Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Florida parts edited > Florida Civil Procedure -- Made by Others > Flashcards

Florida Civil Procedure -- Made by Others Flashcards

1
Q

What are the 4 types of cases the Florida Supreme Court is required to hear appeals from? (Mandatory Appellate Review)

A
  1. District court decisions declaring a state statute or provision unconstitutional, 2. Judgments on bonds and certificates, 3. Review of statewide agency actions relating to rate or services of utilities, and 4. Death penalty decisions
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What discretionary appellate cases may the Florida Supreme Court review?

A
  1. Other district court of appeals decisions, 2. Trial court orders certified to be of great public importance, and 3. Questions of law certified by a federal court
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are the different types of courts in Florida?

A
  1. Supreme Court of Florida 2.District Court of Appeals 3. Circuit Courts 4. County Courts
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

In what type of cases do Circuit Courts and County Courts have concurrent jurisdiction?

(This card may be incorrect.)

A
  1. Equity cases and landlord cases up to $15,000 2. Cases involving the right to possess real property in excess of $15,000 (e.g. quite title cases)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Without the long-arm statute, personal jurisdiction is generally established over:

A
  1. Florida residents who are domiciled in the state 2. Physical presence or consents to make a general appearance 3. Corporations who are incorporated or have their principal place of business in Florida 4. Those who engage in continuous and systematic activities in Florida
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is the two-prong test to determine whether a non-resident is subject to jurisdiction in Florida?

A
  1. Long arm statute: minimum contacts (such as breaching a contract, committing a tort, conducting business, etc)
  2. Due process: cannot offend traditional notions of fair play and substantial justice
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Timing deadlines for settlement offers to P vs. D

A
  1. Offers to D must be served at least 90 days after service of process 2. Offers to P must be served at least 90 days after action commenced
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Requirements of the contents of settlement offers

A
  1. Must be in writing 2. Must identify applicable Florida law 3.Must include names of parties, 4. claims being resolved, 5. any relevant conditions, 6. total amount and non-monetary terms, 7. amount of punitive damages (if any) 8. attorney’s fees, and 9. certificate of service.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

How many days notice must an acceptance to a settlement offer be made?

A

30 days

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What party is liable for the legal costs and attorney’s fees from a settlement offer?

A

If D makes good faith offer but P rejects, then D is entitled to reasonable costs if judgment is no liability (wins) or at least 25% less than the offer. If P makes good faith offer but D rejects, then P is entitled to reasonable costs if judgement is at least 25% greater than the offer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is a deposition?

A

A deposition is a discovery device by which a party may require another person–either a party or a non-party to answer questions under oath.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is a compulsory counterclaim?

A

A compulsory counterclaim is a claim against an opposing party that arises out of the same transaction or occurrence that does not require additional parties outside the court’s jurisdiction.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

A claim that would otherwise be considered a compulsory claim, is not if: (2 instances)

A
  1. If, at the time the claim is made, it is already in litigation elsewhere 2. the opposing party is in rem and the D is not asserting any other counterclaim
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Mandatory Jdx of FLSC (4 types of cases)

A

FLSC has mandatory appellate jdx over: 1. capital cases - final judgments of trial courts imposing the death penalty 2. constitutional questions - decisions of district courts of appeal declaring invalid a state statute or provision of the state constitution 3. bond validations - final judgments entered in the proceedings for the validation of binds or certificates of indebtedness, AND 4. public utility cases - actions of statewide agencies relating to rates or services of utility providing electric, gas, or telephone services.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

FLSC has discretion to review decisions of district courts of appeal that:

A
  1. declare a statute invalid 2. construe a provision of the state or federal constitution 3. affect a class of constitutional or state officers 4. conflict with the decision of another DCOA or of the FLSC on the same question of law 5. pass upon a question certified by the DC to be of great public importance, OR 6. are certified by the DCOA to be in direct conflict with a decision of another DCOA
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

FLSC has discretion to review order of trial courts certified by the DCOA to require immediate resolution by FLSC and to:

A
  1. be of great public importance OR 2. have a great effect on the proper administration of justice through the state
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

FLSC ALSO has discretion to review:

A

questions of law certified by SCOTUS or a US COA that are determinative of the cause for for which there is NO controlling precedent by FLSC

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

FLSC has original jdx over:

A
  1. writs of prohibition to other courts, directing them to cease an act 2. writs of mandamus 3. writs of habeas corpus 4. writs of quo warranto to state officers and state agencies 5. all writs necessary to complete exercise of its jdx
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

How many districts in FL?

