Chapter 9 - Civil Procedure, Evidence, and the Appellate Process - Concepts

Question 1

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.

Answer 1

1. claims
2. defenses
3. pretrial
4. trial
5. post-trial

Question 2

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).

Answer 2

1. US Supreme Court
2. Congress
3. common law pleading

Question 3

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.

Answer 3

1. parties
2. substantive law
3. judicial resolution

Question 4

Jurisdiction is conferred on courts either by (1) or (2). Venue is generally determined by where a (3) or where (4) is located.

Answer 4

1. constitution
2. statute
3. tort or breach of contract occurs
4. land in controversy

Question 5

5 examples of types of cases that have federal jurisdiction

Answer 5

1. copyrights/patents
2. admiralty/maritime
3. bankruptcy
4. diversity of citizenship
5. federal crimes

Question 6

(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).

Answer 6

1. Individuals
2. corporations
3. government agencies
4. petitioner
5. respondent

Question 7

A lawsuit must specify the (1) and the (2). Usually this is damages, which can be (3), (4). (5) or (6).

Answer 7

1. cause of action
2. relief
3. general (pain and suffering)
4. special (lost wages, med expenses)
5. nominal (small mount to recognize rights sans damages)
6. punitive

Question 8

Three alternatives to damages are (1), (2) and (3).

Answer 8

1. declatory relief (court settles a controversy)
2. injunction (court prevents/terminates ongoing injury)
3. specific performance (court orders fulfillment of a contract)

Question 9

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).

Answer 9

1. it has jurisdiction
2. basis of the suit
3. relief sought
4. court where the suit is filed
5. names of the parties

Question 10

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.

Answer 10

1. throughout the US
2. within the state
3. marshal
4. sheriff
5. process server

Question 11

Four types of service

Answer 11

1. personal service (physically delivered to def)
2. substituted service (served on somone on def’s behalf)
3. long-arm (plaintiff sues a non-res who has transacted in plaintiff’s state)
4. constructive service (notice in newspaper, copy sent to def’s last address–form of relief is restricted)

Question 12

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).

Answer 12

1. default
2. default judgment
3. excusable neglect for failure to respond
4. meritorious defense

Question 13

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).

Answer 13

1. the court’s jurisdiction
2. service of process
3. legal cause of action
4. file an amended complaint

Question 14

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).

Answer 14

1. admits
2. denies
3. specific defenses
4. counterclaim
5. cross-claim

Question 15

3 things a counterclaim could do

Answer 15

1. defeat the plaintiff’s claim
2. mitigate the amount of plaintiff’s damages
3. result in the defendant recovering damages

Question 16

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.

Answer 16

1. unnamed persons
2. common interest
3. joinders
4. social and economic reform

Question 17

(1) was rejected by the SC because the plaintiffs (women discriminated against) did not present a common question of law or fact.

Answer 17

1. Wal-mart v. Dukes

Question 18

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.

Answer 18

1. claim
2. defense
3. “work product”
4. privileged

Question 19

2 forms of discovery

Answer 19

1. interrogatories

2. depositions

Question 20

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.

Answer 20

1. out-of-court settlements
2. impeach
3. admitted as evidence
4. protective order

Question 21

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).

Answer 21

1. case management conference

2. pretrial conference

Question 22

6 functions of a pretrial conference

Answer 22

1. simplify issues to be tried
2. obtain admissions of undisputed facts
3. obtain stipulation as to genuineness of documentary evidence
4. agree on the witnesses to be examined and exhibits to be admitted
5. set time for presentation of evidence for each side
6. explore possibility of a settlement

Question 23

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.

Answer 23

1. settled
2. disposed of
3. summary judgment

Question 24

Despite protection of the (1), in many civil proceedings there is no provision for a jury trial. These include (2) and (3).

Answer 24

1. 7th Amendment
2. name change
3. adoption

Question 25

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.

Answer 25

1. venire
2. voir dire
3. challenge
4. “for cause”
5. “peremptorily”

Question 26

Jurors may be excused based on (1), (2), or (3), but courts exercise discretion over the types of questions asked.

