Chp 6 Civil Procedure and Trail Practice

Question 1

pleading

Answer 1

of a case are the written statements of fact and law filed with a court by the parties to a lawsuit

Question 2

complaint

Answer 2

is the first pleading filed by a plaintiff that initiates a lawsuit

Question 3

demurrer

Answer 3

is a pleading filed by a defendant challenging the legal sufficiency of a complaint

Question 4

answer to a complaint

Answer 4

is pleading that admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant

Question 5

bill of particulars

Answer 5

is a request for a written itemization of the claims, which a defendant can demand from the plaintiff to determine what the details of a claim are

Question 6

cross-complaint

Answer 6

defendant bring other parties into a lawsuit by the process

Question 7

plaintiff

Answer 7

is the person who initiates an action by filing a complaint

Question 8

defendant

Answer 8

is the person against whom a lawsuit is brought

Question 9

complaint

Answer 9

first pleading filed with the court in a negligence action, it identifies the parties to a suit, states a cause of action, and includes a demand for damages, it is filed by the plaintiff and is first statement of a case by the plaintiff by the defendant

Question 10

demurrer

Answer 10

can be filed by one of the parties to a lawsuit claiming that the evidence presented by the other party is insufficient to sustain an issue or case

Question 11

pleading includes

Answer 11

papers as a complaint, demurrer, answer, and bill of the particulars

Question 12

elements in complaint

Answer 12

1. a short statement of the grounds on which the court’s jurisdiction depends ( the court authority to hear the case)
2. a statement of the claim demonstrating that the pleader is entitled to relief
3. a demand for judgement for the relief to which the plaintiff deems him or herself entitled
   * all elements apply to any counterclaim, cross claim or third-party claim

Question 13

discovery

Answer 13

is the process of investigating the facts of a case before trial

Question 14

objectives of discovery

Answer 14

1. obtain evidence that might not be obtained at the time of trial
2. isolate and narrow the issues for trial
3. gather knowledge of the existence of additional evidence that might be admissible at trial
4. obtain leads to enable the discovering party to gather further evidence

Question 15

examination before trial (EBT)

Answer 15

is one of several discovery techniques used to enable the parties of a lawsuit to learn more regarding the nature and substance of each other’s case

Question 16

examination before trail (EBT) consist of

Answer 16

*oral testimony under oath and includes cross-examination.
*deposition, is the testimony of a witness that has been recorded in a written format
*

Question 17

attorney-client privilege

Answer 17

is intended to ensure that a client remains free form apprehension that consultations with a legal advisor will be disclosed

Question 18

motions is made

Answer 18

the court will examine the entire case and decide whether to enter judgement according to the merits of the case as indicated in the pleadings.

Question 19

pretrial conference

Answer 19

is a informal discussion during which the judge and the attorneys eliminate matters not in dispute, agree on the issues, and settle procedural matters relating to the trial

Question 20

prima facie case

Answer 20

that the plaintiff has failed to establish the minimum elements necessary to justify a verdict even if no contrary evidence is presented by the defendant

Question 21

subpoena

Answer 21

is a legal order requiring the appearance of a person and/or the presentation of documents to a court or administrative body

Question 22

subpoena ad testificandum

Answer 22

orders the appearance of a person at a trial or other investigative proceeding to give testimony

Question 23

subpoena for records ( subpoena duces tecum)

Answer 23

is a written command to bring records, documents or other evidence described in the subpoena to a trial or other investigative proceeding.

Question 24

burden of proof in a criminal case

Answer 24

requires the evidence presented against the defendant must be beyond a reasonable doubt

Question 25

burden of proof in a civil case

Answer 25

is the obligation of the plaintiff to persuade the jury regarding the truth of his or her case

Question 26

credible evidence

Answer 26

is evidence that in the light of reason and common sense, is worthy of belief

Question 27

burden of proof in negligence case

Answer 27

requires that the plaintiff’s attorney show that the defendant violated a legal duty by not following an acceptable standard of care and that the plaintiff suffered injury because of the defendant’s breach.

Question 28

violation of a statute

Answer 28

can constitute direct evidence of negligence, or it simply can voice a duty that is owed to a particular class of persons who are protected by the statute or regulation.

