Civil Procedure Test 2
Terms in this set (34)
Is a plaintiff permitted to serve discovery before the complaint is filed?
Yes, a plaintiff may obtain pre-complaint discovery where the info sought is material and necessary to the filing of complaint.
Under what 3 circumstances is discovery material filed with the Court?
When it's relevant to a motion or other pretrial proceeding, ordered by the court, or required by statute.
What 2 choices does a party objecting to an inquiry made during the course of discovery have?
1. answer all non-objectionable questions, registering an objection to those the party refuses to answer.
2. file a motion for a protective order to avoid responding
What if the other party does not answer?
Motion to Compel, Motion for Sanctions
The attorney-client privilege rule protects what?
Direct communications between the attorney and the client.
What is protected by the work-product rule?
The mental impressions, conclusions, opinions or legal theories of opposing counsel.
Most discovery rules explicitly permit WHAT regarding expert witnesses?
Discovery of the name and the substance of the testimony of any expert retained for use at trial.
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 are Trial Courts?
Courts in which trials are held and testimony is taken.
What are Appellate Courts?
Courts that hear appeals from Trial Courts.
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.
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
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?
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.
Are Depositions ever on the phone?
No. Usually in person.
What are Interrogatories?
Written questions that can only be sent to other parties in the lawsuit to be answered under oath.
Do most jurisdictions limit the number of interrogatories to be asked?
What are examples of a Request for Production of Documents?
Photographs, Insurance documents, any useful documents to help a case.
When is a Request for Examination used?
If the other party place their physical or mental condition in dispute. The opposite party can have their own doctor examine the "injured' party
What are Request for Admissions?
The Defendant has to answer to complaint and say, "admit" or "deny" to every allegation in the complaint
What happens if Defendant does not Answer within 20 days?
It will be deemed automatically admitted
Where are the rules of Discovery?
In the Federal and State Rules of Civil Procedure.