Litigating Claims Flashcards
Typical Lawsuit stages
- Pleadings Stage
- Discovery
- Pretrial motions and conference
- Trial
- Post-verdict motions
- Appeal
- Enforcement
Pleadings Stage
- Complaint
- Summons
- Answer
Discovery Stage
Dispositions, interrogatories, documents, examinations, and admission
-Often determines outcome of lawsuit
Pretrial Motions and Conference
Meet with the judge
Trial
- Jury selection
- Opening statements
- Evidence presentation
- Bench conferences
- Closing arguments
- Jury deliberations
Post-Verdict Motions
-Lawyers may submit motions during this phase
Appeal
Either party may appeal
Higher court may affirm, decline, reverse, or vacate
Enforcement
court secures payment
Writ of execution or garnishment
Complaint
allegations made by a plaintiff in a lawsuit
Summons
a lawsuit has been started and that the defendant has a specified amount of time to answer the complaint
Answer
document filed in court by a defendant responding to a plaintiff’s complaint and explaining why the plaintiff should not win the case
Pleading
formal written statement of the facts and claims of each party to a lawsui
Discovery
pretrial exchange of all relevant information between the plaintiff and defendant
Jurisdiction
particular court’s power or authority to decide a lawsuit of a certain type or within a certain territory
Venue
locale in which the lawsuit may be brought
Allegation
claim made in the complaint by the plaintiff, specifying what the plaintiff expects to prove to obtain a judgment against the defendant
Service of process
delivery of a summons and complaint to a defendant by an authorized person
Federal Rules of Civil Procedure
set of rules established to ensure that civil actions and procedures move through the United States district courts as quickly as possible
Actual service
Hand delivery of a summons and complaint to a defendant
Substituted service (constructive service)
Any method of notifying a defendant of a lawsuit other than personal delivery of a summons and complaint
summons and complaint will contain
- Give notice
- Reveal facts
- Formulate legal causes of action
- State the damages sought
excess letter
provide the insured with the option of hiring separate defense council to work with the insurer’s defense counsel when damages sought are in excess of policy limits
Affirmative defense
legal defense arguing that even if the plaintiff’s factual allegations are correct, there are overriding reasons the defendant should not have to pay damages
Counterclaim
complaint brought by the defendant against the plaintiff
Default judgment
automatic judgment against a party to a lawsuit who fails to appear in court or to answer a pleading
-automatically give the plaintiff all the damages asked for in the complaint
lawsuit transmittal documents
Case caption
Title of the court in which the lawsuit is filed, along with the court’s location
Court claim number
Insurer’s name and claim number
Date of loss
Name and address of the plaintiff’s attorney
Plaintiff attorney’s claim number, if applicable
Details of service of process
Name and address of the insured
Identity of all defendants to be defended by the appointed attorney, along with any relevant information regarding defendants in the lawsuit not to be defended by the counsel
Policy number and policy type
Policy limit
Deductible, if applicable
Presence of demand in excess of policy limits
Results of investigation conducted to date
Additional planned investigation
Details of any settlement negotiations conducted
Billing guidelines, if not already provided
Litigation reporting schedule by defense counsel, if not already provided
Request for liability analysis
Request for litigation plan
litigation plans outline a strategy to reach one of these objectives
Defend the lawsuit at trial
Settle the lawsuit
Conduct additional investigation to decide on the goal
Request for production of documents
request made by either the plaintiff or defendant in a lawsuit to the opposing side to provide all the documents and other tangible evidence it has in its possession relating to the facts of the case
Interrogatories
Specific written questions or requests raised by one party to a lawsuit that the opposing party must answer in writing
Admissions
Factual statements that, unless denied, bind the party at trial
5 most commonly used methods of discovery
Requests for production of documents Interrogatories Depositions Physical or mental examinations Admissions of facts not in dispute
Stare decisis
The principle that lower courts must follow precedents set by higher courts
The practice of using precedent in litigation
Motion to dismiss
A request that a court terminate an action because of settlement, voluntary withdrawal, or procedural defect.
Motion for summary judgment
A pretrial request asking the court to enter a judgment when no material facts are in dispute.
Motion in limine
A pretrial request that certain evidence be excluded from the trial.
Voir dire
The process of examining potential jurors about their possible interest in the matters presented at trial, their ability to decide the case fairly and without prejudice, and their overall competence to serve as jurors.
Peremptory challenge
A lawyer’s ability to object to a potential juror’s placement on the jury without having a specific reason.
Burden of proof
the duty of a party to prove that the facts it claims are true
Preponderance of evidence
Evidence supporting the jury’s decision that is of greater weight than the evidence against it
Directed verdict
An order to the jury from the presiding judge to return a specific verdict
4 activities for preparing for a civil trial
- Trial strategy
- Pretrial motions
- Pretrial conferences
- Additional investigation
three common pretrial motions
Motion to dismiss
Motion for summary judgment
Motion in limine
Flat fee
A fee arrangement in which the attorney agrees to handle the case from start to finish for a specified amount.
Phased fee
A fee arrangement in which the attorney agrees to handle each phase of litigation for a specific fee.
