Exam II Flashcards
(42 cards)
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
* Limited
* Lawyer is unable to show bias, but can sense it
2) Challenges for cause
* Unlimited
* 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?
- ABCDEFNT
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?
ABCD
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
