Chapter Five

Question 1

Alternative dispute resolution

Answer 1

Techniques for resolving conflicts that are alternatives to full scale litigation
The two most common are arbitration and mediation

Question 2

Arbitration

Answer 2

an ADR mechanism whereby the parties submit their disagreement to a third party, whose decision is binding

Question 3

Mediation

Answer 3

An ADR mechanism whereby a neutral third party assists the parties in reaching a mutually agreeable, voluntary compromise

Question 4

Summary jury trials

Answer 4

a nonbinding process in which attorneys for both sides present synopses of their cases to a jury, which renders an advisory opinion on the basis of these presentations

Question 5

Pleadings

Answer 5

the papers that begin a lawsuit - generally, the complaint and the answer and summons

Question 6

Pretrial motion

Answer 6

narrow issues, either side may file

limit the info that can be heard at a trial

Question 7

Discovery

Answer 7

an attempt by both sides to gather as much info as possible

Question 8

Standing

Answer 8

courts are limited to deciding cases that involve litigants who are personally affected by the court’s decision

Question 9

Guardian

Answer 9

a person appointed by the court to manage the affairs or property of a person who is incompetent due to age or some other reason

Question 10

Class action suit

Answer 10

a lawsuit brought by a person as a representative for a group of people who have been similarly injured

Question 11

Judgement proof

Answer 11

when the defendant does not have sufficient money or other assets to pay the judgement

Question 12

Compulsory joinder

Answer 12

when a person must be brought into a lawsuit as either a plaintiff or a defendant

Question 13

Jurisdiction

Answer 13

the power of a court to hear a case

Question 14

Subject matter jurisdiction

Answer 14

the power of a court to hear a particular type of case

Question 15

Personal jurisdiction

Answer 15

the power of a court to force a person to appear before it
Defendant must be a resident, be served with process within the state, minimum contact
Can be exercised over non residents

Question 16

Minimum contacts

Answer 16

a constitutional fairness requirement that a defendant have at least a certain min level of contact with a state before the state courts can have jurisdiction over the defendant

Question 17

Statutes of limitations

Answer 17

the law that sets the length of time from when something happens to when a lawsuit must be filed before the right to bring it is lost

Question 18

Exhaustion of administrative remedies

Answer 18

the requirement that relief be sought from an administrative agency before proceeding to court

Question 19

complaint

Answer 19

the pleading that begins a lawsuit

Question 20

answer

Answer 20

defendant’s reply to the complaint
It may contain statements of denial, admission, or lack of knowledge and affirmative defenses
there’s no claim

Question 21

Notice pleading

Answer 21

a method adopted by the federal rules in which the plaintiff simply informs the defendant of the claim and the general basis for it

Question 22

Summons

Answer 22

a notice of informing the defendant of the lawsuit and requiring the defendant to respond or risk losing the suit

Question 23

Service

Answer 23

the delivery of a pleading or other paper in a lawsuit to the opposing party

Question 24

Affirmative defense

Answer 24

a defense whereby the defendant offers new evidence to avoid judgement

Question 25

Default judgement

Answer 25

a judgment entered against a party who fails to complete a required step, such as answering the complaint

Question 26

Motion

Answer 26

a request made to the court

Question 27

Rule 56 motion (summary judgement motion)

Answer 27

a request that the court grant judgement in favor of the moving party because there is no genuine issue as to any material fact and the moving party is entitled to judgement

Question 28

Elements of alternative dispute resolution

Answer 28

arbitration mediation summary jury trials

Question 29

Interrogatories

Answer 29

written questions sent by one side to the opposing side, answered under oath

Question 30

Deposition

Answer 30

the pretrial oral questioning of a witness under oath

Question 31

Deponent

Answer 31

the person who is being asked questions at a deposition

Question 32

Electronic discovery

Answer 32

the process of gaining info from the adverse party when that info is in electronic form

Question 33

Metadata

Answer 33

info contained in a document that may include the author of the document, the date it was created and other data about the document

Question 34

Electronically stored info (ESI)

Answer 34

info created, disbursed, or stored in an electronic format

Question 35

Litigation hold

Answer 35

a requirement that routine alteration or destruction of ESI must stop whenever there is a reasonable belief litigation may arise

Question 36

Spoliation

Answer 36

the destruction or alternation of relevant documents

Question 37

Meet and confer conference

Answer 37

in federal court, a mandated conference at which the parties must develop a discovery plan

Question 38

Dismissal with prejudice

Answer 38

a court order that ends a lawsuit, the suit cannot be refiled by same parties

Question 39

Pretrial conference

Answer 39

a meeting of attorneys and the judge prior to the beginning of the trial

Question 40

Voir dire

Answer 40

an examination of a prospective juror to see if he or she is fit to serve as a juror on a specific case

Question 41

Adversarial system

Answer 41

a system characterized by competing, opposing parties overseen by a neutral decision maker

Question 42

Inquisitorial system

Answer 42

a system where the judge is actively involved in the investigation of the facts of the case

Question 43

Challenge of cause

Answer 43

a method for excusing a prospective juror based on the juror's inability to serve in an unbiased

Question 44

Peremptory challenge

Answer 44

a method for excusing a prospective juror; no reason need be given

Question 45

Direct examination

Answer 45

an attorney's questioning of his or her own witness

Question 46

Leading question

Answer 46

a question that suggests the answer, generally leading questions may not be asked during direct examination of a witness

