Chapter 4 Legl (Litigation)

Front 1

Name the two parties in the litigation process.

Back 1

Plaintiff and a defendant.

Front 2

Who is the plaintiff and who is the defendant?

Back 2

The plaintiff files a civil action.

The defendant is the party who must defend. The defendant is the party who is sued.

If the defendant files a counterclaim (sues the plaintiff in the same action), the defendant becomes the counterplaintiff and the plaintiff becomes the counterdefendant.

Front 3

Name the two parties in the appeal process.

Back 3

Appellant and Appellee.

Appellant is the party appealing an adverse decision (party who lost)

Appellee is the party who was successful in the trial court (party who won).

Front 4

Name the two parties in the Supreme Court appeal process.

Back 4

Petitioner and Respondent.

Petition initiates the petition for a writ of certiorari.

Respondent is the other party.

Front 5

Define a third-party defendant.

Back 5

Third-party defendants are additional parties brought into the lawsuit by the defendant.

Front 6

Define 'Standing to Sue'

Back 6

1) To have standing, means that the plaintiff must allege that the litigation involves a case or controversy.

Case must have a cause of action at law.

Must be some allegation of a wrong that would create a dispute between plaintiff and defendant.

2) Plaintiff must allege a personal stake in the resolution of the controversy.

Front 7

What does it mean to have legal cause of action (related to Standing to Sue)

Back 7

"What is the statute or common law of action that gives you the right to sue and a personal stake".

Front 8

Yes or No: Two companies are going to merge and this merger will have a substantial adverse impact on competition in general. It also violates many anti-trust laws. Can you, not being a shareholder of either company, sue to stop the combination of these companies?

Back 8

No.

2) Plaintiff must allege a personal stake in the resolution of the controversy.

This prevents any individual from asserting the rights of the general public or of a group of which he or she is not a member

Front 9

Two types of jurisdiction

SMJ + PJ

Back 9

Subject matter jurisdiction - court must have the power over the issues presented in the case

Personal Jurisdiction over the parties. Power to hear a case means a court must have authority not only over the subject matter of the case but also over the parties to the case.)

Front 10

What is a 'summons'?

Back 10

Notice to appear in court.

Can either serve the defendant personally or generally serve any member of a household over a certain age and send a copy in the mail.

Front 11

What are long-arm statutes?

Back 11

They are used to get jurisdiction over a defendant in another state when that individual:

1) Committed a tort within the state
2) Owns property in the state that is the subject matter of the lawsuit
3) Has entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within the state.

Front 12

What is extradition?

Back 12

The process of requesting and transporting the prisoner from one state to another is called extradition.

• In the event of arrest in a state other than that in which the crime was committed, the prisoner must be transported back to the state where the crime occurred. The governor of the state of arrest voluntarily turns the prisoner over to the requesting governor and state.

Front 13

Define 'Class Action Suits'.

Back 13

Class Action Suits are brought when one or more plaintiffs file suit on their own behalf and on behalf of all persons who may have a similar claim.

Front 14

Are there class action suits at the federal level?

Back 14

No.

Front 15

Define 'pleadings'.

Back 15

Pleadings are legal documents that are filed with a court to begin the litigation process.

Front 16

Define 'complaint'.

Back 16

A pleading or complaint by the plaintiff is a statement or request of the relief sought.

Front 17

Define 'Answer'.

Back 17

An answer must admit or deny the allegations and may contain affirmative defenses that can defeat a plaintiff's claim.

Front 18

Define 'Counterclaim'.

Back 18

Answers may also contain causes of action the defendant has against the plaintiff called counterclaims.

Front 19

Define 'Default'.

Back 19

If the defendant fails to answer the complaint, a default occurs;

Default - court may grant plaintiff any relief sought.

Front 20

True or False: There are punitive or exemplary damages with a breach of contract.

Back 20

False; There are no punitive damages with a breach of contract. There are punitive damages with a tort but not with a breach of contract.

