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185 Cards in this Set
- Front
- Back
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Civil Procedure
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What happens before, during, and after a civil trial
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Federal Procedures (2)
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Federal Civil Proc.
Georgia Civil Proc. |
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Federal Civil Proc
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Federal rules of Civil proc
FRCP |
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Georgia Civil Proc
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Civil Practice act (title 9)
CPA |
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Wrong/Injury/Dispute
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Someone must have a standing
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who consults with an attorney
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both the plaintiff and defendant
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if being sued the defendant has how many days to respond
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30 days or they will lose by a default judgment
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attorney fees
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fixed
hourly with a retainer contingency fee |
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fixed fee
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a flat fee for the entire case
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hourly with a retainer fee
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pay a certain amt in advance to be applied to the attorneys hourly rate
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contingency fee
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plaintiff pays nothing in advance but attorney gets a certain percentage if they win.
this type of fee is not allowed in criminal or divorce actions |
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pleadings
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written doc. filled with court telling them and other side their position
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complaints
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filed by plaintiff to initiate the lawsuit
tells why court has jurisdiction over defendant lists factual allegations of the case asks for the remedy the plaintiff is seeking |
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service of process and summons
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**copy of complaint** and summons is served on the defendant by sheriff
Default judgment Corporate Service Waiver DCW |
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Default Judgment
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Judgment that will be entered against the def. if they do not respond to the "service of process and summons" within 30 days
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Corporate Service
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Can be on any officer of the corporation or on the registered agent of the corporation
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Waiver
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Defendant can sign a doc. waiving formal service and consenting to trial
The defendant already has a copy of the complaint |
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Answer
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the def. response to the complaint
responds to each parg. with: Admit, Deny, or Without sufficient knowledge to admit or deny" Asserts any DEFENSES or COUNTERCLAIMS |
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Counterclaim
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A claim by the defendant against the plaintiff arising from the same transaction in controversy
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Crossclaim
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claim by the defendant that brings another defendant into the lawsuit alleging the newly added defendant is the one who is actually liable to the plaintiff
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Pre-trial motions (4)
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requests submitted by either party to the court.
Change of venue Rescusal Motion in Limine Motion for a summary judgment VRLS |
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Change of venue
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to move the trial to where an impartial jury may be found
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recusal
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asking the judge to excuse himself bec of bias
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motion of limine
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exclude evidence from trial based on non-constitutional grounds
ex: evidence has nothing to do with case |
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Motion for summary judgment
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can be filed at anytime after the complaint and answer are filed before the verdict is returned
Get the judge to take the case away from the jury Ex: you see a kid drowning and you dont help him, you are not liable. Grounds: "there are no material facts in dispute, and the movant should win as a matter of law" |
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discovery
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Finding out all the cards that are in the other sides and before you even get in court
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2 reasons for discovery
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truth and justice
settlements |
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ways to "discover" (6)
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Interrogatories
Depositions Request for production of doc and entry upon land Request for examinations Request for admissions Discovery sanctions AIDEDP |
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Interrogatories
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Written questions submitted to the other party.
Reply: written answers, under oath |
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Depositions
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Party/witness is questioned in person by opposing attorney, under oath, and is transcribed by court reporter
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Request for production of documents and entry upon land
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party can ask the other party for relevant doc and to be able to go onto anothers land to inspect relevant objects contained there
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Request for examination
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Party can have the other party, or evidence, examined by their physician, psychiatrist, engineer, etc.. if relevant
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request for admissions
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Written questions asking the other party to "admit" or "deny" certain allegations.
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Discovery sanctions
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if a party refuses to respond or answer any part of discovery, the other party can ask the court to become involved and force the non-answering party to respond.
A hearing will be held to see if the party has to answer, if they still refuse, the court may: strike pleadings deem the matter admitted hold the party in comtempt until they answer |
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Pre-trial Conference
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between the judge, the attorneys, and parties.
how long is the case going to take, do you need anything in the court, the judge pushes the parties to settle |
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Settlement
Why? |
Unpredictable juries
To avoid publicity The limits of the defendants assets or insurance policy Expenses "Bad" judge or jury is lined up for trial |
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Jury or bench trial
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The defendant decides
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Voir Dire (jury selections)
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judge and attorneys question potential jurors to determine bias and best jurors to choose
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Strike- For cause
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getting a juror off becuase he is too biased to be impartial
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Strike- Peremptory
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Each side has a certain number of these they can use in any way to strike a potential jurors they do not want
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Number of Jurors?
