Civil Litigation

Question 1

What is Federalism?

Answer 1

Dual system of government - power is shared between federal and state governments.

In each, there are trial, appellate and supreme courts.

Deciding whether a claim should be brought in federal or state court depends on personal and subject matter jurisdiction.

Question 2

What are Jurisdiction, Subject Matter Jurisdiction, and Personal Jurisdiction?

Answer 2

Jurisdiction = power of a court to hear a controversy brought before it

Subject Matter Jurisdiction = varies depending on whether claim’s brought in federal or state courts and subject of the claim. State trial courts can only hear certain types of cases (civil, criminal or contract) and subject matter’s further limited based on whether crime was misdemeanor or felony. States also have appellate and supreme courts. Federal courts have trial courts, circuit courts and U.S. Supreme Court and has specialty courts for bankruptcy, patent/trademark, and IRS claims.

Personal Jurisdiction = court’s power to bring a person before it and make a decision that’s binding upon that person. Defendant must be resident of or do business in the state/judicial district.

Question 3

What is Original Jurisdiction?

Answer 3

Court’s power to hear and decide a case before any appellate review.

The Supreme Court has original jurisdiction in certain matters, such as a dispute between states, ambassadors, or public officials.

Question 4

What is General Jurisdiction?

Answer 4

Court’s authority to hear any kind of case arising in its geographic area.

Question 5

What is Pendant Jurisdiction?

Answer 5

Allows federal court to hear a non-federal, or state claim, provided there’s also a federal claim arising out of the same incident.

An element of due process.

Question 6

What is Diversity Jurisdiction?

Answer 6

Federal court’s authority to hear cases that are between :

• citizens of different states
• a citizen of a state and citizens or subjects of a foreign state
• citizens of different states and in which citizens or subjects of a foreign state are joined as parties
• a foreign state as the plaintiff and citizens of a state or different states
• In addition to meeting the citizen requirement, the amount in controversy must exceed $75,000*

Question 7

What is Standing?

Answer 7

The legal right to sue.

Plaintiff must have some stake in the controversy; if standing is not clear, that party must prove that they will suffer a damage or lose a legal right.

Question 8

What are Long-Arm Statutes?

Answer 8

Allows court to reach out past judicial boundaries and bring defendant into the jurisdiction of the court depending on the quantity and quality of contact the defendant has with the district.

If defendant doesn’t reside in the judicial district, court may still exercise personal jurisdiction over the defendant through long-arm statutes.

Question 9

What is Venue?

Answer 9

Geographic location of the court.

Venue is proper when claim’s brought in judicial district where incident occurred, defendant resides or where defendant may be served complaint and summons.

Venue may be changed if it is an inconvenient or improper venue. Defendant has burden of proving venue’s not proper or convenient.

Question 10

What are the Federal Rules of Civil Procedure (FRCP)?

Answer 10

Govern how action proceeds through court system.

Uniform rules to secure the just, speedy and inexpensive determination of every action and proceeding.

Question 11

Who are the Parties, the Plaintiff, and the Defendant?

Answer 11

Parties = individuals or entities who are involved in the controversy.

Plaintiff = party who bring the claim or files the complaint.

Defendant = party who responds to the claim or files a response to the complaint.

Question 12

What is a Real Party in Interest?

Answer 12

Person who has the right the lawsuit is seeking to enforce, aka the Plaintiff.

Also the person or entity that the lawsuit is seeking to recover from or order it to perform an act, aka the Defendant.

A child, deceased person, or a ward may be an interested party but their status prohibits them from pursuing action so a person with representative capacity, such as a parent, executor, or guardian becomes the real party in interest.

Question 13

What is a Joinder of a Party?

Answer 13

Cases where the real party in interest is not named in the claim, the real party may be joined or brought into the litigation under FRCP 19 and 20.

Required if that party’s presence is required to grant complete relief or the party has interest in the litigation such that the party’s presence is required to protect those interests.

If an indispensable party can’t be served or if joinder would undermine the jurisdiction of the court, the court must decide whether to proceed without the party or dismiss the case.

Question 14

What is a Permissive Joinder?

Answer 14

A party whose presence is not required may still be joined under FRCP 20.

