Introduction to Civil Litigatioin Flashcards
Civil Litigation
The process of resolving private disputes through the court system
Trial
A court proceeding in which parties to a lawsuit present their evidence to a judge or jury and the judge or jury makes a decision in favor of one party
Substantive laws
laws that determine parties’ right and obligation as opposed to the procedures used to enforce those rights.
Procedural laws
laws that set forth legal procedures or methods used by parties to enforce their right or to oppose claims made against them
Criminals laws
laws that prohibit conduct that society deems harmful and provide for punishment in the form of jail, fines, or probation.
Criminal Procedure
The rules that apply in a criminal case and determine how a criminal case proceeds through the legal system; these are based on federal and state constitutions, codes, rules of court, and cases.
Civil Law
Laws dealing with private disputes between parties.
Plaintiff
the party who initiates a civil or criminal lawsuit in court
Defendant
the party who is sued in either a civil or criminal case
complaint
usually the first document filed in court in connection with a lawsuit; this sets forth the allegations or contentions of the plaintiff and states the basis for the action and the type of relief requested from the court.
Petition
An initial document filed with the court asking the court for some order. Sometimes petitions are filed in conjunction with a complaint (e.g., asking the court to appoint a guardian for a party who cannot files a lawsuit); sometimes petitions are filed in lieu of a complaint (e.g., in certain jurisdictions petitions and not complaints are used in divorce cases)
Answer
The initial pleading filed by the defendant in a lawsuit, contesting the factual and/or legal basis for the lawsuit
default
Failure to file an answer or other responsive pleading within the proper time; can eventually lead to a default judgement
judgment
in a civil court action, the final decision from the trial court
discovery
in a civil case, the procedures by which all parties have the right to obtain information from other parties, and in some cases from witnesses; includes such procedures as depositions, interrogatories, and production of documents.
motions
A request that a judge make a ruling or take some other action, most often in connection with a pending lawsuit
writ of execution
a court order authorizing the seizure and sale of a person’s property to satisfy a judgement against that party.
Alternative Dispute Resolution (ADR)
Ways to resolve a civil dispute without resort to a legal action
Negotiation (negotiate)
discussion between opposing parties in an attempt to settle a case; usually involving compromise by both sides
Settlement
An agreement that resolves a dispute without the necessity of a court action
Mediation
A nonbinding process in which a neutral third party helps disputing parties reach a settlement
Mediator
The neutral third person who facilitates the mediation process.
Arbitration
An out-of-court process in which disputing parties present their case to a neutral third person who listens to evidence from each disputing party and makes a decision; the decision is sometimes binding and sometimes not binding.
Arbitrator
The neutral third party who presides over the arbitration process and makes a decision.
Primary Sources
Print or electronic publications that contain the actual law (i.e., case reporters, codes, and constitutions)
Secondary sources
Print or electronic publications about the law, such as articles, treatises, and encyclopedias; these are not binding on a court
Local rules of court
Rules that are adopted by individual courts and apply only in those courts
Form book
books containing sample forms for legal professionals to follow in preparing pleadings and other documents
cloud computing
electronic file storage where files are stored on the internet rather than on the office computer
trial court
A court where the parties to a lawsuit file their pleadings and present evidence to a judge or jury
lower courts
another term for a trial court
Jurisdiction
the power that a court has to hear a particular case; requires that a court has the power to hear the type of case (subject matter) and that a court has power to render a decision against a particular defendant (personal) or over property (in rem)
original jurisdiction
the power of a court to conduct a trial in a case; confers a court the right to be the first court to hear the matter
court of appeals
a court of review; this court reviews decisions from a trial court
briefs
a written analysis of the facts and law related to a case, written by the attorneys handling the case, and filed in a trial or appellate court. Briefs are also filed in the Supreme Court
Legal error
a mistake in the way the court interprets or applies the law
appellate jurisdiction
the power of a court to review the decision of a lower court or administrative agency
higher courts
another term for a court with appellate jurisdiction
affirm
an appellate court’s upholding of the lower court’s decision
revers
the act of an appellate court setting aside the decision of a lower court
remand
the act of an appellate court sending a case back to the lower court after reversing a decision, often with specific instructions as to how the lower court must deal with the case.
supreme court
a name given to the highest court in the federal court system and to many, but not all, of the highest court in state court systems
certiorari
a term used in connection with appellate proceedings indicating that the reviewing court wants the lower court to send the higher court its record, so that the proceedings can be reviewed. When parties ask the U.S. Supreme Court to hear a case, they often file a petition for writ of certiorari, which, if granted, means that the Supreme Court will review the record in the case.
subject matter jurisdiction
the authority that a court has to hear a particular type of case
personal jurisdiction
the power or authority of the court to make a ruling affecting the parties before the court
in rem jursidiction
the authority of a court to hear a case based on the fact that property, which is the subject of a lawsuit, is located within the state in which the court is situated
quasi in rem jurisdiction
authority of a court to hear a case based on the fact that the defendant owns property that is located within the state, even though that property is not the subject of the lawsuit.
diversity of citizenship
when no plaintiff and no defendant are citizens of the same state and the amount in controversy exceeds $75,000 or when one party is a citizen of a state and the other is a citizen of a foreign state.
exclusive jurisdiction
power or authority to hear a case that belongs to one court system only
concurrent jurisdiction
power or authority of more than one court system to hear a case
removal
generally, the transfer of a case from a state court to a federal court where concurrent jurisdiction exists and the case was initially filed in a state court.
supplemental jurisdiction
a federal court’s right to decide a claim based on a non federal issue if this claim depends on the same set of facts as does a federal claim in the case before the court.
long-arm statutes
a state law that defines the right of state courts to exercise jurisdiction over nonresident defendants.
general appearance
either a physical appearance or filing of documents in a court, without specifically limiting the purpose of the appearance; a general appearance confers personal jurisdiction on the court on the party appearing
special appearance
an appearance in court (either in person or by filing documents) for a limited purpose, often contesting jurisdiction.
motion to quash service of summons
a request that the court declare that service of the complaint and summons is invalid either because the court lacks jurisdiction over the defendant or because of some procedural problem with the service itself
attachment
seizing property pursuant to a court order and giving the court the right to make orders regarding disposition of the property
venue
among all the courts that have jurisdiction, venue defines the specific geographical location of the court or courts where and action should be brought. in the federal system, this determines which is the proper district. In state court systems, this often determines the proper county or counties.
