Substantive Civil Law And Procedure

Front 1

Two Important Subdivisions of Civil Law

Back 1

Torts and Breach of Contract

Front 2

7 Examples of Intentional Torts

Back 2

1. Fraud
2. False Imprisonment
3. Battery
4. Assault
5. Invasion of Privacy
6. Defamation
7. Product Disparagement

Front 3

3 types of Invasion of Privacy

Back 3

Invasion of Privacy:
1) Using someone's name or image for commercial purposes
2) Release of Information or facts to General Public
3) Wrongful intrusion into private life.

Front 4

2 Types of Defamation and how are they different.

Back 4

6. Defamation: two types: Slander (spoken) and Libel (written or broadcast/published)

Front 5

What is Product Disparagement?

Back 5

7. Product Disparagement - as opposed to damage to personal reputation, if damaging or untrue statements regarding products or services.

Front 6

What is required to prove a case of fraud?

Back 6

Show that the defendant's intent was to have the plaintiff rely on misrepresentation and plaintiff did rely on it and plaintiff must prove they sustained damages as a result.

Front 7

Define False Imprisonment and how is it distinguished from kidnapping?

Back 7

Intentional and unprivileged detention of another person (no means of escape) without their consent. Unprivileged is a person who is not a police officer or security guard. The difference between false imprisonment (confining without consent) and kidnapping is that kidnapping involves the physical transportation of the individual which is a crime not a tort.

Front 8

What is the difference between Battery and Assault?

Back 8

Assault is physical threat. Battery is intentional offensive bodily touching. Assault is the threat of Battery. A person can commit battery without Assault if for example they hit someone from behind.

Front 9

Define defamation

Back 9

Making untrue statements about another in front of a third party. Can be either Slander/spoken or Libel/printed or broadcast

Front 10

What is an unintentional tort of negligence?

Back 10

A right of recovery even when the harm caused is not intentional.

Front 11

What is the most common unintentional tort? Define it.

Back 11

Negligence. Exists when a person harms another after failure to exercise the degree of care shown by a reasonable person acting in the same circumstances.

Front 12

What is required in any negligence case?

Back 12

Plaintiff must prove the connection between the wrongful act and the injuries sustained.

Front 13

Define Causation, Actual Causation and Proximate Causation.

Back 13

The causation element
The causation of negligence is the third critical element of the lawsuit (1. is Duty Element legal obligation, 2. is Breach of Duty or Negligence compared to other reasonable person). Both actual cause and proximate cause are considered. 'Actual cause asks the question of whether the person being sued, the defendant, was the actual cause of injuries sustained by the person initiating the lawsuit, the plaintiff. Proximate cause looks at the issue of foreseeability. When considering the event that has happened, it is asked whether or not the injuries sustained were foreseeable or too remotely connected to the incident to even consider.

Hint 13

Causation is the actual cause of the harm, Proximate causation can be thought of as a side effect of that action. For instance, if you get in a car accident because someone else hits you but your injuries are the result of a defect in the car's restraint system, the restraint system is the proximate cause of your injuries. The actual cause is the person that hit you.

Front 14

What is contributory negligence that is applicable only in some states and in negligence cases?

Back 14

Contributory negligences releases defendant from liability if the defendant can prove any negligence on the part of the plaintiff.

Front 15

What is comparative negligence?

Back 15

A system that allows a party to recover some portion of the damages caused by another party's negligence even if the original person was also partially negligent and responsible for causing the injury. Not all states follow this system.

Front 16

What is another common defense in negligence cases?

Back 16

Assumption of Risk. Defendant requests that recovery by Plaintiff be barred or reduced since Plaintiff Voluntarily chose to expose his or herself.

Front 17

What is the fourth element in Negligence Cases?

Back 17

Necessity for Damages, what the plaintiff is seeking in recovering for the incident resulting from the negligent act.

Front 18

What 5 types of Damages can be Recovered from a Plaintiff?

Back 18

<>Compensatory damages are designed to compensate the plaintiff for actual costs incurred. Of those, there are general and special damages.
<>General damages are those like monetary compensation for the injury sustained.
<>Special damages involve extra items such as material possessions loss from the negligent act.
<>Nominal damages can also be awarded when negligence can be proven but there is not a quantifiable loss as a result of it.
Punitive damages are those with the intent to punish the defendant. The hope is that awarding punitive damages will deter similar actions in the future both by the defendant and others similarly situated.

Front 19

What is the general rule of Negligence Cases?

Back 19

Fault must be Proven. Not only do they need to prove they suffered damages but also prove fault on the part of the defendant.

Front 20

What is an exeption of this general rule that Fault must be Proven?

Back 20

The exception of Absolute Liability...defendant held as absolutely liable: a) Ultrahazardous Activities (handling of explosives) and Food and Drug Contamination.

Front 21

What is another exception for workers of certain kinds of jobs?

Back 21

Exception of Worker's Compensation. Workers in certain fields do not need to prove responsibility on the part of the employer. These cases are heard by an administrative agency or WC Board.

Front 22

Vicarious Liability / Respondeat Superior

Back 22

Where one party may be accountable for the wrongful acts of others. ie. Employer liable for the wrongful act of employee if they had full knowledge and gave full consent to employee.