Question 29

res ipsa loquitur ( “the thing speaks for itself” or “circumstances speak for themselves”)

Answer 29

legal doctrine that shifts the burden of proof from the plaintiff to the defendant.

Question 30

element under the doctrine of res ipsa loquitur

Answer 30

shift burden of proof from plaintiff to defendant

1. the event would not normally have occurred in the absence of negligence
2. the defendant must have had exclusive control over the instrumentality that caused the injury
3. the plaintiff must not have contributed to the injury

Question 31

opening statement

Answer 31

the plaintiff’s attorney attempts to prove the wrongdoing of the defendant by presenting credible evidence favorable to his or her client

Question 32

open statement summary provides

Answer 32

1. the facts of the case
2. what the attorney intends to prove by means of a summary of the evidence to be presented
3. a description of the damages to his or her client

Question 33

evidence

Answer 33

consists of the facts proved or disproved during a lawsuit

Question 34

law of evidence

Answer 34

• is a body of rules under which facts are proved

* govern the admission of items of proof in a lawsuit

Question 35

direct evidence

Answer 35

is proof offered through direct testimony

Question 36

demonstrative evidence

Answer 36

is proof furnished by things themselves.

*consist of tangible objects to which testimony refers ( medial supplies, instrument, equipment )

Question 37

documentary evidence

Answer 37

is written information that is capable of making a truthful statement ( drug manufacturer inserts, autopsy reports, birth certificates, and medical records)

Question 38

judicial notice rule

Answer 38

prescribes that well known facts need not be proven, but rather they are recognized by the court as fact.

Question 39

hearsay evidence

Answer 39

is based on what another has said or done and is not the result of the personal knowledge of the witness.

• consist of written or oral statements
• medical books are not admissible as evidence and are considered hearsay b/c the authors are not generally available for cross-examination,

Question 40

assumption of a risk

Answer 40

is knowing that a danger exists and voluntarily accepting the risk by exposing oneself to it, aware that harm might occur.
* not entitled to recover from patient from damages suffered

Question 41

defendant assumption of risk defense requires

Answer 41

1. the plaintiff must know and understand the risk that is being incurred
2. the choice to incur the risk must be free and voluntary

Question 42

contributory negligence occurs

Answer 42

when a person does not exercise reasonable care for his or her own safety

Question 43

to establish contributory negligence

Answer 43

1. the plaintiff’s conduct fell below the required standard of personal care
2. there is a causal connection between the plaintiff’s careless conduct and the plaintiff’s injury

Question 44

Good Samaritan law

Answer 44

relieve physician, nurses, dentists and other health care professionals and in some instance laypersons, from liability in certain emergency situation
* statue does not extend immunity to physicians who have preexisting duty to render emergency care

Question 45

borrowed servant doctrine

Answer 45

is a special application of the doctrine of respondeat superior and applies when an employer lends an employee to another for a particular employment

Question 46

comparative negligence

Answer 46

provides that the degree of negligence or carelessness of each party to a lawsuit must be established by the finder of fact and that each party then is responsible for his or her proportional share of any damages awarded

Question 47

statue of limitations

Answer 47

refer to legislatively imposed time constraints that restrict the period of time after the occurrence of an injury during which a legal action must be commenced.

Question 48

intervening cause

Answer 48

arises when the act of a third party, independent of the defendant’s original negligent conduct, is the proximate cause of an injury

Question 49

sovereign immunity

Answer 49

refers to the common-law doctrine by which federal and state governments historically have been immune from liability for harm suffered from the tortious conduct of employees
* federal and state have abolished sovereign immunity

Question 50

nominal damages

Answer 50

awarded as a mere token in recognition that wrong has been committed when actual amount of compensation is insignificant

Question 51

compensatory damages

Answer 51

are estimated reparation in money for detriment or injury sustained ( including loss of earnings, medical costs, and loss of financial support)

Question 52

hedonic damages

Answer 52

are those damages awarded to compensate an individual for the loss of enjoyment of life, such damage are awarded because of the failure of compensatory damages to compensate an individual adequately for the pain and suffering that he or she has endured as a result of a negligent wrong

Question 53

punitive damages

Answer 53

are additional money awards authorized when an injury is caused by gross carelessness or disregard for the safety of others

Question 54

joint and several liability doctrine

Answer 54

permits the plaintiff to bring suit against all persons who share responsibility for his or her injury.