Civil procedure embraces the processes by which (1) and (2) are presented to an adjudicated by trial courts. It includes the (3), (4) and (5) phases of civil litigation.
In federal courts, civil procedure is governed by rules promulgated by the (1) under authority delegated by (2). State legislatures have authorizes state courts to establish rules of civil procedure, replacing what was known as (3).
- US Supreme Court
- common law pleading
Plaintiffs and defendants are known as (1), and their rights are determined in accordance with the principles of (2). Civil procedure is the process that governs (3) of civil disputes.
- substantive law
- judicial resolution
Jurisdiction is conferred on courts either by (1) or (2). Venue is generally determined by where a (3) or where (4) is located.
- tort or breach of contract occurs
- land in controversy
5 examples of types of cases that have federal jurisdiction
- diversity of citizenship
- federal crimes
(1), (2) and (3) may become parties to civil lawsuits as plaintiffs or defendants. In certain litigation, the party who files a complaint is known as the (4) and the party against whom relief is sought is called the (5).
- government agencies
A lawsuit must specify the (1) and the (2). Usually this is damages, which can be (3), (4). (5) or (6).
- cause of action
- general (pain and suffering)
- special (lost wages, med expenses)
- nominal (small mount to recognize rights sans damages)
Three alternatives to damages are (1), (2) and (3).
- declatory relief (court settles a controversy)
- injunction (court prevents/terminates ongoing injury)
- specific performance (court orders fulfillment of a contract)
The purpose of the initial pleading is to demonstrate to the court that (1) and to inform the defendant of the (2) and the (3). In addition to the elements, the initial pleading must also contain a caption with the (4) and the (5).
- it has jurisdiction
- basis of the suit
- relief sought
- court where the suit is filed
- names of the parties
In federal court proceedings, a process may be served (1), but for state courts the process must be served (2). A (3), (4) or (5) usually accomplishes service of the complaint and summons.
- throughout the US
- within the state
- process server
Four types of service
- personal service (physically delivered to def)
- substituted service (served on somone on def’s behalf)
- long-arm (plaintiff sues a non-res who has transacted in plaintiff’s state)
- constructive service (notice in newspaper, copy sent to def’s last address–form of relief is restricted)
If a def. fails to respond, the clerk enters a (1) and the judge may enter a (2). A def. acting quickly might be able to reverse this by demonstrating (3) and a (4).
- default judgment
- excusable neglect for failure to respond
- meritorious defense
Before filing an answer, the def. may challenge (1) or the (2), or seek the dismiss the complaint on the ground that it does not state a (3). The plaintiff may be allowed to (4).
- the court’s jurisdiction
- service of process
- legal cause of action
- file an amended complaint
The answer (1) or (2) allegations and may include (3), such as statute of limitations or statute of frauds. He may also enter a (4) or (5).
- specific defenses
3 things a counterclaim could do
- defeat the plaintiff’s claim
- mitigate the amount of plaintiff’s damages
- result in the defendant recovering damages
Class action lawsuits are brought by parties who claim to represent a large group of (1) who share a (2) in seeking relief. These are a fairly new concept and are possible only when (3) is impracticable. These have become a major vehicle of (4), such as for improvements of prisons and injury from asbestos.
- unnamed persons
- common interest
- social and economic reform
(1) was rejected by the SC because the plaintiffs (women discriminated against) did not present a common question of law or fact.
- Wal-mart v. Dukes
Discovery allows inquiry into matters that may lead to relevant info concerning a (1) or (2). Revealing (3) or (4) information is limited by courts.
- “work product”
2 forms of discovery
Often discovery proceedings lead to (1). Usually depositions are used to (2) the witnesses but may sometimes be (3). If the discovery process becomes abusive, a judge may step in and issue a (4) limiting the scope.
- out-of-court settlements
- admitted as evidence
- protective order
Trial judges often call for a (1) to coordinate the progress of litigation and schedule and limit discovery. Once a case is ready, the trial judge may call for a (2).
