Unit 2: Civil Procedural Law & ADR

Question 1

Purpose of Pleading Stage

Answer 1

1) Provide notice to the defendant that a lawsuit has been instituted
2) Provides notice to plaintiff of the defendant’s intentions
3) Determine facts in dispute (initial presentation of facts & dispute)

Question 2

Purpose of PreTrial Stage

Answer 2

1) Discover what evidence there is to prove with the stated facts
- Exchange information to see if there is evidentiary support in favor or opposing
2) Trying to get case mediated before going to court

Question 3

Purpose of Trial Stage

Answer 3

Determine what facts are credible via evidence

Question 4

Purpose of Appeal Stage

Answer 4

To resolve a prejudicial (procedural/due process) error
- review the procedures and the decisions in the trial court to make sure that the proceedings were fair and that the proper law was applied

Question 5

Purpose of Enforcement

Answer 5

Implementing court’s judgment after deciding verdict and judgment

Question 6

What are Pleadings?

Answer 6

The legal documents that parties use to communicate their grievances and responses to each other & the court

Question 7

How many stages in Pleading stage and what are they?

Answer 7

5-6
compliant, summons, response to summons, answer, reply (opt.), judgment on pleading

Question 8

What is a Compliant in the pleading stage? What does it include?

Answer 8

statement filed by Plaintiff and received by court.
- Why, for what/how much $, who

Question 9

Summons

Answer 9

certified letter received by defendant notifying them of court date

Question 10

Response to Summons: what is it, types of responses, who

Answer 10

initial reply by Defendant.
two responses: Default judgment OR Pretrial Motions

Question 11

What is Default Judgment? What happens when entered?

Answer 11

ignoring the summons (no response) & not appearing in court.
Case is issued against defendant and ruling granted in plaintiff’s favor

Question 12

What is Pretrial Motions in Pleading stage? What does it allow for?

Answer 12

When defendant challenges summons.
If NOT properly filed, court does NOT have jurisdiction over defendant
- Sets the boundaries for the
upcoming litigation
- Must be filed within Statute of Limitations
- Can respond w/ No official answer due to lack of information → request for more info

Question 13

Statute of Limitations

Answer 13

legal window in which can bring suit
- time period after tort that can file case

Question 14

What is a Demurrer? When is it used?

Answer 14

“to object”
Pretrial motion that objects to or challenges a pleading filed by an opposing party b/c case is frivolous and holds no merit, irrelevant

Question 15

What is Answer in pleading stage?

Answer 15

defendants OFFICIAL response to lawsuit (3 types of responses)

Question 16

How many and What are the responses that can be given in Answer (pleading)?

Answer 16

1) Admission: did it, will comply
2) Denial: did NOT do it
3) Counterclaim: suing plaintiff

Question 17

When and why does Reply exist? What is Reply (pleading)?

Answer 17

ONLY exist if countersuit chosen due to original complaint → SKIPPED if admission/denial
If countersue, NEW plaintiff & defendant

Question 18

What is Judgment on Pleadings?

Answer 18

request made by either party for a FINAL, BINDING decision based on ALL info shared thus far

Question 19

What is the first exit point to avoid going to court?

Answer 19

Judgment on Pleadings

Question 20

How many stages and what are the stages of Pretrial?

Answer 20

1) Discovery
2) Affidavit
3) Pretrial Conference
4) Summary Judgment

Question 21

What are the exit points in the 5 stages civil procedural law?

Answer 21

1) Judgment on Pleadings
2) Summary Judgment
3) Directed Verdict?

Question 22

What is the 2nd exit point?

Answer 22

Summary Judgment

Question 23

What is Discovery (pretrial) ?

Answer 23

Outline/framework of argument exchanged by both parties
- do NOT have to give other side everything

Question 24

What is the purpose of the Affidavit stage (pretrial) ? What are the 4 different types?

Answer 24

give evidence not why/how used
1. Pretrial Deposition: witness testimony, written account of what heard/seen
2. Written Interrogations: informal depositions and crafted via conversations w attorneys
3. Production of Documents & Physical Evidence (ex: ballistics report)
4. Examination by Physician: medical reports for physical or mental report (Difficult as laws protecting medical info - provide abstract instead)

Question 25

When does a written interrogation occur at precinct?

Answer 25

ONLY if criminal case preceded, happens in court

Question 26

What is Pretrial Conference? Purpose?

Answer 26

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

Question 27

Summary Judgment: What, Purpose, Who

Answer 27

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

Question 28

What is Voir Dire (trial) ?
“Speak the Truth”

Answer 28

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

Question 29

What happens if a party does not want a particular juror?

Answer 29

If do NOT want, can try for Challenge for Cause

Question 30

What happens when party tries for a Challenge for Cause? When does this happen? Why?

Answer 30

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

Question 31

Peremptory Challenge: what, when, how, what type of cases

Answer 31

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

Question 32

Process of Voir Dire

Answer 32

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

Question 33

Opening Statements: What, process, who begins with?

Answer 33

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)

Question 34

Purpose of Examinations (3rd stage of trial)

Answer 34

Present + Question Facts

Question 35

What are the 3 types of Examinations and purpose?

Answer 35

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

Question 36

Offer of Proof (4th stage of Trial)

Answer 36

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

Question 37

Why is jury dismissed for Offer of Proof?

Answer 37

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

Question 38

Directed Verdict (5th stage of Trial)

Answer 38

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.

Question 39

Under what circumstances does a Directed Verdict occur? generally and rarely

Answer 39

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

Question 40

Closing Statements (6th of trial)

Answer 40

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

Question 41

Jury Instructions (7th stage of trial)

Answer 41

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

Question 42

Verdict (stage 8 of trial)

Answer 42

• 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

Question 43

Judgment (9th of trial)

Answer 43

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

Question 44

Judgement Notwithstanding the Verdict (JNOV) / non obstante veredicto:
When, what, who

Answer 44

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

Question 45

How many and what stages in Appeal stage (4th of CPL)

Answer 45

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

Question 46

How do Appellate courts differ from trial courts/courts of original jurisdiction?

Answer 46

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

Question 47

Brief Transcription: what stage, who, when, purpose

Answer 47

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

Question 48

Oral Arguments: what stage, when, who, purpose

Answer 48

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

Question 49

Decision: what stage, when, who, purpose

Answer 49

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”)

Question 50

Per curiam

Answer 50

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

Question 51

Writ of Execution

Answer 51

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

Question 52

Garnishment

Answer 52

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

Question 53

In what cases can Garnishment be implemented without a court order?

Answer 53

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

Question 54

Garnishment in NY: How much can be taken and when can’t someone be garnished?

Answer 54

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

Question 55

What is the difference b/w grounds before challenge for cause and peremptory challenge?

Answer 55

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

Question 56

Reasons for Alternate Dispute Resolution (ADR) over litigation?

Answer 56

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

Question 57

3 Types of ADR

Answer 57

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

Question 58

Mediation: What, who, process, etc.

Answer 58

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

Question 59

Conciliation

Answer 59

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

Question 60

Arbitration

Answer 60

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

Question 61

What is Remedy? + Examples

Answer 61

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)