Chapter10 Litigation Flashcards
prone to engage in disputes and litigation
Litigious
- The formal process of resolving a legal dispute through the courts. 2. A lawsuit.
Litigation
a legal controversy in which (1) one private person or entity sues another (2) a private person or entity sues the government. (3) the government sues a private person or entity for a matter other than the commission of a crime.
Civil Dispute
A legal controversy in which the government alleges the commission of a crime
criminal dispute
an award of money paid by the wrongdoer to compensate the person who has been harmed
damages
legally responsible
liable
legally responsible together and individually. Each wrongdoer is individually responsible for the entire judgment; the plaintiff can choose to collect from one wrongdoer or from all of them until the judgment is satisfied.
Joint and Several Liability
formally coming before a tribunal as a party or representative of a party. The appearance usually appears by filing a notice of appearance in court, which is often accomplished through a praecipe, a formal request to the court that something be done.
Appearance
The attorney noted in the court files as the attorney representing a particular party. Sometimes they cannot withdrawal from the case without court permission.
Attorney of Record
The court where the case it to be tried.
Forum
all the assets and liabilities of a descendent (one who has died) after he or she dies
Estate
the disputing parties are citizens of different states and the amount in controversy exceeds %75,000. This diversity gives jurisdiction to a US District Court
Diversity of Citizenship
The proper county or geographical area in which a court with jurisdiction may hear a case. the place of a trial.
Venue
(1) a plaintiffs first pleading stating a cause of action against the defendant (2) A formal criminal charge
Complaint
the person who initiates a civil action in court
plaintiff
A legally acceptable reason for suing. Facts that give a party the right to judicial relief.
Cause of Action
including facts in a pleading (ex. complaint) that if proved at trial, would entitle the party to judicial relief sought (assuming the other party does not plead and prove any defenses that would defeat the effort.)
Stating A cause of Action
one of two or more defendants sued in the same civil case or prosecuted in the same criminal case.
Codefendant
formal litigation documents filed by parties that state or respond to claims or defenses of other parties. Major types are complaint and answer.
Pleadings
a claimed fact: a fact that a party will try to prove at trial.
Allegation
A standard, legal term used to indicate that the allegation is not based on the firsthand knowledge of the person making the allegation but that the person, nevertheless, believes in good faith that the allegation is true.
Information and Belief
A clause stating the damages claimed
Ad damnum clause
a trial without a jury. Also called a nonjury trial.
Bench Trial
A trial in which a group of citizens resolves the issues or questions of fact. The judge decides the issues or questions of law.
Jury Trial
To deliver a document to a court officer so that it can become part of the official collection of documents in a case. To deliver a documents to a government agency,
File
A cover sheet filed in Federal Court along with the complaint indicating the names and addresses of the parties and their attorneys, the kind of action being filed, etc.
Civil Cover Sheet
A formal delivery of notice to a defendant, that a suit has been initiated to which he or she must respond. The most common method is to place the complaint and summons in the hand of the defendant.
Service of Process
A notice directing the defendant to appear in court and answer the plaintiffs complaint or face a default judgment.
Summons
someone with the authority to serve or deliver process.
process server
evidence that a summons or other process has been served on a party in an action.
Proof of service
A law stating that civil or criminal actions are barred if not brought within a specified period of time.
Statute of limitations
A courts power over a person to adjudicate his or her personal rights.
Personal Jurisdiction
A request, usually made before the trial begins, that the judge dismiss the case because lack of jurisdiction, insufficiency of the pleadings or the reaching of a settlement.
Motion to Dismiss
Failure of a party to allege enough facts that, it proven, would entitle the party to judicial relief. Sometimes referred to as a demurrer or a failure to state a claim upon which relief can be granted.
Failure to state a cause of action
the rules that govern the mechanics of resolving a dispute in court or in an administrative agency.
Procedural Law
The technical rules governing the manner in which civil cases are brought in and progress through the US District Courts, which are the main federal trial courts.
Federal Rules of Civil Procedure
nonprocedural laws that define or govern rights and duties (such as the right to use reasonable care.)
Substantive Law
the first pleading of the defendant that responds to the plaintiffs claim.
Answer
A judgment against a party for failure to file a required pleading or otherwise respond to an opponent claim.
Default Judgment
an application or request made to a court or other decision making body seeking to obtain a more favorable action or ruling,. e.g, a motion to dismiss the party making the motion is called a movant.
Motion
An allegation of fact (or a legal theory) offered to offset or defeat a claim or demand. Also means the defendant and his or her attorney.
