Business Law Chapter 3

Front 1

Litigation

Back 1

The process of bringing, maintaining, and defending a lawsuit. Can be divided into pleadings, discovery, dismissals and pretrial judgements, and settlement conference.

Front 2

pleadings

Back 2

The paperwork that is filed with the court to initiate and respond to a lawsuit. Main ones are the complaint, the answer, the cross complaint, and the reply.

Front 3

Plaintiff

Back 3

The party who files a complaint.

Front 4

Complaint

Back 4

The document a plaintiff files with the court and serves on the defendant to initiate a lawsuit. It must name the parties, allege the ultimate facts and law violated, and contain a remedy to be awairded b the court.

Front 5

Summons

Back 5

A court order directing the defendant to appear in court and answer the complaint.

Front 6

Answer

Back 6

The defendant's written response to a plaintiff's complaint that is filed with the court and served on the plaintiff. In this he defendant admits or denies the allegations. If no answer, then a default judgement is entered which establishes the defendant's liability.

Front 7

Default judgement

Back 7

Establishes the defendan't liability if they do not answer a summons. The plaintiff then just has to prove damages.

Front 8

Cross complaint

Back 8

A document filed by the defendant against the plaintiff to seek damages or some other remedy. The dedefendant sues the plaintiff for damages or some other remedy.

Front 9

Reply

Back 9

If the defendant files a cross complaint the original plaintiff must file a reply (answer) to the cross complaint.

Front 10

Intervention

Back 10

The act of others to join as parties to an existing lawsuit.

Front 11

Consolidation

Back 11

The act of a court to combine two or more separate lawsuits into one if doing so would not cause undue pprejudice to the parties.

Front 12

Statute of limitations

Back 12

Establishes the period during which a plaintiff must bring a lawsuit against a defendant. If a lawsuit is not filed within this time period, he plaintiff loses his or her right to sue. begins when the plaintiff first has the right to sue the defendant.

Front 13

Discovery

Back 13

A legal process during which each party engages in various activities to discover facts of the case from the other party and witnesses pripor to trial.

Front 14

Deposition

Back 14

Form of discovery. Oral testimony given by a party or witness prior to trial. The testimony is given under oath and is transcribed. Can be voluntary or a subpoena. Transcribed.

Front 15

Interrogatiories

Back 15

Written questions submitted by one party to another party. The questions must be answered in writing within a stipulated time. Usually 60-90 days.

Front 16

Production of documents

Back 16

A request by one party to another party to produce all documents relevant to the case prior to the trial. The requesting party can examine the documents before the trial.

Front 17

Physical or mental examination

Back 17

A court ordered examination of a party to a lawsuitbefore trail to determine the extent of the alleged injuries. Such as if the plaintiff has been injuried in an accident and is seeking damages for physical injuries and mental distress.

Front 18

Pretrial motion

Back 18

A motion a party can make to try to dispose of all or part of a lawsuit prior to trial. Two main ones are motion for judgement on the pleadings and motion for summary judgement.

Front 19

Motion for judgement on the pleadings

Back 19

A motion which alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these asserted facts. in deciding this the judge cannot consider any facts outside the pleadings.

Front 20

Motion for summary judgement

Back 20

A motion which asserts that there are no factual disputes to be decided by the jury and that the judge can apply the proper law to the undisputed facts and decide the case without a jury. These motions are supported by affidavits, documents, and deposition testimony. If there is factual dispute then the case will go to trial.

Front 21

Settlement conference

Back 21

A hearing before a trial in order to facilitate the settlement of a case also called a pretrial hearing.

Front 22

Trier of fact

Back 22

The jury in a jury trial; the judge where there is not a jury trial.

Front 23

Voir Dire

Back 23

The process whereby prospective jurors are aseked questions by the judge and attorneys to determine whether they would be biased in their decisions.

Front 24

Opening statement

Back 24

In this statement the attorney summarizes main facts and legal issues of the case and describes why their client's position is valid.

