Pre-Trial Procedures Flashcards
How are pleadings supposed to be styled?
They should be simple, concise, and direct.
What elements should a pleading have?
1). Jurisdictional basis, factual basis, Relief Requested, special matters, (conditions precedent, offical dcument, judgemnt or degree, time and place, special damages)
What is the complaint?
This is the legal pleading filed with the court clerk by the P to initiate the lawsuit. IT sets out facts legal claims for relief and a demand for judgment. The complaint must state a cause of action. and it must be served on the D who can respond.
What is an answer?
This is a pleading that challenges a party’s right to the relief requested in the pleading.
What is the effect of not denying something in the answer?
Everything not denied results in an admission, except with respect to allegations about damages.
What are some of the affirmative defenses?
accord and satisfaction, assumption of risk, contributory negligence, bankruptcy discharge, duress, estoppel, failure of consideration, illegality, laches, payment, release, res judicata, waiver, …
How long do you have to serve an answer?
20 days from service of the original process and as long as no default has been entered by the court they can still file a responsive pleading any time till the default is entered.
What is a counterclaim?
This is when the D files a lawsuit against the P.
How long do you have to file an answer to a counterclaim?
20 days from service
What is a reply to a counterclaim?
A reply to a counterclaim (a responsive pleading) is used to raise defenses in avoidance of affirmative defenses.
What is a cross-claim?
A cross claim is a claim by one party against a co-party.
When do you have to answer a cross claim?
20 days afer service.
When can you amend the pleadings without approval?
You have 20 days if no responsive pleading is permitted and the action is not on the trial calendar.
When can you amend the pleadings with approval?
When the court says you can after you request a leave of court.
When do you have to respond to the amended pleading?
10 days
What if you need to add new parties and have them served how long do you have?
You have 120 days to serve the amended complaint.
What is a case management conference?
This is the initial pretrial meeting of opposing counsel.
What do you do in a case management conference?
You schedule motions, pleadings, set time of trial, coordinate progress of case, limit discovery, schedule motions, look at settlement possibilities, file stipulations, consider using a magistrate, schedule other conferences as needed.
What is a pretrial conference?
This occurs when an action is at issue and the court can make you come and try to simplify the disputed issues, try to get admissions of fact, limit the number of expert witnesses, discuss juror notebooks, and try to discuss all the last issues about the case.
What happens if you fail to attend the case management conference?
They only sanction you if failure to comply is willful and deliberate.
