First Test Flashcards
1
Q
Much of modern US law is based on what?
A
English Law
2
Q
Common law is related to what?
A
Principles of precedent and stare decisis
3
Q
A statute is passed by who?
A
A legislative body (normally congress)
4
Q
Substantive law
A
states the rights and duties of individuals
5
Q
The law of equity deals with what?
A
Fairness
6
Q
What establishes the process that people who bring or defend a lawsuit must follow?
A
Rules of procedure
7
Q
What type of case involves the state bringing an action against an individual to determine if he has violated a law?
A
Criminal case
8
Q
What type of case involves the plaintiff bringing a lawsuit against the defendant, normally for money?
A
Civil Case
9
Q
T or F: States can make laws that conflict with federal laws as long as it has enough support behind it
A
False
10
Q
Powers of congress come from which part of the Constitution?
A
Article 1 Section 8
11
Q
Name 7 things Congress can do
A
- Collect taxes
- Regulate commerce between foreign nations
- Establish rules for naturalization and bankruptcy
- Establish post offices
- Declare war
- Raise and support the military
- Make laws necessary to carry out the powers granted
12
Q
Under the Proper and Necessary Clause, the powers of congress are what?
A
Extensive
13
Q
The powers of state governments are limited by what?
A
The doctrine of preemption
14
Q
The doctrine of preemption makes the federal government the exclusive in what areas?
A
- Entering treaties
- Coining money
- Passing ex post facto laws
15
Q
What areas are commonly regulated by states?
A
Criminal conduct, contracts, torts, business corporations
16
Q
The power of the government to regulate is called what?
A
Jurisdiction
17
Q
If power belongs solely to one level o government, it is called what?
A
Exclusive Jurisdiction
18
Q
Article VI (6) of the Constitution is known as what?
A
The Supremacy Clause
19
Q
What are the supreme laws of the land?
A
The Constitution and anything passed by Congress
20
Q
In federal cases, a criminal’s rights are contained in which amendments?
A
4th, 5th, 6th, and 8th
21
Q
In state cases, a criminal’s rights are contained in which amendments?
A
14th
22
Q
What set the minimum standard of due process?
A
The Constitution
23
Q
Primary function of the executive branch?
A
Execution and enforcement of the laws
24
Q
Primary function of the legislative branch?
A
Create laws
25
Primary function of the judicial branch?
Apply and interpret laws
26
What is a Cause of Action?
The basis upon which a lawsuit can be brought
27
Before a court can resolve a dispute, the court must have what?
Basic authority (jurisdiction) to hear the case
28
What is original jurisdiction?
the power to first hear a case
29
What is Subject matter jurisdiction?
Determining whether a case belongs to a particular court
30
True of false: Federal courts have limited subject matter jurisdiction
True (they can only hear cases that involve federal questions)
31
What is federal question jurisdiction?
The power for a federal court to hear a case when the US is a party involved
32
When can federal question jurisdiction be based on diversity of citizenship?
When the plaintiff and the defendant are citizens of different states and the amount in controversy EXCEEDS $75,000
33
What is in personam?
The court having jurisdiction over the defendant
34
What is in rem jurisdiction?
The court having jurisdiction over property
35
What 2 tests does the exercise of personal jurisdiction require?
Fairness and Due Process
36
What are long-arm statutes?
State laws about non-residents being sued in their state
37
What makes federal law enforceable in state courts?
The Supremacy Clause
38
What two situations give the federal courts power to decide state issues?
- Plaintiff claims difference between federal and state laws
| - The federal court claims supplemental jurisdiction
39
What is supplemental jurisdiction?
The power of the federal court to hear an issue that belongs in state court, assuming it deals with a federal question
40
What is general subject matter jurisdiction?
The ability for state courts to hear any case unless there is a specific law preventing it (EX; Traffic court hearing tax case)
41
A civil action may originate where?
- The judicial district where the defendant resides
| - Where the cause of action arose
42
True or False: Lack of proper venue negates the verdict of the court
False
43
True or False: If a defendant does not object to improper venue, he waives the right to object to the judgement
True
44
What is removal?
When the plaintiff chooses to sue in a state court instead of a federal court, the defendant has the action to ask the nearest federal court to take the case
45
Before both parties appear in court, they must file what?
Pleadings
46
What is "the complaint" pleading?
The formal basis of the lawsuit
47
What is notice pleading?
The requirement of the plaintiff to put the defendant on notice as to why he is being used
48
What is code pleading?
A requirement in some states that make the plaintiff include factual allegation in the complaint that satisfy each element of the cause of action
49
What is a counter-claim?
A claim that the defendant asserts against the plaintiff
50
What is a cross-claim?
A claim that one defendant has over another defendant (EX: crashing mom's car)
51
What is a third party action (impleader)?
A claim that a defendant has against a new party
52
A complaint consists of what various parts?
- The caption
- The allegations
- The prayer
- The date, address, telephone number, and signature of plaintiff's attorney
53
What is a summons?
A form issued by the clerk court explaining to the defendant why he has been sued. He has a limited amount of time to appear or a default will be taken against him
54
What is the service of process?
The process of giving the defendant a copy of the plaintiff's pleadings
55
What does it mean to serve?
