MGMT 311 Exam 1 - FLASHCARDS - Chapter 5
What are the stages of litigation?
- Pretrial. 2. Trial. 3. Post-trial
What are fixed fees?
Fee for a specific service
What are hourly fees?
Amount depends on where you are and the lever of expertise of the lawyer
What is the hourly fee in Brazos county?
About $100 to $900
What are contingency fees?
Percentage of the win. 33 and 1/3 up to 40 percent is legally allowed. Lawyer doesn’t get fee for their services if they don’t win the case
What is a retainer?
Lump sum of money attorney is requiring you to give them up front. Money is used to pay the fees of the lawyer
What contingency fees deal with?
Personal injury cases. The plantiff’s attorney will most likely charge a contingency fee
What happens in the complaint part of the pleading stage?
Plaintiff files Complaint/Petition to the court
What does the plantiff’s complaint contain?
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 the amount of damages) that the plaintiff is seeking
What happens in the service process part of the pleading stage?
a. Defendant gets a copy of complaint/petition and summons/citation informing the defendant they have been sued and where they are supposed to respond..
b. Defendant is served by sheriff, constable, or process server.
What happens if the defendant doesn’t answer the complaint and summons by the time limit listed?
If defendant does not answer within time limit after service, then plaintiff wins by default.
What is the Texas way to answer a citation?
The texas way to answer is a general denial of plaintiff’s allogations
What does denial of the plantiff’s allogations mean?
Denial of Plaintiff’s allegations doesn’t mean they didn’t do it, it means they need to prove it isn’t true
What is an affirmative defense?
Generally say that even if the plaintiff can prove what they accused, there is an alternative reason why the plaintiff cannot win the case. A defense that brings up new facts or issues not in the complaint that, if true, would be a legal reason why the plaintiff should not win, or should win less than they’re asking for.
True or false: self defense is an example of affirmative defense?
TRUE
What are counterclaims?
claim the defendant has back against the plantiff
What is motion to dismiss?
Asking a case to be dismissed. Most often filed by defendant
What is motion for judgment on the pleadings?
Asking the judge to define the case based solely what is presented in those pleadings
What is motion for summary judgment?
providing proof to the judge that the parties don’t disagree on facts, they disagree on how to apply the law.
What is the process of obtaining information on a case and all of the witnesses involved?
Discovery
What is the purpose of discovery?
a. Obtain information
b. Preserves evidence
c. Helps in settlement
d. Prevents surprise
e. Establishes witness’ testimony
f. Narrows issues in dispute for trial
What are the tools of discovery?
- Despositions. 2. Interrogatories. 3. Requests for Admissions. 4. Requests for Documents and other tangible things. 5. Request for Physical or Mental Examinations
What are Despositions?
Sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official. The person deposed gives testimony and answers questions asked by the attorneys from both sides. The questions and answers are recorded, sworn to, and signed. Depositions also give attorneys the opportunity to ask immediate follow-up questions and to evaluate how their witnesses will conduct themselves at trial.
True or false: depositions can be employed in court to impeach (challenge the credibility of) parties or witnesses who change their testimony at the trial?
TRUE
True or false: a deposition can be used as testimony if the witness is not available at trial?
TRUE
What are Interrogatories?
written questions between parties
What are Requests for Admissions?
written requests between parties to admit facts relevant to the case. Written as admit or deny. If not answered within 30 days, on the 31st day, everything is admitted against the defendant who is supposed to answer
What happens if a request for admissions is not answered?
If not answered within 30 days, on the 31st day, everything is admitted against the defendant who is supposed to answer
What are Requests for Documents and other tangible things?
whatever is relevant to the case in document form (documents, audio recordings, etc)
Which of these discovery tools is the only one that can be used on a witness?
Depositions
What is a pretrial conference?
