rules that apply in a criminal case and determine how a criminal case proceeds through the legal system; these are based on federal and state constitutions, codes, rules of court, and cases
Civil Procedure
The rules that apply in a civil case and determine how a civil case proceeds through the legal system; in federal courts many of the rules are found in the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure
Civil Laws
Laws dealing with private disputes between parties
Plaintiff
The party who initiates a civil or criminal lawsuit in court
Defendant
The party who is sued in either a civil or criminal case
Complaint
Usually the first document filed in court in connection with a lawsuit; this sets forth the allegations or contentions of the plaintiff and states the basis for the action and the type of relief requested from the court
Petition
An initial document filed with the court asking the court for some order. Sometimes petitions are filed in conjunction with a complaint (e.g., asking the court to appoint a guardian for a party who cannot file a lawsuit); sometimes petitions are filed in lieu of a complaint (e.g., in certain jurisdictions petitions and not complaints are used in divorce cases)
Pleadings
Pleadings are documents that describe the nature of the dispute and, most often, contain the factual contentions of the parties. In a contested case, both the plaintiff and the defendant file pleadings. The process of civil litigation formally begins when the plaintiff files a written document in court. This document is generally called a complaint, although in some instances it is referred to as a petition. In the complaint, or petition, the plaintiff alleges or claims that the defendant has done something, or has failed to do something, that entitles the plaintiff to relief. As noted earlier, the relief is frequently money but may involve nonmonetary matters, such as determining the validity of a will, issuing an injunction (an order requiring the defendant to do something or to stop doing something or ordering specific performance of a contract (an order requiring the defendant to comply with the terms of an agreement)
Answer
The initial pleading filed by the defendant in a lawsuit, contesting the factual and/or legal basis for the lawsuit
Default
Failure to file an answer or other responsive pleading within the proper time; can eventually lead to a default judgment
Judgment
In a civil court action, the final decision from the trial court
Discovery
In a civil case, the procedures by which all parties have the right to obtain information from other parties, and in some cases from witnesses; includes such procedures as depositions, interrogatories, and production of documents
Motion
A request that a judge make a ruling or take some other action, most often in connection with a pending lawsuit
Writ of Execution
A court order authorizing the seizure and sale of a person’s property to satisfy a judgment against that party
Federal Judicial Center
An education and research agency for the federal courts, publishes a “Manual for Complex Litigation,” describing approaches that trial judges have found useful for complex cases in federal court
Personal Injury Litigation
Litigation resulting from physical or emotional injuries. Types of personal injury litigation are automobile accidents, accidents occurring on another’s property, product liability, and medical and other professional malpractice
Employment Litigation
Litigation related to employment disputes, such as claims of unlawful discharge or discrimination
Intellectual Property Litigation
Litigation related to rights in intellectual property, such as patents, trademarks, trade names, and copyrights
Construction litigation
Litigation related to claims of faulty construction; damages may include claims for property damage or, in some cases, injuries resulting from the faulty construction
Securities Litigation
Litigation related to stocks and other securities, which often involve class action claims by stockholders against a corporation or its directors and/or officers
Business Litigation
Litigation related to general business matters, such as contract disputes and partnership disputes
Real Estate Litigation
Litigation related to real property, such as ownership rights, possession rights, and landlord-tenant issues
Asbestos Litigation
Litigation related to the various diseases and injuries caused by exposure to asbestos
Civil Rights Litigation
Litigation related to damages claimed as a result of the violation of one’s state or federal civil rights
Alternative Dispute Resolution (ADR)
Ways to resolve a civil dispute without resort to a legal action
Negotiation (Negotiate)
Discussion between opposing parties in an attempt to settle a case; usually involving compromise by both sides
Settlement
An agreement that resolves a dispute without the necessity of a court action
Mediation
A nonbinding process in which a neutral third party helps disputing parties reach a settlement
Mediator
The neutral third person who facilitates the mediation process
Arbitration
An out-of-court process in which disputing parties present their case to a neutral third person who listens to evidence from each disputing party and makes a decision; the decision is sometimes binding and sometimes not binding
Arbitrator
The neutral third part who presides over the arbitration process and makes a decision
Injured on the Job Compensation
In some states, absent special circumstances, employees are entitled to compensation for their injuries. When disputes arise regarding the extent of the compensation, they are resolved by a special board or agency that exists separate from the court system
“No-fault” Insurance Laws