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6 to 12
A civil jury verdict not needed to be unanimous if the parties agree to this |
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opening statements
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Plaintiff goes first
a preview of each sides case for the jury expectation of the case |
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rule of sequestration
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all witnesses must remain outside of the courtroom while the trial is procedding
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presentation of evidence
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Plaintiffs case-in-chief (primary witnesses)
Possible defense motion for summary judgment Defendants case-in-chief Rebuttal (claifying points) Rest (not futher evidence submitted) |
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Rules of Evidence
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Direct examination
Cross Examination Objections Sustain Overrule Relevance Hearsay |
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Direct Examination
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Asking questions to a witness you called to the stand
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Cross examination
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asking questions to a witness the other side called the stand
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Leading question
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A question that suggests the answer
Only used during cross examination |
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Objection
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How either party asks the judge to now allow the other side to ask a certain question, admit certain evidence, or allow a witness to respond to a question
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sustain
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The courts ruling if it agrees with the objection
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Overrule
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The courts ruling if it disagrees with the objection
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Relevances
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evidence must be relevant to the case
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Closing arguments
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both attorneys argue the evidence, the inferences therefrom, and their respective positions to the jury.
The plaintiff goes first |
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Charge conference
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The judge and the attorneys determine what law the jurt is to apply to the case
The attorneys submit written "requests to charge" to the judge Conference held outside the juries presence |
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Jury charge
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The judge reads to the jury the law they are to apply to the case
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Jury Deliberation
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Jury decides the case in secret
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Jury verdict
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Decision of the jury in a trial
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judgment
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The judge reduces the jury verdict to writing
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Judgment notwithstanding the verdict
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made by the losing party to the trial court.
made after the verdict is returned Did the jury error? |
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motion for new trial
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filed with the trial court within 30 days of judgment
gives trial court a chance to correct legal errors: court commit error, jury error, is ther new evidence? |
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appeal
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filed with a higher appellate court within 30 days of the judgment
did the trial court commit legal errors |
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writ of execution (FI FE)
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a copy of the judgment is presented to the seriffs office who then files out a FI FE
the defendants property and assets are seized until the judgement is satisfied |
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garnishment
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a copy of the judgment is presented to the personnel department of the defendants employer
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contempt
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hearing that may fine or jail the defendant for failing to obey a court order
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preemption
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when congress chooses to act exclusively in an are wehre feder and state gov share power, state law will fall to fed law
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regulatory power of states
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states have police powers and can regulate activities to protect public order, heath and safety
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taxing and spending power
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congress has the power to levy and collect taxes and duties
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section 8
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all taxes and duties shall be the same throughout the US
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article 1, section 8
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the fed gov has the power to pay debts and provide for the common defense adn general welfare of the US
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Bill of Rights
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tells the gov what they cannot do. protects the people
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first amendment
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RPS
religion: Establishment clause: "congress shall make no law respecting an establishment of religion Free exercise clause: "or prohibiting the free exercise thereof" protest and dissent: congress shall make no law "abridging the right of the ppl peaceably to assemble" speech: Congress shall make no law abridging "the freedom of speech, or of the press" |
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speech
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political speech
commercial speech corporate political speech unprotected speech PUCC |
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political speech
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highest protection
includes symbolic speech (gestures, signs) |
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commercial speech
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Advertising
restriction are valid if: Implement a substantial gov interest Directly advances that interest Goes no further than necessary to accomplish that goal |
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corporate political speech
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protected like an individuals
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unprotected speech
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defamatory- slander
criminal- conspiracy, threatening fighting words- words likely to incite other to riot obscenity |
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2nd admendment
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right to bear arms
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3rd amendment
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prohibits quartering of soldiers
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4th amendment
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against unreasonable searches and seizures
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exceptions to the 4th amendment
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Consent
Plain view Hot pursuit Protective sweep Inventory Public safety Terry stop Boarder search PITCH PBP |
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5th amendment
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pre-trial rights
Indictment by grand Jury Prohibited against double jeopardy Prohibition against self-incrimination Not person shall be "deprived of life, liberty, or property without due process of law" "nor shall private property be taken for public use, without just compensation(eminent domain)" |
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6th amendment
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trial rights
Right to speedy and public trial Impartial jury Be tried where crime committed(venue) Be informed of charges against you confront witnesses against you Subponea witnesses for you Assistance of counsel. SCATSII |
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7th amendment
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Right to a trial jury in civil cases over $20
No facted tried should be reexamined |
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8th amendment
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No excessive bail/fines
No crule and unusual punishment |
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9th amendment
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other rights aside from those listed may exist, and just because they are not listed doesn't mean they can be violated
*Natural rights amendment* |
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10th amendment
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any power not granted to the federal government belongs to the states or to the people(states rights amend)
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full faith and credit clause
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all states r 2 give full faith and credit 2 the public acts,recordsc and judicial proceedings of other states
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privleges and immunities clause
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states may not treat citizens of other states differently without substantial reasons that are substantially related to the purpose of the rule
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14th amendment
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ensured that all citizens of all states enjoyed not only rights on the federal level, but on the state level, too
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Due process
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(5th and 14th Amendments)
No person shall be deprived of life, liberty, or property without due process of law |
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procedural due process
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gov decisions to do this must be done fairly. safeguards must be in place
A. prior notice B. opportunity to be heard C. By a fair and impartial decision maker |
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equal protection
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(5th and 14th)
Prohibits state and fed gov from denying "any person within jurisdiction the equal protection of the law" |
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substantive due process
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violated if a law prohibits all citizens from dong an act
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equal protection
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violated if law only prohibits a class of citizens from doing an act
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negligence
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no intent to do harm
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Respondent-Superior
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legal dogtrine that is very important to business
If employee is negligent then both the employee and the employeer can be sued |
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Elements of Negligence
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Duty
Breach Cause Harm DBCM |
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Reasonable person standard duty
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The duty we all owe to each other at all times
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professionals/experts duty
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doctors, lawyers, etc
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duty of landowners
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Licensee
Invitee Trespasser Child trespassers: Attractive nuisance Doctrin Landlord-tennant |
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Common-carriers/innkeepers duty
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Duty of upmost care
Care to prevent harm, warn of dangers, make safe, to rescue |
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rescue
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no duty to rescue another unless: special relationship
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Children duty
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duty of a reasonable child of like age and intelligence
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disabled persons duty
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Physical
Mental Insane |
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Breach
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did the defendant breach a duty owed to the plaintiff?