Front 21

Name the three levels of a pre-trial.

PDM

Back 21

1) Pleadings
2) Discovery
3) Motions

Front 22

What is the purpose of discovery?

Back 22

The purpose of discovery is to take the sporting aspect out of litigation and ensure that the results of lawsuits are based on the merits of the controversy not on the ability, skill, or cunning of counsel.

Verdicts should not be based on the skill of counsel but on the relative merits of the controversy.

Front 23

What goes on during pleadings?

Back 23

Complaint, Answer, and maybe Counterclaims.

Front 24

Name the methods used in Discovery.

I,RP-D,RA

Back 24

Interrogatories, Requests for Production of Documents, Deposition, Requests for Admission.

Front 25

Define an 'interrogatory'

Back 25

A series of written questions presented to the opposing party. Opposing party must answer the questions.

Front 26

Give an example of the discovery method: 'Request for the Production of Documents'.

Back 26

EX: Requesting the original sales contract that a seller is being sued about, containing certain warranties or terms.

In a personal injury action, defendant can require plaintiff to submit to a physical examination by a physician.

Front 27

Define 'deposition'.

Back 27

Deposition is a sworn testimony before a court reporter.

Depositions are discoveries of the greatest extent possible.

In a deposition, the lawyer orally asks questions of the possible witness and an oral response is given. All spoken words are recorded by a court reporter and a written transcript is prepared. Permanent record of an anticipated testimony is created.

Front 28

Define 'requests for admission'.

Back 28

Is is a request for the party to admit that certain issues presented in the pleadings are no longer in dispute. Request for an admission narrows some issues and makes settlement more likely.

Front 29

What is enforcement in regards to the discovery process? (i.e. What is the motion to compel?)

Back 29

Motion to Compel - asking the court to do something on your behalf. When a party is difficult in the discovery process, you can use a motion to compel.

EX: They have not made witnesses available for depositions. if they don't, you need to sanction them".

Front 30

What is the scope of discovery?

Back 30

Determining what is the scope of discovery. What is material is considered discoverable and what can be unrevealed.

The usual rule is that as long as the information sought in discovery will to evidence admissible during the trial, the information is discoverable and objection is overruled.

Front 31

Yes or No: Are motions used in regards to the factual setting of the dispute?

Back 31

No. Either plaintiff or defendant or both may attempt to convince the court that there are no questions about the factual setting of the dispute. There are only questions of law for the judge to resolve.

When a question of law is at issue, the parties can seek a pretrial determination of their rights by filing a motion with the court.

Front 32

List 5 Motions with the court.

Back 32

1) Motion to Dismiss for failure to state a cause of action
2) Motion based on Statute of Limitations
3) Motion for a Judgment on Hearings
4) Motion for Summary Judgment
5) Rule 11 Motion

Front 33

Define 'Motion to Dismiss for Failure to state a cause of action'

Back 33

"Even if everything the plaintiff says in his complaint is true, he is not entitled to the relief he seeks".

The defendant, in the motion to dismiss, argues that the plaintiff failed to plead an essential element of a valid claim.

Front 34

Define 'Motion based on Statute of Limitations'.

Back 34

It is a move to dismiss a suit for reasons that as a matter of law prevent the plaintiff from winning his or her suit.

Lack of jurisdiction of the court to hear the suit, expiration of the time limit during which the defendant is subject to suit.

Front 35

Define 'Motion for a Judgment on the Pleadings'

Back 35

decide the case based solely on the complaint and answer

Front 36

Define 'Motion for Summary Judgment'

Back 36

“no genuine issue of material fact and party is entitled to prevail as a matter of law”

A motion for summary judgment asks the judge to base a decision not only on pleadings but also on other evidence. Such evidence usually is presented in the form of sworn statements called affidavits.

Front 37

What is an affidavit?

Back 37

Often submitted in support of motions for summary judgment.

