Civil Procedure FINAL EXAM TERMS
Terms in this set (158)
What does the term "jurisdiction" mean?
"Speak the law"- the power of authority a court has to hear a case.
A court has what jurisdiction over people within the court's geographic area?
in personam or personal.
What statutes permit courts to exercise jurisdiction over persons outside the area who have minimum contacts within it?
Long Arm statutes.
A court has what jurisdiction over property within its area?
A court of what jurisdiction can decide virtually any type of case?
In what 2 ways is federal jurisdiction obtained?
1. Federal questions- issue involving federal law (const., statute, or treaty, etc). 2. Diversity of Citizenship (exceed $75,000 +)
How does one get Diversity of Citizenship to obtain federal jurisdiction?
1. At least 1 plaintiff and 1 defendant have to be in different states.
2. Has to be excess of $75,000 +
What jurisdiction exists when only state courts or only federal courts have authority to hear a case?
What jurisdiction exists when BOTH federal and state courts have authority to hear the same case.
Which courts handle the majority of all litigation filed in this country?
In order to bring a lawsuit to court, you must have what?
Standing to Sue.
What is Standing to Sue?
A sufficient stake in the matter - the person is actually involved in the case- to justify seeking relief through the court system.
What is Civil Procedure?
The methods, procedures, and practices used in civil cases.
What is the purpose of civil procedure rules?
To provide a just, efficient, and economical means by which parties can resolve their disputes.
What's the Anglo-American Model?
1. The American judicial system is an adversarial system.
2. The Judge sits solely to rule on disputed questions, as presented by the parties, and to apply sanctions when they are properly requested by a party.
3. The lawyer shape the contours of the action.
What is the typical court structure?
Trial Court --> Intermediate Appellate Court --> Final Appellate Court
What are the Federal Courts?
District Courts (Trial Court) --> United States Courts of Appeal (Intermediate Appellate Court) --> United States Supreme Court (Final Appellate Court)
What are the PA State Courts?
Court of Common Pleas (Trial) --> Superior Court (Intermediate)
--> PA Supreme Court (Highest)
What is "civil" law?
Civil law is concerned with the duties that exist between persons or between citizens and their governments.
What happens before filing suit?
1. Accident, Breach of Contract, or Other Event. 2. Party Consults with Attorney. 3. Informal Investigation
What happens in the filing suit process, "The Pleadings" process?
1. Plaintiff's Attorney Files Complaint
2. Defendant is Served
3. Defendant's Attorney Files an Answer
What is the Discovery process?
The process of obtaining information before trial.
How is Discovery used?
1. Depositions. 2. Interrogatories. 3. Request for Production of Documents. 4. Request for Examination. 5. Request for Admissions.
What is the Pretrial Conference?
A meeting of the attorneys and the judge prior to the beginning of the trial.
What does Picking the Jury entail?
1. The process begins by notices sent to community members by the court clerk requesting them to appear and be placed in the jury pool (called the array). 2. Individual jurors from the array are selected to sit on a special case (panel) after being examined before the court. 3. That screening is called voir dire.
What is a brief summary of what goes on in Trial?
1. Opening Statement 2. Presentation of Evidence 3. Closing Argument 4. Jury Trial: Jury Instructions and Jury Verdict.
What are Post-Trial Motions?
After the jury has rendered its verdict, either party may file post-trial motions.
What is does an Appeal entail?
1. Filing the Appeal 2. Appellate Review where they can either: Affirm, Reverse, Remand, or Modify it.
What is Enforcing the Judgment?
Figure out if it's worth your while to file suit (the amount of money you get). EX: Court can order a sheriff to seize property owned by the defendant. Property can be sold at auction and the proceeds given to the plaintiff.
Standing to Sue?
-Standing= the interest that a plaintiff has in a case.
-A plaintiff must have standing AND the controversy must be justiciable or real as opposed to hypothetical or purely academic.
To hear a case, a court must have jurisdiction over what?
1. the defendant or the property involved, and
2. the subject matter.
