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Intro To Paralegal > Chapter 6 - Civil Litigation > Flashcards

Chapter 6 - Civil Litigation Flashcards

0
Q

Arbitration

A

And ADR mechanism whereby the parties submit their disagreement to a third-party, whose decision is binding.

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1
Q

Alternative dispute resolution (ADR)

A

Techniques for resolving conflicts that are alternatives to full-scale litigation. The two most common arbitration and mediation.

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2
Q

Mediation

A

And ADR mechanism whereby a neutral third-party assists the parties in reaching a mutually agreeable, voluntary compromise.

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3
Q

Summary jury trials

A

A nonbinding process in which attorneys for both sides present synopses of their cases to a jury, which renders an advisory opinion on the basis of these presentations.

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4
Q

Before a lawsuit can be filed, what things must an attorney determine?

A
  1. Whether a legal basis for the suit exists
  2. Who should be sued
  3. In which court the case should be brought
  4. Whether the statute of limitations has expired
  5. Whether any administrative agency must be consulted before filing suit
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5
Q

Pleadings

A

The papers that begin a lawsuit. Generally, the complaint and the answer.

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6
Q

Pretrial motion

A

A motion brought before the beginning of the trial either to eliminate the necessity for trial or to limit the information that can be heard at the trial

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7
Q

Discovery

A

The modern pretrial procedure by which one party gains information from the adverse party

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8
Q

Which of the Federal Rules Of Civil Procedure dictates that an attorney make a reasonable inquiry Into the factual and legal bases for the claim in a lawsuit?

A

Rule 11

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9
Q

What is the legal principle called that says courts cannot decide abstract issues or render advisory opinions?

A

Standing

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10
Q

Judgment proof

A

When the defendant does not have sufficient money or other assets to pay the judgment

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11
Q

Compulsory joinder

A

When a person must be brought into a lawsuit as either a plaintiff or a defendant.

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12
Q

Subject matter jurisdiction

A

The power of a court to hear a particular type of case

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13
Q

Minimum contacts

A

A constitutional fairness requirement that a defendant have at least a certain minimum level of contact with the state before the state courts can have jurisdiction over the defendant

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14
Q

Statutes of limitations

A

The law that sets the length of time from when something happens to when a lawsuit must be filed before the right to bring it is lost

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15
Q

Exhaustion of administrative remedies

A

The requirement that relief be sought from an administrative agency before proceeding to court

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16
Q

Assume Mary was injured in an automobile accident while vacationing in California. Joe was driving the car that hit her. Mary is a resident of Michigan. Joe is a resident of Florida. In which state or states may Mary bring suit?

A

California Or Florida

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17
Q

Answer

A

The defendant’s reply to the complaint. It may contain statements of denial, admission, or lack of knowledge and affirmative defenses.

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18
Q

Counterclaim

A

A countersuit by the defendant against the plaintiff

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19
Q

Cross-claim

A

A suit by one defendant against another defendant

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20
Q

Third-party claim

A

A suit by defendant against someone not originally part of the lawsuit

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21
Q

What is the heading section of a pleading called?

A

Caption

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22
Q

What things must the caption of a pleading contain?

A

The names of the parties, the name of the court, the title of the action, the docket file number, and the name of the pleading.

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23
Q

Which rule in the Federal Rules Of Civil Procedure determines what must appear in a claim that asks for relief?

A

Rule 8

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24
Q

Count

A

In a complaint, the basis for the lawsuit; the cause of action.

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25
Q

Pleading in the alternative

A

Including more than one count in a complaint

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26
Q

Verification

A

An affidavit signed by the client indicating that he or she has read the complaint and that its contents are correct.

27
Q

Summons

A

A notice informing the defendant of the lawsuit and requiring the defendant to respond or risk losing the suit.

28
Q

What are the responses that a defendant can choose to make in his or her answer to a complaint?

A
  1. deny the facts that the plaintiff says took place
  2. Admit the facts but assert that those facts do not provide the plaintiff with a legal remedy
  3. Claim that additional facts give rise to an affirmative defense.
  4. Assert that there are procedural defects in the complaint
  5. Bring a claim of one’s own against either the plaintiff or another defendant.
29
Q

Affirmative defense

A

The defense whereby the defendant offers new evidence to avoid judgment

30
Q

Default judgment

A

A judgment entered against the party who fails to complete a required step, such as answering the complaint.

