trial procedures and res judicata

Question 1

note of issue

Answer 1

Either party may file to put trial on court’s calendar, after discovery, when case ready for trial.

a) Requesting Jury Trial:
1) Party Filling Note of Issue: must demand jury in Note of Issue, else: waiver!
2) Other Party: other parties must file separate demand for jury, else: waiver!

Question 2

right to jury (civil)

Answer 2

a) Action Seeking Solely Money Damages
b) Recovery of chattel (replevin)
c) Claim to Real Property
d) Annulment of marriage
e) Divorce Action on Issue of the Grounds for Divorce—no jury for money relief or child custody
f) Nuisance
also, action for med mal

Civil Jury: contains 6 jurors—don’t need unanimous (5/6 vote is sufficient)

Question 3

res judicata (claim preclusion)

Answer 3

to avoid and prevent re-litigation of same claim

1) Transactional Test: When claim against D brought to final judgment on merits, all other claims by P against D barred if claim arises out of same transaction/occurrence (facts)
(a) Even if Allege Different Theories
(b) Even if Seek Different Remedies—damages v. equity
2) EXCEPT: Matrimonial Disputes re Grounds Based on Domestic Abuse (Policy)
(a) Policy: personal injury claims require a lot of time, which would slow down this woman seeking to get out of an abusive marriage…so could bring divorce action first and tort claim for personal injuries later

Question 4

collateral estoppel (issue preclusion)

Answer 4

to avoid need for re-litigation of specific fact previously decided.

1) Procedure: granted if you can make 3 part showing:
(a) Issue in former proceeding and current proceeding is identical
(b) Issue was actually litigated and decided in former proceeding; AND
(c) Party against whom preclusion is asserted had full/fair opportunity to litigate issue in former proceeding—was actually present.
2) Can be used offensively (by P against D) or defensively (by D against P).

Question 5

discovery

Answer 5

depositions are permitted prior to suit where potential P can show that he has a cause of action but is uncertain as to details

Question 6

default judgment

Answer 6

may be entered by clerk only for sum certain for for sum that can be made certain in each of causes of action in complaint

in other cases, moving party must apply to ct for judgment by default within one year of default