Attorneys meet with judge before trial to agree on manner in which trial will be conducted. The purpose is to explore the possibility of a settlement without trial and, if this is not possible, to identify the matters in dispute and to plan the course of the trial. Might establish ground rules to restrict witnesses or discuss cost of evidence
Which amendment guarantees right to a jury trial in federal court if amount of controversy exceeds $20?
7th amendment
True or false: in most states and in federal courts, one of the parties must request a jury?
TRUE
How many jurors do district courts have?
12
How many jurors do county courts have?
6
What is Peremptory Challenge?
Limited. Used on someone you an’t establish cause with.
We can’t use these challenges in a racial or gender discriminatory manner
What is relevancy?
relevant evidence tends to prove or disprove a fact in question or establish the probability of a fact in question.
What is relevant evidence based on?
One piece of evidence becomes relevant or irrelevant based on the type of case and the circumstances involved
Is all relevant evidence admissable?
No
Wht makes relevant evidence admissable?
Even if evidence is relevant, the probative value (proof value) of it must outweigh the prejudicial affect it might have. If we have high proof value and low predjudicial effect, it is admisable.
What is cumulative evidence?
Cumulative means we keep presenting the same thing to the jury over and over again
Even if evidence is relevant, can it confuse the jury?
Even if relevant, evidence cannot tend to confuse or mislead the jury. Even if something is relevant, if it confuses the jury, it will be required to be broken down
What is hearsay?
he said, she said. Any testimony given in court about a statement made by someone else out of court. If you have heard what someone said about an acident and you weren’t there, and you are called as a witness, what you are telling is hearsay
True or false: hearsay is excluded from evidence?
TRUE
Why is hearsay excluded?
- We deprive the jury of the opportunity to judge the credibility of the speaker. 2. We lose the opportunity to cross examine the speaker
What are the steps to a trial?
- Opening Statements. Plaintiff goes first, then defendant
- Examination of Witnesses
- Party with burden of proof (plaintiff) rests.
- Motion for directed verdict. - Defendant asking the judge to direct verdict for the defense
- Opposing party (defendant) presents case.
- Defendant rests.
- Either party can move for directed verdict.
- Rebuttal. - plaintiff has opportunity to present new evidence
- Rejoinder. - defendant responds to this
- Closing arguments.
- Court charge.
- Verdict.
What are the types of examinations of witnesses?
a. Direct examination.
b. Cross examination - pointed questions, controlled, and leading
c. Redirect examination
d. Recross examination.
What is court charge?
Instructions to jury on law.
Questions for jury to answer on liability and damages.
What happens in the verdict stage of a trial?
Announced in court after decision made by judge or jury (deliberations).
jurors are then discharged.
Whoever the winner is from the verdict of the jury doesn’t neccesarilly win the case every time.
.
What are reasons why a motion for new trial might be filed?
- Newly-discovered evidence.
- Jury obviously misapplied law.
- Jury obviously misunderstood evidence.
- Misconduct by participants.
- Legal error by judge.
Where is the notice of appeal filed?
In the trial court
What is a record?
A written account of the proceedings in a case, including all pleadings, evidence, and exhibits submitted in the course of the case
Where are created records sent?
To the appellate court
What is a brief?
a. Filed by each party in appellate court.
b. Appellant’s brief explains how trial court erred.
c. Appellee’s brief explains how trial court was right.
What does an appellate court base its decision on?
Appellate court does not hear evidence; bases its decision on record, briefs, and oral arguments.
What does the appellate court do if they think the party who lost should have won?
They reverse the verdict of the trial court. The appellate court has made reversible errors.
What does the appellate court do if they think the party who lost really should have lost?
They affirm the verdict of the trial court
What is it when the appellate court send it back to the trial court to retrial?
Reverse and remand
What is is when the lower court made a mistake, but the verdict is being rendered for the appellate?
Reverse and render
Do we have an automatic right to have our case reviewed by an appellate court?
Yes
What asks the sheriff of the county to seize and sell personal property to give money to the plaintiff? Required property like a house or basic transportation can’t be seized.
Writ of execution