Answer 26

1. attitudes
2. background
3. personalities

Question 27

In (1) the SC held that juries could be composed of six people.

Answer 27

1. Colgrove v. Battin

Question 28

4 examples of challenges for cause

Answer 28

1. jury as a whole excludes minorities
2. close relationship with counsel or parties
3. involvement with the case
4. previously-formed opinion on case

Question 29

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.

Answer 29

1. racially based peremptory challenges

2. gender-based peremptory challenges

Question 30

Sometimes (1) and (2) are waived during bench trials.

Answer 30

1. opening statements

2. closing statements

Question 31

It is the plaintiff’s task to effectively establish the case by a (1).

Answer 31

1. preponderance of evidence

Question 32

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.

Answer 32

1. direct examination
2. interest
3. bias
4. motive

Question 33

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).

Answer 33

1. contributory negligence

2. comparative fault

Question 34

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.

Answer 34

1. knowledge
2. skill
3. experience
4. training
5. education

Question 35

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.

Answer 35

1. Frye test
2. Daubert v. Merrell Dow Pharmaceuticals, Inc.
3. trial judge
4. constitutional provision

Question 36

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).

Answer 36

1. directed verdict
2. involuntary dismissal
3. rebuttal evidence
4. rebutted by the defense

Question 37

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).

Answer 37

1. confer with counsel
2. jury instructions
3. law applies
4. specific legal issues

Question 38

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).

Answer 38

1. recall
2. evaluate
3. weight of the evidence
4. credibility of witnesses
5. not introduced in evidence
6. mistrial

Question 39

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),

Answer 39

1. court bailiff
2. sequestered
3. hung jury
4. mistrial

Question 40

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.

Answer 40

1. general (liability and flat damages)
2. specific (answer questions such as percentage of liability to help determine damages)
3. new trial based on a claim of error
4. enter a judgment contrary to the jury’s verdict

Question 41

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.

Answer 41

1. judicial notice
2. laws
3. rules of procedure
4. rules of evidence
5. discretionary

Question 42

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),

Answer 42

1. evidentiary presumption

2. rebuttable presumption

Question 43

(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),

Answer 43

1. Real evidence
2. Testimonial evidence
3. Direct evidence
4. circumstantial evidence

Question 44

2 standards to admissible evidence

Answer 44

1. relevancy

2. competency

Question 45

(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.

Answer 45

1. Relevant evidence
2. considerable discretion
3. likely prejudice
4. probative value

Question 46

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.

Answer 46

1. age
2. interest in the case
3. taking an oath to tell the truth
4. broad discretion

Question 47

6 common types of privileged communications recognized by courts that may not be admissible

Answer 47

1. attorney-client (except for expressed intents to commit crimes/frauds)
2. marital (n/a to one spouse suing another, child abuse)
3. clergy privilege (confessions by penitents)
4. accountant/client
5. physician/patient
6. disclosure of trade secrets

Question 48

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).

Answer 48

1. specialty
2. proper credentials
3. received by the trial judge
4. hypothetical questions
5. opinions within the realm of their expertise

Question 49

2 types of evidence generally not admitted into evidence

Answer 49

1. hypnotically induced testimony

2. polygraph tests

Question 50

Objections can be (1) and (2). Three examples of the latter are (3), (4) and (5).

Answer 50

1. general
2. specific
3. hearsay
4. best evidence rule (best copies of paperwork must be produced–other copies may be objected to)
5. opinion evidence of lay witnesses

Question 51

5 exceptions to hearsay rules

Answer 51

1. spontaneous or excited utterances
2. dying declarations
3. reputation and records
4. business and public records
5. statements made for medical diagnosis

Question 52

2 purposes served by appellate courts

Answer 52

1. error correction

2. lawmaking

Question 53

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).

Answer 53

1. substantive justice
2. due process
3. trial court
4. pro forma measure (a formality)

Question 54

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.

Answer 54

1. notice of appeal
2. in forma pauperis
3. writ of certiorari
4. substantial federal question
5. rule of four

Question 55

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.

