Week 5 Thursday (Dec. 3) Test - Litigation (ADR, Disc, E-Disc, Lgl Research) Test Flashcards
** Pleadings
papers filed with the court to initiate or respond to a lawsuit
What is a summons?
a court order directing the defendant to appear in court and answer the complaint or petition.
What is Consolidation?
If several plaintiffs have filed separate lawsuits stemming from the same fact situation against the same defendant, the court can initiate a consolidation of the cases into one case if it would not cause undue prejudice to the parties?
What does the complaint or petition contain
- names of the parties to the lawsuit
- facts of the case
- law that was violated; and
- prayer for relief
The two major pleadings are
- the complaint or petition
2. the answer
What type of case is a good example of Consolidation?
Airplane crash cases
Who is the complaint or petition served on?
the defendant
** The initial pleading In federal court is called a
a complaint
** What is Statute of Limitations?
the law that establishes the period during which a plaintiff must bring a lawsuit against a defendant
What is a prayer for relief?
prayer (request) for relief is asking for what you want to the court to grant you
Once the complaint or petition has been filed, the court issues a
summons
What is “Loser Pay”?
If a plaintiff rejects a settlement offer, and later wins an award that is less than 80% of the rejected offer, the defendants can recover litigation costs out of the jury award.
Who serves the complaint or petition?
a sheriff, government official, or private process server
Who and why is a summons issued?
once a complaint or petition has been filed, the court issues a summons.
Plaintiff files a what in Texas state court?
files a petition as the initial filing
** If other persons have a pecuniary interest in a lawsuit, and they step in and become parties to the lawsuit, it is called an ________________.
intervention
Chronology is what?
a timeline
If several plaintiffs have filed separate lawsuits stemming from the same fact situation against the same defendant, the court can initiate a _____________________ of the cases into one court case if it would not cause undue prejudice to the parties.
Consolidation
** The ______ is the law that establishes the period during which a plaintiff must bring a lawsuit against a defendant
Statute of Limitations
Plaintiff files a what in Federal court?
files a complaint as the initial filing
What is non financial intervention?
pecuniary intervention
A person who represents him/herself.
Pro Se
- if you go to court on your own you are considered Pro Se
Motion to Dismiss
even if the facts in the plaintiff’s petition are true, there is no reason to continue the lawsuit
** Explain Ex Parte
one party has communication with the judge without the participation of the opposing party.
Draft a Chronology
- list the facts and the dates
- make sure you include significant details
- include the sources for each fact
- include a “key fact” column to check off so that you begin to separate key facts from other facts
** What types of motions are dispositive?
Motion to Dismiss
and
Motion for Summary Judgment
Pretrial Hearing
- used to facilitate settlement
- usually held in chambers
- hearing is used to identify major issues and other relevant facts
- cases may be referred to ADR (Alternative Dispute Resolution)
** What does dispositive motion mean?
the judge can dispose of all or part of the case.
Plaintiff’s Case
- has burp
- plf’s attorney calls witnesses
- documentary evidence can be introduced through witnesses
What is rejoinder?
the defendant’s attorney calls additional witnesses and introduce other evidence to counter the rebuttal.
Trial is divided into 8 phases:
1 - jury selection 2 - opening statements 3 - plaintiff's case in chief 4 - defendant's case in chief 5 - rebuttal and rejoinder 6 - closing arguments 7 - jury instruction and deliberation 8 - entry of judgment
** What does voir dire mean?
- to speak the truth
** The last words that an attorney says to the seated jury are called ______.
closing arguments
Jury Selection
- complete questionnaire
- jurors can be stricken for cause due to biase
- preemptory challenges can be used to exclude w/out reason
- they impaneled and sworn
Defendant’s Case
- once plf rests, defense will usually make a Motion for Directed Verdict
- if denied, defendant will present its case-in-chief
** The words that an attorney says to the seated jury at the start of the trial are called ____.
opening statements
Rebuttal and Rejoinder
- plf call witness to rebut def case
- def call add’l witnesses and introduce other evidence to counter the rebuttal
**Jury Charge
also called jury instructions
Who are the trier of facts?
the jurors are the trier of facts
** Remittitur
judge reduces the amount of damages awarded by a jury
** JNOV
judgment non obstante verdicto
Appeal
- either side in civil case can appeal to the appropriate appellate court
Jury Deliberation
- jury is not required to go to jury room in Texas
- In Texas - the clerk of the court reads the verdict
- In federal court - the jury reads the verdict
Entry of Judgment
- judge enters judgment to the successful party based on the verdict
- judge may reduce the amount of dags awarded if it finds the jury was biased, emotional, or inflamed
** The party who appeals may be required to post an appeal bond, called a
supersedeas bond
** The appealing party is called the ____, and the other party is called the _____.
Appellant - Appellee
Petitioner - Respondent
** What 3 actions may an appellate court take after hearing a case?
Affirm - prior decision stands
Reverse - lower court made an error and reverses the decision
Remand - lower court made error that can be corrected
What does Discovery do?
- prevents surprises,
- allows for thorough prep for trial
- saves court time
- promotes settlement
** What are the 6 major forms of Discovery?
- Deposition
- Request for Disclosures
- Interrogatories
- Request for Production
- Request for Admissions
- Physical and Mental Exams
Discovery
- a detailed pretrial procedure that both parties engage in to learn facts of the case
- as well as the witnesses that will be called from the other side
Oral testimony given under oath by a party or witness prior to trial
depositions
** Written questions submitted to a party during discovery are called
interrogatories
What are depositions used for?
to preserve evidence and to impeach witnesses at trial
What is the person testifying called?
deponent
Request for Disclosure is what?
