Pries Civil Litigation

Front 1

Personal Jurisdiction
Federal

Back 1

Follow State Jurisdiction statute
VA; 8.01-328

Front 2

VA Personal Jurisdiction

Back 2

8.01-328
Residence, Contracts, Torts
VA has general 'doing business' PJ

Front 3

Subject Matter Jurisdiction
(Federal)

Back 3

Which Court System?
1331 - fed question
1332 - diversity
1367 - 'piggy back'

Front 4

FRCP
1331

Back 4

Federal Question raised in Complaint;
can not be anticipated defense

Front 5

FRCP
1332

Back 5

Diversity Jurisdiction

Front 6

FRCP
1367

Back 6

The piggy back statute.
If P has 1331 or 1332 claim, a separate claim that otherwise would not be subject to Fed jurisdiction may be brought in

Front 7

1332 Domicile
(persons)

Back 7

Presence and intents to remain
(reflected by behavior)

Front 8

1332 Domicile
(Corporations)

Back 8

Principle place of business
&
Headquarters

Front 9

Virgina SMJ
District Court

Back 9

Exclusive jurisdiction up to $4500
Shared jurisdiction $4500 - $15000

Front 10

Virginia SMJ
Circuit Courts

Back 10

Shared jurisdiction $4500-$15000
Exclusive jurisdiction, greater than $15000

Front 11

Venue
Federal

Back 11

1391
Residency of D
C/A accrues
PJ for Corporations - 1391(c)
ie;Where they are or where it happened

Front 12

Venue
VA

Back 12

8.01-261
where they are, where it happened, and where D works

Front 13

FED Diversity Requirements

Back 13

$75k
complete diversity of all parties

Front 14

Dismissal for Jurisdiction

Back 14

Without prejudice;
allows for filing in correct jurisdiction
(do over)

Front 15

Where should you sue?

Back 15

Several considerations:
1. convenience/expertise
2. susceptibility to transfer within system
3. susceptibility to transfer out of system
4. applicable law (procedural and substantive)

Front 16

Where should you sue #1
convenience/expertise

Back 16

Takes into consideration personal knowledge of convenience to parties, counsel, witnesses;
some localities have unique rules and familiarity (or their lack of) may be advantageous

Front 17

Where should you sue #2
susceptibility to transfer w/i system

Back 17

Federal Transfer stat. 1404
VA stat. 8.01-265
Transfer when:
inconvenient to witness(es), parties, evidence

Witness(es) have not consented to the suit

P's choice is given great deference, except when being difficult

Front 18

Where should you sue #3
susceptibility to transfer out of system

Back 18

Fed stat. 1441
VA stat. 8.01-265
(forum non conveniens)
Two types:
state to state
state to federal

Front 19

Removal under 1441

Back 19

Anytime could have commenced suit in federal court D may remove.
Exception: Except if filed in D's home state and diversity would be basis for federal SMJ

Front 20

Complaint Amendment

Back 20

Can always amend prior to an answer
If answer is filed court will normally allow if it is reasonable
early & won't prejudice D

Front 21

Relate Back

Back 21

amendment after SOL runs
If claim rises out of original C/A
to apply or take effect retroactively esp. based on relation back the amendment relates back to the date of the original pleading Federal Rules of Civil Procedure Rule 15(c)

Front 22

K Remedies

Back 22

Damages
Specific Performance
Rescission
Declaratory Judgment

Front 23

Expectancy Damages

Back 23

Compensation awarded for the loss of what a person reasonably anticipated from a transaction that was not completed
(ie; Lost Volume Seller)

Front 24

Consequential Damages

Back 24

Losses that do not flow directly and immediately from an injurious act but that result indirectly from the act
What both parties foresaw as scope of K when made
Whether both parties understood ROL was covered by K

Front 25

Liquidated Damages

Back 25

An amount contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches. • If the parties to a contract have properly agreed on liquidated damages, the sum fixed is the measure of damages for a breach, whether it exceeds or falls short of the actual damages
Can not be punitive;
Ascertainable at formation?

Front 26

Limitation of Liability

Back 26

Prima Facie Unconscionable for personal injury

Front 27

Cover

Back 27

Mitiagtion of damages/losses
prevent it from getting worse

Front 28

Specific Performance

Back 28

Performance or Good sought is distinct or difficult to replace
Never allowed in personal services

Front 29

Rescission

Back 29

A party's unilateral unmaking of a contract for a legally sufficient reason, such as the other party's material breach
BIG breach

Front 30

Declaratory Judgment

Back 30

Deal w/ K's before breach has occured
A binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement

Front 31

Injunction

Back 31

Must Show:
Irreperable Harm
Injury is very likely to occur (subs. certain)
>>>
>>>

Front 32

Collateral Source Rule

Back 32

If you derive compensation from a collateral source it does not relieve you for your damages
prohibits the admission of evidence that a victim's damages were or will be compensated from some source other than the damages awarded against the Defendant.

