Civ Pro: Trials And Appeals

Front 1

When must a demand for jury trial be made?

Back 1

in writing within 10 days after service of the last pleading directed to the issue, otherwise it is waived

Front 2

Who has the right to jury trial?

Back 2

plaintiff, defendant and other parties

Front 3

What are the criteria for challenging for cause?

Back 3

1. juror does not meet the statutory requirements for service
2. juror cannot be fair

Front 4

How many preemptory challenges does each party get?

Back 4

8 or 6 per defendant if multiple defendants

Front 5

What is the exception to preemptory challenges?

Back 5

Cannot be based on religion, race, national origin, or gender

Front 6

When is a motion for directed verdict made?

Back 6

After the opposing party has submitted all of its evidence

Front 7

What is a motion for directed verdict called in federal court?

Back 7

motion for judgment as a matter of law

Front 8

What is the standard for a motion for directed verdict?

Back 8

sufficiency of the evidence - if the evidence is insufficient to justify a verdict as a matter of law for the nonmoving party, and no material facts exist, the court should grant the motion

Front 9

What is a post-verdict motion judgment notwithstanding the verdict?

Back 9

A renewed directed verdict motion after the verdict is rendered

Front 10

When must a JNOV be made?

Back 10

within 10 days of the entry of judgment

Front 11

Can a party move for JNOV if it did not move for DV at the end of all evidence?

Back 11

No

Front 12

When is a motion for new trial made?

Back 12

typically paired with a JNOV, must be served no later than 10 days after entry of the judgment

Front 13

What grounds can the trial judge use for granting a new trial?

Back 13

Wide latitude:
a) irregularity
b) misconduct of the jury or prevailing party
c) accident or surprise that could not have been prevented by reasonable safeguards
d) newly discovered evidence that is material and reasonable diligence would not have discovered and produced it
e) manifest disregard by the jury of the instructions of the court
f) excessive or inadequate damages that are the result of passion or prejudice (judge may limit damages or order new trial)
g) insufficiency of the evidence/verdict is contrary to law (judge can correct a deficient verdict)
h) error in law occurring at trial and an objection was made by the party making the motion
i) any other reason recognized as appropriate for a new trial

Front 14

What is the special rule in NC regarding jury instructions?

Back 14

The trial judge is not allowed to comment on the evidence

Front 15

How are objections to jury instructions made?

Back 15

before the jury retires to deliberate, state which part of the instructions, and give specific grounds

Front 16

What is a general verdict?

Back 16

jury asked which party prevails and the amount of damages

Front 17

What is a special verdict?

Back 17

jury is given specific questions of fact to answer

Front 18

In a general verdict with special findings of fact, what controls if the special findings are inconsistent with the general verdict?

Back 18

special findings

Front 19

When does the time to file motions or appeal begin to run?

Back 19

entry of judgment: when the judgment is reduced to writing and signed by the judge and filed with the clerk (then served on all parties within 3 days, 6 days if by mail)

Front 20

Duty to rescue.

Back 20

NO duty to rescue strangers, unless...
>> EXCEPTIONS:
(1) Preexisting Relationship:
(a) common carrier-passenger;
(b) parent-child;
(c) innkeeper-guest;
(d) landowner-invitee.
(e) ad hoc relationships (ex:
guys going out drinking).
(2) Defendant caused the peril.
(3) Defendant initiates voluntary. rescue.

Front 21

When can a party appeal?

Back 21

30 days from entry of judgment or from entry of the order on any post verdict motions

Front 22

What are final judgments?

Back 22

dispose of the entire case as to all claims and parties and are immediately appealable

Front 23

When are interlocutory judgments appealable?

Back 23

when there are multiple parties or claims, the court can enter final judgment on fewer than all of the claims or parties;
when the ruling affects a substantial right

Front 24

When are substantial rights affected?

Back 24

1. denial of a motion to dismiss for lack of PJ
2. denial of a motion to dismiss for failing to bring the claim as a compulsory counterclaim in a previous action
3. denial of a motion to change venue as of right
4. grant of a new trial based on a legal question

Front 25

For cases decided prior to October 1, 2009, the appellant must:

Back 25

state each ground for appeal as an assignment of error

(now appellant only needs to state the errors/grounds of appeal)

Front 26

When will a court grant relief from judgments or orders?

Back 26

1. to correct clerical error (from misnomers to mathematical errors)

2. time for appeal has expired but there is a significant reason to change the judgment anyway (very narrow)

Front 27

What are the 6 Bases for Possible Relief from Judgment and when must they be filed?

Back 27

1. Mistake, inadvertence, surprise, or excusable neglect plus reliance*
2. Newly discovered evidence which due diligence could not have discovered earlier*
3. Fraud, misrepresentation or other misconduct by adverse party*
4. Judgment is void/defective**
5. Judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment should have prospective application**
6. Any other extraordinary reason**

* within 1 year of entering judgment or order
** reasonable time

Front 28

What are the three types of injunctions?

Back 28

Temporary Restraining orders - irreparable harm, requires notice, interlocutory
Preliminary injunctions - requires notice, interlocutory
Permanent injunctions - final (automatic right of appeal)

Front 29

What are the two methods of precluding subsequent litigation?

Back 29

1. Claim Preclusion (res judicata)

2. Issue Preclusion (collateral estoppel)

Front 30

What are the elements of res judicata?

Back 30

1. same claim was brought or could have been brought as part of same transaction
2. general rule: each plaintiff has the opportunity to litigate his own claim (as long as not in privity with original plaintiff - joint landowners)
3. Claim was ripe
4. Same parties
5. Final judgment on the merits

Front 31

What are the elements of collateral estoppel?

Back 31

1. same issue of fact
2. actually litigated
3. necessarily litigated
4. party to be precluded from relitigating is same party (or in privity with) the party that lost the issue in the first case

Front 32

What is the SoL for defamation?

Back 32

1 year from publication

Front 33

What is the SoL for wrongful death?

Back 33

2 years from death

Front 34

What is the SoL for professional negligence?

Back 34

3 years from date of last act giving rise to claim

Front 35

What is the SoL for products liability actions?

Back 35

3 years

Front 36

What is the SoL for fraud and mistake?

Back 36

3 years from date of facts constitution the fraud/mistake or when should have been discovered.

Front 37

What is the SoL for negligence actions?

Back 37

3 years from injury

Front 38

What is the SoL for intentional torts?

Back 38

3 years

Front 39

What is the SoL for conversion?

Back 39

3 years

Front 40

What is the SoL for trespass on real property?

Back 40

3 years

Front 41

What is the SoL for contract?

Back 41

3 years from breach

Front 42

What is the SoL for claims for loss covered by an insurance policy?

Back 42

3 years

Front 43

What is the SoL for unfair and deceptive trade practices?

Back 43

4 years from date of violation

Front 44

What is the SoL for contracts governed by UCC?

Back 44

4 years

Front 45

What is the SoL for contracts under seal?

Back 45

10 years