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Chapter 4: "LITigation"
Terms in this set (69)
party who files a civil action
1. party who is sued
2. the person whom is having a criminal charge filed against them by prosecuting state or federal government
defendant files this when they want to sue the plaintiff
the parties to the counterclaim
defendant can bring these people in if the defendant alleges there cannot be complete determination of a controversy without the presence of other parties
Standing to Sue
plaintiff must show court its subject matter jurisdiction and establish he/she is entitled to have the court decide the dispute
What must the plaintiff allege when standing to sue?
1. litigation involves a case of controversy
2. must allege personal stake in the resolution of the controversy
a court must have the authority over the parties to the case
notice to appear in court (typically hand-delivered)
provide for the service of process beyond their boundaries
When do long-arm statues apply?
if the defendant:
1. has committed a tort within the state
2. owns property within the state that is the subject matter of the lawsuit
3. has entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within the state
requesting and transporting the prisoner from one state to another
one in which one or more plaintiffs file suit on their own behalf and on behalf of all other persons who may have a similar claim
Why are class-action suits so popular?
most of the time, an individual does not have enough financial interest to warrant litigation
Who pays for class-action suits?
the plaintiffs must pay all court costs of the action (including the cost of compiling the names and court costs of the people in the class)
What are the pre-trial procedures?
1. plaintiffs file complaint
2. complaints and summons served on defendant
3. defendant files motion or answer with possible counterclaim and defenses
4. court rules on motions
5. plaintiff files a reply to the answer
6. attorneys conduct discovery procedures
7. parties may file motions for summary judgement or judgement on pleadings
8. court conducts pretrial conference
legal documents filed with a court to begin the litigation process; through these contents, issues to be resolved are brought into sharper focus
lawsuit begins with this; plaintiff files a pleading with the court clerk (allegations + relief sought)
written pleading; response to complaint
if the defendant does not reply in any way, the court can enter into a default and grant the plaintiff the relief that was sought by their complaint
the reasons surprises do not occur in the courtroom; designed to ensure that each side is fully aware of all facts involved in the case and the intentions of the parties; "dress rehearsal" for trial
What is the least expensive method of discovery?
present a series of written questions to the opposing parties
questions that must be answered by the party receiving them
Request for the Production of Documents
after interrogatories are answered, either party might ask the other to produce specific documents that are important to the outcome of the lawsuit
lawyer orally asks questions of the possible witnesses and an oral response is given (spoken words are recoded by a court reporter)
Request for an Admission
either party may request the other to admit that certain issues presented in the pleadings are no longer in the dispute (narrows some issues and makes settlements more likely)
ordered by companies for their employees to not delete records, emails, etc. if they are under pending or imminent litigation (it looks bad if you're under litigation and a whole chunk of your data has been recently deleted)
can be filed with the court when parties seek a pretrial determination of their rights when a question of law is at issue (can be made at any point during the litigation process)
Statute of Limitations
such matters such as a lack of jurisdiction of the court to hear the suit
Judgment of Pleadings
asks the judge to decide the case based solely on the complaint and the answer (can help avoid a trial)
party filing this motion is asking the judge to base a decision not only on the pleadings, but also on other evidence
judges can terminate the litigation process if they find that the lawsuit is frivolous (totally lacking in merit); there are fines against lawyers and clients who sign frivolous documentation
What is the first order of business in a case?
select a jury
"to speak the truth"; expected of juries
plaintiff and defendant are given these challenges for which no cause or reason needs to be given to excuse a prospective juror
Batson v. Kentucky (1986)
juries are increasingly more representative of the racial diversity in the US
familiarizes jury with the essential facts that each side expects to prove (helps the jury to understand the overall picture of the case)
lawyers try to convince the jury (or judge, if there is no jury) of what the outcome of the case should be
judge acquaints the jury with laws applicable to the case after the closing arguments
Burden of Proof
burden or responsibility of a person to be persuasive as to a specific fact
"Beyond a Reasonable Doubt"
the prosecution in a criminal case has the burden of convincing the trier of fact (usually a jury) that the defendant is guilty of the crime charged and that the jury has no reasonable doubt about the defendant's guilt
What standards (even though they need to follow 1 out of the 2) is the party with a burden of proof subject to?
1. Preponderance of evidence
2. Clear and convincing proof
Preponderance of Evidence
requires that a party convince the jury by a preponderance of evidence that all facts are as he/she contends; achieved when there is greater weight of evidence in support of the proposition than there is against it
Clear and Convincing Proof
used in situations where the law requires more than a simple preponderance of the evidence but less than proof beyond a reasonable doubt
the jury's decision
Who decides whether or not to accept the verdict?
entered in favor of the party that won the jury's verdict if the judge agrees with the verdict
Judgment Notwithstanding the Verdict
the party that is dissatisfied with the jury's verdict can file a post trial notion (people can file for a new trial if the judge is convinced that there was a legal mistake made during the trial); (these are typically denied)
The party who is appealing
the successful party in the trial court
the party initiating the petition for Certiorari
the other party who didn't initiate the petition for Certiorari
what each party files in addition to the record from the trial; contains a short description of the case, factual summary, legal points, and authorities and arguments for reversing or affirming the lower court decision
attorneys given specified amount of time to orally explain their position in a case to the court
Enforcement of Judgement and Decrees
after the court judgement is final, it may be necessary for the successful party to obtain financial assistance in enforcing a court decision
What are some of the enforcement mechanisms?
1. judgement creditor requests court's assistance to have the execution (occurs when a court official like a sheriff or marshal seizes some property of the debtor, sells it at a public auction, and applies proceeds to creditor's claim)
2. garnishment: having a portion of debtor's wages paid to the court, who pays it to the creditor
when a decision of the court becomes final; the case is finally decided on appeal or time for an appeal has expired (prevents successive suits)
Service of Process
typically personal delivery; basically tells someone they're being sued
What are the deliverers of service of process called?
Spoliation of Evidence
when someone destroys something important to the case; (the judge will assume it's something really bad and relevant to the case)
Wrestling Match Video Lawsuit
specific damage: $99.95
general damage: pain and suffering
-class action case
What does it mean that plaintiff's attorneys sometimes work on "contingency?"
if they win the case, they take a percentage of the money you won, but if they lose the case, they don't get paid
Why do people hate discovery?
it is long, painful, and expensive
Foster v. Chapman (1985)
death penalty case, man convicted was in jail for 30 years until case reopened in 2015 when a new trial was ordered; found original documents with a "B" next to jurors' names -> smoking gun
when the jury is dismissed to go into a room and decide their verdict
Motion for Mistrial
If any proper instruction for procedure was violated, you can file this
What 3 options do the appeals court have?
1. affirm decision of the lower court: saying basically that the judge got it right, or "it was just harmless error"
2. reverse decision of the lower court: judge got it so wrong that the result would have been different if he would have gotten it right
3. remand decision: appeals court says the judge did something wrong, and they will send it back to the lower courts with instructions and they have to retry the whole trial again
Which of the 3 appeals court options is most common?
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