Front 33

Liquidated Damages

Back 33

An amount contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches. • If the parties to a contract have properly agreed on liquidated damages, the sum fixed is the measure of damages for a breach, whether it exceeds or falls short of the actual damages
Can not be punitive;
Ascertainable at formation?

Front 34

Limitation of Liability

Back 34

Prima Facie Unconscionable for personal injury

Front 35

Cover

Back 35

Mitiagtion of damages/losses
prevent it from getting worse

Front 36

Specific Performance

Back 36

Performance or Good sought is distinct or difficult to replace
Never allowed in personal services

Front 37

Rescission

Back 37

A party's unilateral unmaking of a contract for a legally sufficient reason, such as the other party's material breach
BIG breach

Front 38

Declaratory Judgment

Back 38

Deal w/ K's before breach has occured
A binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement

Front 39

Fully Integrated K

Back 39

k

Front 40

Parol Evidence
(generally)

Back 40

k

Front 41

Injunction

Back 41

Must Show:
Irreperable Harm
Injury is very likely to occur (subs. certain)
Likelihood of winning on the merits
Balance the equities

Front 42

Collateral Source Rule

Back 42

If you derive compensation from a collateral source it does not relieve you for your damages
prohibits the admission of evidence that a victim's damages were or will be compensated from some source other than the damages awarded against the Defendant.

Front 43

Tort Damages

Back 43

1. Where would the Plaintiff be if the Defendant hadn’t screwed up?
a. Expectation
b. Cost of repair and pain and suffering
c. Lost opportunity.

Front 44

IIED
Intentional Infliction of Emotional Destress

Back 44

(a) deliberate or reckless infliction of mental suffering;
(b) outrageous conduct;
(c) the conduct must have caused the emotional distress; and
(d) the distress must be severe

Front 45

Punitive Damages

Back 45

Damages awarded in addition to actual damages when the defendant acted with recklessness, malice, or deceit; specif., damages assessed by way of penalizing the wrongdoer or making an example to others.
Measured by deterence factor
9:1 is doable
3:1 is more common

Front 46

Pre-Lim Injunction

Back 46

A temporary injunction issued before or during trial to prevent an irreparable injury from occurring before the court has a chance to decide the case.
A preliminary injunction will be issued only after the defendant receives notice and an opportunity to be heard

Front 47

Temporary Restraining Order

Back 47

10 days; possible 10 day extension
more extreme than TRO
can be done ex parte; must attempt notice, and
explain to best knowledge why no show
must have a really good reason

Front 48

Attachment

Back 48

The seizing of a person's property to secure a judgment or to be sold in satisfaction of a judgment

Court 'grabs' subject of lawsuit to prevent it from being destroyed or fretted away

Front 49

Pre-judgement remedies

Back 49

injunction
TRO
Attachment

Front 50

Pre-Lim injunction/TRO
Merits

Back 50

1) likelihood of success on the merits
2) irreperable harm if no PI/TRO
3) balance of hardships against P/D
4)Public interest served
Totality of circumstances test

Front 51

PI/TRO enforcement

Back 51

contempt
Civil and Criminal Penalties

Front 52

Motion to Dismiss

Back 52

12(b)1-5 & 7, non merits challenges
12(b)6, merits challenge; can b fatal

generally due w/i 20 days of service

Front 53

Basic content of MTD

Back 53

Intro (tiny)
Background
Argument(s)
Conclusion

Front 54

Answer

Back 54

the 'most trivial of documents'
D says: admit, deny insufficient knowledge, speaks for itself, no response req (ie; legal conclusions)
NEVER, NEVER, admit

Front 55

Lex Loci

Back 55

Location determines substantive law
Forum determines procedure
Exception; some juris. reject repugnant law

Front 56

Comparative Negligence

Back 56

A plaintiff's own negligence that proportionally reduces the damages recoverable from a defendant

Front 57

Contributory Negligence

Back 57

A plaintiff's own negligence that played a part in causing the plaintiff's injury and that is significant enough (in a few jurisdictions) to bar the plaintiff from recovering damages. • In most jurisdictions, this defense has been superseded by comparative negligence

Front 58

Ego-inhibitor

Back 58

ego barrier
clients want to tell stories that make them look good

Front 59

client centered counseling

Back 59

Assumption that lawyers have power
Client autonomy, empowerment
Clients should be given a range of options and be allowed to make a decision on which to follow

Front 60

Iqbal

Back 60

i. Plaintiff needs to present facts that are plausible on their faces
1. Plausible:
a. Whether or not there is another explanation that is MORE plausible
b. Try to come up with a better explanation than the Plaintiff
2. Trying to get rid of frivolous suit

Front 61

Twombly

Back 61

d

Front 62

Rule 11 generally

Back 62

Bad facts
Bad law
Bad faith

existence of any/all creates a problem

Front 63

Premises Liability in VA

Back 63

Intentional
False Statement
of Material Fact
Reasonable Belief
Damages

Front 64

Fraud

Back 64

i. An intentional or knowing;
ii. False statement;
iii. Of material fact;
iv. Reasonable reliance;
v. Damages;

Front 65

Products Liability

Back 65

j

Front 66

Contracts

Back 66

Expectation
Consequential
Liquidated
Specific Performance
Rescission
DJ

Limitation
Cover

Front 67

Breach of Fiduciary Duty

Back 67

j

Front 68

Tortious Interference

Back 68

j

Front 69

Rule 11 Safe Harbor

Back 69

21 days from notice of R11 filing
allows for an amendment to complaint or filing
or,
withdraw complaint

Front 70

Discovery 3 step

Back 70

Element
Intermediate
Where is info?

