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129 Cards in this Set

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Kinds of jurisdictions?
Personal, Subject Matter, in rem (a subcategory of personal jurisdiction)
What is personal jurisdiction?
A court's authority to bind a particular party to its judgment.
A plaintiff submits to that authority by bringing an action in the court; the defendant is subjected to it when she is served with the court's process under circumstances that require her to defend the action.
What is in rem jurisdiction?
It is a sub-category of personal jurisdiction, turned to only when personal jurisdiction is lacking.
The court has obtained actual or constructive custody of some property of the defendant.
What is subject matter jurisdiction?
It concerns the court's competence to entertain a given kind of case.
A court gets its SMJ from the constitution and laws of the sovereign it serves. If a court lacks SMJ its judgments are void.
What kind of authority do Federal Courts within the states have?
They are courts of limited jurisdiction. They can hear only cases authorized by statute by Congress.
What is the authority of the courts in New York state?
Both original and appellate are courts of limited jurisdiction.
With the exception of the New York Supreme Court (the state's sole court of "general" jurisdiction).
What does "General" jurisdiction imply?
All the jurisdiction that a court of original instance can have.
Used in contradistinction to "limited".
Which is the court of last resort on matters of NY law?
The Court of Appeals.
It has "limited" authority. The categories of cases it may hear are restricted. In a like way, the U.S. Supreme Court, may be said to have the most limited jurisdiction of all.
What is "specific jurisdiction"?
When jurisdiction of a nondomiciliary is predicated not on the defendant's regular presence in the state but on the claims arising out of some in-state event for which the defendant is responsible.
What does "general jurisdiction" describe?
The category in which the defendant has been found continuously "present" in the state and hence subject to jurisdiction on any claim, related or not to the state.
What are other pairings of subject matter jurisdiction?
Civil and Criminal is one set; original and appellate is another.
Some courts can have a bit of each.
Describe NY Court System Geography?
NY is divided into four judicial departments, each of which is subdivided into judicial districts consisting of counties.
Which is the highest court in NY state?
The New York Court of Appeals.
It has jurisdiction in both criminal and civil matters, but appellate only.
Which issues does the NY Court of Appeals review?
Only questions of law, except in two instances in which it reviews the facts.
On facts: an appeal from a criminal judgment imposing the death penalty; the other from an appellate division decision reversing or modifying a judgment, finding new facts, and directing that a final judgment be entered on the new facts.
From where do most appeals to the NY Court of Appeals originate?
From the appellate division. In certain narrow instances, in addition to a death case, direct appeal from a lower court is allowed.
The Court of Appeals is the only court in the state permitted to render an advisory opinion.
What is the primary jurisdiction of the Appellate Division?
Primarily appellate. it hears appeals from the supreme court, county courts, family court, surrogates court, court of claims, and appellate terms of the supreme court.
Formal name is: the appelllate division of the supreme court. There is one in each of the four judicial departments.
What is Civil Procedure?
The judicial system is essentially divided into two types of cases: civil and criminal. Thus, a study of Civil Procedure is basically a study of the procedures that apply in cases that are not criminal.
Civil trials can be used by anyone to enforce, redress, or protect their legal rights through court orders and monetary awards.
What is major tool of NY civil practice?
The CPLR. It became effective on September 1, 1963.
It governs in all courts of civil jurisdiction except to the extent that an inconsistent statute applies.
Do state and federal courts maintain separate procedures?
Yes. On the federal level, the Federal Rules of Civil Procedure govern the process of civil litigation at the level of the U.S. district court, which is a trial court. Procedural rules in state courts are similar to the federal rules. Indeed, many states base their procedural rules on the federal rules.
The Federal Rules of Civil Procedure are now contained in title 28 of the U.S. Code.
What are court rules?
Court rules govern procedures for the conduct of business in the courts. They encompass such matters as time limitations, pleadings allowed, and grounds for appeal. Each jurisdiction has its own procedure for how court rules are promulgated, which is generally some combination of legislative and court action.
In general, both federal and state courts are governed by statutory law which establishes the powers and jurisdiction of the courts and some procedural matters. In addition, courts are usually authorized by these statutes to adopt rules which further define procedures and processes of the courts.
What is the "teminology" of court rules?
Court rules may be referred to as "rules of procedure" or "rules of court". The term often encompasses both the statutory codes of procedure as well as the rules adopted by the courts. There are rules that apply generally to all types of courts, specific rules for each type of court and local rules or internal operating procedures for a particular court location.
In many jurisdictions the courts issue proposed rules that become effective subject to timely repeal by the legislature. Rules that are validly adopted have the same legal effect as statutory law.