Defense
A defense raising new facts that will defeat the plaintiffs claim even if the plaintiffs fact allegations are proven.
Affirmative Defense
A claim brought by one defendant against another defendant or by one plaintiff against another defendant in the same action. Also called cross action.
Cross claim
A claim by one side in a case (usually the defendant) that is filed in response to a claim asserted by an opponent (usually the plaintiff.)
Counterclaim
A plaintiffs response to the defendant counterclaim, plead or answer.
Reply
A defendants complaint against someone who is not now a party on the basis that the latter may be liable for all or part of what the plaintiff might recover from the defendant.
Third Party Complaint
to challenge; to raise a defense against a claim
Contest
A judgment or decision against you
Adverse Judgment
compulsory pretrial disclosure of information related to litigation by one party to another party. the major devises are interrogatories, deposition, production or documents and things, physical or mental examination and request for admission.
Discovery
A method of discovery, consisting of written questions about a lawsuit submitted by one party to another to help the sender prepare for trail.
Interrogatories
A method of discovery by which parties and their prospective witnesses are questioned outside the courtroom before trial. A pretrial question and answer question and answer question to help parties prepare for trial.
Deposition
A method of discovery in which one party asks another to admit the truth of any matter relating to facts or the application of law to facts.
Request for Admission
a command that a witness appear at a certain time and place and bring specified things such as documents or records.
Subpoena duces tecum
an official command by the court requiring, allowing or forbidding some act to be done.
Order
a proceeding designed to resolve issues of fact of law. Usually an impartial officer presides, evidence is presented, etc.
Hearing
a judgment of the court that is rendered without a full trial because of the absence of conflict on any of the material facts.
Motion for a summary judgement
A judicial officer having some but not all of the powers of a judge.
Magistrate
A meeting of the attorneys and judge (or magistrate)
Pretrial conference
agreed to.
Stipulated
in dispute or question, if an issue in fact exists, then the existing of non existing fact must be established at trial.
In Issue
Evidence that can be seen or touched; evidence that has a physical form
Tangible Evidence
To place evidence formally before a court or other tribunal so that it will become part of the record for consideration by the judge, jury or other decision maker.
Introduce Evidence
To schedule a date when the trial is to begin
set for trial
A court employee who keeps order in the courtroom and renders general administrative assistance to the judge.
Bailiff
A group of citizens who have been called for jury duty. From this group juries for particular trials are selected. Also called venire
Jury Panel
(“to speak the truth”) a preliminary examination of prospective jurors for the purposing of selecting persons qualified to sit on a jury.
Voir Dire
A request from a party to a judge that a prospective juror not be allowed to become a member of this jury because of specified causes or reasons.
Challenge for Cause
Prejudice for or against something or someone. An inclination or tendency to think or act in a certain way. a danger of prejudgment.
Bias
Peremptory Challenge
A request from a judge asking that a prospective jury not be allowed to become a member of this jury without stating a reason for this request.
An extra juror who will take the place of a regular juror if one becomes incapacitated during trial.
Alternate
selected and sworn in (referring to the jury)
Impaneled
a request for the ruling on the admissibility of evidence prior to or during trial but before the evidence has been offered.
Motion in limine
A rule that requires certain witnesses to be removed from the courtroom until it is time for their individual testimony so that they will not be able to hear each others testimony.
Rule on Witnesses
to separate or isolate a jury or witness
Sequester
an attorneys statement to the jury made before presenting evidence that summarizes the case he or she intends to try to establish during the trial.
opening statement
the responsibility of proving a fact at the trial, generally the party making the allegation.
Burden of Proof
A discussion between the judge and the attorneys held at the judges bench so that the jury cannot hear what is being said.
Bench Conference
A formal challenge usually directed at the evidence that the other side is trying to pursue or introduce.
Objection
being allowed (having the legal capacity) to give testimony because the person understands the obligation to tell the truth, has the ability to communicate and has knowledge of the topic of his or her testimony.
Competency
asked the jury to leave the courtroom
Excused the jury
questioning, asking questions of
Examination
to decide against or deny (also means to reject or cancel an earlier opinion as precedent by rendering an opposite decision on the same question of law in a different litigation.)
Overrule
the first questioning of a witness by the party who has called the witness. Also called examination in chief.
Direct Examination
A reason that is legally sufficient to obtain a remedy or other result.
Grounds
An out of court statement offered to prove the truth of the matter asserted in the statement.
Hearsay
to uphold or agree with
Sustain
to remove the testimony or evidence from the written record or transcript of the trial.
