Pg 1 Flashcards
What are the major rules that are used for civil procedure?
The FRCP. This is the federal rules of civil procedure
What are the primary authorities that have the binding force of law?
– US Constitution – California Constitution – Statutes – Code of Regulations – California Rules of Court – Cases
What does the California constitution set out?
The structure and hierarchy of California’s courts and rights
Who does the US constitution apply to?
All states
What does the California Code of Civil Procedure do?
Governs California state civil procedure
What is the code of regulations?
Administrative agencies
What do the California rules of court do?
Provide statewide uniformity and supplementary statutory provisions from the California Code of Civil Procedure and other codes. These rules can never be inconsistent with statutes
How are cases considered to be primary authorities?
They provide appellate court’s legal precedents and interpretations. They apply statutory provisions, make the rules of court, and sometimes make law
What are secondary authorities?
These help attorneys interpret and understand civil procedure laws and practices, but they are not considered to be the law. They are influential to gap-fill when primary authorities do not give answers
What are some examples of secondary authorities?
Legislative history, attorney general opinions, scholarly publications, treatises, practice guides, etc.
What is the difference between primary authorities and secondary authorities?
– primary authorities: they are the law and have binding force
– secondary authorities: not considered to be the law, they just help others understand the law
What does it mean that the US has an adversary system?
Parties begin suit, shape issues, and produce evidence. The judge is a passive umpire who creates decisions
What is an alien?
A citizen of a foreign nation that doesn’t hold US citizenship
Where are resident aliens citizens?
In their state of domicile
What is the hierarchy of the authority of law?
– constitution
– federal statutes
– federal rules of civil procedure and federal rules of evidence
Where do most federal statutes come from?
The federal judicial code title 28
Where do the FRCP and the federal rules of evidence come from?
From court administrators by authority from statute
Does the FRCP have an effect on state procedure?
No, the states have their own procedural rules
What is certiorari?
A writ seeking judicial review that is issued to a lower court to send the record of a proceeding for review. The Supreme Court grants or denies the case without making conclusions on it
What is dictum?
A statement of the rule of law that isn’t applicable to the facts before the court
What is a dual national?
A citizen of both the US and a foreign country
What do you do for diversity cases when someone is a dual national?
Only use the United States citizenship
What is federalism?
The relationship between the federal government and the national court system and the states and the judicial systems
What is the FRCP?
The federal rules of civil procedure. These are a set of rules that are issued by the Supreme Court oral advisory rules committee according to the rules enabling act.
Must the FRCP yield to federal statutes?
Yes because it is considered to be an inferior authority
Can procedural laws such as the FRCP enlarge substantive rights?
No.
What is garnishment?
Attaching intangibles like wages or bank accounts through an order that is served on a third-party that owes money to a debtor and directs payment to the creditor instead
What is habeas corpus?
Unlawful detention
What is incorporation?
Corporations in a state are considered to be persons that are organized under the laws of that state
What is Mandamus?
An order to a lower court to do something
What is minimal diversity?
One party is a citizen of one state and another is a citizen of another.
Do wives have separate legal identities from their husbands?
Yes
What is a motion?
Application to the court for an order by stating the reasons or grounds to support it and the relief that is being asked. This must be served on an adversary in writing unless a hearing is recorded verbatim or trial is happening
What is a natural person?
People or human beings
What is pro se?
An action that is brought when a person is not represented by counsel
What is protective jurisdiction?
This allows a federal court, even if there’s no diversity, to hear state law claims
What is the rendering state?
The place that the original action is brought
What is the enforcing state?
Where enforcement of the original judgement is sought
What is sua sponte?
When the judge acts on his own initiative without the request of parties
What is a writ of attachment?
When the plaintiff requests a court-directed officer to seize or encumber the defendant’s assets and give him a lien on the defendant’s property
What is an overview of the judicial process?
– event leading to suit – decision to sue – select the proper court – start an action or suit – pleading and parties – answer and response – pretrial discovery – summary judgment – setting the case for trial – jury selection – trial – submitting the case to the jury – post-trial motions – judgement and enforcement – appeal
What is involved in the decision to sue?
The plaintiff has to decide if legal relief is available, what his probability of winning is, and if relief is worth the trouble
How do you select the proper court for a suit?
Make sure it has both personal jurisdiction and subject matter jurisdiction, and also consider diversity, amount in controversy, and venue
How do you start a suit?
File a complaint and give notice by service of process
What is a complaint?
Plaintiff’s written statement against the defendant
What are pleadings?
When the parties take rigid positions and give each other general notice of the other’s contentions
What is involved in the answer or response stage of a suit?
This is when you can bring a motion to dismiss by challenging jurisdiction, method of service, venue, failure to state a claim, etc.
What is pretrial discovery?
When you get information before trial
How do you set a case for trial?
If the case has not been terminated because of dismissal, summary judgment, or settlement, it is then given a number and put on the trial calendar
What is involved in deciding whether to have a jury or not?
Under the seventh amendment, both parties have a right to a trial by jury, but if no one wants it, the judge will try the facts and the law
What happens just before you submit a case to a jury?
The judge and the lawyers privately discuss the judge’s instructions. The lawyers then submit proposals to the judge that are either granted or denied. The judge charges the jury on the basic aspects of the case, and if the lawyer doesn’t request anything or object to anything, he cannot complain about it later
What are post-trial motions?
When the jury returned a verdict and judgement is entered, the losing party can then make a motion like judgement notwithstanding the verdict or new trial
What is involved in the appeal process?
Appellate court authority to review the trial court’s decision. Parties have the right to appeal to at least one higher court. Review by the highest court is discretionary with a few exceptions
What are the things that should be discussed on an essay?
– jurisdiction – governing law – pleading – dimension of a civil action: size and number of claims or parties – discovery – summary judgement motion - trial – post-trial motions - appeals – former adjudication
What is within the power of the Supreme Court?
They can prescribe general rules of practice or procedure and rules of evidence for cases in US District courts or the Court of Appeals
What are the things that the US Supreme Court cannot do?
Abridge, enlarge, or modify any substantive right. All laws that are in conflict with these rules have no further force or effect after these rules take effect
What is the pretrial litigation process?
Early stages of a civil case. This includes: – preparing to file suit – complaint – response - discovery – pretrial dismissal or summary judgment – pre-trial conference
In the initial stage when a client brings a dispute to an attorney, what does the attorney try to do?
Get as much information as possible from the client and do an investigation to decide whether to take the case, what fees to charge, and what kind of service contract should be signed
When an attorney does a preliminary investigation, what is involved?
Gets information from the client, witnesses, gets documents, business records, government reports, and researches issues of law
What is a claim letter?
It is often sent to the defendant to explore settlement