What is the Federal Court Structure?
The Supreme Court is the highest court in the federal Judiciary. Congress has established two levels of federal courts under the Supreme Court: the trial courts and the appellate courts.
The Constitution gives Congress the power to create federal courts other than the Supreme Court and to determine their jurisdiction. It is Congress, not the judiciary, that controls the type of cases that may be addressed in the federal courts.

http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/FederalCourtsStructure.aspx
What is the role of the Federal District (Trial) Courts?
The United States district courts are the trial courts of the federal court system. Within limits set by Congress and the Constitution, the district courts have jurisdiction to hear nearly all categories of federal cases, including both civil and criminal matters. There are 94 federal judicial districts, including at least one district in each state, the District of Columbia and Puerto Rico.
http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/FederalCourtsStructure.aspx
Composition of the Appellate Court (Federal)?
The 94 judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies.
In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims.
What is the role of the Supreme Court of the United States?
The Supreme Court is the highest court in the federal Judiciary. Congress has established two levels of federal courts under the Supreme Court: the trial courts and the appellate courts.
The United States Supreme Court consists of the Chief Justice of the United States and eight associate justices. At its discretion, and within certain guidelines established by Congress, the Supreme Court each year hears a limited number of the cases it is asked to decide. Those cases may begin in the federal or state courts, and they usually involve important questions about the Constitution or federal law.

What is the composition of NY trial courts?
The trial courts of superior jurisdiction are the Supreme Courts, the Court of Claims, the Family Courts, the Surrogate’s Courts and, outside New York City, the County Courts. In New York City, the Supreme Court exercises both civil and criminal jurisdiction. Outside New York City, Supreme Court exercises civil jurisdiction, while County Court generally handles criminal matters.
The trial courts of limited jurisdiction in New York City are the NYC Civil Court and the NYC Criminal Court. Outside New York City, the trial courts of limited jurisdiction are the City Courts, which have criminal jurisdiction over misdemeanors and lesser offenses, and civil jurisdiction over claims of up to $15,000. There are District Courts in Nassau County and parts of Suffolk County. District Courts have criminal jurisdiction over misdemeanors and lesser offenses, and civil jurisdiction over claims of up to $15,000.
Purpose of the Civil Court of the City of New York?
It has jurisdiction over civil cases involving amounts up to $25,000 and other civil matters referred to it by the Supreme Court. It includes a small claims part for informal dispositions of matters not exceeding $5,000 and a housing part for landlord-tenant matters and housing code violations.
http://www.nycourts.gov/courts/nyc/index.shtml
Purpose of NY City Family Court?
hears matters involving children and families. Its jurisdiction includes: custody and visitation, support, family offense (domestic violence), persons in need of supervision, delinquency, child protective proceedings (abuse and neglect),foster care approval and review, termination of parental rights, adoption and guardianship.
http://www.nycourts.gov/courts/nyc/index.shtml
Purpose of New York Supreme Court?
Is the trial court of unlimited original jurisdiction, but it generally only hears cases that are outside the jurisdiction of other trial courts of more limited jurisdiction. It exercises civil jurisdiction and jurisdiction over felony charges.
Purpose of New York Criminal Court?
It has jurisdiction over misdemeanors and violations. Judges of the Criminal Court also act as arraigning magistrates and conduct preliminary hearings in felony cases.
Purpose of NY Appellate Courts?
The Appellate Courts hear and determine appeals from the decisions of the Trial Courts. The Appellate Courts are the Court of Appeals (the highest Court in the State), the Appellate Divisions of the Supreme Court, the Appellate Terms of the Supreme Court, and the County Courts acting as Appellate Courts in the Third and Fourth Judicial Departments.
Purpose of NY Appellate Division?
There are four Appellate Divisions of the Supreme Court, one in each of the State's four Judicial Departments. These Courts resolve appeals from judgments or orders of the superior courts of original jurisdiction in civil and criminal cases, and review civil appeals taken from the Appellate Terms and the County Courts acting as appellate courts.
http://www.nycourts.gov/courts/appellatedivisions.shtml
Purpose of NY Court of Appeals?
The Court of Appeals, New York State's highest court, is composed of a Chief Judge and six Associate Judges, each appointed to a 14-year term. New York's highest appellate court was established to articulate statewide principles of law in the context of deciding particular lawsuits. The Court thus generally focuses on broad issues of law as distinguished from individual factual disputes. There is no jurisdictional limitation based upon the amount of money at stake in a case or the status or rank of the parties.
http://www.nycourts.gov/ctapps/
Purpose of NY Appellate Terms?
