Chapter 6 - Civil Litigation

Question 0

Arbitration

Answer 0

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

Question 1

Alternative dispute resolution (ADR)

Answer 1

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

Question 2

Mediation

Answer 2

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

Question 3

Summary jury trials

Answer 3

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.

Question 4

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

Answer 4

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

Question 5

Pleadings

Answer 5

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

Question 6

Pretrial motion

Answer 6

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

Question 7

Discovery

Answer 7

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

Question 8

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?

Answer 8

Rule 11

Question 9

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

Answer 9

Standing

Question 10

Judgment proof

Answer 10

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

Question 11

Compulsory joinder

Answer 11

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

Question 12

Subject matter jurisdiction

Answer 12

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

Question 13

Minimum contacts

Answer 13

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

Question 14

Statutes of limitations

Answer 14

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

Question 15

Exhaustion of administrative remedies

Answer 15

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

Question 16

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?

Answer 16

California Or Florida

Question 17

Answer

Answer 17

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

Question 18

Counterclaim

Answer 18

A countersuit by the defendant against the plaintiff

Question 19

Cross-claim

Answer 19

A suit by one defendant against another defendant

Question 20

Third-party claim

Answer 20

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

Question 21

What is the heading section of a pleading called?

Answer 21

Caption

Question 22

What things must the caption of a pleading contain?

Answer 22

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.

Question 23

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

Answer 23

Rule 8

Question 24

Count

Answer 24

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

Question 25

Pleading in the alternative

Answer 25

Including more than one count in a complaint

Question 26

Verification

Answer 26

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

Question 27

Summons

Answer 27

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

Question 28

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

Answer 28

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.

Question 29

Affirmative defense

Answer 29

The defense whereby the defendant offers new evidence to avoid judgment

Question 30

Default judgment

Answer 30

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

Question 31

Rule 12 motions

Answer 31

Motions to dismiss

Question 32

What are the reasons for dismissal covered by Rule 12?

Answer 32

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

Question 33

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

Answer 33

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.

Question 34

What is another name for a rule 56 motion?

Answer 34

A motion for summary judgment

Question 35

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

Answer 35

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

Question 36

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

Answer 36

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

Question 37

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

Answer 37

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

Question 38

Interrogatories

Answer 38

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

Question 39

Deposition

Answer 39

The pretrial oral questioning of a witness under oath

Question 40

Deponent

Answer 40

The person who is being asked questions at a deposition

Question 41

Requests for admissions

Answer 41

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

Question 42

Subpoena duces tecum

Answer 42

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

Question 43

Dismissal with prejudice

Answer 43

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

Question 44

Pretrial conference

Answer 44

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

Question 45

Motion in limine

Answer 45

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

Question 46

Voir dire

Answer 46

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

Question 47

Challenge for cause

Answer 47

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

Question 48

Peremptory challenge

Answer 48

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

Question 49

Direct examination

Answer 49

The questioning of your own witness

Question 50

Leading question

Answer 50

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

Question 51

Cross examination

Answer 51

The questioning of an opposing witness

Question 52

Directed verdict

Answer 52

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

Question 53

Pattern jury instructions

Answer 53

A set of standardized jury instructions

Question 54

Verdict

Answer 54

The opinion of a jury on a question of fact

Question 55

Writ of execution

Answer 55

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

Question 56

Judgment notwithstanding the verdict

Answer 56

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

Question 57

Motion for a new trial

Answer 57

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.

Question 58

Appellate brief

Answer 58

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.

Question 59

Clearly erroneous

Answer 59

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

Question 60

Harmless error

Answer 60

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

Question 61

Reversible error

Answer 61

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

Question 62

Affirm

Answer 62

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

Question 63

Reverse

Answer 63

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

Question 64

Remand

Answer 64

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

Question 65

What are the three basic stages of litigation?

Answer 65

Pretrial, trial, and appeal.