Civil Litigation Flashcards
Pleadings
the paperwork that is filed with the court to initiate or respond to a lawsuit is referred as the pleadings.
The two major pleadings are
- the complaint or petition
2. The answer
In federal court it’s(pleadings) a _____________.
complaint
In Texas state court, it’s (pleadings)a __________________.
petition.
The complaint or petition contains 1. 2. 3. 4.
- the names of the parties to the lawsuit;
- the facts of the case;
- the law that was violated; and
- the prayer for relief
Once a complaint/petition has been filed, the court issues a _____________________.
summons.
A summons is ______________________________________________________________________.
a court order directing the plaintiff to appear in court and answer the complaint or petition.
A ___________________ is a court order directing the defendant to appear in a court and answer the complaint or petition.
summons
Who may serve the complaint/petition on the defendant?
a sheriff, govt official, or a private process server
What is an intervention?
if other persons have an interest in a lawsuit, they may step in and become parties to the lawsuit.
If other persons have an interest in a lawsuit, and they step in and become parties to the lawsuit, it is called an ________________.
intervention
What is Consolidation?
If several plaintiffs have filed separate lawsuits stemming from the same fact situation against the same defendant, the court can initiate a consolidation of the cases into one case if it would not cause undue prejudice to the parties?
What’s a good example of consolidation?
airplane crashes
If several plaintiffs have filed separate lawsuits stemming from the same fact situation against the same defendant, the court can initiate a _____________________ of the cases into one court case if it would not cause undue prejudice to the parties.
consolidation
What is “statute of limitations”
plaintiff must bring suit within a certain period of time after the action that gives rise to the complaint, or lose the right to use the courts to enforce the civil right and remedy.
the period of time that the plaintiff must bring suit after the action that gives rise to the complaint, or lose the right to use the courts to enforce the civil right and remedy is called the
statute of limitations
If a judge decides that the claim “has no basis in law or fact” the loser may be ordered to pay the defendants costs or if a plaintiff rejects a settlement offer, and later wins an award that is less than 80% of the rejected offer, the defendants can recover litigation costs out of the jury award, is referred to as______________.
“loser pay”
When you are first assigned a new case what are the first 4 things to do:
- Create a Cast of Characters;
- Draft a Chronology;
- Make an Issue List; and
- Make a Question List.
What is a “Cast of Characters”
List of the individuals and organizations you know are involved in the dispute.
What else should be in a cast of characters besides the list of individuals and organizations involved in the dispute?
catalog of key documents and other important pieces of physical evidence as well as capturing each player’s name and a description of the role the person, entity, or document plays in the case.
What is a Chronology?
A timeline.
What does the chronology list?
the facts and the dates and include significant details and the sources for each fact. Include a “key fact” column to check off so that you begin to separate key facts from other facts.
What is an Issue List?
List of each case issue, including both legal claims and critical factual disputes. The description could include a brief summary of each party’s position on the issue.
If it’s a legal issue, include the potential language of the judge’s instruction.
What is a Question List?
List of questions that arise when doing analysis of case.
What is Discovery?
- Depositions
- Interrogatories
- Request for Production
- Physical or Mental Exam
- Request for Admissions
- Request for Disclosure
Depositions?
oral testimony given by a party or witness prior to trial, under oath, with a record.
oral testimony given by a party or witness prior to trial, under oath, with a record
deposition
Interrogatories
written questions submitted by one party to another party
written questions submitted by one party to another party
interrogatories
Request for Production
request by one party to another party to produce all documents relevant to the case
request by one party to another party to produce all documents relevant to the case
request for production
Ex Parte
“from one party”
Ex Parte as a legal term ______________________________________________________________________.
refers to a situation in which one party has communication with the judge without the participation of the opposing party.
“from one party”
ex parte
situation in which one party has communication with the judge without the participation of the opposing party
ex parte
Pro Se
A pro se litigant is a person who represents him/herself.
A _____________ litigant is a person who represents him/herself.
pro se
2 Pretrial Motions
- Motion to Dismiss
2. Motion for Summary Judgment
Motion to Dimiss
even if the facts in the plaintiff’s petition are true, there is no reason to continue the lawsuit
Motion for Summary Judgment
there are no factual disputes and only matters of law are disputed. The judge can apply the law to the facts and dispose of all or part of the case. If there is a factual dispute, the motion must be denied.
Pretrial motion that says even if the facts in the plaintiff’s petition are true, there is no reason to continue the lawsuit
Motion to Dismiss
Pretrial Motion that says there are no factual disputes and only matters of law are disputed. The judge can apply the law to the facts and dispose of all or part of the case. If there is a factual dispute, the motion must be denied.
Motion for Summary Judgment
Pretrial motions “motion to dismiss” and “motion for summary judgment” are both _______________________.
dispositive motions
The attorneys may be directed to appear before the court for a ____________________, or settlement conference.
pretrial hearing
One purpose of a pretrial hearing is to ____________________.
facilitate settlement.
Pretrial hearings are usually heard ___________________.
in chambers.
If settlement isn’t possible in a pretrial hearing, then the hearing is used to _________________________________________________________.
identify major issues and other relevant facts.
At a pretrial hearing, cases may be referred to ______________________________.
ADR alternative dispute resolution.
Phases of Trial
- Jury Selection
- Opening Statements
- Plaintiff’s case in chief
- Defendant’s case in chief
- Rebuttal and rejoinder
- Closing Arguments
- Jury instructions and deliberation
- Entry of judgment
Voir dire
“to speak the truth”
“to speak the truth”
voir dire
How does jury selection work?
- pool completes questionnaire,
- voir dire,
- jurors can be stricken for cause if the court believes that the potential juror is too biased to render a fair verdict,
- preemptory challenges are used to exclude a juror without giving a reason
- once the right number is chosen, they are impaneled and sworn
Jurors can be _________________________ if the court believes that the potential juror is too biased to render a fair verdict.
stricken for cause
_______________________ are used to exclude a juror without giving cause.
Preemptory challenges
Once the right number is chosen during jury selection, the jurors are ___________________________.
impaneled and sworn
During ________________________ attorneys summarize that main factual and legal issues and why their client’s position is valid.
opening statements
What do the best opening statements do?
tell a story
Some studies show that _____________of jurors make up their minds by the end of the opening statements.
80%
On plaintiff’s case, the plaintiff has the _______________________________ to persuade the __________________ of the merits of its case.
- burden of proof
- trier of fact
Plaintiff’s attorney calls ________________.
witnesses
Witnesses are sworn in and answer questions on ____________________.
direct examination
______________________-can be introduced through witnesses.
Documentary evidence
When the other side asks plaintiff’s witnesses questions, that’s called ______________________________.
cross examination
After cross examination there is _____________-and _________________.
redirect and recross
When the plaintiff rests, the defense presents its _______________.
case in chief
The defendant must (during defendant’s case) 3 things
- Rebut the plaintiff’s evidence
- Prove any affirmative defenses asserted by the defendant; and
- Prove any allegations contained in the defendant’s cross-complaint.
What is rebuttal?
When the defendant rests, the plaintiff’s attorney can call witnesses and put on evidence to rebut the defendant’s case.
When the defendant rests, the plaintiff’s attorney can call witnesses and put on evidence to rebut the defendant’s case. This is called ______________________.
rebuttal
After rebuttal, the defendant’s attorney can then call additional witnesses and introduce other evidence to counter the rebuttal. This is called______________________.
rejoinder
What is rejoinder?
When the defendant’s attorney calls additional witnesses and introduces other evidence to counter the rebuttal.
During, ________________________ each attorney tries to convince the jury to render a verdict for his or her clients by pointing out the strenghts in the clients’ case and the weaknesses in the other side’s case.
closing argument
During closing argument, ___________________ cannot be presented and ________________are not considered to be evidence.
new evidence
closing arguments
Jury Charge is also called
jury instructions.
Jury instructions also called
jury charge
The judge reads the ______________ or instructs the jury on what law to apply in deciding the case.
jury charge
The _______________is very important to both sides because the wording of the ______________ and the jury questions can determine the outcome of the case.
- jury charge
- charge
When the jury goes into the jury room (not required in TX, but almost always down) to deliberate its findings, this is called _____________________________.
jury deliberation
After jury deliberation, the jury announces its _______________ (in federal court). In Texas court, the ____________ reads the _______________.
verdict
clerk
verdict
The jury also assesses ______________.
damages
The judge ________________ to the successful party, based on the verdict.
enters judgment
When the judge enters judgment to the successful party, based on the verdict, this is called
entry of judgment
The ____________________-is the official decision of the court.
entry of judgment
JNOV stands for
judgment non obstante verdicto
JNOV (judgment non obstante verdicto) means that ______________________________.
.
The judge may reduce the amount of damages awarded if it finds the jury was biased, emotional, or inflamed. This is called __________________-.
remittiur
What is remittiur?
When the judge reduces the amount of damages awarded because finds jury was biased, emotional, or inflamed.
Either side in a civil case can ____________ once a final judgment is entered.
appeal
Appeal is to the appropriate _______________________.
appellate court.
A __________________ must be filed within a prescribed amount of time after judgment is entered.
notice of appeal
The appealing party is the ______________ or _____________________.
appellant or petitioner.
The responding party to an appeal is the ______________________ or _________________________.
appellee or respondent
An ________________, called a supersedeas bond in Texas, may be required.
appeal bond
An appeal bond, called a _______________________ in Texas, may be required.
supersedeas
The appellant’s attorney may file an ______________, setting forth legal research and other supportive information.
opening brief
The appellee can file a _______________.
responding brief
In an appeal, a request for oral arguments can be made by _________________.
either side
In an appeal, __________________ take place without the presence of clients or witnesses.
oral arguments
In an appeal there are no additional fact finding, only ____________________________-.
legal arguments
What’s the standard for appeal?
“We will not reverse a determination for clear error unless it strikes us as wrong with the force of a 5-week-old unrefrigerated, dead fish” Bauer, Chief Justice
Who said “We will not reverse a determination for clear error unless it strikes us with the force of a 5-week-old unrefrigerated, dead fish” and what was s/he referring?
Bauer, Chief Judge, the standard for appeal
What are the actions that can be taken by appellate court?
- Affirm
- Reverse
- . Remand
Affirm is when _________________________________.
the court believes there were no errors in the application of the procedural or substantive law so the prior decision stands.
Reverse is when ____________________________________________________________.
the court rules that lower court made substantial error and reverses the decision.
Remand is when _______________________________________________________________________.
the court finds that lower court made and error that it can correct.