Appellate Terms of the Supreme Court have been established in the First and Second Departments to hear appeals from civil and criminal cases originating in the Civil and Criminal Courts of the City of New York. In the Second Department, the Appellate Terms also have jurisdiction over appeals from civil and criminal cases originating in District, City, Town and Village Courts.
Why sue/why were you sued?
it's worthwhile to bring a lawsuit to court: •Do I have a good case?
•Am I comfortable with the idea of a compromise settlement or going to mediation?
•Assuming a lawsuit is my best or only option, can I collect if I win?

If the answer to any of these questions is no, you probably won't want to sue.
http://www.nolo.com/legal-encyclopedia/when-should-you-sue-29900.html
Where to bring an action (or where should it have been brought?)
The issues you must consider are:
•
Which county or city court within a state is the proper place for your case? Lawyers call this determining "venue."

Does the state have a specialized court to hear your type of case? Most states divide up their trial courts' business according to a case's subject matter and the amount of money involved;
http://www.nolo.com/legal-encyclopedia/state-courts-venue-rules-govern-29656.html
How to determine proper venue?
the correct judicial district can normally be the district in which:
•
the defendant resides or does business

•
a contract was signed

•
a contract was to be carried out

•
an auto accident took place, or

•
other events leading up to the lawsuit took place.
http://www.nolo.com/legal-encyclopedia/state-courts-venue-rules-govern-29656.html
How to determine subject matter jurisdiction?
To make a legally valid decision, a court must have both subject matter jurisdiction (power to hear the kind of case a lawsuit involves) and personal jurisdiction (power over the parties involved in the lawsuit).
http://www.nolo.com/legal-encyclopedia/subject-matter-jurisdiction-state-federal-29884.html
Consequences of filing in the wrong court?
A defendant may get the case moved to another court (perhaps to a court that's less convenient or favorable to you than if you had chosen the proper court), or even get the case dismissed altogether.
dismissal for lack of jurisdiction may be only an inconvenience if you have time to refile the lawsuit in the proper court, but if the time limit to file your case (the statute of limitations) runs out before you can do this, your court-picking mistake may mean that the defendant can have your lawsuit thrown out permanently.
When does Federal Jurisdiction exist?
Cases that arise under a federal law (called "federal question" cases). Federal district courts have subject matter jurisdiction if your case is based on (arises under) any federal law.
http://www.nolo.com/legal-encyclopedia/subject-matter-jurisdiction-state-federal-29884.html
When does Diversity of Citizenship exist?
Federal district courts also have subject matter jurisdiction if you are suing a citizen of a different state (or a foreign national), and you are asking for at least $75,000 in money damages.
If a federal court has jurisdiction based on diversity of citizenship, the subject matter of the case doesn't matter.
http://www.nolo.com/legal-encyclopedia/subject-matter-jurisdiction-state-federal-29884.html
When does "complete diversity exist" for federal intervention?
Federal courts have diversity jurisdiction only if there is "complete diversity" between plaintiffs and defendants. For diversity jurisdiction purposes, individuals are generally citizens of the state in which they maintain a principal residence, and they can be a citizen of only one state at a time. A corporation can be a citizen of two states, however: the state in which it is incorporated and the state in which it maintains its principal place of business.
http://www.nolo.com/legal-encyclopedia/subject-matter-jurisdiction-state-federal-29884.html
Define "In Personam" jurisdiction?
Latin for "against a person." In a lawsuit against a specific person, this concept means the defendant must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment the court applies to that person only. Compare: in rem
http://www.nolo.com/dictionary/in-personam-term.html
Define "In rem" jurisdiction?
Latin for "against or about a thing," referring to a lawsuit or other legal action directed toward property, rather than toward a particular person. Thus, if title to property is the issue, the action is "in rem." The term is important since the location of the property determines which court has jurisdiction, and enforcement of a judgment must be upon the property and does not follow a person.
http://www.nolo.com/dictionary/in-rem-term.html
Define "Long-Arm" (Statute) jurisdiction?
A law that gives a court jurisdiction over a nonresident company or individual who has had sufficient contacts with the jurisdiction to warrant being subject to its laws.
http://www.nolo.com/dictionary/long-arm-statute-term.html
What is "Venue"?
The appropriate location(s), according to law and court rules, for a trial. In a criminal case, the proper venue is generally the judicial district or county where the crime was committed. In civil cases, venue is generally proper in the county or district where important events related to the case took place, such as the signing or performance of a contract or the accident or other incident that led to a personal injury case. Typically, the plaintiff in a civil case may also sue in the district or county where the defendant lives or does business.
http://www.nolo.com/dictionary/venue-term.html
What is "Forum Non Conveniens"?
