civil litigation part 1 Flashcards
DEFAULT JUDGMENT
When failed to plead (defendant) or defend against the plaintiff’s claim
DISCOVERIES
Act or process of finding or learning something that was previously unknown
SUMMARY JUDGMENT
Judgment granted on a claim or defense about which there is no GENUINE issue of material fact
STRIKING PLEADINGS
is a punitive measure that can refer to disallowing only a specific pleading
DISCONTINUANCE OF ACTION
Termination of an action
SATISFACTION OF JUDGMENT
The complete discharge of obligations under a judgment
SETTLEMENT
Payment satisfaction or final adjustment
PRETRIAL PROCEDURES
Preparation for the trial such as forms
TRIAL
Formal judicial examination of evidence and determination of legal claims in an adversary proceeding
APPEAL
A proceeding undertaken to have a decision reconsidered by a higher authority
CONTINUANCE
The act of keeping up, maintaining or prolonging
COURT ORDER
A command, direction or instruction by judge
DISCOVERY
Act or process of finding or learning something that was previously unknown
EX PARTE
One or from one party only
GARNISHEE
A person or an institution such as a bank that is indebted to or is bailee for another whose property has been subjected to garnishment
GARNISHMENT
A judicial proceeding in which a creditor asks the court to order a third party to turn over the creditor’s any of the debtor’s property such as wages or bank account
MOTION
Written or oral application requesting a court to make a specified ruling or order
MOTION FOR JUDGMENT
Request that the court enter a judgment without a trial because there is no GENUINE issue of material fact
WRIT
A court’s written order, in the name of a state or other competent legal authority, commanding some specified act
WRIT OF POSSESSION
The enforcement of a Writ of Possession is the final step in the process of evicting a Tenant and can only be enforced by a licensed bailiff, working for a civil enforcement agency.
VIVA VOCE
By word of mouth; orally
TERRITORIAL JURISDICTION
Arising or involving persons residing within a defined territory
PLAINTIFF
The party who bring a civil suit in a court of law
DEFENDANT
A person sued in a civil proceeding or accused in a criminal proceeding
INTERROGATORY
A written question submitted to an opposing party in a lawsuit as part of discovery
CROSS INTERROGATORY
An interrogatory from a party who has received a set of interrogatories
NOTICE TO PRODUCE
In pretrial discovery, a party’s written request that another party provide specified documents or tangible things for inspection and copying.
PRAYER FOR RELIEF
A request addressed to the court and appearing at the end of a pleading
DEPOSITION
A witness’s out of court testimony that is reduced to writing for later use in court or for discovery purposes.
MEDIATION
A method of nonbinding dispute resolution involving a neutral third party.
ARBITRATION
A method of dispute resolution involving one or more neutral third parties who are usu. Agreed to by the dispute parties and whose decision is binding.
ARBITRATOR
A neutral person who resolves disputes between parties
MEDIATOR
A neutral person who tries to help disputing parties reach an agreement
RELEASE
Liberation from an obligation, duty or demand ( or giving up right )
STATEMENT OF CLAIM
Plaintiff’s initial pleading in a civil case
ACTION
A party prosecutes another party for the enforcement or protection of a right; Terms action and suit are almost synonymous
WRIT
A court’s written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act
GARNISHER
A creditor who initiates a garnishment action to reach the debtor’s property that is thought to be held or owed by a third party
JURAT
A certification added to an affidavit or deposition stating when and before what authority the affidavit or deposition stating when and before what authority the affidavit or deposition was made
WARRANT
A writ directing or authorizing someone to do an act, esp. one directing a law enforcer to make an arrest, a search or a seizure
ORIGINATING APPLICATION
An originating application is the first, provisional, or primary application in any legal process
LIQUIDATE
To ascertain the precise amount of, by litigation or agreement
DISPUTE
A conflict or controversy
DEPONENT
One who testifies by deposition
CONSENT ORDER
A court decree that all parties agree to
THIRD PARTY
To bring a person or entity into litigation as a third party defendant
COUNTERCLAIM
A claim for relief asserted against an opposing party an original claim has been made
CORRESPONDENCE
Letters to and from clients/solicitors
CROSS EXAMINATION
Questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify
ADJOURNMENT
Meeting suspended till next meeting
AFFIDAVIT
Voluntary declaration of facts written down and sworn to by the declarant before an authorized officer of oaths
CO-DEFENDANT
One of two or more defendants sued in the same litigation or charged with the same crime
EXCLUSION OF WITNESS
Witness may not be presented
FRAUDULENT CONVEYANCE
A transfer of property for a little or no consideration made for the purpose of hindering or delaying a creditor by putting the property in another name
LIMITATIONS DATE
Limit before expiration date, can’t sue after this date
PERSONAL SERVICE
Actual delivery of the notice or process to the person to whom it is directed
PRONOUNCEMENT
Formal announcement by the judge
RECIPROCAL ENFORCEMEMT
Reciprocal obligations are duties owed by one individual to another and vice versa. A reciprocal contract is one in which the parties enter into mutual agreements.