Front 23

What are the four possible losses that will be reimbursed if awarded Compensatory Damages?

Back 23

Medical Bills
Lost Wages
Property Damage
Pain and Suffering

Front 24

Punitive / Exemplary Damages - what is it and how can a Plaintiff recover for these?

Back 24

It is payment for the sole purpose of punishing the plaintiff for the damage inflicted. Awarded upon proof defendant acted in such a grossly negligent manner that the actions were the equivalent of an intentional / malicious act.

Front 25

What is an award of Nominal Damages?

Back 25

Minimal amount awarded to plaintiff to show plaintiff should win but has not established a right to any significant actual or compensatory damages, did not establish an actual loss. This award could be $1, $10 or some other small amount - victory in name only.

Front 26

Basics of Civil Litigation and Procedure - what areas of law have specific procedural rules designed for them?

Back 26

Some examples: Probate - concerning matters pertaining to estates, Guardianship - pertains to situations in which a party is appointed to be responsible for the person or property of another, Small Claims Actions - normallly governed by the Rules of Summary Procedure.

Front 27

What are the elements of a pleading?

Back 27

1. Introductory Material at the Top
2. Main Body of the Pleading
3. The Conclusion

Front 28

What is contained in the Introductory Material? What are the three parts and Where do these go?

Back 28

a. Top Right or Top Center.
Identifies:
Exact Court (Circuit) ie. In the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida
Case Number

b. Upper Left Hand Corner: Identifies the case by the names of the parties involved sometimes in a box - refferred to as the style of the case.
c. The Title of the Pleading which appears on the right of the style of the case or is centered on the page below that area.

Front 29

What is contained in the main body of the pleading?

Back 29

Virtually all begin with an initial paragraph indicating the fundamental purpose of the document. This paragraph is then followed by numbered allegations or defenses.

Front 30

What is contained in the conclusion? What is a subscription?

Back 30

The signature at the end of the pleading is referred to as the subscription. This is where the attorney signs or if not represented the party is required by law to sign the pleading or submit an affidavit with it. Must include the addrss and phone number of the signer. Notarization is not required unless a particular statute or court rule calls for it.

Front 31

What is a certificate of service and is it required?

Back 31

In many jurisdictions, all pleadings other than the complaint or original petition contain a certification signed by the attorney making the statement that the defendant has been formally served with a summons.

Front 32

What are pleadings?

Back 32

Pleadings include: complaints, answers, counterclaims, cross-claims, third-party complaints and answers to any and all of these documents.

Front 33

What are the documents commonly involved in a Simple Civil Action?

Back 33

Summons
Complaint or Original Petition
The Civil Cover Sheet
The Answer
Motion
Subpoena
Dismissal

Front 34

Define: Summons. Who may serve Summonses?

Back 34

Summons - formal notice of suit. Any person who is not a party and over 18 years of age can act as a process server.

Front 35

Define: Complaint or Original Petition

Back 35

Complaint or Original Petition - pleading that initiates a lawsuit. It contains the actual underlying facts that gave rise to the particular suit.

Front 36

What is a Civil Cover Sheet?

Back 36

Required in Federal Court and Many state courts - supplies clerk's office with a summary of general information concerning the case.

Front 37

Define: The Answer

Back 37

Document filed by the Defendant in response to the allegation or complaint.

Front 38

What is a Motion?

Back 38

A request made to the judge to issue a ruling or order on a legal matter.
When a party asks the court to take some kind of action in the course of litigation, other than resolving the entire case in a trial, the request is made in the form of a motion.

Hint 38

Motions are often made before trials to resolve procedural and preliminary issues, and may be made after trials to enforce or modify judgments. Motions may also be made to resolve legal issues in the case if there is no disagreement about the facts. Usually called a motion for summary judgment or a motion for summary adjudication of the issues, these motions can resolve all or most of the issues in a case without the need for a trial.Normally, one side submits a motion, the other side submits a written response, and the court holds a hearing at which the parties give brief oral arguments. (Some motions are considered only on the basis of the writings.) Then the court approves or denies the motion.

Front 39

Define Subpoena

Back 39

A formal document that orders a named individual to appear before a duly authorized body at a fixed time to give testimony.

Hint 39

A subpoena that commands a person to bring certain evidence, usually documents or papers, is called a Subpoena Duces Tecum, from the Latin "under penalty to bring with you." This type of subpoena is often used in a civil lawsuit where one party resists giving the other party documents through the discovery process. If a court is convinced that the document request is legitimate, it will order the production of documents using a subpoena duces tecum.

Front 40

Define Dismissal

Back 40

The termination of a legal proceeding by the judge, before a trial or hearing, typically on the grant of a motion to dismiss by the adverse party, or because the claimant failed to proceed with the action or comply with an order of the court, or because the claimant has agreed to end the proceeding.

Front 41

What does a summons contain? Who is it addressed to?

Back 41

Addressed to the person responsible for service of process and directs him or her to serve the papers on the person named in the summons. It also informs the defendant of the maximum amount of time to respond.

Front 42

Is there a requirement of a separate summons for each defendant?

Back 42

Yes

Front 43

What type of service is required for subsequent pleadings?

Back 43

Subsequent pleadings must be served but not by process server through the clerk office. It can be hand delivered or sent trhough the mail to the opposing party's attorney.