What does jurisdiction over subject matter include?
-a court of general jurisdiction can decide virtually any type of case.
-a court's jurisdiction may be limited by the subject of a suit, the amount of money in controversy, or whether a proceeding is a trial or appeal.
When concurrent jurisdiction is placed in the federal and state courts, the plaintiff can what?
The plaintiff may choose in which one to file suit.
What is Venue?
Venue is concerned with the geographical location of the court where a lawsuit is commenced and it identifies which courts within those judicial systems are permissible.
Where is Venue usually?
In the county where the Defendant lives, or where the dispute arose.
Is it possible to have a situation where more than one county is the proper venue for you to file your lawsuit?
After the Defendant is served with complaint, what does he/she have to do?
What is the Defendant allowed to put in his/her Answer?
The defendant has several options as to how to respond to the plaintiff's complaint under both the state rules and the federal rules.
The 2 most common methods used to promote truthfulness in pleading and discourage the filing of frivolous claims are what?
1. Attorney signature requirement 2. Verification
What does Rule 11 (F.R.C.P.11) entail?
Under the federal rules, an attorney is only to sign the pleadings AFTER "a reasonable inquiry" as to whether there are sufficient grounds in law and in fact to support the pleadings.
In general, the types of challenges available can be divided into what two categories?
1. the defendant may object to the court's power to entertain the action. 2. the defendant may object to the complaint itself.
At common law, the ability to what was virtually nonexistent?
Amend (change/fix) the pleadings.
No variance was tolerated between the pleadings and the proof at trial and a departure in the evidence from the issue as framed in the pleadings resulted in the dismissal of the suit. True or False?
- Modern code and federal practice differ radically from this approach.
-Amendments to the pleadings are allowed quite freely.
-Courts generally exercise their discretion and refuse an amendment only if allowing it would cause undue prejudice to the opposing party.
What is a Counterclaim?
Where the Defendant turns around and sues the Plaintiff in their answer.
What is a Cross-Claim?
Where the Defendants sue each other.
In some states, all claims asserted by a defendant are denominated "cross-complaints." True or False?
Other states, as well as the federal courts, distinguish between claims asserted against opposing parties ("counterclaims" and claims between co-parties "cross-claims"). True or False?
When is Discovery used?
It is part of the Pre-Trial Litigation Process.
Why is Discovery used?
1. It can be used to preserve evidence of witnesses who may not be available at the time of trial (ex: in Civil Action book, Joe Palino was dying so they arranged a bedside deposition). 2. to reveal facts. 3. to aid in formulating the issues. 4. to freeze testimony to prevent perjury (a court reporter is present to get down every detail so if they change it, there's proof they were lying.) 5. to prepare a case for summary judgment when the parties discover that the only issues in contention are those of law (only get it if there's no issue of disputed fact) 6. to promote settlements (used to see how small or big your case is) insofar as the parties are able by careful inquiry to test the strength of their opponent's case.
What are Interrogatories?
Written questions that can only be sent to other parties in the lawsuit to be answered under oath.
What happens if Defendant does not Answer within 20 days?
It will be deemed automatically admitted. Default judgment.
How many U.S. District Courts are there?
94 overall. There's at least one in every state.
How many U.S. Courts of Appeal-Circuit Courts- are there?
There are 13.
What U.S. Circuit Court are we in PA?
We are the 3rd Circuit Court.
What percentage of cases are taken at the U.S. Supreme Court level?
What is issued to get to the U.S. Supreme Court level?
A writ of certiorari.
Judges are appointed by whom to get to the Federal level?
How long is a Judge to remain in office?
Can remain in office a lifetime.
If a Judge is reported for bad behavior, how can he/she be removed from office?
Can be impeached.
How long do state court Judges serve?
A 10-year term.
How many Justices are there in the U.S. Supreme Court?
What are the exceptions to Standing to Sue- filing on behalf of someone?
If the person is a minor or the person filing is appointed guardian.
What does commenced mean?
Where it began.
What is a Screening Device?
