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124 Cards in this Set

  • Front
  • Back
Sibbach V. Wilson
if an issue is procedural, use the FRCP. If it is substantive, use state law.
where did we get the FRCP?
rules enabling act of 1934 gave the court the right to prescribe rules of "practice and procedure" as long as they didn't "modify substantive rigts."
who chooses the venue?
Plaintiff--and they may have a choice of many courts to bring suit.
how should a complaint "be"? any exceptions?
short and plain, except in cases of fraud or mistake
Sierocinski v Du Pont
case: dynamite crimping
Rule: P need not give all the facts in the complaint--it is enough to know the "charge."
how do courts resolve ambiguities in complaints?
in favor of the pleading party: no "failure to state a claim" unless it appears beyond doubt that plaintiff can prove NO set of facts entitling releif.
how many claims can a pleader set forth in one claim? what rule? why?
8e2: 2 or more. this is in case the pleader is genuinely uncertain about which one he is going to pursue.
what is the truth pleading rule?
rule 11--good faith
Murphy v Cuomo
case: pepper spray conspiracy
rule: the complaint must be based on more than mere speculation.
how long to respond to a complaint? what rule?
20 days 12a
what 6 things can the defendant do after getting a complaint?
1. object on grounds not going to the merits.
2. ask for dismissal for failure to state a claim
3. deny allegations
4. affirmative defense
5. object for vague or ambiguous complaint
6. motion to strike prejudicial matter from the complaint
how does the defense present defenses or objections to a complaint? how many forms?
must be in a single motion.
which 3 motions can the defense raise in either pre-answer, answer, or post-answer motions?
1. Subject matter jurisdiction
2. failure to state a claim
3. failure to join a party
what defenses must be raised by pre-answer motion?
personal jurisdiction
insufficient process
insufficient service
can affirmative defenses be raised post-answer?
only in an amendment to the answer--not in a PA motion.
Case: secret agent man
rule: waiver by failure to raise a timely motion.
can a plaintiff reply to an affirmative defense?
no--since an uncontested AD would null the claim, it is taken as denied.
what kinds of counterclaims are there
compulsury and permissive
what is a compulsury counterclaim?
a claim which arises out of the same transaction or occurence must be raised or it is barred by res judicata.
Williams v Robinson
case: adultery or libel--same transaction or occurence?
Rule: would the same evidence support or refute the opposing claims?
when can a counterclaim not be compulsory?
when it requires the presence of 3rd parties over whom the court cannot obtain jurisdiciton
when can a party amend pleading?
once as a matter of course before responsive pleading is served.--after that, the court decides but leave shall be freely given when justice so requires.
what happens if someone wants to ammend the pleading at or after trial?
the opposing party objects and must show that he is prejudiced by the change (court may grant a continuance.)
whats the deal on amendments relating back to the original pleading to avoid the Statute of limitations?
if it arises from the same transaction or occurence set forth in the original pleading.
Blair v Durham
case: postal worker hit in the head with a falling 2x4.
rule: same transaction relates back--no statute of limitations problem
what can be discovered?
any matter not privileged which is relevant. (it doesn't even have to be admissible, if it looks like it could lead to something admissible.)
what are the only discovery devices that must be initiated by motion to the court?
physical and mental examinations
how do you give notice of a deposition?
in writing specifying time, place, and deponent.
how do you get a non-party deponent?
what if you don't like the questions at an opposing deposition
object. client can choose to answer. but if he doesn't answer, judge can order him to answer.
Umphres v Shell
case: gas baron consipiracy charges
rule: plaintiff is not required to answer deposition questions about legal conclusions--only about facts
when would you use a deposition upon written questions
when the deponent is far away and you can't get there.
what is the main advantage of an interrogatory?
who can you give an interrogatory to? who cant you?
only to a party in the action.
how long to fill out an interrogatory?