RESPONDENT
The party against whom an appeal is taken
THIRD PARTY DEFENDANT
A party brought into a lawsuit by the original defendant
VICARIOUS LIABILITY
Liability that a supervisory party bears for the actionable conduct
LIABILITY
(responsibility) is the bond of necessity that exists between the wrongdoer and the remedy of the wrong
JUDICIAL CENTRE
is a federal training and research agency for the federal judiciary. It was created in 1967
Tort
French for injury, a civil wrong, or wrongful act, whether intentional or accidental, from which injury occurs to another.
Matter
A subject under consideration, esp. involving a dispute or litigation
Recklessness
– in civil law this is enveloped by Negligence
Negligence
a tort by itself. it doesn’t matter what the person knew, its what they should have known
Strict Liability
Blameless but still liable
Intentional Torts
The Defendant wishes to commit the Act as: - Battery Assault False Imprisonment Trespass to chattels Trespass to Land Nuisance Defamation
Assault
Tort Assault is not the same as Criminal Assault
Does not include physical contact or violence
The threat of unwanted physical contact
Not necessary that the defendant actually intended any contact or was likely too follow through, only matters that the plaintiff felt a real threat or apprehension
Battery
Battery is closer to the criminal assault charge
Includes any harmful or offensive physical contact
Violence not necessary, neither is physical harm
No intention of physical violence or harm or even offense on the part of the D, all that is required is that the P is offended
The contact itself, the act and the contact must be intentional, cannot sue another person for accidental offensive contact
Assault2
Does not require physical contact or violence
The threat of unwanted physical contact
Not necessary that the defendant actually intended any contact or was likely too, only matters that the plaintiff felt a real threat of contact
Battery2
Harmful or offensive physical contact
Violence not required
Physical damages not required
Intention to make contact is, can’t sue someone for unintentional physical contact, no matter how offensive.
Intended result by the defendant is unimportant, only the perceived result of the plaintiff.
False imprisonment
The D confines the P in a fixed space without lawful justification
No minimum or maximum space requirement and no minimum amount of time. As soon as the confinement has been initiated, it exists
Different levels of space and time are compensated by different damages of awards
If the P entered confinement, not the space the confinement, completely voluntarily, then there is no confinement
Trespass to Chattels
Trespass = interference
Chattels = personal moveable property
Includes vandalism, unauthorized use, unauthorized contact, keeping property unlawfully
Possession is not 9/10’s of the law
Damage or permanent interference is not required
Trespass to land
Intentional interference with land through unlawful occupation
entering property w/o permission
Entering property w/permission but refusing to vacate property at the owners request
Does not require any damage to the property
What About Adverse Possession?
nuisance
Interfering with the landowners rights without necessarily entering the property
Can include excessive noise, excessive light, blocked access, noxious fumes and contaminated water.
Must be a significant and unreasonable interference
Not typically enforced if interference is temporary
Not all property rights are protected all the time
Courts may consider appropriate and reasonable trade-offs
Defamation
Includes slander and libel
Key ingredients
The D made a statement
(written or verbal) regarding the P to at least one other
person
The statement presents P in an uncomplimentary light
The statement would be reasonably expected to lower the reputation
of P in the minds of the individuals who receive it
Cannot be de defamed by the truth
Very complicated!!!
Self Defence
Prevention, not revenge
The use of force and the amount of force used must reasonable, and no more than necessary to prevent the battery
Provocation
Not a defence, only a mitigating factor
Mitigating factor – an act or omission by the P, D or a third party which lessons the amount of liability
Defence of others
Same general rules as self defence
The court will usually give less leeway as far as the over application of force goes.
