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44 Cards in this Set
- Front
- Back
What does the law of civil procedure cover? |
The stages of a civil action and the procedural devices which correspond to these stages |
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What is the first stage of a civil action? |
Deciding where to file suit |
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During the first stage of a civil action, a potential plaintiff must consider what about a court? |
Subject matter jurisdiction, personal jurisdiction, and venue |
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When does a court have subject matter jurisdiction? |
If the const. and statutes under which the court operates have conferred upon it the power to decide the plaintiff's case |
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Personal jurisdiction? |
If the constitution , statutes, and cases which govern the court have given the court the power to issue an order or decision which affects the defendent |
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When is a court the "proper venue"? |
When the statutory rules that govern venue direct that the action be tried in that court |
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What is the second stage of a civil action? |
Pretrial stage |
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Included in pretrial stage? |
Pleading, pretrial motions, joining of parties, discovery, pretrial conference, and disposition without trial |
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What is pleading? |
The process by which the parties provide each other with written notice of their respective claims and defenses |
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Two basic pleadings? |
Complaint (from plaintiff) and answer (reply from defendant) |
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Pretrial motions? |
Devices used by a party (usually by def.) to raise objection and/or request clarification of allegations |
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What is discovery? |
The process through which the parties obtain facts and info about the case from each other |
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Purpose of pretrial conferences? |
To plan and coordinate the discovery process, schedule dates, clarify issues, and/or settle all or part of the case before the trial date arrives |
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Devices for disposing issues? |
Voluntary dismissal, involuntary dismissal, default judgments, motion for judgment on the pleadings, and summary judgment |
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What is the third stage of a civil action? |
The trial itself |
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Which amendment to the U.S. Const. governs the right to a jury trial? |
The seventh amendment |
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What is a jury pool? |
A group of potential jurors, selected after questioning, on their capability of reaching unbiased and fair decisions on issues of cases |
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During trial, is the evidence always presented in specific order? |
Yes, always. |
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What is the correct trial procedure? |
P and D each have an opportunity to give opening statements, P presents his case, D presents his case. Then, each party an opportunity to rebut the opposing case. After all evidence is presented, closing arguments are made from both parties, followed by the judge instructing the jurors as to the law applying to the case. Finally, the jurors deliberate and reach a verdict. |
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Motion for directed verdict? |
Motion for judgment as a matter of law ( asks the court to render a judgment on some or all issues in the case without sending these issues to the jury) |
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Motion for judgment notwithstanding the verdict? |
The renewed motion for judgment as a matter of law (party asks the judge to overturn the jury's decision) |
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Motion for a new trial? |
Motion that the party move, either before or after the verdict, that the judge grant the party a new trial |
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Three forms of verdict? |
General verdict, general verdict with interrogatories, and special verdict |
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What is a judgment? |
The final decision in the case and states the relief, if any, that the parties will be granted based on the jury's verdict |
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What is the fourth and (usually) final stage of a legal action? |
Enforcement of the judgment and the effect of the judgment on any future litigation |
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Litigation? |
Any lawsuit or other resort to the courts to determine a legal question or matter |
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Final judgment? |
Resolves the parties' dispute and establishes their respective rights and responsibilities (states whether the parties are entitled to the relief they have requested in their pleadings |
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Declaratory judgment? |
A final judgment which resolves a controversy which the parties are having about their respective legal rights and obligations but does not award any relief as a consequence of the court's decision |
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Default judgment? |
A final judgment rendered when the defendant fails to appear (in person or by a pleading) in the action and defend the claims brought against him |
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Interlocutory judgment? |
Judgment on an issue in the case which is granted while the litigation of an action is still in progress (only an intermediate judgment and is not a final decision in the case; generally not appealable) |
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Types of relief (requests by P, D, or both) granted by judge? |
Damages and equitable relief |
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What are damages? |
Monetary compensation awarded to a party who has suffered an injury to his person, his property, or his legal rights because of the unlawful conduct of another person |
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Compensatory damages? |
Awarded to compensate a party for his loss |
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Punitive damages? |
Awarded to a party to punish an individual for his unlawful conduct |
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What is equitable relief? |
In essence, non-monetary relief; awarded when monetary relief is an inadequate remedy for a party's injuries |
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Examples of equitable relief? |
Injunctions, specific performance, reformation, accountings, and partition actions |
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Injunction? |
A court order which commands a party to stop engaging in a specified activity or to remedy a wrong or injury (ex. temporary restraining order) |
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Specific performance? |
Requires the performance of a contract which a party has breached according to its exact terms |
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Reformation? |
Used to correct a written contract to reflect the true agreement between the parties to the contract |
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Accountings? |
Equitable proceedings undertaken to determine the amount of money owed to the plaintiff by the defendant |
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Partition actions? |
Actions to divide lands held by joint tenants or tenants in common in land |
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Pending fifth stage? |
The appeal process |
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How is something appealable? |
The judgment must be final |
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Who sees appeals? |
The appellate court (the court will review the trial judge's rulings on the law and review the verdict; based on its analysis, the court may affirm or reverse the judgment of the lower court, and sometimes the case altogether |