Allows a party to be joined in the litigation if there’s a question of law or fact common to all parties arising out of the action and each plaintiff has a right to relief, jointly, severally, or alternatively, against each defendant.

Question 15

What are pleadings?

Answer 15

Documents that state a claim for relief, either as the initiating plaintiff or as a third-party claimant, or respond to the allegations in a complaint, counterclaim, cross claim, or third-party complaint.

Question 16

What is a Complaint?

Answer 16

Document that begins the process of civil litigation, must state the jurisdictional basis showing the court in which the claim is filed has jurisdiction to hear the matter

Question 17

What is Due Process and Service of Process?

Answer 17

Due Process = entitled to receive adequate notice of a legal proceeding, right to appear and defend against claims before impartial tribunal and right of appeal to higher court

Service of Process = Plaintiff’s required to provide notice of the claim, including enough facts to inform the defendant of the nature of the claim and court must allow defendant the opportunity to appear and defend against those claims

Question 18

What is a Summons?

Answer 18

Order from the court directing Defendant to appear and/or respond to the allegations in the Complaint

Must identify the court and parties, name & contact info for Plaintiff’s Attorney (or Plaintiff if unrepresented), time period which Defendant has to appear and respond to the Complaint and notify Defendant of consequences for failing to appear or respond.

Question 19

What is an Answer?

Answer 19

Responds to each claim in the complaint, statement by statement

Responses include admit, deny, admit or deny in part and deny for lack of knowledge

Question 20

What are Affirmative Defenses?

Answer 20

Fact or set of facts not alleged by the Plaintiff that if proven true will defeat or mitigate an allegation by the Plaintiff (assumption of risk, contributory/comparative negligence, duress, failure to mitigate damages, res judicata, statute of frauds, statue of limitations)

Question 21

What is Contributory/Comparative Negligence?

Answer 21

Plaintiff’s own negligence contributed to damages

Question 22

What is duress?

Answer 22

Defendant was coerced or forced into an act

Question 23

What is Failure to Mitigate Damages?

Answer 23

Plaintiff acted or failed to take an action that would have reduced or eliminated damages

Question 24

What is Res Judicata?

Answer 24

Controversy has already been decided by another court

Question 25

What is Statute of Frauds?

Answer 25

Contract in dispute is not memorialized in writing

Question 26

What is Statute of Limitations?

Answer 26

Plaintiff failed to file a claim within the allowed time

Question 27

What are Preliminary Motions?

Answer 27

Defendant may challenge a defect in the complaint by filing a motion:

• lack of subject matter or personal jurisdiction
• improper venue
• insufficient process
• insufficient service of process
• failure to state a claim on which relief can be granted
• failure to join a necessary party under Rule 19

Question 28

What is a Counterclaim, Compulsory Counterclaim, Permissive Counterclaim and Cross-Claim?

Answer 28

Counterclaim = claim asserted by the Defendant

Compulsory Counterclaim = must arise out of same transaction that’s the basis for the complaint and claim doesn’t require the addition of other parties - Defendant’s required to raise these claims in the same litigation or the claim may be barred

Permissive Counterclaim = may be brought in conjunction with the pending litigation but claim doesn’t need to be related to the occurrence giving rise to the underlying complaint

Cross-Claim = Co-party may cross-claim against another co-party, must arise our of the transaction or occurrence that’s the subject matter of the original action or a counterclaim

Question 29

Who is a Third-Party?

Answer 29

Defendant may bring in a third party who may be liable for some or all of the claims - Defendant may serve a complaint and summons on a non-party, who becomes the third-party Defendant

Question 30

What is Discovery, Informal Discovery and Formal Discovery?

Answer 30

Discovery = process of gathering information that will prove or defeat the claims brought in the complaint, or the defenses asserted in the answer - purpose is to provide each party with the same information so there are no surprises or unknown evidence at trial

Informal Discovery = investigation or document gathering by a party that doesn’t require the involvement, or even notice, to the other party or the court (interviewing witnesses, taking photographs or obtaining documentary evidence)

Formal Discovery = paralegals conduct most of the discovery with the appropriate delegation and supervision by attorney

Question 31

What is a Deposition?

Answer 31

Oral questioning of a party or witness under oath, taken before a court reporter, an officer of the court or other person authorized by the court, recorded either stenographically or by audio or video means and a verbatim transcript of the deposition is prepared by a court reporter

Question 32

What are Interrogatories?

