Chapter 1: Litigation and the Paralegal

Question 1

Civil Litigation

Answer 1

The process of resolving private disputes through the court system

Question 2

Trial

Answer 2

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

Question 3

Substantive Law

Answer 3

Laws that determine parties’ rights and obligations as opposed to the procedures used to enforce those rights

Question 4

Procedural Law

Answer 4

Laws that set forth legal procedures or methods used by parties to enforce their rights or to oppose claims made against them

Question 5

Criminal Law

Answer 5

Laws that prohibit conduct that society deems harmful and provide for punishment in the form of jail, fines, or probation

Question 6

Criminal Procedure

Answer 6

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

Question 7

Civil Procedure

Answer 7

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

Question 8

Civil Laws

Answer 8

Laws dealing with private disputes between parties

Question 9

Plaintiff

Answer 9

The party who initiates a civil or criminal lawsuit in court

Question 10

Defendant

Answer 10

The party who is sued in either a civil or criminal case

Question 11

Complaint

Answer 11

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

Question 12

Petition

Answer 12

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)

Question 13

Pleadings

Answer 13

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)

Question 14

Answer

Answer 14

The initial pleading filed by the defendant in a lawsuit, contesting the factual and/or legal basis for the lawsuit

Question 15

Default

Answer 15

Failure to file an answer or other responsive pleading within the proper time; can eventually lead to a default judgment

Question 16

Judgment

Answer 16

In a civil court action, the final decision from the trial court

Question 17

Discovery

Answer 17

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

Question 18

Motion

Answer 18

A request that a judge make a ruling or take some other action, most often in connection with a pending lawsuit

Question 19

Writ of Execution

Answer 19

A court order authorizing the seizure and sale of a person’s property to satisfy a judgment against that party

Question 20

Federal Judicial Center

Answer 20

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

Question 21

Personal Injury Litigation

Answer 21

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

Question 22

Employment Litigation

Answer 22

Litigation related to employment disputes, such as claims of unlawful discharge or discrimination

Question 23

Intellectual Property Litigation

Answer 23

Litigation related to rights in intellectual property, such as patents, trademarks, trade names, and copyrights

Question 24

Construction litigation

Answer 24

Litigation related to claims of faulty construction; damages may include claims for property damage or, in some cases, injuries resulting from the faulty construction

Question 25

Securities Litigation

Answer 25

Litigation related to stocks and other securities, which often involve class action claims by stockholders against a corporation or its directors and/or officers

Question 26

Business Litigation

Answer 26

Litigation related to general business matters, such as contract disputes and partnership disputes

Question 27

Real Estate Litigation

Answer 27

Litigation related to real property, such as ownership rights, possession rights, and landlord-tenant issues

Question 28

Asbestos Litigation

Answer 28

Litigation related to the various diseases and injuries caused by exposure to asbestos

Question 29

Civil Rights Litigation

Answer 29

Litigation related to damages claimed as a result of the violation of one’s state or federal civil rights

Question 30

Alternative Dispute Resolution (ADR)

Answer 30

Ways to resolve a civil dispute without resort to a legal action

Question 31

Negotiation (Negotiate)

Answer 31

Discussion between opposing parties in an attempt to settle a case; usually involving compromise by both sides

Question 32

Settlement

Answer 32

An agreement that resolves a dispute without the necessity of a court action

Question 33

Mediation

Answer 33

A nonbinding process in which a neutral third party helps disputing parties reach a settlement

Question 34

Mediator

Answer 34

The neutral third person who facilitates the mediation process

Question 35

Arbitration

Answer 35

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

Question 36

Arbitrator

Answer 36

The neutral third part who presides over the arbitration process and makes a decision

Question 37

Injured on the Job Compensation

Answer 37

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

Question 38

“No-fault” Insurance Laws

Answer 38

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

Question 39

Medical Malpractice

Answer 39

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

Question 40

Punitive Damages

Answer 40

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

Question 41

Class Action Fairness Act of 2005

Answer 41

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

Question 42

Primary Sources

Answer 42

Print or electronic publications that contain the actual law (i.e., case reporters, codes, constitutions)

Question 43

Secondary Sources

Answer 43

Print or electronic publications about the law, such as articles, treatises, and encyclopedias; these are not binding on a court

Question 44

Supreme Court

Civil Litigation Topic

Answer 44

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

Question 45

Primary Sources

Answer 45

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

Question 46

Constitutions provide some general guidelines that pertain to civil litigation

Answer 46

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

Question 47

Codes and Rules of Court

Answer 47

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

Question 48

Local Rules of Court

Answer 48

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

Question 49

Secondary Sources

Answer 49

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

Question 50

Form Book

Answer 50

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

Question 51

Cloud computing

Answer 51

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

Question 52

CM/ECF

Case Management and Electronic Case Files

Answer 52

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

Question 53

Federal Judicial Center and the National Center for State Courts

Answer 53

Two judicial organizations that promote efforts to improve and update the technology in courtrooms

Question 54

Litigation Law Firm

Answer 54

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

Question 55

Public Agency Civil Litigation

Answer 55

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

Question 56

Professional Organizations

Answer 56

• National Association of Legal Assistants, Inc. (NALA)
• National Federation of Paralegal Associations, Inc.
• American Bar Association
• International Paralegal Management Association