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125 Cards in this Set
- Front
- Back
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Alternate dispute resolution |
Techniques for resolving conflicts that are alternatives to full-scale litigation. The two most common are arbitration and mediation |
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Arbitration |
An ADR mechanism whereby the parties submit their disagreement to a third party whose decision is binding |
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Mediation |
An ADR mechanism whereby a neutral third party assists the parties in reaching a mutually agreeable, voluntary compromise |
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Summary Jury Trials |
A nonbinding process in which attorneys for both sides present synopses of their cases to a jury, which renders an advisory opinion on the basis of these presentations |
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Pleadings |
The papers that begin a lawsuit--generally, the complaint and the answer |
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Pretrial Motion |
A motion brought before the beginning of a trial either to eliminate the necessary for a trial or to limit the information that can be heard at the trial |
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Discovery |
The modern pretrial procedure by which one party gains information from the adverse party. |
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Standing |
The principle that courts cannot decide abstract issues or render advisory opinions; rather, they are limited to deciding cases that involve litigants who are personally affected by the courts decision |
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Guardian |
A person appointed by the court to manage the affairs or property of a person who is incompetent due to age or some other reason |
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Class action suit |
A lawsuit brought by a person as a representative for a group of people who have been similarly injured |
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Judgement Proof |
When the defendant does not have sufficient money or other assets to pay the judgement |
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Compulsory Joinder |
When a person must be brought into a lawsuit as either a plaintiff or a defendant |
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Jurisdiction |
The power of a court to hear a case |
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Subject Matter |
The power of a court to hear a particular type of case |
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Personal jurisdiction |
The power of a court to force a person to appear before it |
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Minimum contacts |
A constitutional fairness requirement that a defendant have at least a certain minimum level of contact with a state before the state courts can have jurisdiction over the defendant |
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Statutes of limitations |
The law that sets the length of time from when something happens to when a lawsuit must be filed before the right to bring it is lost |
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Exhaustion of administrative remedies |
The requirement that relief be sought from an administrative agency before proceeding to court |
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Complaint |
The pleading that begins a lawsuit |
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Answer
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Defendant's reply to the complaint. It may contain statements of denial, admission, or lack of knowledge and affirmative defenses.
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Counterclaim |
A claim by the defendant against the plaintiff |
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Cross-claim |
A claim by one defendant against another defendant or by one plaintiff against another plaintiff |
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Third-Party claim |
A claim by a defendant against someone in addition to the persons the plaintiff has already sued |
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Caption |
The heading section of a pleading that contains the names of the parties, the name of the court, the title of the action, the docket or file number, and the name of the pleading |
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Notice pleading |
A method adopted by the federal rules in which the plaintiff simply informs the defendant off the claim and the general basis for it |
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Count |
In a complaint, one cause of action |
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Pleading the alternative |
Including more than one count in a complaint; the counts do not need to be consistent |
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Verification |
An affidavit signed by the client indicating that he or she has read the complaint and that its contents are correct |
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Notice |
Being informed of some act done or about to be done |
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Service |
The delivery of a pleading or other paper in a lawsuit to the opposing party |
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Summons |
A notice informing the defendant of the lawsuit and requiring the defendant to respond or risk losing the suit |
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Electronic filing (aka e-filing) |
The filing of court documents over the internet as electronic files |
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Process service |
A person authorized by law to serve legal papers on defendants |
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Case Management/Electronic case files (CM/ECF) |
A comprehensive case management system developed for the federal courts allowing them to receive electronic filings and to maintain case files accessible via the internet |
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Portable Document |
A format that allows a document to be viewed and printed on any computer. Federal courts require all documents to be filed in the PDF format |
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Electronic signature |
A means of establishing that a document being sent electronically was properly authorized |
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Affirmative defense |
A defense whereby the defendant offers new evidence to avoid judgement |
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Default judgement |
A judgement entered against a party who fails to complete a required step such as answering the complaint |
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Motion |
A request made to the court |
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12(b)(6) motiion |
A request that the court find the plaintiff has failed to state a valid claim and dismiss the complaint |