Latin for an inconvenient court. The idea that a court may change the venue of a lawsuit if that is more convenient for the parties. However, because strict written rules of jurisdiction and venue are used to decide where a case can and cannot be properly filed, this term has largely lost any real meaning. Also called forum inconveniens.
http://www.nolo.com/dictionary/forum-non-conveniens-term.html
How do you bring / defend an action?
A civil action is commenced with the filing of a complaint. The plaintiff must file the complaint with the court and must give a summons to the court and a copy of the complaint to the defendant. The complaint must set forth the claims and the legal bases for them.
http://legal-dictionary.thefreedictionary.com/Civil+Procedure
Where to file a complaint?
As a general rule, cases are filed in state, not federal, courts. The question of whether a particular court has authority over a certain matter and certain parties is one of jurisdiction. Federal courts generally have jurisdiction over civil actions in three situations. The most common is when the parties to the suit live in different states and the amount of money in controversy exceeds $50,000. The second instance is when a claim is specifically authorized by federal statute. The third is when a claim is made by or against the federal government or its agents.
http://legal-dictionary.thefreedictionary.com/Civil+Procedure
What is a summons?
A form prepared by the plaintiff and issued by a court that informs the defendant that he or she has been sued. The summons requires that the defendant file a response with the court -- or in many small claims courts, simply appear in person on an appointed day -- within a given time period or risk losing the case under the terms of a default judgment.
http://www.nolo.com/dictionary/summons-term.html
What is a complaint?
Papers filed in court by an injured party to begin a lawsuit by setting out facts and legal claims (usually called causes of action). The person filing the complaint is called the plaintiff and the other party is called the defendant. In some states and in some types of legal actions, such as divorce, complaints are called petitions and the person filing is called the petitioner. The plaintiff's complaint must be served on the defendant, who then has the opportunity to respond by filing an answer. A complaint filing must be accompanied by a filing fee payable to the court clerk, unless the party asks a judge to waive the fee based on inability to pay.
http://www.nolo.com/dictionary/complaint-term.html
What is a notice?
Information that one person gives to another, alerting the other party of the first party's intentions. Notice of a lawsuit or petition for a court order begins with personal service on the defendants (delivery of notice to the person) of the complaint or petition, together with a summons or order to appear (or file an answer) in court. In a noncourt setting, notice can simply be a written statement of intentions, as when a landlord terminates a tenancy by serving a termination notice on the tenant.
http://www.nolo.com/dictionary/notice-term.html
What is a verification?
A formal declaration under oath or upon penalty of perjury that a document or pleading is true.
http://www.nolo.com/dictionary/verification-term.html
Define "Affirmative Defense"?
When a defendant in a civil lawsuit files a response, usually called an "answer," the answer will state the defendant's denials of the claims made. In addition, the defendant may state affirmative defenses that excuse or justify the behavior on which the lawsuit is based. For example, an affirmative defense of "unclean hands" argues that the person bringing the lawsuit has acted badly in a way that should preclude any finding against the defendant.
http://www.nolo.com/dictionary/affirmative-defense-term.html
Define "Counterclaim"?
A defendant's court papers that seek to reverse the thrust of the lawsuit by claiming that, despite the plaintiff having brought the lawsuit in the first place, the plaintiff is actually wholly or partly at fault concerning the same set of circumstances. The counterclaim goes on to allege that the plaintiff thus owes the defendant money damages or other relief. A counterclaim is commonly but not always based on the same events that form the basis of the plaintiff's complaint. For example, a defendant in an auto accident lawsuit might file a counterclaim alleging that it was really the plaintiff who caused the accident -- or could claim that, as long as they're in court, the plaintiff should pay for having chopped down the defendant's tree the previous week.
http://www.nolo.com/dictionary/counterclaim-term.html
Define "Cross-Complaint?
Sometimes called a cross-claim, legal paperwork that a defendant files to initiate his or her own lawsuit against the original plaintiff, a codefendant, or someone who is not yet a party to the lawsuit. A cross-complaint must concern the same events that gave rise to the original lawsuit. For example, a defendant accused of causing an injury when she failed to stop at a red light might cross-complain against the mechanic who recently repaired her car, claiming that his negligence resulted in the brakes failing and that, therefore, the accident was his fault. In some states where the defendant wishes to make a legal claim against the original plaintiff and no third party is claimed to be involved, a counterclaim, not a cross-complaint, should be used.
http://www.nolo.com/dictionary/cross-complaint-term.html
Define "Impleader"?
A procedure in which one party brings a third party into a lawsuit. Usually a defendant initiates the proceeding to show that the third party is liable to the plaintiff. Compare: interpleader
http://www.nolo.com/dictionary/impleader-term.html
Define "Intervention"?