12 standard questions and they are non objectionable
** If an RFA is not answered on time, it is _____ and to undo that, you’d file a ________.
deemed admitted
Motion to Strike Deemed Admissions
What is the limit of the interrogatories?
maximum of 25 answers
What rules are you always to check when doing discovery - whether you are propounding it or answering it?
check the Rules
and the
Commentaries
** ESI
Electronically Stored Information
Can you say just “Gimme all your ESI”?
no, it must be relevant
What is a Rule 11 Agreement?
- agreements between opposing counsels
- often deal with discovery extensions
What is Metadata?
data about data
What is Bates?
stamping, labeling, numbering
What is E-Discovery?
E-Discovery is Discovery
it has to do with requesting and providing Electronically Stored Information
** What is a preservation letter?
is used for internal letter to your client
What does ESI include?
emails, instant messaging chats, texts, tweets, accounting databases, CAD & CAM files, documents-pdf, scanned websites browsing history all kinds of databases photo and video files hard drives & network attached drives, small portable drives sim cards, call history cell and landline phones contacts vm
** What are the 4 things in Litigation Hold Letter? **
- identify the parties
- description of the legal claims
- scope of the legal hold (what do you want them to hold)
- likely sources of relevant ESI
What should the Litigation Hold letter state?
to halt disposing of, or writing over, potential evidence
** What is a Litigation Hold?
is sent to opposing party telling them to keep all electronic documents
What does “Preserve” mean?
Don’t
- delete relevant information
** Spoliation
intentional or negligent withholding hiding, altering, or destoying relevant evidence
** A person who does that (previous answer) is called a ______.
spoliator
If Litigation Hold Letter says ____, then it will not be enforced by a court and might even be seen as _____.
save everything from
everybody on
ever computer or storage device
discovery abuse
What are accessible documents? And who pays?
available in a usable format and reasonably indexed
the responding party pays
** What is the most often cited e-discovery case?
Zubulake v. UBS Warburg - employment discrimination case
What are inaccessible documents? And who pays?
- difficult to reach storage
- converted to microfiche & not easily readable
- docs w/no index system making searches impracticable
court may use a cost shifting analysis
Secondary Authorities
- Encyclopedias
- ALR American Law Reprots
- Periodicals & law reviews
- Dictionaries
- Thesaurius
- Model codes
- Unadopted uniform laws
- Treatises
- Restatement of the Law
What is Dicta?
when a court, in a written opinion, answers a question it was not asked.
What West regional reporter covers Texas?
We are in the southwest report
West’s South Western
S.W. or S.W.2d
Primary Authorities
All law
- court decisions
- statutes
- agency rules & regulations
- Charters
- Ordinances
- Adopted pattern jury instructions
- Court rules
** What is a Slip Opinion?
the first printed version of a judge’s decision
What is the most popular Citator?
Shepard’s citator system
Finding Tools
- Digests
- Citators
- Updaters
- Annotated Statutes
Scholarly works that examine one legal topic in great detail and with very broad coverage. These are generally multi-volume sets.
Treatises
What is a Citator?
services that note when a court has mentioned or relied on a case
Scholarly but designed for students of law, are generally one-volume works providing an overview of a single legal topic.
Hornbooks
** USCA
United States Code Annotated
- unofficial versions of the U.S.C. w/annotations
What are the two main computerized legal research systems?
Lexis
and Westlaw
** USCCAN
United States Code Congressional and Administrative News
- easiest source of commercially compiled federal legislative histories
What is West Laws citator?
KeyCite
ADR
Alternative Dispute Resolution
USC
United States Code
- official government issued compilation of the federal statutes
What is ADR used for?
it’s an alternative to litigation
and it is cheaper and fast
** CFR
Code of Federal Regulations
- regulations have the force of law
Who uses a 3rd party?
both mediation and arbitration
USCS
United States Code Service
- unofficial versions of the U.S.C. w/annotations
Two main forms of ADR
- Mediation
2. Arbitration
Arbitration
- is more like a trial
- both sides present evidence
- arbitrator sits like a judge
- arbitrator makes the decision
- there is no APPEAL
GPO
Government Printing Office
What do family court judges usually decide?
almost always will send you to arbitration
How long does it take?
it just depends - normally it takes around 3 hours
May a paralegal be a mediator?
Yes, 40 hours course, but no one is going to hire you
Because they hire lawyers and they know the law.
Mediator
- goes back and forth between two rooms
- mediator resolves cases
- if you don’t like the outcome you can just not sign
- you can then go to court
Who hires the arbitrator?
usually the big corporations and they know the big corporation and not you
- What is an intervention?
if other persons have a pecuniary interest in a lawsuit, they may step in and become parties to the lawsuit.
** A person giving a deposition is called a
deponent
** The initial pleading in state court is called a
petition
**When lawyers speak to and with the jury panel prior to the selection of the jury, this is called ____.
voir dire
** What two things may take place in trial immediately after both sides rest?
rebuttal
and
rejoinder
** Who reads the verdict in Texas state courts?
clerk
** A litigation hold is sent when litigation is (two words)
reasonable anticipated
** How long does a litigation hold last if litigation has not commenced? (ck on tape to be sure correct answer)
until the statute of limitation has expired
** How long does a litigation hold last if litigation has already commenced? (ck on tape to be sure correct answer)
until the time for all appeals have been exhausted.
** What authority is used for “Charters”?
primary authority
** Services that note when a court has mentioned or relied on a case are called ____.
citators
** ___ are created by administrative agencies who are given that authority by enabling _____.
Regulations
statutes
** What authority is used for “regulations”?
primary authority
** What authority is used for “appellate court cases”?
primary authority