Answer 32

Written questions directed to the opposing party who must answer under oath, broad scope - may inquire into any matter that’s not privileged which is relevant to the subject matter involved in the pending action, number of interrogatories limited by court rules

Question 33

What is a request for production?

Answer 33

Allows a party to request documents, ESI, tangible evidence or the opportunity to inspect or test property or things, broad scope and allows discovery of information that will lead to admissible evidence

Question 34

What is a Request for Admission?

Answer 34

Written request asking the opposing party to admit:

• the truth of matters relating to a fact
• the application of law to a fact
• an opinion about a fact
• the genuineness of a document

Admission may lead to discovery of admissible evidence

No limit on the # of requests but must fall within the purpose of the matter at hand

Question 35

What is a Failure to Participate?

Answer 35

When a party fails to participate or resists discovery, disclosure or discovery is compelled by the court, if party refuses to participate in the discovery process, fails to answer, gives an incomplete or evasive answer, refuses to produce documents, or refuses to permit entry to property

Question 36

What is Privileged Information?

Answer 36

Confidential communications between an attorney and client, a physician and patient, a husband and wife, or a clergy and parishoner.

Question 37

What is Work Product?

Answer 37

Material that a lawyer or paralegal prepares for trial, such as pre-suit investigation reports, handwritten notes, or communications with expert witnesses

Question 38

What is Hearsay?

Answer 38

Statement by a declarant that’s made outside of the current litigation that a party offers as evidence to prove the truth of the matter asserted in the statement

Question 39

What is Jury Selection (voir dire), Challenge for Cause, and Preemptory Challenges?

Answer 39

Jury Selection (voir dire)=Process of determining qualified jurors; attorneys for each party question potential jurors as to their knowledge of the parties, the case or the witnesses

Challenge for Cause = Juror knows a party, attorney, or prospective witness, or has shown during voir dire that the juror can not be impartial; no limit to the number of challenges for cause

Preemptory Challenges = Does not require cause for dismissing the juror; limited to three per party; juror may not be removed solely on the basis of a protected characteristic, such as race, nationality, or gender

Question 40

What is the Opening Statement?

Answer 40

Explains the background of the claim or defense, how the evidence will be presented, and what it will prove; attorneys may not argue the merits of their case in opening statement

Question 41

What is the Burden of Proof in most civil matters?

Answer 41

Preponderance of the evidence - the matter is more likely true than not true (far lower standard than “beyond a reasonable doubt” used in criminal trials)

Question 42

What are a General Verdict and a Special Verdict?

Answer 42

General Verdict = simply identifies the prevailing party

Special Verdict = provides a written finding for each allegation of the case

Question 43

Who are the Appellant and the Appellee?

Answer 43

Appellant = party bringing the appeal

Appellee = party defending against the appeal

Question 44

What are De Novo, De Novo on the Records, or On the Record appellate reviews?

Answer 44

De Novo= Court tries the case as if there were no prior proceedings - witnesses are allowed, evidence is taken; appellate court’s not bound by any findings/conclusions from the lower court/agency

De Novo on the Record= appellate court’s review is limited to record of the trial court - doesn’t hear witnesses or consider new evidence, record’s reviewed to ensure the trial court’s decision was not “clearly erroneous”

On the Record Review = the findings of fact reached by the lower court/agency are given greater deference but appellate court’s not bound by the conclusions of law

Question 45

In most civil cases, the burden of proof is:

A - Preponderance of the evidence
B - Clear and convincing evidence
C - Beyond a reasonable doubt

Answer 45

A - Preponderance of the evidence

Question 46

Under FRCP 36, if a party served with a request for admissions does not respond within 30 days, the fact(s) involved are deemed to have been:

A - Admitted
B - Admissible
C - Denied
D - Expunged

Answer 46

A - Admitted

Question 47

After a complaint is filed with the clerk of the court, it is essential that the defendant or defendants be notified of the claim and be advised how much time is allowed to file an answer. This is accomplished by serving a copy of the complaint on the defendant(s) along with a:

A - Subpoena
B - Summons
C - Affidavit
D - Proof of Service

Answer 47

B - Summons

Question 48

Which federal civil rule lists the affirmative defenses to a pleading?

