Chapter 3 Flashcards
Parties to a Lawsuit:
(1) Plaintiff
(2) Defendant
(3) Prosecutor [criminal cases only]
(4) Judge
(5) Jury
Files the complaint
Plaintiff
Responds to complaint in defense of self
Defendant
Courtroom moderator; gives verdict (decision) if no jury
Judge
Citizens who listen, observe, and ultimately make a verdict
Jury
Plaintiff vs. Defendant
Civil Case
State vs. Defendant
Criminal Case
Not guaranteed right to a jury
Civil Case
Guaranteed right to a jury
Criminal Case
Formal documents filed with the court stating the parties positions
Pleading
Complaint filed by Plaintiff
1st Pleading
- Established subject matter jurisdiction and personal jurisdiction
- Documents the facts related to plaintiff’s complaint
- Lists remedies sought by plaintiff
1st Pleading
Defendant must respond to Plaintiff’s complaint by
(1) Motion to Dismiss the Case
(2) Reply - Admit/ Deny the facts
(3) Counterclaim
Defendant claims court does not have proper SJM or PJ to hear case
Motion to Dismiss Case
Defendant admits to some of the facts presented in Plaintiff’s complaint, but denies the other of the facts presented are accurate
Reply - Admit/ Deny Facts
Defendant counter-complaint against Plaintiff (essentially a second lawsuit)
Counterclaim
Discovery Phase (Tools to Obtain Evidence):
(1) Deposition
(2) Interrogatories
(3) Expert Witnesses
In person, live questioning of a witness recorded by a court reporter. Not done in court, but usually in an office setting.
Deposition
Written questions submitted by one or both of the parties. Must be answered and signed as truth under oath
Interrogatories
Person invited to testify at trial because of specular knowledge in a particular field relevant to case
Expert Witnesses
Establishes whether an expert witness is a qualified expert. If this doesn’t happen and the case makes it up to the Supreme Court, then the case is done.
Daubert Hearing
Discovery Phase
(1) Order of Production of Documents
(2) Request for Admissions of Truth
(3) Request for Mental/ Physical Examination
Forced sharing of emails, medical bills, business record, videos, photos, etc.
Order of Production of Documents
Parties admit or deny that certain elements of the case are true so as to mitigate what needs to be proven in court.
Request for Admissions of Truth
Order a party to submit a medical or physical exam
Request for Mental/ Physical Examination
Sanctions (punishments) for failure to respond to discovery requests:
(1) Default Judgement
(2) Contempt of Court
Automatic victory to other party
Default Judgement
Jail time or fines
Contempt of Court
Pretrial Stage
Summary Judgement
- Requested by one of the parties before case goes to trial that the verdict be granted in their favor because the evidence recovered during discovery point to no genuine issue of material fact
- Asking to rule in favor without going to trial
- Losing party can always file an appeal on this
Summary Judgement (Motion happens only up to the start of trial)
- Right to a jury in some civil cases
- Always a right in criminal cases
- Generally a group of 12 citizens, but could be less based on jurisdiction statutory law
Jury Selection (Voir Dire)
Attorney allowed 2 types of challenges to reject prospective jurors:
(1) Challenge for Cause
(2) Peremptory Challenge
- Have to document when questioning the juror and why they are questioning them
- Can have as many as attorneys want
Challenge for Cause
- Dismiss Jurors without any Justification
- Each attorney only has a few of these
- Can not be race based
- Don’t have to give a reason for dismissal
Preemptory Challenge
Trial Steps
(1) Opening Statements
(2) Examination of Witnesses/ Evidence Introduced
(3) Closing Arguments
(4) Motion for Detected Verdict
(5) Verdict
(6) Judgement Notwithstanding Verdict
Examination of Witnesses/ Introduce Evidence
(1) Direct Exam
(2) Cross Exam
(3) Redirect
(4) Re-cross
(5) REPEAT with different people
Plaintiff’s attorney questions plaintiff (1st)
Direct Exam
Defendant’s attorney questions plaintiff (2nd)
Cross Exam
Plaintiff’s attorney re-questions plaintiff (3rd) (confined to matters dealt with in the cross exam)
Redirect
Defendant’s attorney re-questions plaintiff (4th) (confined to matters dealt with redirect)
Re-Cross
Made before case is handed to the jury requesting the judge to rule in favor of the party making the emotion (because no reasonable jury could find for opposing party)
Motion for Directed Verdict
Preponderance of the evidence (tip of the scale in favor of Plaintiff or Defendant)
Civil Case Verdict
Beyond a reasonable doubt (that defendant is guilty)
Criminal Case Verdict
Made after the verdict is issued, asking the judge to overrule the jury’s verdict if clear that the law was applied improperly
Judgement Notwithstanding Verdict
Remedies in Civil Litigation
(1) Monetary Damages
(2) Equitable Remedies
Monetary Damages
(1) Compensatory
(2) Punitive
Compensate the victim for whatever damages they covered
Compensatory
There to punish the wrongdoer (Usually DUI cases do this)
Punitive
Equitable Remedies
(1) Specific Performance
(2) Injunction
- Requires offending party to do what they had promised
- Contract in place already
- Transfer title to art, rare books, antiques, baseball cards
Specific Performance
- Direct somebody to do or not do something
- No contract in place
- Example: pay child support
Injunction
Appellate Stage Decisions by the Court
(1) Majority Opinion
(2) Concurring Opinion
(3) Dissenting Opinion
- Documents the winning party
- Always have majority opinions
- 2 or more judges in a 3-judge panel must make up the majority opinion
- 5 or more judges in the Supreme Court make up the majority opinion
Appellate Stage Majority Opinion
- One or more of the majority agrees with the holding but may have a different reason as to why they feel that plaintiff won
- Still agree with the verdict
Appellate Stage Concurring Opinion
- When 1 or more judges disagrees with the majority
- Document a disagreement but doesn’t change the verdict
- Useful for litigations with similar arguments
Appellate Stage Dissenting Opinion
Appellate Stage Outcomes of Decisions
(1) Affirm
(2) Modify
(3) Reverse
(4) Remand
Appellate court agrees with the lower court’s decision
Appellate Stage Affirm
Appellate court agrees the law was applied properly but think there are things that need to be verified
Appellate Stage Modify
Appellate court disagrees with the district court
Appellate Stage Reverse
Send verdict back to lower court to relitigate that part and decide if the verdict decided was proper
Appellate Stage Remand
- If no further appeal is available, judgement is final and binding
Enforcing Judgement
Court orders an official (sheriff) to satisfy the judgement through an act (such as seizure of property, garnishment of wages, etc.)
Writ of Execution
- Most widely recognized form of alternative dispute resolution
- Much faster than a trial
Arbitration
- Neutral 3rd party that makes a binding decision
- Decision is final and generally not appealable
- Exception: Evidence of corruption, fraud, serious procedural misconduct, exceeding power
Arbitrator
- Least formal form of ADR
- Parties settle matters between themselves, usually with lawyers
- Settlement is usually drafter into a contract, which is enforceable by the courts
Negotiation
Neutral 3rd person that helps two parties come to an agreement, but the mediator’s recommendations are not binding
Mediator
- Whatever a mediator hears during the process is completely confidential
- If they go to court, mediator can not be witness
Mediation
