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76 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
What are the three values for the courts?

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?

FRCP 7(a)
-Reply to counterclaim
-Answer to crossclaim
-Third party complaint
-Third party answer
What the requirements of a complaint?
-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?
physical presence
intent to remain

primary place of business
place where incorporated
How is a civil action commenced?

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
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
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
What are the 6 methods of discovery?

FRCP 26(a)
-Permission to enter
-Production of Documents
-Examination (Physical and/or mental)
-Request for admission
What are the purposes for the discovery devices?

-Preservation of testimony
-Issue formation
-Strategy formulation
-Surprises to be avoided at all costs
What are the required disclosures?

-Initial disclosures
-Expert Testimony
-Pre-Trial disclosures
What are the INITIAL disclosures?

What are the PRE-TRIAL disclosures?


FRCP 26(a)(1)
What types of EXPERTS are recognized by the Federal Rules?


FRCP 26(b)(4)
-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?

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?

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)

documents and tangible things prepared for litigation/trial that party must show substantial need to discover
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
"let it be reduced"

when the amount of damages was excessive and damages are decreased
"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