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Intro to Law > Chapter Five > Flashcards

Chapter Five Flashcards

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1
Q

Alternative dispute resolution

A

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

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2
Q

Arbitration

A

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

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3
Q

Mediation

A

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

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4
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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5
Q

Pleadings

A

the papers that begin a lawsuit - generally, the complaint and the answer and summons

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6
Q

Pretrial motion

A

narrow issues, either side may file

limit the info that can be heard at a trial

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7
Q

Discovery

A

an attempt by both sides to gather as much info as possible

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8
Q

Standing

A

courts are limited to deciding cases that involve litigants who are personally affected by the court’s decision

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9
Q

Guardian

A

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

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10
Q

Class action suit

A

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

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11
Q

Judgement proof

A

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

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12
Q

Compulsory joinder

A

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

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13
Q

Jurisdiction

A

the power of a court to hear a case

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14
Q

Subject matter jurisdiction

A

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

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15
Q

Personal jurisdiction

A

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

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16
Q

Minimum contacts

A

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

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17
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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18
Q

Exhaustion of administrative remedies

A

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

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19
Q

complaint

A

the pleading that begins a lawsuit

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20
Q

answer

A

defendant’s reply to the complaint
It may contain statements of denial, admission, or lack of knowledge and affirmative defenses
there’s no claim

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21
Q

Notice pleading

A

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

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22
Q

Summons

A

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

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23
Q

Service

A

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

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24
Q

Affirmative defense

A

a defense whereby the defendant offers new evidence to avoid judgement

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25
Q

Default judgement

A

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

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26
Q

Motion

A

a request made to the court

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27
Q

Rule 56 motion (summary judgement motion)

A

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

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28
Q

Elements of alternative dispute resolution

A

arbitration
mediation
summary jury trials

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29
Q

Interrogatories

A

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

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30
Q

Deposition

A

the pretrial oral questioning of a witness under oath

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31
Q

Deponent

A

the person who is being asked questions at a deposition

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32
Q

Electronic discovery

A

the process of gaining info from the adverse party when that info is in electronic form

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33
Q

Metadata

A

info contained in a document that may include the author of the document, the date it was created and other data about the document

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34
Q

Electronically stored info (ESI)

A

info created, disbursed, or stored in an electronic format

35
Q

Litigation hold

A

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

36
Q

Spoliation

A

the destruction or alternation of relevant documents

37
Q

Meet and confer conference

A

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

38
Q

Dismissal with prejudice

A

a court order that ends a lawsuit, the suit cannot be refiled by same parties

39
Q

Pretrial conference

A

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

40
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

41
Q

Adversarial system

A

a system characterized by competing, opposing parties overseen by a neutral decision maker

42
Q

Inquisitorial system

A

a system where the judge is actively involved in the investigation of the facts of the case

43
Q

Challenge of cause

A

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

44
Q

Peremptory challenge

A

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

45
Q

Direct examination

A

an attorney’s questioning of his or her own witness

46
Q

Leading question

A

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

47
Q

Cross-examination

A

the questioning of an opposing witness

48
Q

Directed verdict

A

plaintiff failed to meet prima facie case

49
Q

Pattern jury instructions

A

a set of standardized jury instructions

50
Q

Verdict

A

the opinion of a jury on a question of fact

51
Q

Mistrial

A

a trial ended by the judge because of a major problem, such as a prejudicial statement by one of the attorneys

52
Q

Judgement

A

the decision of the court regarding the claims of each side

it may be based on a jury’s verdict

53
Q

Judgement notwithstanding the verdict (judgement N.O.V)

A

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

54
Q

Motion for a new trial

A

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

55
Q

Appellate brief

A

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

56
Q

Clearly erroneous

A

standard used by appellate courts when reviewing a trial court’s finding of fact

57
Q

Harmless error

A

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

58
Q

Reversible error

A

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

59
Q

Litigation steps

A

Pretrial
Trial
The Appeal

60
Q

Negotiated settlement

A

court determination to dismiss… proceed to trial

61
Q

Negotiated settlement is the outcome of

A

Preliminary matters
Pleadings
Pre-trial motions
Discovery

62
Q

Preliminary matters

A 
Legal grounds for the suit
Parties to the suit
Selection of the court
Statutes of limitations 
Exhaustion of administrative remedies
63
Q

Legal competence

A

parties to a lawsuit are legally capable of suing and being sued

64
Q

Two basic requirements for class action

A

there must be questions of law or fact

claims must be similar

65
Q

Selecting the appropriate defendants

A

The attorney will choose to sue the person at fault

May not want to sue a person who will not have the money

66
Q

Exhaustion of admin remedies elements

A

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

67
Q

Trial steps

A 
the right to a jury trial
jury selection
opening statements 
presentation of evidence
closing arguments 
jury instruction
jury deliberation 
post trials
68
Q

The appeal steps

A 
timing and filing of appeal
the scope of review 
oral arguments
decision of publication
further appeals
69
Q

Pretrial steps

A 
pleading
the complaint 
summons
answer
default judgement
70
Q

PreTrial Motions to Ed Par

A

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

71
Q

Rule 12 motions to dismiss

A

Outlines the basic types of pretrial motions and how they are presented to the court

72
Q

Problems with the complaint include

A

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

73
Q

The most important and common 12(b)(6)

A

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

74
Q

Appealing a summary judgement or motion to dismiss

A

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

75
Q

Requests for admissions

A

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

76
Q

Requests for documents and physical examinations

A

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

77
Q

Enforcing discovery rights

A

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

78
Q

The right to a jury trial

A

seventh amendment
determine credibility and damage awards
12 people with alternates

79
Q

Jury selection

A 
voir dire questioning
challenge for cause some type of bias
peremptory challenges (race, gender, age)
80
Q

Opening statements

A

Theory of case/framework

Plaintiff burden of proving a case

81
Q

Presentation of evidence

A 
witness testimony and exhibits
direct examination 
leading questions
redirect & recross
lay proper foundation
making the record for appeal
82
Q

Jury instructions

A

Verdict - unanimous
Mistrial
Judgement

83
Q

What also happens during discovery?

A

a party gains info from another party

84
Q

Claw-back provision

A

an agreement whereby privileged documents inadvertently produced can be retrieved

Intro to Law (11 decks)

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