Chapter 1 Terms Flashcards
What is substantive laws?
Rights and duties that regulate everyday relationships (i.e., elements of the law of assault or battery)
What is procedural law?
Procedures used by courts to resolve disputes about those substantive rights and duties (i.e., the requirement that all papers filled with a particular court by on 8.5 by 14 inch paper)
What is the adversary system?
the almost total responsibility placed on parties to the controversy for beginning suit, shaping issues, and presenting evidence
What is the inquisitorial system?
Court conducts active and independent inquiry into merits of each case, which can include judge questioning and examining witnesses, and fact finding
What are the three considerations to begin a lawsuit?
- Is legal relief available?
- What is the probability of winning?
- Whether what would be won is worth the burden of litigating
What is specific relief?
An order directing the opposing party to do something or stop doing something
What are U.S. District courts?
Courts of original jurisdiction with at least one in every state;
1. cases involving federal law and cases without
2. cases with diversity of citizenship
3. more than $75,000 in question
What is the U.S. Court of Appeal?
A court which reviews the decisions of federal district courts in several states within its circuit (with exception of Courts of Appeals for District of Columbia circuit and Federal circuit)
What is the Supreme Court of the U.S.?
This court has discretionary authority to review the decisions of federal courts and state courts that involve a question of federal law
What is a complaint?
It is the first of the pleadings; written statements that will contain claims against defendant
What are the three possible objectives of a complaint?
- Desire to furnish a basis for identifying and separating the legal and factual contentions involved
- may be intended to establish in advance what a party proposes to prove at trial so that the opponent will know the factual contention and prepare to meet them
- may be intended to give each party only a general notice of the opponent’s contentions
What are the five types of responses to a complaint?
- Motion to dismiss
- Answer
- Affirmative defenses
- Reply
- Counterclaim
What is a motion to dismiss?
Motion can:
1. challenge the court’s jurisdiction over subject matter or person
2. Service of process
3. Venue
4. Motion to dismiss for failure to state a claim or cause of action (demurrer)
What is an answer?
Pleading must admit or deny factual allegations in complaint
What is affirmative defenses?
To rely on certain legal contentions; these must be pleaded in with the answer
What is a reply?
This can come after the answer; however, today they just want to close the pleadings after the answer
What is a counterclaim?
Can be used as part of the answer. Basically, a complaint by the defendant against Plaintiff. Plaintiff will have to respond just like defendant did against initial complaint
What is pretrial discovery?
Pretrial discovery is designed to allow the parties to exchange information about their claims and defenses, and to prepare for trial
What are depositions?
The person who deposition is to be taken is questioned by lawyers for each side through direct and cross-examination. Useful for finding information that is relevant to the case, including unearthing leads as to other witnesses or documents; laying a foundation for impeachment of witness who attempts to change his/her story at trial
What is an interrogatory?
(It usually may only be addressed to a party in the suit) Questions answered by the party, usually with help of counsel. Useful to obtain information against party that cannot be expected to remember in such a way through deposition
What are the production of documents?
Motion to request production of documents
What are request for admissions?
RFAs will require said party to answer certain questions. Removed uncontested issues from case
What is a physical examination?
A court order directing to be examined by a physician of filing parties choice to determine real extent of alleged injuries
What is a motion for summary judgment?
Motion can be supported by demonstrating that the crucial issue will have to be resolved in the movant’s favor at trial because the opposing due to opposing party will be unable to produce sufficient admissible evidence to support of their position on the issue.
What is a general verdict?
Permits jurors to determine the facts and apply the law on which they have been charged to those facts (most common);
1. only presents conclusion who prevails
2. the amount of damages
3. if the party is the claimant
What is a general verdict with interogatories?
Combines general verdict and requires several key questions to be answered to make sure the jury understands the issues at hand
What is a special verdict?
All factual issues in case are submitted to jury as questions without instructions as to their legal effect; judge applies law to jury’s answers and determines which party prevails
What are the three post-trial motions?
- judgment notwithstanding the verdict
- new trial
- reopen judgment
What is a judgmentnotwithstanding the verdict?
Motion raises the same question as a motion for a directed verdict (commonly called motion for judgment n.o.v. from Latin obstante verdicto, but in federal practice, called a renewed motion for judgment as a matter of law
What is a new trial?
grounds for this include many but this also may include:
1. assertions that the judge erred in admitting or excluding certain evidence;
2. charge was defective
3. attorneys, parties, or jurors guilty of misconduct;
4. damages awarded are excessive
5. jury’s verdict is against clear weight of the evidence
What is “reopen judgment?”
If previous motions fail, very rarely but possible for reopen judgment, based on:
1. clerical mistakes
2. newly discovered evidence
3. fraud
What is a writ of execution?
Issued by the court commanding an office-usually the sheriff to seize property of the losing party, if necessary, to sell it publicly and use proceeds to satisfy judgment
What is an injunction?
If defendant fails to stop doing something or does not do something, they may be held in contempt of court and punished by fine or imprisonment
What is a final judgment?
Judgment becomes final: 1. after appeal and other proceedings that may occur
2. or if no appeal taken, when time to appeal expires
What is res judicata?
A thing decided and now the matter is at rest
