Final Flashcards
Jurisdiction
The authority/power of the court to hear a particular kind of the case
Venue
The proper county where you file your action; determined by where the parties live or where the accident took place
Personal Jurisdiction
Jurisdiction over the person
Minimum Contact
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
Contempt
disobeying a court order or disrespecting the court; can result in jail time or fine (must be intentional)
The difference between a civil case and a criminal case
- 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
Complaint? What must it contain?
A pleading that begins a lawsuit; must contain:
- parties
- jurisdiction
- venue
- facts “that show you are entitled to relief”
- laws applied
- relief sought
Motion to Dismiss
File this motion instead of an “answer” due to:
- lack of jurisdiction over subject matter
- lack of jurisdiction of person (personal jurisdiction)
- improper venue
- improper process
- 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)
if a motion to dismiss is denied, how many days does one have to file an answer?
10 days; the 3 day rule does NOT apply
Motion for Summary Judgment
there are no dispute as to the material facts and one party should be awarded as a matter of law
Answer? how many days to answer?
- defendant’s response to a complaint; must admit or deny
- defendant has 30 days to answer unless in jail, 60 days)
Direct Evidence
what you see, hear, witness DIRECTLY
Circumstantial Evidence
drawing a conclusion of what must be true (what the circumstances possibly show or tell)
Federal Court Jurisdiction
- Federal Question
- Diversity AND $75K or more
- state vs. state
- maritime law
- bankruptcy
Preponderance of the Evidence
more likely than not; relevant in most civil cases
Summons (the rules/what it must contain)
- 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
Subpoena (what is it? serving rule? accompanied with what?)
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)
Deposition
Pretrial oral testimony under oath (court reporter present)
Interrogatories
Question presented to the other party to answer under oath (should also send verification)
Request for admissions
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
Request for productions of documents
request sent to the other party to hand over certain documents
Discovery (general rule)
- must turn in anything that can lead to relevant evidence and NOT privilege
- Admissibility is irrelevant (it is still discoverable)
- frequency is unlimited
- “inadvertent disclosure” attorney’s have 14 days to return privileged info. sent by accident
Rules of Civil procedure
rules when litigating a case
Rules of Evidence
Rules when going to or at trial; rules of procedure
Procedural
rules of civil procedure
Substantive
rules of law
compensatory damages
include:
- special damages
- general damages
special damages
damages in which one can put an exact dollar amount on
general damages
damages in which on cannot put an exact dollar amount on; such as pain and suffering
Punitive Damages
awarded as a remedy to punish the defendant
Ex Parte
a conversation with the judge without the other party’s attorney present; can only occur before the complaint has been served
Service; who can serve:
Personally
- process server
- sheriff
- certified mail
Service; how to serve someone through mail (jail):
- must be marked restricted
- must have returned receipt
- if defendant is in jail, must be certified mail to officer or administrator, first class mail marked restricted to inmate, regular mail to spouse
Service; how to serve someone personally:
- may leave at the home
- may leave with someone over 14 years of age and resides at the home
- if defendant is under 14 years of age, parent must be served
- if defendant is a plenary, the limited or temp. guardian and the defendant must be served
Service; Warning order:
- where abouts must be unknown
- an affidavit of “diligent inquiry” must be filed
- must be issued an signed by the clerk
- must be published 2 weeks consecutively in newspaper
- must be mailed to the defendants last known address
- an affidavit of service must be filed
De novo
Latin for “anew,” which means starting over
En Banc
the ENTIRE panel of judges sitting and hearing a case, usually on appeal
In Rem
Jurisdiction over the PROPERTY
in Persona
Jurisdiction over the PERSON
Best evidence Rules
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
Mailbox rule
3 days maybe added to pleadings with less than 14 days of a response; this is included in emails as well
Comparative Fault
an affirmative defense which reduces an award to the plaintiff by the percentage his own negligence contributed to his injuries
Contributory Negligence
an affirmative defense which states there is no recovery where the plaintiff’s negligence contributed to his injuries
Assumption of the Risk
an affirmative defense which states plaintiff knew the risks involved with a particular activity and voluntarily proceeded with that activity
Counterclaim
filing a claim against the defendant
Affirmative Defense
legal theories asserted by the defendant which bar the plaintiff’s claim
Subsequent Remedial Measures
if you correct the wrong; is not admissible
Character Evidence
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
Relevant Evidence
“tendency to make existence of any fact more probable than without”
Motion in Limine
a motion filed to keep certain evidence from being mentioned or brought up during trial
Direct examination
Cannot ask leading question
Cross examination
can ask leading questions (question that suggest the answers)
opening argument
giving the jury a preview; cannot yet argue the case
closing statement
can argue the case and ask the jury to decide in your favor
Competency
a witness who can testify truthfully and must have personal knowledge
Creditability
is the testimony believable; a witness’s creditability can be attacked at anytime
Impeach
to discredit the creditability of the testimony
Expert witness
one who has “specialized knowledge” that will assist the tier of fact
Lay witness
one who is not an expert
opinion testimony (expert and lay)
- 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
Privilege
not admissible or discoverable
Translation
must be translated accurately and fair
must be offered 45 days prior to the hearing
Translator
must be certified
Authenticate
“it is as you claim it is”; can be authenticated by using witness testimony
Self-authenticate
documents authenticating itself; such as certified copy
Hearsay
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
NON-hearsay
- prior statements of a witness
2. admission by party-opponent (any statements made by party of the litigation)
Harmless error
an error made at trial that has no impact on the outcome of the case
Reverse
ruling of appellate court that disagrees with the outcome of a trial and fins that error was made
Remand
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
Final Judgment
Ends the case; this starts the time for an appeal 30 days
Mediation
a method of ADR process in which a neutral third party helps the participants reach a negotiated settlement of their differences
Arbitration
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
Protective Order
embarrassing or highly secret information sent to the other side, can request a protective order protecting the evidence in some way
Motion to Compel
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)
Leading Questions
questions that suggest the answers (cannot use during direct examination)
Judicial Notice
a court’s acceptance of a fact without requiring a party’s proof (normally common knowledge and there is no dispute; easily verified info)
Motion for directed verdict
can be seeked before or after a jury’s verdict; stating that the other side failed to meet its burden of proof
Mistrial
trial ended without a verdict being determined and requiring a new trial be conducted
Voir Dire
jury selection
Rebuttal
using a witness to rebut previous witness statements
Issue preclusion
cannot re-litigate the same issue of law or fact
Claim preclusion
cannot re-litigate the same underlying event
Verdict
the decision reached in a trial that concludes the case
With/Without Prejudice
With - plaintiff is forbidden from filing another lawsuit based on the same grounds
Without - plaintiff can file another lawsuit based on the same grounds
Default Judgment
plaintiff may seek this when the defendant fails to respond to a complaint in a timely manner
Admissible
cannot use in trial; however admissible is irrelevant during discovery
Refresh Recollection
may show a witness documents without entering it into evidence to refresh their memory (however witness cannot read from it)
