Chapter 9 - Civil Procedure, Evidence, and the Appellate Process - Concepts Flashcards
Civil procedure embraces the processes by which (1) and (2) are presented to an adjudicated by trial courts. It includes the (3), (4) and (5) phases of civil litigation.
- claims
- defenses
- pretrial
- trial
- post-trial
In federal courts, civil procedure is governed by rules promulgated by the (1) under authority delegated by (2). State legislatures have authorizes state courts to establish rules of civil procedure, replacing what was known as (3).
- US Supreme Court
- Congress
- common law pleading
Plaintiffs and defendants are known as (1), and their rights are determined in accordance with the principles of (2). Civil procedure is the process that governs (3) of civil disputes.
- parties
- substantive law
- judicial resolution
Jurisdiction is conferred on courts either by (1) or (2). Venue is generally determined by where a (3) or where (4) is located.
- constitution
- statute
- tort or breach of contract occurs
- land in controversy
5 examples of types of cases that have federal jurisdiction
- copyrights/patents
- admiralty/maritime
- bankruptcy
- diversity of citizenship
- federal crimes
(1), (2) and (3) may become parties to civil lawsuits as plaintiffs or defendants. In certain litigation, the party who files a complaint is known as the (4) and the party against whom relief is sought is called the (5).
- Individuals
- corporations
- government agencies
- petitioner
- respondent
A lawsuit must specify the (1) and the (2). Usually this is damages, which can be (3), (4). (5) or (6).
- cause of action
- relief
- general (pain and suffering)
- special (lost wages, med expenses)
- nominal (small mount to recognize rights sans damages)
- punitive
Three alternatives to damages are (1), (2) and (3).
- declatory relief (court settles a controversy)
- injunction (court prevents/terminates ongoing injury)
- specific performance (court orders fulfillment of a contract)
The purpose of the initial pleading is to demonstrate to the court that (1) and to inform the defendant of the (2) and the (3). In addition to the elements, the initial pleading must also contain a caption with the (4) and the (5).
- it has jurisdiction
- basis of the suit
- relief sought
- court where the suit is filed
- names of the parties
In federal court proceedings, a process may be served (1), but for state courts the process must be served (2). A (3), (4) or (5) usually accomplishes service of the complaint and summons.
- throughout the US
- within the state
- marshal
- sheriff
- process server
Four types of service
- personal service (physically delivered to def)
- substituted service (served on somone on def’s behalf)
- long-arm (plaintiff sues a non-res who has transacted in plaintiff’s state)
- constructive service (notice in newspaper, copy sent to def’s last address–form of relief is restricted)
If a def. fails to respond, the clerk enters a (1) and the judge may enter a (2). A def. acting quickly might be able to reverse this by demonstrating (3) and a (4).
- default
- default judgment
- excusable neglect for failure to respond
- meritorious defense
Before filing an answer, the def. may challenge (1) or the (2), or seek the dismiss the complaint on the ground that it does not state a (3). The plaintiff may be allowed to (4).
- the court’s jurisdiction
- service of process
- legal cause of action
- file an amended complaint
The answer (1) or (2) allegations and may include (3), such as statute of limitations or statute of frauds. He may also enter a (4) or (5).
- admits
- denies
- specific defenses
- counterclaim
- cross-claim
3 things a counterclaim could do
- defeat the plaintiff’s claim
- mitigate the amount of plaintiff’s damages
- result in the defendant recovering damages
Class action lawsuits are brought by parties who claim to represent a large group of (1) who share a (2) in seeking relief. These are a fairly new concept and are possible only when (3) is impracticable. These have become a major vehicle of (4), such as for improvements of prisons and injury from asbestos.
- unnamed persons
- common interest
- joinders
- social and economic reform
(1) was rejected by the SC because the plaintiffs (women discriminated against) did not present a common question of law or fact.
- Wal-mart v. Dukes
Discovery allows inquiry into matters that may lead to relevant info concerning a (1) or (2). Revealing (3) or (4) information is limited by courts.
- claim
- defense
- “work product”
- privileged
2 forms of discovery
- interrogatories
2. depositions
Often discovery proceedings lead to (1). Usually depositions are used to (2) the witnesses but may sometimes be (3). If the discovery process becomes abusive, a judge may step in and issue a (4) limiting the scope.
- out-of-court settlements
- impeach
- admitted as evidence
- protective order
Trial judges often call for a (1) to coordinate the progress of litigation and schedule and limit discovery. Once a case is ready, the trial judge may call for a (2).
- case management conference
2. pretrial conference
6 functions of a pretrial conference
- simplify issues to be tried
- obtain admissions of undisputed facts
- obtain stipulation as to genuineness of documentary evidence
- agree on the witnesses to be examined and exhibits to be admitted
- set time for presentation of evidence for each side
- explore possibility of a settlement
Most civil cases are either (1) or (2) before trial. Where there is no issue of material fact, parties may move for a (3) to terminate litigation and obtain a ruling in their favor.
- settled
- disposed of
- summary judgment
Despite protection of the (1), in many civil proceedings there is no provision for a jury trial. These include (2) and (3).
- 7th Amendment
- name change
- adoption