Stricken from the record
questioning a witness by the opponent after the other side called and questioned that witness, must limit themselves to the topics or subject matters raised during the direct examination of this witness by the other side.
Cross-Examination
another direct examination of a witness after he or she was cross examined. Conducted by the attorney who conducted the direct examination.
Redirect Examination
Another cross examination of a witness after redirect examination. Conducted by the attorney who conducted the cross examination.
recross examination
to present evidence of a persons education and experience sufficient to convince the court that the witness has experience in a particular area.
Qualify
a person qualified by scientific, technical or other specialized knowledge or experience to give an expert opinion relevant to a fact in dispute.
Expert Witness
refers to the judge trying the case.
Court
the court employee who assists the judge with record keeping at the trial and other administrative duties.
Clerk
A document, chart or other object offered or introduced into evidence
Exhibit
to request that the items be formally declared admissible. This is not the same as declaring them to be true.
Move into evidence
to announce formally that you have concluded the presentation of evidence (through the introduction of tangible evidence, through direct examination of your own witnesses etc.) while the other side presents its case, however you will be entitled to cross examine its witnesses.
Rest ones case
the presentation of evidence by ones side, not including the evidence it introduces to counter the other side.
Case in Chief
to halt the proceedings temporarily.
Adjourn
to delay ruling on the motion until another time.
Take under Advisement
A judgment on an issue in a federal jury trial (and in some state jury trials) that is ordered by the judge against a party because there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.
Judgment as a matter of law
a case, as presented, that will prevail unless contradicted and overcome by contrary evidence.
Prima Facie Case
The final statement by opposing trial attorneys to the jury (or to the trial judge if there is no jury) summarizing the evidence and requesting a favorable decision.
Closing Argument
A statement of the guidelines and law given to the jury by the judge for use in deciding the issues of fact in its verdict.
Jury Instructions
an assumption or inference that a certain fact is true once another fact is established.
Presumption
The final conclusion of the jury.
Verdict
Here, the components of a cause of action. A portion of a rule that is a precondition of the applicability of the entire rule.
Elements
The burden of proof that is met when the evidence established that it is more likely than not the facts are as alleged.
Preponderance of Evidence
A statement of how convincing a version of fact must be before the trier of facts (usually a jury) can accept it as true. Main types are proof beyond a reasonable doubt by clear and convincing evidence and proof by preponderance of evidence.
Standard of Proof
The final conclusion of a court that resolves a legal dispute or that specifies what further proceedings are needed to resolve it.
Judgment
A request that the judge set aside the judgment and order a new trial on the basis that the trial was improper or unfair due to specified prejudicial errors that occurred.
Motion for a new trial
Asking a higher tribunal to review or reconsider the decision of an inferior tribunal.
appeal
the suspension of judgment or proceeding.
stay
within the time set by contract or law.
timely
Notice given to a court (through filing) and to the opposing party (through service) of an intention to appeal.
Notice of appeal
An obligation to perform an act (ex. payment of a sum of money) upon the occurrence or nonoccurence of a designated condition. Secures the payment of judgment.
Bond
A judgment rendered after evidentiary inquiry and argument, determining which party is in the right, as opposed to a judgment based solely on a technical point of procedural error.
Judgment on the Merits
(“a thing adjudicated) a final judgment on the merits will preclude the same parties from later relitigating the same claim and any other claim based on the same facts or transaction that could have been raised in the first suit but was not.
Res Judicata
to prevent or stop
Bar
the party bringing an appeal because of alleged errors made by a lower tribunal.
Appellant
the official collection of all the trial pleadings, exhibits, orders and word for word testimony that took place during a trial.
Record
the claimed errors of law committed by a lower court.
Issues on Appeal
the party against whom the appeal is brought (also called the respondent)
Appellee
A spoken presentation to the court on a legal issue, e;g. telling an appellate court why the rulings of a lower tribunal were valid or were in error.
Oral Argument
a group of judges, usually three, who decide a case in court with a larger number of judges
Panel
A courts written explanation of how it applied the law to the facts to resolve a legal dispute.
Opinion
A judges vote against the result reached by the judges in the majority on a case.
Dissent
To agree with or uphold the lower court judgment.
Affirm
To lose or relinquish a right or privilege expressly or by implication.
Waive
A formal request or motion.
Petition
A second hearing by a court to reconsider the decision it made after an earlier hearing.
Rehearsing
by the entire court
En Banc
the appeal of a case that an appellate court must heart; it has no discretion on whether to take the appeal
Appeal as a matter or right
The order of the court
Mandata
to comply with a legal judgment
Satisfy
The process of carrying into effect the decisions in a judgment
Execution
A collection on appellate briefs and related documents drafted in prior cases that might be used as models and adapted for current cases.
