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Civil Litigation > Final > Flashcards

Final Flashcards

1
Q

Jurisdiction

A

The authority/power of the court to hear a particular kind of the case

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2
Q

Venue

A

The proper county where you file your action; determined by where the parties live or where the accident took place

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3
Q

Personal Jurisdiction

A

Jurisdiction over the person

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4
Q

Minimum Contact

A

In order for a court to have personal jurisdiction over a person residing in a different state, the person must have minimum contact with the state

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5
Q

Contempt

A

disobeying a court order or disrespecting the court; can result in jail time or fine (must be intentional)

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6
Q

The difference between a civil case and a criminal case

A
  • Civil Cases result in = paying for damages; person v person; burden of proof “clear and convincing” or “preponderance of the evidence”; can only plea the fifth on certain questions but must take the stand
  • Criminal Cases result in = jail or prison time; person v society; burden of proof “beyond a reasonable doubt”; defendant can choose to not to testify per the fifth
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7
Q

Complaint? What must it contain?

A

A pleading that begins a lawsuit; must contain:

  1. parties
  2. jurisdiction
  3. venue
  4. facts “that show you are entitled to relief”
  5. laws applied
  6. relief sought
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8
Q

Motion to Dismiss

A

File this motion instead of an “answer” due to:

  1. lack of jurisdiction over subject matter
  2. lack of jurisdiction of person (personal jurisdiction)
  3. improper venue
  4. improper process
  5. failure to state facts in which relief can be granted (such as the facts were not stated at al, or an element of negligence was missing)
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9
Q

if a motion to dismiss is denied, how many days does one have to file an answer?

A

10 days; the 3 day rule does NOT apply

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10
Q

Motion for Summary Judgment

A

there are no dispute as to the material facts and one party should be awarded as a matter of law

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11
Q

Answer? how many days to answer?

A
  • defendant’s response to a complaint; must admit or deny

- defendant has 30 days to answer unless in jail, 60 days)

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12
Q

Direct Evidence

A

what you see, hear, witness DIRECTLY

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13
Q

Circumstantial Evidence

A

drawing a conclusion of what must be true (what the circumstances possibly show or tell)

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14
Q

Federal Court Jurisdiction

A
  1. Federal Question
  2. Diversity AND $75K or more
  3. state vs. state
  4. maritime law
  5. bankruptcy
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15
Q

Preponderance of the Evidence

A

more likely than not; relevant in most civil cases

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16
Q

Summons (the rules/what it must contain)

A
  • must be served with the Complaint
    1. sign and dated by the clerk
    2. name of the court
    3. caption (people involved)
    4. plaintiff’s attorney
    5. directed to the defendant
    6. amount of time to respond
    7. state that default judgment may be entered
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17
Q

Subpoena (what is it? serving rule? accompanied with what?)

A

court order to appear or present documents (do not need court clerk to sign)

  • must be served 2 days before trial
  • must be accompanied with money ($30 + .25 a mile)
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18
Q

Deposition

A

Pretrial oral testimony under oath (court reporter present)

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19
Q

Interrogatories

A

Question presented to the other party to answer under oath (should also send verification)

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20
Q

Request for admissions

A

Statements sent to the other side to admit or deny (the only form of discovery that is filed with the clerk)
* can be used to get other side to admit that a document is authentic

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21
Q

Request for productions of documents

A

request sent to the other party to hand over certain documents

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22
Q

Discovery (general rule)

A
  1. must turn in anything that can lead to relevant evidence and NOT privilege
  2. Admissibility is irrelevant (it is still discoverable)
  3. frequency is unlimited
  4. “inadvertent disclosure” attorney’s have 14 days to return privileged info. sent by accident
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23
Q

Rules of Civil procedure

A

rules when litigating a case

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24
Q

Rules of Evidence

A

Rules when going to or at trial; rules of procedure

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25
Q

Procedural

A

rules of civil procedure

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26
Q

Substantive

A

rules of law

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27
Q

compensatory damages

A

include:

  1. special damages
  2. general damages
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28
Q

special damages

A

damages in which one can put an exact dollar amount on

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29
Q

general damages

A

damages in which on cannot put an exact dollar amount on; such as pain and suffering

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30
Q

Punitive Damages

A

awarded as a remedy to punish the defendant

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31
Q

Ex Parte

A

a conversation with the judge without the other party’s attorney present; can only occur before the complaint has been served

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32
Q

Service; who can serve:

A

Personally

  1. process server
  2. sheriff
  3. certified mail
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33
Q

Service; how to serve someone through mail (jail):

A
  1. must be marked restricted
  2. must have returned receipt
  3. if defendant is in jail, must be certified mail to officer or administrator, first class mail marked restricted to inmate, regular mail to spouse
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34
Q

Service; how to serve someone personally:

A
  1. may leave at the home
  2. may leave with someone over 14 years of age and resides at the home
  3. if defendant is under 14 years of age, parent must be served
  4. if defendant is a plenary, the limited or temp. guardian and the defendant must be served
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35
Q

Service; Warning order:

A
  1. where abouts must be unknown
  2. an affidavit of “diligent inquiry” must be filed
  3. must be issued an signed by the clerk
  4. must be published 2 weeks consecutively in newspaper
  5. must be mailed to the defendants last known address
  6. an affidavit of service must be filed
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36
Q

