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124 Cards in this Set
- Front
- Back
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Sibbach V. Wilson
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if an issue is procedural, use the FRCP. If it is substantive, use state law.
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where did we get the FRCP?
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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."
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who chooses the venue?
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Plaintiff--and they may have a choice of many courts to bring suit.
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how should a complaint "be"? any exceptions?
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short and plain, except in cases of fraud or mistake
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Sierocinski v Du Pont
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case: dynamite crimping
Rule: P need not give all the facts in the complaint--it is enough to know the "charge." |
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how do courts resolve ambiguities in complaints?
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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.
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how many claims can a pleader set forth in one claim? what rule? why?
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8e2: 2 or more. this is in case the pleader is genuinely uncertain about which one he is going to pursue.
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what is the truth pleading rule?
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rule 11--good faith
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Murphy v Cuomo
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case: pepper spray conspiracy
rule: the complaint must be based on more than mere speculation. |
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how long to respond to a complaint? what rule?
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20 days 12a
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what 6 things can the defendant do after getting a complaint?
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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 |
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how does the defense present defenses or objections to a complaint? how many forms?
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must be in a single motion.
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which 3 motions can the defense raise in either pre-answer, answer, or post-answer motions?
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1. Subject matter jurisdiction
2. failure to state a claim 3. failure to join a party |
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what defenses must be raised by pre-answer motion?
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personal jurisdiction
venue insufficient process insufficient service |
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can affirmative defenses be raised post-answer?
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only in an amendment to the answer--not in a PA motion.
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Coleman
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Case: secret agent man
rule: waiver by failure to raise a timely motion. |
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can a plaintiff reply to an affirmative defense?
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no--since an uncontested AD would null the claim, it is taken as denied.
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what kinds of counterclaims are there
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compulsury and permissive
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what is a compulsury counterclaim?
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a claim which arises out of the same transaction or occurence must be raised or it is barred by res judicata.
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Williams v Robinson
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case: adultery or libel--same transaction or occurence?
Rule: would the same evidence support or refute the opposing claims? |
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when can a counterclaim not be compulsory?
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when it requires the presence of 3rd parties over whom the court cannot obtain jurisdiciton
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when can a party amend pleading?
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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.
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what happens if someone wants to ammend the pleading at or after trial?
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the opposing party objects and must show that he is prejudiced by the change (court may grant a continuance.)
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whats the deal on amendments relating back to the original pleading to avoid the Statute of limitations?
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if it arises from the same transaction or occurence set forth in the original pleading.
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Blair v Durham
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case: postal worker hit in the head with a falling 2x4.
rule: same transaction relates back--no statute of limitations problem |
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what can be discovered?
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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.)
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what are the only discovery devices that must be initiated by motion to the court?
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physical and mental examinations
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how do you give notice of a deposition?
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in writing specifying time, place, and deponent.
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how do you get a non-party deponent?
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subpoena
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what if you don't like the questions at an opposing deposition
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object. client can choose to answer. but if he doesn't answer, judge can order him to answer.
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Umphres v Shell
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case: gas baron consipiracy charges
rule: plaintiff is not required to answer deposition questions about legal conclusions--only about facts |
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when would you use a deposition upon written questions
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when the deponent is far away and you can't get there.
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what is the main advantage of an interrogatory?
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cheap.
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who can you give an interrogatory to? who cant you?
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only to a party in the action.
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how long to fill out an interrogatory?
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30 days
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what is a request for admission? what is it good for?
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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.
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what is "real evidence"?
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photos, documents, computer info, etc.
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how do you discover "real evidence"--it's not your stuff?
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file a request. no motion necessary.
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what is the requirement for getting an order of a physical or mental exam?
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good cause that such is in controversy.
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what happens when someone doesn't cooperate with discovery?
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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.
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are you bound to answers given during discovery? case?
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no. Freed v Erie railway. train was in the yard, no lookout necessary. NOT bound.
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are pretrial conferences mandatory? rule?
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no 16.
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what is decided in a pretrial conference?
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what is agreed on?
what is disputed? further amendments to pleading? further discovery? exchange of experts, etc. trial date |
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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. |
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can a plaintiff be precluded from introducing evidence not disclosed before the trial even if it would result in a directed verdict? case?
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yes. Shuber v Kresge
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identiseal case
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judges may not compel discovery although they may regulate it once it is initiated. rule 16 allows judges to require parties to consider discovery.
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what does a magistrate do?
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usually handles discovery issues and pretrial conferences, etc.
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what does a master do?
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a specified task--usually positive fact finding for the court.
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what's the difference between a motion for judgment on the pleadings and a motion for summary judgment?
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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) |
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what happens if the court grants a motion for judgment on the pleadings
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usually allows the party to amend the pleadings
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if there is a pretrial motion to terminate litigation that goes beyond the pleadings, what motion must it be?
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summary judgment.
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how are pretrial facts presented?
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affidavits, tetimony, etc.
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what is the purpose of a provisional remedy
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a temporary fix because trials are long and people can hide money or continue to hurt people.
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what is attachment?
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a provisional remedy that seizes and holds property pending the outcome of a suit
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what is a preliminary injunction?
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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)
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how do you decide if a preliminary injunction should be applied?
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if the plaintiff is very likely going to win, there is little harm in allowing a remedy now.
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what are he appelate standards of review for:
facts? legal conclusions provisional remedies? |
facts: clearly erroneous standard
LC: de novo Provisional remedies: abuse of discretion |
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where does the right of trial by jury come from?
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7th amendment
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what is the aim of suits "at law"?
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money
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what is the aim of suits "in equity"?
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performance
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is there a state guarentee of trial by jury?
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no. it's in the federal constitution. although it is in many state constitutions as well.
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right to a trial by jury is based on a what?