A

The Florida court system is comprised of the Supreme Court, 5 district courts of appeal, 20 circuit courts and 67 county courts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

District Courts of Appeal may hear:

A
  1. all matters that are not directly appealable to FLSC or to a circuit court 2. administrative decisions 3. writs 4. county court orders (that are FINAL)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Circuit Courts

A

20 circuits General jdx, can hear all kinds of cases

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

$15k threshold

A

Needed to get into CIRCUIT court. Below, stay in county court Need MORE than $15k. So $15k and a penny.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Can you aggregate claims to meet the $15k requirement?

A

NOT IF THEY ARE UNRELATED

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

When can you combine claims to confer jdx in the circuit court?

A
  1. if all the claims are RELATED - coming out of the same transaction or occurrence 2. if at least ONE of the actions is over $15, can add other claims 3. A counterclaim over $15k allows a case to go to circuit court
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Can the parties waive SMJ?

A

Never

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

When can you challenge SMJ?

A

Any time. Just like federal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

When can the state exercise PJ over the ∆?

A

TEST: 1. if jdx is authorized by Florida law AND 2. the Florida law is constitutional

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Jdx authorized by Florida law:

A
  1. residence or business location 2. long-arm jdx
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Residence of Business location (for PJ) ∆s will be subject to FL jdx by reason of:

A
  1. residence in FL 2. Consent 3. Corporate incorporate or registration in FL
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Long-Arm jdx (PJ)

A

PJ over a NONRESIDENT, if the ∆ has the contacts with the state described in the statute. Includes Specific jdx and General jdx

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Specific Jdx (PJ - long-arm)

A

Exists when the ∆ establishes contacts with the state AND the lawsuit arises from those contacts Here, can only have PJ arising from those specific contacts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

General jdx (PJ - long-arm)

A

Arises when the ∆ engages in continuous and systematic business in FL. Has to be HUGE amounts of business, and is pretty rare. Here, ANY claim, regardless of whether it arose from the ∆’s business in the state.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

To establish jdx, a party need only plead:

A

that the ∆ committed the actions set forth in the statute

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Service of process begins with:

A

the issuance of a summons by the Clerk

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Subpoenas are for non-parties True of false?

A

TRUE.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Who can make service?

A
  1. A sheriff 2. Someone appointed by the court, so long as the person is over 18 (18 and one second old, doesn’t have to be 19), who is not otherwise interested in the lawsuit.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Can a π personally serve the ∆?

A

NOPE. Person has to be UNINTERESTED

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Methods of service

A

Personal service Substituted Service Constructive service (service by publication) Service by mail

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Personal service

A

Deliver service to the person. The person can be anywhere

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Substituted service

A

Where you can’t find the person, so you leave service at: 1. their place of residence or employment, 2. leave it with someone there who is at LEAST 15 yrs old, AND 3. you tell them what you’re giving them. You have to try to actually serve the party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Constructive service (service by publication)

A

Can be used when ∆ can’t be found. Have to make sworn statement that you made a diligent search and inquiry.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Service by mail

A

A party may be served by mail upon their CONSENT. In their interest to do so - bc will get 60 days to respond to the complaint, instead of 20

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Timing of service

A

Must be made within 120 days of filing the complaint. Court can extend time upon good cause shown

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Service on Incompetents

A

When an incompetent is a ∆ in a case, service must be made on their legal guardian, if they have a legal guardian.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

In FL, may a party make a “special appearance” to challenge PJ? (an appearance made for a specific purpose, also called a limited appearance)

A

NOOOO. If you try to make a special appearance to challenge the court’s PJ over you instead of filing a responsive pleading, congratulations, you have just waived PJ.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

When can you transfer venue?

A

ONLY if venue is initially proper. And if: 1. a party cannot receive a fair trial in the current court 2. for the convenience of the parties or witnesses 3. OR in the interests of justice objection based on forum non conveniens is the same criteria.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

Can you consent to venue?