If someone doesn't allege things properly - doesn't supply enough facts - judge will give them a chance to fix or just dismiss it (screened out).
Who serves our complaints in state courts?
In federal courts, who serves the complaint?
Any person that is of the age of 18 years old, that is not a party to the lawsuit.
Pre-Trial and Before Filing includes
1. Inciting event 2. Consult w. Attorney 3. Fee Agreement 4. Investigation
Filing Suit includes
1. Complaint 2. Gets served to Defendant 3. Answer to Complaint 4. Closed
After Filing, what's next?
The Discovery process.
What's after Trial?
Enforcing the Judgment.
What should be thought about even before filing suit?
Enforcing the Judgment- if case is worth the amount asked for. Pray for Judgment.
What are district justice courts? What are the limits for bringing an action in these courts in PA?
Small Claims Court. Not to exceed $12,000.
What do "long arm statutes" permit courts to do?
They permit courts to exercise jurisdiction over persons outside the area who have MINIMUM contacts within it.
What are 4 historic FUNCTIONS associated with pleadings? (4 purposes of pleadings)
1. Notice Given 2. Screening Device 3. Fact Revelation 4. Issue Formulation
What is the first step in the LITIGATION process? (What starts the lawsuit in the court system?)
In PA, how many days does a Defendant have to file an Answer?
The American judicial system is an adversarial system. True or False?
A court with limited jurisdiction can decide virtually any type of case. True or False?
Concurrent jurisdiction exists when ONLY state courts or ONLY federal courts have authority to hear a case. True or False?
The federal courts handle the majority of litigation filed in this country.
It is possible to have a situation where more than one county is the proper venue for you to file your lawsuit.
Which would you NOT expect to see at an appellate court?
a. A panel of judges
b. Legal briefs
c. Oral argument
d. Witness testimony (ANSWER)
What happens if a defendant does not respond to a complaint?
a. Preliminary Objections are filed.
b. Voir dire takes place.
c. A default judgment is obtained (ANSWER)
d. All of the above.
What is a pre-trial conference?
A meeting between the attorneys and the judge prior to the beginning of trial.
In Lycoming County, where will the pretrial conference be held if one of the parties to an action is pro se?
Alternatively, if the parties are all attorney represented, the pretrial conference will be held where?
For what 2 purposes is a pretrial conference held?
To make the trial more efficient and encourage out-of-court settlements.
How is a judge made aware of the facts and legal issues involved in a case prior to the pretrial conference?
What is a summary judgment?
A procedure in which a party can obtain a final binding determination on the merits of a case without the necessities of a full trial.
For what 2 reasons are summary judgment motions filed?
To avoid unnecessary trials and to simplify the trial.
Name 2 of the 3 instances in which a default judgment can be obtained.
The defendant fails to appear or answer in response to a complaint, defendant fails to comply with a court order or appear at trial.
Local rules generally provide specific information as to what is to be included in a pretrial statement. True or False?
A court can enter summary judgment if all that remains are genuine issues of material fact. T or F?
Most summary judgment motions are filed before the pleadings are closed. T or F?
The party moving for summary judgment bears the initial burden of showing the summary judgment standard has been met. T or F?
When the court enters a default judgment, it is treated as a concession on liability. T or F?
What is the difference between a judgment of Non Pros and a Judgment by Default?
A judgment of Non Pros is when a party files a writ to reach the statute of limitations time limit but fails to file complaint in a reasonable amount of time after. Judgment by Default is when a party does not files an answer to complaint, appear at trial, or comply with a court order.
When is a Motion for Summary Judgment filed?
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial.
When is a plaintiff required to file a pre-trial statement?
A pre-trial statement shall be filed: 1) by the plaintiff no later than 60 days prior to the earliest trial date.
Can a judge refuse to allow a party to introduce evidence at trial if the information is not disclosed in the pre-trial statement?
What happens if a party fails to respond to a Motion for Summary Judgment?
Summary judgment can be entered against a party who does not respond.
What is the process of the Trial?