Brief Bank
Money or other property deposited with the court as security to ensure that the defendant will reappear at designated times.
Bail
pretrial release of a defendant in a criminal case without posting a bond, based solely on a promise to appear.
Personal Recognizance
A reasonable belief that a crime has been committed and the defendant has committed a crime
Probable Cause
Held or transferred until further court proceedings
Bond Over
A statement by the prosecutor that he or she is unwilling to prosecute the case.
Noelle Prosequi
logically tending to establish or disprove a fact.
Relevent
The standard of proof required for conviction in a criminal case.
Beyond a Reasonable Doubt
To declare that the accused is innocent of the crime
Acquit
a written presentation of a parties arguments on the facts and legal issues in the case.
Memorandum
One who presides over than administrative hearing and makes findings of facts and rulings of law, or who recommends such findings and rulings to someone else in the agency who will help make the final decision.
Hearing Examiner
Recommended conclusions presented to someone else in the administrative agency who will make the final decision.
Administrative Decison
a new trial as if a prior one had not taken place.
trial de novo
A method of procedure for resolving a legal dispute, without litigating it in court or administrative agency,
Alternative Dispute Resolution
A method of ADR in which the parties avoid litigation by submitting their dispute to a neutral third party who renders a decision resolving the dispute.
Arbitration
A method of ADR in which the parties avoid litigation by submitting their dispute to a neutral third person who helps the party resolve their dispute; he or she does not render a decision resolving it for them.
Mediation
A method of ADR consisting of arbitration or mediation in which the arbitrator or mediator is a retired judge. Sometimes called Rent A judge
Private Judging
A method of ADR in which the parties first try mediation and if that does not work, they try arbitration.
Med-Arb
A government or private center where disputes can be resolved by mediation or other method of ADR.
Neighborhood Justice Center
A method of ADR in which the parties present their evidence and arguments to an advisory jury, which renders a non binding verdict.
Summary Jury Trial
A method of ADR in which both sides hire an experienced attorney or an expert in the area involved in the dispute who will listen in an appreciated version of the evidence are argument of each side and offer an evaluation in the hope that this will stimulate a more serious settlement discussion.
Neutral Evaluation
A set of formulas created to perform a designated task.
Template
The heading or introductory part of a pleading, court opinion, memo or other document that identifies what it is, the name of the parties, the court involved, etc.
Caption
The courts power to resolve a particular kind or category of a dispute.
Subject Matter Jurisdiction
The proper county or geographical area in which a court with jurisdiction may hear a case. The place of the trial.
Venue
A statement of every ultimate fact. A fact is ultimate if it is essential an element of a cause of action.
Fact Pleading
A short and plain statement of the claim showing the pleader is entitled to relief.
Notice Pleading
Good Faith Belief as to the truth of an allegation, not based on first hand knowledge.
Information and Belief
Actual and provable economic losses
Special Damages
A request for damages or other form of judicial relief.
Prayer for Relief
A signature; the act of signing ones name.
Subscription
An affidavit stating that a party has read a pleading and swears that it is true to the best of his or her knowledge.
Verification
Service by an authorized method (ex. mail) other than personal service, also called constructive service.
Substituted Service
A command to appear at a certain time and place
Subpoena
A command that a witness appear at a certain time and place and bring specified things such as documents or records.
Subpoena deuces tecum
A command to appear at a certain time and place to give testimony.
Subpoena ad testifandum
An advocacy letter that asks the recipient to take or refrain from specific action affecting the client.
Demand letter
Evidence generated or stored in a computer such as email messages, online spreadsheets, web pages and database records.
E-Evidence
A list of information or documents claimed to be covered by privilege and therefore protected from discovery or during trial.
Privilege log
Pertaining to information or other materials an opponent can obtain from deposition, interrogatories or other discoverable devises.
Discoverable
Summarizing transcripts and documents, often in preparation for litigation.
Digesting
A summary of a deposition transcript organized by specific topics covered in the answers of the deponent.
Topical Digest
A summary of a deposition, transcript that indicates the pages and lines of the deponents answers in the order in which the questions were answered.
Page/Line Digest
A summary of a deposition transcript that presents the events described in the deponents answers in their chronological order.
Chronological Digest
A summary of the major facts in the case presented in a manner designed to encourage the other side (or insurance company) to settle the case.
Settlement work up
A list of primary authority and secondary authority that a writer has cited in an appellate brief or other documents.
Table of Authorities
