Lecture 4-5 Flashcards
All civil trials held in federal district courts are governed by the
Federal Rules of Civil Procedure (FRCP)
What are the stages of Litigation
pretrial
trial
posttrial
What are the types of the attorney fees?
- Fixed fees: charged for the performance of such services as drafting a simple will
- Hourly
3.Contingency fixed as a percentage (usually
33 percent) of a client’s recovery in certain types of
lawsuits, such as a personal-injury lawsuit. If the lawsuit is unsuccessful, the attorney receives no fee,
but the client will have to reimburse the attorney for
all out-of-pocket costs incurred
What are Pleadings
Complaint and answer:
inform each party of the other’s claims, reveal the facts,
and specify the issues (disputed questions) involved in the
case
What do Plaintiffs Complaints concern?
-Jurisdiction Facts showing that the particular court
has subject-matter and personal jurisdiction.
-Legal Theory The facts establishing the plaintiff’s
claim and basis for relief
-Remedy The remedy (such as an amount of damages)
that the plaintiff is seeking
What is service of process
Formally notifying the defendant of a lawsuit
The plaintiff must deliver, or serve, a copy of the
complaint and a…
summons
Plaintiff
The person who starts the lawsuit (Seeking something).
-Must allege concrete facts that are plausible which a jduge will scruntinize.
Defendant
The person responding to the plaintiff
Appellant
the person, on appeal, seeks something
Respondent
The person, on appeal, responds
What is a complaint
Starts the lawsuit when the plaintiff writes:
A brief declarative statement of the allegations, and request for relief (typically
$, but may be injunctive or equitable relief).
What are Long arm statues
allow you to be sued by someone in another state if your conduct injured another person
What is a sliding scale?
Courts use this test to decide if the defendant needs to go to another state. (Because traveling to another state is expensive)
Diversity Jurisdiction
Happens when all plaintiffs & defendants are in different states.
-If more than $75,000
or
Argument involves a federal question
The defendant has the option to move the case from state to federal court
Substantive Law vs Procedural law
Substantive Law(If accdient happens in WA state the fed applies WA law): Rules of contracts and rules of accident
Procedural Law: Rules of the lawsuits
concurrent jurisdiction
it would be ok for various court systems to take and decide
the case based upon the subject.
A passive website
EX: u buy something online and it explodes, no credit card, u pick it up. Insufficient
where only information is supplied – is insufficient to confer
jurisdiction;
Commercial websites
that involve the sharing of data (think Itunes), or selling directly
online, is sufficient to confer jurisdiction.
Choice of Law
Lawyers can choose which states laws will apply in court
Contract Disputes
The law of the state where the contract was made, OR the law the parties to the contract AGREED TO IN THE CONTRACT, will be applied.
VENUE
Once the Court has jurisdiction, the next question is (occasionally) where we should
actually have the trial.
Why? Timothy McVeigh; Kevin Coe. If 300ppl die the jurs will know someone who died so there is no impartiality
What is a summons?
the notice to the defendant that s/he is being sued, and notice of how much time the defendant has to respond (and if the defendant fails, he will lose by “default”.)
What happens if u cant find the defendant?
1.Service them by mail
2.Service by publication (rare)
What is Default Judgement
if you ignore the summons, procrastinate, or just forget about it…. you will lose after a short ex parte (just the plaintiff the judge, and court reporter) hearing, in which the Judge will swear in the plaintiff and ask the plaintiff if the allegations in the complaint are true.
What is an Answer
A defendantts answer: File (return to the court) an answer, which is a point-by-point response to the complaint, e.g., “admitted”, “denied” “I don’t know”.
What are affirmative defenses
Can be included in filed answers. “Yes i did it, but u waited to long to sue me” (Statute of limitations)
What are counterclaims
Can be included in filed answers
“You did ____ to me”
What is a motion to dismiss for failure to state a claim/Demurrer
After being sued and answering, the defendant can request the court throws out the case. (Save money) Ex melted ice-cream
PRETRIAL DISCOVERY
Trying to figure out what happened before the trial starts
Interrogatory – A set of written questions, prepared by the opposing side, which must be
answered under oath, and in writing
Deposition
(Unfiltered) Opposing attorney asks you questions, under oath, face-to-face, with a court reporter present.
Motion to Produce
A demand to see, or have produced, documents, objects, reports,
medical charts, etc.
Protective Orders
Used to prevent a party who obtains discovery from making it public.
Requests for Admissions/stipulation
Essentially agreements about what the facts are. Both parties agree on the facts
Summary Judgements
Lawsuits where everyone agrees on the facts, but the law is what they are arguing about. They show the judge the facts and they apply the law.
Attorneys may excuse (reject) a potential juror for one of two bases:
1.CHALLENGE FOR CAUSE:
If the juror has a bias or cannot otherwise be fair and impartial. There are no limits to the number of challenges for cause.
2. PEREMPTORY CHALLENGE Each attorney, in a superior court case, may excuse up to 6 jurors for any reason. Attorneys may never excuse a juror based upon race, sex or religion (Batson v. Kentucky).
What are the tests Expert Witnesses go through
- Can the theory be tested?
- Has the theory been peer reviewed?
- What are the error rates?
- Generally accepted in the relevant community of experts.
Direct Examination allows what type of questions?
Non-leading questions
Cross Examination allows for what types of questions?
Leading Questions.
Goals:
1. Demonstrate faulty memory/biased
2. not trustworthy
Motion to Dismiss / or / Directed Verdict
Jury Instructions
The Court will provide instructions, which are the rules of law that the jury
should apply in the case.
