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Flashcards in Ch 4 Deck (59)
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Plaintiff

Party who files civil action

1

Defendant

Party sued

2

Counterclaim

Filed when defendant wants to sue the plaintiff

3

Counter plaintiff

Counter defendant

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

4

Third party defendants

Someone has a liability to defendant when defendant
Has liability to plaintiff

5

Standing to sue

Plaintiff established he Is entitled to have court decide
Dispute

6

2 requirements to establish standing to sue

1 plaintiff must allege litigation involves case or controversy

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

7

Personal jurisdiction

Court has authority to all parties in case

8

Summons

Notice to appear in court

Gives court personal jurisdiction over defendant

9

No case can proceed forward without existence of both...

Subject matter and personal jurisdiction

10

Long-arm statutes

Provide for service of process beyond state boundaries

11

Service of process

Mail delivered summons

12

3 valid reasons for long-arm statutes

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

13

Extradition

Process of requesting and transporting prisoner from
One state to another

14

Class-action suit

One or more plaintiffs file suit on their own behalf and on
Behalf of all other persons who may have similar claim

15

8 parts of pretrial procedure

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

16

Sample complaint, what 3 things does it explain?

1 sets parties (plaintiff and defendant)

2 explains how court has subject matter jurisdiction over
The case

3 explains how parties can be served

17

Pleadings

Legal documents filed with court to begin litigation process

18

Complaint, where is it delivered

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

19

Answer

Written response to the complaint by the defendant

20

Default

Occurs if defendant doesn't respond to the complaint

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

21

Discovery process

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

not based on skill or cunning Of the counsel

22

What does discovery ensure?

What does this usually lead to?

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

23

Method of discovery: Interrogatories

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

Least expensive method of discovery

24

Request for production of documents

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

Method of discovery: depositions

Note: most expensive discovery method

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

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

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

The usual rule for allowing discovery

As long as info sought leads to admissible evidence during
Trial

28

Litigation hold

Preserves all relevant data from being destroyed, altered
Or mutilated

29

Filing a motion with the court

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

30

Statute of limitations

Defendant moves to dismiss suit for reasons as matter
Of law prevent plaintiff from winning his suit

31

Motion for Judgement of pleadings

Asks judge to decide case based solely on complaint and
Answer

32

Motion for summary judgement

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

Affidavits

Evidence presented in form of sworn statements

34

Frivolous cases

Lawyers pay fine if case is determined to be frivolous

35

Voir dire

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

36

Peremptory challenge

No cause of reason needs to be given to excuse
prospective juror

37

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

Court can only direct for 1 party, if evidence establishes
As matter of law that party making motion is entitled to verdict

38

Jury instructions, when do they occur? Define. Purpose

Following closing arguments

Judge acquaints jury with law applicable to case

Brings facts and law together in orderly manner

39

10 steps of a trial

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

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

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

What can the burden of truth often determine?

Often determines outcome for one side or the other

42

Beyond reasonable doubt

Burden of proof for criminal cases

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

43

2 standards for burden of proof in civil cases?

1 preponderance of evidence

2 clear and convincing proof

44

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

Preponderance of evidence

45

Preponderance of evidence

Achieved when greater weight of evidence in support
Of proposition than against it

46

Clear and convincing proof

Requires more evidence than preponderance of evidence
And less than beyond a reasonable doubt

47

Verdict

Decision of jury

48

Judgement

Judges decision to be in favor of the verdict or not

49

Judgement notwithstanding the verdict

Judge finds verdict is erroneous

50

1 Appellant

2 Appellee

1 Appealing party

2 successful party in trial court

51

1 Petitioner

2 respondent

1 party initiating petition for centiorari

2 other party in case

52

7 steps of appellate review

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

Brief

Filed by each party

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

54

Oral argument

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

55

5 things lawyers must show to preserve argument for appeal?

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

Execution of judgment

Sheriff or marshal seizes some property if debtor, sells
It at public auction and applies proceeds to creditor's claim

57

Garnishment

Method of enforcement has portion of debtor's wages
Paid to court, which then pays creditor

58

Res judicata

Final decision of court

Conclusive on all issues between parties

Decided on appeal or time for appeal has expired