The procedure under which a third party may join an ongoing lawsuit, providing the facts and the legal issues apply to the intervenor as much as to one of the existing parties. (See also: intervene.)
http://www.nolo.com/dictionary/intervention-term.html
Define "Necessary Party"?
A person or entity whose interests will be affected by the outcome of a lawsuit and whose absence from the case prevents a judgment on all issues, but who cannot be joined in the lawsuit because that would deny jurisdiction to the court hearing the case.
http://www.nolo.com/dictionary/necessary-party-term.html
Define "Joinder"?
The joining together of several lawsuits or several parties all in one lawsuit because the legal issues and the factual situation are the same for all plaintiffs and defendants, or because a party is necessary to the resolution of the case. Joinder may be mandatory if a person necessary to a fair result was not included in the original lawsuit, or it may be permissive if joining the cases together is only a matter of convenience or economy.
http://www.nolo.com/dictionary/joinder-term.html
Define "Bill of Particulars"?
A document, written by a plaintiff or prosecutor at the request of a defendant in a civil or criminal action, that sets out detailed information about the claims or charges being brought against the defendant.Knowing these particulars, the defendant is able to mount a defense.
http://www.nolo.com/dictionary/bill-of-particulars-term.html
Define "Appearance"?
When a lawyer comes to court and responds when a client's case has been called, that lawyer has appeared on behalf of the client. When an attorney makes a "general appearance," the lawyer will represent the client in all aspects of the case. An attorney may instead make a "special appearance" when the lawyer is appearing only for the purpose of what is before the court that day, as long as the judge is told of the limited nature of the appearance.
http://www.nolo.com/dictionary/appearance-term.html
Define "Amended Pleading"?
A written pleading in a lawsuit that is changed and refiled as an amended pleading by the party who initially filed it. Pleadings are amended for various reasons, including correcting facts, adding claims, adding affirmative defenses, or responding to a court's finding that a pleading is inadequate as a matter of law.
http://www.nolo.com/dictionary/amended-pleading-term.html
Define "Pleading"?
Any legal document filed in a lawsuit, including the complaint, petition, answer, demurrer, motion, declaration, and memorandum of points and authorities (written argument citing precedents and statutes).
http://www.nolo.com/dictionary/pleading-term.html
Define "Service of Process"?
The delivery of copies of legal documents such as summons, complaint, subpena, order to show cause (order to appear and argue against a proposed order), writs, notice to quit the premises, and certain other documents, usually by personal delivery to the defendant or other person to whom the documents are directed. In certain cases of absent or unknown defendants, the court will allow service by publication in a newspaper. Once all parties have filed a complaint, answer, or any pleading in a lawsuit, further documents usually can be served by mail or even fax. (See also: personal service, substituted service)
http://www.nolo.com/dictionary/service-of-process-term.html
Define "Rules of Court"?
A set of procedural rules adopted by local, state, or federal courts that instruct parties and attorneys what the court's mandatory procedures are about things like the time allowed to file papers, format of documents, filing procedures and fees, basis for calculating alimony and child support.
http://www.nolo.com/dictionary/rules-of-court-term.html
How to File a Lawsuit?
To start your case, you will have to file a complaint or claim. This form is often called a plaintiff's statement, general claim, or plaintiff's claim.
http://www.nolo.com/legal-encyclopedia/free-books/small-claims-book/chapter10-2.html
When to file pleadings and motions?
Once the plaintiff determines where to file the complaint. Pleadings are the plaintiff's initial allegations and the defendant's responses to those allegations. Motions are requests made by the parties for a specific order by the court. Courts usually schedule pretrial conferences to review and rule on pleadings and motions, sort out preliminary issues, and prepare a case for trial.
http://legal-dictionary.thefreedictionary.com/Civil+Procedure
Define "Provisional Remedy"?
Any temporary order of a court to protect a party from irreparable damage while a lawsuit or petition is pending. (See also: temporary restraining order (TRO), interlocutory decree, temporary injunction)
http://www.nolo.com/dictionary/provisional-remedy-term.html
Define "Default"?
1) Failure to file an answer or other response to a summons or complaint in a lawsuit. After a certain period has passed, the plaintiff may ask the court for a default judgment, which means the defendant who failed to respond loses the case. A defendant who has a legally sufficient reason for failing to respond (for example, the defendant never received the summons) may file a motion asking the court to overturn the default judgment and allow the defendant to defend the lawsuit. 2) Failure to pay a debt or meet other obligations of a loan agreement. For example, a debtor may default on a car loan by failing to make required monthly payments or by failing to carry adequate insurance as required by the loan agreement.
http://www.nolo.com/dictionary/default-term.html
Define "Statute of Limitations"?
