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Civil Procedure > Jury Trial > Flashcards

Jury Trial Flashcards

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Civil Procedure 1L flashcards
1
Q

Jury Trial - As right/waiver

A

In fed court any part can demand it affirmatively

  • if not: deemed waived and case by “bench trial”
  • if granted: receives “docket designation”

DEMAND: SERVED + FILED withi 14 days since service of last pleading

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2
Q

Jury Trial - Judge/Jury duties

A
  • Jury: decides Q of fact: i.e. dx, breach of contract, tort
  • Judge:
    1) Decides Q of law: i.e. admissibility of E, N claims, equitable actions like specific performance or injunctive relief
    2) Discretion to decide on “predominant nature” of case (law or fact)
    • If both present court allows jury to decide first issue of fact
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3
Q

Jury Trial - Process (Steps)

A

1) Jury selection
2) Jury Instruction
3) Counsel closing arguments
4) Jury deliberation
5) Verdict

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4
Q

Jury Trial - Jury selection aka “voir dire” - Gral

A
  • Both counsel can interview and select juror
  • Pool of juror has to be fair cross-section of community
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5
Q

Jury Trial - Jury selection - Challenges Types (2)

A

1) Peremptory
2) For cause

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6
Q

Jury Trial - Jury selection - Peremptory Challenge - Gral

A
  • “No reason”
  • In civil causes only 3-per side
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7
Q

Jury Trial - Jury selection - Peremptory Challenge - C restrictions

A

Peremptory challenge not solely based on:

  • Race - Gender
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8
Q

Jury Trial - Jury selection - “For cause” Challenge - LIB causes

A

1) Lack of qualification (18 y/o, convicted felon, not US citizen, inhabiility to communicate in English)
2) Incapacity - unsound of body and mind
3) Bias

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9
Q

Jury Trial - Jury selection - “For cause” Challenge - LIB - Lack of qualification (4)

A
  • >18y/o
  • Not US citizen
  • Can not communicate in english
  • Convicted felon
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10
Q

Jury Trial - Jury selection - “For cause” Challenge - LIB - Bias

A
  • actual or implied
  • i.e. juror related /employed by party, answer show clear impartiality
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11
Q

Jury Trial - Jury Instructions - gral

A
  • Formal instructions by judge to jury before deliberation
  • Orally or in writing
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12
Q

Jury Trial - Jury Instructions - Content to reflect applicable law and give space to juror to argue own theory (4)

A

1) Role of judge
2) Burden of proof
3) Required elements for the cause of action and D’s asserted defenses
4) Special instructions for this case

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13
Q

Jury Trial - Jury Instructions -Timing

A
  • After all trial E presented - Counsel allowed to meet w/judge to decide on language
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14
Q

Jury Trial - Jury Instructions - Party objection to content

A
  • On the record and at earliest opportunity
  • Object to content or rejection to give instruction
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15
Q

Jury Trial - Counsel Closing Arguments

A
  • Each party addresses jury
  • Party w/burden of proof opens and close
  • Refer only to E presented on trial

- NO personal opinion or comment on insurance

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16
Q

Jury Trial - Jury Deliberation

A
  • In private
  • Consider only E to be presented in trial
  • Not conduct own investigation or research
  • Not discuss w/anyone outside until verdict
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17
Q

Jury Trial - Verdict - gral

A
  • At least 6 jurors must participate
  • Decision has to be unanimous unless party agree otherwise
  • Presiding juror reads out loud
  • Post verdict parties can poll the jurors
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18
Q

Jury Trial - Verdict - “Special Verdict”

A

Verdict as answer to specific questions posted by judge

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19
Q

Jury Trial - Verdict - Effect of “hung jury”

A
  • When no unanimous verdict
  • Possible mistrial
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20
Q

Jury Trial - Jury Misconduct - Effects

A

Potentially can “set aside” judgment because of mistrial

  • Mistrial is declared for some cases (improper action, clerical error)
  • not usually for other cases (improper reasoning or thought process, life experiences, bias/prejudice)
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21
Q

Jury Trial - Jury Misconduct - Grounds (5)

A

1) Improper actions
2) Improper reasoning or thought process
3) Life experiences
4) Bias/prejudice
5) Clerical error

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22
Q

Jury Trial - Jury Misconduct - Improper actions- Considerations by court

A
  • Court will set aside by motion considering Severity of actions and degree of prejudice to losing party
  • i.e.: discuss w/other before verdict, independent research, reach verdict by luck (flip coin)
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23
Q

Jury Trial - Jury Misconduct - Improper reasoning or thought process

A
  • usually not set aside by court
  • i.e. fail to follow jury instructions, fail to understand or consider E, give too much/little weight to E, calculation of DX
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24
Q

