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70 Cards in this Set
- Front
- Back
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Pleadings
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the formal written allegations by the parties of their respective claims and defenses.
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Complaint
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the initial pleading filed by the plaintiff by which an action is commenced.
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A complaint must contain
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the name of the court, the number assigned to the case, the designation of the pleading, the names of the parties, statement of the grounds upon which the court's jurisdiction and venue is based, statement of the ultimate facts constituting the cause of action, a prayer for relief, signature of the party or his attorney.
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Demurrer
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A formal allegation that the facts stated in the pleadings, even if true, are legally insufficient.
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General Demurrer
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Failure to state facts sufficient to constitute a cause of action.
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Special Demurrer
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A demurrer on any other grounds.
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Answer
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the principle pleading of the defendant in response to the plaintiff's complaint. It must contain denial of the allegations the defendant disputes and any affirmative defenses.
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Cross-Complaint
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A separate pleading, not part of the answer. It may be filed against any party or a third person not yet a party to the action.
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Counterclaim
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A pleading used in federal court, it is part of the answer in which the defendant sets forth claims he has against the plaintiff even if they are unrelated to the claims in the complaint. The plaintiff must respond by filing a reply.
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Cross-Claim
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A pleading used in federal court, it is part of the answer in wihch the defendant sets forth claims he has against co-defendants. The co-defendants must respond by filing an aswer.
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Default
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If the defendant fails to file the appropriate responsive in the time allowed the plaintiff or cross-complainant may file a Request for Entry of Default and a Request for Entry of Default Judgement. In some instances, a prove-up hearing is required. It cuts of the opposing party's right to respond or file an answer.
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Entry of Default Judgement
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What the party can collect on
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Prove-up Hearing
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Brings the plaintiff in for a little testimony with a default
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Discovery
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The pre-trial devices by which one party gains facts or information about the case from the opposing party in order to assist the first party's trial preparation. The purpose of this is to avoid delay and surprise, and to narrow the issues.
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Deposition
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the examination of a witness under oath in the presence of a court reporter.
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Timely
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1.It has to be done in a timely manner.
2. The defendant gets a 20 day head start with the depos. 3. The deponent needs to have a 10 day notice. |
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Attendance Compulsory
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The witness is obligated to attend upon 10 days written notice. A non-party witness is subpoenaed. There are limits on the distance a deponent may be made to travel and a non-party deponent is entitled to mileage and witness fees.
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Use at Trial
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Can be used as an admission, to impeach a witness, or in lieu of testimony.
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Reasons for Diposing a witness
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1. Get a feel for the witness
2. Lock them into sworn testimony. 3. The witness may not be available to testify in court. |
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Interrogatories
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Questions in writing from one party to another requiring written responses. Can only be served on a party to the action. The party must respond within 30 days or 30 days plus 5 if mailed.
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Two types of interrogatories
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Form Interrogatories and Special Interrogatories
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Form Interrogatories
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Judicial counsel puts out a form of questions.
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Special Interrogatories
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The attorney has to write the questions himself. They are limited to 35 in any one set.
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Requests for Admissions
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The parties must acknowledge facts that are not in dispute.
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Requests for Inspection of Real Evidence
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The request for the production of documents. Each party has the right to inspect and copy all real evidence.
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Medical Examination
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When a party's physical or mental condition is in issue, you can request a medical examination. (Order the party to submit to a medical exam.)
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Scope of Discovery
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Anything that is reasonably calculated to lead to the discovery of the admissible evidence.
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Sanctions
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If a party fails to cooperate, the court can impose monetary sanctions. Sanctions are imposed against the non-prevailing party and granted to the prevailing party.
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Voluntary Dismissal
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Anytime before the start of the trial, the plaintiff can dismiss the trial without prejudice.
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Involuntary Dismissal
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1. Before the trial: For failure to comply with procedural orders. Dismissed by the judge.
2. At trial: This can be done at the close of the plaintiff's case if on the facts adn the law, the plaintiff has shown no right to relief. |
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Judgement on the Pleadings
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Just looking at the pleadings, they are insufficient to establish a valid claim or defense.
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Summary Judgement
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The purpose of a summary judgement is to look behind the pleadings to determine whether a trial is necessary.
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Pretrial Conference
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This is for the judge to determine how the case is going.
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CMC
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Case Management Conference
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MSC
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Mandatory Settlement Conference
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TRC
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Trial Readiness Conference
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Arbitration
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AKA-ADR (Alternative Dispute Resolution) Presenting your case to a neutral third party.