A - FRCP 6
B - FRCP 8
C - FRCP 10
D - FRCP 12

Answer 48

B - FRCP 8

Question 49

An affirmative defense is a fact or set of facts other than those alleged by the plaintiff which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct. Which of the following is not an affirmative defense?

A - Contributory negligence

B - Res judicata

C - Repondeat superior

D - Statue of limitations

Answer 49

C - Respondeat superior

Question 50

The sanctions stated in FRCP-37 for failing to cooperate with discovery provides a trial judge with the authority to penalize a litigant who routinely ignores an opponent’s request for discovery. Which of the following is the highest sanction?

A - Court may dismiss case
B - Court may strike a pleading
C - Court may issue a protective order
D - Court may prevent introduction of evidence

Answer 50

A - Court may dismiss case

Question 51

Which motion asks the court to enter judgment as a matter of law if the moving party proves there is no genuine dispute as to any material fact and is entitled to the relief requested?

A - Motion for directed verdict
B - Motion in limine
C - Motion to show cause
D - Motion for summary judgment

Answer 51

D - Motion for summary judgment

Question 52

What is a brief speech made by the attorneys for the plaintiff and the defendant where they outline what will happen in the case and what evidence the jury can expect to see?

A - Closing argument
B - Cross-examination
C - Direct examination
D - Opening statement

Answer 52

D - Opening statement

Question 53

Which discovery method may be used for party and non-party witnesses?

A - Deposition
B - Interrogatories
C - Mental/physical exam
D - Request for Admission
E - Request for Production

Answer 53

A - Deposition

Question 54

If a case primarily involves issues that are controlled by state law, but there also exists a “federal issue” which is inextricably intertwined with the “state law” issues, the federal court may accept the case under what is called:

A - Personal jurisdiction
B - Supplemental jurisdiction
C - Subject matter jurisdiction
D - Original jurisdiction

Answer 54

B - Supplemental jurisdiction

Question 55

During voir dire, the attorney may remove a prospective jury member using a preemptory challenge for the following reason:

A - The attorney believes the juror is biased
B - The juror knows a party
C - The juror is a certain race, religion, or gender
D - The attorney believes the juror is uneducated

Answer 55

D - The attorney believes the juror is uneducated

Question 56

What motion is filed if you want the court to act on a case where the defendant had failed to answer the complaint?

A - Motion to Compel
B - Motion for Default
C - Motion to Strike
D - Motion for Summary Judgment

Answer 56

B - Motion for Default

Question 57

What do you call a response to a counterclaim?

A - Answer
B - Cross-claim
C - Reply
D - Third-party answer

Answer 57

A - Answer

Question 58

What type of verdict provides the jury’s findings as to each issue in a dispute?

A - Directed verdict
B - General verdict
C - Special verdict
D - Unanimous verdict

Answer 58

C - Special verdict

Question 59

Which party has the burden of proving an affirmative defense?

A - The defendant
B - The plaintiff
C - Neither party
D - Both parties

Answer 59

A - The defendant

Question 60

Which is not a goal of a trial scheduling conference?

A - Confirm issues in dispute
B - Challenge jurors
C - Confirm trial schedule
D - Resolve evidentiary disputes

Answer 60

B - Challenge jurors

Question 61

In a trial, one of the last actions the court performs is:

A - Hear closing arguments
B - Issue jury charge and instructions
C - Rule on evidentiary challenges
D - Issue a final judgment

Answer 61

D - Issue a final judgment

Question 62

Which type of joinder allows a party to join the litigation if there is a common question of law or fact, and each plaintiff has a right to relief?

A - Compulsory joinder
B - Discretionary joinder
C - Intervening joinder
D - Permissive joinder

Answer 62

D - Permissive joinder

Question 63

Substitution of parties is not appropriate when:

A - A party dies after the complaint is filed
B - A party lacks standing
C - A party becomes incompetent or incapacitated after the complaint is filed
D - A party who is a public official loses reelection

Answer 63

B - A party lacks standing

Question 64

What is a person whose interest in the controversy before the court is such that the court cannot render an equitable judgment without having jurisdiction over that party?

A - An indispensable party
B - A dispensable party
C - A permissive party
D - A third party

Answer 64

A - An indispensable party