The Civil Justice System Flashcards
In civil trials, who usually offers evidence first?
In civil trials, the plaintiff usually offers its evidence first.
In most cases, the civil plaintiff must prove his case only by the preponderance of the evidence, meaning that there must only be slightly more evidence in favor than against.
Like criminal trials, civil trials begin with the opening statements, starting with the party that bears the burden of proof. Thus, civil trials begin with the plaintiff’s counsel speaking first. As in criminal trials, the opening is devoted to introducing the parties, stating the nature of the dispute, and outlining the evidence the party expects to produce.
The arraignment is part of the criminal justice process; it is not part of civil litigation.
After a civil jury trial, which side may appeal from an adverse verdict.
Both sides may appeal from an adverse verdict, either as to liability or damages. As in the criminal system, the appellate court is largely limited to reviewing the legal decision of the court rather than the factual determination of the jury. The appeals court may reverse and remand for a new trial on some or all of the issues, may order that a certain portion of the awarded damages be remitted, or may enter final judgment, if legal grounds are clear, in favor of either party.
What is the purpose of “post-judgment discovery” in a civil case?
In many instances, particularly in fraud litigation, a judgment might go uncollected because the defendant has already squandered or secreted the assets. In such circumstances, a plaintiff may conduct post-judgment discovery, including a deposition of the defendant, in an attempt to locate assets to satisfy a judgment.
During a deposition, the deponent or counsel can object to particular questions as in a trial, but even if an objection is made, generally, the deponent must answer the questions.
During a deposition, the deponent or counsel can object to particular questions as in a trial, but even if an objection is made, the deponent must answer the questions. The evidence is taken subject to the objections. This means that if an objection is made to a particular question asked during a deposition, the objection is duly noted, and if the depositional evidence is presented at trial, the judge will be asked to rule on the objection before that part of the deposition is read to the jury.
The fidelity bond claim is
The fidelity bond claim is an often-overlooked method of recovery for losses due to internal fraud. A fidelity bond is a policy issued by many large insurance companies under which the insured entity is covered against losses caused by the dishonest or fraudulent acts of its employees. It is often helpful for organizations to have a fidelity bond, since general liability insurance and many other policies will not cover damages from intentional acts like internal fraud.
Interrogatories are
Interrogatories are questions that are submitted to an opposing party in a suit; they are something like a written deposition.
Interrogatories are submitted to the party in writing.
Therefore, interrogatories cannot be given to any witness or potential witness who is not a party to the lawsuit.
If the receiving party thinks that a question is improper, then he may object to the question. If no objection is given, then the party must answer the question in writing. Some parties will try to provide as little information as possible but still give a “truthful” answer. However, that tactic can backfire—if the answering party does not provide the information requested, that party cannot introduce evidence on those issues at trial and can be sanctioned by the court.
All answers to interrogatories must be sworn to under oath.
Unlike responses to requests for admission, responses to interrogatories are not binding, meaning the responding party may offer testimony that is inconsistent with its responses to interrogatories. However, the inconsistent response to an interrogatory can be used to impeach (discredit the testimony of) the witness at trial.
A motion for summary judgment is
A motion for summary judgment asks a judge to decide the case, without a trial, based on the evidence contained in the complaint and answer. A motion for summary judgment will be granted if the court determines that the pleadings and proof clearly demonstrate that there is no genuine material issue of fact involved in the proceedings and that the moving party is entitled to judgment as a matter of law.
Either side in a lawsuit can file for summary judgment. The motion is granted unless it can be shown that some of the facts as presented are in dispute.
During discovery in a civil case, a party refuses to answer a relevant discovery request on the ground that the information would not be admissible as evidence at trial. The other party asks that the court compel the responding party to answer the request. How should the court rule?
The court should compel the party to provide the information because it is relevant to the suit. It does not matter at this stage if it is admissible.
Discovery refers to the formal process whereby the parties collect evidence and learn the details of the opposing case. Under federal rules, either party may take discovery regarding any matter, not privileged, that is relevant to the subject matter of the action or that might lead to admissible evidence. Thus, even information that is not admissible at trial can be obtained through discovery.
Fifth Amendment privilege against self-incrimination in civil proceeding
The Fifth Amendment privilege against self-incrimination is more limited in civil proceedings than in criminal proceedings; a party still may refuse to answer questions or produce evidence, but if he does, inferences might be drawn and the refusal may be disclosed to the jury. The judge also may enter sanctions against the party refusing to produce evidence up to and including the entry of a judgment against such party.
The commencement of a civil action in federal court begins with
A civil action begins with the filing of a complaint in the appropriate court, usually in the jurisdiction in which the defendant resides or where the claim arose. In some limited circumstances, cases may occasionally be filed where the plaintiff resides, but the document would still be called a “complaint,” not an information.
The federal rules provide that the complaint should be a “short and plain statement” showing the court’s jurisdiction to hear the case, the grounds for relief, and a demand for judgment.
Indictments and informations are filing documents used in criminal cases, and a writ is a formal order by a court or other judicial body.
In most civil cases, the parties may stipulate that the verdict at trial need not be unanimous. T/F
Trial procedures in civil actions are similar to criminal cases, with several notable exceptions. Juries need not necessarily consist of 12 people, and many civil cases are heard by six jurors. The parties in civil cases also may stipulate that the verdict need not be unanimous.
Rule 26 of the Federal Rules of Civil Procedure, organizations should create “litigation hold” procedures.
To comply with Rule 26 of the Federal Rules of Civil Procedure, organizations should create “litigation hold” procedures. These are the steps taken to notify employees to suspend the destruction of potentially relevant records. The duty to issue a litigation hold arises when litigation is “reasonably anticipated.”
Whether an organization should “reasonably anticipate” litigation is determined based on the facts and varies from case to case. Common triggers for anticipation are notices sent by government agencies, unequivocal threats of litigation for credible issues, receiving a summons or complaint, and many others. Vague rumors of litigation generally do not trigger litigation holds, but it is best to contact experienced legal counsel when faced with threats of litigation to determine whether such procedures are necessary.
Post-judgment discovery procedures include:
Post-judgment discovery procedures include:
Judgment debtor examinations: If a judgment creditor obtains an order for examination of a judgment debtor, the order will require that the judgment debtor appear in court and answer questions under oath about his financial assets.
Post-judgment requests for documents or things to be produced: A judgment creditor can serve the debtor with a production request requiring the debtor to bring certain documents with him to the debtor examination if the documents are material and important to the creditor’s collection efforts.
Post-judgment interrogatories: Post-judgment interrogatories are written questions about the debtor’s assets that he must answer in writing.
Post-judgment depositions: A post-judgment deposition is sworn testimony given by a debtor upon questioning about his assets, liabilities, sources of income, and so on.
subpoena duces tecum
If the deposing attorney wishes to inspect or refer to certain documents in the witness’s possession during the proceedings, these can be demanded by a subpoena duces tecum, a legal order for the witness to produce the documents for reference during the deposition.
Under the Federal Rules of Civil Procedure, any relevant matter is discoverable unless it is:
Under federal rules, either party may take discovery regarding any matter, not privileged, that is relevant to the subject matter of the action or that might lead to admissible evidence. Thus, even information that is not admissible at trial can be obtained through discovery.
