Chapter 4 Flashcards
in personam jurisdiction
if either party lives in the authorized area of the court in question, that court could hear the case through this
in rem jurisdiction
if property exists, or controversy occurred within authorized area of court
quasi in rem jurisdiction
invoked to help a party pay damages. Court that has jurisdiction over the property even though the property was not the original controversy
lis pendens
notice that a property may be subject of a lien
affirmative defense
found in the Answer; a pleading
pleading
states a party’s position in the litigation
Discovery documents
Are not usually filed with the court but used as an exhibit later at trial
5 tools of discovery
request for: admissions production of documents mental/physical examination depositions
certificate of mailing
paragraph at the end of many pleadings, motions and discovery docs, states which other parties have been sent copies of the doc
motion for summary judgment
there are 3 motions that do basically the same thing: ask the judge to decide the case instead of jury. difference is when they occur
motion for summary judgment
ask judge to decide case at pretrial
motion for directed verdict
ask judge to decide case at trial
motion for judgment NOV
ask judge to decide case post trial
what is motion for summary judgment?
asks court to determine that since no material facts are disputed by parties, there is no need for jury; court may apply law without need of a trial
stipulation
mean parties do not have to call witnesses or present evidence to agreed facts
voir dire
- jury selection
2. questioning of a potential witness
ways to keep a panel member off the jury
Challenge for Cause
Peremptory Challenge
Challenge for Cause
valid reason to keep person off the jury; unlimited
Peremptory Challenges
keep person off the jury without having a reason; typically 3 or 6
burden of proof
burden is on plaintiff in civil trial and prosecutor in criminal trial
burden of proof required in civil trial
preponderance of the evidence - less than criminal trial
burden of proof needed in criminal trial
beyond a reasonable doubt
probative value
if information value of a piece of evidence is outweighed by the prejudicial effect
admissible evidence
if obtained illegally, or there is a privilege the jury cannot hear it
preserving the record/preserving the right of appeal
objections by attorney are often effort to preserve the record thereby preserving the right to appeal later
proximate cause
related term: doctrine of last clear chance
person who had last clear opportunity to avoid damages is most liable
prima facie case
Pronounced: prime-uh faysh-uh
no gaps; if facts being alleged are proven at trial those facts would contain no gaps in the claim
Motion for Judgment N.O.V.
NOV = non obstante verdicto
not withstanding the verdict, or in spite of the verdict.
additur and remittitur
court says to one of the parties: i have an offer you can’t refuse, but if you do, the other side gets a new trial
Notice of Appeal
in every case there is one automatic appeal
after that, any subsequent appeal must be granted by the next highest court
document that requests the second appeal
writ of certiorari
res judicata
a party that has been sued and won at trial may not be sued again over the same legal matter
appellant or petitioner
party initiating an appeal
appellee or respondent
party responding to an appeal
panel of justices (or judges)
portion of appellate-level court that hears a case; usually 3 judges
en banc
entire appellate level court sits to hear and decide case; indicating importance
opinion
written decision of the court
majority opinion
strongest; when more than 50 percent of court agrees on a decision
affirm
appellate court agrees with the decision of the trial court
reverse
appellate court disagrees with and nullifies the decision of the trial court
modify
appellate court alters the decision of the trial court
remand
the appellate court sends the case back to the trial court for further deliberation
concurring opinion
opinion of one or more judges that agrees with the results of the majority, but arrives at that result for different reasons
dissenting opinion
opinion that disagrees with the majority opinion
Interlocutory Appeal
appeal during or before the trial. this asks the court to rule on a single procedural issue, usually a ruling regarding admission of evidence
impeach
attorney asks questions to discredit that witness earlier given testimony; attorney usually prevented from attempting to impeach his own witness
motion in limine
requesting that information which might be prejudicial not be allowed to be heard in a case. the relevance of the information is outweighed by its prejudicial effect
nolle prosequi
decision of prosecutor not to prosecute, even though he believes there is sufficient evidence
misdemeanor
a crime punishable by a sentence of less than one year
felony
crime punishable by sentence of a year or more in prison
nolo contendere
means no contest; defendant does not contest charges, but does not admit guilt
preliminary hearing
hearing requiring State to produce sufficient evidence to establish that there is probable cause to believe that a crime has been committed
bound over
submitted to; sent
is criminal law viewed as harming the individual?
no, criminal law harms the community
can an attorney impeach his own witness if declared hostile?
yes, as an exception to the rule that an attorney many not impeach his own witness
the right to refuse to testify, or prevent someone else from testifying
privilege
A question of law.
issue
attorney might say “the ISSUE before the court is one of negligence”
an appeal made prior to or during a trial asking the higher court to provide a ruling on limited issues
interlocutory appeal
a request to end a case without going to trial, or to end a trial in progress
motion to dismiss
- prejudice (can’t be brought back)
- with out prejudice (can be refiled)
ex parte
1.hearing in court where only one party is present
2.
The official collection of the transcripts, pleadings, and exhibits from the trial
record
in personam
jurisdiction over the person
The point at which a series of events begins that results in an event with damages occuring
proximate cause
When the accused and the prosecutor in a criminal case negotiate a disposition of the case.
plea bargain
A reasonable basis to believe that a person has committed a crime
probable cause
A person making a representation, or statement, in writing under oath. One who signs an affidavit.
Affiant
Legal docs filed with the court stating a position in the legal matter and asking the court to take some sort of action to resolve the matter
pleadings
A case or argument which is sufficient on its face
prima facie
the official collection of the transcripts, pleadings, and exhibits from the trial
record
a written statement where one swears that a party (or witness) has been served with legal docs
affidavit of service
Motion during the trial made by a party asking that the judge enter judgment on behalf of his client due to the fact that the other party has failed to establish a prima facie case.
directed verdict
A business or person authorized to accept service on behalf of a corporation as though the corporation itself had been served
registered agent
A potential for unfairness due to preconceptions, lack of open-mindedness, or prior involvement in a case
bias