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Rule 56 motion (summary judgement motion) |
A request that the court grant judgement in favor of the moving party because there is no genuine issue as to any material fact and the moving party iis entitled to judgement as a matter of law. It is similar to a 12 (b)(6) motion except that the court also considers matters outside the pleadings |
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Interrogatories |
Written questions sent by one side to the opposing side, answered under oath |
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Deposition |
The pretrial oral questioning of a witness under oath |
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Deponent |
The person who is being asked questions at a deposition |
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Metadata |
Information contained in a document that may include the author of the document, the date it was created, and other data about the document |
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Native format |
The format used by the program, such as Microsoft Word or Excel, that created the file |
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Electronically stored information (ESI) |
Information created disbursed, or stored in an electronic format |
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Litigation hold |
A requirement that routine alteration or destruction of ESI must stop whenever there is a reasonable belief litigation may arise |
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Spoilation |
The destruction or alteration of relevant documents |
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Meet and confer conference |
In federal court, a mandated conference at which the parties must develop a discovery plan |
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Claw-back provision |
An agreement whereby privileged documents inadvertently produced can be retrieved |
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Dismissed with prejudice |
A court order that ends a lawsuit; the suit cannot be refiled by the same parties |
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Pretrial conference |
A meeting of the attorneys and the judge prior to the beginning of the trial |
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Motion in limine |
A request that the court order that certain information not be mentioned in the presence of the jury |
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Voir dire |
An examination of a prospective juror to see if he or she is fit to serve as a juror on a specific case |
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Challenge for cause |
A method for excusing a prospective juror based on the jurors inability to serve in an unbiased manner |
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Peremptory challenge |
A method for excusing a prospective juror; no reason need be given |
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Direct examination |
The questioning of your own witness |
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Leading question |
A question that suggests the answer; generally, leading questions may not be asked during direct examination of a witness |
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Cross-examination |
The questioning of an opposing witness |
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Directed verdict |
A verdict ordered by a trial judge if the plaintiff fails to present a prima facie case or if the defendant fails to present a necessary defense |
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Pattern jury instructions |
A set of standardized jury instructions |
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Verdict |
The opinion of a jury on a question of fact |
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Mistrial |
A trial ended by the judge because of a major problem, such as a prejudicial statement by one of the attorneys |
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Judgement |
The decision of the court regarding the claims of each side. It may be based on a jury's verdict |
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Writ of execution |
A court order authorizing a sheriff to take property in order to enforce a judgement |
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Judgement notwithstanding the verdict (Judgement N.O.V.) |
A judgement that reverses the verdict of the jury when the verdict had no reasonable factual support or was contrary to law |
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Motion for a new trial |
A request that the court order a rehearing of a lawsuit because irregularities, such as errors of the court or jury misconduct, make it probable that an impartial trial did not occur |
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Appellate brief |
An attorney's written argument presented to an appeals court, setting forth a statement of the law as it should be applied to the clients facts |
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Clearly erroneous |
Standard used by by appellate courts when reviewing a trial court's findings of fact |
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Harmless Error |
A trial court error that is not sufficient to warrant reversing the decision |
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Reversible error |
An error made by the trial judge sufficiently serious to warrant reversing the trial court's decision |
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Affirm |
When a higher court agrees with what a lower court has done |
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Reverse |
When an appellate court overturns or negates the decision of a lower court |
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Remand |
When an appellate court sends a case back to the trial court for a new trial or other action |
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When does ADR occur in the litigation process? |
ADR can occur before litigation has begun or well after a lawsuit has been filed and the litigation process is well under way |
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Why ADR? |
More rapidly Less Cost Faster Parties can reach their own resolution instead of the court making a decision for them |
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Difference between Mediation and Arbitration? |
Arbitration imposes a solution, a mediator attempts to guide disputants toward a compromise |
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Arbitrators |
Typically selected from a group of individuals with special training in the area |
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American Arbitration Association |
Group where many arbitrators are selected |
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Mediators |
Help guide the parties toward a solution that is acceptable to both sides |
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Mediation |
Often mandatory in the area of family law with regard to child custody and visitation |