- case management conference
2. pretrial conference
6 functions of a pretrial conference
- simplify issues to be tried
- obtain admissions of undisputed facts
- obtain stipulation as to genuineness of documentary evidence
- agree on the witnesses to be examined and exhibits to be admitted
- set time for presentation of evidence for each side
- explore possibility of a settlement
Most civil cases are either (1) or (2) before trial. Where there is no issue of material fact, parties may move for a (3) to terminate litigation and obtain a ruling in their favor.
- disposed of
- summary judgment
Despite protection of the (1), in many civil proceedings there is no provision for a jury trial. These include (2) and (3).
- 7th Amendment
- name change
The body of persons summoned to be jurors is the (1). From this six or 12 jurors are selected and asked a series of questions in (2). Lawyers may (3), or request for dismissal, any of the jurors. They can do this (4) or, for a limited number, (5)–without assigning a reason.
- voir dire
- “for cause”
Jurors may be excused based on (1), (2), or (3), but courts exercise discretion over the types of questions asked.
In (1) the SC held that juries could be composed of six people.
- Colgrove v. Battin
4 examples of challenges for cause
- jury as a whole excludes minorities
- close relationship with counsel or parties
- involvement with the case
- previously-formed opinion on case
Limits to peremptory challenges are (1) and (2), which have been assessed recently in the SC as violating the Equal Protection Clause of the 14th Amendment.
- racially based peremptory challenges
2. gender-based peremptory challenges
Sometimes (1) and (2) are waived during bench trials.
- opening statements
2. closing statements
It is the plaintiff’s task to effectively establish the case by a (1).
- preponderance of evidence
The cross-examiner is allowed to ask leading questions, but the scope of inquiry is generally limited to matters brought out on (1) or any (2), (3) or (4) of the witness.
- direct examination
In some states, if the defense proves the plaintiff was partially at fault, the claim can be defeated through (1); in others, the proof can mitigated damages awarded under the theory of (2).
- contributory negligence
2. comparative fault
An expert witness is one who by (1), (2), (3), (4) or (5) is qualified to present testimony and offer opinion on a particular subject.
The (1) followed the idea of “general acceptance” with regard to expert testimony; this was rejected in (2), in which the SC contended “general acceptance” was not necessary, but the burden of determining admissibility of expert testimony falls to the (3). Because this is not based on a (4), state courts have various rules regarding it.
- Frye test
- Daubert v. Merrell Dow Pharmaceuticals, Inc.
- trial judge
- constitutional provision
When the lawyer has completed presentation of the plaintiff’s case, he “rests.” At this point the defense may move for a (1), also called a (2), to dismiss the case by insufficient evidentiary support. If this is turned down, the defense proceeds, and the plaintiff may offer (3) which can in turn be (4).
- directed verdict
- involuntary dismissal
- rebuttal evidence
- rebutted by the defense
At the close of all evidence in a jury trial, it is customary for the judge to (1) to supplement standard (2). These help the jury understand how the (3) to the (4).
- confer with counsel
- jury instructions
- law applies
- specific legal issues
Closing arguments serve to help the jury (1) and (2) the evidence and draw inferences therefrom. Counsel may comment on the (3) and (4), but may not state personal beliefs about the merit of the case or refer to matters (5). Improper comments could result in a (6).
- weight of the evidence
- credibility of witnesses
- not introduced in evidence
When directed to deliberate, the jurors are escorted to their quarters by a (1). Sometimes the judge will order the jury (2), or to remain together until reaching a verdict. Sometimes the jury will ask a question mid-process; of they fail to reach a verdict, it is a (3) and a (4),
- court bailiff
- hung jury
Jury verdicts may be either (1) or (2). Once the verdict is announced, the losing party may ask the judge for a (3), which is rarely granted by has implications toward appeal. A judge may also (4) if it is not based on substantial factual basis.
- general (liability and flat damages)
- specific (answer questions such as percentage of liability to help determine damages)
- new trial based on a claim of error
- enter a judgment contrary to the jury’s verdict
Judges may take (1) of matters beyond argument and accepted without proof, such as the calendar and geographic boundaries, as well as (2), (3) and (4). This is (5), whether requested or not.