Jury Trial - Jury Misconduct - Life Experiences

A
  • jurors can share btwen them
  • Court will usually not set aside
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25
Q

Jury Trial - Jury Misconduct - Bias or Prejudice

A
  • Usually court will not set aside - notion that voir dire deal with this type of risk
  • EXCEPTIONALLY set aside w_hen bias concealed during jury selection_ but later expressed
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26
Q

Jury Trial - Jury Misconduct - Clerical Error

A
  • Usually set aside
  • Verdict victim of error in recording or reporting
27
Q
A
28
Q

Agency - Elements (Concept)

A
  • Fiduciary relation
  • One person (Agent) consent to act on behalf of another (ppal)
  • affecting relations with 3rd parties
  • Written when SOF
29
Q

Agency - Creation Methods (6)

A

1) Express authority
2) Implied authority (Inherent)
3) Apparent authority
4) Estoppel
5) Ratification
6) Necessity

30
Q

Agency - Business entities rules - Promoter - rules

A
  • In relation to creation of business entity
  • Not liable if parties agree that specific performance will be by future entity AND novation is made after formation
31
Q

Agency - Liabilities to 3rd parties - Contracts - Agent’s liability - Ppal “undisclosed” Rules

A
  • Makes both agent and ppal liable to 3rd party who can recover only from 1 of them
  • Ppal can still enforce contract agaisnt 3rd party (unless expressly excluded from)
  • EVEN if 3rd party would not have contracted with him UNLESS agent intentionally concealed ppal
  • Ppal can use all dfenses available for agent
32
Q

Agency - Liabilities to 3rd parties - Torts - Ppal’s liability

A
  • Respondeat superior
  • When in the scope or course of agency and employment
  • If sue by 3rd party - potential impleader to agent
33
Q

Gral Partnerships - Concept/Elements (3)

A
  • Association of 2 or more persons
  • W/ intention to carry or manage as co-owners
  • A business for-profit
34
Q

Gral Partnerships - Capacity

A

Same rules as for CL +

  • infants: can dissafirm but not withdraw capital to detriment of creditor
  • corps, LLC and other entitiies can act as partners
  • Either spouse can be partner in non-realty psx w/o other’s consent
35
Q

Gral Partnerships - Formation methods (3)

A

1) Express - SOF if over 1 year
2) Implied - i.e. share benefits
3) Estoppel: present himself as partner or allow name to be used

36
Q

Gral Partnerships - Profit/Loss Sharing - Gral rule

A

Equal for all partners

37
Q

Gral Partnerships - MGMT - Gral Rule

A
  • All partners and all with = rights to decide on day to day basis
  • Voting quorum for more relevant decision
38
Q

Gral Partnerships - PSX liability to 3rd parties - Gral

A
  • All partners PERSONALLY liable for all psx debts/obligations
  • JOINT and SEVERALLY - hence plaintiff can go first against psx assets and then against any partners - and then possible contribution among partners
39
Q

Gral Partnerships - PSX liability to 3rd parties - Exception for entering partner (assignee of interests on psx)

A

Liable only to extent to contribution for psx’s pre-admission torts/contractual breaches

UNLESS: - intentional waiver of “liaiblity shield”

    • Express assumption of responsibility beyond contribution
40
Q

Gral Partnerships - Dissociation - Effects on psx

A

1) If psx-at-will: psx terminates
2) If non-psx at will: psx survives

41
Q

Gral Partnerships - Dissociation - Purchase of disassociated interest - Conditions and Price

A
  • Possible if no dissolution of psx (no psx at will)
  • DX offset against buy-out-price
  • Price: = to pro-rate share of psx net-assets unless otherwise agreed
  • Parties must agree on final amount
42
Q

Gral Partnerships - Dissolution Causes (5)

A

1) Agreed by at least half of remaining partners
2) Termination event set in psx agreement
3) Illegality - event makes business unlawful
4) Judicial determination
5) Dissociation for psx-at-will AND/OR of last partner

43
Q

Gral Partnerships - Dissolution - Liquidation Distribution Priority - CPU

A

1st: Creditors (including partners as creditors)
2nd: Partners for capital account contributions
3rd: Undistributed profits to partners - equally unless agreed otherwise

44
Q

Gral Partnerships - Dissolution - Liquidation Distribution Priority - Rules when insolvency

A
  • Partner assessed for contribution
  • If insolvent his share is allocated among other partners who then have contribution right
45
Q

LP - Effect of failure to file Certificate with secretary of state (2)