31
Q

Rule 12 motions

A

Motions to dismiss

32
Q

What are the reasons for dismissal covered by Rule 12?

A
  1. Lack of jurisdiction over the subject matter
  2. Lack of jurisdiction over the person
  3. Improper venue
  4. Insufficiency of process
  5. Insufficiency of service of process
  6. Failure to state a claim upon which relief can be granted
  7. Failure to join a party under rule 19
33
Q

What is a 12 (B) (6) motion?

A

Request of the court find the plaintiff has failed to state a valid claim, that is a claim for which the court cannot give relief, and dismiss the complaint.

34
Q

What is another name for a rule 56 motion?

A

A motion for summary judgment

35
Q

How is a rule 56 motion different from a 12 (B) (6) motion?

A

The court will consider additional evidence as presented in documents other than the pleadings.

36
Q

Is a motion to dismiss or a motion for summary judgment appealable?

A

Yes, and if the appellate court reverses the decision it means that the prevailing party has won the right to proceed with the litigation

37
Q

What are the devices that can be used during the discovery phase?

A
  1. Interrogatories
  2. Depositions
  3. Requests for admissions
  4. Requests for documents and physical examinations
  5. Enforcing discovery rights
38
Q

Interrogatories

A

Written questions sent by one side to the opposing side answered under oath

39
Q

Deposition

A

The pretrial oral questioning of a witness under oath

40
Q

Deponent

A

The person who is being asked questions at a deposition

41
Q

Requests for admissions

A

A document that lists statements regarding specific items for the other party to admit or deny

42
Q

Subpoena duces tecum

A

In the discovery phase, a request for documents in the possession of third parties

43
Q

Dismissal with prejudice

A

A court order that ends the lawsuit; the suit cannot be refiled by the same parties.

44
Q

Pretrial conference

A

A meeting of the attorneys and the judge prior to the beginning of the trial

45
Q

Motion in limine

A

Request that the court order that certain information not be mentioned in the presence of the jury

46
Q

Voir dire

A

An examination of a prospective juror to see if he or she is fit to serve as a juror on a specific case

47
Q

Challenge for cause

A

A method for excusing a prospective juror based on the juror’s inability to serve in an unbiased manner

48
Q

Peremptory challenge

A

A method for excusing a prospective juror; no reason need be given

49
Q

Direct examination

A

The questioning of your own witness

50
Q

Leading question

A

A question that suggests the answer; generally, leading questions may not be asked during direct examination of a witness

51
Q

Cross examination

A

The questioning of an opposing witness

52
Q

Directed verdict

A

The verdict ordered by a trial judge if the plaintiff fails to present a prima facie case or if the defendant fails to present a necessary defense

53
Q

Pattern jury instructions

A

A set of standardized jury instructions

54
Q

Verdict

A

The opinion of a jury on a question of fact

55
Q

Writ of execution

A

A court order authorizing a sheriff to take property in order to enforce a judgment

56
Q

Judgment notwithstanding the verdict

A

A judgment that reverses the verdict of the jury when the verdict had no reasonable factual support or was contrary to law

57
Q

Motion for a new trial

A

A request that the court order a rehearing of the lawsuit because Irregularities, such as errors of the court or jury misconduct, make it probable that an impartial trial did not occur.

58
Q

Appellate brief

A

An attorney’s written argument presented to an appeals court, setting forth a statement of the law as it should be applied to the client’s facts.

59
Q

Clearly erroneous

A

The standard used by appellate courts when reviewing a trial courts findings of fact

60
Q

Harmless error

A

A trial court error that is not sufficient to warrant reversing the decision

61
Q

Reversible error

A

An error made by the trial judge sufficiently serious to warrant reversing the trial court’s decision

62
Q

Affirm

A

When a higher court agrees with what a lower court has done

63
Q

Reverse

A

When an appellate court overturns or negates the decision of a lower court

64
Q

Remand

A

When an appellate court sends a case back to the trial court for a new trial or other action

65
Q

What are the three basic stages of litigation?

A

Pretrial, trial, and appeal.

Intro To Paralegal (4 decks)

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