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Voluntary
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Can always submit your case voluntarily to arbitration. This can be binding (You must accept the award, if any, and that's it) or non-binding.
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Compulsory
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The court can order your arbitration. The amount has to fall between 25-50K. It must take place in a county with 18 or more judges.
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Trial de Novo (New Trial
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If after arbitration and the outcome is not to your liking and you do not take the award you can request a trial de novo. If you do not prevail in the arbitration and you request a trial de novo and do not prevail there, you pay the other side's court costs.
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Jury Trial
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According to the U.S. Constitution, you have the right to a jury trial if you have more than a $20 controversy. In California, there is no set amount.
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Jury Selection
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Venire: Pool from which prospective jurors are chose from. The pool is smaller in civil cases as opposed to criminal cases, whereby the pool is larger.
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Number of Jurors
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In California, you need 12 jurors for civil cases,
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Voir Dire
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The examination of prospective jurors for bias.
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Federal Courts
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The judge conducts the voir dire examination. The attorneys on both sides may submit a list of questions for the judge to ask.
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Two ways in which jurors can be dismissed during voir dire
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Challenge for cause and peremptory challenge
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Challenge for Cause
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The attorney needs to convince the judge that the prospective juror is not impartial. The limited number of challenges for each side.
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Peremptory Challenge
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The attorneys are limited to the number of prospective jurors that they can dismiss here. They do not have to state the reason for why they want the juror dismissed.
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Federal Courts
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3 per side
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California Courts
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6 per side
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Disqualification of Judge (Recuse)
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After getting notice of who is hearing the case, the attorneys have 15 days to excuse the judge. The attorney does not have to state the reason. If the 15 days have lapsed, a hearing is held outside the county to determine the cause.
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General Rule
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The party with the burden of proof speaks first and last. The plaintiff has the burden of proof.
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Stages of Jury Trial (CCP 607-)
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1. Plaintiff's opening statement
2. Defendant's opening statement. (may wait until the plaintiff has produced his evidence.) 3. Plaintiff's production of direct evidence. AKA Plaintiff's case in chief. Close to proof. 4. Defendant's opening statement if not given previously. 5. Defendant's production of direct evidence. AKA defendant's case in chief. Close of proof. 6. Plaintiff's rebuttal evidence. 7. Defendant's rebuttal evidence (Surrebuttal) 8. Plaintiff's opening argument. 9. Defendant's arguement. 10. Plaintiff's closing argument. 11. Jury instructions 12. Verdict 13. Judgement |
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Motion for a Directed Verdict
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Made by either the plaintiff or defendant at the opposing sides close to proof. The standard is that there is no substantial evidence to support a finding in a party's favor.
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Nonsuit
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Made only by the defendant either after opening statement or after the close of proof on the plaintiff's side.
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Motion for Involuntary Dismissal
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In a non-jury trial made by the defendat at the plaintiff's close of proof.
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Jury Arguements
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The judge can put some control of the duration and the manner of the arguement. Counsel is not to distort the facts. Counsel needs to stay within the limits of the law. Counsel may not appeal to the passions or prejudices of the jury.
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Verdicts
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General-Used for simple, factual cases.
Special-requires the jury to decide specific factual issues. |
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Motion for Judgement Notwithstanding the Verdict ( J.N.O.V Latin Judgement Non Obstante Veredicto)
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Basically, counsel is asking the judge to throw the verdict out. Standard-No substanstial evidence. In California, either party or the judge can make the motion.
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Motion for a New Trial
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Based on the verdict, counsel can ask for a new trial. There are certain grounds for this to be granted: Jury misconduct and unfair surprise
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Motion to Vacate or Amend Judgement
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This is for the purpose of correcting legal errors.
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Motion for Relief from Judgement
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Where there is a default judgement (No trial) this motion can be made for mistake, inadvertence, surprise, or excusable neglect.
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California
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Post a bond double the amount of the judgement if you don't want the judgement enforced pending the appeal.
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Scope of the Appellate Review
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Generally looks at errors of laws, not facts. The judgement can only be overturned if the error was prejudicial or egregious. (Shocking to the conscience)
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California Supreme Court
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One Chief Justice and Six Associate Justices
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Courts of Appeal
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Six Districts
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Trial Courts
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Also called Superior Courts. 58 trial courts. One for each county.
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General or Unlimited Civil Cases
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over $25,000
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Limited Civil Cases
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$25,000 or less
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Small Claims
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$7,500 or less
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