Sources of law, courts and dispute Flashcards
Declaration/statement-of-facts made voluntarily and confirmed by oath/affirmation, taken before a person having authority to administer such oath/affirmation
Affidavit
An assertion in an answer to a complaint that even if defendant has acted as plaintiff alleges, the defendant’s conduct was not the real/legal cause of harm to plaintiff
Affirmative defense
Alternative techniques (negotiation, mediation, arbitration, med-arb, arb-med, minitrials, and summary jury trials) to resolve disputes without litigation
Alternative dispute resolution (ADR)
The instrument by which a defendant admits or denies the various allegations stated in the complaint against them
Answer
The party appealing a case
Appellant
The other party in a case being appealed
Appellee
In the event of a dispute arising out of a contract, the parties will arbitrate specific issues in a stated manner (state that the parties will arbitrate all disputes relating to or arising out of their contract)
Arbitration clause
Parties to a dispute present their case to an arbitrator who makes an award but keeps it secret while the parties try to resolve the dispute through mediation. A failed mediation means the arbitration decision is binding
Arb/med
A trial in which a judge, not a jury, decides all issues
Bench trial
A contractual clause wherein parties agree in advance to the jurisdiction in which a dispute must be litigated
Choice-of-forum
clause
The identification of the place where the court’s decision in a particular case, a statute, or a regulation is printed/can be accessed. Case … include the
names of the parties, the court, and the date of the decision.
Citation(s)
The methods, procedures, and practices that govern the
processing of a civil lawsuit from start to finish
Civil procedure
Litigation/arbitration brought on behalf of a group of persons (class) with common interests by a representative
Class action
A type of ADR that combines mediation and negotiation (negotiations are 4-way meetings with attorneys and clients present)
Collaborative law
A legal claim by defendant in opposition to/deduction from the claim of the plaintiff
Counterclaim
Attorney–client privilege does not protect client
communications made to further a crime or illegal act
Crime-fraud exception
A … proceeding takes place when successfully appealed case will be litigated again from the beginning
de novo
A judgment that may be entered in favor of the plaintiff if the defendant does not file an answer within the time required
Default judgement
The oral questioning of any person who may have helpful information about the facts of a case
Deposition
A judge’s order to a jury to return a particular verdict. After presenting evidence in a jury trial, either party may assert that the other side has not produced enough evidence to support the legal claim/defense. The moving party then requests that the judge direct that a verdict be entered in favor of them
Directed verdict
Process of collecting evidence to support claims in lawsuit
Discovery
The principle whereby the Supreme Court has the power to decide which cases within its jurisdiction it will adjudicate
Discretionary review
Dismissed with the provision that the plaintiff may not assert the same claims in another case.
Dismissed with prejudice
Dismissed with the provision that the plaintiff may refile the same/modified claims and recommence litigation
Dismissed without prejudice
Backward-looking negotiation that addresses past events that have caused disagreement
Dispute negotiation
The power of U.S. district courts to decide lawsuits between citizens of two different states when amount in controversy exceeds $75,000
Diversity jurisdiction
All the judges of a court of appeals sit together to hear and decide a particularly important or close case
En banc hearing
In a diversity action in federal court, except as to matters governed by the U.S. Constitution and acts of Congress, the law to be applied in any case is the law of the state in which the federal court hearing the case is situated
Erie doctrine
Federal law requiring courts to honor agreements to arbitrate and arbitration awards
Federal arbitration act (FFA)
A question in a lawsuit that concerns federal law
Federal question
The procedural rules that govern civil litigation in U.S. district courts
Federal Rules of Civil Procedure (FRCP)
Each side submits its “best and final” offer to the arbitrator, who must choose one of the two proposals
Final-offer arbitration
Personal jurisdiction based on the residence or activities of the person being sued. It is the power that a court has over the defendant itself, rather than interests in property or property itself
In personam jurisdiction
Jurisdiction over property based on the location of the property at issue in the lawsuit
In rem jurisdiction
Written question to a party to a lawsuit and its attorney
Interrogatory
A judgment in which the judge reverses the jury verdict on the grounds that the evidence of the prevailing party was so weak that no reasonable jury could have resolved the dispute in that party’s favor
Judgment n.o.v. (aka judgement nonwithstanding)
The suspension of a company’s usual document disposal procedures when there is reason to believe the documents are relevant to pending/potential litigation
Litigation hold procedure
Subjection of an out-of-state defendant to state jurisdiction when the defendant is doing business/commits a civil wrong in the state
Long-arm statute
When one party will not do business with the other unless it agrees to arbitrate any future disputes
Mandatory arbitration
Parties to a dispute enter mediation with the commitment to submit the dispute to binding arbitration if mediation fails to resolve the conflict.
