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Legal Terminology > Civil Process > Flashcards

Civil Process Flashcards

1
Q

Doctrine

A

Legal concept in which is not law but is generally accepted as fact/truth by the legal courts, courts are not necessarily forced to follow it
Popular principles may become law

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2
Q

Civil Law

A

Enacts when an individual is taking action against the violator for the damages onto the individual (community is unharmed). Civil law punishment does not utilize imprisonment where criminal law does as criminal law holds the government to sue in place (community is harmed).

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3
Q

Diversity of citizenship

A

When two parties are from different states and the amount of damages exceeds a min. Fed statute of $75,000, the fed court will hear the case

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4
Q

Joint & Several liability

A

Multiple defendants may be found liable as a group (jointly) or separately (several)

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5
Q

Plaintiff

A

The party who initiates the action by filing a complaint, complaining of injury or harm

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6
Q

Statute of limitations

A

The time for filing suits. Suits filed after the time has run out will be dismissed where the clock will tick from the time the damages occurred.

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7
Q

Summons

A

Document that informs the defendant that they are being sued and that they have a specific amount of time to respond

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8
Q

Complaint

A

The pleading that initiates litigation, filed by the plaintiff containing the general allegations against the defendant (served with the summons)

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9
Q

Litigation

A

Lawsuit or a contest in a court of law

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10
Q

Discovery

A

Process of identifying and sharing factual info needed to support or refute a legal claim (tools are auth by the Federal rules of Civil Procedure to assist disclosure and exchange information that is relevant and proportional to the resolution of a dispute)

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11
Q

Proportionality

A

Legal doctrine that electronically stored info may be held if the production of data cost exceeds the potential value to the resolution

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12
Q

Cause of action/Claim for Relief

A

Legally valid reason to sue/request a complaint

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13
Q

Information & Belief

A

Statement as being fact only to the best knowledge of the person making the statement

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14
Q

Defendant

A

A party against whom a complaint is filed

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15
Q

Ad damnum clause “Wherefore clause” “Prayer for Relief”

A

Element of complaint that asks court to do damages

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16
Q

Pleading

A

Doc filed with the court asking for them to take legal action. This states the party’s position and includes:
- complaint
- answer
- affirmative defense
- counter claim
- cross claim
- reply

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17
Q

Jury trial

A

Group of citizens selected to determine case outcome.
- parties have the right to demand jury trial
- if both parties agree, the judge will act in place of a jury
- this is common in technical cases such as complex contract situations

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18
Q

Filed

A

Document is filed when it is presented to the clerk of the court

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19
Q

Service of process

A

When an attorney says process they mean “summons and complaint” — process is served when the summons and complaint was delivered to the defendant

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20
Q

Service

A

Presentation of legal papers
Personal service is based on individual, substitute service is based upon business/registered agent and will be processed by permitted person[s]

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21
Q

Affidavit

A

Written statement of fact sword under oath signed by an affiant

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22
Q

Jurisdiction (what types exist)

A

Legal power a court has to determine an outcome
Types include:
- in personam jurisdiction (over a person)
- in rem jurisdiction (over controversy, often property)
- quasi in rem jurisdiction (over property not within controversy, this is invoked to help a party who has won damages awarded by the court)

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23
Q

Lis pendens

A

Attachment to the title of a piece of property, notifying any potential purchasers that the property is subject to the outcome of the litigation and can be seized

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24
Q

Lien

A

Once judgement is obtained, this prevents the sale or transfer of the property

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25
Q

Affirmative defense

A

Found inside the answer, but is a separate legal entity.
This is the admission that a specific action occurred but it is not the defendants fault — this is intended to reduce the plaintiff’s damage to the defendant

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26
Q

Counter claim

A

Similar to affirmative defense, BUT defendant alleges damages by the plaintiff
- a plaintiffs response to this = reply

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27
Q

Cross claim

A

By one defendant against co-defendant

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28
Q

Third party complaint

A

Cross claim pleading where defendant sues someone not yet party to the action

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29
Q

Default judgement

A

Judgement by the court in favor of the plaintiff as the defendant failed to respond in the timeframe provided to them

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30
Q

Motion

A

Requests the court take and attends procedural step and matter involving the trial.
Examples: motion for dismissal with prejudice, motion to enlarge…

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31
Q

Certificate of mailing

A

Attests that true copies were sent to all parties involved. Signed by the mailer (or attorney if required by state)

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32
Q

Privilege

A

Right to refuse/testify in court i.e
-self incrimination
-doctor/patient
-gov’t info
-husband/wife/spouse

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33
Q

Ex parte hearing

A

1 party is present in the hearing
I.e restraining order hearing

34
Q

Third party defendant

A

Party against whom the 3rd party complaint was filed (defendant in og complaint becomes 3rd party plaintiff)

35
Q

Dismissal with prejudice vs without

A

Case is dismissed and will NOT be brought up again with prejudice. Without prejudice, the trial may be heard again