Jury answers this question based on facts |
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cause
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Factual cause
Proximate cause |
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factual cause
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"But for" causation: if it wasnt for the defendants negligent act, the plaintiff would not have suffered harm
"Substantial factor" causation: the defendants breach of duty was a substantial factor in causing the plaintiffs harm |
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Proximate Cause
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foreseeability
Was it foreseeable that the negligent act would cause that type of injury |
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harm
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did the defendants breach of duty result in harm to the plaintiff
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types of damages
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Special (compensatory)
general Punitive |
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Special (compensatory) damage
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"price tag" items.
Medical bills Property repair/replace lost wages |
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General Damages
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Pain and suffering
Loss of pleasure/enjoyment Damages limited to 350,000 |
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Punitive
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used to deter malicious defendants:
Limited to 250,000 no limit for product liability |
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Mitigation of Damages
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the plaintiff must act reasonably to minimize thier damages
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"thin skull" plaintiff
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the defendant is liable for all the plaintiff's injuries
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Res Ipsa Loquitor
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rule of evidence that is used when it would be very difficult for the plaintiff to prove breach due to the defendant having controll over the instrumentality
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The use Res Ipsa Loquitor you must show:
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the defendant had exclusive control over instrumentality that caused injury and,
that an injury of this type would not normally happen |
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Neglegence Per Se
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if a defendant violates a statue, it is a breach of duty if:
The statue was in place to prevent this type of injury, and To this type of plaintiff |
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Danger invites rescue
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a defendant is liable to the original plaintiff and any rescuers who may be injured in trying to aid the plaintiff
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good samaritan laws
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a defence to negligence in trying to help someone
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dram shop acts/social host liability
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liable to 3rd parties injured by intoxicated customers or guest
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family purpose doctrine
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the owner of a car is liable if:
driver lived in the owners house driver was using the car with the owners permission the vehicle was being used for a "family purpose" |
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torts of spouses/children
(vicarious liability) |
not liable for torts of spouses/children unless shown
Parents liable for up to $10,000 for malicous acts of minor children Intra-family spouses can only sue eachother for property torts |
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intra-family
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parents and children can not sue each other for torns on each other
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wrongful death
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brought by survivors for wrongful death of a spouse, child, or parent
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workers comp
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worker/employee must be compensated through a workers compensation claim
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defenses to negligence
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Assumption of the risk
Superseding intervening cause Contributory and comparative negligence Sovereign immunity statues of limitations strict liability SASSCS |
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Assuption of the risk
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plaintiff knew of the danger and extent, and assumed the risk
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superseding intervening cause
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unforseeable intervening event that is out of the plaintiffs control
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contributory and comparative negligence
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contributory
comparative modified comparative MCC |
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Contributory
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Plaintiff was at all fault
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comparative
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reduced award by the % believed the plaintiff was also at fault
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modified comparative
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reduced award by % believed the plaintiff was at fault, unless the plaintiff was more than 50% at fault
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sovereign immunity
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Best defense to sue the gov
protects gov angences and employees from being sued The Georgia Tort Claims Act and The Federal Tort Claims Act provide limited exception to this. |
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statues of limitations
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plaintiff must bring the lawsuit within a specified period of time from the negligent act
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strict liability
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the defendant is liable for any injuries from the act if they were ingaging in an abnormally dangerous activity
Proximate cause is still required Assumption of risk is a defense |
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battery
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intentional infliction of harmful contact with another
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assault
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intentional conduct resulting in a reasonable apprehension of immediate harmful or offensive contact
Immediate: threat must be imminent |
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Words alone rule
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words are not enough, they have to be accompanied by some "overt" act
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transferred intent
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if a person means to harm A but misses and harms B, then the intent is transferred to B
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Defenses
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consent, involuntary act, defense of self or others
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false imprisonment
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unlawful detention of another for any length of time, whereby the person is deprived of personal liberty
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false arrest
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arrest without probable cause
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GA statutory protections for business owners
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no liability for merchant if: plaintiff was acting as a shoplifter
if merchant uses security "buzzer" tags, and the plaintiff rings then that is probable cause; there must be a sign warning of "tags" |
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defamation
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statement of a flase fact that harms anothers reputatin or business