Question 47

Cross-examination

Answer 47

the questioning of an opposing witness

Question 48

Directed verdict

Answer 48

plaintiff failed to meet prima facie case

Question 49

Pattern jury instructions

Answer 49

a set of standardized jury instructions

Question 50

Verdict

Answer 50

the opinion of a jury on a question of fact

Question 51

Mistrial

Answer 51

a trial ended by the judge because of a major problem, such as a prejudicial statement by one of the attorneys

Question 52

Judgement

Answer 52

the decision of the court regarding the claims of each side | it may be based on a jury's verdict

Question 53

Judgement notwithstanding the verdict (judgement N.O.V)

Answer 53

a judgement that reverses the verdict of the jury when the verdict had no reasonable factual support or was contrary to law

Question 54

Motion for a new trial

Answer 54

a request that the court order a rehearing of a lawsuit because irregularities, such as errors of the court i jury misconduct, make it probable that an impartial trial did not occur

Question 55

Appellate brief

Answer 55

a formal written argument to an appellate court, in which a lawyer argues why that court should affirm or reverse a lower court's decision

Question 56

Clearly erroneous

Answer 56

standard used by appellate courts when reviewing a trial court's finding of fact

Question 57

Harmless error

Answer 57

a trial court error that is not sufficient to warrant reversing the decision

Question 58

Reversible error

Answer 58

an error made by the trial judge sufficiently serious to warrant reversing the trial court's decision

Question 59

Litigation steps

Answer 59

Pretrial Trial The Appeal

Question 60

Negotiated settlement

Answer 60

court determination to dismiss... proceed to trial

Question 61

Negotiated settlement is the outcome of

Answer 61

Preliminary matters Pleadings Pre-trial motions Discovery

Question 62

Preliminary matters

Answer 62

``` Legal grounds for the suit Parties to the suit Selection of the court Statutes of limitations Exhaustion of administrative remedies ```

Question 63

Legal competence

Answer 63

parties to a lawsuit are legally capable of suing and being sued

Question 64

Two basic requirements for class action

Answer 64

there must be questions of law or fact | claims must be similar

Question 65

Selecting the appropriate defendants

Answer 65

The attorney will choose to sue the person at fault | May not want to sue a person who will not have the money

Question 66

Exhaustion of admin remedies elements

Answer 66

Gives the admin agency a chance to resolve the problem before the parties resort to a lawsuit If agreement is not reached the process may proceed to hearing An appeal can be made

Question 67

Trial steps

Answer 67

``` the right to a jury trial jury selection opening statements presentation of evidence closing arguments jury instruction jury deliberation post trials ```

Question 68

The appeal steps

Answer 68

``` timing and filing of appeal the scope of review oral arguments decision of publication further appeals ```

Question 69

Pretrial steps

Answer 69

``` pleading the complaint summons answer default judgement ```

Question 70

PreTrial Motions to Ed Par

Answer 70

are made before the actual trial. After the preliminary hearing and before a trial, the prosecutor and the defense team appear before the criminal court judge and make pretrial motions

Question 71

Rule 12 motions to dismiss

Answer 71

Outlines the basic types of pretrial motions and how they are presented to the court

Question 72

Problems with the complaint include

Answer 72

Lack of jurisdiction over the subject matter Lack of jurisdiction over the person Insufficiency of process Failure to state a claim upon which relief can be granted

Question 73

The most important and common 12(b)(6)

Answer 73

If the defendant can prove that the plaintiff has stated a claim for which the court can not provide relief to, then the court will dismiss the complaint

Question 74

Appealing a summary judgement or motion to dismiss

Answer 74

If the losing party convinces the appellate court to reserve the trial court’s decision, the case will be returned to trial court If the appellate court grants summary judgement, the winning party does not win the case--it only wins the right to continue litigation

Question 75

Requests for admissions

Answer 75

a device used by one party to another party to accept or deny a statement of truth. If admitted, the statement of truth will be accepted throughout the trial

Question 76

Requests for documents and physical examinations

Answer 76

Part of the Discovery Process A defendant may require the opposite party to see a doctor and submit to a physical or mental examination The order should specify important elements

Question 77

Enforcing discovery rights

Answer 77

The discovery parties have an obligation to respond to discovery requests. However, if the judge believes that discovery attempts are unreasonable, they can allow the adverse party to refuse to comply with these actions

Question 78

The right to a jury trial

Answer 78

seventh amendment determine credibility and damage awards 12 people with alternates

Question 79

Jury selection

Answer 79

``` voir dire questioning challenge for cause some type of bias peremptory challenges (race, gender, age) ```

Question 80

Opening statements

Answer 80

Theory of case/framework | Plaintiff burden of proving a case

Question 81

Presentation of evidence

Answer 81

``` witness testimony and exhibits direct examination leading questions redirect & recross lay proper foundation making the record for appeal ```

Question 82

Jury instructions

Answer 82

Verdict - unanimous Mistrial Judgement

Question 83

What also happens during discovery?

Answer 83

a party gains info from another party

Question 84

Claw-back provision

Answer 84

an agreement whereby privileged documents inadvertently produced can be retrieved