De novo

A

Latin for “anew,” which means starting over

37
Q

En Banc

A

the ENTIRE panel of judges sitting and hearing a case, usually on appeal

38
Q

In Rem

A

Jurisdiction over the PROPERTY

39
Q

in Persona

A

Jurisdiction over the PERSON

40
Q

Best evidence Rules

A

the original is always the best evidence

- a photo copy is ok to use unless it is disputed; can talk about the document only if it is destroyed

41
Q

Mailbox rule

A

3 days maybe added to pleadings with less than 14 days of a response; this is included in emails as well

42
Q

Comparative Fault

A

an affirmative defense which reduces an award to the plaintiff by the percentage his own negligence contributed to his injuries

43
Q

Contributory Negligence

A

an affirmative defense which states there is no recovery where the plaintiff’s negligence contributed to his injuries

44
Q

Assumption of the Risk

A

an affirmative defense which states plaintiff knew the risks involved with a particular activity and voluntarily proceeded with that activity

45
Q

Counterclaim

A

filing a claim against the defendant

46
Q

Affirmative Defense

A

legal theories asserted by the defendant which bar the plaintiff’s claim

47
Q

Subsequent Remedial Measures

A

if you correct the wrong; is not admissible

48
Q

Character Evidence

A

cannot use pass character to show that they would commit the act again; just because a person acted like such in the past does not mean they acted the same in this occasion

49
Q

Relevant Evidence

A

“tendency to make existence of any fact more probable than without”

50
Q

Motion in Limine

A

a motion filed to keep certain evidence from being mentioned or brought up during trial

51
Q

Direct examination

A

Cannot ask leading question

52
Q

Cross examination

A

can ask leading questions (question that suggest the answers)

53
Q

opening argument

A

giving the jury a preview; cannot yet argue the case

54
Q

closing statement

A

can argue the case and ask the jury to decide in your favor

55
Q

Competency

A

a witness who can testify truthfully and must have personal knowledge

56
Q

Creditability

A

is the testimony believable; a witness’s creditability can be attacked at anytime

57
Q

Impeach

A

to discredit the creditability of the testimony

58
Q

Expert witness

A

one who has “specialized knowledge” that will assist the tier of fact

59
Q

Lay witness

A

one who is not an expert

60
Q

opinion testimony (expert and lay)

A
  • expert witness can testify their opinion on any or all tier of fact, even if it is an ultimate decision in the case
  • lay witness can testify their opinion limited to 1. rationally based on perception and 2. helpful to a clear understanding of his testimony
61
Q

Privilege

A

not admissible or discoverable

62
Q

Translation

A

must be translated accurately and fair

must be offered 45 days prior to the hearing

63
Q

Translator

A

must be certified

64
Q

Authenticate

A

“it is as you claim it is”; can be authenticated by using witness testimony

65
Q

Self-authenticate

A

documents authenticating itself; such as certified copy

66
Q

Hearsay

A

an out of court statement made by someone other than the witness testifying; that statement of the declarant is offered for the truth of its contents

67
Q

NON-hearsay

A
  1. prior statements of a witness

2. admission by party-opponent (any statements made by party of the litigation)

68
Q

Harmless error

A

an error made at trial that has no impact on the outcome of the case

69
Q

Reverse

A

ruling of appellate court that disagrees with the outcome of a trial and fins that error was made

70
Q

Remand

A

when the appellate court disagrees with the decision of the trial court and sent s the matter back to the trial court for further proceeding

71
Q

Final Judgment

A

Ends the case; this starts the time for an appeal 30 days

72
Q

Mediation

A

a method of ADR process in which a neutral third party helps the participants reach a negotiated settlement of their differences

73
Q

Arbitration

A

a method of ADR process which submits a dispute to a third party for binding or nonbinding resolution after a hearing in which each side presents evidence and argument of counsel

74
Q

Protective Order

A

embarrassing or highly secret information sent to the other side, can request a protective order protecting the evidence in some way

75
Q

Motion to Compel

A

when the other side refuses to hand over or answer certain request
* you must contact the other side first informing them of the issue (good faith result)

76
Q

Leading Questions

A

questions that suggest the answers (cannot use during direct examination)

77
Q

Judicial Notice

A

a court’s acceptance of a fact without requiring a party’s proof (normally common knowledge and there is no dispute; easily verified info)

78
Q

Motion for directed verdict

A

can be seeked before or after a jury’s verdict; stating that the other side failed to meet its burden of proof

79
Q

Mistrial

A

trial ended without a verdict being determined and requiring a new trial be conducted

80
Q

Voir Dire

A

jury selection

81
Q

Rebuttal

A

using a witness to rebut previous witness statements

82
Q

Issue preclusion

A

cannot re-litigate the same issue of law or fact

83
Q

Claim preclusion

A

cannot re-litigate the same underlying event

84
Q

Verdict

A

the decision reached in a trial that concludes the case

85
Q

With/Without Prejudice

A

With - plaintiff is forbidden from filing another lawsuit based on the same grounds
Without - plaintiff can file another lawsuit based on the same grounds

86
Q

Default Judgment

A

plaintiff may seek this when the defendant fails to respond to a complaint in a timely manner

87
Q

Admissible

A

cannot use in trial; however admissible is irrelevant during discovery

88
Q

Refresh Recollection

A

may show a witness documents without entering it into evidence to refresh their memory (however witness cannot read from it)

Civil Litigation (2 decks)

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