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Legal Business 1 > Ch 4 > Flashcards

Ch 4 Flashcards

0
Q

Defendant

A

Party sued

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1
Q

Plaintiff

A

Party who files civil action

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2
Q

Counterclaim

A

Filed when defendant wants to sue the plaintiff

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3
Q

Counter plaintiff

Counter defendant

A

When a counter claim occurs, the plaintiff becomes the
counter defendant and the defendant becomes the counter
Plaintiff

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4
Q

Third party defendants

A

Someone has a liability to defendant when defendant

Has liability to plaintiff

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5
Q

Standing to sue

A

Plaintiff established he Is entitled to have court decide

Dispute

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6
Q

2 requirements to establish standing to sue

A

1 plaintiff must allege litigation involves case or controversy

2 plaintiff must allege personal stake in resolution
Showing adversarial relationship btw plaintiff and defendant

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7
Q

Personal jurisdiction

A

Court has authority to all parties in case

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8
Q

Summons

A

Notice to appear in court

Gives court personal jurisdiction over defendant

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9
Q

No case can proceed forward without existence of both…

A

Subject matter and personal jurisdiction

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10
Q

Long-arm statutes

A

Provide for service of process beyond state boundaries

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11
Q

Service of process

A

Mail delivered summons

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12
Q

3 valid reasons for long-arm statutes

A

1 defendant has committed tort within the state
2 owns property within state that is subject matter of lawsuit

3 has entered into contract within state or transacted the
Business that is subject matter of lawsuit within state

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13
Q

Extradition

A

Process of requesting and transporting prisoner from

One state to another

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14
Q

Class-action suit

A

One or more plaintiffs file suit on their own behalf and on

Behalf of all other persons who may have similar claim

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15
Q

8 parts of pretrial procedure

A

1 plaintiff files complaint
2 complaints and summons served on defendant
3 defendant files motion or answer with possible
counterclaim and defenses
4 court rules on motions
5 plaintiff files reply to answer
6 attorneys conduct discovery procedures
7 parties may file motions for summary judgement or
Judgement on pleadings
8 court conducts pretrial conference

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16
Q

Sample complaint, what 3 things does it explain?

A

1 sets parties (plaintiff and defendant)

2 explains how court has subject matter jurisdiction over
The case

3 explains how parties can be served

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17
Q

Pleadings

A

Legal documents filed with court to begin litigation process

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18
Q

Complaint, where is it delivered

A

Lawsuits begin with plaintiff filing a pleading with court clerk

Contains allegations by plaintiff and request for relief sought

It’s then delivered to the defendant

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19
Q

Answer

A

Written response to the complaint by the defendant

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20
Q

Default

A

Occurs if defendant doesn’t respond to the complaint

The court enters an order of default granting plaintiff
Relief sought by complaint

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21
Q

Discovery process

A

Designed to ensure that results of lawsuits are based on
merits of the controversy;

not based on skill or cunning Of the counsel

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22
Q

What does discovery ensure?

What does this usually lead to?

A

Ensures that each side is fully aware of all facts involved
In case and intentions of parties

Usually leads to settlements and avoiding actual court

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23
Q

Method of discovery: Interrogatories

A

Present series of questions to opposite parties must be
Answered by party receiving them

Least expensive method of discovery

24
Q

Request for production of documents

A

After answers to interrogatories are received, either party
Might ask the other to produce these specific documents

Very important to the lawsuit’s outcome

25
Q

Method of discovery: depositions

Note: most expensive discovery method

A

Lawyers ask oral response of all potential witnesses
And all spoken words are recorded by court reporter

Leads to written transcript as permanent record for
testimony

26
Q

Request for an admission, 2) what is its overall effect

A

Occurs After some or all methods of discovery are used

either Party may request the other to admit certain issues
Presented in pleadings are no longer relevant

2) narrows issues, makes settlement more likely

27
Q

The usual rule for allowing discovery

A

As long as info sought leads to admissible evidence during

Trial

28
Q

Litigation hold

A

Preserves all relevant data from being destroyed, altered

Or mutilated

29
Q

Filing a motion with the court

A

When question of law is at issue, parties seek pretrial determination of their rights

