Chapter 3 Flashcards by Katie McKenna

Parties to a Lawsuit:

(1) Plaintiff
(2) Defendant
(3) Prosecutor [criminal cases only]
(4) Judge
(5) Jury

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Files the complaint

Plaintiff

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Responds to complaint in defense of self

Defendant

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Courtroom moderator; gives verdict (decision) if no jury

Judge

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Citizens who listen, observe, and ultimately make a verdict

Jury

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Plaintiff vs. Defendant

Civil Case

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State vs. Defendant

Criminal Case

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Not guaranteed right to a jury

Civil Case

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Guaranteed right to a jury

Criminal Case

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Formal documents filed with the court stating the parties positions

Pleading

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Complaint filed by Plaintiff

1st Pleading

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Established subject matter jurisdiction and personal jurisdiction
Documents the facts related to plaintiff’s complaint
Lists remedies sought by plaintiff

1st Pleading

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Defendant must respond to Plaintiff’s complaint by

(1) Motion to Dismiss the Case
(2) Reply - Admit/ Deny the facts
(3) Counterclaim

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Defendant claims court does not have proper SJM or PJ to hear case

Motion to Dismiss Case

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Defendant admits to some of the facts presented in Plaintiff’s complaint, but denies the other of the facts presented are accurate

Reply - Admit/ Deny Facts

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Defendant counter-complaint against Plaintiff (essentially a second lawsuit)

Counterclaim

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Discovery Phase (Tools to Obtain Evidence):

(1) Deposition
(2) Interrogatories
(3) Expert Witnesses

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In person, live questioning of a witness recorded by a court reporter. Not done in court, but usually in an office setting.

Deposition

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Written questions submitted by one or both of the parties. Must be answered and signed as truth under oath

Interrogatories

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Person invited to testify at trial because of specular knowledge in a particular field relevant to case

Expert Witnesses

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Establishes whether an expert witness is a qualified expert. If this doesn’t happen and the case makes it up to the Supreme Court, then the case is done.

Daubert Hearing

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Discovery Phase

(1) Order of Production of Documents
(2) Request for Admissions of Truth
(3) Request for Mental/ Physical Examination

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Forced sharing of emails, medical bills, business record, videos, photos, etc.

Order of Production of Documents

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Parties admit or deny that certain elements of the case are true so as to mitigate what needs to be proven in court.

Request for Admissions of Truth

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Order a party to submit a medical or physical exam

Request for Mental/ Physical Examination

Sanctions (punishments) for failure to respond to discovery requests:

(1) Default Judgement | (2) Contempt of Court

Automatic victory to other party

Default Judgement

Jail time or fines

Contempt of Court

Pretrial Stage

Summary Judgement

- Requested by one of the parties before case goes to trial that the verdict be granted in their favor because the evidence recovered during discovery point to no genuine issue of material fact - Asking to rule in favor without going to trial - Losing party can always file an appeal on this

Summary Judgement (Motion happens only up to the start of trial)

- Right to a jury in some civil cases - Always a right in criminal cases - Generally a group of 12 citizens, but could be less based on jurisdiction statutory law

Jury Selection (Voir Dire)

Attorney allowed 2 types of challenges to reject prospective jurors:

(1) Challenge for Cause | (2) Peremptory Challenge

- Have to document when questioning the juror and why they are questioning them - Can have as many as attorneys want

Challenge for Cause

- Dismiss Jurors without any Justification - Each attorney only has a few of these - Can not be race based - Don't have to give a reason for dismissal

Preemptory Challenge

Trial Steps

(1) Opening Statements (2) Examination of Witnesses/ Evidence Introduced (3) Closing Arguments (4) Motion for Detected Verdict (5) Verdict (6) Judgement Notwithstanding Verdict

Examination of Witnesses/ Introduce Evidence

(1) Direct Exam (2) Cross Exam (3) Redirect (4) Re-cross (5) REPEAT with different people

Plaintiff's attorney questions plaintiff (1st)

Direct Exam

Defendant's attorney questions plaintiff (2nd)

Cross Exam

Plaintiff's attorney re-questions plaintiff (3rd) (confined to matters dealt with in the cross exam)

Redirect

Defendant's attorney re-questions plaintiff (4th) (confined to matters dealt with redirect)

Re-Cross

Made before case is handed to the jury requesting the judge to rule in favor of the party making the emotion (because no reasonable jury could find for opposing party)

Motion for Directed Verdict

Preponderance of the evidence (tip of the scale in favor of Plaintiff or Defendant)

Civil Case Verdict

Beyond a reasonable doubt (that defendant is guilty)

Criminal Case Verdict

Made after the verdict is issued, asking the judge to overrule the jury's verdict if clear that the law was applied improperly

Judgement Notwithstanding Verdict

Remedies in Civil Litigation

(1) Monetary Damages | (2) Equitable Remedies

Monetary Damages

(1) Compensatory | (2) Punitive

Compensate the victim for whatever damages they covered

Compensatory

There to punish the wrongdoer (Usually DUI cases do this)

Punitive

Equitable Remedies

(1) Specific Performance | (2) Injunction

- Requires offending party to do what they had promised - Contract in place already - Transfer title to art, rare books, antiques, baseball cards

Specific Performance

- Direct somebody to do or not do something - No contract in place - Example: pay child support

Injunction

Appellate Stage Decisions by the Court

(1) Majority Opinion (2) Concurring Opinion (3) Dissenting Opinion

- Documents the winning party - Always have majority opinions - 2 or more judges in a 3-judge panel must make up the majority opinion - 5 or more judges in the Supreme Court make up the majority opinion

Appellate Stage Majority Opinion

- One or more of the majority agrees with the holding but may have a different reason as to why they feel that plaintiff won - Still agree with the verdict

Appellate Stage Concurring Opinion

- When 1 or more judges disagrees with the majority - Document a disagreement but doesn't change the verdict - Useful for litigations with similar arguments

Appellate Stage Dissenting Opinion

Appellate Stage Outcomes of Decisions

(1) Affirm (2) Modify (3) Reverse (4) Remand

Appellate court agrees with the lower court's decision

Appellate Stage Affirm

Appellate court agrees the law was applied properly but think there are things that need to be verified

Appellate Stage Modify

Appellate court disagrees with the district court

Appellate Stage Reverse

Send verdict back to lower court to relitigate that part and decide if the verdict decided was proper

Appellate Stage Remand

- If no further appeal is available, judgement is final and binding

Enforcing Judgement

Court orders an official (sheriff) to satisfy the judgement through an act (such as seizure of property, garnishment of wages, etc.)

Writ of Execution

- Most widely recognized form of alternative dispute resolution - Much faster than a trial

Arbitration

- Neutral 3rd party that makes a binding decision - Decision is final and generally not appealable - Exception: Evidence of corruption, fraud, serious procedural misconduct, exceeding power

Arbitrator

- Least formal form of ADR - Parties settle matters between themselves, usually with lawyers - Settlement is usually drafter into a contract, which is enforceable by the courts

Negotiation

Neutral 3rd person that helps two parties come to an agreement, but the mediator's recommendations are not binding

Mediator

- Whatever a mediator hears during the process is completely confidential - If they go to court, mediator can not be witness

Mediation