Brainscape's Knowledge GenomeTM

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


See full index

UBE Bar Exam Flashcards > Civil Procedure > Flashcards

Civil Procedure Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Filing of a NOTICE OF APPEAL

A

30 days of judgement, must make obj. during trial or else waived

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

Harmless Error Rule

A

if errors do not make a difference then no appeal

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

Final Judgement Rule

A

cannot have an appeal unless final Judgement was made, all issued were finally determined by the court

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

Collateral Order Exception

A

issue may be decided if

a. It resolves the issue that is completely separate from the merits of the action
b. Any delay would cause too much damage

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

Injunctions

A

can be appeal the granted or denying an injunction before all issues decided

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

Standard of Review - Issue of Fact

A

Clearly erroneous standard

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

Standard of Review - Issue of Law

A

De Novo Review

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

Standard of Review - Relevancy, Prejudice, Court Orders

A

abuse of discretion

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

Federal Court Diversity

A

state substantive, federal procedural

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

Choice of Laws - Statute of Limitations

A

State substantive

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

Choice of Law - Venue Issue

A

federal procedure applies

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

Choice of Law - 2 state conflicting laws

A

Apply law where federal court sits

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

Erroneous Jury Verdicts

A

(1) to approve an appropriate judgment according to the answers; notwithstanding the verdict; (2) direct the jury to further consider its answers and verdict; or (3) order a new trial.

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

Default Judgement

A

one party fails to plead

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

Voluntary Dismissal

A

P voluntary dismisses his or her own action

i. Once w/o prejudice
ii. Before D answers/Summary Judgement
iii. After D answers, need court approval

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

Involuntary Dismissal

A

court will dismiss by order

i. Failure to prosecute
ii. Failure to obey a court order
iii. Lack of venue/jurisdiction

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

Prejudice exceptions of involuntary dismissal

A

a. Lack of Jurisdiction
b. Venue
c. Insufficient service of process
d. Failure to join a party

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

Grounds to Dismiss a Judge

A

(1) Appearance of Bias (2) Actual Bias

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

Appearance of Bias

A

parties MAY waive

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

Actual Judicial Bias

A

Parties MAY NOT waive

  1. Judge has personal knowledge – recused
  2. Judge was a lawyer – recused
  3. Judge or family has financial issues - recused
  4. Expressed opinion on merits – recused
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Red Judicata/Claim Preclusion

A

can claim or cause of action be relitigated

1. Generally no if same parties, same claim, decided on the MERITS, based on same transaction

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

Claim Preclusion - Merger Doctrine

A

P wins, claim is merged into the judgment and cannot sue same cause of action again
i. If P loses = P is Barred from bringing it up again, cannot split via damages

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

Collateral Estoppel/Issue Preclusion

A

(1) must have SAME issues, (2) actually litigated and DECIDED, (3) necessary to judgment

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

Collateral Estoppel - Not Litigated Issues

A

resolved in settlement or Default Judgement

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

Collateral Estoppel - Mutuality in Issue Preclusion

A

original parties no longer applies, now look to privity

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

Collateral Estoppel - Defense Use of Collateral Estoppel

A

allowed generally, nonparty in 1st case is not D in 2nd case

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

Collateral Estoppel - Offense Use of Collateral Estoppel

A

not allowed generally

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

Full Faith and Credit

A

one state must give full legal effect in another state

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

12b Motion to Dismiss SMJ

A

pre-answer motion - lack of SMJ – can be raised ANYTIME,

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

Waived Motion to Dismiss

A

Pre-answer motion - waived if not in Motion or Answer

  1. Personal Jurisdiction
  2. Improper Venue
  3. Insufficient Process
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Motion to Dismiss for Failure to Join a PArty

A

pre-answer motion - raise BEFORE or AT TRIAL

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

12b6 Motion to Dismiss Based on Failure to State Claim Upon Relief

A

even if stacks true, no recovery, dismissed with prejudice, raised BEFORE or AT TRIAL

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

Motion to Strike

A

pre-answer motion - made w/21 days of service, strike Redundant, Immaterial info

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

Motion for More Definitive Statement

A

pre-answer motion, pleading is vague or ambiguous

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

Summary Judgement

A

no genuine dispute of material fact, can be made up to 30 days after discovery, if denied NOT appealable

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

Partial Summary Judgment

A

on a particular issue

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

Judgement as a Matter of Law/Directed Verdict

A

D makes motion after D=P’s case or either party after evidence

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

Judgement as a Matter of Law/Directed Verdict - Standard

A

whether a reasonable jury would have a legally sufficient evidence to find for the party

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

Renewed Judgement as a Matter of Law

A

(1) make 1st motion so you can bring the RENEWED motion (2) 28 days after verdict (3) same standard as JMOL

