Unit 2: Civil Procedural Law & ADR Flashcards

Question

When does a written interrogation occur at precinct?

Answer 1

ONLY if criminal case preceded, happens in court

Answer 2

Meeting b/w both sides to try and resolve issue; attempting to settle determine if the case can be settled w/o court - If go to court; judge asks and encourages this

Answer 3

requested by either party Based on provided info, ask judge to issue a formal, BINDING decision - may reflect settlement discussed in pretrial conference

Answer 4

Preliminary examination of witness / juror by a judge or counsel to determine suitability→ “taking oath” Purpose: Jury Selection - Predominantly handled by attorney

Answer 5

If do NOT want, can try for Challenge for Cause

Answer 6

Either jury or judge can dismiss - Can be asked an Unlimited amount → designed to prevent bias; suspect bias no specific reason needed - During Voir Dire stage of trial

Answer 7

objection to proposed juror - limited, depends on type, jurisdiction and notoriety of case - Typically ~ 8 to 10 in each case - More notoriety = more challenges - Strictly used by attorneys - Do NOT have to state reason - Only challenged to give reason if judge or opposing counsel believes they are dismissing based on discrimination ex: when a juror expresses an inability to be fair and impar

Answer 8

1) Potential Jurors Selected 2) Judge asks standard questions to excuse anyone not capable of serving on jury 3) Mini-openings (3-5 min) 4) Attorneys question jurors to identify potential bias 5) Attorneys request to remove or challenge for cause jurors for potential biases

Answer 9

Outlines Facts / Presents Theory - prosecution & defense state purpose and case that will be heard → “first impressions” - Confined to facts proved by evidence - NOT argumentative - Begins w. party w. burden of proof (plaintiff)

Answer 10

Present + Question Facts

Answer 11

1) Direct: Initial questioning of (own) witness by party that called them to stand - Presents info before jury - Allow narrative answers, open-ended 2) Cross: Opposing party questions witness; Point out weaknesses of testimony; cannot ask outside of scope of direct - Close-ended questions 3) Re-Direct: offers only to whatever sides witnesses are being presented - Want to clarify, brief, to the point Shouldn’t have to redirect

Answer 12

Response to opposing party when they objects line of questioning as irrelevant or inadmissible info; Request by attorney to argue/provide credibility of evidence - allows proponent to persuade judge to include evidence - Occurs OUTSIDE of jury’s presence / transcript

Answer 13

So the Judge can fairly explore whether or not evidence/testimony is admissible. - Jury not legally qualified to determine

Answer 14

Ruling entered by Judge IF determined a lack of legally sufficient evidence for a REASONABLE jury to reach conclusion - motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case.

Answer 15

A judge will grant a motion if party(plaintiff) failed to meet the burden of proof (uncommon) Generally asked by defense, no connection to liability Sometimes plaintiff thinks overwhelmingly proves point and jury not necessary

Answer 16

Summations by attorneys to reiterate arguments, summarize evidence, and persuade the jury to adopt favorable interpretation

Answer 17

instructs the jury about the relevant laws that should guide its deliberations; Charges, possible consequences are explained 1) to listen to and review all of the evidence 2) to decide the facts in this case B that is, what actually happened 3) to apply the law to the facts 4) to reach a decision as to all claims and affirmative defenses

Answer 18

- After reaching a decision of liability, the jury notifies the bailiff/official overseer, who notifies the judge - All participants reconvene in the courtroom and the decision is announced (made by either the foreperson or the court clerk) - Jury finds plaintiff or defendant liable AND decide $ & any counterclaims that may be part of the case

Answer 19

Order filed in public records - not in effect until judge enters judgment - *Decide/award damages* - jury gives recommendations BUT judge has final say

Answer 20

Judgement by trial Judge after jury issued a verdict, setting aside the jury verdict & entering a judgment in the LOSING parties favor W/O a new trial / ruling differently - RARE: sometimes rendered at the conclusion of a jury trial - When: Law not applied correctly, indication that legal path was veered from / gross deviation

Answer 21

1) Brief Transcription 2) Oral Arguments 3) Decision: affirm, overturn, remand (return to lower court), amend (new trial, new evidence)

Answer 22

Panel of judges & No jury - issue written decisions, particularly when the decision deals with a new interpretation of the law, establishes a new precedent, etc. - At the conference, one judge will be designated to write an opinion

Answer 23

Party's written argument filed w/ Court of Appeals (step 1) - argues WHY court made mistake - includes: transcript, citations of records, cases, rules, statutes, exact motion of what arguing

Answer 24

2nd stage of Appeals: Justices to ask questions directly of the attorneys representing the parties to the case - attorneys to highlight/clarify points/arguments that they view as particularly important

Answer 25

3rd/Last stage of Appeal Court judges meet in conference after and issue written decision disagreeing with the majority opinion may issue a dissenting opinion Judges agreeing with the result of a majority decision but disagreeing with the majority's reasoning may file a concurring opinion. Occasionally the appeals court will simply issue an unsigned opinion = per curiam (“by the court”)

Answer 26

"by the court" - by decision of a judge, or of a court in unanimous agreement

Answer 27

Enforcement: a court order granted to put in force a judgment of possession obtained by a plaintiff from a court. - Varies by State: starts Quasi in Rem jurisdiction (attachments begins) - allows a sheriff or another authority to seize the debtor's property to be sold at a sheriff's sale, the proceeds of which are then used to pay back debts

Answer 28

Court Ordered Paycheck Deductions when a creditor sues for nonpayment of a debt and wins in court

Answer 29

If you owe child support, back taxes or a balance on federal student loans

Answer 30

Creditor can garnish lesser than 10% of gross wages OR 25% of disposable income (until exceeds 30% of minimum wage) If your disposable income is less than 30 times the minimum wage, wage can't be garnished

Answer 31

For Cause: either party objects to prospective juror(s) for a specific reason; unlimited Peremptory: can eliminate juror for no given reason (ex. discrimination) - depends on jurisdiction - Typically ~ 8 to 10 in each case - More notoriety = more challenges - Strictly used by attorneys

Answer 32

Less costly, less time/waiting - parties have more say/control; decide outcome rather than judge - Confidentiality / more discreet

Answer 33

Mediation --> Conciliation --> Arbitration (then litigation, not ADR)

Answer 34

informal meeting between civilized parties - Mediator oversees & gives advice - general legal edu. (paralegal, middle ground lawyer) - If BOTH parties agree, legal document signed turning solution rec. to a BINDING legal remedy

Answer 35

lack of civility b/w partes (one or both combative) - no interaction b/w parties - lawyers discuss, may agree - conciliator listens, comes up with NON-BINDING solution(s) If BOTH parties agree w/ solution, then legal document signed to turn rec into formal, binding legal remedy

Answer 36

Parties agree to have case heard by qualified arbitrator(s) OUT of court - More formal - Arbitrator makes BINDING decision - employment law & sports

Answer 37

Provides more flexibility than common law precedents; less rigid - Specific Performance (contract) - Injunction (court order to stop) - Restitution (rewrite contract in good faith) - Recission (invalidates contract)