30 days
what is a request for admission? what is it good for?
a written request for the other party to, under oath, admit or deny certain matters. it speeds things up when they are undisputed or easily proveable.
what is "real evidence"?
photos, documents, computer info, etc.
how do you discover "real evidence"--it's not your stuff?
file a request. no motion necessary.
what is the requirement for getting an order of a physical or mental exam?
good cause that such is in controversy.
what happens when someone doesn't cooperate with discovery?
usually sanctions up to contempt (except for not submitting to a physical or mental exam). however, appelate courts may overturn sanctions if they are too drastic. sanctions should ensure compliance, not punish.
are you bound to answers given during discovery? case?
no. Freed v Erie railway. train was in the yard, no lookout necessary. NOT bound.
are pretrial conferences mandatory? rule?
no 16.
what is decided in a pretrial conference?
what is agreed on?
what is disputed?
further amendments to pleading?
further discovery?
exchange of experts, etc.
trial date
what is a pretrial order?
what does it do?
defines the issues--only those set forth in the order can be litigated at trial.
controls the subsequent course of action.
can a plaintiff be precluded from introducing evidence not disclosed before the trial even if it would result in a directed verdict? case?
yes. Shuber v Kresge
identiseal case
judges may not compel discovery although they may regulate it once it is initiated. rule 16 allows judges to require parties to consider discovery.
what does a magistrate do?
usually handles discovery issues and pretrial conferences, etc.
what does a master do?
a specified task--usually positive fact finding for the court.
what's the difference between a motion for judgment on the pleadings and a motion for summary judgment?
JOP: even if its all true, the pleadings are legally insufficient for her to win.(sufficiency)
SJ: even if its all true, I win as a matter of law. (merit)
what happens if the court grants a motion for judgment on the pleadings
usually allows the party to amend the pleadings
if there is a pretrial motion to terminate litigation that goes beyond the pleadings, what motion must it be?
summary judgment.
how are pretrial facts presented?
affidavits, tetimony, etc.
what is the purpose of a provisional remedy
a temporary fix because trials are long and people can hide money or continue to hurt people.
what is attachment?
a provisional remedy that seizes and holds property pending the outcome of a suit
what is a preliminary injunction?
a provisional remedy like a restraining order that enjoins a party to do or refrain from doing a particular act (a temporary restraining order may be granted w/o a hearing)
how do you decide if a preliminary injunction should be applied?
if the plaintiff is very likely going to win, there is little harm in allowing a remedy now.
what are he appelate standards of review for:
legal conclusions
provisional remedies?
facts: clearly erroneous standard
LC: de novo
Provisional remedies: abuse of discretion
where does the right of trial by jury come from?
7th amendment
what is the aim of suits "at law"?
what is the aim of suits "in equity"?
is there a state guarentee of trial by jury?
no. it's in the federal constitution. although it is in many state constitutions as well.
right to a trial by jury is based on a what?
timely demand in writing filed as any other pleading
what is a timely demand for a trial by jury?
fed: 10 days
state: when the case is set for trial.
Colgrove v Battin
case: Montana had a rule of 6 person jury in civil cases
Rule: 6 is okay with the constitution
what is the modern jury size trend?
in federal courts, what does the vote have to be in a jury?
unanimous unless otherwise agreed and stipulated
what is voir dire?
questioning jurors whose names have been drawn
who usually conducts voir dire?
the judge.
what are the two kinds of jury challenges?
1: for cause (bias, etc.)
2: peremptory (just cuz--you get 3 of these in fed court)
what is the burden of persuasion in civil actions?
to CONVINCE the trier of fact to a PREPONDERANCE of the evidence.
what is the burden of going forward?
the burden of proof.
when the burden of going forward (proof) has been satisfied, what happens?
the burden shifts to the other side. he must prove that what was proven is not the case.
when is a directed verdict proper?
when either party has not met their burden of proof (going forward)
what is judicial notice?
when a court can readily ascertain the truth of certain facts
what is the difference between competency and weight of witness testimony?
competency is a matter of law. weight is a matter of fact for the jurors
what is the federal position on competency
fed tends to abolish competency requirements but when the case turns on state law, it is determined by that state law.
what are the only 3 real competency requirements anymore?
ability to communicate
obligation of truthfulness
personal knowledge
what is a witness "privilege"?
a rule of law which excuses a witness from giving testimony which she could otherwise be compelled to give.
what are the 4 privileges at common law (recognized in federal courts)
what is hearsay
when testimony reports what someone else communicated (when that someone is not availible for cross-x, and what that person commmunicated is not the issue being proven).
what two reasons for a hearsay exclusion?
lack of cross-x
lack of trustworthiness
what happens to a hearsay objection if not timely made?
what are the admissible hearsays?
