Quiz #4: Chapter 7 Flashcards
What are the types of pleadings?
- summons and complaint
- demurrer
- answer
- counterclaim
- bill of particulars
Discovery
Process of investigating facts of a case before trail. Rules established to prevent trial by ambush.
Attorney client privelege
Confidential communications made by a client and his or her attorney.
What are the 3 elements needed to establish attorney-client privelege?
- both parties must agree that the attorney-client relationship does or will exist.
- the client must seek advice from the attorney in his or her capacity as a legal advisor.
- communication between the attorney and client must be identified to be confidential.
Deposition
Used at trial ot in preparation for trial. Consists of oral examination followed by cross-examination by opposing side and interragotories.
What is the process for witness preparation?
- review the record
- do not be antagonistic or sarcastic
- answer only the questions asked
- slow down
- clarify questions
Pre-trial motions
Motion to dismiss a case and for summary judgement.
Pretrial conference
May be ordered at the judges initiative or parties to a lawsuit. Eliminate matters not in dispute. Parties agree on the issues and settle procedural matters prior to trial.
Notice of trial
One a decision to go forward is reached, the case is placed on the court’s calendar.
The court
- handles conduct of trial
- decides questions of law
- determines issues of procedure
- decides if evidence is admissible
- changes the jury
The jury
- selected from jury list
- determines issues of fact
- determines damages, if any
Subpoenas
A legal order requiring the appearance of a person and/or the presentation of documents to a court administrative body.
Burden of proof
The obligation of the plaintiff to persuade the jury regarding the truth of his or her case. A preponderance of the credible evidence must be presented for a plaintiff to recover damages.
Res ipsa loquitur
Legal doctrine that shifts the burden of proof from the plaintiff to the defense in a negligence case.
What are the 3 elements necessary for the res ipsa loquitur?
- the event would not normally have occurred in the absence of negligence.
- the defendant must have had exclusive control over the instrumentality that caused the injury.
- the plaintiff must not have contributed to the injury.
Who does the Opening statements?
Plaintiff’s and defendant’s attorney
What are the types of examinations of witnesses?
- direct
* cross
Types of evidences
- direct or circumstantial
- statutory violation
- policy and procedure violation
- demonstrative evidence
- documentary evidence
- judicial notice rule
- hearsay evidence
- expert testimony
Defenses
- assumption of risk
- contributory negligence
- comparative negligence
- Good Samaritan statutes
- borrowed servant doctrine
- statute of limitations
- sovereign immunity
- intervening cause
End of trial
- closing statements
- judge’s charge to jury
- jury deliberation and decision
- awarding damages
Forms of damages
- nominal
- compensatory
- hedonic
- punitive
Nominal
awarded as a mere token in recognition that wrong has been committed when the actual amount of compensation is insignificant.
Compensatory
estimated reparation in money for detriment or injury sustained.
Hedonic
damages awarded to compensate an individual for the loss of enjoyment of life.
Punitive
additional money awards authorized when an injury is caused by gross carelessness or disregard for the safety of others.
joint and several liability
Plaintiff may bring suit against all persons who share responsibility for the plaintiff’s injury and may recover monetary damages from any one or all the defendants.
several liability
Each party to a lawsuit is liable only to the degree he or she has been determined to have contributed to the injury.
grounds for appeals
- verdict excessive
- evidence rejected should have been accepted
- inadmissible evidence permitted
execution of judgement
Follows after all appeals have been exhausted. A court order can be executed to satisfy plaintiff’s judgement.
complaint
the first pleading filed by a plaintiff that initiates a lawsuit. it identifies the parties to a suit, states a cause of action, and includes a demand for damages.
demurrer
a pleading filed by a defendant challenging the legal sufficiency of a complaint. can be filed by one of the parties to a lawsuit claiming that the evidence presented by the other party is insufficient to sustain an issue or case.
answer
a pleading that admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. requires the defendant to respond to each of the allegations contained in the complaint by stating his or her defenses and by admitting to or denying each of the plaintiff’s allegations.
counterclaim
generally filed with the answer denying the plaintiff’s claims by alleging that it was the plaintiff and not the defendant who committed a wrongful act and, therefore, it is the defendant who is entitled to damages.
bill of particulars
specific and detailed information than is provided in the complaint.
direct evidence
proof offered through direct testimony.
statutory violation
can constitute direct evidence of negligence, or it simply can voice a duty that is owed to a particular class of persons who are protected by the statute or regulation.
policy and procedure violation
if it causes injury to one whom the policy or procedure is designed to protect, such violation can give rise to evidence for negligent conduct.
demonstrative evidence
proof furnished by things themselves. It is considered to be the most trustworthy and preferred type of evidence.
documentary evidence
written information that is capable of making a truthful statement.
judicial notice rule
prescribes that well-known facts need not be proven, but rather are recognized by the court as fact.
hearsay evidence
based on what another has said or done and is not the result of the personal knowledge of the witness.
expert testimony
it is the jury’s function to receive testimony presented by witnesses and draw conclusions in the determination of facts.
assumption of risks
knowing that a danger exists and voluntarily accepting the risk by exposing oneself to it, aware that harm might occur.
contributory negligence
occurs when a person does not exercise reasonable care for his or her own safety.
comparative negligence
provides that the degree of negligence or carelessness of each party to a lawsuit must be established by the finder of fact and that each party then is responsible for his or her proportional share of any damages awarded.
good Samaritan statutes
encourages healthcare professionals to render assistance at the scene of emergencies.
borrowed servant doctrine
a special application of the doctrine of respondeat superior and applies when an employer lends an employee to another for a particular employment.
statute of limitations
refers to legislatively imposed time constraints that restrict the period of time after the occurrence of an injury during which a legal action must be commenced.
sovereign immunity
the common law doctrine by which federal and state governments historically have been immune from liability for harm suffered from the tortious conduct of employees.
intervening cause
arises when the act of a third party, independent of the defendant’s original negligent conduct, is the proximate cause of injury.
