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67 Cards in this Set

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Damages
To a lawyer, damages means dollar signs! Think money!
Doctrine
A doctrine is a line of legal thinking that a series of courts follows even though it is not statutory in nature. In other words, no legislature has passed a law regarding the subject matter contained in the doctrine.
in derogation of the common law
This means that they have specifically passed laws instructing the courts not to follow the First Bite Free Doctrine.
Venue
The venue is the physical location of the trial
Diversity of Citizenship
If a person from Boston gets in an accident in New York with a person from New York, the Bostonian may be concerned that the court in New York would rule in the New Yorker's favor. (Probably a Yankee fan!) If the amount being sought is in excess of $75,000 the Bostonian can have the matter heard in federal court instead of the state courts in New York. The federal judges are considered to be of higher quality than state judges, and are not paid by the state, but by the federal government. One interesting aspect is that the federal court will apply the laws of New York.
Cause of Action
Cause of Action must exist in order to sue
sue
To sue is to file civil litigation.)
Claim for Relief
Cause of Action must exist in order to sue
Pleading
Complaint
Answer
Affirmative Defense
Counterclaim
Cross Claim (Third Party Complaint)
Reply
Complaint
says the Defendant harmed the Plaintiff
Answer
the Defendant responding, "No, I didn't!"
Affirmative Defense
is the Defendant saying, "Nobody can be blamed."
Counterclaim
is where the Defendant says, "The Plaintiff hurt me!"
Cross Claim
is the Defendant saying, "It wasn't my fault. It was someone else's fault!"
Reply
is the Plaintiff responding to the Counterclaim, saying, "I didn't hurt the Defendant!"
Ad Damnum Clause
This is the part of the complaint that tells the court what it is exactly that the party is asking the court to do. You will learn much more about this when you draft a complaint later in the program.
Service of Process
When an attorney says process, he means "Summons and Complaint." So, when a lawyer asks whether process has been served, s/he is asking whether the summons and complaint have been delivered to the Defendant. So understand this: Process = Summons and Complaint.
Process =
Summons and Complaint
Summons and Complaint =
Process
Personal Service
If a Defendant is served with legal documents, such as the summons and complaint, in person
substitute service
If a Defendant has a person or company that has been hired to accept service for him/her/it
registered agent
The person or company that accepts service
resident agent
The person or company that accepts service
Jurisdiction
This is the legal power a court has to determine the outcome of a legal dispute
Venue
is the physical location of the trial. The address.
In personam jurisdiction
If either party lives in the authorized area of the court in question, that court could hear the case through in personam jurisdiction.
In rem jurisdiction
If the property exists, or the controversy occurred with the authorized area of the court, it can hear the matter under in rem jurisdiction.
Quasi in rem jurisdiction
This kind of jurisdiction is usually invoked in order to help a party who has won a judgment obtain damages awarded by the court.
judgment debtor
the person who lost at trial
judgment creditor
the winner at trial
Affirmative Defense
An Affirmative Defense is usually found in the Answer, but is considered a separate legal entity. You will learn much more about it when you draft an Answer later. While it is being referred to here as a pleading, it is different from other pleadings in that it could never be a separate, stand-alone document. But there is no where else to classify it, so consider it a pleading.
Motion
is a request to the court to attend to a procedural matter involving the trial
pleading
a party's position in the litigation
Litigation
When an attorney says s/he is a litigation attorney, that means s/he sues on behalf of clients in civil matters.
Discovery
Discovery is basically a fact-finding tool. Almost part of investigation. The goal is to lay out all relevant facts before going to trial. Discovery also encourages settlement, because after all the facts have been laid out, the parties are more likely to know how they might fare at a trial. While pleadings are filed with the court, discovery documents are usually not filed. The discovery responses may be used as an exhibit later at trial, however.
five tools of discovery
-Interrogatories
-Request for Admissions
-Request for Production of Documents
-Request for Mental or Physical Examination
-Depositions
Certificate of Mailing
a simple paragraph at the end of many pleadings, motions, and discovery documents that states what other parties have been sent copies of the document.
Judgment
the final determination of the court. It is usually the last act during the trial phase.
Motion for Summary Judgment
they ask the judge to decide the case instead of the jury.
When does Motion for Summary Judgment occur?
Pretrial
When does Motion for Directed Verdict occur?
Trial
When does Motion for Judgment NOV occur?
Post Trial
Voir dire (Pronounced: Vwaw-deer)
Jury selection or the questioning of a potential witness.
Challenges for Cause
which means that there is a valid reason to keep the person of the jury
Peremptory Challenge
where the attorney can keep a person off the jury without having to provide a reason.
Are Challenges for Cause unlimited?
Yes
Peremptory Challenges are not limited
False
Burden of Proof
The burden is on the plaintiff in a civil trial, and the prosecutor in a criminal trial.
the burden of proof is on the defendant in a civil trial
False
the burden of proof is on the defendant in a criminal trial
Flase
preponderance of the evidence
The burden of proof in a civil trial
The burden of proof in a civil trial (preponderance of the evidence) is less than the burden of proof in a criminal trial (beyond a reasonable doubt).
True
beyond a reasonable doubt
than the burden of proof in a criminal trial
Probative Value
informative value
If the probative value (informative value) of a piece of evidence is outweighed by the prejudicial effect, the evidence should not be admitted.
True
Preserving the Record and
Objections by an attorney at trial are very often an effort to preserve the record thereby preserving the right to later appeal.
Preserving the Right of Appeal
Objections by an attorney at trial are very often an effort to preserve the record thereby preserving the right to later appeal.
Doctrine of Last Clear Chance
holds that the person who had the last clear opportunity to avoid the damages is the most liable.
Prima Facie Case (Pronounced: prime-uh faysh-uh)
no gaps. If the facts being alleged are eventually proven at trial, that there are no gaps, and the Plaintiff deserves to be awarded damages.
Motion for Directed Verdict
As mentioned earlier, this is similar to a Motion for Summary Judgment, but it occurs during the trial. In essence, however, they do the same thing. They ask the judge to decide the case without consulting the jury.
NOV
Non Obstante Verdicto or
not withstanding the verdict
Writ of Certiorari
document which requests the second appeal
Record
transcripts from the trial, the evidence, the motions, the pleadings, and the exhibits.This material is collected by the court and is called the record.
Res Judicata
This is the civil equivalent of double jeopardy.
Opinion
When the court provides a written decision for publication in a report or reporter
Petition (noun)
When an attorney petitions the court, s/he is asking the court to take some action (similar to a pleading or motion).
Petition (verb)
attorney can file a Petition with the court.