1. dying declaration
2. against interest
3. admissions
4. excited utterance
5. business records
Handel v NY rapid transit
elevated train dragged and dropped him--no time to fabricate (although court said he did have time.)
what kinds of relevant evidence can the judge choose to exclude because they are prejudicial or confusing?
liability insurance in negligence suits
proof of subsequent repairs
settlement offers
what are grounds 4 for witness impeachment?
ussually a liar
are leading questions permitted in cross-x
what is a motion for a directed verdict?
either party, at the close of opposing evidence, without waiving his right to rebut, may move for a directed verdict.
what kinds of verdicts are there?
general with special interrogatories
what are the conditions for a JNOV?
previous denied motion for a directed verdict
JNOV motion made within 10 days
(may be, and usually is, joined with a motion for a new trial.)
what is the judicial SOR for a JNOV motion?
like directed verdict, must infer best possible case from winners and still think the jury is crazy.
recover property wrongfully taken
recover property wrongfully held
recover possesion of real property.
what happens to costs?
usually awarded to winners except not attorney's fees.
can courts give declaratory judgments based on actual controversies conditional on future acts?
yes. American machine. (fans)
can courts give declaratory judgments on hypothetical constructions of a statute?
no. international longshoremen's.
with regard to the wording of the law, what does the plaintiff have to prove?
the "if" clauses
with regard to the wording of the law, what does the defendant have to prove?
the "unless" clauses
when is it to late to make a motion that can be made "at the trial"?
when the judge gives a ruling.
what rule prescribes time limits for a 12b6
what is a frivilous claim?
one designed primarily to harrass or maliciously injure.
how does the compulsory counterclaim rule work in the plaintiffs favor?
if he knows she has a strong counterclaim, he sues first and gets to choose the venue.
why do we have a compulsory counterclaim rule?
to avoid having to bring in the same witnesses to hear the same testimony twice.
what does a "responsive pleading" include? what does it not include?
a responsive pleading is an answer, not a motion.
is there any time limit on an amending a pleading?
not absolutely. you can amend once as a matter of course before an answer, but after that it is up to the court.
how does a court determine whether to allow a late amendment to pleadings? (what does it weigh?)
it weighs fault with prejudice.
what kinds of things are expected in disclosure (26a)
what was the judge saying to the deposing lawyer in the Umphres (conspiracy) case?
if you want to know theory, sit down with the other lawyer--don't ask the plaintiff in a deposition, he doesn't know.
you should talk to each other before you come crying to me.
Brandenburg v Israeli airlines
deposing lawyer asks for some facts about why she thinks they were negligent--her counsel says she doesn't have to answer. She does. these are not legal questions.
whats the difference between Umphres and Brandenburg?
whats the conspiracy (law)
what happened to you (facts)
how must requests for admission be phrased?
Are they binding?
yes/no questions.
Yes, they are binding.
determining desirability is a function of what test?
cost / benefit analysis.
lawyers have an ethical duty of truth but not of...
candor--you don't have to answer anything that was not asked. but rule 26e is a rule based imposition of candor.
if you are asked a question in interrogatory, what must you provide?
an answer, and the information you have about your answer. (did he come to a full stop?)
Shuber v Kresge
husband, electrician, can't suprise testify because it wasn't in the pretrial arrangements.
what do you have to show to get an injunction? (index number)
prejudice and probability of winning (high/low or low/high or high/high)
Kothe v Smith
judge can't coerce a settlement with sanctions
what's posners economic analysis of settlement say?
people are less likely to settle the bigger the requested judgment is and the more optomistic they are.
whats the difference between the judgments of juries and judges?
damage awards
whats the difference between a judgment on partial findings and a JNOV?
no jury / jury.
its way harder to overturn a jury.
what's the modern approach to competency?
let 'em testify. let the jury decide.
which is harder, a directed verdict or a JNOV and why?
directed verdict. either way the judge has to think you clearly won, but in a JNOV, he has to overturn a jury--judges think juries will be rational so they don't grant DVs
what is collusion?
a one-sided battle to establish a judicial precedent