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Mediators |
Often attorneys, judges, psychologists, and social workers |
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4 roles paralegals play in ADR |
Gathering & preparing information Help make administrative arrangements Prepare clients and other witnesses Prepare documents |
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Litigation procedure |
Most states procedural rules are based on the federal rules. Individual courts often have their own local rules |
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Legal grounds for pretrial |
Are their sufficient credible facts to support the plaintiff's position? Does the attorney believe that there is a valid legal theory to support the claim? Paralegals may conduct legal and factual research: Locate and analyze statutes, court rules, and relevant cases. Locate parties, trace corporate ownerships, and related |
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Who can bring suit? |
Standing: a legal principle that allows only those with a real stake in the outcome to participate in a lawsuit |
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Who can bring suit |
Guardian a person appointed by the court to manage the affairs or property of a person who is incompetent due to age or some other reason. Allowing guardians or "next friends" to sue as a representative is an exception to the standing requirement |
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Judgement Proof |
A defendant may not have the money/assets to pay the damages that a court might award |
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Selection of the court |
Courts must have both subject matter jurisdiction and personal jurisdiction to hear a case |
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Class Action Suit |
A named plaintiff brings the suit on behalf of a large class of additional plaintiffs who were similarly wronged by the defendant |
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Who can file a class action suit |
There must be common questions of law or fact to the class and the claims of the class named must be typical of the claims of the class as a whole |
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Federal question |
General federal court only hear cases relating to federal law |
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Diversity of Citizenship |
Opposing parties must be from different states and the amount in dispute must exceed $75,000 |
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Personal jurisdiction |
The courts authority to force a person to appear before it |
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Exhaustion of administrative remedies |
If a claim falls under the jurisdiction of an administrative agency, the claim might have to be brought before the agency before being filed in court |
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Pleadings |
The documents that each side files with the court and serves on the other side of the beginning of the lawsuit |
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Complaint |
Begins the lawsuit |
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Counterclaim |
A countersuit by the defendant against the plaintiff |
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Cross-claim |
A suit by one defendant against another defendant |
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Third-party claim |
A suit by a defendant against someone not in the original lawsuit |
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Summons |
notifies the defendant that a suit has been filed and requires the defendant to respond or risk losing the lawsuit (known as defaulting) |
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The summons |
is served on the defendant along with a copy of the complaint |
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Discovery |
helps each side gather as much information as possible so that each can fairly evaluate and prepare for trial or settlement |
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Request for admissions |
a document that lists statements regarding the specific items for the other party to admit or deny |
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Motion to produce documents |
is used to obtain documents in the possessions of one of the parties |
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Subpoena duces tecum |
is used to obtain documents from 3rd parties |
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Motion for physical examination |
is usually used in personal injury cases or other situations where a party health is at issue |
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Court Order |
If a party refuses the opposing side can seek a _______ compelling compliance with the discovery request |
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4 goals of pretrial conferences |
Encourage settlements focus on issues to be presented at trial Encourage parties to agree as to which matters are not contested |
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Juries |
resolve factual questions, not legal ones. They also award damages for pain and suffering |
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Right to jury trial |
Most types of federal cases Each states decides the extent to which jjuries are to be available in civil matters |
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Voir Dire |
Marks the start of a trial |
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Challenge for cause |
a method excusing prospective jurors based on the jurors inability to serve in an unbiased manner |
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Preemptory challenge |
Allows an attorney to excuse a juror without stating a reason |
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Opening Statements |
an outline of upcoming testimony the attorneys will present |
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Direct Exxamination |
questioning of your own witness |
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Cross-examination |
questioning of an opposing witness |
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Redirect examination |
follows cross examination |
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Closing arguments |
Final chance to persuade a jury |
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For an appeal |
An appellate court will consider legal issues only |
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Reversible error |
the appellate court is convinced that the trial court made a mistake |
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Prejudicial errors |
Those that had no significant effect on the the outcome |
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Harmless errors |
Those that had no significant effect on the outcome |
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Rights to appeal |
Generally, there is only 1 right to appeal |