A

1) LP turns into grl psx

AND

2) no cut off point of joint and several liability for limited partners

46
Q

LP Partner’s liaiblity - Gral

A

1) Gral partner: jointly and several liability
2) Limited partner: only to amomunt of capital contribution

47
Q

LP - Partner’s liability - For approved fx

A

1) RULPA: Ltd partner personally liable if is gral partner OR participates in “control of business”

+

“safe harbor”: ltd not conisder as participant in control when with certain involvement

2) ULPA: very liberal - ltd partner not personally liable even if nominally participates in mgmt and control

48
Q

LP - Exception to restricted exposure of ltd partners to 3rd party liability

A

1) Use of name in trade name + lack of knowledge of third party he is not gral partner
2) Hold out himself as gral partner (estoppel)

49
Q

LP - Gral rule on distribution of loss/profits

A

Pro rata to capital contribution according to LP certificate

50
Q

LP - New ltd partner Rules

A
  • Gral rule: Ltd partner can sell/assign interests in LP without dissolution unless agreed otherwise
  • New ltd partner might require approval by gral partner if established so by LP agreement
51
Q

LP - Dissolution - (3)

A

1) Any partner can demand decree of dissolution
2) Last gral partner dies/withdraws (cure w/appointment in 90 days)
3) ULPA - any last partner withdraws (cure w/appointment in 90 days)

52
Q

Limited Liability Partnership (LLP) - Gral

A
  • Partners as shareholders
  • Not recognized in all states
  • Used by persons who practice under professional rules of incorporation
  • Is an option for General psx to re-organize
53
Q

LLP - partners status/liability

A
  • Partners As shareholders
  • No liability from LLP’s torts or contracts
  • Liability from own torts or tort from directly supervised subordinate.

+

  • As gral rule no entity can shield professional from own N or the one commited by subordinates
54
Q

LLP - Differences with LP (2)

A
  • No distinction btwn gral/limited partner
  • Partner’s liability: each one liable for own actions
55
Q

Corps - Incorporator’s liability - Personal Liability Exception

A
  • Personally liable when UNDISCLOSED ppal (corp)
  • UNLESS Corp :
    1) accepts benefit,
    2) implied/express adoption (take and receive as own contract to which there is no previous relation) ,
    3) ratification (confirm/approve/ sanction of previous act done in name of or in behalf of one).
56
Q

Corp- Organization Meeting required mattters (post filing) (3)

A

1) Stock subscription
2) Distribution of shares
3) Initial board election - must adopt by-laws + ratify/adopt pre-formation contracts

[not necessarily presential]

57
Q

Corp - By-laws content (define/specify) (2)

A

1) Corporate governance rules
2) Number of directors

58
Q

Corp - Report + payment obligations (3)

A

1) Initial report filed with secretary of state with info on officers, directors, registered agent+address, description of nature of business
2) Annual report - with info above + total of authorized/issued/outstanding shares
3) License fee payment

59
Q

Corps - Domestic/Foreign classification (on state of incorporation)

A
  • Domestic: “in-state” incoporation / local law controls corporate governance
  • Foreign: out of state incorporation / requires certificate of authority from secretary of state to “transact business” in state
60
Q

Corp - Factors to determine if company “transacting business” in the state (foreign/domestic)

A

NEXUS TO STATE - activities must be permanent/substantial/continuous (expansive trend for online activities:

  • Enough: fixed permanent facility, active website taking orders
  • Not enough: one time sales by mail , passive website, own property, appear as D in court, borrow money
61
Q

Corp Liability - gral /purpose

A
  • To make effective service to registered agent OR secretary of state if registered agent cannot reasonably located
  • Based on “l_awful corporate purpose_” : Gral rule: corp can engage in ANY lawful purpose UNLESS otherwise specified limited purpose in articles
62
Q

Corp Liability - Specific application (contractual/torts)

A

1) Contractual: contracts by officer/agent w/authority or later ratified
2) Vicarious tort liability - respondeat superior

63
Q

Corp - Ultra Vires Doctrine

A
  • Argument that contracts beyond scope of corporate power are illegal (breach of by-laws or articles)
  • Defense available for shareholders, corps director/office/agent AND attorney gral
  • Cannot be argued against 3rd party w/out knowledge of “illegality”
64
Q

Corps - BOD election - “Cumulative Voting Rule”

A
  • Exception to 1share/1vote
  • Applies when there is more than 1 vacancy in BOD
  • Formula: Multiply number of shares owned times the number of vacancies and allocate those votes as pleased in single or mx vacancies) (100 shares and 3 vacancies = 300 votes)
  • Is default system in WA / other states require express option

Civil Procedure (15 decks)

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