In the past, several states adopted these laws that prevent or severely limit a person in filing a lawsuit stemming from an automobile accident. Although a similar law has been considered by the US Congress, it has never been passed
Medical Malpractice
The rising cost of medical care has led many states to limit the amount of damages for pain and suffering that can be awarded in medical malpractice cases. At least one state court, though, has found this limit unconstitutional in that it denies the plaintiff the right to a jury trial. The enactment of the Affordable Healthcare Act has led to discussion among federal legislators concerning limits for medical malpractice cases, but no action has yet been taken
Punitive Damages
Some states impose restriction, but more importantly, the US Supreme Court has ruled that excessive punitive damages violate the Due Process Clause of the Constitution
Class Action Fairness Act of 2005
Among the important provisions in this act are a limit on attorney fees and broader access to the federal courts. Critics claim that this will be prejudicial to plaintiffs
Primary Sources
Print or electronic publications that contain the actual law (i.e., case reporters, codes, constitutions)
Secondary Sources
Print or electronic publications about the law, such as articles, treatises, and encyclopedias; these are not binding on a court
Supreme Court
Civil Litigation Topic
In recent years, the Court has decided cases dealing with a variety of civil litigation topics, including jurisdiction, attorney fees, class actions, arbitration clauses, sovereign immunity, and discovery
Primary Sources
The primary sources of the law of civil litigation are generally found in the same sources as are all our laws: constitutions, statutes, rules of court, and case law. If a case is litigated in federal court, then the U.S. Constitution, U.S. Code, the Federal Rules of Civil Procedure, and cases from the federal courts usually control. If a case is brought in state court, then the state constitution, state codes, state rules of court, and state case law are the usual sources of the law
Constitutions provide some general guidelines that pertain to civil litigation
For example, the 7th Amendment to the U.S. Constitution provides for the right to juries in common law cases exceeding $20. The Constitution also mandates that due process be followed in civil cases. Very briefly, this means that the procedures followed in a civil case must be fair to all parties, especially to the defendant. The authority and power of the various state courts in the litigation process are often found in state constitutions
Codes and Rules of Court
Control more specific litigation matters. Rules of court are rules of procedure adopted by representatives of the federal and state courts under authority given by the respective legislatures. The Federal Rules of Civil Procedure are rules of practice that have been adopted for civil practice in the federal courts. They cover such matters as the content and filing of pleadings, descriptions of various motions, and types of discovery permitted. State codes and rules contain comparable provisions
Local Rules of Court
Individual federal and state trial and appellate courts also adopt rules for practice within their local courts. These are known as local rules of court. In the federal system, these rules vary from district to district. In state systems, they vary from one local area to another. In other words, within one state some rules of procedure may be different from one court to another. Local rules of a court should always be checked before initiating any litigation within that court
Secondary Sources
When questions arise relating to litigation, the primary sources of the law are not the only reference materials used. A secondary source is one in which an author explains or describes the primary sources of the law. Many secondary sources exist for both state and federal procedure. Secondary sources include legal encyclopedias, practice manuals, textbooks, and various legal periodicals
Form Book
A type of secondary source that is heavily relied upon in the area of litigation is the form book. As the name suggests, form books contain sample forms for all aspects of litigation, from complaints to judgments. Better form books also contain explanations of the laws relating to the various forms, and as such are valuable resource tools
Cloud computing
Electronic file storage where files are stored on the Internet rather than on the office computer. An excellent source for information about technology in the law firm is found at www.technology.findlaw.com
CM/ECF
Case Management and Electronic Case Files
The federal court maintains this comprehensive system that is utilized in all bankruptcy, district, and appellate courts. One advantage of this is that the public, including attorneys, has easier access to court records
Federal Judicial Center and the National Center for State Courts
Two judicial organizations that promote efforts to improve and update the technology in courtrooms
Litigation Law Firm
Many differences exist among law firms that specialize in litigation. Some litigation firms primarily represent plaintiffs whereas others represent defendants. These latter firms often represent insurance companies whose insured has been sued
Public Agency Civil Litigation
Although attorneys in private practice handle most civil litigation, attorneys working for various public agencies may also be involved in civil litigation. An example of a large public agency that is involved in many civil lawsuits is the US Attorney General’s Office, which litigates civil cases such as discrimination, civil rights, and securities violations
Professional Organizations
- National Association of Legal Assistants, Inc. (NALA)
- National Federation of Paralegal Associations, Inc.
- American Bar Association
- International Paralegal Management Association