Defence of Property
A property owner may take steps to defend their property against trespass
Same general rule, only as much force as is necessary and reasonable to eject a trespasser from your property
Cannot make an example of the trespasser, teach them a lesson or punish them for damages, only eject them
If in doubt, CALL THE POLICE!
Parts of a Negligence cause of Action
Does the Defendant owe the Plaintiff a DUTY OF CARE?
Did the Defendant breach the STANDARD OF CARE?
Did the Defendant’s careless act or omission CAUSE the Plaintiff’s damages?
Was the injury suffered by the Plaintiff TOO REMOTE?
Prima Facie Duty of Care
Prima Facie = [at first sight], on first appearance but subject to further evidence or information.
Standard of Care
the standard of care is the degree of prudence and caution required of an individual who is under a duty of care.
reasonable person
The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions.
Causation
The “But For” Test
Causation is the “causal relationship between conduct and result”. That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury
Remoteness
The absence of a sufficiently close relationship between the D’s action and the P’s injury.
Different from proximity which compares the relationship between the parties themselves, not the action and the loss
Primarily an issue in cases of corporate negligence, not individual
Contributory Negligence
behavior by the plaintiff that contributes to the harm resulting from the defendant’s negligence) “in common law any degree of contributory negligence would bar the plaintiff from collecting damages”
Damages
There are two purposes for awarding damages
To return the Plaintiff to a state as if the actions of the D had never happened or as close to it as money can buy
This may include ongoing losses since the incident as well as the damages from the initial act itself
To punish the D and discourage them or individuals like them from acting in a similar fashion in the future.
Specific performance
the performance of a legal contract as specified by its terms)
Not very common as it is not always very practical
The court makes an order for the D to perform a specific action which will help return the P to their prior state
Often only makes up a portion of the total damages awarded.
A time limit is usually given for the performance of the act, if performance is not completed in time the parties will return to court for further orders to ensure completion
Non-Pecuniary damages
Damages meant to compensate for losses which were not originally financial
Pain and Suffering
Emotional and physical
Loss of Enjoyment of Life
Loss of Marital relations
Inability to participate in former activities
Loss of Life Expectancy
Dollar value is set according to precedent or the courts own opinion
7 figures is rare in Canada w/o permanent brain injury or paralysis
Pecuniary Damages
Damages based on financial losses, estimated or enumerated
Costs of future care
For 5 days or 50 years, whatever it takes
Loss of Future income
Don’t get in a car accident with a doctor
Special Damages
Includes all losses that are definitively measurable at the time of trial
Must be set carefully, you can appeal, but you can’t come back 20 years later and sue again because it wasn’t enough
Once again, expected to take reasonable steps to mitigate these types of damages
Punitive Damages
Only awarded in cases where the Plaintiff has exhibited malicious, oppressive or high-handed behavior
Also available if the D will still profit from the behavior despite the Pecuniary and non-pecuniary damages
Most often seen against major corporations who have acted with particular regard for public safety and well-being, and for whom the damages of an individual are financially meaningless
costs
Just a final note, the loser pays the legal costs of the other party. The proportion of that payment may vary depending on the nature of the matter, and is up to the court, but it is a near universal rule.
Mens Rea
Subjective measurement, what did the tortfeasor actually know or believe and what were they trying to do with that knowledge.
Different torts require different levels of Intent
Examples:
Assault and the practice of Medicine
Defamation
mitigation
The action of reducing the severity, seriousness, or painfulness of something
how to count time …
Counting months and years
- 4(1) When counting to or from a date in months, time is calculated from the date on which the event or activity occurs in the month to the same-numbered day in a subsequent or previous month, as the case requires.
(2) If the count ends on the 29th, 30th or 31st and there is no same-numbered date in the subsequent or previous month, the count ends on the last day of the subsequent or previous month, as the case requires.
(3) When counting to or from an event or activity in years, time is calculated from the date on which the activity or event occurs in a year to the same-numbered date in a subsequent or previous year, as the case requires.
(4) If the count starts on February 29th and ends in a year that is not a leap year, the count ends on February 28th of that year.
Adverse possession
Limitations act, 10 years uninterrupted occupation, known to the owner, no attempt made to interrupt possession by owner. Prevents waste.