The legally prescribed time limit in which a lawsuit must be filed. Statutes of limitation differ depending on the type of legal claim and on state law.
http://www.nolo.com/dictionary/statute-of-limitations-term.html
Define "Deposition"?
The taking and recording of the testimony of a party or witness under oath before a court reporter, in a place away from the courtroom, before trial. A deposition is part of pretrial discovery. The testimony is recorded by the court reporter, who will prepare a transcript that can be used for pretrial prepration or in trial to contradict or refresh the memory of the witness, or be read into the record if the witness is not available.
http://www.nolo.com/dictionary/deposition-term.html
Define "Notice to Admit"?
A discovery procedure, authorized by the Federal Rules of Civil Procedure and the court rules of most states, in which one party asks an opposing party to admit that certain facts are true. If the opponent admits the facts or fails to respond in a timely manner, the facts will be deemed true for purposes of trial. A request for admission is called a "request to admit" in many states.
http://www.nolo.com/dictionary/request-for-admission-term.html
Define "Third Party"?
A person who is not a party to a contract or a transaction, but who has an involvement. The third party normally has no legal rights in the matter, unless the contract was made specifically for the third party's benefit. (See also: third-party beneficiary)
http://www.nolo.com/dictionary/third-party-term.html
Define "Subpoena"?
A court order issued at the request of a party requiring a witness to testify, produce specified evidence, or both. A subpena can be used to obtain testimony from a witness at both depositions (testimony under oath taken outside of court) and at trial. Failure to comply with the subpena can be punished as contempt of court.
http://www.nolo.com/dictionary/subpena-(subpoena)-term.html
Define "Motion"?
A formal request that a judge enter a particular order or ruling in a lawsuit. An oral motion may be made during trial -- for example, to strike the testimony of a witness or admit an exhibit. Often, motions are made in writing, accompanied by a written statement explaining the legal reasons why the court should grant the motion. The other party has an opportunity to file a written response, and then the court decides whether to grant or deny the motion. The court may hold a hearing where each party can argue its side, or may decide the issue without a hearing.
http://www.nolo.com/dictionary/motion-term.html
Define "Stipulation"?
1) An agreement between the parties to a lawsuit. For example, if the parties enter into a stipulation of facts, neither party will have to prove those facts: The stipulation will be presented to the jury, who will be told to accept them as undisputed evidence in the case. 2) A representation or statement, typically by a party to a contract.
http://www.nolo.com/dictionary/stipulation-term.html
Define "Recess"?
A break in a trial or other court proceedings or a legislative session until a date and time certain. Recess is not to be confused with adjournment, which winds up the proceedings.
http://www.nolo.com/dictionary/recess-term.html
Define "Settlement"?
1) The resolution of a dispute or lawsuit. 2) Payment or adjustment.
http://www.nolo.com/dictionary/settlement-term.html
Define "Discovery"?
A formal investigation -- governed by court rules -- that is conducted before trial by both parties. Discovery allows each party to question the other parties, and sometimes witnesses. The most common types of discovery are interrogatories, consisting of written questions the other party must answer under penalty of perjury; depositions, at which one party to a lawsuit has the opportunity to ask oral questions of the other party or witnesses under oath while a written transcript is made by a court reporter; and requests to produce documents, by which one party can force the other to produce physical evidence. Parties may also ask each other to admit or deny key facts in the case.
http://www.nolo.com/dictionary/discovery-term.html
Define "Voir Dire"?
French for "to speak the truth," this is the questioning in court of prospective jurors by a judge or attorneys. The purpose is to determine if any juror is biased or cannot deal with the issues fairly, or if there is cause not to allow a juror to serve (such as knowledge of the facts or acquaintance with the parties or witnesses).
http://www.nolo.com/dictionary/voir-dire-term.html
Define "Peremptory Challenge"?
The right to dismiss or excuse a potential juror during jury selection without having to give a reason. Each party to a lawsuit gets a set number of peremptory challenges.Compare: challenge for cause
http://www.nolo.com/dictionary/peremptory-challenge-term.html
Define "Challenge for Cause"?
A party's request that the judge dismiss a potential juror from serving on a jury by providing a valid legal reason why he shouldn't serve. Potential bias is a common reason potential jurors are challenged for cause
http://www.nolo.com/dictionary/challenge-for-cause-term.html
Define "Testimony"?
Evidence given under oath by a witness either at trial or in an affidavit or deposition.
http://www.nolo.com/dictionary/testimony-term.html
Define "Jury Instruction"?