Answer 55

1. motions
2. initial brief
3. answer brief
4. reply brief

Question 56

1. person filing an appeal
2. responding party
3. person filing for discretionary review

Answer 56

1. appellant
2. appellee
3. petitioner

Question 57

If an appellate court schedules an oral argument, counsel for both parties will (1) and (2).

Answer 57

1. summarize their position

2. respond to questions from the bench

Question 58

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.

Answer 58

1. three or more judges
2. lot
3. judicial conference

Question 59

4 options for appellate outcomes

Answer 59

1. dismissal
2. affirm
3. reverse
4. reverse and remand

Question 60

5 options for writing of opinions

Answer 60

1. per curiam opinion (represents appellate court as a whole)
2. opinion of the court (majority of judges, signed by one)
3. concurring opinion (agrees, goes further into certain reasons)
4. opinion concurring on judgment only
5. dissenting opinion

Question 61

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),

Answer 61

1. reporters
2. the making of law
3. citations
4. United States Reports
5. Federal Reporter

Question 62

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.

Answer 62

1. seven
2. Pacific Reporter
3. syllabus
4. headnotes

Question 63

(1) are sometimes filed but rarely granted by appellate courts. Within these, the appellant can request an (2) which utilizes all the judges.

Answer 63

1. motions for rehearing

2. en banc hearing

Question 64

Within the (1) of appellate courts is the ability to issue writs, including (2), (3), and (4).

Answer 64

1. original jurisdiction
2. mandamus (requires lower court to take a certain action)
3. prohibition (orders a lower court to cease exercising jurisdiction)
4. habeas corpus

Question 65

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.

Answer 65

1. Civil procedure
2. state
3. local rules

Question 66

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),

Answer 66

1. causes of action
2. all defendants
3. dollar amount
4. law
5. equity

Question 67

Lecture : 4 types of equity

Answer 67

1. declaratory judgment
2. specific performance
3. injunction
4. mandatory injunction

Question 68

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.

Answer 68

1. interested party
2. 120 days
3. dismiss without prejudice
4. 20 days
5. private process servers

Question 69

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).

Answer 69

1. not enough info
2. affirmative defenses (procedural rules such as statutes of limitations were not met)
3. specific statement
4. illegal cause of action

Question 70

Lecture : 3 examples of acceptable personal service

Answer 70

1. spouse
2. kid of suitable age (usually 14ish)
3. secretary at a small company

Question 71

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.

Answer 71

1. constructive service

2. judge

Question 72

Lecture : A complaint must demonstrate (1) and that it is filed within (2).

Answer 72

1. jurisdiction

2. statutes of limitations

Question 73

Lecture : (1) is the place you file; (2) is the power of the court to hear the case. (3) can change.

Answer 73

1. venue
2. jurisdiction
3. venue

Question 74

Lecture : There is no (1) and rules of civil procedure apply only to (2).

Answer 74

1. federal common law

2. states

Question 75

Lecture : (1) is pleading in detail; AZ is a (2) state and requires only notice of event and resulting suit.

Answer 75

1. fact pleading

2. notice pleading

Question 76

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.

Answer 76

1. fact
2. law
3. bench trial
4. family law matters
5. civil trial
6. criminal trial

Question 77

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.

Answer 77

1. actions
2. granted
3. Supreme Court

Question 78

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.

Answer 78

1. depositions
2. interrogatories
3. good cause
4. preserve the objection for trial
5. motions to produce documents

Question 79

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).

Answer 79

1. judges
2. attorneys
3. psychologists
4. pass for cause
5. peremptory challenge

Question 80

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.

Answer 80

1. Direct examination
2. hostile witnesses.
3. Cross-examination

Question 81

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).

Answer 81

1. notified ahead of time
2. competent
3. relevant
4. marked
5. go to the jury room

Question 82

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).

Answer 82

1. prejudicial
2. judicial notice
3. foreclosures questioned because no promissory note

Question 83

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.

Answer 83

1. dualing witnesses
2. directed verdict
3. judgment not withstanding verdict (NOV)