Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
76 Cards in this Set
- Front
- Back
- 3rd side (hint)
|
What are the three values for the courts?
FRCP 1 |
1) Just
2) Speedy 3) Inexpensive |
|
|
|
What are the 3 systems of procedure?
|
-Common law (fixed writs)
-Code system (plead only the facts) -Notice pleading (provide notice being sued) |
|
|
|
What are the 5 writs of Common law system of procedure?
|
1) certiorari
2) mandamus 3) habeas corpus 4) quo warranto 5) prohibition |
|
|
|
How many courts are there in the United States?
|
94 District Courts
13 Circuits United States Supreme Court |
|
|
|
What are the pleadings?
(CARATT) FRCP 7(a) |
-Complaint
-Answer -Reply to counterclaim -Answer to crossclaim -Third party complaint -Third party answer |
|
|
|
What the requirements of a complaint?
(JCPenney) |
-Jurisdiction
-Claim (facts of case and law to be applied) -Prayer for specific relief |
|
|
|
What are the 2 areas of subject matter jurisdiction for federal courts?
|
federal question
diversity of citizenship |
|
|
|
What must exist for jurisdiction based on diversity of citizenship?
|
-complete diversity of the parties
-a claim GREATER than $75,000 |
|
|
|
How can domicile be determined for individuals? corporations?
|
Individuals:
physical presence intent to remain Corporation: primary place of business place where incorporated |
|
|
|
How is a civil action commenced?
FRCP 3 |
filing a complaint with the court
|
|
|
|
What is a motion? How is this properly submitted to the court?
FRCP 7(b) |
application to the court for an order
made in writing of order sought with particularity of grounds for granting |
|
|
|
What are the 5 forms of denials?
FRCP 8(a) |
-Everything denied
-Specific denial -Qualified denial (affirm in part, deny in part) -Without knowledge or information sufficient to form belief -denial based on information or Belief |
SQEWB
|
|
|
What pleadings for the defendant are set forth in FRCP 8(c)?
|
Affirmative Defenses:
accord and satisfaction, contributory negligence, estoppel, assumption of risk, statute of limitations, statute of frauds, etc. |
|
|
|
What is the effect of a failure to deny averments in a pleading?
|
If response required:
Averments are admitted If response not required: Averments are denied |
|
|
|
What is the rule regarding alternative averments?
FRCP 8(e) |
Party may state as many claims or defenses as the party has.
Party may set forth 2 or more statements of claim or defense. |
|
|
|
What are the 7 types of pleadings a defendant may make?
|
1) Response to court or method
2) failure to state claim 3) denials 4) affirmative defenses 5) motion for more definite statement 6) counter-claim 7) motion to strike |
|
|
|
What are the duties the attorney certifies to the court regarding motions and pleadings in FRCP 11(b)?
(I Warrant Evidence) |
-not presented for improper purpose
-legal contentions warranted by existing law or nonfrivolous argument for extension, modification, reversal of existing law -factual contentions have or likely to have evidentiary support -denials are warranted on evidence or lack of information or belief |
|
|
|
What defenses may be made by motion before pleading?
FRCP 12(b) |
1)lack of subject matter jurisdiction
2)lack or personal jurisdiction 3)improper venue 4)insufficiency of process 5)insufficiency of service 6)failure to state a claim 7)failure to join party |
Lacks
Insufficiences Failures |
|
|
When can a motion for judgment on the pleadings be made?
FRCP 12(c) |
after the pleadings are closed, but before trial
|
|
|
|
What is a motion to strike?
FRCP 12(f) |
motion by party before responding to court to strike any insufficient defense or redundant, immaterial, impertinent, or scandalous matter
|
|
|
|
Which defenses may be made by motion at any time?
What happens if these defenses are omitted from a motion for defenses? FRCP 12(g) and 12(h) |
-failure to state a claim
-failure to join party -objection of failure to state legal defense -lack of subject matter jurisdiction They remain available. |
|
|
|
Distinguish a COUNTERclaim and a CROSSclaim.
FRCP 13(g) |
Counterclaim - any claim against opposing party arising out of same transaction or occurrence as opposing claim.
crossclaim - claim against co-party arising from same transaction or occurrence of original action or of a counterclaim |
|
|
|
Distinguish a COMPULSORY and a PERMISSIVE counterclaim.
FRCP 13(a) and 13(b) |
Compulsory - if not pleaded, it is waived; arises out of same transaction or occurrence as opposing party claim
Permissive - if not pleaded, remains available; arises out of different transaction or occurrence as opposing party claim |
|
|
|
How many times is a party permitted to amend a pleading?
