Exam 4 Chapters 7 & 8 Terms and Case holdings

Question 1

procedure

Answer 1

process governing a law suit

Question 2

service of process

Answer 2

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

Question 3

personal service

Answer 3

Presenting the summons and the complaint personally to the defendant

Question 4

substituted service

Answer 4

Presenting the summons and the complaint to someone other than the defendant, such as someone living in the defendant’s home

Question 5

publication

Answer 5

Publication of a legal notice in an authorized periodical

Question 6

long-arm statutes

Answer 6

Statutes that provide a state with jurisdiction over persons or entities ordinarily beyond its territory and usually jurisdiction

Question 7

in personam (personal) jurisdiction

Answer 7

The authority of the court to determine the rights of the defendant in a lawsuit

Question 8

in rem jurisdiction

Answer 8

The authority of the court to determine the status of the property

Question 9

quasi in rem jurisdiction

Answer 9

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

Question 10

venue

Answer 10

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)

Question 11

pleadings

Answer 11

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)

Question 12

complaint

Answer 12

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

Question 13

answer

Answer 13

A pleading that responds to the complaint, admitting and denying specific allegations and presenting defenses.

Question 14

counterclaim

Answer 14

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

Question 15

reply

Answer 15

A pleading made by a plaintiff when a defendant makes a counterclaim or affirmative defenses that require a response

Question 16

discovery

Answer 16

pretrial devices for obtaining information relevant to the suit

Question 17

depositions

Answer 17

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

Question 18

interrogatories

Answer 18

Pretrial written questions sent from one party to the other party; a discovery device

Question 19

pretrial hearing

Answer 19

A meeting of attorneys in a case with the judge to discuss the issues in the case and plan for the trial

Question 20

voir dire

Answer 20

the examination of potential jurors to qualify them for the trial

Question 21

jury selection

Answer 21

selecting a jury vary considerably among jurisdictions, and even different judges differ in the extent to which they wish to control the process

Question 22

challenge for cause

Answer 22

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.

Question 23

peremptory challenge

Answer 23

Exclusion of a juror that does not require justification. Each side is allowed a limited number of peremptory challenges, as dictated by statutes

Question 24

opening statement

Answer 24

are designed to inform the jury of the nature of the case and the facts each side proposes to show or dispute

Question 25

case-in-chief

Answer 25

the main evidence offered by one side in a lawsuit; does not include evidence offered to oppose the other side’s case

Question 26

prima facie case

Answer 26

A case that will win unless the other side comes forward with evidence to disprove it.

Question 27

direct examination

Answer 27

the first questioning of a witness in a trial by the side that called the witness

Question 28

cross-examination

Answer 28

the questioning of an opposing witness during a trial or hearing

Question 29

redirect

Answer 29

the questioning of a witness by the party that called the witness following cross-examination

Question 30

recross

Answer 30

the questioning of a witness by the party that did not call the witness following redirect

Question 31

summation (closing argument)

Answer 31

each lawyer’s presentation of a review of the evidence at the close of trial

Question 32

charges to the jury

Answer 32

judge gives instructions to the jurors

Question 33

verdict

Answer 33

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.

Question 34

judgement

Answer 34

the official decision of the court that determines the respective rights and obligations of the parties

Question 35

hearsay rule

Answer 35

excludes from testimony out-of-court statements made by a person not present in court; a complex rule with many exceptions

Question 36

motions

Answer 36

generally, a formal request by a party for a ruling by the court in favor of that party. There are many types of motions

Question 37

judicial notice

Answer 37

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

Question 38

motion to dismiss (demurrer)

Answer 38

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

Question 39

Motion for summary judgment

Answer 39

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

Question 40

Motion for direct verdict

Answer 40

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

Question 41

Motion for judgement notwithstanding the verdict (n.o.v.)

Answer 41

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.

Question 42

res judicata

Answer 42

affirmative defense that prevents a civil case from being brought a second time; Latin for “the thing has been judged”

Question 43

collateral estoppel

Answer 43

Bars the relitigation of issues that have been previously adjudicated

Question 44

Cockrell v. Hillerich & Bradsby Co.

Answer 44

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.

Question 45

Wyman v. Newhouse

Answer 45

Holding: A judgement procured fraudulently, as here, lacks jurisdiction and is null and void.
Judgment affirmed

Question 46

writ of habeas corpus

Answer 46

brought by petition to challenge the lawfulness of a detention

Question 47

ex post facto law

Answer 47

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

Question 48

unreasonable search and seizure

Answer 48

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.

Question 49

grand jury

Answer 49

A body of citizens who receive complaints and accusations of crime and decide whether an indictment should issue

Question 50

indictment

Answer 50

A written accusation by a grand jury charging the accused with a criminal act

Question 51

double jeopardy

Answer 51

Prevents a person from being tried twice for the same crime

Question 52

privilege against self incrimination

Answer 52

provides that a person accused of a crime cannot be required to testify against himself or herself

Question 53

speedy trial

Answer 53

The sixth Amendment guarantees all persons accused of criminal wrongdoing the right to a speedy trial.

Question 54

assistance of counsel

Answer 54

the criminal defendant has had a competent attorney representing them

Question 55

due process

Answer 55

the legal requirement that the state must respect all of the legal rights that are owed to a person

Question 56

equal protection

Answer 56

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.

Question 57

exclusionary rule

Answer 57

evidence can not be used because evidence was collected in violation of someone

Question 58

Miranda rights

Answer 58

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

Question 59

plea bargaining

Answer 59

an unethical device used by criminal defense lawyers to circumvent justice

Question 60

arrest

Answer 60

usually refers to detaining someone to answer for a crime

Question 61

initial appearance

Answer 61

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

Question 62

preliminary hearing

Answer 62

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.

Question 63

probable cause

Answer 63

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.

Question 64

arraignment

Answer 64

brings the defendant before the court to make a plea

Question 65

trial

Answer 65

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

Question 66

sentencing

Answer 66

state-adopted guide-lines that establish specific sentences for specific crimes. Some states have also adopted minimum sentences for certain crimes

Question 67

appeal

Answer 67

a process for requesting a formal change to an official decision

Question 68

pro bono

Answer 68

professional work undertaken voluntarily and without payment or at a reduced fee as a public service