Midterm Flashcards
Contempt
disobedience or disrespect to the court
disobeying a court order (must be intentional)
Difference between Civil and Criminal cases
CIVIL = seeking damages, person v person, can plea the 5th on specific questions only, do not show up on criminal background checks (even contempt resulting jail time)
CRIMINAL = fines, jail time, person v society, can choose not to testify per the 5th
* the burden of proof
the 3 Burden of proof
- beyond a reasonable doubt
- clear and convincing
- preponderance of the evidence
beyond a reasonable doubt
- 12 out of 12 jury votes
- highest standard of proof; mainly used in criminal cases
clear and convincing
- in between beyond a reasonable doubt and preponderance of the evidence 71%
- common in civil cases
preponderance of the evidence
- more likely to be true than not 51%
- common in civil cases
2 types of evidence
- direct
2. circumstantial
Direct evidence
- what you see, hear, and witness DIRECTLY
Circumstantial evidence
- drawing a conclusion of what must be true (what the circumstances possibly show or tell)
how to get to Federal Courts
- federal question
- diversity and $75K or more
- bankruptcy
- state v state
- maritime
how many court of appeals exsist
13 state court of appeals (AR is the 8th)
1 US Supreme Court of Appeals
State courts consist of what types of court
- district courts
- circuit court
- court of appeals
- AR Supreme Court
Types of civil cases
- domestic relations cases DR - family law; divorce; custody issue; adoption
- Civil CV - torts; breach of contract
- Probate PR - wills; estate; intestacy
- Juvenile JV - minors
- administrative hearings
Juvenile Court
- crime is a delinquency
- FINS family in need of service (no crime committed)
- DHS foster care cases (a case is mandatory whenever taking children away from a parent’s care)
Jurisdiciton
power to hear a case
Venue
where a case is held
Civil court process (overview)
- incident/controversy/dispute
- file a compliant
- summons
- answer or motion to dismiss
- discovery
- motion for summary judgment
- trial
- appeal
what must be included in a complaint
- the facts and law
- jurisdiction and venue
Motion to dismiss due to…
(1) lack of jurisdiction over the subject matter,
(2) lack of jurisdiction over the person,
(3) improper venue,
(4) insufficiency of process,
(5) insufficiency of service of process,
(6) failure to state facts upon which relief can be granted,
(7) failure to join a party under Rule 19,
(8) pendency of another action between the same parties arising out of the same transaction or occurrence
Discovery
- interrogatories
- depositions
- request for production of documents/inspection
- request for admissions
- physical or mental evaluation
Motion for summary judgment (2 key elements)
- no dispute as to the material fact
2. one party is entitled to judgment as a matter of law
Role of a paralegal DONTS (5)
- don’t give legal advice
- cant appear in court
- cant establish attorney-client relationship on behalf of the attorney
- cant set fees
- cant sign pleadings
Role of a paralegal DOS (7)
- draft pleadings
- relay advice
- research
- organize info and files
- calendering
- interview clients
- corresposndance
Structors of law office
- partners (makes decisions)
- associates (assign cases)
- law clerks
- office managers (typically hire paralegals)
- paralegal
- assistants
Jurisdiction (2 types)
- subject matter jurisdiction
2. personal jurisdiction
subject matter jurisdiciton
authority of a court to hear a particular type of case (the matte of the case)
Personal jusrisdiction
jurisdiction over a particular person or property
Minimum contact
must have this in order for a court to have jurisdiction over a person residing in a different state
Venue
which court has the authority (which district); determined by where the parties live or where the accident took place
Laws (2 types)
- procedural
2. substantive
Procedural law
the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings (how to conduct a case)
ex. rules of evidence, rules of procedrual
Substantive law
the statutory, or written law, that defines rights and duties, such as crimes and punishments (in the criminal law), civil rights and responsibilities in civil law
intervenor
one who wants to be brought into the lawsuit; has their own stake in the outcome
appellant & appellee
appellant: one who brings the appeal
appellee: the person responding to the appeal
elements of contracts
- contract - offer, acceptance, consideration
- breach
- damages
Intentional tort
intent to cause HARM
elements of negligence
- a duty
- breach of duty
- causation (proximate cause & cause in fact)
- damages
2 types of recovery/remedies
- monetary
2. equitable
monetary recovery
- compensatory - special (specific) & general
2. punitive - to punish
equitable remedies
- injunction - court order to do something
2. specific performance - court order to stop doing something
disparate treatment
A policy or practice treating someone differently (a protected class) from others
disparate impact
the policy is not discriminating but the practice shows other wise (the policy on its face does not seem discriminating)
Rules of summons 7
- sign and dated by clerk
- name of court
- caption
- plaintiff’s attorney
- direct to defendant
- time to respond
- default judgment MAY be entered
Server (who is allow to serve a complaint)
- by the sheriff (or bailiff if in court)
- by a process server
- by the plaintiff through certified mail
how to serve a complaint to the individual (personally)
- must be served with the summons
- personally:
- leave at house, if they refuse, leave it w/ someone residing at the home 14 years or older
- client must authorize their attorney to accept summons on their behalf
- if defendant is a plenary, the service must be upon the defendant and guardian
- if defendant is in jail, it must be served to the administrator, first class mail marked “legal”, and a copy of it mailed to their spouse
Ex Parte
speaking to the judge without the other party’s attorney present
* can only occur before the complaint is served
how to serve a complaint to an individual through mail
- must be certified mail
- marked restricted
- return receipt signed by the defendant
warning order (process of getting one)
- the where abouts of the defendant are unknown
- affidavit of “diligent inquiry”
- issued by the law clerk
Warning order issued must contain
caption,
description of property,
warning 30 days to appear or face default, \published for 2 consecutive weeks,
in the county where the action is filed,
a copy is mailed to the dfendant’s last known address
what is considered “diligent inquiry”