Front 71

SOL's

Back 71

Tort - 2 years
Oral K - 3 years
Written K - 5 years

Front 72

2 ways to make a client happy at initial consultation

Back 72

1. Give incredible amounts of expertise
2. Set the bar low, identify legal aspects
don't promise the world

Front 73

3 steps to counseling
(Pries factors)

Back 73

1. Merits
2. Relief/Damages
3. Practical Elements/Concerns

Front 74

Negligent Fraud

Back 74

Mistake

(expnad)

Front 75

When do SOL's start to run?

Back 75

1. Discovery (fraud)
2. when it reasonably should have been discovered

Front 76

Arbitration Clause

Back 76

i. Any dispute arising out of the contract will be subject to arbitration

Front 77

Forum Selection

Back 77

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Front 78

Warranties

Back 78

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Front 79

Adhesion K

Back 79

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Front 80

Respondeat Superior

Back 80

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Front 81

Conversion

Back 81

Taking
of Property
w/o consent
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Front 82

C/L / Statutes dichotomy

Back 82

statutes in derogation of the common law are strictly construed
statutes can explicitly change C/L
generally, stat. will preempt C/L

Front 83

Initial Disclosures

Back 83

FRCP 26(a)
Names of Witnesses
Name and Location of Documents
Computation of Damages (P)
Insurance Coverage (D)

Front 84

4 Discovery Carve Outs
(as D)

Back 84

Attorney/Client Privilege
Work Product Exception
Non-Testifying Experts
Burdensomeness

Front 85

Attorney Client Privilege

Back 85

Communictation
Between Client or potential client
For obtaining and rendering legal advise

(does not apply to underlying facts)

Front 86

A/C Priv.
Waiver

Back 86

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Front 87

Work Product

Back 87

Document or Tangible
Prepared in anticipation of litigation

Front 88

Hickman v. Taylor

Back 88

exception to work product doctrine
1. essential information
2. can not get anywhere else

Front 89

Non-testifying experts

Back 89

Not Discoverable
No names
No testimony
No work
(similar to WP doctrine)

Front 90

Burdensomeness

Back 90

26(b)(2)(c)
time
opportunity
cost
efficiency

Front 91

Non-party discovery

Back 91

df

Front 92

Subpena Duces Tecum

Back 92

A subpoena ordering the witness to appear and to bring specified documents, records, or things.

Front 93

Party Discovery Tools

Back 93

(Initial Disclosures)
Rogs
Docs
Deps
(Inspection)

Front 94

Interrogatories

Back 94

Written questions
contentions, identifications

Front 95

Ways to resist/force requests
(generally)

Back 95

Objection
Motion to compel
Motion for protective order

Front 96

Protective Order

Back 96

an order that prevents the disclosure of sensitive information except to certain individuals under certain conditions
A protective order is commonly used to protect a party or witness from unreasonable or invasive discovery requests (for example, harassing questions in a deposition, or an unnecessary medical examination)

Front 97

Privilege Log

Back 97

'Detailed' list of what is not being produced and why

Front 98

100 mile rule

Back 98

can not make someone travel 100 miles to answer a subpoena in state
(per se unreasonalbe)
states do have reciprocity

Front 99

Depositions
(generally)

Back 99

skjgh

Front 100

Litigation Hold

Back 100

Crucial part of litigation
3 elements
trigger
scope
consequences

Front 101

Litigation Hold triggers

Back 101

lawsuit
accident (type that usually leads to lit)
death
injury
communication asserting displeasure/disagreement
demand letter

Front 102

Litigation Hold Scope

Back 102

relevant information
claims, info, types
Everything possible/practicable

Front 103

Litigation Hold Consequences

Back 103

dismissal
adverse judgment
Money
negative inferences

Front 104

Spoilation

Back 104

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Front 105

Motions in Limmine

Back 105

motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial. This is done in judge's chambers, or in open court, but always out of hearing of the jury. If a question is to be decided in limine, it will be for the judge to decide. Usually it is used to shield the jury from possibly inadmissible and unfairly prejudicial evidence.

Front 106

Daubert

Back 106

now R702
i. Testimony is based on sufficient facts or data
ii. Testimony is product of reliable principles and methods
iii. Witness has applied the principles and methods reliably to the facts of the case

Front 107

Dismissals
(generally)

Back 107

Voluntary
Stipulated
Court Ordered
Default Judgment
Summary Judgment

Front 108

Stipulated Dismissal

Back 108

f

Front 109

Court Ordered Dismissal

Back 109

LK

Front 110

Voluntary Dismissal

Back 110

d

Front 111

Default Judgment

Back 111

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