Unit 2: Civil Procedural Law & ADR Flashcards
Purpose of Pleading Stage
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)
Purpose of PreTrial Stage
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
Purpose of Trial Stage
Determine what facts are credible via evidence
Purpose of Appeal Stage
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
Purpose of Enforcement
Implementing court’s judgment after deciding verdict and judgment
What are Pleadings?
The legal documents that parties use to communicate their grievances and responses to each other & the court
How many stages in Pleading stage and what are they?
5-6
compliant, summons, response to summons, answer, reply (opt.), judgment on pleading
What is a Compliant in the pleading stage? What does it include?
statement filed by Plaintiff and received by court.
- Why, for what/how much $, who
Summons
certified letter received by defendant notifying them of court date
Response to Summons: what is it, types of responses, who
initial reply by Defendant.
two responses: Default judgment OR Pretrial Motions
What is Default Judgment? What happens when entered?
ignoring the summons (no response) & not appearing in court.
Case is issued against defendant and ruling granted in plaintiff’s favor
What is Pretrial Motions in Pleading stage? What does it allow for?
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
Statute of Limitations
legal window in which can bring suit
- time period after tort that can file case
What is a Demurrer? When is it used?
“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
What is Answer in pleading stage?
defendants OFFICIAL response to lawsuit (3 types of responses)
How many and What are the responses that can be given in Answer (pleading)?
1) Admission: did it, will comply
2) Denial: did NOT do it
3) Counterclaim: suing plaintiff
When and why does Reply exist? What is Reply (pleading)?
ONLY exist if countersuit chosen due to original complaint → SKIPPED if admission/denial
If countersue, NEW plaintiff & defendant
What is Judgment on Pleadings?
request made by either party for a FINAL, BINDING decision based on ALL info shared thus far
What is the first exit point to avoid going to court?
Judgment on Pleadings
How many stages and what are the stages of Pretrial?
1) Discovery
2) Affidavit
3) Pretrial Conference
4) Summary Judgment
What are the exit points in the 5 stages civil procedural law?
1) Judgment on Pleadings
2) Summary Judgment
3) Directed Verdict?
What is the 2nd exit point?
Summary Judgment
What is Discovery (pretrial) ?
Outline/framework of argument exchanged by both parties
- do NOT have to give other side everything
What is the purpose of the Affidavit stage (pretrial) ? What are the 4 different types?
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)
When does a written interrogation occur at precinct?
ONLY if criminal case preceded, happens in court
What is Pretrial Conference? Purpose?
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
Summary Judgment: What, Purpose, Who
requested by either party
Based on provided info, ask judge to issue a formal, BINDING decision
- may reflect settlement discussed in pretrial conference
What is Voir Dire (trial) ?
“Speak the Truth”
Preliminary examination of witness / juror by a judge or counsel to determine suitability→ “taking oath”
Purpose: Jury Selection
- Predominantly handled by attorney
What happens if a party does not want a particular juror?
If do NOT want, can try for Challenge for Cause
What happens when party tries for a Challenge for Cause? When does this happen? Why?
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
Peremptory Challenge: what, when, how, what type of cases
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
Process of Voir Dire
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
Opening Statements: What, process, who begins with?
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)
Purpose of Examinations (3rd stage of trial)
Present + Question Facts
What are the 3 types of Examinations and purpose?
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
Offer of Proof (4th stage of Trial)
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
Why is jury dismissed for Offer of Proof?
So the Judge can fairly explore whether or not evidence/testimony is admissible.
- Jury not legally qualified to determine
Directed Verdict (5th stage of Trial)
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.
Under what circumstances does a Directed Verdict occur? generally and rarely
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
Closing Statements (6th of trial)
Summations by attorneys to reiterate arguments, summarize evidence, and persuade the jury to adopt favorable interpretation
Jury Instructions (7th stage of trial)
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
Verdict (stage 8 of trial)
- 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
Judgment (9th of trial)
Order filed in public records
- not in effect until judge enters judgment
- Decide/award damages
- jury gives recommendations BUT judge has final say
Judgement Notwithstanding the Verdict (JNOV) / non obstante veredicto:
When, what, who
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
How many and what stages in Appeal stage (4th of CPL)
1) Brief Transcription
2) Oral Arguments
3) Decision: affirm, overturn, remand (return to lower court), amend (new trial, new evidence)
How do Appellate courts differ from trial courts/courts of original jurisdiction?
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
Brief Transcription: what stage, who, when, purpose
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
Oral Arguments: what stage, when, who, purpose
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
Decision: what stage, when, who, purpose
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”)
Per curiam
“by the court”
- by decision of a judge, or of a court in unanimous agreement
Writ of Execution
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
Garnishment
Court Ordered Paycheck Deductions when a creditor sues for nonpayment of a debt and wins in court
In what cases can Garnishment be implemented without a court order?
If you owe child support, back taxes or a balance on federal student loans
Garnishment in NY: How much can be taken and when can’t someone be garnished?
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
What is the difference b/w grounds before challenge for cause and peremptory challenge?
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
Reasons for Alternate Dispute Resolution (ADR) over litigation?
Less costly, less time/waiting
- parties have more say/control; decide outcome rather than judge
- Confidentiality / more discreet
3 Types of ADR
Mediation –> Conciliation –> Arbitration (then litigation, not ADR)
Mediation: What, who, process, etc.
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
Conciliation
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
Arbitration
Parties agree to have case heard by qualified arbitrator(s) OUT of court
- More formal
- Arbitrator makes BINDING decision
- employment law & sports
What is Remedy? + Examples
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)