- judicial notice
- rules of procedure
- rules of evidence
An (1) is an assumption of fact that the law makes from the existence of another fact, although unproven by evidence. These can aid the party with the burden of proof, unless the other party can prove it wrong, in which case it is a (2),
- evidentiary presumption
2. rebuttable presumption
(1) consists of tangible items. (2) consists of sworn statements of witnesses, which make up most of the trial. (3) directly proves a fact and includes eyewitness testimony. Indirect evidence allows inference of a fact and usually consists of (4),
- Real evidence
- Testimonial evidence
- Direct evidence
- circumstantial evidence
2 standards to admissible evidence
(1) tends to prove or disprove a material fact. Trial judges have (2) over this. Where (3) would outweigh (4) of evidence, it is not admissible.
- Relevant evidence
- considerable discretion
- likely prejudice
- probative value
A witness, regardless of (1) or (2), who has the ability to understand the nature and obligation of (3), is presumed to be competent to testify. Trial judges have (4) over this.
- interest in the case
- taking an oath to tell the truth
- broad discretion
6 common types of privileged communications recognized by courts that may not be admissible
- attorney-client (except for expressed intents to commit crimes/frauds)
- marital (n/a to one spouse suing another, child abuse)
- clergy privilege (confessions by penitents)
- disclosure of trade secrets
Forensic experts make a (1) of testifying in court. They must present (2) and be (3). Unlike lay witnesses, experts may respond to (4) and offer (5).
- proper credentials
- received by the trial judge
- hypothetical questions
- opinions within the realm of their expertise
2 types of evidence generally not admitted into evidence
- hypnotically induced testimony
2. polygraph tests
Objections can be (1) and (2). Three examples of the latter are (3), (4) and (5).
- best evidence rule (best copies of paperwork must be produced–other copies may be objected to)
- opinion evidence of lay witnesses
5 exceptions to hearsay rules
- spontaneous or excited utterances
- dying declarations
- reputation and records
- business and public records
- statements made for medical diagnosis
2 purposes served by appellate courts
- error correction
Appellate review is designed to ensure that (1) has been accomplished under constitutional standards of (2). In some instances, a party desiring an appeal must first appeal to the (3), which is usually a (4).
- substantive justice
- due process
- trial court
- pro forma measure (a formality)
In appealing, first a (1) is filed within time guidelines, along with a fee unless invoking (2). Additional review beyond the generally automatically-granted appeal requires a (3) or something similar. The US SC looks for a (4) and follows the (5) in determining whether to review a case.
- notice of appeal
- in forma pauperis
- writ of certiorari
- substantial federal question
- rule of four
During the early stages of appeal, counsel may file (1) for a number of requests–extended deadlines, expedited consideration, etc. The (2) summarizes the legal posture and factual background of the case. The appellee may file a (3) to which the appellant may file a (4). These are persuasive documents filled with legal research.
- initial brief
- answer brief
- reply brief
- person filing an appeal
- responding party
- person filing for discretionary review
If an appellate court schedules an oral argument, counsel for both parties will (1) and (2).
- summarize their position
2. respond to questions from the bench
Appellate decisions are usually made by panels of (1); in intermediate courts these are determined by (2) from the entire bench of judges. The (3) is regarded as an essential part of the collegial process.
- three or more judges
- judicial conference
4 options for appellate outcomes
- reverse and remand
5 options for writing of opinions
- per curiam opinion (represents appellate court as a whole)
- opinion of the court (majority of judges, signed by one)
- concurring opinion (agrees, goes further into certain reasons)
- opinion concurring on judgment only
- dissenting opinion
Most decisions of appellate courts are published in books known as (1); these play an important part in (2) because they are often consulted for guidance. References to judicial decisions found in the reporters are called (3). The Supreme Court publishes in the (4); US Courts of Appeals publish in (5),
- the making of law
- United States Reports
- Federal Reporter
There are (1) regional reporters for opinions; Arizona falls within the (2). Opinions contain a (3), a brief summary of the case, and topically indexed (4), which describe the principles of law expounded by the court.
- Pacific Reporter
(1) are sometimes filed but rarely granted by appellate courts. Within these, the appellant can request an (2) which utilizes all the judges.
- motions for rehearing
2. en banc hearing
Within the (1) of appellate courts is the ability to issue writs, including (2), (3), and (4).