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libel
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false and malicious defamation that is in PRINT, writing, signs, pictures
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slander
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oral defamation
Ex: charges against another business, trade, profession to injure plaintiff therein, disparaging words producing special damages(salary) |
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truth
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is always a defense to libel and slander
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broadcast libel
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broadcast station only liable if they did not use "due care" in checking the accuracy of a story
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Defamacast
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defamation by a television broadcast
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absolute privilege
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all allegations, charges, and statements in court or legislative proceedings
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conditions privleges
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create a rebuttable presumption the matter is privileged:
Public duty Legal or Moral duty To protect speakers own interest |
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invited libel
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one libeled requests or consents to publication of the material to a 3rd party (references)
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on-line defamation
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treated like slander, one must prove special damages unless it is one of the condition privleges
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fradulent misrepresentation
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stating a false fact to enduce a situation
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misuse of legal preceedings
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malicious prosecution
abusive litigation |
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malicious prosecution
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taking someone to court without probable cause, and it causes damage to the plaintiff
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abusive litigation
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in civil court
any person is liable who takes an active part in initiation, continuation of a civil lawsuit agaisnt another if it is: with malice, and Without substantial justification |
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intentional infliction of emotional distress
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intentional conduct causes plaintiff severe emotional distress b/c or the outrageousness of the defendants conduct(sexual harassment)
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trespass to land
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going on someones land you were not invited to
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Entry
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1: def. enters, causes another, causes an object(someone pushes someone through a glass window)
2: def. wrongly remains even if entered rightfully(getting too drunk in a bar and aske to leave) 3: def. fails to remove an object they had a duty to remove (tree) 4: def. enters a "restructed area" in a place where they had a right to be present ("employees only") |
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Trespass to land
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pollution
water diversion/obstruction interference with right of way building on anothers property |
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Defences against intentional torts against property
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emergency situation/necessity
consent plaintiff had not right to posses land/building |
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tresspass to personal property
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interference with use, condition, value
dispossession intermeddle impair |
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dispossession
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deprive owner of possession for a significant period of time
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intermeddle
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phy. contact with property
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impair
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damage or harm to condition,quality, or value of property (civil side to property)
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conversion
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unlawful taking or exercising control over property of another
initial taking=trespass; retention=conversion Civil side of theft |
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defenses
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innocent/god faith taking: NOT a defence
emergency situation/necessity Consent plaintiff ahd no right to possess property |
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invasion of privacy
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1: intrusion upon plaintiffs private affairs( peeping tom)
2: public disclosure of embarrassing facts abt the plaintiff (things you dont want the public to know) 3:publicity that places the def. in a false light (the tone of an article makes it sound like something its not) 4: Someone uses your pic or signature with/out your permission |
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business tort
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wrongful interference with anothers business rights
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wrongful interference with a contractual relationship
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one party wrongfully induces another to break a contract
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wroungful interference with a business relationship
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the use of violent or non-violent means to drive away competitors customers and steer them to the defendants business
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appropriation
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use of anohter name, likeness, or other char
without permission for the benefit of the defendant |
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slander of quality
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falsely stating a product is not what it claims to be
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slander of title
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falsely casting doubt upon anothers ownership of the property
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federal lanham act
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prohibits false, misleading advertising.
Regulated by the FTC |
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Racketeering influenced and corrupt organizations act (RICO)
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if one commits two or more offenses under RICO= guilty of racketeering activity
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purpose of RICO
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combat entrance of organized crime in business
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RICO requires
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a pattern of activities over a period of time
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Prohibited activites under RICO
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1:using income from racketeering to buy into a bus.
2:acquire an interest in a bus. through racketeering acts 3:conductng in a business using racketeering acts 4: conspire to do any of the above |
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Damages to RICO
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1:Divesture of def's. interest in bus.
2: dissolution of the business 3: triple damages 2 one who suffers bus. damages |
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Tort
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civil wrong/injury
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basis of all tort law
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a wrong + compensation
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3 types of torts
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negligences
strict liabilities (poisons, neclear waste) Intentional torts |