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timely demand in writing filed as any other pleading
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what is a timely demand for a trial by jury?
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fed: 10 days
state: when the case is set for trial. |
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Colgrove v Battin
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case: Montana had a rule of 6 person jury in civil cases
Rule: 6 is okay with the constitution |
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what is the modern jury size trend?
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6
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in federal courts, what does the vote have to be in a jury?
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unanimous unless otherwise agreed and stipulated
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what is voir dire?
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questioning jurors whose names have been drawn
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who usually conducts voir dire?
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the judge.
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what are the two kinds of jury challenges?
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1: for cause (bias, etc.)
2: peremptory (just cuz--you get 3 of these in fed court) |
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what is the burden of persuasion in civil actions?
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to CONVINCE the trier of fact to a PREPONDERANCE of the evidence.
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what is the burden of going forward?
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the burden of proof.
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when the burden of going forward (proof) has been satisfied, what happens?
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the burden shifts to the other side. he must prove that what was proven is not the case.
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when is a directed verdict proper?
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when either party has not met their burden of proof (going forward)
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what is judicial notice?
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when a court can readily ascertain the truth of certain facts
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what is the difference between competency and weight of witness testimony?
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competency is a matter of law. weight is a matter of fact for the jurors
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what is the federal position on competency
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fed tends to abolish competency requirements but when the case turns on state law, it is determined by that state law.
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what are the only 3 real competency requirements anymore?
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ability to communicate
obligation of truthfulness personal knowledge |
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what is a witness "privilege"?
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a rule of law which excuses a witness from giving testimony which she could otherwise be compelled to give.
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what are the 4 privileges at common law (recognized in federal courts)
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spose
attorney official self |
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what is hearsay
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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).
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what two reasons for a hearsay exclusion?
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lack of cross-x
lack of trustworthiness |
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what happens to a hearsay objection if not timely made?
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waived
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what are the admissible hearsays?
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1. dying declaration
2. against interest 3. admissions 4. excited utterance 5. business records |
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Handel v NY rapid transit
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elevated train dragged and dropped him--no time to fabricate (although court said he did have time.)
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what kinds of relevant evidence can the judge choose to exclude because they are prejudicial or confusing?
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liability insurance in negligence suits
proof of subsequent repairs settlement offers |
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what are grounds 4 for witness impeachment?
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ussually a liar
bias ignorant inconsistent |
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are leading questions permitted in cross-x
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yes.
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what is a motion for a directed verdict?
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either party, at the close of opposing evidence, without waiving his right to rebut, may move for a directed verdict.
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what kinds of verdicts are there?
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general
special general with special interrogatories |
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what are the conditions for a JNOV?
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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.) |
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what is the judicial SOR for a JNOV motion?
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like directed verdict, must infer best possible case from winners and still think the jury is crazy.
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replevin
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recover property wrongfully taken
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detinue
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recover property wrongfully held
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ejectment
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recover possesion of real property.
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what happens to costs?
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usually awarded to winners except not attorney's fees.
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can courts give declaratory judgments based on actual controversies conditional on future acts?
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yes. American machine. (fans)
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can courts give declaratory judgments on hypothetical constructions of a statute?
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no. international longshoremen's.
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with regard to the wording of the law, what does the plaintiff have to prove?
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the "if" clauses
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with regard to the wording of the law, what does the defendant have to prove?
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the "unless" clauses
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when is it to late to make a motion that can be made "at the trial"?
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when the judge gives a ruling.
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what rule prescribes time limits for a 12b6
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12h2
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what is a frivilous claim?
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one designed primarily to harrass or maliciously injure.
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how does the compulsory counterclaim rule work in the plaintiffs favor?
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if he knows she has a strong counterclaim, he sues first and gets to choose the venue.
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why do we have a compulsory counterclaim rule?
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to avoid having to bring in the same witnesses to hear the same testimony twice.
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what does a "responsive pleading" include? what does it not include?
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a responsive pleading is an answer, not a motion.
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is there any time limit on an amending a pleading?
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not absolutely. you can amend once as a matter of course before an answer, but after that it is up to the court.
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how does a court determine whether to allow a late amendment to pleadings? (what does it weigh?)
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it weighs fault with prejudice.
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what kinds of things are expected in disclosure (26a)
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insurance
experts witnesses |
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what was the judge saying to the deposing lawyer in the Umphres (conspiracy) case?
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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. |
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Brandenburg v Israeli airlines
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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.
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whats the difference between Umphres and Brandenburg?
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whats the conspiracy (law)
what happened to you (facts) |
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how must requests for admission be phrased?
Are they binding? |
yes/no questions.
Yes, they are binding. |
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determining desirability is a function of what test?
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cost / benefit analysis.
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lawyers have an ethical duty of truth but not of...
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candor--you don't have to answer anything that was not asked. but rule 26e is a rule based imposition of candor.
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if you are asked a question in interrogatory, what must you provide?
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an answer, and the information you have about your answer. (did he come to a full stop?)
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Shuber v Kresge
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husband, electrician, can't suprise testify because it wasn't in the pretrial arrangements.
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what do you have to show to get an injunction? (index number)
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prejudice and probability of winning (high/low or low/high or high/high)
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Kothe v Smith
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judge can't coerce a settlement with sanctions
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what's posners economic analysis of settlement say?
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people are less likely to settle the bigger the requested judgment is and the more optomistic they are.
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whats the difference between the judgments of juries and judges?
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damage awards
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whats the difference between a judgment on partial findings and a JNOV?
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no jury / jury.
its way harder to overturn a jury. |
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what's the modern approach to competency?
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let 'em testify. let the jury decide.
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which is harder, a directed verdict or a JNOV and why?
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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
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what is collusion?
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a one-sided battle to establish a judicial precedent
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