Chapter Five Flashcards
Alternative dispute resolution
Techniques for resolving conflicts that are alternatives to full scale litigation
The two most common are arbitration and mediation
Arbitration
an ADR mechanism whereby the parties submit their disagreement to a third party, whose decision is binding
Mediation
An ADR mechanism whereby a neutral third party assists the parties in reaching a mutually agreeable, voluntary compromise
Summary jury trials
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
Pleadings
the papers that begin a lawsuit - generally, the complaint and the answer and summons
Pretrial motion
narrow issues, either side may file
limit the info that can be heard at a trial
Discovery
an attempt by both sides to gather as much info as possible
Standing
courts are limited to deciding cases that involve litigants who are personally affected by the court’s decision
Guardian
a person appointed by the court to manage the affairs or property of a person who is incompetent due to age or some other reason
Class action suit
a lawsuit brought by a person as a representative for a group of people who have been similarly injured
Judgement proof
when the defendant does not have sufficient money or other assets to pay the judgement
Compulsory joinder
when a person must be brought into a lawsuit as either a plaintiff or a defendant
Jurisdiction
the power of a court to hear a case
Subject matter jurisdiction
the power of a court to hear a particular type of case
Personal jurisdiction
the power of a court to force a person to appear before it
Defendant must be a resident, be served with process within the state, minimum contact
Can be exercised over non residents
Minimum contacts
a constitutional fairness requirement that a defendant have at least a certain min level of contact with a state before the state courts can have jurisdiction over the defendant
Statutes of limitations
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
Exhaustion of administrative remedies
the requirement that relief be sought from an administrative agency before proceeding to court
complaint
the pleading that begins a lawsuit
answer
defendant’s reply to the complaint
It may contain statements of denial, admission, or lack of knowledge and affirmative defenses
there’s no claim
Notice pleading
a method adopted by the federal rules in which the plaintiff simply informs the defendant of the claim and the general basis for it
Summons
a notice of informing the defendant of the lawsuit and requiring the defendant to respond or risk losing the suit
Service
the delivery of a pleading or other paper in a lawsuit to the opposing party
Affirmative defense
a defense whereby the defendant offers new evidence to avoid judgement
Default judgement
a judgment entered against a party who fails to complete a required step, such as answering the complaint
Motion
a request made to the court
Rule 56 motion (summary judgement motion)
a request that the court grant judgement in favor of the moving party because there is no genuine issue as to any material fact and the moving party is entitled to judgement
Elements of alternative dispute resolution
arbitration
mediation
summary jury trials
Interrogatories
written questions sent by one side to the opposing side, answered under oath
Deposition
the pretrial oral questioning of a witness under oath
Deponent
the person who is being asked questions at a deposition
Electronic discovery
the process of gaining info from the adverse party when that info is in electronic form
Metadata
info contained in a document that may include the author of the document, the date it was created and other data about the document
Electronically stored info (ESI)
info created, disbursed, or stored in an electronic format
Litigation hold
a requirement that routine alteration or destruction of ESI must stop whenever there is a reasonable belief litigation may arise
Spoliation
the destruction or alternation of relevant documents
Meet and confer conference
in federal court, a mandated conference at which the parties must develop a discovery plan
Dismissal with prejudice
a court order that ends a lawsuit, the suit cannot be refiled by same parties
Pretrial conference
a meeting of attorneys and the judge prior to the beginning of the trial
Voir dire
an examination of a prospective juror to see if he or she is fit to serve as a juror on a specific case
Adversarial system
a system characterized by competing, opposing parties overseen by a neutral decision maker
Inquisitorial system
a system where the judge is actively involved in the investigation of the facts of the case
Challenge of cause
a method for excusing a prospective juror based on the juror’s inability to serve in an unbiased
Peremptory challenge
a method for excusing a prospective juror; no reason need be given
Direct examination
an attorney’s questioning of his or her own witness
Leading question
a question that suggests the answer, generally leading questions may not be asked during direct examination of a witness