A direction or explanation that a judge gives to a jury about the law that applies to a case.
http://www.nolo.com/dictionary/jury-instruction-term.html
Define "Mediation"?
A way that parties can resolve their own dispute without going to court. In mediation, a neutral third party (the mediator) meets with the opposing sides to help them find a mutually satisfactory solution. Unlike a judge or an arbitrator, the mediator has no power to impose a solution -- instead, the mediator facilitates the parties' communication and helps to develop and reality-test possible solutions. No formal rules of evidence or procedure control mediation; the mediator and the parties usually agree on their own informal ways to proceed.
http://www.nolo.com/dictionary/mediation-term.html
Define "Arbitration"?
An out-of-court procedure for resolving disputes in which one or more people -- the arbitrator(s) -- hear evidence and make a decision. Arbitration is like a trial in some ways, but typically proceeds much more quickly and with less formality.
http://www.nolo.com/dictionary/arbitration-term.html
Define "Bill of Costs"?
A list of claimed court costs submitted by the prevailing (winning) party in a lawsuit after the judge issues a judgment. Statutes limit what can be included in these costs.
http://www.nolo.com/dictionary/cost-bill-term.html
Define "Restraining Order"?
An order from a court directing one person not to do something, such as make contact with another person, enter the family home, or remove a child from the state. Restraining orders are often issued in cases in which spousal abuse, stalking, or other immediate harm is feared. A restraining order is always temporary and is also commonly referred to as a temporary restraining order or TRO.
http://www.nolo.com/dictionary/restraining-order-term.html
Define "Information"?
The name of the document, sometimes called a criminal complaint or petition, in which a prosecutor charges a criminal defendant with a crime, either a felony or a misdemeanor. The information tells the defendant what crime he or she is being charged with, as well as against whom and when the offense allegedly occurred. However, the prosecutor need not go into great detail. A defendant who wants more specifics must ask by way of a discovery request. Compare: indictment
http://www.nolo.com/dictionary/information-term.html
Define "Levy"?
1) To seize property to satisfy a debt or lawsuit judgment. Sometimes used as a noun to refer to the property seizure. 2) To impose or assess, as a tax.
http://www.nolo.com/dictionary/levy-term.html
Define "Res Adjudicata"?
Latin for a legal issue that has been finally decided by a court, between the same parties, and cannot be ruled on again. For example, if a court rules that John is the father of Betty's child, John cannot raise the issue again in another court. (He could appeal the court's ruling to a higher court, but he could not raise the paternity issue again in another lawsuit.) Sometimes called res adjudicata. (See also: collateral estoppel)
http://www.nolo.com/dictionary/res-judicata-term.html
Define "Collateral Estoppel"?
A legal doctrine that says that a judgment in one case prevents (estops) a party to that suit from trying to litigate the same issue in another legal action. Also called issue preclusion.
http://www.nolo.com/dictionary/collateral-estoppel-term.html
What is a court act?
It prescribes the court's jurisdiction and regulates selected procedures in varying degrees.
Each court is governed first by its own court act, then the CPLR.
Who has administrative supervision over the courts in NY?
The chief judge of the court of appeals.
Administration is exercised through the chief administrator and deputy administrators.
What is CPLR 2004?
Is the provision governing extension of time.
It has two limitations: the SOL itself. The second is the time in which to take an appeal.
Is a court's "subject matter jurisdiction" waivable?
No. Not by waiver, consent,estoppel,laches, or anything else.
Not even by stipulation of the parties.
From where does a court get its "subject matter jurisdiction"?
From the constitution and laws of the sovereign it serves.
If the jurisdiction is not so conferred, the court lacks "subject matter" jurisdiction of the case.
Which is NY court of last resort?
The court of appeals.Below it are the main intermediate appellate courts, the "appellate divisions" one in each of the four judicial departments
Which is the main court of original jurisdiction in NY?
The supreme court. It has "general jurisdiction". the other courts have limited jurisdiction.
What is the main source of procedure in the supreme court?
The CPLR, but Part 202 of the Uniform Rules provides further procedural detail for practice in the court.
What is the role of the "commercial parts" within the supreme court?
To handle and expedite commercial cases.
The categories of actions that qualify as "commercial" are defined in subdivision (b) of Rule 202.70.
What is the role of the Appellate Term?
To hear appeals from certain lower courts.
Appeals from the appellate term go to the appellate division.
What is the role of County Courts?
There is one in each county outside NY. It has criminal jurisdiction, including the felonies, and substantial civil jurisdiction.
It does not have a separate court act. The CPLR applies directly and Part 202 of the Uniform Rules.
What is the role of the Surrogate's Court?