1. Plaintiff's counsel makes an opening statement. 2. Defendant's counsel makes an opening statement. 3. Plaintiff's witnesses and evidence are examined and cross-examined. 4. Defendant's witnesses and evidence are introduced, and cross-examined. 5. Plaintiff and Defendant may then be allowed to introduce rebuttal evidence. 6. After all of the evidence has been submitted, each side makes a closing argument. 7. If no jury- the judge will then evaluate the evidence and render a judgment. 8. If a jury- the judge instructs the jurors as to the law to be applied. 9. The jury then retires to deliberate in order to render a verdict.
Each court system has its own set of evidentiary rules and the character of the trial may vary somewhat depending on what types of evidence are permitted to be introduced. T or F?
What is the General Rule of Evidence?
Proper evidence or testimony is that which is relevant and not privileged or hearsay.
When must counsel raise evidentiary objections?
Immediately when the evidence or testimony is about to be given or they will be waived.
The jury trial is a fundamental part of the Anglo-American dispute resolution process. T or F?
The jury trial was first formalized in the 12th century in England during the reign of King Henry II and it fast became a hallmark of the common law courts. T or F?
What did the Jury Trial use to be like?
It was composed of 12 men from the community. Those men were asked to determine what were the actual facts underlying a controversy and the judge would then apply the law. The jury's decision had to be unanimous.
Although the form of the jury remained the same when it was transplanted to the American colonies, it assumed additional meanings, T or F?
Jury trial became a symbol of American freedom or popular justice versus the king's justice and remains at the core of the civil trial system in the U.S. T or F?
Several state and federal courts have modified the original character of the jury to allow juries composed of what?
Less than 12 members, as well as use of non-unanimous verdicts.
The role of the jury remains unchanged- meaning what?
The jury is to decide questions of fact and the judge determines issues of law.
In a few state courts, is the jury trial default or does it have to be requested?
If not requested to a non-jury, a jury trial is the default.
In most states, is the jury trial default or does it have to be requested? If not requested, what happens?
It has to be requested within the statutory period or the right to trial by jury is waived.
What are the 3 methods or procedures designed to ensure that the jury performs its proper rule?
1. The evidentiary rules- limit the jury to considering only legally relevant and generally reliable evidence in determining the facts. 2. The judge sustaining objections to proposed evidence or testimony protects the jury from considering possibly irrelevant and prejudicial matters. 3. The judge's instructions to the jury describe and define the proper scope of its inquiry.
What is the Jury Selection process?
1. The process begins by notices sent to community members by the court clerk requesting them to appear and be placed in the jury pool. 2. Potential jurors may exclude themselves if they fit under statutory exceptions. 3. Individual jurors from the array are selected to sit on a specific case (panel) after being examined before the court and this screening is called Voir Dire.
Excuses from the jury service usually are limited to what?
a. vocational categories (firefighters or doctors)
b. Health reasons
d. if they can show that it would be an undue hardship to serve
What does the screening process of Voir Dire entail?
In some courts, the judge asks the jurors all questions; the attorneys submit in advance any questions like they would like answered. In other courts, the attorneys themselves conduct voir dire.
What is the purpose of Voir Dire?
To determine if any prospective jurors are likely to be biased or prejudiced in the case that they could not reach an independent judgment based on the facts presented.
If it looks like a prospective juror is biased in the case so that they could not reach an independent decision based on the facts of the case, what then?
The attorney may challenge FOR CAUSE and, if the judge agrees, that person will be disqualified.
Attorneys are also given a limited number of what by which they can reject a potential juror without stating the reasons?
By careful use of their peremptory challenges, trial attorneys shape the character of each jury. T or F?
The only limitations on the use of peremptory challenges is what?
They cannot be used to exclude jurors on the basis of their race of gender because doing so violates the rights of the excluded jurors.
Directed Verdict Motions made be made by whom and when?
Either party at the close of their opponent's evidence.
What is the theory behind the Directed Verdict Motion?