To deliver documents to another party in accordance with legal requirements
56
What does personal service mean?
The documents are delivered to the defendant personally
57
What does substituted service mean?
Leaving the documents at the defendant's home/workplace with someone who appears over 18
58
What is publication and what does it require?
Publishing the summons and other documents instead of them being given privately to the plaintiff. It requires a court order before publication
59
What is a waiver?
An informal service on the defendant with the defendant returning a document that states he waives formal service
60
True or false: Plaintiffs can serve documents themselves
False
61
Who can serve papers?
Any person over 18 who is not a party to the lawsuit
62
What is proof of service?
A document filled out by the person who served the papers
63
What is the answer?
A pleading in which the defendant denies some or all of the allegations of the complaint
64
If the defendant decides to contest a lawsuit, what does he file?
An answer
65
What are affirmative defenses?
Where the defendant may admit the allegations are true, but there are reasons why the plaintiff should not win
66
What are the 2 types of answers?
General Denial- a simple pleading that denies each allegation in the complaint
Specific Denial- Various allegations of the complaint are addressed by number
67
To challenge a complaint based on a legal claim, a party files what?
A motion
68
What are the common motions used to attack complaints?
Motions to Dismiss
Motions for judgement on the pleadings
Motions for a more definitive statement
69
What is a demurrer?
Something that indicates that the complaint fails to state a cause or action is legally insufficient
70
When deciding pretrial motions, which party is the moving party?
The party making the motion; the other side is the responding party
71
What is discovery?
Parties doing more research about the specifics of claims made before the trial
72
What are interrogatories?
Means of discovery; written questions sent by one party to another that must be answered under oath
73
What are requests for admission?
Means of discovery; written requests by one party to another to admit or deny the truth of a statement/genuineness of a document
74
What are requests to produce or inspect?
Means of discovery; allows one side to see and copy documents in possession of others
75
What are depositions?
Means of discovery; oral proceeding in which one side personally questions another party or witness in a case
76
Which is the only means of discovery that can be used with people who are not parties to the lawsuit?
Depositions
77
What are "defense medicals?"
Means of discovery; requests for medical examinations
78
What are disclosures?
Means of discovery; requires parties to disclose certain basic info to one another (ID people called to be expert witnesses)
79
What is a status conference?
A pre-trial conference which determines if a case is ready for trial. If it is, it is assigned a trial date
80
What is a settlement conference?
A pre-trial conference where the attorneys meet with the judge to try and reach a settlement
81
What does it mean for parties enter a compromise and release agreement?
The agreement ends the case, which is then dismissed by the court with prejudice so it cannot be refiled
82
True or false: in a criminal trial, the defendant may move to suppress evidence
True
83
What is summary judgement?
A request for the judge to decide a case solely on legal issues. Can only be filed when facts are not in dispute. If it is granted, there is no trial
84
What is a legal brief?
A written document that contains a summary of the facts, issues, rules, legal analysis, and a comparison with the facts of a client
85
True or false: Selected jurors are not allowed to be questioned by attorneys before the trial
False
86
What is voir dire?
The process of questioning jurors
87
What are peremptory challenges?
The limited number of challenges each side has to excuse individuals without stating a reason
88
Who gives their opening statement first?
The plaintiff
89
Who presents their evidence first?
The plaintiff
90
What is direct examination?
When a witness is called to the stand and questioned by the plaintiff's attorney
91
After direct examination, the defendant's attorney may cross-examine the witness. What is this followed by and how long may it go on?
More direct examination, more cross-examination; until all questions are exhausted
92
An attorney may call witnesses until he proves prima facie. What is this?
When an attorney proves the essential elements of the party's claim
93
Once the plaintiff's attorney rests his case, the defendant's attorney may move for directed verdict. What is this?
A statement saying that the plaintiff has failed to prove his case
94
If the motion for directed verdict is granted, the case is withdrawn from the jury and the judge decides. What happens is the motion is denied?
He presents his case and then calls witnesses for cross-examination, redirect, and recross
95
After the defendant rests, the plaintiff may move for directed verdict. If the motion is denied, what may the plaintiff offer?
Rebuttal evidence
96
The defendant can offer his own rebuttal evidence, called what?
Rejoinder
97
At the end of all evidence, each party may move for a directed verdict. If it is denied, the parties proceed with what?
Closing arguments
98
After closing arguments, the judge charges the jury. What does this mean?
He offers them instructions that explain applicable law along with the standards of proof that the jurors must use
99
What does the jury do after they are charged?
Go to the jury room to deliberate and discuss the evidence heard
100
What is a general verdict?
A jury indication on whether they side with the plaintiff or the defendant
101
What is a special verdict?
When the judge submits specific written questions to the jury on each factual issue and asks them to respond in writing
102
After the jury has rendered its verdict, the unsuccessful party may request what?
Judgement Notwithstanding the Verdict- asking the court to disregard the jury verdict in favor of the losing party
103
A dissatisfied party may also move for what?
A new trial
104
True or false: After the jury's verdict, the court enters judgement. Judgement does not have the government behind it
False; it has complete government backing
105
What happens if a plaintiff wins money damages and a defendant refuses to pay?
The court can seize the defendant's property and/or jail them