There is one in each county of the state. It handles all matters concerning decedents estates
Whether the matter involves law or equity.
What is the role of the Family Court?
There is one in each county of the state. It covers the whole range of family matters.
It lacks authority in matrimonial matters. The supreme court has exclusive jurisdiction on those matters.
What is the role of the Court of Claims?
It has jurisdiction to hear and determine claims against the state or by the state against the claimant.
It may have jurisdiction over certain state agencies and the state itself.
What is the role of NY City Criminal Court?
It exists only in NYC and has only criminal jurisdiction. It is governed by the Criminal Court Act and the Criminal Procedure Law.
It handles misdemeanors and lesser offenses. Felonies are tried in the supreme court.
What is the role of the NY City Civil Court?
It has only civil jurisdiction and functions only in the City of New York.
It has monetary jurisdiction up to $25,000. The Small Claims "court" is part of this court: up to $5,000.
What is the role of the Districts Courts (NY)?
It has civil and criminal jurisdiction. There are two in the state covering Nassau County and the western part of Suffolk County.
They are unrelated and shouldn't be confused with the district courts of the United States.
What is the role of City Courts (NY)?
There is one in each of the 61 cities outside New York City. Are assigned civil and criminal case jurisdiction.
Outside NYC it has the Small Part. Claims no higher than $5,000. Cases for $6,000 and under can be sent to compulsory arbitration.
What is the role of Town and Village Courts outside NYC?
Each county outside NYC is divided into towns. Collectively they are known as "justice courts". They have civil and criminal jurisdiction
Each town and village has a small claims part.
What is "longarm" jurisdiction?
It involves a claim arising out of the defendant's activity within a state. (See CPLR 301,302 and 313).
What must the "summons" be accompanied by?
By either a complaint or brief default notice.
Is "personal jurisdiction" obtained on a transient within the state?
Yes. The doctrine of "forum non conveniens" can dismiss such a case.
Service on a nonresident individual within the state, even on a claim unrelated to the state continues to give full personam jurisdiction.
What comences an action in NY practice?
The filing of the summons and complaint. In a "special proceeding" it commences with the filing of the petition.
The filing step is important because it satisfies the statute of limitations. Service of the summons and complaint on the defendant comes afterwards.
What happens when the summons is served with the complaint?
It notifies the defendant to answer within a specified time. The period is 20 or 30 days depending on the place and method of service.
20 days if by personal service. 30 days by any other means in NY, or method outside NY.
What happens when the summons is served without a complaint?
It must be accompanied by a brief notice (default notice).
What is a Subpoena Duces Tecum?
A subpoena duces tecum is used to compel the production of documents that might be admissible before the court. It cannot be used to require oral testimony and ordinarily cannot be used to compel a witness to reiterate, paraphrase, or affirm the truth of the documents produced.
Define Laches?
The person invoking laches is asserting that an opposing party has "slept on its rights," and that, as a result of this delay, that other party is no longer entitled to its original claim.
Put another way, failure to assert one’s rights in a timely manner can result in a claim's being barred by laches. Laches is a form of estoppel for delay.
What is the fee to obtain an index number?
$210.00
What is a "note of issue"?
A paper that contains basic data about the case. It places the case on the trial calendar in a supreme court action.
When can RJI be requested?
At any time after service of process, a party may file a request for judicial intervention.
How to proceed with a "Calendaring of motions"?
no motion shall be filed with the court unless there have been served and filed with the motion papers (1) a notice of motion, and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.
What is a Declaratory Judgment?
A court decision in a civil case that tells the parties what their rights and responsibilities are, without awarding damages or ordering them to do anything.
What is a Bill of Particulars?
A document, written by a plaintiff or prosecutor at the request of a defendant in a civil or criminal action, that sets out detailed information about the claims or charges being brought against the defendant.
Knowing these particulars, the defendant is able to mount a defense.
What is an order to show cause?
An order from a judge that directs a party to come to court and convince the judge why the judge shouldn't grant an action proposed by the other side or, occasionally, by the judge.
For example, in a divorce, at the request of one parent a judge might issue an order directing the other parent to appear in court on a particular date and time to show cause why the first parent should not be given sole physical custody of the children.
What is a Summary Judgment?
A final decision by a judge, upon a party's motion, that resolves a lawsuit before there is a trial. The party making the motion marshals all the evidence in its favor, compares it to the other side's evidence, and argues that there are no "triable issues of fact."
Summary judgment is awarded if the undisputed facts and the law make it clear that it would be impossible for the opposing party to prevail if the matter were to proceed to trial.
What is a Statement of Facts?
A statement of facts, agreed to by the parties to a lawsuit (at trial or on appeal) and submitted to the court in writing.