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105 Cards in this Set
- Front
- Back
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For a practicing lawyer, K of the rules is less important than
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1. the trained capacity for clear & critical reading & listening
2. the trained cap for clear & controlled speaking & writing 3. the trained cap to recognize, assess, make & respond to arguments |
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The lawyer who assumes that there is 1 right ans to a legal ? is
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Naive, misguided, & all too often a loser-though she may be a a perfectly fine person
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The laweyr who thinks the fact that there is not one right answer to questions of law means that anything goes is
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Naive, misguided, & all too often a loser-though she may be a a perfectly fine person
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In order to understand & use the law of CP a lawyer must distinguish b/w
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1. Those areas of the law in which cass merely apply & exemplify law that is stated elsewhere (in statutes/rules) &
2. thoe other areas of alw in which decided cases are in some important respect making hte law |
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3 areas of law in which decided cases are making hte law are
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1. PJ: Pennoyer, Intl-Shoe, & their progeny;
2. choice of law appliced when st action is tried in fed ct--Erie & its progeny & 3. Right to jury trial |
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A pleading is
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A complaint or an ans to a compliant- & is not a motion FRCP 7(a)
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A motion is
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An application for a ct order & it is not a pleading (FRCP 7b)
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An affidavit is
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A written statement that some person has formally sworn to be true
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A person who signs an affidavit is
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An affiant
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A bench trial is
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A non-jury trial in which the judge is the finder of fact
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To properly initiate a suit there must be what 5 things
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PJ, SMJ, venue, notice, service
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What is the svcs to which we refer in svc of process
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Svc refers to the formal delivery of a writ, summons, subopena or other legal process that has been issued by a ct
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What is the process to which we refer in svc of process
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Process is a summons or writ issued by a ct & usually ordering a person to appear/respond in ct
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The diff b/w dismissal w/prejudice & dismissal wo/prejudice is
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When a case is dismissed w/prejduice, the P is barred (res judicata) from refiling
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What is an exection (as in an execution of judgmenet)
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Execution is the judicial enforcement of a money judgmenet, usually through a sheriff's seizure & sale of the judgment debotrs prop
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What is a writ of execution
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A writ of execution is an order, isued by a ct in which a final judgmen has been rendered, directing a sheriff to enforce a money judgment
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Assignment is
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The act by which 1 person transfers to another all/part of some property, interest/right.
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PJ is
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The power of a particular ct in a particular pace over the person/prop of a particular D. To be clearly distinguished from SMJ
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In fed district ct, PJ localizes adjudication at the level of what geographical unit
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The st
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What law determines wheter a D is subj to PJ in a particular fed district ct
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1. The forum st's law of PJ (inc through FRCP 4(K)(1)(A) &
2. The 14th Amend as a limit upon th eforum st |
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In personum J was
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That form of PJ which was based on the presence of the D's person wi/the forum st
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In rem J was
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That form of PJ which was based on the ct's power over some prop which was wi/the forum st, properly attached & the subj of the dispute
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Quasi in rem J
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That form of PJ which was based on the ct's power over some prop which is wi/the st, attached, but not the subj of the dispute
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A jdugement based on quasi in rem J was lmtd
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To the value of the prop attached & it had no other res judicata effect
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A special appearance is
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An appearance by which a D may raise threshold defenses such as lack of PJ/lack of notice even though his presence in the ct might normally have cured/waived the asserted defect. Not reqd by the fed rules
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W is constructive notice
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Constructive notice is notice imputed to a person by presumption of law, often contrary to fact as in the case of notice by publication of a legal notice in the tiny print in the back of some local paper
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Vertical axis
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The nature, size, & # of the D's contacts w/the forum st
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Horizontal axis
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The degree of relatedness b/w a D's contacts w/the forum st & the cause of action that the P asserts against the D
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Venue is
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A set of rules localzing hte place of litigation that, in the fed sys, localizes adjudication at the level of the Judicial District 28 USC 1391
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If there is PJ can you be assured that there is some district in which there is venue
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Yes 28 USC 1391
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Distinction b/w General & lmtd J? Does the distinction reside in the law of PJ or SMJ
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In the law of SMJ, distinction b/w 1) those cts that have SMJ over all claims (excpt those excluded by statute & 2) those other cts that have SMJ only over those claims for which they are given explciit statutory authority (inc the fed district cts)
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SMJ
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Power eof a particular ct to adjudicate controversies of a particular type (fed ?s, diversity, marriages & small claims) To be clearly distinguished from PJ
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Cases over which fed district cts have SMJ may also be brought
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In st cts of General SMJ
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What does it mean to say that st & fed cts may have concurrent J
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St & fed cts have concurrent J when, as is often the case, both cts could exercise SMJ over the same claims
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Fed Dcts have original SMJ over
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1. fed ?s 2. diversity actions & 3. claims for which there is supplemental J
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Accd to the controlling statute, diversity J depends upon the st in which the parties are
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citizens 28 USC 1332(a)
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Citizenship