30
Q

Statute of limitations

A

Defendant moves to dismiss suit for reasons as matter

Of law prevent plaintiff from winning his suit

31
Q

Motion for Judgement of pleadings

A

Asks judge to decide case based solely on complaint and

Answer

32
Q

Motion for summary judgement

A

Seeks similar conclusion to litigation prior to trial

Party filing this motion is asking judge to base decision
Not only on pleadings, but other evidence

33
Q

Affidavits

A

Evidence presented in form of sworn statements

34
Q

Frivolous cases

A

Lawyers pay fine if case is determined to be frivolous

35
Q

Voir dire

A

Examination allows court and attorneys for each party to
Examine each individual juror for qualifications and ability
To be fair and impartial

36
Q

Peremptory challenge

A

No cause of reason needs to be given to excuse

prospective juror

37
Q

Motion for directed verdict (under rule 50: AKA Judgement as a Matter of Law)

A

Court can only direct for 1 party, if evidence establishes

As matter of law that party making motion is entitled to verdict

38
Q

Jury instructions, when do they occur? Define. Purpose

A

Following closing arguments

Judge acquaints jury with law applicable to case

Brings facts and law together in orderly manner

39
Q

10 steps of a trial

A

1 Voir dire - parties and their attorneys select jury
2 attorney’s present opening statements
3 plaintiff presents evidence through witnesses
4 defendant moves for directed verdict
5 defendant presents evidence through witnesses
6 attorney’s present closing arguments
7 court instructs jury on the law
8 jury deliberates and makes verdict
9Judge enters judgement on verdict
10 losing party files post trial motion

40
Q

Burden of truth (2 meanings depending on context), burden of persuasion

A

1 burden or responsibility person has to come forward with
Evidence on issue

2 responsibility person has to be persuasive to specific fact
(burden of persuasion)

41
Q

What can the burden of truth often determine?

A

Often determines outcome for one side or the other

42
Q

Beyond reasonable doubt

A

Burden of proof for criminal cases

Convince jury that defendant is guilty so jury has no
reasonable doubt

43
Q

2 standards for burden of proof in civil cases?

A

1 preponderance of evidence

2 clear and convincing proof

44
Q

What burden of proof standard is typically used in contract and tort cases?

A

Preponderance of evidence

45
Q

Preponderance of evidence

A

Achieved when greater weight of evidence in support

Of proposition than against it

46
Q

Clear and convincing proof

A

Requires more evidence than preponderance of evidence

And less than beyond a reasonable doubt

47
Q

Verdict

A

Decision of jury

48
Q

Judgement

A

Judges decision to be in favor of the verdict or not

49
Q

Judgement notwithstanding the verdict

A

Judge finds verdict is erroneous

50
Q

1 Appellant

2 Appellee

A

1 Appealing party

2 successful party in trial court

51
Q

1 Petitioner

2 respondent

A

1 party initiating petition for centiorari

2 other party in case

52
Q

7 steps of appellate review

A

1) party receiving adverse judgment files notice of appeal
2) parties file briefs in reviewing court
3) oral argument made in reviewing court
4) reviewing court announces decision
5) further review may be requested by petition to higher court
6) higher court allows or denies further review
7) final decision

53
Q

Brief

A

Filed by each party

Contain short description of case, factual summary,
Legal points and authorities, reason for decisions

54
Q

Oral argument

A

Specified amount of time attorney is given to orally to court
Their position on the case

55
Q

5 things lawyers must show to preserve argument for appeal?

A 
1 objection is made
2 in timely manner
3 challenging evidence on specific grounds
4 lower court's ruling was wrong
5 the error harmed your client
56
Q

Execution of judgment

A

Sheriff or marshal seizes some property if debtor, sells

It at public auction and applies proceeds to creditor’s claim

57
Q

Garnishment

A

Method of enforcement has portion of debtor’s wages

Paid to court, which then pays creditor

58
Q

Res judicata

A

Final decision of court

Conclusive on all issues between parties

Decided on appeal or time for appeal has expired

Legal Business 1 (25 decks)

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