A

YES. Venue may be agreed upon or waived by K

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

Where is venue proper - actions against FOREIGN corporations

A

Should be sued where the corporation has an agent or other representative

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

Where is venue proper - actions against DOMESTIC corporations

A

Where the corporation has, or usually keep, an office (or store)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

Where is venue proper if there are multiple causes of action?

A

Venue is proper in any county where any cause of action arose

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

Where is venue proper if there are multiple ∆s?

A

Venue is proper in a county where ANY ∆ resides

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

Where is venue proper - actions against ∆s who are Florida residents

A
  1. where the ∆ resides 2. where the cause of action accrued 3. OR where the property is located (if a suit about property)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

Venue

A

refers to the physical location of a lawsuit WITHIN Florida

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

Where is venue proper for ∆’s who are NOT residents of FL?

A
  1. where the cause of action accrued 2. where SERVICE is made 3. where the property is located (if property is involved)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

For actions involving property, venue proper where?

A

ONLY IN THE COUNTY WHERE THE PROPERTY SITS.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

Exceptions to the “short and plain statement” rule Special pleadings

A
  1. fraud or mistake 2. conditions precedent (the DENIAL must be made specifically, but may be alleged generally) 3. incapacity 4. special damages (like pain and suffering) 5. supporting document (must attach the doc) Also - statements as to the time and place of an action
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

A complaint must include:

A
  1. a short plain statement of the grounds for jdx (PJ and SMJ) 2. short plain statement of the ultimate facts, showing the pleader is entitled to relief 3. demand for judgment and relief sought
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
58
Q

An answer must:

A

either admit, deny, or respond without knowledge to the allegations of the pleading to which it responds

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
59
Q

If you state in an answer that you’re without knowledge:

A

it’s an implied denial

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
60
Q

If you fail to deny or allege insufficient knowledge in your answer:

A

it’s an admission. Except to damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
61
Q

Defenses alleged in an answer

A

Have to include affirmative defenses in the answer, otherwise they are waived. Must be stated plainly and concisely, and must meet the substance of the allegations and denials.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
62
Q

Timing of the answer

A

Have to file answer within 20 days of receiving service of process. UNLESS - served by mail, then you get 60 days.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
63
Q

Compulsory counterclaim

A

one that arises out of the same T/O as one of the π’s claims. It MUST be brought, or else you forfeit it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
64
Q

Permissive counterclaim

A

one that does NOT arise out of the same T/O as one of the π’s claims. Do NOT have to bring it to avoid forfeiture

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
65
Q

In Florida, all cross-claims are:

A

PERMISSIVE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
66
Q

Reply

A

A π’s response to what the ∆ has filed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
67
Q

Are replies required?

A

NO - not unless the answer or third-party answer contains an affirmative defense that the π seeks to avoid.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
68
Q

Timing of a reply

A

20 days of the ∆’s filing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
69
Q

The filing of a motion to dismiss suspends the time to file an answer until the resolution of the motion. T or F?

A

TRUE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
70
Q

Standard of review for a motion to dismiss:

A

Must be denied UNLESS it appears beyond doubt that the π can prove no set of facts in support of his claim which would entitle him to relief

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
71
Q

Upon mtn to dismiss for failure to state a cause of action, the court MUST:

A

Construe the complaint in the light most favorable to the π and assume everything the π says is true

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
72
Q

If mtn to dismiss is granted, the court will usually allow the π to:

A

amend the complaint, either by filing a new and different complaint, or by simply tacking on a modified claim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
73
Q

Defenses waived if not raised in the Answer, or Pre-answer motion:

A

PJ Improper venue bad service of process bad process

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
74
Q

Bad process

A

when the process itself is insufficient (the rules are bad, violate Due Process)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
75
Q

Discretionary defenses, that you don’t lose if you fail to plead them at the outset

A

Failure to state a cause of action Failure to join an indispensable party AND An objection of failure to state a legal defense

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
76
Q

Mtn for Judgment on the Pleadings

A

It’s made after the pleadings and all the mtns related to the pleadings are CLOSED, but within such time not to delay the trial. Claims that based solely on the pleadings, the party is entitled to judgment as a matter of law But like a mtn to dismiss for failure to state a claim

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
77
Q

Motion for a more definite statement

A

A way ∆ can respond to the pleading, if it’s so vague and ambiguous that the ∆ can’t even respond to it

78
Q

Mtn to Strike

A

Can move to strike from any pleading any redundant, scandalous, immaterial, or impertinent material Does NOT toll the time to answer

79
Q

Can you make a verified motion to strike a sham pleading any time before the cause is set for trial?

