Chapter 6 - Civil Litigation And Its Alternatives

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Alternative dispute resolution (ADR)

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Techniques for resolving conflicts that are alternatives to full-scale litigation. The two most common are arbitration and mediation.

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Arbitration

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An ADR mechanism whereby the parties submit their disagreement to a third party, whose decision is binding.

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Mediation

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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

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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

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The papers that begin a lawsuit - generally, the complaint and the answer

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Pretrial motion

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A motion brought before the beginning of a trial either to eliminate the necessity for a trial or to limit the information that can be heard at the trial.

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Discovery

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The modern pretrial procedure by which one party gains information from the adverse party.

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Standing

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The principle that courts cannot decide abstract issues or render advisory opinions; rather, they are limited to deciding cases that involve litigants who are personnaly affected by the court's decision.

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Guardian

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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

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A lawsuit brought by a person as a representative for a group of people who have been similarly injured.

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Judgment proof

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When the defendant does not have sufficient money or other assests to pay the judgment.

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Respondeat superior

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Theory where an employer can sometimes be held responsible for the acts of its employees.

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Compulsory joinder

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When a person must be brought into a lawsuit as either a plaintiff or a defendant.

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Jurisdiction

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The power of a court to hear a case.

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Subject matter jurisdiction

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The power of a court to hear a particular type of case.

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Personal jurisdiction

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The power of a court to force a person to appear before it.

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Minimum contacts

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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

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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

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The requirement that relief be sought from an administrative agency before proceeding to court.

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Complaint

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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

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A claim by the defendant against the plaintiff.

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Cross-claim

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A claim by one defendant against another defendant or by one plaintiff against another plaintiff.

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Third-party claim

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A claim by a defendant against someone in addition to the persons the plaintiff has already sued.

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Caption

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The heading section of a pleading that contains the names of 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

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A method adopted by the federal rules in which the plaintiff simply informs the defendant of the claim and the general basis for it.

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Count

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In a complaint, one cause of action.

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Pleading in the alternative

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Including more than one count in a complaint, the counts do not need to be consistent.

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Verification

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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

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Being informed of some act done or about to be done.

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Service

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The delivery of a pleading or other paper in a lawsuit to the opposing party.

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Summons

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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 (also known as e-filing)

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The filing of court documents over the Internet as electronic files.

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Process server

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A person authorized by law to serve legal paper on defendants.

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Case Management/Electronic Files (CM/ECF)

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A comprehensive case management system developed for the federal courts allowing them to receive electronic filing and to the maintain case files accessible via the Internet.

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Portable Document Format (PDF)

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A format that allows a document to be viewed and printed on any computer. Federal courts require all documents be filed in this format.

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Electronic signature

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A means of establishing that a document being sent electronically was properly authorized.

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Affirmative defense

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A defense whereby the defendant offers new evidence to avoid judgment.

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Default judgment

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A judgment entered against a party who fails to complete a required step, such as answering the complaint.

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Motion

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A request made to the court.

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12(b)(6) motion

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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 judgment motion)

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A request that the court grant judgment in favor of hte moving party because there is no genuine issure as to any material fact and the moving party is entitled to judgment as a matter of law. It is similar to a 12(b)(6) motion except that the court also considers matters outside of pleadings.

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Interrogatories

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Written questions sent by one side to the opposing side, answered under oath.

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Deposition

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The pretrial oral questioning of a witness under oath.

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Deponent

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The person who is being asked questions at a deposition.

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Request for admissions

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A document that lists statements regarding specific items for the other party to admit or deny.

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Subpeona duces tecum

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A court order that a person who is not a party to litigation appear at a trial or deposition and bring requested documents.

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Electronic discovery

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The process of gaining information from the adverse party when that info is in electronic form, such as emails, voice mail, text messages, photographs, spreadsheets, and documents: also known as e-discovery.

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Metadata

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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

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The format used by the program, such as Microsoft Word or Excel, that created the file.

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Electronically stored information (ESI)

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Information created, disbursed, or stored in an electronic format.

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Litigation hold

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A requirement that routine alteration or destruction of ESI must stop whenever there is a reasonable belief litigation may arise.

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Spiolation

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The destruction or alteration of relevant documents.

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Meet and confer conference

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In federal court, a mandated conference at which the parties must develop a discovery plan.

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Claw-back provision

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An agreement whereby privileged documents inadvertently produced can be retrieved.

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Dismissal with prejudice

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A court order that ends a lawsuit; the suit cannot be refiled by the same parties.

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Pretrail conference

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A meeting of the attorneys and the judge prior to the beginning of the trial.

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Motion in limine

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A request that the court order that certain information not be mentioned in the presence of the jury.

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Voir dire

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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

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A method for excusing a prospective juror based on the juror's inability to serve in an unbiased manner.

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Peremptory challenge

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A method for excusing a prospective juror; no reason need be given.

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Direct examination

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The questioning of your own witness.

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Leading question

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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

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The questioning of an opposing witness.

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Directed verdict

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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

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A set of standardized jury instructions.

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Verdict

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The opinion of a jury on a question of fact.

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Mistrial

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A trial ended by the judge becasue of a major probelm, such as a prejudicial statement by one of the attorneys.

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Judgment

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The decision of the court regarding the clams of each side. It may be based on jury's verdict.

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Writ of execution

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A court order authorizing a sheriff to take property in order to enforce a judgment.

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Judgement notwithstanding the verdict (judgment N.O.V.)

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A judgment that reserves 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

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A request that the court order a rehearing of a lawsuit becasue 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

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An attorney's written argument presented to an appeals court, setting forth a statement of the law as it should be applied to the client's facts.

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Clearly erroneous

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Standard used by the appellate courts when reviewing a trial court's findings of fact.

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Harmless error

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A trial court error that is not sufficient to warrant reversing the decision.

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Reversible error

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An error made by the trial judge sufficiently serious to warrant reversing the trial court's decision.

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Affirm

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When a higher court agrees with what a lower court has done.

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Reverse

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When an appellate court overturns or negates the decision of a lower court.

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Remand

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When an appellate court sends a case back to trial court for a new trial or other action.

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Litigation

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The process of using the courts to settle disputes.

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Doctrine of exhaustion

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Requires the trial court be given every possible opportunity to correct its own errors before the appellate courts intervene.

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Reporters

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Law books that contain all of an appellate court's opinions.