FRCP 15(a) |
Once or by leave of court as justice requires
|
|
|
|
What is the doctrine of implied consent?
FRCP 15(b) |
if an issue is not raised in pleadings, but tried by express or implied consent of parties, the issues are treated as if they were raised
|
|
|
|
What are the functions of PreTrial Conferences?
FRCP 16(a) |
-judge learns of the case
-facilitating settlement -shaping issues -testing if the claim is trial worthy |
Learning
Facilitating Shaping Testing |
|
|
What are the 6 methods of discovery?
(DIPPER) FRCP 26(a) |
-Depositions
-Interrogatories -Permission to enter -Production of Documents -Examination (Physical and/or mental) -Request for admission |
|
|
|
What are the purposes for the discovery devices?
(PIESS) |
-Preservation of testimony
-Issue formation -Evidence -Strategy formulation -Surprises to be avoided at all costs |
|
|
|
What are the required disclosures?
(IEP) |
-Initial disclosures
-Expert Testimony -Pre-Trial disclosures |
|
|
|
What are the INITIAL disclosures?
(WDDI) |
-Witnesses
-Documents -Damages -Insurance |
|
|
|
What are the PRE-TRIAL disclosures?
(WDD) FRCP 26(a)(1) |
-Witnesses
-Designation -Documents |
|
|
|
What types of EXPERTS are recognized by the Federal Rules?
(TCIV) FRCP 26(b)(4) |
-Testifying
-Consulted -Informally consulted -Viewer participant |
|
|
|
What action may an attorney take if discovery breaks down?
|
motion to judge for order to compel
|
|
|
|
What devices terminate an action BEFORE trial?
|
Failure to state a claim
Judgment on the pleadings Summary Judgment |
|
|
|
What devices terminate an action AFTER trial?
|
Directed verdict
Judgment n.o.v. |
|
|
|
What must be shown in a motion for summary judgment?
FRCP 56 |
there are no genuine issues of material fact and the moving party is entitled to a judgment
|
|
|
|
What are the 7 parts of a trial?
|
1) voir dire
2) opening statements 3) plaintiff case --defendant move for directed verdict-- 4) defendant case --plaintiff move for directed verdict-- 5) rebuttal and rejoinder --both parties directed verdict-- 6) summation 7) jury instructions |
|
|
|
What are the reasons FOR jury trials?
|
-law conforms to community standards for legitimacy
-act as break on gov't heavy-handedness -jurors reflect common sense over "idiocy of law" |
Community Breaks the Idiocy
|
|
|
What are reasons AGAINST jury trials?
|
-inconsistency of verdicts
-lack of experience and knowledge in complex and difficult cases -costly and time-consuming system |
|
|
|
What are the duties of the Judge?
|
instructs the jury
decides evidentiary questions manage trial |
|
|
|
What are the functions of the Jury?
|
apply law to the facts
assess credibility of witnesses examine evidence and draw all reasonable inferences |
|
|
|
What are the 5 levels of evidence?
|
1) scintilla
2) going forward 3) preponderance 4) clear and convincing 5) beyond a reasonable doubt |
|
|
|
What are the 2 burdens of proof?
|
burden of persuasion
burden of allegation |
|
|
|
What are the 2 elements that make up the burden of persuasion?
|
ultimate burden
burden of production |
|
|
|
What is a presumption?
|
a procedural device created by lawyers to control jury discretion by imposing inferences under certain circumstances
|
|
|
|
What is an irrebuttable presumption?
|
attack B only
if B is established, then must find P |
|
|
|
What is a rebuttable presumption?
|
attacks the Basic fact OR Presumed fact
|
|
|
|
What is the "bursting bubble" theory of presumptions?
|
if one side establishes a basic fact, the opposing side has the burden of production that the fact is untrue
if the presumption is rebutted, it "bursts" and there is no jury instruction |
|
|
|
What is the Morgan and Maguire theory of presumptions?
|
if the basic fact is believed, the jury is instructed and must find the presumed fact UNLESS the opposing party rebuts the fact by preponderance of the evidence
|
|
|
|
What functions do Special Verdicts and Interrogatories serve?
FRCP (49) |
invented by lawyers to correct the weaknesses of general verdict by
-hiding how the jury decided the verdict -hiding the evidence the decision was based on |
What are the lawyers hiding?
|
|
|
What are 3 risks of Special Verdicts and Interrogatories?
|
include or exclude material facts
distinguish law from the facts questions may be badly formulated, prejudicial, etc. |
|
|
|
What are 3 uses for Special Verdicts and Interrogatories?
|
highly complex legal cases
cases where strong emotion is involved cover the lawyer in appeals cases |
|
|
|
What are the 3 tests for Voluntary and Involuntary Dismissals?
FRCP 41(a) and 41(b) |
-set aside test
-favorable evidence test -evolving federal standard |
|
|
|
What is the set aside test?
|
the judge looks at all favorable and unfavorable evidence to the party with the burden of proof and determines that duty-bound to set aside the verdict because its against the weight of evidence
|
|
|
|
What is the favorable evidence test?
|
judge considers only evidence favorable to party with burden of proof, disregards unfavorable evidence, and determines that a reasonable jury could find every essential fact for that party and the judge may not grant judgment as matter of law
|
|
|
|
What is the evolving federal standard?
|
take all evidence favorable to the opponent and all UNQUESTIONABLY unfavorable evidence to the opponent
the task of the opponent is to make the unquestionably unfavorable evidence questionable |
|
|
|
What is a harmless error?
FRCP 61 |
any error not affecting the substantial rights of the parties and would therefore lead to substantial injustice
|
|
|
|
What are the 3 results of a General Verdict accompanied by answer to interrogatories?
FRCP 49(b)(1) and (2) and (3) |
1)general verdict and answers are harmonious -> judgment on verdict
2)answers consistent with each other but differ with general verdict -> may enter judgment on answers or send back to jury or order new trial 3)answers inconsistent with each other and general verdict -> return to jury for further consideration or new trial |
|
|
|
How many interrogatories are parties permitted to submit?
FRCP 33(a) |
No more than 25, including subparts
|
|
|
|
What Discovery device did HICKMAN distinguish?
|
Production of Documents
(work product) FRCP 34 |
|
|
|
ORDINARY WORK PRODUCT
|
documents and tangible things prepared for litigation/trial that party must show substantial need to discover
|
|
|
|
OPINION WORK PRODUCT
|
mental impressions, legal theories, opinions, conclusions that are IMMUNE from discovery and not eligible for qualification as matter of fact
FRCP 26(b) |
|
|
|
When are admissions binding?
|
Admissions obtained during discovery are only binding during PENDING action
|
|
|
|
Remittitur
|
"let it be reduced"
when the amount of damages was excessive and damages are decreased |
|
|
|
additur
|
"let it be added/increased"
when damages are insufficient and damages are increased to satisfy justice |
|
|
|
What can be appealed to an appellate court?
|
only final orders depending on timing, and ripeness of issues
|
|
|
|
What is the Rationale and Holding of ERIE?
|
R - Federal courts should apply state law to substantive matters in diversity cases
H - SWIFT failed to achieve unity in courts - SWIFT represented federal courts overreaching boundaries - exploitation of system through forum shopping - there is no federal general common law |
|
|
|
What is the Holding and Rationale of KLAXON?
|
H - choice of law should be decided by using laws of the state where the federal court sits
R - uniformity between state and federal courts |
|
|
|
What is the Holding and Rationale of GUARANTY TRUST?
|
H - outcome determination test
- apply state law if not applying it would lead to differing outcomes in federal and state courts R - which label will (substantive or procedural) will produce the same result in both judicial systems - movement to "function of law" or law for problem solving |
|
|
|
What is the Holding and Rationale for BYRD?
|
H - though a state law potentially produces a different outcome, apply federal law where there is a strong countervailing policy
R - outcome is not the only consideration - protection of constitutional rights plays a major role in federal policy |
|
|
|
What is the Holding and Rationale of HANNA?
|
H - if the situation is covered by a Federal Rule of Civil Procedure, apply the FRCP
R - outcome determination test should be read in light of ERIE purposes - equal administration of law - discourage forum-shopping |
|
|
|
What limits are placed on depositions?
|
limited to one day of 7 hours
if conducted in bad faith, or unreasonable manner, may be ceased and sanctioned |
|
|
|
Subpoena duces tecum
|
a request for non-parties to bring something with them to deposition
|
|
|
|
Describe significant aspects of depositions.
|
- anyone, both parties and non-parties
- may be written or oral - notice must be given |
|
|
|
Describe significant aspects of interrogatories.
|
- directed at parties
- may relate to any matter |
|
|
|
Describe significant aspects of production of documents.
|
- not limited to parties
- produce in the normal course of business |
|