A

YEP

80
Q

Third-Party Complaint (Impleader)

A

Allows a ∆ to bring another ∆ into the lawsuit, but ONLY IF the new ∆ is liable for some or all of the original ∆’s liability (get involved, share the load) Cause of Action must be for: 1. contribution or indemnity Contribution - between joint tortfeasors; Indemnity - insurers

81
Q

A third party ∆ may assert any defense it has against the original ∆. T or F

A

TRUE Third-party ∆ may also assert claims against the original π, and gets the benefit of any defenses the original ∆ asserted

82
Q

Intervention

A

Where a non-party enters on his/her own accord

83
Q

In order to intervene, the non-party must be in a position that:

A

they will gain or lose by the effect of judgment. The suit will have to impact them in some way

84
Q

An intervenor has the status of a party, BUT:

A

They are subordinate to the main action, and he takes the action as he finds it

85
Q

Interpleader

A

Someone who’s stuck in the middle Where a stakeholder, stuck between two competing interests, can have the court determine the stakeholder’s obligation. Like for life insurance policies.

86
Q

The order of Interpleader will require the stakeholder to:

A

Deposit the fund or property with the court, and the stakeholder will be dismissed as a party AND get reasonable attorney’s fees.

87
Q

How many times can you amend a pleading?

A

ONCE as a matter of course (before a responsive pleading is filed or the 20 day mark). If you want to amend AGAIN (or outside the time limit) then you need to petition the court to do so

88
Q

Timing for amending a pleading

A

Before a responsive pleading is filed. OR if no responsive pleading is required - within 2 days of service of the pleading.

89
Q

Do you have to serve every paper filed in an action on every party to the action?

A

YES. Unless the court orders otherwise

90
Q

No service need be made on parties against whom a default has been entered, EXCEPT:

A
  1. an action for a final hearing 2. a copy of the final judgment 3. an amended complaint
91
Q

If a pleading has been amended, how long do you have to respond to it?

A

10 days

92
Q

How to count timing for things?

A

Start counting the day AFTER the trigger date. If served on March 1, and have 20 days to file answer, March 2 would be day one of twenty.

93
Q

If the amount of time is 7 days or more:

A

You count Saturdays, Sundays, and holidays. If it lands on one of these^^ then time period will end on next business day

94
Q

If the amount of time is less than 7 days (6 or less)

A

Then you do NOT count Saturdays, Sundays, or holidays

95
Q

Do allegations of malice need to be stated BEYOND a short and plain statement of the facts?

A

NOPE. Don’t need to go into super detail with malice.

96
Q

When considering a motion to dismiss, the court will look at:

A

Just the pleadings

97
Q

Minors and incompetents must sue and be sued:

A

only through a guardian or a fiduciary

98
Q

If the minor or incompetent has no guardian:

A

May sue through a next of kin, OR a guardian ad litem

99
Q

Does FL have a liberal party-joinder policy?

A

YES. A party may be added if the presence of the party is necessary or proper to evaluate or determine the COA

100
Q

When parties or actions are misjoined, is the case dismissed?

A

NOPE - either the claims are severed, or one of the wrongly-joined parties is droped

101
Q

Compulsory joinder for:

A

Indispensable parties. HAVE to join them

102
Q

An indispensable party is:

A

A person who has an interest in the outcome of the litigation, and unless joined in the litigation, will have his/her interests compromised

103
Q

If an indispensable party is NOT joined:

A

the suit may be dismissed

104
Q

What to look for to determine if you have a class?

A

Numerosity Commonality Typicality Adequacy

105
Q

Numerosity

A

need lots of people for a class

106
Q

Commonality

A

lots of people needs to be similarly situated

107
Q

Typicality

A

claims of the leader of the class need to be typical of the claims of the entire class

108
Q

Adequacy

A

the leader of the class needs to be a smart, and upstanding person who is not going to tank the class (bc they act on behalf of the entire class)

109
Q

Once a class has been certified:

A

the case may NOT be dismissed, withdrawn, or compromised without court approval

110
Q

Can you sue a gang?