all other options has failed including: returned mail Google skip trace social media jail website
proof of service or affidavit of service
after you serving someone with a PLEADING (such as a complaint), you must submit a poof/affidavit of service
time frame to serve someone
from the day of filing with the clerk, must be served/completed in 120 days or it gets dismiss
Rule 5, serving other pleadings and papers (not the complaint)
- all parties involve must receive copies, can be through regular mail, hand delivers, leave it with someone 14 years or older, email/fax to attorney only (if no attorney, than email or fax cannot be used)
- must file with the clerk
Certificate of service
when filing MOTIONS, must include a certificate of service stating how and when it was sent
redacted information
if a pleading contains confidential information such as social, account#, dob, minor info, medial record, classified info, trade secrets, drug test, a redacted copy must be filed in the clerks office, but an original copy must be provided to the court for the judge
time, less than 14 days
if a response time is less than 14 days, Saturday Sunday and holidays are not included
serving motions
- must go to all parties through regular mail
time frame to answer a pleading
- answers in 30 days from service of summons (the counting day starts the day after the service of the summons)
- if in jail, an additional 30 days (=60) is added
if a counter claim or cross claim is sent as an answer, how many days to respond
30 days to respond
time frame to respond to a motion
- response 10 days form service
- to reply to a response, 5 days after service
- all include the 3 day rule and do NOT including sat, sun, and holidays
filing an answer
- must admit or deny to EACH statement, if it is missed, it is presumed to be admitted
- try to raise a defense
- any counter claims
motion to dismiss
is filed instead of an answer due to:
- lack of jurisdiction over subject matter
- lack of jurisdiction of person
- improper venue
- improper process
- failure to state facts in which relief can be granted (failure to state a claim)
when a motion to dismiss is denied, how may days do you then have to file an answer
10 days including the 3 day rule
standing order
when a divorce begins, a standing order is issued, basically stating that the parties refrain from harming the other, harming or selling of their properties (basically being civil)
5 main Discovery
- interrogatories
- depositions
- request for admissions
- request for productions/inspection
- physical or mental evalulation
general rule of discovery
- frequency is unlimited
- can get anything relevant to the case as long as it is NOT privilege
- non-admissible documents must still be turned over upon request
- must turn over anything reasonably calculated that may lead to discover able evidence
inadvertent discolusre
you have 14 days to return “privileged” info sent by accident from the other side
protective order
embarrassing or highly secret info sent to the other side; a request that the court should issue
supplement of responses
if one forgets or realize additional info needs to be stated in the answer of an interroagatory
motion to compel (what it is and how to get one)
- rule 37; procedure if other side refuses to hand over requested documents or discovery
- the motion must include:
- that you contacted the other side informing them of the issue (good faith result)
interrogatories (what is it and response time)
questions sent to the other side to answer under oath
* has 30 days to respond
if interrogatories are sent with summons and complaint, they have 45 days to respond to JUST the interrogatoreis
depositions (what is it and what occurs during)
an interview; asking and answering questions in person
- a court report normally is there under oath to record and transcribe the depositions
- attorney can object only if info is privilege
- can also preserve an objection or note a question, for court (normally with a confusing or complicated question)
- b/c the attorney can NOT tell someone to not answer a quesiton
request for admission (what is it and response time)
statements given to the other side to admit or deny
* 30 days to respond; if it is not, they are presumed to ALL be admitted
request for productions/inspection (what is it and response time)
asking the other side to produce documents such as bank account statements, driver’s license, insurance, etc
- a protective order can be used here
- for larger items such as cars or dispute of land, can ask to inspect
- 30 days to respond
what can be done as to eliminate a case from going to trial
- voluntary dismissal
- default judgment
- involuntary dismissal
- summary judgment
voluntary dismissal
the plaintiff of a case dismisses their complaint
default judgment
if a defendant chooses not to answer, or answers too late,a default judgment may be intered
involantray dismissal
lack of prosecution; 12 months a case sits, not moving forward
* will be dismissed with out prejudice, unless it has been dismissed before
with prejudice
canNOT file the same case again
without prejudice
can file the same case again
trail prep (3 need to know)
- witnesses
- strategy/statements (opening, closings, questions)
- exhibit
* know what witness or exhibit will help prove each one of your elements; an exhibit may not be entered until you have the correct witness, etc
bench and jury trial process
- Opening statement (cannot yet argue the case)
- Plaintiff’s case
a. Direct examination (do NOT ask questions that suggest the answer)
b. cross examination by defendant (can ask questions that suggest the answer; box them into their answer of yes or no)
c. Redirect (can only bring up questions that was brought up during cross examination) - Defendant’s case (same process of a b and c)
- Closing argument (sum up all proof of each element and ask jury or judge to rule in your favor)
hostile witness
an attorney can ask permission from the judge to treat a witness as a hostile witness (when they refuse to fully answer a questions) and turn a direct examination into a cross examination
* can occur when the plaintiff’s attorney request the witness of the defendant
rebuttal witness
used to rebut an already presented witness to rebut their previous statment
exhibits rules
- mark with a #
- identify it (if both sides do not agree to the exhibit, the attorney must ask the witness to identify it)
- authenticate it
- must be relevant (prove that it is, either with the correct witness)
- introduce it into evidence (an attorney cannot fully discuss the exhibit until it has been introduce into evidence)