- original jurisdiction
- mandamus (requires lower court to take a certain action)
- prohibition (orders a lower court to cease exercising jurisdiction)
- habeas corpus
Lecture : (1) is the rules and standards for the courts to follow when adjudicating civil lawsuits. They are set for each (2). There are also (3) which apply differently to each court.
- Civil procedure
- local rules
Lecture : A complaint can have multiple (1) and must list (2). It may or may not include a (3) and includes a prayer for relief based on (4) (money) or (5) (fairness/justice),
- causes of action
- all defendants
- dollar amount
Lecture : 4 types of equity
- declaratory judgment
- specific performance
- mandatory injunction
Lecture : In AZ, a complaint may not be served by an (1) such as an attorney. A service or process (summons and complaint) must occur within (2) of filing the complaint, but if it is not, the court may (3) so the process can restart. Once served, the defendant has (4) to file an answer admitting or denying each allegation. AZ uses mostly (5) to serve process.
- interested party
- 120 days
- dismiss without prejudice
- 20 days
- private process servers
Lecture : In addition to an answer admitting or denying, the defendant may also answer (1); plead (2), which must be included in the answer or they cannot be brought up in court; file a motion for a more (3), which can buy time; or file a motion to dismiss due to (4).
- not enough info
- affirmative defenses (procedural rules such as statutes of limitations were not met)
- specific statement
- illegal cause of action
Lecture : 3 examples of acceptable personal service
- kid of suitable age (usually 14ish)
- secretary at a small company
Lecture : (1) is used when you can’t find the defendant, such as in paternity suits. In these, you must talk to the (2) to come up with a solution, such as certified mail.
- constructive service
Lecture : A complaint must demonstrate (1) and that it is filed within (2).
2. statutes of limitations
Lecture : (1) is the place you file; (2) is the power of the court to hear the case. (3) can change.
Lecture : There is no (1) and rules of civil procedure apply only to (2).
- federal common law
Lecture : (1) is pleading in detail; AZ is a (2) state and requires only notice of event and resulting suit.
- fact pleading
2. notice pleading
Lecture : In a jury trial, the jury decides (1) while the judge decides (2). In a (3), the judge decides both and attorneys tend to go into less detail. Not all matters allow jury trials, such as most (4). If a jury trial is requested in a (5), notice must be given in writing. If a jury trial is waived in a (6), notice must also be given.
- bench trial
- family law matters
- civil trial
- criminal trial
Lecture : Class actions are filed as (1) and (2) class action status. The famous Walmart discrimination case saw the (3) overruling the 9th circuit about whether the 6 women could represent all women discriminated against.
- Supreme Court
In discovery, you can ask anything but (1) and (2) are limited in length. Additional time in a depo may be requested for (3). In a depo the lawyer may object, which serves no purpose other than to (4). (5) must be very specific.
- good cause
- preserve the objection for trial
- motions to produce documents
Lecture : In federal court, voir dire is usually done by (1), In state court, the judge turns it over to (2). Sometimes (3) are brought in for this portion of jury selection as well. A (4) means there are enough people in the jury. At this point, the attorneys can scratch off a number of names for no reason, called (5).
- pass for cause
- peremptory challenge
Lecture : (1) may not contain leading questions. There is an exception made for (2). (3) isn’t necessary and may be waived to give the jury the illusion that the witness did not hurt your case.
- Direct examination
- hostile witnesses.
Lecture : Courts must be (1) of witnesses and exhibits. These must be (2) and (3). All exhibits are (4), become part of a file and (5).
- notified ahead of time
- go to the jury room
Lecture: All evidence is evaluated for whether it is too (1). Things like what time it gets light, who the president is, laws and procedure only have to be introduced do not have to be proved–this is called (2). One example of the best evidence rule coming into effect is (3).
- judicial notice
- foreclosures questioned because no promissory note
Lecture : Courts allow one witness per issue to avoid (1). After the plaintiff rests, the def. can contend the case was not proved and move for judgment in a (2). In a (3) the defense can say the jury did not apply the law properly and move of a change of verdict.
- dualing witnesses
- directed verdict
- judgment not withstanding verdict (NOV)