A

NO. They’re unincorporated, therefore cannot be sued. They also don’t fall within the exception to unincorporated associations that CAN be sued.

111
Q

Unincorporated associations that CAN be sued

A
  1. labor unions 2. fraternal benefit societies that issue insurance benefits 3. condo and mobile home associations Typically, you can’t sue an unincorporated association (or be sued as an unincorporated association)
112
Q

Scope of discovery

A

any non-privileged matter deemed to be relevant to the subject matter of the case

113
Q

Do matters sought in discovery need to be admissible?

A

No, as long as they will likely lead to admissible evidence

114
Q

Work product

A

documents, and other tangible things, prepared in anticipated of litigation

115
Q

Factual work product

A

Documents and other tangible things relating factual information pertaining to the client’s case. Generally, NOT discoverable, but exceptions apply.

116
Q

Opinion work product

A

Attorney’s mental impressions relating to a client’s case. NEVER discoverable

117
Q

Factual work product may only be discovered upon a showing of:

A
  1. substantial need (like a smoking gun) 2. that you can’t get without undue hardship. Need BOTH
118
Q

Work product that a party intends to use at trial for impeachment purposes or otherwise:

A

NOT subject to the work-product protection

119
Q

Can you depose anyone?

A

Yeah - any party may depose any PERSON (could be non-party) by giving all parties notice of the time and place and opportunity to attend

120
Q

Do you have to tell people if the deposition will be videotaped?

A

Yeah, it has to be in the notice of depo

121
Q

Notice of deposition

A

Reasonable notice of a depo MUST be given to all parties

122
Q

Notice requirement for depo - parties

A

Only need notice - don’t have to file something with the court

123
Q

Notice requirement for depo - non-parties

A

To compel a non-party’s presence at a depo, need to be served with a subpoena

124
Q

Subpoena duces tecum

A

A request for documents for inspection or copying. A non-party is allowed 30 days to assemble the docs

125
Q

For an oral deposition - A witness may review the transcript and modify the form or substance of their testimony. True or False?

A

TRUE. Like, if the stenographer got it wrong.

126
Q

Objections that MUST be raised at a depo, or they’re waived

A

Defects in the notice of the depo Defects in the qualifications of the court reporter Any error or irregularity in the manner of taking the depo

127
Q

Depositions immediately after commencement

A

The π must obtain leave of court to take a depo within 30 days of service of process of the initial pleading on a party

128
Q

Depositions prior to commencement

A

A depo MAY be taken before an action is filed if the court is satisfied that the testimony may prevent a failure or delay of justice (like the deponent is close to death, and they were the only witness to the incident)

129
Q

A deponent may only be properly advised NOT to answer a question in these three circumstances:

A
  1. to preserve a privilege 2. the scope of the deposition (if it’s too broad, not relevant) 3. a witness may move to terminate or limit the depo if it’s being conducted in bad faith
130
Q

Depo transcripts can be used for 3 specific reasons:

A
  1. to proffer testimony 2. to impeach 3. to refresh memory
131
Q

A depo transcript can be used as substantive evidence in a trial IF:

A
  1. the deponent was an adverse party or expert, OR 2. the deponent is unavailable bc they are: dead or ill, or old or can’t travel, more than 100 miles from courthouse, they’re outside of FL
132
Q

If only part of a depo is offered by a party, any adverse party may compel:

A

the introduction of any other part of the depo that should be considered in fairness

133
Q

Interrogatories are written questions served by:

A

ONE PARTY TO ANOTHER. Can be served on non-adverse parties (someone on the same side of the v as you are), but they are JUST FOR PARTIES.

134
Q

Interrogatories are limited to:

A

30 questions, including all subparts. Can get more for good cause

135
Q

Interrogatories - objections

A

Have to state objections in response, otherwise will be waived.