Front 25

Burden of proof

Back 25

The palintiff has to presuade the trier of fact of the merits of his or her case.

Front 26

Direct examination

Back 26

Plaintiff's attorney questions a witness

Front 27

Cross examinaton

Back 27

After the plaintiff questions a witness the defense's attorney can question him on subjects that were brought up during the direct examination.

Front 28

re-direct examination

Back 28

After the direct and cross examination the plaintiff's attorney can ask questions once again.

Front 29

Defendant's case

Back 29

Proceeds after the plaintiff's case. in it they 1. rebut the plaintiff's evidence. 2. prove any affirmative defenses asserted by the defendant, and 3. prove any allegations contained in the defendant's cross examination.

Front 30

Rebuttal

Back 30

After the defendant's attorney has finished calling qitnesses plaintiff's attorney can call them and put forth evidence to rebut the defendant's case.

Front 31

Closing arguement

Back 31

Conclusion both parties try and convince the jury to render a verdict for their clients by pointing out the strengths in the client's case and the weaknesses in the other side.

Front 32

Jury instructions

Back 32

Instructions given by the judge to the jury that inform them of the law to be applied in the case.

Front 33

Delibertae

Back 33

The jury tries to reach a verdict

Front 34

Appeal

Back 34

The act of asking an appellate court to overturn a decision after the trail court's final judgement has been entered.

Front 35

Appellant

Back 35

The appealing party in and appeal. Also known as petitioner.

Front 36

Appellee

Back 36

The responding aprty in an appeal. The responddant.

Front 37

Error of law

Back 37

If an appellage court reverses a lower court decision it can be because they find an error of law in the record.

Front 38

alternative Dispute Resolution

Back 38

methods of resolving disputes other than litigation.

Front 39

negotiation

Back 39

Procedure whereby parties try to reach a voluntary settlement of their dispute. Can take place before during or after a lawsuit is filed. Attorney's make offers and counteroffers to each other. If a settlement is reached a settlement agreement is drafted and signed by botheparties and is subnmitted to the court.

Front 40

SEttlement agreement

Back 40

An agreement that is voluntarily entered into by parties in after negotioation that dorps the lawsuit.

Front 41

Arbitration

Back 41

A form of ADR in which the parties choose an impartial third party to hear and decide the dispute.

Front 42

Arbitration clause

Back 42

A clause in a contract that requires disputes arising out of the contract to be submitted to arbitration.

Front 43

Federal Arbitration Act

Back 43

Fed. statute that allows for the enforcement of most arbitration agreements.

Front 44

Arbitration procedure

Back 44

They select an arbitrator and location. Then they call witnesses and introduce evidence have to pay filing fees and then the arbhitrator reaches a decsions.

Front 45

Binding arbitration

Back 45

The decision of the arbitrator cannot be appealed to the courts.

Front 46

Mediation

Back 46

A form of ADR in which parties use a mediator to propose a settlement of their dispute. Usually an expert in the area of the dispute. Often a retired lawyer or judge. Role is to assist parties in reaching a settlement. Facilitate settlement of the case.

Front 47

Conciliation

Back 47

A form of ADR in which parties use a third party to help resolve their dispute.

Front 48

mini trial

Back 48

voluntery private proceding where the laweryse present a shortened version of the case. Parties get to see the strenghts and weakneses of their position and that of the opposing side. They substitute a real trial briefer and not expensive. Parties are usually more realistic about their positions after having these and will not go to trial.

Front 49

Fact finding

Back 49

Parties employ a neutral thierd party to investigate the dispute gather evidence, prepare demonstrative evidence, and prepare reports of their findinves. Parties can use the information in negotiating a settlemenet.

Front 50

Judicial referee

Back 50

If parties agree the court can appoint a judicial referee to conduct a priate trial and render a judgement. Often referees are retired judges and have the same powers and their decisions stand as judgement in the court. Parties usually reserve the right to appeal.