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

Motion for relief of judgement

A

clerical error or mistake, judge may correct mistake

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Motion for new trial

A
  1. granted if error would change result of trial
  2. judge acted erroneous
  3. jury, party, witness, or lawyer misconduct
  4. verdict is against the clear weight of the evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Remitter

A

too much money, new trial ordered unless party accepts reduction of damages, no appeal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Additur

A

to add more money, NOT allowed in federal court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Motion for partially new trial

A

OK

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Motion for new trial when new info

A

(1) if evidence discovered after trial, (2) couldn’t find during or before trial but tried, (3) material

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

7th Amendment

A

right to a jury trial

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

Amount of Jurors

A

Must have at least 6 not more than 12 jurors

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

Verdict

A

must be unanimous

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

Demand for Jury trial

A

must be made within 14 days of last pleading

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

Equitable Relief

A

no right to a jury trial

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

Voire Dire

A

juror can be dismissed for cause

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

For Cause Dismissal

A

(1) actual bias (2) possible bias (3) felony conviction (4) no limit to amount of strikes

53
Q

Peemptory Challenge

A

3 strikes

54
Q

Jury Instructions

A

must object before jury retires or will be lost on appeal

h. Jury make take anything into evidence to the jury room, no science experiments

55
Q

Grounds for new Trial

A

(1) outside information brought into jury room (2) juror lies in questioning in voir dire

56
Q

Complaint

A

filing of complaint with the court commences statute of limitations

  1. Service – w/90 days
  2. Elements: (1) Short and plain statement with grounds of jurisdiction (2) Statement of the claim (3) Demand for Relief
  3. Demand for Special Relief – (1) Fraud (2) Special Damages, must be pled with specificity
57
Q

Answer

A

signed by Lawyer, whatever is not denied is admitted, 21 days

58
Q

Affirmative Defenses

A

(1) contributory negligence (2) SoF, (3) SoL (4) illegality, (5) duress

59
Q

Amendment of Complaint

A

a right as long as within 21 days after service of original pleading
1. Leave of Court Amendment – allowed when justice so requires

60
Q

Relation Back Doctrine

A

related back if claim or defense arose out of the same conduct, transaction or occurrence of original pleading

61
Q

Relation Back Regardings Parties

A

(1) arose from same T/O (2) w/90 days of filing complaint (3) new party knew or should have been brought but for mistake of ID

62
Q

Rule 11

A

when a lawyer signs a pleading, the lawyer says basis for claim;

i. Ensures legal arguments are warranted by existing law
ii. Allegations have evidentiary support
iii. Not presented for improper purpose

63
Q

Compulsory Counterclaim

A

(1) same T/O (2) Assert it or lose it

64
Q

Permissive Counterclaim

A

(1) D may bring claim not T/O (2) needs independent JD

65
Q

Permissive Joinder

A

multiple Ps can join together if claim (1) same T/O and (2) question of law or fact is in common

66
Q

Compulsory Joinder

A

party must be joined if it is unfair to litigate w/o them

67
Q

Compulsory Joinder - Necessary Party

A

impaired interest by not including

a. If joining would destroy diversity, then case can still go forward

68
Q

Compulsory Joinder - Indispensable Party

A

won’t join will prejudice

a. If joining would destroy diversity, case will be dismissed

69
Q

Adding Claims

A

may add as many claims as long as new claims have SMJ

70
Q

Class Actions

A

(1) size (2) common question of law or fact (3) typical of class (4) fair representation

71
Q

B1 Class Action

A

impairment of interests of class members, members may not opt out, notice is discretion of court

72
Q

B2 Class Action

A

injunctive relief is sought, members may not opt out, notice is discretion of court

73
Q

B3 Class Action

A

common question of all class members, may opt out, all members must give notice

74
Q

Diversity Class Action

A

(1) citizenship of representative is the one that counts, (2) ok as long as 1 named member has claim over $75,000, (3) if entire claim is over $5 million then okay if not one person have over $75

75
Q

Intervention

A

someone not in suit wants to come in

76
Q

Intervention as of Right

A

(1) interest in property of litigation (2) would impair protection of interest if not involved (3) NO court permission needed

77
Q

Permissive Intervention

A

(1) claim/defense is common question of law or fact to the suit (2) court permission is required

78
Q

Interpleader

A

1 party owes money to 2 or more people, make then fight over damages

79
Q

Statutory Interpleader

A

(1) nationwide service of process is allowed (2) as long as any two claims are diverse (3) min of $500 claim (3) person deposits money/property in Court or Bond

80
Q

Rule Interpleader

A

(1) complete diversity (2) no nationwide service (3) over $75,000 (4) NOT required to deposit money/property

81
Q

3rd Party Interpleader

A

D who believes 3P is liable for part or all of claim, D can implead them into claim AKA contribution/indemnity

82
Q

Cross Claims

A

one party sues co-party (1) same T/O (2) actual damages

83
Q

What is discoverable?