136
Q

In lieu of providing an answer to an interrogatory, the answering party may:

A

produce documents containing the answers

137
Q

The party producing documents may:

A
  1. produce them as they are kept in the regular course of business, OR 2. organize them to correspond with the request
138
Q

Four ways you get Discovery

A

Depositions Interrogatories Requests for Production Requests for Admissions

139
Q

Possible responses to a request for admissions:

A

Admit, Deny, Explain why you can’t admit or deny Object with the basis of the objection

140
Q

Requests for Admission limited to:

A

30 questions (requests) including all subparts

141
Q

If a request for admission is not responded to?

A

It’s deemed “admitted” at trial

142
Q

A party may request that any other party submit to an examination by a qualified expert when:

A

the physical or mental condition of the party is in controvery

143
Q

Do examinations of persons require leave of court?

A

Mental examinations DO require leave of court. Physical examinations do NOT.

144
Q

Before filing a motion to compel discovery, there’s a duty to:

A

attempt, in good faith, to resolve the dispute

145
Q

Mtn to Compel Discovery is appropriate when:

A

A party fils to provide discovery, OR when the party does respond to requests, but the answers are evasive or incomplete.

146
Q

Can you compel a party to bring documents to a deposition?

A

YES. Do it through a request for production

147
Q

An action may be dismissed by the π WITHOUT order of the court before trial by:

A

serving a notice of dismissal

148
Q

An action may be dismissed by the π WITHOUT order of the court during trial by:

A

stating on the record (that you’re dismissing)

149
Q

An action may be dismissed by the π WITHOUT order of the court at any time by:

A

filing a stipulation of dismissal.

150
Q

An action may NOT be dismissed without order of the court:

A
  1. once a hearing for SJ has begun 2. if a counterclaim is pending against the party wishing to dismiss 3. if the action has been submitted to the fact-finder (judge or jury) for final determination
151
Q

A voluntary dismissal is deemed to be:

A

a dismissal WITHOUT prejudice. Unless it’s not the first time dismissing. Only get ONE dismissal without prejudice.

152
Q

Involuntary dismissal - a party may move for dismissal of an action or claim due to:

A
  1. Failure to prosecute 2. Failure to comply
153
Q

Requirement - Failure to prosecute

A

No record of activity for 10 months

154
Q

Requirement - Failure to comply

A

Court tells you to do something, and you don’t do it.

155
Q

An involuntary dismissal is deemed to be:

A

WITH prejudice

156
Q

If NO documents have been filed in a case, who may enter default judgment?

A

The clerk

157
Q

If documents HAVE been filed in a case, and you file for default judgment:

A

The judge must respond to a motion for default

158
Q

Mtn to Set Aside Default Judgment - when successful?

A

A DJ may be set aside if the ∆ shows good cause for the default, AND a meritorious defense.

159
Q

Standard for Summary Judgment

A

Motion for SJ will be granted where: 1. No genuine issue of material fact 2. AND the moving party is entitled to judgment as a matter of law

160
Q

In evaluating a Mtn for SJ, the court will look at:

A
  1. The mtn itself 2. supporting materials 3. Affidavits 4. Pleadings (looking at whether there’s a genuine issue material facts - have to look at the pleadings to determine what the facts are) 5. other SJ evidence, such as depos
161
Q

Affidavits, in a Mtn for SJ

A

Must be based on personal knowledge, AND a party cannot file an affidavit that changes depo testimony.

162
Q

Timing for Mtn for SJ - service

A

Must be served at least 20 days before the hearing on it.

163
Q

Notice for Trial

A

Any party may serve notice that an action is ready for trial within 20 days after service of the LAST pelading, or any time after motions directed to the pleadings have been decided.

164
Q

Demand for a Trial by Jury must be made:

A
  1. in writing 2. no later than 10 days after service of the last pleading directed to such issue
165
Q

Once demanded, a jury trial may NOT be waived unless:

A

there is consent from the other party

166
Q

For cause challenges

A

any party may remove a juror for cause upon a motion to the court

167
Q

Preemptory challenges

A

You get 3. Without cause. But can’t be based on discrimination (race or gender)

168
Q

Are jurors allowed to take notes during the trial?

A

Yep. And they can submit questions to the court for witnesses.

