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BLAW 3430 > Exam II > Flashcards

Flashcards in Exam II Deck (42):

What are the five stages of litigation?

1) Pleading: starts with a petition, generally after unsuccessful negotiation; answer to petition; if the lawsuit goes unanswered the plaintiff can get a default judgement

2) Discovery

3) Pretrial

4) Trial

5) Judgement


What are the three motions that occur before the trial?

1) Motion for protective order

2) Motion for compel of sanctions

3) Motion for summary judgement


What is the motion that occurs during the trial?

Motion for directed verdict


What is the motion that occurs after the trial?

Motion for new trial


What are the three elements of a defendant's answer to a petition/lawsuit?

1) Counter-claim: the defendant sues the plaintiff, and claims that they are not liable

2) Cross-claim: the defendant sues another defendant

3) Affirmative defenses


What are the three affirmative defenses against a petition/lawsuit?

1) Assumption of the risk: the plaintiff willingly went into a dangerous situation (ex: someone gets into the car with a drunk driver, gets injured, and wants to sue)

2) Contributory negligence: is the other party at all negligent

3) Comparative negligence: more than 50% negligent, and therefore barred from recovery


What are the four devices of discovery?

1) Interrogatories: written questions sent to the other side which is written under oath

2) Deposition: out-of-court sworn statement taken by a court reporter in advance of trial

3) Request for admissions: each side gets to ask the other to admit certain things

4) Request for production of documents and other things


What is the difference between mediation and arbitration?

While both involve a third party, mediation is non-binding and leaves the option for a trial, whereas arbitration is binding and therefore requires a decision.


Which amendments give you the right to a jury?

*6th amendment in criminal cases

*7th amendment in civil cases


What is "boir dyre?"

*This means "to speak the truth"

*This describes the jury (de)selection process


What are the two types of strikes in "boir dyre?"

1) Peremptory challenges
*Lawyer is unable to show bias, but can sense it

2) Challenges for cause
*Remove juror by saying a juror cannot be impartial


What must the jury consider when deciding the verdict?

*Who was more negligent, the plaintiff or the defendant?

*If negligent, what percent?

*What are the damages?


What is "judgement not withstanding the verdict?"

*The judge is asked to disregard the jury's verdict.

*Very rare


What are the eight types of intentional torts?


1) Assault

2) Battery

3) Conversion

4) Defamation

5) Emotional distress

6) False imprisonment

7) Nuisance

8) Trespassing


What is the defense against intentional torts?

*Privilege: immunity from tort liability granted when the defendant's conduct furthers a societal interest of greater importance than the injury inflicted upon the plaintiff


What are the two types of privilege?

1) Absolute: protects the defendant regardless of his motive or intent; includes the following:

*Statements made by participants in a judicial proceeding regarding that proceeding

*Statements made by members of Congress on the floor of Congress and by members of state and local legislative bodies

*Statements made by participants in a judicial proceeding regarding that proceeding certain executive branch officers while performing their government duties

*Statements regarding a third party made between spouses when they are alone.

2) Qualified/conditional privilege: extends to many communications in which the publisher and the recipient have a common interest, such as letters of reference.


What are the four torts of the invasion of privacy?

1) Appropriation of a person's name or likeness

2) Unreasonable intrusion on the seclusion of another

3) Unreasonable public disclosure of private facts

4) Unreasonable publicity that places another in a false light in the public eye


What are the six torts of business?

1) Intentional interference with the contract (between A and B)

2) Intentional interference with the business relations of another (and the activities are predatory)

3) Unauthorized used of another’s patent, copyright, etc.

4) Fraud

5) Disparagement

6) Appropriation


What are the four unintentional torts?


1) A legal duty

2) Breach of duty

3) Causation

4) Damages


What are the six strict liability situations?

1) Mining/blasting

2) Storing explosives

3) Keeping of wild animals (dogs have a one-bite rule)

4) Spraying pesticides/herbicides

5) Impounding of water (damming)

6) Oil, gas, and mineral development


What are the elements of assault?

*Intentional act or conduct

*That produces a reasonable fear

*Of immediate harmful or offensive contact

*That results in injury


What are the elements of battery?

*An intent to commit a harmful touching

*That results in harmful or offensive contact

*And causation between the first two elements


What are the elements of conversion?

*The plaintiff's ownership or right to possession of the property

*The defendant's conversion by wrongful act inconsistent with the property rights of the plaintiff

*And damages


What are the elements of defamation?

*A false statement purporting to be fact

*Publication or communication of that statement to a third person

*Fault amounting to at least negligence

*And damages, or some harm caused to the person or entity who is the subject of the statement


What are the elements of emotional distress?

*The defendant must act intentionally or recklessly

*The defendant's conduct must be extreme and outrageous

*The conduct must be the cause

*Of severe emotional distress


What are the elements of false imprisonment?

*There must have been a willful detention

*The detention must have been without consent

*And the detention was unlawful


What are the elements of nuisance?

*The plaintiff owns the land or has the right to possess it

*The defendant actually acted in a way that interferes with the plaintiff's enjoyment and use of his or her property

*The defendant's interference was substantial and unreasonable.


What are the elements of trespassing?

*An actual interference with the right of exclusive possession (called the "entry element")

*Intent or negligence


What are the elements of product liability?

*Manufacturers of products

*that are defective (in unreasonably dangerous condition)

*are liable to users and consumers for any harm caused by those products


What are the four defenses against product liability?

1) Assumption of the risk

2) Comparative fault

3) Contributory fault

4) Misuse/abuse of product


What is the difference between civil and criminal cases?

*Civil cases must be proved upon a “preponderance of evidence”

*Criminal cases must be proved “beyond a reasonable doubt"


What are the purposes of discovery?

*Avoid ambush/surprise at trial

*Encourage settlement

*Preserve the testimony


What are the five motions of discovery?

1) Motion for compel of sanctions

2) Motion for protective order

3) Motion for summary judgement

4) Motion in limine

5) Motion to limit testimony in trial


What are the five stages of trial?

1) Opening Statement

2) Plaintiff testimony

3) Motion for directed verdict

4) Jury verdict

5) Appeal


What are the capabilities of an appeals court?

*Affirm the decisions of the trial court

*Can reverse the decision of the trial court

*Can reverse and remand (send back to trial court)

*Can reverse and render (make its own decision)


What is the definition of intent?

*The desire to cause the consequences of an act or knowledge that the consequences are substantially certain to result from the act.


What are some key words to look for in determining whether or not a tort is unintentional?

Unintentional torts will often be set off by the following:






What is the best determinant of a legal duty?

*The "Reasonable Person Standard"

*This dictates that you have a duty to act as a reasonable and prudent person would under the same circumstances.


Under which circumstances should you rescue someone?

*If you have put the person in danger

*If you have a special relationship, such as a teacher-student or parent-child relationship.


What are the two parts of causation?

*Actual cause: “but for…” the wrongdoer’s actions, would the injury have occurred?

*Legal cause (think about Palsgraf case)
*You will only be held legally at fault if the injury was foreseeable


What are the defenses to unintentional torts?

*Assumption of the risk

*Contributory negligence

*Comparative negligence


Who can come onto your land, and it is not considered trespassing?