A

(1) not privileges (2) relevant (3) proportional to Needs of the Case

84
Q

Work Product

A

Immune from discovery, anything prepared by counsel for trial, also people working for lawyer

85
Q

When is work product discoverable?

A

(1) Substantial need (2) cannot obtain w/o UNDUE HARDSHIP

86
Q

Experts for trial

A

must give a list IDing expert, expert must provide a report with data and compensation

87
Q

Experts not testifying

A

discoverable only in EXCEPTIONAL CIRCUMSTANCES when impractical

88
Q

Deposition

A

(1) party of non-party (2) written or oral (3) limit 10 depos, cannot depo same person more than once w/o court permission

89
Q

Deposition of Non-party

A

subpoena

90
Q

Deposition of Party

A

NO subpoena, can get sanctions

91
Q

Interrogatory

A

(1) only to a PARTY (2) written/answered in writing (3) limit – 25

92
Q

Request for Admission

A

written request, conclusively established

93
Q

Request to Produce

A

documents in the other side’s possession, control custody

94
Q

Physical/Mental Exam

A

if condition is subject of controversy (10 court order (2) good cause

95
Q

Objection to Request

A

Info not relevant

96
Q

Protective Order to Stop Discovery

A

for embarrassment, harassment, undue burden

xv. Motion to Compel – one party not complying

97
Q

Conference of Parties

A

(1) court MUST have conference (2) parties MUST submit Discovery plan

98
Q

Scheduling Conference

A

(1) court MUST have conference (2) issue order w/ 90 days of filing (3) CANNOT be modified unless GOOD CAUSE

99
Q

Final Pre-trial Conference

A

(1) MAY hold it (2) if exists, court MUST issue Pre-trial orders (2) ONLY modified to prevent MANIFEST INJUSTICE

100
Q

Temporary Restraining Order

A

(1) no notice (2) IMMEDIATE IRREPARABLE HARM (3) expires in no more than 14 days

101
Q

Preliminary Injunction

A

(1) notice and hearing (2) irreparable injury (3) more than 14 days

102
Q

Subject Matter Jurisdiction

A

(1) diversity or (2) federal question

103
Q

Diversity

A

(1) parties are citizens of different states AND (2) over $75,000

104
Q

Domicile

A

permanent home and intent to stay there

105
Q

Corporations

A

(1)domicile in principal place of business and (2) state where incorporated

106
Q

Well-pleaded complaint rule

A

federal law must be obvious in complaint, federal defense =/= good enough for federal question

107
Q

Supplemental Jurisdiction/SJ

A

normally won’t be fed court, but court let you add claims and parties MUST arise from common nucleus of operative fact

108
Q

If FQ SJ

A

common nucleus of facts

109
Q

If Diversity SJ

A

common nucleus of facts (1) compulsory counterclaim (2) joinder of parties in compulsory counterclaim (3) cross claims (4) impleader of 3rd party Ds

110
Q

IF D trying to add SJ claim/party

A

allowed

111
Q

If P trying to add SJ claim/party

A

not allowed

112
Q

SJ not allowed

A

(1) original P vs. 3rd party D (2) compulsory joinder (3) joinder of Ds (4) intervention, P’s trying to intervene

113
Q

In personam Jurisdiction

A

domicile, living, present

114
Q

Long Arm Statute

A

law allowing nonresident to be brought into state to be sued

115
Q

Minimum Contacts

A

enough contacts so D could REASONABLY anticipate to be brought into court w/p offending traditional notions of fair play and substantial justice

116
Q

Service of Process

A

(1) limited to state where court sits or (2) long arm statute

117
Q

100 miles budge system

A

okay if w/100 miles of fed courthouse where suit is sitting for additional parties for current case, 3PD and indispensable parties

118
Q

Who can serve process?

A

(1) anyone not a party (2) over 18 years old

119
Q

Indirect service

A

yes can leave with (1) over 18 (2) likely to give to D

120
Q

In-Rem jurisdiction

A

getting PJ over property itself

121
Q

Quasi-in Rem Jurisdiction

A

trying to get JD to satisfy judgement against individual

122
Q

Removal

A

proper if could have been brought in fed court

123
Q

Who may remove?

A

ONLY DEFENDANT can remove, if multiple D  All must join to remove

124
Q

Timing of Removal

A

30 days of service of complaint

125
Q

Diversity Removal

A

(1) no removal is allowed if D is a citizen of forum state (2) not allowed over 1 year after beginning of action

126
Q

Venue

A

(1) any D resides, and all D reside in that state (2) substantial part of events took place (3) D is reachable – has PJ

127
Q

Corporation Venue

A

any district where principal place of business or state of incorporation

128
Q

Forum Non Convensce

A

yes can be transferred if venue in 1st place but law of original state applies

UBE Bar Exam Flashcards (13 decks)

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