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= st in which Ds are domiciled
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Domicile =
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Residence + intent to remain indefinitely
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Fed SMJ what is the time at which diversity must exist
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The time of filing
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The rules governing discovery are
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26-37 & 45
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What is the most importnat method of pre=trial disc not covered
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Old fashioned investigation in which ?s are asked wo/relyin gon the coercive power of the cts
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Circumstances in which a lawyer may be barred from tt person w/info
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A lawyer is forbidden to communicate w/any person who the lawyer K tb rep by another lawyer in the matter at hand, unless the other person's lawyer has consented MRPC 4.2
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In matters related to disc how great is the power of the Dct judges
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Enormous b/c they are not final orders, disc rulings are almost never subj to app review. This is esp true prior to trial & after trial there is rarely any pt in appealing such rulings. As a result, almost all of the decisions are those of Dct judges & the law is highly un-unified. Further the rules give Dct judges wide discretion to strike bal. Rev is on a very lenient form of abuse of disc
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Material is gen discoverable if
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it is relevant to the clim/defense of any party & appears R. clac to lead ot the disc of admissible E. 26(b)(1)
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Under what circum is a party permitted to sec the disc of privileged materials
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Never 26(b)(1)
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Disc of trial-prep materials?
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Only on a showing of substantial need & undue hardship in obtaining equivalent materials 26(b)(3)
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What are req'd disclosures when are htey req'd & what is req'd
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26(a)(1) req'd disc are the discovery disclosures tha ta party must provide wo/request by another party at the outset of litigation. (Names of witnesses, descriptions of doc, computations of damages, & ins agreements)
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Is it grounds for obj that the info sought through disc is relevant to a legal theory that is diff from that asseterted in the pleading
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No The scope of the case is not confiend to teh theory of the pleadings nor is the scope of disc. 26(b)(1) disc permissible if it appears R. calculated to lead to teh disc of admissible E
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Is it grounds for obj that info sought through disc WNB admissible at trial
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No 26(b)(1) Relevant info need not be admissible at trial if the disc appears R. clac to lead to teh disc of admissible E. 26(b)(1)
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Mechanisims by which a party may secure written ans to written Q
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written interrogatories 33 from parties, not from NPs
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The mechanism by which a party may secure the sworn, pretrial testimony of antoehr person are
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The deposition 30 from parties & the subopena 45 from NPs
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Mechanism by which a party may secure disc against NPs
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Subopena 45
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Mechanism by which a party may secure the disc of docs
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Doc demand 34 from parties & the subopean duces tecum from Nps 45
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Cts may become involved in disc disputes through
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1. motons for protective orders (or to quash/modify a subopena) 2) motions to compel disc 26(c), 37, 45(c)
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Subopena is
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An order issued by the clerk of the ct & commanding a named person who may/may not be a party in a pending case, to appear at a dep, hearing/trial & provide sworn testimony & if specified to produce doc/other tangible things 45. A subopena WB issued on the request of a party to a pending case & req neither notice/nor action by the ct
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A subopena duces tecum is
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A subopena commanding a named person to appear at a sepcified time & place for the prupose of providing sworn testimony & to provide docs or other tangible things 45. A subopena that DN order docs/tangibles is a subopena ad testificandum
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What is the motion to quash, by whom miht it be brought, & what purpose might it serve
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Under 45(c) a person upon whom a subopena has been served may bring a motion to quash/modify the subopeana on grounds of privilege & undue burden. If a motion to quash is granted, the moving party si relieved of all obligations under teh subopena
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Assume disposing A B & C were present
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SN assume ABC were the only ones present. Was anyone else present for all/part of the meeting Wht was discussed was anything else discussed. What did you see, did you see anything else. What were your reasons did you have any other reasons
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Didn't you tell your lawyer that your relations were non-consensual
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Lawyer for D should obj on grounds of attorney-client privilege. Lawyer for P were your relations non-consensual
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Admitted b/4 depo non-consensual, lied at depo
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Attorney for D has duty to cure misrep. Consult w/client in private & tell to correct or leave the case. Return explain D has accidentally misrep & would like to fix the misrep
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Prior to depo assume that party's lawyer has
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Made it as hard as humanly possible for you to get the info you seek
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If you are dposing the other party & that party is @ to give away the store assume that her lawyer may
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Do anything in her power to keep her client from giving away the store
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If you served the other side w/a doc request & they turned up a smoking gun htat may be claled for assume
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The other side's lawyer will do everything they possibly can to keep the SG out of your hands
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If you find a SG & you have no other available legal/ethical means to keep it out of the other party's hands you should
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Consult w/your client & hand over the SG
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How many ?s ans by the law of joinder
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10 on pg 8 of handbk
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The urles of joinder ST say may & ST say must Do these words have a single/stable meaning
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No There are a variety of persons inc the ct to whom the mays/must are directed. May to the party vs must to the ct. Must always means must or something ex. claim must be joined or it will be subsequently barred & the relvant Something will vary
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STO & CQ or CNOF (common nucleus of operative facts) SAOF (some agggregate of opperative facts)
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Relatedness
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20(a) 1st sen All persons may join in 1 action as Ps if htey assert any right to relief in respect of or arising out of the saem transaction or series of transactions & occurrences & if any Q of law/fact common to all these persons will arise in the action. What joinder ? does this ans?