Med-arb
Method of ADR in which lawyers present their cases in a trial format before a neutral third party, who acts as an adviser, or before executives of the parties to the dispute. The parties to the dispute then meet to try to resolve their differences
Minitrial
A motion filed immediately after the complaint and answer have been filed. One party, usually the defendant, argues that the pleadings alone demonstrate that the action is futile
Motion for judgement on the pleadings
An individual who hears complaints, engages in fact finding, and promotes informal forms of dispute resolution
Ombudsperson
A summary judgment granted on some issues of a case while other issues proceed to trial
Partial summary judgement
The power of a state court to hear (decide) a civil case based upon residence or location of activities of the person being sued
Personal jurisdiction (in personam jurisdiction)
The formal allegations by the parties to a lawsuit of their respective claims and defenses
Pleadings
Challenging the validity of a U.S. patent during the nine-month period immediately following issuance
Posthearing
The request for relief in a complaint
Prayer
First stage in arbitration: parties submit trial-like briefs,
supporting documents, written statements to make their
case
Prehearing
The power of a court of appeal to send a case back to a
lower court for reconsideration
Remand
The published volumes of case decisions by a particular
court or group of courts
Reporter
A collection of common law rules in a particular subject area – persuasive rather than authoritative sources of law
Restatement
Delivery of legal documents, such as a complaint in a lawsuit, to the party required to respond to them
Service of process
A conference a judge holds to give each side a candid assessment of the strengths/weaknesses of its case and the likely outcome if the case goes to trial
Settlement conference
The situation in which different U.S. Courts of Appeal
disagree on a legal issue
Split in circuits
An instruction by the judge to the jury that the jury may
presume that missing or altered evidence would have
been unfavorable to the party causing its alteration
Spoilation inference
Requirement that a party must have a sufficient stake/interest in a controversy to bring a lawsuit, and will benefit from a favorable ruling
Standing
‘To stand by a decision’. Once a court resolves a particular issue, other courts addressing a similar legal problem generally follow the initial court’s decision.
‘Stare decisis’
Jurisdiction over cases of a particular type
Subject matter jurisdiction
A test to determine whether attorney-client privilege can be extended to a party who is not the client of the attorney. The tests holds true if the employee’s communication with a corporation’s lawyer is made at the direction of the employee’s supervisors and in the course and scope of the employee’s employment
Subject matter test
A procedural device available for disposition of a
controversy without trial. A judge grants … only if:
- all of the written evidence before the court clearly
establishes that there are no disputed issues of
material fact
- the party who requested the summary judgment is
entitled to prevail as a matter of law
Summary judgement
ADR method in which parties to a dispute put their cases before a real jury, which renders a nonbinding decision
Summary jury trial (SJT)
The official notice to a defendant that a lawsuit is pending against the defendant in a particular court
Summons
Forward-looking negotiations concerned with desired
relationships and future variable shared gains
Transactional negociations
To nullify a previous court’s ruling – courts of appeal have the power to do this
Vacate
Questioning of potential jurors to determine possible bias
voir dire
Protection of information, including the private memoranda and personal thoughts of the attorney, created by the attorney while preparing a case for trial
Work-product doctrine