Cross-examination
the questioning of an opposing witness
Directed verdict
plaintiff failed to meet prima facie case
Pattern jury instructions
a set of standardized jury instructions
Verdict
the opinion of a jury on a question of fact
Mistrial
a trial ended by the judge because of a major problem, such as a prejudicial statement by one of the attorneys
Judgement
the decision of the court regarding the claims of each side
it may be based on a jury’s verdict
Judgement notwithstanding the verdict (judgement N.O.V)
a judgement that reverses the verdict of the jury when the verdict had no reasonable factual support or was contrary to law
Motion for a new trial
a request that the court order a rehearing of a lawsuit because irregularities, such as errors of the court i jury misconduct, make it probable that an impartial trial did not occur
Appellate brief
a formal written argument to an appellate court, in which a lawyer argues why that court should affirm or reverse a lower court’s decision
Clearly erroneous
standard used by appellate courts when reviewing a trial court’s finding of fact
Harmless error
a trial court error that is not sufficient to warrant reversing the decision
Reversible error
an error made by the trial judge sufficiently serious to warrant reversing the trial court’s decision
Litigation steps
Pretrial
Trial
The Appeal
Negotiated settlement
court determination to dismiss… proceed to trial
Negotiated settlement is the outcome of
Preliminary matters
Pleadings
Pre-trial motions
Discovery
Preliminary matters
Legal grounds for the suit Parties to the suit Selection of the court Statutes of limitations Exhaustion of administrative remedies
Legal competence
parties to a lawsuit are legally capable of suing and being sued
Two basic requirements for class action
there must be questions of law or fact
claims must be similar
Selecting the appropriate defendants
The attorney will choose to sue the person at fault
May not want to sue a person who will not have the money
Exhaustion of admin remedies elements
Gives the admin agency a chance to resolve the problem before the parties resort to a lawsuit
If agreement is not reached the process may proceed to hearing
An appeal can be made
Trial steps
the right to a jury trial jury selection opening statements presentation of evidence closing arguments jury instruction jury deliberation post trials
The appeal steps
timing and filing of appeal the scope of review oral arguments decision of publication further appeals
Pretrial steps
pleading the complaint summons answer default judgement
PreTrial Motions to Ed Par
are made before the actual trial. After the preliminary hearing and before a trial, the prosecutor and the defense team appear before the criminal court judge and make pretrial motions
Rule 12 motions to dismiss
Outlines the basic types of pretrial motions and how they are presented to the court
Problems with the complaint include
Lack of jurisdiction over the subject matter
Lack of jurisdiction over the person
Insufficiency of process
Failure to state a claim upon which relief can be granted
The most important and common 12(b)(6)
If the defendant can prove that the plaintiff has stated a claim for which the court can not provide relief to, then the court will dismiss the complaint
Appealing a summary judgement or motion to dismiss
If the losing party convinces the appellate court to reserve the trial court’s decision, the case will be returned to trial court
If the appellate court grants summary judgement, the winning party does not win the case–it only wins the right to continue litigation
Requests for admissions
a device used by one party to another party to accept or deny a statement of truth. If admitted, the statement of truth will be accepted throughout the trial
Requests for documents and physical examinations
Part of the Discovery Process
A defendant may require the opposite party to see a doctor and submit to a physical or mental examination
The order should specify important elements
Enforcing discovery rights
The discovery parties have an obligation to respond to discovery requests.
However, if the judge believes that discovery attempts are unreasonable, they can allow the adverse party to refuse to comply with these actions
The right to a jury trial
seventh amendment
determine credibility and damage awards
12 people with alternates
Jury selection
voir dire questioning challenge for cause some type of bias peremptory challenges (race, gender, age)
Opening statements
Theory of case/framework
Plaintiff burden of proving a case
Presentation of evidence
witness testimony and exhibits direct examination leading questions redirect & recross lay proper foundation making the record for appeal
Jury instructions
Verdict - unanimous
Mistrial
Judgement
What also happens during discovery?
a party gains info from another party
Claw-back provision
an agreement whereby privileged documents inadvertently produced can be retrieved
