Litigation Final Exam

Question 1

What happens after a Complaint is filed?

Answer 1

1. An answer is filed (w/in 20 Days) - Affirmative Defenses Raised - If not raised here cannot be raised later (Thrown in the kitchen sink!) 3 kinds of answer responses - Admits , Denies, No knowledge of - Must have Prayer for Relief too.
2. Responsive Motions filed - (ie. to Dismiss< Rule 12> To Strike Definitive Statement

Question 2

What are the 6 Components of a Complaint?

Answer 2

C J I C P S
Caption - (Basically Header)
Jurisdictional Allegations
ID of Parties
Causes of Action / Allegations
Prayer for Relief - Judgment in your favor & damages - Court cannot give something NOT asked for!
Subscription - Rule 11 - Lawyer is stating he is filing suit in good faith and not on trumped up or bogus charges - His license is on the line.

Question 3

What must you ask for as Best Practice on a Complaint?

Answer 3

A Demand for a Jury Trial

Question 4

What are the 3 Reasons you can file to dismiss early in the process?

Answer 4

1. Lack of Pers Jurisdiction - Ends the case where filed – Start over
2. Improper Venue - Ends Case -
3. Insufficiency of Process - Didn’t following Serving Rules - Start Over - not gone

Question 5

What are the 3 Reasons you can file to dismiss anytime in the case?

Answer 5

1. Lack of Subj Matter Jurisdiction - What the case is about
2. Failure to State a Claim - “Catch all Objection” No valid cause of action.
3. Failure to join an indispensable party - Correct it Start Over - not gone.

Question 6

What are 3 common Affirmative Defenses?

Answer 6

1. Stat of Limitations
2. Bankruptcy
3. Judicarta - case decided to its finality

Question 7

What is Notice Pleadings and Fact Pleadings?

Answer 7

Notice - Putting person on notice that there are claims against them - Used in Mass - Mass rules & Fed rules very similar -Brief & Concise
Fact Pleadings - Very detailed -must include all support and details of claims against someone.

Question 8

What are 2 types of Dismissals?

Answer 8

1. With Prejudice - Can NEVER be filed again -

2. Without Prejudice - Can be filed again - Totally start over w/ new docket and filing.

Question 9

What are the stat of limitations on Negligence and Contract disputes in Mass?

Answer 9

1. Negligence - 3 years

2. Contracts - 6 years

Question 10

What is Tolling?

Answer 10

Stopping the clock on stat of limitations

Question 11

What are 2 reasons for Return of Service?

Answer 11

1. To prove defendant was served

2. to reimburse costs if case is won

Question 12

What is a counterclaim?

Answer 12

Defendant sues Plaintiff - If there are any claims arising from the same occurrence, it is mandatory they be brought forth in the answer to the original complaint. Plaintiff replies to Counter claim as a sep stand alone action.

Question 13

What is a PERMISSIVE counterclaim?

Answer 13

A counter claim that does NOT arise from the SAME Occurrence but involves the same party / parties - (ie. landlord / tenant - I’m suing for injury on broken stairs / I’m counter suing for back rent) This is for Efficiency –

Question 14

How are docs sent AFTER initial lawsuit?

Answer 14

Simply mailed - Rules for Service DO NOT apply

Question 15

What is a Cross Claim vs a 3rd Party Claim?

Answer 15

If Ann sues Joe & Steve a cross claim would be Joe suing Steve – No new parties added
A 3rd Party Claims is a new party to the lawsuit
Ann sues Joe - Joe as a 3rd party plaintiff sues Hanover as a 3rd Party defendant.

Question 16

What is an Interpleader?

Answer 16

Type of civil lawsuit where a Stakeholder is holding property or funds that 2 or more people are attempting to claim - Court decides what the stakeholder should do. (The antique store owner in the ring complaint or real estate deposits)

Question 17

What is a class action lawsuit?

Answer 17

One in which the plaintiffs are too numerous but have the same cause / case. A class action must be certified - no set # of people needed - participation is optional - but if you do participate you waive your right to sue independently separate from the class. Reps are chosen to lead the case and the interests of the class

Question 18

What is an Intervention?

Answer 18

Having a stake in the outcome of a case and you become a party to the case.

Question 19

How are motions presented?

Answer 19

Can be verbal or written but usually written – If a judge is under Admission or Advisement that means he is saying “I’ll think about it”

Question 20

What is Ex Parte?

Answer 20

Only one side is present - no notice to other side - usually only in emergency level situations - normally other side must be notified.

Question 21

What is a Certificate or Affadavit of Service?

Answer 21

A doc showing proof notice was mailed

Question 22

What is a Motion for Judgment on the Pleadings?

Answer 22

A motion usually filed by Plaintiff asking court to END lawsuit and enter judgment in their favor - It is a hearing before the Judge he looks at the COMPLAINT & ANSWER only and either approves the motion and enters judgment or says No there will be a trial. This occurs VERY EARLY in the lawsuit.

Question 23

What is a Motion for Summary Judgment?

Answer 23

A motion filed by either party claiming that There is no genuine issue of material fact AND are entitled by law to judgment in their favor. This is like a Mini Trial where evidence and testimony are taken by the court and reviewed. This occurs LATER in the lawsuit usually.

Question 24

What are Rules 55A and 55B?

Answer 24

55A - Defendant Defaults - No answer - ignores lawsuit -

55B - Is the motion for Default Judgment because Defendant isn’t participating

Question 25

What is SUM CERTAIN?

Answer 25

When there is no question of amount of $$ involved and you have to show extreme likelihood you will succeed w/ lawsuit.

