Cival Liability

Front 1

Damages

Back 1

To a lawyer, damages means dollar signs! Think money!

Front 2

Doctrine

Back 2

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.

Front 3

in derogation of the common law

Back 3

This means that they have specifically passed laws instructing the courts not to follow the First Bite Free Doctrine.

Front 4

Venue

Back 4

The venue is the physical location of the trial

Front 5

Diversity of Citizenship

Back 5

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.

Front 6

Cause of Action

Back 6

Cause of Action must exist in order to sue

Front 7

sue

Back 7

To sue is to file civil litigation.)

Front 8

Claim for Relief

Back 8

Cause of Action must exist in order to sue

Front 9

Pleading

Back 9

Complaint
Answer
Affirmative Defense
Counterclaim
Cross Claim (Third Party Complaint)
Reply

Front 10

Complaint

Back 10

says the Defendant harmed the Plaintiff

Front 11

Answer

Back 11

the Defendant responding, "No, I didn't!"

Front 12

Affirmative Defense

Back 12

is the Defendant saying, "Nobody can be blamed."

Front 13

Counterclaim

Back 13

is where the Defendant says, "The Plaintiff hurt me!"

Front 14

Cross Claim

Back 14

is the Defendant saying, "It wasn't my fault. It was someone else's fault!"

Front 15

Reply

Back 15

is the Plaintiff responding to the Counterclaim, saying, "I didn't hurt the Defendant!"

Front 16

Ad Damnum Clause

Back 16

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.

Front 17

Service of Process

Back 17

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.

Front 18

Process =

Back 18

Summons and Complaint

Front 19

Summons and Complaint =

Back 19

Process

Front 20

Personal Service

Back 20

If a Defendant is served with legal documents, such as the summons and complaint, in person

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substitute service

Back 21

If a Defendant has a person or company that has been hired to accept service for him/her/it

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registered agent

Back 22

The person or company that accepts service

Front 23

resident agent

Back 23

The person or company that accepts service

Front 24

Jurisdiction

Back 24

This is the legal power a court has to determine the outcome of a legal dispute

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Venue

Back 25

is the physical location of the trial. The address.

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In personam jurisdiction

Back 26

If either party lives in the authorized area of the court in question, that court could hear the case through in personam jurisdiction.

Front 27

In rem jurisdiction

Back 27

If the property exists, or the controversy occurred with the authorized area of the court, it can hear the matter under in rem jurisdiction.

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Quasi in rem jurisdiction

Back 28

This kind of jurisdiction is usually invoked in order to help a party who has won a judgment obtain damages awarded by the court.

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judgment debtor

Back 29

the person who lost at trial

Front 30

judgment creditor

Back 30

the winner at trial

Front 31

Affirmative Defense

Back 31

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.

Front 32

Motion

Back 32

is a request to the court to attend to a procedural matter involving the trial

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pleading

Back 33

a party's position in the litigation

Front 34

Litigation

Back 34

When an attorney says s/he is a litigation attorney, that means s/he sues on behalf of clients in civil matters.

Front 35

Discovery

Back 35

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.

Front 36

five tools of discovery

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-Interrogatories
-Request for Admissions
-Request for Production of Documents
-Request for Mental or Physical Examination
-Depositions

Front 37

Certificate of Mailing

Back 37

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.

Front 38

Judgment

Back 38

the final determination of the court. It is usually the last act during the trial phase.

Front 39

Motion for Summary Judgment

Back 39

they ask the judge to decide the case instead of the jury.

Front 40

When does Motion for Summary Judgment occur?

Back 40

Pretrial

Front 41

When does Motion for Directed Verdict occur?

Back 41

Trial

Front 42

When does Motion for Judgment NOV occur?

Back 42

Post Trial

Front 43

Voir dire (Pronounced: Vwaw-deer)

Back 43

Jury selection or the questioning of a potential witness.

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Challenges for Cause

Back 44

which means that there is a valid reason to keep the person of the jury

Front 45

Peremptory Challenge

Back 45

where the attorney can keep a person off the jury without having to provide a reason.

Front 46

Are Challenges for Cause unlimited?

Back 46

Yes

Front 47

Peremptory Challenges are not limited

Back 47

False

Front 48

Burden of Proof

Back 48

The burden is on the plaintiff in a civil trial, and the prosecutor in a criminal trial.

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the burden of proof is on the defendant in a civil trial

Back 49

False

Front 50

the burden of proof is on the defendant in a criminal trial

Back 50

Flase

Front 51

preponderance of the evidence

Back 51

The burden of proof in a civil trial

Front 52

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).

Back 52

True

Front 53

beyond a reasonable doubt

Back 53

than the burden of proof in a criminal trial

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Probative Value

Back 54

informative value

Front 55

If the probative value (informative value) of a piece of evidence is outweighed by the prejudicial effect, the evidence should not be admitted.

Back 55

True

Front 56

Preserving the Record and

Back 56

Objections by an attorney at trial are very often an effort to preserve the record thereby preserving the right to later appeal.

Front 57

Preserving the Right of Appeal

Back 57

Objections by an attorney at trial are very often an effort to preserve the record thereby preserving the right to later appeal.

Front 58

Doctrine of Last Clear Chance

Back 58

holds that the person who had the last clear opportunity to avoid the damages is the most liable.

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Prima Facie Case (Pronounced: prime-uh faysh-uh)

Back 59

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.

Front 60

Motion for Directed Verdict

Back 60

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.

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NOV

Back 61

Non Obstante Verdicto or
not withstanding the verdict

Front 62

Writ of Certiorari

Back 62

document which requests the second appeal

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Record

Back 63

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.

Front 64

Res Judicata

Back 64

This is the civil equivalent of double jeopardy.

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Opinion

Back 65

When the court provides a written decision for publication in a report or reporter

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Petition (noun)

Back 66

When an attorney petitions the court, s/he is asking the court to take some action (similar to a pleading or motion).

Front 67

Petition (verb)

Back 67

attorney can file a Petition with the court.