Litigation Flashcards
Prior to Litigation
- Plaintiff must have standing.
- The plaintiff’s claim must be ripe and must not be moot.
- The trial court must have subject-matter and personal jurisdiction over the defendant.
What is standing ?
Courts use “standing” to ask, “Does this party have a ‘dog in this fight?’”. It’s not about the issues, it’s about who is bringing the lawsuit and whether they have a legal right to sue
The claim must be “ripe.”
not too early
The claim cannot be moot.
not too late
The Cast of Characters of a Litigation
Plaintiff
Defendant
Jury
Judge
Counsel
what is Waiver of Right to Trial by Jury ?
A “Waiver of Right to Trial by Jury” means a person gives up their right to have a jury decide their case. Instead, the judge alone makes the decision called “Bench Trial”
This can be faster and cheaper, and sometimes it’s strategically better for the person’s case.
What is a Class Action
When a defendant harms numerous persons in a common way, plaintiffs can come together as a “class” to sue the defendant.
The lead plaintiff represents the class.
Any potential plaintiff can opt-out.
The plaintiffs’ cases must share common questions of fact and law.
Class actions are prevalent in securities fraud cases and cases involving defective products like medical devices.
What is a Complaint
When a case is initiated, the plaintiff files a complaint, which is then followed by the defendant being formally notified through a summons.
What is answer
The defendant responds to the complaint with an answer.
Admit, deny or lack sufficient information.
The defendant can also state affirmative defenses (like fraud).
The defendant can file counterclaims.
If the defendant does not respond, she risks a default judgment.
What is Motion to Dismiss
1
A defendant can ask the court to dismiss the case without any further proceedings. This is a motion to dismiss.
Lack of jurisdiction is a common reason for a motion to dismiss.
A defendant can also file a motion to dismiss for failure to state a legal claim.
What is Discovery
Prior to trial, parties collect and share all relevant evidence regarding the case.
Depositions. Process where a witness gives their statement out-of-court, but under oath
Interrogatories. Questions one party sends another
Document productions
Document Production
Companies should have a document management program.
(Creation and Destruction)
Dangers of Selective Destruction and destruction once likely there will be suit or investigation.
Pre-Trial Conferences
The parties meet with the judge to discuss any outstanding issues and to work out scheduling matters.
The most important point of these conferences is to encourage settlement between the parties.
Settlement
The parties can settle a lawsuit by agreement.
This is a legal and business decision that involves cost-benefit analysis.
The parties can settle a lawsuit by agreement.
This is a legal and business decision that involves cost-benefit analysis.
The Trial
Jury selection (if there is a jury), including “voir dire” and challenges for cause and peremptory challenges.
Opening statements: Plaintiff’s lawyer first.
Plaintiff presents case/witnesses. Defendant cross-examine.
Defendant presents case. Plaintiff cross.
Closing arguments.