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What parties may P join as Ps
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20(a) 2nd sen. All persons may be joined in 1 action as Ds if they assert any claim in respect of or arising out of the same transaction or occurrence or series of T & O & a common question of law or fact will arise in the action. What joinder ? does this ans
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Who parties P may join as Ds
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18(a) A party asserting a claim to relief as an original claim, cc cross claim or 3P claim, may join either as independent or as alt cliams, as many claims as the party has against the oppoisng party. What joinder ?
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What claims may P join against a D P may join all such claims. It empowers anyone else who through the authority of some other rule aserts a claim
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13(a) A pleading shall state as a cc any claim which at the time of serving hte pleading, the pleader has against any opposing party, fi it arises out of the transaction or occurrence that is the subj matter of the opposing party's claim & DN req for its adj the presence of 3rd parties whom teh ct can't acquire J over. What joinder Q
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What claims must a D join (against a P) As to those claims it provides a partial ans to the Q What claims may a D join b) When the claim is related (STO + DN req) to the Ps claim. Assert it now or be barred frm asserting it later
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13(b) A pleading may st as a cc any claim against an opposing party not arising out of hte TO that is the subj matter of the oppsing partys claim. What JQ
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What claims may D join (against a P) Unrelated
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13(g) X claims against a co-party. A pleading may st as a cross cliam any claim by 1 party against a co-party that is arising out of the T/O tha tis the subj atter either of the original action or of a cc therin or relating ot any prop that is the subj matter of the orgiinal action JQ
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What claims may D join D asserts or may assert secondary/derivative liab
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Res judicata ST functions as a joinder rule b/c
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It may operate to bar claims that were not but SHB joined in a previous suit
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What parties may P join as Ps
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Any Ps who asserted related claims (STOSTO & CQ) in respect of or arising out of the same transaction occurrence or series of transactions/occurrences if there is any ? of law/fact common to all 20(a) 1st sen
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What parties may P join as Ds
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Any against whom related climas are asserted any person against whom are asserted claims that are STOSTO & CQ If there is asserted against them any r to relief jointly severally or int he alt in respect of or arising out fo the same transaction occurrence or series of transactoins or occurrences if there is any ? of law or fact common to all 20(a) 2nd sen
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20(a) 1st sen provides that all may join as Ps who are STOSTO & CQ if they assert any r to relief jointly, severally or in the alt in repsect of or arising out of the same transaction, occurrence or series of transactions or occurrences if there is any Q of law/fact common to all. Does this empower persons who the original P has not joined to join that suit as Ps
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No
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What is a counterclaim
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A claim tha ta D asserts against a P 13(a)&(b)
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To whom is a compulsory cc compulsory
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A compulsory cc is compulsory upon the D. It is denominated a compulsory cc in ruel 13(a) but the compulsion arises from the law of res judicata
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To whom is a permissive cc permissive
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13(b) permissive cc is permissive upon the D. Once properly sought it is mandatory puon the ct in the sense tha thte ct may not in its discretion decide not to grant it
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Under the law of joinder, are Ds permitted to join all or only some of the cliams they may have against hte Ps
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All Ds are permitted to join all of the claims they may have against hte Ps(all of their cc) Rule 13(a) req the joinder of all cc that are STO & permits what it req. 13(b) then permits the joinder of all cc that are not-STO. 13(a)&(b) permit the joinder of all cc whether STO or not-StO
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What is a cross claim
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A claim that 1 D asserts against another D 13(g)
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Impleader?
