Exam 4 Chapters 7 & 8 Terms and Case holdings Flashcards
procedure
process governing a law suit
service of process
Delivery of a summons, writ, complaint, or other process to the opposite party or other person entitled to receive it, in such manner as the law prescribes
personal service
Presenting the summons and the complaint personally to the defendant
substituted service
Presenting the summons and the complaint to someone other than the defendant, such as someone living in the defendant’s home
publication
Publication of a legal notice in an authorized periodical
long-arm statutes
Statutes that provide a state with jurisdiction over persons or entities ordinarily beyond its territory and usually jurisdiction
in personam (personal) jurisdiction
The authority of the court to determine the rights of the defendant in a lawsuit
in rem jurisdiction
The authority of the court to determine the status of the property
quasi in rem jurisdiction
The authority of a court to determine the status of property to satisfy a personal claim and used when the defendant cannot be served personally
venue
Place; specifically, the place where jurisdiction is exercised. Many courts may have jurisdiction over a case, but it is filed in only one place, (the venue)
pleadings
written formal documents framing the issues of a lawsuit, consisting primarily of what is alleged on the one side (plaintiff complaint) or denied on the other (defendants answer)
complaint
The initial pleading in a civil action, in which the plaintiff alleges a cause of action and asks that the wrong done to the plaintiff be remedied by the court
answer
A pleading that responds to the complaint, admitting and denying specific allegations and presenting defenses.
counterclaim
A cause of action brought by a defendant against the plaintiff in a single case; example, in an auto collision, both drivers often sue each other, with one filing complaint and the other filing counterclaims
reply
A pleading made by a plaintiff when a defendant makes a counterclaim or affirmative defenses that require a response
discovery
pretrial devices for obtaining information relevant to the suit
depositions
oral examinations of a witness transcribed by a court reporter. Ordinarily, attorneys for both sides are present, one having requested the deposition. A deposition is part of the pretrial procedure called “discovery” and is usually conducted without any participation by the judge
interrogatories
Pretrial written questions sent from one party to the other party; a discovery device
pretrial hearing
A meeting of attorneys in a case with the judge to discuss the issues in the case and plan for the trial
voir dire
the examination of potential jurors to qualify them for the trial
jury selection
selecting a jury vary considerably among jurisdictions, and even different judges differ in the extent to which they wish to control the process
challenge for cause
In qualifying jurors during voir dire, either party may challenge the seating of a juror for bias or other disqualification. Challenges for cause are unlimited.
peremptory challenge
Exclusion of a juror that does not require justification. Each side is allowed a limited number of peremptory challenges, as dictated by statutes
opening statement
are designed to inform the jury of the nature of the case and the facts each side proposes to show or dispute
case-in-chief
the main evidence offered by one side in a lawsuit; does not include evidence offered to oppose the other side’s case
prima facie case
A case that will win unless the other side comes forward with evidence to disprove it.
direct examination
the first questioning of a witness in a trial by the side that called the witness
cross-examination
the questioning of an opposing witness during a trial or hearing
redirect
the questioning of a witness by the party that called the witness following cross-examination
recross
the questioning of a witness by the party that did not call the witness following redirect
summation (closing argument)
each lawyer’s presentation of a review of the evidence at the close of trial
charges to the jury
judge gives instructions to the jurors
verdict
the factfinding by a jury. For example, in a civil case, the jury might find the defendant liable in a dollar amount; in a criminal case, the verdict is usually “guilty” or “not guilty” of each criminal charge.
judgement
the official decision of the court that determines the respective rights and obligations of the parties
hearsay rule
excludes from testimony out-of-court statements made by a person not present in court; a complex rule with many exceptions
motions
generally, a formal request by a party for a ruling by the court in favor of that party. There are many types of motions
judicial notice
the conversion of a fact question into a question of law; the judge recognizing a certain fact as true without a party furnishing evidence; ordinarily judicial notice is taken on the basis of common knowledge of a fact
motion to dismiss (demurrer)
Asks the court to dismiss a complaint because the complaint is insufficient, the complaint does not state a cause of action, or the law has no remedy for the grievance asserted by the plaintiff
Motion for summary judgment
Asks the court to rule in favor of a party after some discovery has taken place, thus ending the lawsuit in favor of the plaintiff or dismissing a defendant from the the lawsuit
Motion for direct verdict
Either a request by the defendant to rule in favor of the defendant at the close of the plaintiff’s case-in-chief, or a request by either party at the close of the trial judge to rule in favor of the movant
Motion for judgement notwithstanding the verdict (n.o.v.)