36
Q

Motion for summary judgement (other forms)

A

Request for the judge to decide the case in pre trial due to [no material facts were disputed by parties therefore, no jury was needed, court may apply the law without a need for trial)
Trial version is - motion for directed verdict
Post trial is - motion for judgement NOV

37
Q

Pre trial conference

A

Meeting between court and parties for clarification of procedural matters and promote settlement

38
Q

Stipulation

A

An agreement between counsel for the parties regarding a point that will NOT be disputed at trial to make the trail more efficient and use less resources

39
Q

Settlement agreement

A

Agreement to settle litigation for an agreed upon consideration

40
Q

Direct evidence

A

From personal observation, to estimate a fact without need for inference
(I.e a witness saw the man shoot a gun)

41
Q

Circumstantial evidence

A

Unlike direct evidence, estimate a fact with inference
I.e witness heard a gun shot, witness turned around and saw defendant holding a gun

42
Q

Physical evidence

A

Tangible or demonstrative

43
Q

Admissible

A

Evidence that will be considered by the jury (up to them to believe) where inadmissible evidence cannot be presented to the court

44
Q

Voir dire (jury)

A

To question prospective jurors dismissed either by good reason (unlimited — challenge for cause)
Or for no reason (limited to 3-6 — peremptory cause)

45
Q

Bailiff

A

Court employee who keeps order in the court

46
Q

Burden of proof

A

Degree to which something can be proved at trial

47
Q

Rule on witness

A

Witnesses can’t witness other witness testimonies

48
Q

Subpoena (duces tecum)

A

Document issued by court to compel witness appearance (duces tecum - with specific documents)

49
Q

Objection

A

Formal challenge to evidence by opposing counsel

50
Q

Bench conference

A

Judge + attorney meeting

51
Q

Prejudicial

A

Tendency to cause bias where it didn’t previously exist

52
Q

Preserving the record

A

Attorney statements or repeating a previously overruled motion to protect rights to appeal at a later point

53
Q

Sustain

A

Affirm an objection

54
Q

Probative value

A

If information value is outweighed by prejudicial effect, evidence is inadmissible

55
Q

Strike from the record

A

Have a certain testimony removed from the record of the trial

56
Q

Prima facie case

A

A case that is sufficient on its face (no gaps) and all alleged facts are true in trial where plaintiff deserves compensation

57
Q

Voir dire witness

A

Questions potential witness if the individual is competent to testify as an expert

58
Q

Foreperson

A

Elected speaker of the jury

59
Q

Motion for judgement NOV (non withstanding verdict)

A

Request the court to disregard the jury’s verdict and use the court’s own verdict

60
Q

Stay

A

Delay the implementation of a court’s verdict

61
Q

Additur

A

Judge decides to add amount of damages awarded by the jury or a new trial to the other side if the losing side refuses

62
Q

Remittiur

A

Procedure where court reduces the amount of damages awarded by the jury (if court finds award to be excessive/0

63
Q

Notice of appeal

A

Losing side may request the next highest court to determine if the trial court erred. The sum of money will be held by court and ensure funds will be available after the appellate process (bonds on appeal)

64
Q

Record

A

Official collection of all pleadings, exhibits, motions, orders, and transcripts of the trial

65
Q

Appellate brief

A

Written argument by lost party covering the “points of error” in the appeal “response brief”

66
Q

Oral argument (appellate)

A

Oral presentation to the appellate court, not always granted

67
Q

En bane

A

If appellate court views it as a matter of importance or is in a new area of law, the entire panel of judges will hear the case (en bane), but if otherwise dealt with before, only a portion of the court will hear

68
Q

Majority opinion

A

Occurs with more than 50% on the decision and is considered law until suspensended

69
Q

Affirm (appellate)

A

Appellate court agrees with trial court

70
Q

Reverse (appellate)

A

Appellate court disagrees and nullifies decision

71
Q

Modify (appellate)

A

Appellate court alters the decision of the court

72
Q

Remand (appellate)

A

Appellate court sends the case back to trial court for further deliberation

73
Q

Concurring opinion

A

(Maybe more than one) judge(s) agree with the majority, but for a different reasoning

74
Q

Dissenting opinion

A

Opinion that disagrees with the majority

75
Q

Petition

A

To make a formal request to the court

76
Q

rehearing

A

2nd chance to present an argument on the same issue

77
Q

Petition for writ of certiorari

A

Document asking permission to appeal

78
Q

Interlocutory appeal

A

Appeal before/during trial requesting court to review its final decision (on a single procedural issue), must ask permission to appeal and only taken when evidence is crucial to the case

79
Q

Impeach

A

Attorney asks questions to a witness in attempt to discredit their earlier given testimony (attorney’s can’t impeach their own witness)

80
Q

Motion in limine

A

Request information which might be prejudicial, not allowed to be heard in a case

Legal Terminology (6 decks)

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