A sworn written statement made before an officer authorized by law to administer oaths.

Front 38

Define 'Rule 11 Motion'

Back 38

Lawsuit is frivolous, totally lacking any merit, court should access fines.

This only occurs in federal court, and is usually only brought by the defending party.

Judges may terminate the litigation process if there is a finding that the lawsuit is frivolous - totally lacking in merit.

Front 39

Define 'Voir Dire'

Back 39

Voir Dire means speak the truth.

In regards to jury selection and asking jurors questions, and trying to find out who is biased or favorable.

Front 40

What is the process of Voir Dire?

Back 40

It is examination that allows the court and often the attorneys for each party to examine each potential juror as to his or her qualifications and ability to be fair and impartial.

Front 41

Define 'excuses for cause'

Back 41

You find a specific reason you do not want a juror after questioning him/her.

Front 42

Define 'Peremptory Challenges'

Back 42

Peremptory Challenges are certain number of jurors you can strike for no cause or reason (no reason needed to excuse a prospective juror).

Front 43

What cases did 'Bayson v. KY' and 'J.E.B. v. Alabama ex rel. T.B.' deal with?

Back 43

KY dealt with discrimination of race in the jury selection process and AL dealt with discrimination of gender.

Front 44

Define 'Motion for a Directed Verdict'

Back 44

Stating that the jury should not hear certain information.

Occurs after plaintiff puts on his/her case.

Front 45

Define 'Burden of Proof'.

Back 45

Two meanings: May describe the party at trial with the burden of coming forward with evidence to establish a fact or the term also describes the burden of persuasion - this party must convince the judge or jury of the disputed facts in issue or else lose that issue.

Front 46

Define 'Preponderance of Evidence'.

This is a type of burden of proof.

Back 46

In the judgment of the jurors, evidence that has greater weight and overcomes the opposing evidence and presumptions.

Front 47

Define 'Clear and Convincing proof'.

This is a type of burden of proof.

Back 47

A burden of proof that requires the party with the burden to establish clearly the existence of the alleged facts. This burden requires more proof than merely having a preponderance of evidence on one's side.

Requires more than a simple preponderance of evidence.

Scales of justice tilt heavily one way.

Front 48

Define the role of a jury.

Back 48

• As the function of the jury is to find the facts and the function of the court is to determine the applicable law, the purpose of jury instructions is to bring the facts and the law together in an orderly manner that will result in a decision.

The principal job of the jury is to determine what the facts are and to apply the law, as instructed by the judge, to the facts.

Front 49

True or False: The principal job of the jury is to determine what the facts are and to apply the law, as instructed by the judge, to the facts.

Back 49

True.

Front 50

Define 'Verdict'.

Back 50

Jury's decision. The judge will decide whether to accept or reject the verdict.

Front 51

Define 'Judgment'.

Back 51

Judgment is what the judge enters against the losing party.

An official adjudication of a court of law.

Front 52

Define 'Judgment Not Withstanding the Verdict'.

Back 52

It asks the court to enter a judgment opposite of that of the jury's verdict if the judge finds that the verdict is erroneous as a matter of law.

Front 53

True or False: JNOV occurs when a judge feels there was a problem as a matter of law in the verdict.

Back 53

True.

Front 54

Define 'Execution of the judgment'.

Back 54

To enforce.

To carry out some action to completion. With respect to enforcing a court's judgment, an execution involves the seizure of the debtor's property, a sale of the property, and the payment of proceeds to the creditor.

Front 55

Define 'Garnishment'

Back 55

Garnishment involves having a portion of the debtor's wages paid to the court, which in turn pays the creditor.

Front 56

Define 'Res Judicata'

Back 56

Means "the thing has been decided".

The final decision is conclusive on all issues between the parties, bars future suits based on the same facts.

Front 57

True or False: A final decision is conclusive on all issues between the parties, whether raised in the litigation or not.

(in regards to Res Judicata)

Back 57

True.