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Flashcards in Litigation Final Exam Deck (51)
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1

What happens after a Complaint is filed?

1. An answer is filed (w/in 20 Days) - Affirmative Defenses Raised - If not raised here cannot be raised later (Thrown in the kitchen sink!) 3 kinds of answer responses - Admits , Denies, No knowledge of - Must have Prayer for Relief too.

2. Responsive Motions filed - (ie. to Dismiss< Rule 12> To Strike Definitive Statement

2

What are the 6 Components of a Complaint?

C J I C P S
Caption - (Basically Header)
Jurisdictional Allegations
ID of Parties
Causes of Action / Allegations
Prayer for Relief - Judgment in your favor & damages - Court cannot give something NOT asked for!
Subscription - Rule 11 - Lawyer is stating he is filing suit in good faith and not on trumped up or bogus charges - His license is on the line.

3

What must you ask for as Best Practice on a Complaint?

A Demand for a Jury Trial

4

What are the 3 Reasons you can file to dismiss early in the process?

1. Lack of Pers Jurisdiction - Ends the case where filed -- Start over
2. Improper Venue - Ends Case -
3. Insufficiency of Process - Didn't following Serving Rules - Start Over - not gone

5

What are the 3 Reasons you can file to dismiss anytime in the case?

1. Lack of Subj Matter Jurisdiction - What the case is about
2. Failure to State a Claim - "Catch all Objection" No valid cause of action.
3. Failure to join an indispensable party - Correct it Start Over - not gone.

6

What are 3 common Affirmative Defenses?

1. Stat of Limitations
2. Bankruptcy
3. Judicarta - case decided to its finality

7

What is Notice Pleadings and Fact Pleadings?

Notice - Putting person on notice that there are claims against them - Used in Mass - Mass rules & Fed rules very similar -Brief & Concise
Fact Pleadings - Very detailed -must include all support and details of claims against someone.

8

What are 2 types of Dismissals?

1. With Prejudice - Can NEVER be filed again -
2. Without Prejudice - Can be filed again - Totally start over w/ new docket and filing.

9

What are the stat of limitations on Negligence and Contract disputes in Mass?

1. Negligence - 3 years
2. Contracts - 6 years

10

What is Tolling?

Stopping the clock on stat of limitations

11

What are 2 reasons for Return of Service?

1. To prove defendant was served
2. to reimburse costs if case is won

12

What is a counterclaim?

Defendant sues Plaintiff - If there are any claims arising from the same occurrence, it is mandatory they be brought forth in the answer to the original complaint. Plaintiff replies to Counter claim as a sep stand alone action.

13

What is a PERMISSIVE counterclaim?

A counter claim that does NOT arise from the SAME Occurrence but involves the same party / parties - (ie. landlord / tenant - I'm suing for injury on broken stairs / I'm counter suing for back rent) This is for Efficiency --

14

How are docs sent AFTER initial lawsuit?

Simply mailed - Rules for Service DO NOT apply

15

What is a Cross Claim vs a 3rd Party Claim?

If Ann sues Joe & Steve a cross claim would be Joe suing Steve -- No new parties added
A 3rd Party Claims is a new party to the lawsuit
Ann sues Joe - Joe as a 3rd party plaintiff sues Hanover as a 3rd Party defendant.

16

What is an Interpleader?

Type of civil lawsuit where a Stakeholder is holding property or funds that 2 or more people are attempting to claim - Court decides what the stakeholder should do. (The antique store owner in the ring complaint or real estate deposits)

17

What is a class action lawsuit?

One in which the plaintiffs are too numerous but have the same cause / case. A class action must be certified - no set # of people needed - participation is optional - but if you do participate you waive your right to sue independently separate from the class. Reps are chosen to lead the case and the interests of the class

18

What is an Intervention?

Having a stake in the outcome of a case and you become a party to the case.

19

How are motions presented?

Can be verbal or written but usually written -- If a judge is under Admission or Advisement that means he is saying "I'll think about it"

20

What is Ex Parte?

Only one side is present - no notice to other side - usually only in emergency level situations - normally other side must be notified.

21

What is a Certificate or Affadavit of Service?

A doc showing proof notice was mailed

22

What is a Motion for Judgment on the Pleadings?

A motion usually filed by Plaintiff asking court to END lawsuit and enter judgment in their favor - It is a hearing before the Judge he looks at the COMPLAINT & ANSWER only and either approves the motion and enters judgment or says No there will be a trial. This occurs VERY EARLY in the lawsuit.

23

What is a Motion for Summary Judgment?

A motion filed by either party claiming that There is no genuine issue of material fact AND are entitled by law to judgment in their favor. This is like a Mini Trial where evidence and testimony are taken by the court and reviewed. This occurs LATER in the lawsuit usually.

24

What are Rules 55A and 55B?

55A - Defendant Defaults - No answer - ignores lawsuit -
55B - Is the motion for Default Judgment because Defendant isn't participating

25

What is SUM CERTAIN?

When there is no question of amount of $$ involved and you have to show extreme likelihood you will succeed w/ lawsuit.

26

What are Provisional Remedies - List 4

Provisional Remedies are things you can ask for while lawsuit is pending.
1. Temp Restraining Order - Immed Irrep Harm
2. Prelim Injunction - Extension of Temp RO
3. Lis Pendens - Official Notice at Reg of Deeds puts public on notice of pending dispute
4. Writ of Attachment - Lien - Prop is seized to satisfy a judgment NOT YET RENDERED. For real property it gets recorded at Reg of Deeds and for $$ 3rd party is served - Bank holding your $$ or Employer holding your wages

27

What are the basic Rules of Civ Procedure on Evidence?

- Evidence is either Admissible - allowed, heard considered or Not Admissable - Not allowed - All evidence is one or the other.

- Evidence MUST be Relevant & Reliable

- Best Evidence Rule is to Produce the original document not a copy.

- Witness Testimony MUST be first hand

28

What are the 5 exceptions to Relevant Evidence being Not Admissible?

- Relevant Evidence can still be Not Admissible
a. Remedial Repairs
b. Offers to Settle Case
c. Evidence of Insurance
d. Character Evidence
e. Illegally Obtained Evidence

29

What are exceptions to Reliable Evidence?

There are TONS - Exceptions "swallow" the rule.
the big one though is HEARSAY

30

What is HEARSAY?

It is oral written or non-verbal
statement made out of the court
by somebody else at the trial
Being offered to prove its truth
It is notoriously UNRELIABLE and excluded