169
Q

Mtn for a Directed Verdict - timing

A

Made at the end of the π’s case, but before the ∆’s case

170
Q

Mtn for a Directed Verdict - standard

A

Based on π’s evidence, could a reasonable jury find in π’s favor? If not, then no point to continue the trial, we’ll end the whole thing now. Court will assume all of π’s witnesses are telling the truth

171
Q

Mtn to Set aside the Verdict and Mtn for Judgment in Accordance with Mtn for Directed Verdict - condition? and timing?

A

Post-trial motion Same thing, basically. To make this motion, you HAVE to had made a Mtn for Directed Verdict or similar motion at trial. If you didn’t can’t make this motion after trial. Timing - within 15 days of the return of the verdict OR discharge of the jury, if no verdict was reached

172
Q

Mtn for New Trial or Rehearing

A

May be granted to all or any parties on all or part of the issues litigated at trial. Timing - within 15 days of verdict, or discharge of the jury if no verdict. Post-trial motion

173
Q

Mtn for Relief from Judgment

A

An attempt to invoke the court’s jdx after the case is OVER. A court may set aside judgment for: 1. clerical mistakes (can be made sua sponte) 2. other mistakes, and newly discovered evidence 3. judgment that is void, satisfied, released, or discharged

174
Q

Are courts more likely to grant a motion for additur (to increase the award) or a motion for remittur (to decrease the reward)?

A

Florida courts are more likely to grant a mtn for REMITTUR. They hardly ever grant mtns for additur.

175
Q

If a judge finds out that the jurors decided the case by flipping a coin:

A

the judge MUST grant a new trial

176
Q

Interlocutory Orders - can you get reviewed before final judgment?

A

Generally, NO. In general, IOs (or order made during the trial) cannot be reviewed before final jdugment An order that does not end a case

177
Q

Types of Interlocutory Orders that CAN be appealed immediately:

A

Order involving venue Order relating to the certification of a class Order granting or denying an injunction

178
Q

Petition for Certiorari

A

allows the appellate court to review the trial court’s ruling when there is no direct right of appeal

179
Q

Certiorari

A

A common law writ that gives appellate courts supervisory power over lower courts. ONLY available in the ABSENCE of direct appellate remedy.

180
Q

A Mtn to Disqualify just:

A

be in writing and verified (notarized)

181
Q

The judge against whom an initial Mtn to Disqualify is filed is ONLY permitted to rule on:

A

the legal sufficiency of the mtn and may NOT rule on the facts alleged

182
Q

For a legally sufficient mtn (Mtn to Disqualify), the judge SHALL:

A

immediately enter an order granting disqualification and do nothing else (proceed no further in the action)

183
Q

After Mtn for Disqualification, a successor judge may:

A

Reconsider the factual or legal rulings of a prior-disqualified judge. ^^can do this on a MOTION for reconsideration. Need a motion.

184
Q

Signature requirement for pleadings The signature certifies that:

A
  1. the atty has read the document 2. to the best of the atty’s knowledge, the info in the doc is supported by good facts and law 3. the doc’s purpose is NOT to delay the proceedings 4. AND the doc contains no confidential or sensitive info or that any such confidential or sensitive info has been properly protected
185
Q

Signature requirement for pleadings

A

EVERY pleading and OTHER PAPER of a party represented by an atty MUST be signed by at least one atty of record

186
Q

An atty’s appearance for a party in a proceeding shall only terminate: (3 circumstances)

A
  1. by order of court, upon a mtn and hearing 2. by order of court, upon substitution of counsel 3. AUTOMATICALLY, upon termination of proceeding AND al time for post-trial motions. When nothing else can be done in a case, including an appeal
187
Q

Public Access to Judicial Records - general rule

A

They’re open to the public

188
Q

Public Access to Judicial Records - exceptions

A
  1. records related to judicial decision making (judge’s own notes) 2. records that relate to court adminstration
189
Q

Is a second-cousin relationship between a judge and one of the parties to a case enough to disqualify the judge?

A

Not on those grounds alone. Need something else.

190
Q

Grounds for disqualification of a judge:

A
  1. judge’s specific prejudice or bias 2. the judge or a close relation being a party to or interested in the case 3. the judge being a close relation to an attorney of record in the cause 4. OR the presiding judge being a material witness
191
Q
A

Florida parts edited (22 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions