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NALA Testing > Civil Litigation > Flashcards

Civil Litigation Flashcards

1
Q

Under Federal Rule of Civil Procedure Nos. 30 and 31, a party must obtain leave of court to take more than __ deposition

A

A party must obtain leave of court to take more than 10 depositions

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2
Q

According to Federal Rule of Civil Procedure No. 45(c)(1)(A), a subpoena may command a person to attend a trial, hearing or deposition only within ____ miles of where the person resides, is employed, or regularly transacts business in person

A

100 miles

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3
Q

Estoppel

A

an affirmative defense

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4
Q

lis pendens

A

written notice that a lawsuit has been filed concerning real estate, involving either the title to the property or a claimed ownership interest in it

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5
Q

Amicus curiae

A

legal documents filed in appellate court cases by non-litigants with a strong interest in the subject matter. The briefs advise the court of relevant, additional information or arguments that the court might wish to consider

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6
Q

multidistrict litigation

A

a special federal legal procedure designed to speed the process of handling complex cases, such as air disaster litigation or complex product liability suits;

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7
Q

what must be included in a multidistrict litigation motion:

A

All motions shall briefly describe the action or relief sought and shall
include:
1. a brief which states the background of the litigation and movant’s factual and legal contentions
2. a numbered schedule providing
- name of each action, full name of each party, and the district court’s docket sheet
- the district court and division
- the civil action number
- the name of the judge
3. a proof of service
4. a copy of complaints and docket sheets
5. exhibits

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8
Q

general jusrisdiction

A

authority of the court to hear any type of case within its geographic and governmental jurisdiciton

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9
Q

subject matter jurisdicition

A

authority of a court to hear cases involving a certain subject matter

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10
Q

federal question

A

whether a federal court has jurisdiction over a civil case is whether the plaintiff has claimed a violation of the US Constitution or federal law has occurred

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11
Q

concurrent jurisdiction

A

federal and state courts has equal authority to hear and to decide a case

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12
Q

supplemental jurisdiction

A

allows additional claims and additional parties to be added to an existing federal case without independently satisfying the requirements of federal subject matter jurisdiction
INCLUDES: pendent and ancillary jurisdiction

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13
Q

pendent jurisdiction

A

a type of supplemental jurisdiction whereby a STATE created claim between parties sometimes could be added to a federal question claim pending in federal court between the SAME parties even if the federal court would not have jurisdiction in the state created claim (same parties, additional claim)

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14
Q

class action in regards to rule 23 - what must be done to accomplish this..

A
  • must be so large that joinder of all its members is not feasible
  • within 90 days after a complaint is filed, the plaintiff must file a motion with the court to determine if the case can be maintained as a class action
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15
Q

affirmative defense

A

if can be proved, will negate the Plaintiff’s claim

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16
Q

set off

A

if can be proved, will reduce the plaintiff’s claim but will NOT cancel it entirely
* the defendant argues that the debt owed to plaintiff should be reduced by an amount owed to defendant by plaintiff; a set off is NOT a dispute of the amount claimed in the transaction, it is also not a counterclaim

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17
Q

rules that govern discovery

A

Title V: 26 to 37

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18
Q

judgment on partial findings

A

if the case proceeds to trial and if the plaintiff fails to prove facts supporting her claim for relief, the judge can dismiss the complaint before the defendant begins his case - NON JURY TRIAL ONLY

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19
Q

ancillary jurisdiction

A

a type of supplemental jurisdiction where by cases where diversity existed for at least one claim between one plaint and one defendant and where additional claims or additional parties were sought to be added to the core claim (additional claim or additional party sought to be brought in)

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20
Q

personal jurisdiciton

A

the courts authority to reach a decision affecting a particular person or entity

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21
Q

permissive joinder

A

more than one plaintiff or defendant may be joined in a single suit

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22
Q

compulsory joinder (rule 19)

A

additional parties MUST be joined once the jurisdictional requirements are met

  1. necessary
  2. indespensable
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23
Q

intervention (rule 24)

A

allows a person who was NOT an original party to enter the suit upon her own initiative; the intervenor

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24
Q

interpleader (rule 22)

A

allowed in federal courts and in most states to protect a party from having to pay the same claim twice in situation where he is uncertain who the proper claimant is - most times the defendant brings the interpleader

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25
Q

impleader

A

if a defendant claims that a 3rd party is liable to the defendant for all or part of plaintiff’s claim (indemnity/suborgation), the defendant may implead that person by filling a 3rd party claim/complaint

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26
Q

interrogatories

  • define
  • what can be included
  • what rule
  • how many days to answer
A
  • a list of questions one party sends to another as part of the discovery process. The recipient must answer the questions under oath
  • can ask any question “reasonably calculated to lead to admissible evidence”
  • remedy provided in rule 37 | interr. in rule 33
  • answer have 30 days to complete
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27
Q

days allowed to amend one’s Answer

A

21 days to amend without the court’s permission

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28
Q

notice pleading

A

requires that a complaint only contain a short and plain statement of the cause of action - it is the relaxed pleading standard use in federal court

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29
Q

fact pleading

A

pleading requirements that mandates that submissions to the court, like complaints and answers, include all the facts needed to back up their allegations; no longer used in the federal system, but is still used in some states

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30
Q

in federal court, how many days to serve an answer to a counter claim (or cross claim)

A

21 days after being served

31
Q

in federal court, how many days to file answer to complaint

A

21 days after being served

32
Q

in federal court, how many days to respond to a motion; how many days to respond to a dispositive motion

A
  • 21 days for a motion

- 35 days for a dispositive motion

33
Q

dispositive motion

A

a motion seeking a trial court order entirely disposing of all or part of the claims in favor of the moving party without need for further trial court proceeding

34
Q

demurrer

A

a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit
*** Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer

35
Q

privilege communications is governed in ____ in federal question cases

A

in federal rules of EVIDENCE (501)

36
Q

post trial motions, when can they be filed

A

once the JUDGEMENT has been entered/rendered, either party may file post trial motions

37
Q

ILOTA money

A

interest earned on these accounts is remitted to the state’s ILOTA program for charitable purposes

38
Q

peremptory challange

A

lawyer’s objection to a proposed juror made without needing to give a reason

39
Q

challenge for cause

A

a request that a prospective juror be dismissed because there is a specific and forceful reason to believe the person cannot be fair, unbiased or capable of serving as a juror

40
Q

the movant has ___ days after the close of discovery to file and serve a motion for summary judgment

A

30 days

41
Q

ancillary proceeding

A

unless a judgment debtor voluntarily pays the judgment, the judgment creditor must initiate proceedings to enforce (execute) the judgment

42
Q

engrossment in interrogatories

A

party must provide enough space between questions to insert answers

43
Q

interlocutory orders

  • exception to appeal (3)
  • how many days to file the appeal
A

orders compelling discovery are generally interlocutory (not final) orders and are NOT subject to appeal, there are exceptions:

  1. when a party is subject to criminal contempt for failing to comply with the order
  2. when the discovery order is directed to a nonparty, it may be appeal immediately
  3. a discovery order may be appealed under the Interlocutory Appeals act if (all 3 must be met):
    - it presents a controlling question of law
    - the appeal will expedite the litigation
    - if the appellate court agrees to accept the appeal
    * ** the appeal must be filed 10 days after the entry of the interlocutory order
44
Q

adjective law

A

aka procedural law

45
Q

permissive counterclaim

A

a claim brought by a defendant against a plaintiff in a situation where the defendant’s claim does NOT arise from the same transaction or occurrence as the plaintiff’s claim

46
Q

compulsory counterclaim

A

mandatory; arise from the SAME transaction or occurrence as the original claim - must bring counterclaim or lose it forever

47
Q

nominal damages

A

to vindicate a right that has been violated when no monetary loss occured

48
Q

liquidated damages

A

arise in contract cases only; represent the parties reasonable estimate of losses in the even of a breach (when damages are difficult to determine)

49
Q

equitable remedies

A
  • these are discretionary remedies at equity and are only granted where damages are not an adequate remedy; such as recission, restitution, specific performance, injunction, quantum meruit, and anton piller order
  • a petitioner who seeks equitable relief must be blameless in the matter
50
Q

restitution

A

focuses on the defendant’s gains rather than of plaintiff’s loss

51
Q

injunction

A

a personal order to a respondent to do a specific act - may be mandatory or preventative

52
Q

declaratory judgement

A

a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages

  • the dispute must be imminent, not merely a probability
  • one or both party must be in danger of facing personal peril or great financial burden
53
Q

rescission

A

only in contracts; when granted, the underlying contract is cancelled and made void

54
Q

reformation

A

only in contracts; sought to correct errors in the document when the document does not reflect the parties agreement accurately

55
Q

Basic premises of rule 56 motion

A

MOTION FOR SUMMARY JUDGEMENT - States that there is no reason to go to trial on a certain issue And the judge can instead resolve the issue based on the evidence already in the record

56
Q

How many articles are in the federal rules of evidence…

A

11

57
Q

If a statute of limitation has “toll” it means…

A

That the statute of limitations has been temporarily suspended (stops the running of the time period for filling suit until the defendant is no longer under the incapacity)

58
Q

prejudicial

A

harmful to someone or something; detrimental

- it is okay for a lawyer to knowingly offer evidence during the litigation that he knows is prejudicial

59
Q

which rule of the Federal Rules of Civil Procedure provides remedy for failure to answer interrogatories within the time specified..

A

Rule 37

60
Q

a plaintiff is required to respond to a counterclaim…

A

only if she denies the allegations

61
Q

sine qua non

A

an essential condition; a thing that is absolutely necessary

- proximate cause

62
Q

caveat

A

a warning or proviso of specific stipulations, conditions, or limitations

63
Q

et ux

A

and wife

64
Q

in loco parentis

A

(of a teacher or other adult responsible for children) in the place of a parent

65
Q

scintilla

A

a tiny trace or spark of a specified quality or feeling.

66
Q

inter alia

A

among other things

67
Q

non obstante

A

to do a thing notwithstanding any laws to the contrary

68
Q

nolle prosequi

A

a formal notice of abandonment by a plaintiff or prosecutor of all or part of a suit or action

69
Q

inter se

A

between or among themselves

70
Q

scienter

A

for intent or knowledge of wrongdoing

71
Q

All motions must contain: (7)

A
  1. the court’s name
  2. a title with the parties’ names
  3. the file number
  4. whether it is agreed or unopposed
  5. the relief sought
  6. the specific grounds for that relieve
  7. and a certificate of service
72
Q

claw-back provision

A

Grants courts the authority to enter a blanket clawback order providing that inadvertently produced documents can be returned upon demand without waiving the attorney-client privilege, regardless of the circumstances under which they were disclosed

The receiving party can ask the court to review the information under seal for a determination of the claim after the producing party notifies them of the inadvertent production

73
Q

partial summary judgement

A

one which resolves one or more issues in the case but which leaves others for the tier of fact to decide

74
Q

judgement as a matter of law

A

dft can move for this motion when the plt rests OR either party can move for this when the dft rest

  • the judge grants judgement as a matter of law if there is “no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue”
  • equivalent to a directed verdict in state court actions

NALA Testing (11 decks)

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