That there is insufficient evidence to go to the jury or that the evidence is so compelling that only one result could follow, so that to save trial time, the court should enter a judgment for the movant.
What are the 2 different formulations of the standard for granting a directed verdict?
The scintilla test and the substantial evidence test.
What is the Scintilla Test?
The court will deny the motion and refer the case to the jury if there is a scintilla, or any, evidence on which the jury might possibly render a verdict for the nonmovant.
What is the Substantial Evidence Test?
The court will grant the motion unless there is sufficient or substantial evidence suggesting that the jury might decided for the nonmovant.
After the jury has rendered its verdict, either party may make what?
A post-trial motion.
The prevailing party usually requests that a court enter what?
A judgment in accordance with the verdict.
The nonprevailing party frequently files what?
A Motion for a New Trial or a Motion for Judgment N.O.V.
When can a new trial be granted?
The judge will grant the motion for a new trial only if he/she believes that the jury was in error and that it is not appropriate to grant judgment for the other side,after looking at all the evidence.
Why else could a new trial be granted?
On the grounds of newly discovered evidence, misconduct by the participants during the trial, or an error by the judge.
What does JNOV stand for?
JudgmentsNotwithstanding the Verdict.
When will JNOV ever be granted?
Only if the jury's verdict was unreasonable and erroneous.
What happens when the judge grants JNOV?
Then the jury's verdict will be set aside, and a judgment will be entered in favor of the opposing party.
What is the major difference between JNOV and a directed verdict motion?
Since 1991, the motion for JNOV and a directed verdict motion have been called by the same name, motions for judgment as a matter of the law, in the federal system. T or F?
When is JNOV motion made, to who, and seeks what judgment?
A JNOV motion is made to the trial judge after the verdict is rendered (usually within 10 days of the verdict) and seeks a judgment contrary to it on the ground that there was insufficient evidence for the jury to find as it did.
The availability of a JNOV motion encourages what?
The judge to ease back on the directed verdict motion. The judge can submit the case to the jury, and in many cases the verdict will be the same as would have occurred on the directed verdict motion.
Some judgments are self-enforcing. T or F?
True. Examples; Judgments declaring the law or quieting title.
Other judgments may require the losing party to pay money or to complete some act. T or F?
In some of these cases a judgment winner does not need to use any enforcement method because the loser simply pays the judgment or complies with the decree. T or F?
The uncertainties of the litigation process are compounded by the lack of guarantees that any judgment will be enforceable. T or F?
If the defendant does not have the funds available to pay the judgment, the plaintiff can go back to the court and request that the court issue what?
A Writ of Execution.
What is a Writ of Execution?
It is an order directing the sheriff to seize and sell the defendant's non-exempt assets, or property.
The proceeds of the sale are then used to what after a Writ of Execution?
To pay the damages owed, and any excess proceeds are returned to the defendant.
What are some exempt assets (certain things you cannot take from people) regarding a Writ of Execution?
Bibles, sewing machine, school books, uniforms, equipment you need for your job, wearing apparel, if they see up to $300 in cash left around they won't take it. These are things that will enable you to pay the debt, to not leave you entirely in destitute.
In most states, certain property is exempt from execution or attachment. T or F?
Most jurisdictions authorize an appeal only from what?
the entry of a final judgment in the action.
The final judgment is defined as what?
That order leaves nothing to be done in the action except to execute on the judgment. It concludes the rights that were subject to litigation.
The Rationale of the Final Judgment Rule is what?
To obtain judicial economy- a single appeal in which all objections to the trial court's rulings are raised should be more efficient than several appeals.
Appealable Issues are what?
Only rulings that were objected to in the trial court may be presented by the appellant and the losing parties may appeal all adverse rulings to which they objected.
The scope and standard of review that will be used by the appellate court will depend on what?
It will depend on the nature of the alleged error- whether it involved an issue of fact or one of law- as well as whether the trial was before a jury or not.
What does an Appeal Entail?
A. Filing the Appeal
B. Appellate Review
What does Appellate Review entail?
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