Asks the court to enter a judgement contrary to the jury verdict on the basis that, as a matter of law, the verdict is against the manifest weight of the evidence.
res judicata
affirmative defense that prevents a civil case from being brought a second time; Latin for “the thing has been judged”
collateral estoppel
Bars the relitigation of issues that have been previously adjudicated
Cockrell v. Hillerich & Bradsby Co.
Issue: Did the circuit court err in granting the respondents’ motion to dismiss for lack of personal jurisdiction?
Holding: we hold the respondents do not have the minimum contacts with South Carolina necessary to comply with the due process requirements. According, the trial court correctly granted the respondents’ motion to dismiss due to lack of personal jurisdiction.
Wyman v. Newhouse
Holding: A judgement procured fraudulently, as here, lacks jurisdiction and is null and void.
Judgment affirmed
writ of habeas corpus
brought by petition to challenge the lawfulness of a detention
ex post facto law
a penal law that operates retroactively; ex. under such a law a person could be charged with a crime for an action that was not a crime at the time it took place, or a person’s sentence for a crime could be increased to a greater sentence than was permissible at the time of the crime occurred.
*criminal law suit
unreasonable search and seizure
search of an individual or his/her premises (including an automobile) and/or seizure of evidence found in such a search by a law enforcement officer without a search warrant and without “probable cause” to believe evidence of a crime is present. Unconstitutional under the 4th Amendment, and evidence obtained thereby may not be introduced in court.
grand jury
A body of citizens who receive complaints and accusations of crime and decide whether an indictment should issue
indictment
A written accusation by a grand jury charging the accused with a criminal act
double jeopardy
Prevents a person from being tried twice for the same crime
privilege against self incrimination
provides that a person accused of a crime cannot be required to testify against himself or herself
speedy trial
The sixth Amendment guarantees all persons accused of criminal wrongdoing the right to a speedy trial.
assistance of counsel
the criminal defendant has had a competent attorney representing them
due process
the legal requirement that the state must respect all of the legal rights that are owed to a person
equal protection
imposes a test of equality before the law against discriminatory practices. There must be no difference in treatment in the statement of the law itself or in its application.
exclusionary rule
evidence can not be used because evidence was collected in violation of someone
Miranda rights
a warning given by police in the united states to criminal suspects in police custody (or in custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings
plea bargaining
an unethical device used by criminal defense lawyers to circumvent justice
arrest
usually refers to detaining someone to answer for a crime
initial appearance
opportunity for presence before a magistrate; a person arrested for a crime must be brought before a magistrate promptly after arrest to be informed of the charges and the legal rights of the accused
preliminary hearing
A criminal defendant’s opportunity to challenge the case before the judge in a hearing which determines the sufficiency of the charges without a determination of guilt; ordinarily afforded but not always available.
probable cause
the standard by which an officer or agent of the law has the grounds to obtain a warrant for, or as an exception to the warrant requirements for, making an arrest or conducting a personal or property search, when criminal charges are being considered.
arraignment
brings the defendant before the court to make a plea
trial
A judicial examination, in accordance with the law, of a criminal or civil action. It is an “On-the-record hearing,” which means the determination is to be made on the basis of what is presented in court. It is a trial of fact with judgement entered on the law
sentencing
state-adopted guide-lines that establish specific sentences for specific crimes. Some states have also adopted minimum sentences for certain crimes
appeal
a process for requesting a formal change to an official decision
pro bono
professional work undertaken voluntarily and without payment or at a reduced fee as a public service
