Trial Flashcards
When is a jury trial guaranteed?
It is guaranteed in all criminal prosecutions and in all civil actions in which the amount in controversy exceeds $1,500.
The right to a jury trial is not waived by failing to serve a written demand within a certain number of days.
They may be waived with the court’s permission, except the court’s permission is not needed to waive a jury trial in an action arising on contract.
How many for cause challenges and peremptory challenges are available?
Parties have unlimited for cause challenges.
Parties have three peremptory challenges.
Is a P entitled to a voluntary dismissal?
A P is permitted to voluntarily dismiss an action, without prejudice, by filing a notice of dismissal before the pretrial hearing. After pretrial hearing, an action may only be dismissed by agreement of the parties or by the court’s permission.
When is there an involuntary dismissal?
The court may dismiss a case, without prejudice, to a future action:
- where the P fails to appear at trial;
- for want of necessary parties;
- on the application of some of the Ds, where there are others whom the P fails to prosecute with diligence; or
- for disobedience by the P of an order concerning the proceedings in the action.
If an action is not diligently prosecuted, the court may require the P to show why the action should not be dismissed. If the P does not show good cause the court will dismiss without prejudice.
If an action has been commenced and, within one year, no pleading has been filed or other action taken, the court will dismiss the case without prejudice after providing notice to the parties. the court may, upon written application and for good cause shown, allow the action to remain on its docket.
When is there default judgment?
A D’s failure to answer a petition or otherwise present a defense will result in a default judgment for the P.
If the D has made an appearance in the case or filed a motion or pleading, the court will not enter default judgment until providing the D with five days’ notice of such judgment.
Default judgments are generally disfavored, and a court may exercise its discretion to set aside a default judgment.
When does a judgment become unenforceable?
After five years.
How may a P enforce a judgment?
A P may:
- obtain a judgment lien by filing a statement of judgment with the office of land records in any county in Oklahoma where the D owns real property;
- obtain a writ of execution from the county clerk and directing the county sheriff to execute on any real or personal property that the D has in the county; and
- have a court issue a garnishment summons to garnish debts owed to the D.
What other judgments are available?
A party seeking judgment on a p-note seeks an in personam judgment.
A party seeking the foreclosure of a mortgage lien securing payment of the note seeks an in rem judgment determining the validity and priority of the P’s lien, foreclosing the mortgage, and ordering the property sold. A party may then file for a deficiency judgment.
Lis pendens charges third parties with notice of a claimed interest in real property. No person can acquire an interest in the property while the action is pending, providing that:
- service of process is made on the D within 120 days after filing the petition, and
- a notice of the pendency of the action is filed of record in the office of the county clerk in which the land is situated.
What is judgment on the pleadings?
It tests the sufficiency of the pleadings and presents a questions of law as to whether the facts as alleged are sufficient to state a cause of action or a defense.
This motion is proper procedure when all of the material allegations of fact are admitted in the pleadings and only questions of law remain.
These are not favored in Oklahoma. Pleadings are construed liberally in favor of the pleader.
What is a demurrer?
Following the production of evidence by the party on whom rests the burden on the issues, the adverse party may file a demurrer, alleging that no cause of action or defense has been shown.
If the demurrer is granted, then judgment is ordered for the demurring party. If the court overrules the demurrer, the adverse party will proceed to produce evidence.
What is a directed verdict?
It is an order from the presiding judge to the jury to return a particular verdict.
At the close of the evidence offered by an opposing party or at the close of the case, a party may make a motion for a directed verdict.
It will be granted if the evidence, viewed in the light most favorable to the non-moving party, is such that there is no basis for a reasonable jury to reach a verdict in favor of the non-moving party.
What is a motion for judgment notwithstanding the verdict?
It occurs when the judge in a civil jury trial overrules the decision of the jury and reverses or amends the verdict.
It may be made within 10 days after the entry of judgment, provided that the party had previously made a motion for directed verdict.
It is granted if there is not sufficient evidence for a reasonable jury to have reached its verdict.
It may be joined with a motion for a new trial.
What is a motion for a new trial?
It is an attempt by one party to have the court overturn or set aside its decision or jury verdict, usually based on allegations of some vital error in the court’s handling of the trial.
Grounds for a new trial:
- irregularity in the proceedings or of any order of the court, or abuse of discretion, by which the party was prevented from having a fair trial;
- misconduct of the jury or a prevailing party;
- accident or surprise;
- excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice (The court may order a remittitur);
- error in the assessment of the amount of recovery, where the action is upon a contract or for injury or detention of property;
- that the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law;
- newly discovered material evidence which would not, with reasonable diligence, have been discovered and produced at trial;
- error of law occurring at trial, and objected to by the party making the application; or
- when, without fault of the complaining party, it becomes impossible to prepare for record of an appeal.
This motion must be fined within 10 days after judgment.
The motion must contain every ground on which the moving party intends to rely. Each error must be separately stated with specificity, except that errors in the admission and exclusion of evidence may be asserted without being separately stated.
if the motion is denied, the movant may not, on appeal, raise allegations of error that were available when he filed the motion for a new trial but did not assert therein.
What are motions to vacate or modify judgment?
A court may vacate or modify a judgment in the following circumstances:
- by granting a new trial;
- where the D had no actual notice of the pendency of the action at the time the judgment or order was filled;
- for mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order;
- for fraud, practice by the successful party, in obtaining a judgment or order;
- for erroneous proceedings against an infant or incompetent, where the condition of such D does not appear in the records, nor the error in the proceedings;
- for the death of one of the parties before judgment;
- for unavoidable casualty or misfortune, preventing the party from prosecuting or defending;
- for errors in a judgment, shown by an infant within one year after arriving at full age; or
- for taking judgments upon warrants of attorney for more than was due to the P, when the D was not summoned or otherwise legally notified of the time and place of taking such judgment.
It must be filed within 30 days following judgment, or during the same time period of the court’s initiative.
Following the 30 day period, all of the grounds for modification or vacation, except for 1 and 3 above, are still available if the motion is made by petition, verified by affidavit, setting forth the judgment or order and the grounds to vacate or modify it.
The motion must be filed within two years after the filing of the judgment.
If a party was served by publication, he may have a default judgment set aside within three years after its entry.