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A joinder mechanism that permits a D (as 3PP) to join a NP (as 3rd party D) who is or may be secondarily or derivately liable to the D 14
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Under what circum may a named D secure the joinder of aNP on the ground tha tthe NP is jointly liable
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Wo/more never. If the NP who may be jointly liable may also owe to teh D a right of contribution it may be impleaded under 14
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What is a 3rd party P
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A D who joins (impleads) a NP under 14
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What is a 3rd party D
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A NP who is joined (implead)under 14
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Ex of person whho may be secondarily/derivatively liable under 14 implead are
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1) D's liab ins co who if D is liable to P is or may be liable to D & 2) D's join tortfeasors if D has or may have a right to contribution & if D is liable to P is or may be liable to D
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Joint liab?
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Liab by which ea of several persons may be responsible for an entire obligation as when ea of several joint TF may be liable for the entire oblgiation arising from the tort. Under 14 compare the D's r to join a 3rd part who is jointly liable w/the Ds r to join a 3rd party who is jointly liable & there is a right of contribution)
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Right of contribution?
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A single joint TF is sued & found liable fo rthe entire amt fo the injruy caused to the P he may sue the other JTFs to make them pay a share of the comp he has pd to P
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Indemnification
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The ct by which a person who is subj to some loss (through a suit) is through pmt, wholey/partly reimburesed for the loss (through pmt under liab ins) It is releavnt to the law of joinder through 14 b/c it is a kind of 2ndary/derivative liab
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P has a nonfed div claim against a single D, the D has impleaded a 3rd party D & P seeks to assert a related claim against the 3PD. Under joinder (& setting aside SMJ) may P join
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Yes accd to 7th sen of 14(a)"P may assert any claim against a 3PD arising out of the same transaction/occurrence that is the subj matter of the Ps claim against hte EPP (may have prob w/complete div & supplemental jurisdiction)
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19 deals w/nec & indispensible parties.
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19 may empower the Ds by motion to secure a ct order compelling the P to join a necessary party or 2) to secure dismissal b/c of the absence ofan indispensable party
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Nec party?
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A party who is so closely connected to an action that if he is avaialb,e the D may bring a motino under 19 & secure a ct order compelling hte P to join the other party
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What is an indispensable party?
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A party who is so closely connected to an action that if he were available his joinder could be compelled under 19(a) but who CNB joined b/c of J or venue & in whose absence the ct may conclude the case be dismissed under 19(b)
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Ex of a person who may be subj to multiple/inconsistent obligations
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Ins co that has issued a life ins policy on which the named beneficiary is my husband where the current husband & husband at the time might sue
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Ex of a person in whose abscense complete relief cannot be granted
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NP where P sues D for SP of a K on the sale of land. D1 & NP are joint Os & transfer of title req NPs signature
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Class action?
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A joinder dvice by which one or more Ps are allowed to litigate a grp of claims on behalf of a grp of absent but similarly situated Ps
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Prerequestites for a class action
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23(a) NCTAR. Numerosity (class so numerous that individual joinder inpracticable) commonality (common ?s law/fact) typicality (claims or defesnes of teh rep typical of the class) & adquacy of representation (reps will fairly & adequately protect the class)
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Class certification?
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The ct order sought through a motino by the P who has filed a class action by which the Dct approves of teh suit as a class action 7 specifies the represented calss. It is only after class cert that absent members of the class may be bound res judicata by the outocme of the suit
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If there is NCTAR (numerosity, commonality, typicality, adequacy of representaton) what are 3 cirumstnaces in which class actions are available
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1. Separate actions risk practical impairment of interests of absent class members (insufficient fund) or class opponent ( incompatible standards of conduct)
2. party opposing class alleged to have based conduct on characteristic of class & inj appropriate (discrim) 3. Common ?s predomoinate & class action desireable (mass tort) |
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Once a class action has been certified it can only be dismissed
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w/approval of the ct
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Intervention
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Joinder mechanism that allows a NP on his own initiative to join an on-going action 24
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To whom is intervention of right mandatory
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24(a) intervention of right is mandatory upon teh ct in the sense that once it has been properly sought the ct can't refuse to grant it. 24(b) permissive itnervention ct may refuse to grant Both permissive on the parties who are the potential intervenors
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Stakeholder?
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Person who holds some prop (proceeds of an ins policy) that may be subj to multiple & inconsistent claims & who may t/f want to invoke the rules of impleader
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Interpleader?
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A joinder mechanism that allows a stakeholder to initiate a suit to which it joins those who assert or may assert rights to the prop 22, USC 1335
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