Question 26

What are Provisional Remedies - List 4

Answer 26

Provisional Remedies are things you can ask for while lawsuit is pending. 1. Temp Restraining Order - Immed Irrep Harm 2. Prelim Injunction - Extension of Temp RO 3. Lis Pendens - Official Notice at Reg of Deeds puts public on notice of pending dispute 4. Writ of Attachment - Lien - Prop is seized to satisfy a judgment NOT YET RENDERED. For real property it gets recorded at Reg of Deeds and for $$ 3rd party is served - Bank holding your $$ or Employer holding your wages

Question 27

What are the basic Rules of Civ Procedure on Evidence?

Answer 27

- Evidence is either Admissible - allowed, heard considered or Not Admissable - Not allowed - All evidence is one or the other. - Evidence MUST be Relevant & Reliable - Best Evidence Rule is to Produce the original document not a copy. - Witness Testimony MUST be first hand

Question 28

What are the 5 exceptions to Relevant Evidence being Not Admissible?

Answer 28

- Relevant Evidence can still be Not Admissible a. Remedial Repairs b. Offers to Settle Case c. Evidence of Insurance d. Character Evidence e. Illegally Obtained Evidence

Question 29

What are exceptions to Reliable Evidence?

Answer 29

There are TONS - Exceptions "swallow" the rule. | the big one though is HEARSAY

Question 30

What is HEARSAY?

Answer 30

``` It is oral written or non-verbal statement made out of the court by somebody else at the trial Being offered to prove its truth It is notoriously UNRELIABLE and excluded ```

Question 31

What are HEARSAY EXCEPTIONS?

Answer 31

A - S - P - E - R -D Admissions of Party Opponent Statement against Interest Previous Testimony Excited Utterances Records Dying Declarations

Question 32

What is REAL EVIDENCE?

Answer 32

The actual THING in controversy It must be preserved - Spoilation of Evidence Must be AUTHENTICATED & Must have an established CHAIN of CUSTODY

Question 33

What are the 5 Primary Discovery Devices?

Answer 33

I - D - Rd - Rp - Ra Interogatories - Written questions - 30 in MA - Only go to other parties - Cheap & Easy Depositions - Questions under oath - no limit on # of questions - EXPENSIVE - go to a party or witness. Request Documents or Things - can get pricey - goes to anyone - Request Phys or Mental Exam - Opposing Party only - Expensive! Request for Admissions - Cheap & Easy - Written statements sent to opposing party to admit or deny to narrow issues for trial (conceding facts)

Question 34

What do you ask for if cost to produce docs or evidence is abusive or prohibitive?

Answer 34

Ask the Court to Limit the Request with a Protective Order

Question 35

What is asked for if someone is unresponsive to discovery requests for information?

Answer 35

An Order to Compel is issued.

Question 36

What are the 4 types of PRIVILEGED Information not discoverable?

Answer 36

1. Atty / Client 2. Work Product 3. Phys / Patient / Soc. Worker / Priest 4. Marital

Question 37

When can settlement occur in a lawsuit?

Answer 37

ANYTIME after a case is filed.

Question 38

What are SPECIAL DAMAGES and REG DAMAGES?

Answer 38

Specif calc'd expenses like lost wages & med bills Not easily tallied / calc'd - Pain & Suffering

Question 39

What are 2 kinds of Settlement Docs?

Answer 39

Settlement Brochures & Settlement Agreements

Question 40

What are 2 kinds of Settlement Conclusions?

Answer 40

Stipulation of Dismissal - Nobody wins - Settled OUT OF COURT Agreement for Judgment - Plaintiff wins - common w/ credit card and loan defaults

Question 41

What is VOIR DIRE?

Answer 41

Prelim questioning of jurors by counsel or judge

Question 42

What is striking a juror for no reason called?

Answer 42

A Per Emptory Strike

Question 43

What are 3 things found in a Trial Binder?

Answer 43

1. Witness List 2. Pre-Trial Motions (In limine) 3. Jury Charts

Question 44

What are 2 parts of the Notice of Appeal that gets sent to Appeals Court?

Answer 44

1. Assembled Record on Appeal | 2. Docket Sheet (chron list of case events)

Question 45

What are the winner and loser of a lawsuit called?

Answer 45

Winner - Judgment Creditor | Loser - (who owes $$) Judgment Debtor

Question 46

What is a WRIT OF EXECUTION?

Answer 46

The muscle behind the judgment - Court ordered levy to seize personal property of debtor - Have to wait 10 days after judgment - have to ask w/I one year - good for 20 years. - Bank Levy & Wage Garnishment are 2 examples

Question 47

What are 2 executions for BUSINESSES that owe $$?

Answer 47

1. Till Tap - $$ in register (ltd time) | 2. Keeper - stays longer - $$ and merchandise

Question 48

What is Supplementary Process?

Answer 48

A tool or means to bring a debtor to court to examine their finances

Question 49

What is Summary Process?

Answer 49

A very precisely ruled process for Evictions

Question 50

What is a 209A?l

Answer 50

A restraining order - it is a civil order with criminal consequences for violation - good for 10 days - Ex Parte - Served by Police

Question 51

What are the differences between Arbitration and Mediation?

Answer 51

Arbitration is formal with one neutral person (Arbitrator) hearing evidence like a mini trial and makes a final decision - It can be binding or non-binding depending on what the contract stipulated beforehand. Mediation is informal where a neutral 3rd party helps parties reach a settlement - It is voluntary and always non-binding until an agreement is signed.