Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

civil litigation > civil litigation part 1 > Flashcards

civil litigation part 1 Flashcards

1
Q

DEFAULT JUDGMENT

A

When failed to plead (defendant) or defend against the plaintiff’s claim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

DISCOVERIES

A

Act or process of finding or learning something that was previously unknown

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

SUMMARY JUDGMENT

A

Judgment granted on a claim or defense about which there is no GENUINE issue of material fact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

STRIKING PLEADINGS

A

is a punitive measure that can refer to disallowing only a specific pleading

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

DISCONTINUANCE OF ACTION

A

Termination of an action

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

SATISFACTION OF JUDGMENT

A

The complete discharge of obligations under a judgment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

SETTLEMENT

A

Payment satisfaction or final adjustment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

PRETRIAL PROCEDURES

A

Preparation for the trial such as forms

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

TRIAL

A

Formal judicial examination of evidence and determination of legal claims in an adversary proceeding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

APPEAL

A

A proceeding undertaken to have a decision reconsidered by a higher authority

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

CONTINUANCE

A

The act of keeping up, maintaining or prolonging

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

COURT ORDER

A

A command, direction or instruction by judge

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

DISCOVERY

A

Act or process of finding or learning something that was previously unknown

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

EX PARTE

A

One or from one party only

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

GARNISHEE

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

GARNISHMENT

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

MOTION

A

Written or oral application requesting a court to make a specified ruling or order

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

MOTION FOR JUDGMENT

A

Request that the court enter a judgment without a trial because there is no GENUINE issue of material fact

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

WRIT

A

A court’s written order, in the name of a state or other competent legal authority, commanding some specified act

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

WRIT OF POSSESSION

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

VIVA VOCE

A

By word of mouth; orally

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

TERRITORIAL JURISDICTION

A

Arising or involving persons residing within a defined territory

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

PLAINTIFF

A

The party who bring a civil suit in a court of law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

DEFENDANT

A

A person sued in a civil proceeding or accused in a criminal proceeding

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

INTERROGATORY

A

A written question submitted to an opposing party in a lawsuit as part of discovery

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

CROSS INTERROGATORY

A

An interrogatory from a party who has received a set of interrogatories

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

NOTICE TO PRODUCE

A

In pretrial discovery, a party’s written request that another party provide specified documents or tangible things for inspection and copying.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

PRAYER FOR RELIEF

A

A request addressed to the court and appearing at the end of a pleading

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

DEPOSITION

A

A witness’s out of court testimony that is reduced to writing for later use in court or for discovery purposes.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

MEDIATION

A

A method of nonbinding dispute resolution involving a neutral third party.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

ARBITRATION

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

ARBITRATOR

A

A neutral person who resolves disputes between parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

MEDIATOR

A

A neutral person who tries to help disputing parties reach an agreement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

RELEASE

A

Liberation from an obligation, duty or demand ( or giving up right )

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

STATEMENT OF CLAIM

A

Plaintiff’s initial pleading in a civil case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

ACTION

A

A party prosecutes another party for the enforcement or protection of a right; Terms action and suit are almost synonymous

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

WRIT

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

GARNISHER

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

JURAT

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

WARRANT

A

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

41
Q

ORIGINATING APPLICATION

A

An originating application is the first, provisional, or primary application in any legal process

42
Q

LIQUIDATE

A

To ascertain the precise amount of, by litigation or agreement

43
Q

DISPUTE

A

A conflict or controversy

44
Q

DEPONENT

A

One who testifies by deposition

45
Q

CONSENT ORDER

A

A court decree that all parties agree to

46
Q

THIRD PARTY

A

To bring a person or entity into litigation as a third party defendant

47
Q

COUNTERCLAIM

A

A claim for relief asserted against an opposing party an original claim has been made

48
Q

CORRESPONDENCE

A

Letters to and from clients/solicitors

49
Q

CROSS EXAMINATION

A

Questioning of a witness at a trial or hearing by the party opposed to the party who called the witness to testify

50
Q

ADJOURNMENT

A

Meeting suspended till next meeting

51
Q

AFFIDAVIT

A

Voluntary declaration of facts written down and sworn to by the declarant before an authorized officer of oaths

52
Q

CO-DEFENDANT

A

One of two or more defendants sued in the same litigation or charged with the same crime

53
Q

EXCLUSION OF WITNESS

A

Witness may not be presented

54
Q

FRAUDULENT CONVEYANCE

A

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

55
Q

LIMITATIONS DATE

A

Limit before expiration date, can’t sue after this date

56
Q

PERSONAL SERVICE

A

Actual delivery of the notice or process to the person to whom it is directed

57
Q

PRONOUNCEMENT

A

Formal announcement by the judge

58
Q

RECIPROCAL ENFORCEMEMT

A

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.

59
Q

RESPONDENT

A

The party against whom an appeal is taken

60
Q

THIRD PARTY DEFENDANT

A

A party brought into a lawsuit by the original defendant

61
Q

VICARIOUS LIABILITY

A

Liability that a supervisory party bears for the actionable conduct

62
Q

LIABILITY

A

(responsibility) is the bond of necessity that exists between the wrongdoer and the remedy of the wrong

63
Q

JUDICIAL CENTRE

A

is a federal training and research agency for the federal judiciary. It was created in 1967

64
Q

Tort

A

French for injury, a civil wrong, or wrongful act, whether intentional or accidental, from which injury occurs to another.

65
Q

Matter

A

A subject under consideration, esp. involving a dispute or litigation

66
Q

Recklessness

A

– in civil law this is enveloped by Negligence

67
Q

Negligence

A

a tort by itself. it doesn’t matter what the person knew, its what they should have known

68
Q

Strict Liability

A

Blameless but still liable

69
Q

Intentional Torts

A 
The Defendant wishes to commit the Act
as: - Battery
Assault
False Imprisonment
Trespass to chattels
Trespass to Land
Nuisance
Defamation
70
Q

Assault

A

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

71
Q

Battery

A

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

72
Q

Assault2

A

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

73
Q

Battery2

A

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.

74
Q

False imprisonment

A

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

75
Q

Trespass to Chattels

A

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

76
Q

Trespass to land

A

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?

77
Q

nuisance

A

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

78
Q

Defamation

A

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!!!

79
Q

Self Defence

A

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

80
Q

Defence of others

A

Same general rules as self defence

The court will usually give less leeway as far as the over application of force goes.

81
Q

Defence of Property

A

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!

82
Q

Parts of a Negligence cause of Action

A

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?

83
Q

Prima Facie Duty of Care

A

Prima Facie = [at first sight], on first appearance but subject to further evidence or information.

84
Q

Standard of Care

A

the standard of care is the degree of prudence and caution required of an individual who is under a duty of care.

85
Q

reasonable person

A

The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions.

86
Q

Causation

A

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

87
Q

Remoteness

A

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

88
Q

Contributory Negligence

A

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”

89
Q

Damages

A

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.

90
Q

Specific performance

A

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

91
Q

Non-Pecuniary damages

A

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

92
Q

Pecuniary Damages

A

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

93
Q

Punitive Damages

A

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

94
Q

costs

A

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.

95
Q

Mens Rea

A

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

96
Q

mitigation

A

The action of reducing the severity, seriousness, or painfulness of something

97
Q

how to count time …

A

Counting months and years

  1. 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.
98
Q

Adverse possession

A

Limitations act, 10 years uninterrupted occupation, known to the owner, no attempt made to interrupt possession by owner. Prevents waste.

civil litigation (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions