chapter 6 cram session

Question 1

litigation

Answer 1

power of courts to settle disputes

Question 2

settlement

Answer 2

resolution of a dispute between parties without the rendering of a final decision by a trial or appellate court

Question 3

ADR

Answer 3

• alternative dispute resolution
• techniques for resolving conflicts that are alternatives to full-scale litigation
• most common are arbitration and mediation

Question 4

mediation

Answer 4

a form of adr where a neutral third party assists the opposing parties with reaching a mutually agreeable, voluntary compromise, rather than win vs lose

Question 5

arbitration

Answer 5

form of adr where the parties submit the disagreement to a third party, whose decision is binding and cannot be challenged in court except on very limited grounds e.g. fraud

Question 6

pretrial motion

Answer 6

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

Question 7

discovery

Answer 7

modern pretrial procedure by which one party gains information from the other party

Question 8

standing

Answer 8

requirement for a lawsuit that a plaintiff must establish that they were personally affected by something the defendant did

Question 9

guardian / next friend

Answer 9

a person appointed by the court to manage the affairs or property of a person who is incompetent to do so

Question 10

class action suit

Answer 10

lawsuit brought by a person as a representative for a group of people who have been similarly injured

Question 11

judgment proof

Answer 11

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

Question 12

respondeat superior

Answer 12

• tort theory that and employer can be sued by the negligent act of its employees
• used to get more money in a lawsuit

Question 13

compulsory joinder

Answer 13

when a plaintiff cannot sue one potential defendant without including other culpable parties as well, or vice-versa (multiple plaintiffs)

Question 14

venue

Answer 14

proper geographic location for a case to be filed and heard in the case where a court has multiple locations

Question 15

subject matter jurisdiction

Answer 15

power of a court to hear a particular kind of case

Question 16

personal jurisdiction

Answer 16

• power of a court to force a person to appear before it
• generally requires a defendant to be a resident of the state, be served with process within the state, consent to the lawsuit, or have minimum contacts with it

Question 17

minimum contacts

Answer 17

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

Question 18

exhaustion of administrative remedies

Answer 18

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

Question 19

caption

Answer 19

section of a pleading containing

1. the names of the parties
2. the name of the court
3. the title of the action
4. the docket or file number
5. the name of the pleading

Question 20

complaint

Answer 20

pleading that begins a lawsuit

Question 21

notice pleading

Answer 21

a method adopted by the federal rules in which the plaintiff simply informs the defendant of the claim and the general basis for it. basic statement of facts

Question 22

count

Answer 22

in a complaint, one cause of action

Question 23

pleading in the alternative

Answer 23

including more than one count in a complaint, giving one or more reasons for the suit

Question 24

cm/ecf

Answer 24

• case management/electronic case files
• case management system developed for the federal courts that allows electronic filing of documents and maintenance of case docket

Question 25

pdf

Answer 25

- portable document format - federal courts require all docs to be filed as pdfs - allows a document to be viewed and printed on any computer

Question 26

affidavit

Answer 26

a written statement confirmed by oath or affirmation for use as evidence in court

Question 27

verification

Answer 27

an affidavit signed by the client indicating that he or she has read the complaint and that its content is correct

Question 28

notice

Answer 28

being informed of some act done or about to be done

Question 29

service

Answer 29

delivery of a pleading or other paper in a lawsuit to the opposing party

Question 30

summons

Answer 30

notice informing the defendant of the lawsuit and requiring the defendant to respond or risk losing the suit by default

Question 31

process server

Answer 31

a person authorized by law to serve legal papers on defendants

Question 32

answer

Answer 32

defendant's reply to the complaint which may contain statements of denial, admission, or lack of knowledge

Question 33

counterclaim

Answer 33

a claim by the defendant against the plaintiff

Question 34

cross-claim

Answer 34

a claim by one defendant against another defendant or by one plaintiff against another plaintiff

Question 35

third-party claim

Answer 35

a claim by a defendant against someone in addition to the persons the plaintiff has already sued

Question 36

default judgment

Answer 36

a judgment entered against a party who fails to complete a required step

Question 37

motion

Answer 37

a request made to the court

Question 38

rule 56 motion

Answer 38

- aka summary judgment motion or judgment as a matter of law | - pretrial motion to rule in favor of moving party without trial because the facts presented are not in dispute

Question 39

12(b)(6) motion

Answer 39

pretrial motion that requests that the court find the plaintiff does not have a valid claim and dismiss the complaint

Question 40

interrogatories

Answer 40

pretrial written questions sent by one side to the opposing side, answered under oath

Question 41

deposition

Answer 41

pretrial oral questioning of a witness under oath

Question 42

deponent

Answer 42

the person being questioned at a deposition

Question 43

request for admissions

Answer 43

pretrial document that lists statements they want the other party to admit or deny. once admitted they cannot be in dispute and will not need to be addressed in trial

Question 44

subpoena duces tecum

Answer 44

pretrial court order that a person who is not party to litigation appear at deposition or trial and bring requested documents

Question 45

electronic discovery

Answer 45

process of gaining information from the adverse party when that info is in electronic form aka e-discovery

Question 46

ESI

Answer 46

electronically stored information

Question 47

litigation hold

Answer 47

pretrial requirement that routine alteration or destruction of ESI must stop whenever there is a reasonable belief litigation may arise

Question 48

spoilation

Answer 48

destruction or alteration of relevant documents

Question 49

meet and confer conference

Answer 49

in federal court, a mandated conference at which the parties must develop a proposed discovery plan

Question 50

claw-back provision

Answer 50

part of a proposed discovery plan. an agreement whereby privileged documents inadvertently produced can be retrieved

Question 51

dismissal with prejudice

Answer 51

a court order that ends a lawsuit and prohibits it from being filed again by the same parties

Question 52

pretrial conference

Answer 52

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

Question 53

motine in limine

Answer 53

a request that the court order that certain information not be mentioned in the presence of a jury e.g. prejudicial testimony

Question 54

voir dire

Answer 54

an examination of a prospective juror to see if they are fit to serve on the jury of a case

Question 55

adversarial system

Answer 55

the system by which competing, opposing parties are overseen by a neutral decision maker

Question 56

challenge for a cause

Answer 56

method for excusing a prospective juror based on the juror's inability to serve as a neutral party

Question 57

peremptory challenge

Answer 57

a method for excusing a prospective juror, no reason need be given

Question 58

direct examination

Answer 58

the questioning of your own witness

Question 59

leading question

Answer 59

a question that suggests an answer; generally not allowed during direct examination

Question 60

cross-examination

Answer 60

questioning of an opposing witness

Question 61

directed verdict

Answer 61

a 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