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Para Final Review
Terms in this set (168)
What is a demurrer?
Attack on the complaint; claims complaint is defective .
When is the demurrer filed?
Within 30 days after service of S & C.
What are the two types of demurrers?
General Demurrer and Special Demurrer
What is a general demurrer?
1. Court lacks subject matter jurisdiction
2. Plaintiff fails to state c/a - there's a defect.
3. Grounds not waivable
What is a special Demurrer?
Defendant cites one of 5 grounds (grounds are waivable):
1. Plaintiff lacks capacity
2. Another action is pending.
3. Defective Joinder
5. Plaintiff fails to state whether contract is oral or written.
What are the two types of reasons for a demurrer?
Substantive reasons, Strategic reasons, and Balance Reasons
What are the substantive reasons for a demurrer?
1. To narrow issues
2. To clarify legal issues; avoid legal theories that have no facts to sustain
3. To remove extraneous claims
What are the strategic reasons for a demurrer?
1. To set the tone of the litigation
2. To remove defective/extraneous claims
3. To shorten trial
What is the Balance reasons for a demurrer?
Against cost of bringing
A Demurrer is a responsive pleading in place of an Answer, but treated as a _____________.
What are the required documents for demurrers and motions?
1. Filed by Defendant or Moving Party:
a. Notice of Demurrer/Motion b. Demurrer/Motion
c. Memorandum of Points and Authorities ("P&A")
d. Reply to opposition to Demurrer/Motion
2. Filed by Plaintiff or Responding Party
a. Opposition to Demurrer/motion
How many days notice must you give in order to hear the motion/demurrer case in court?
Minimum of 16 court days (motion calendar)
What are the terms a judge uses to approve or deny a demurrer/motion?
Sustains demurrer or grants motion
Overrules demurrer or denies motion
What is a motion to strike?
Requests the court to delete a portion or all of the complaint
Does a motion to strike have to be filed separately from the demurrer?
The motion to strike may be accompanied by a demurrer or filed separately from the demurrer.
What does the term "default" mean?
Failure of a party (defendant) to respond to the complaint within the time allowed
Can default or a default judgement be set aside?
Yes, the defendant may move to have the court set aside a default tor default judgment by a showing of good cause (like excusable neglect) and you must show a viable defense
What happens during a default judgment?
1. After a case takes default judgment, a specific sum can be entered or calculated
2. Can be entered by the clerk on motion - limited by the amount specified in the prayer of the complaint
3. Can be proven-up at hearing in court
Principal fact-gathering method; process by which parties investigate facts/issues of case; permits party to ask for basis of claims/defenses from other side using devices permitted by law
What is the purpose of discovery?
1. Focus issues of case - clarify; eliminate
2. Prepare and improve presentation at trial
3. Eliminate surprise
What are some disadvantages of discovery?
2. Opens up more disputes during litigation
2. Educates the opposition; can see weak points
What are the discovery devices?
2. Requests for admissions
4. Document Requests
5. Independent Medical Exam
6. Expert Discovery (Exchange of experts)
All discovery requested must have _____________ to the action, or be related, before it will be permitted.
What is the standard for relevancy?
As long as the discovery request is calculated to lead to admissible evidence, then such information may be obtained
Means the law protects the information from discovery by the opposing side
What are the two types of privilege?
Attorney client privilege
Attorney Work Product Privilege
What is the attorney-client privilege?
1. Refers to oral or written communications between attorney and client
2. Gives client ability to say anything to client and allows attorney to give the best representation
What is attorney work product privilege?
1. Refers to the mental impressions of attorneys and their employees (i.e. paralegals, investigators) regarding the case
2. Allows attorney the freedom to think and research on behalf of client without danger of disclosing to opposing side
What are the 7 steps of the discovery strategy
1. What facts are needed to establish a winning case on the client's claims (or to defeat the opponent's claims)?
2. What facts already have been obtained through informal fact investigation?
3. What "missing" facts must still be obtained through formal discovery?
4. What discovery methods are most effective for obtaining the missing facts?
5. What facts and witnesses, already identified through informal investigation, must be pinned down by formal discovery?
6. What restrictions does the client's litigation budget place on the discovery plan?
7. In what order should the discovery proceed?
What is the purpose of the discovery strategy?
It is an organized approach to discovery serving as a guide and time table to discovery.
It lays out what needs to prove/need to know; what claims/defenses there are and the corresponding way to learn such information.
According to the state law, how long is the plaintiffs hold on discovery.
The hold on plaintiff is a 10 day hold to which the plaintiff may not begin discovery after the plaintiff has served S & C
According to the state law, what is the discovery Cut- off?
Both plaintiff and defendant must end discovery no later than 30 days prior to trial.
What is the discovery timing according to Federal law?
1. No hold on either party
2. Trial court sets discovery cut-off date.
What is the definition of an Interrogatory?
Written questions propounded (asked/sent) by one party to another party to the action
Responses to Interrogatories are given under __________ using a ______________; treat as evidence
How long does the plaintiff and defendant wait to propound interrogatories?
1. Plaintiff - waits until 10 days after service of s & c
2. Defendant - not required to wait, so may start at any time
What are the advantages of interrogatories?
a. Not expensive.
b. Doesn't require atty. to handle.
c. Able to obtain all information within responding party's knowledge plus any information available to party.
d. Doesn't depend on party's memory at moment; party can check records, etc.
e. Able to ask about other party's legal contentions (theories).
What are the disadvantages of interrogatories?
a. Responding party may object with subsequent dispute.
b. Responses are not spontaneous b/c atty./paralegal drafts. (Party has input and signs verification.)
c. Limited to use with parties (not able to propound on 3rd party witnesses).
What are form interrogatories?
It is a judicial council developed check off set of interrogatories that are used for basic information (any type of claim - works well with personal injury and collection matters)
What are the advantages of form interrogatories?
1. No objections
2. Do not count against the "rule of 35" limit which applies to special interrogatories
What are special interrogatories?
1. Drafted for a particular case
- For information trying to obtain in the most precise way to ask for it
2. Signed by attorney for propounding party
What is the format for special interrogatories?
1. On pleading paper
2. Use case caption
3. Identify propounding and responding party and set no. at beginning. Each set propounded from one party to other party numbered consecutively
What are the written requirements of a special interrogatory
1. Each question full and complete; no preface or instructions outside of question
2. No use of definitions for an entire set of interrogatories; able to define terms within an interrogatory, only
3. No compound interrogatories
4. No sub-parts to interrogatories.
What are the types of special interrogatories?
3. Identification of documents
What is Rule 35?
It is a limitation towards special interrogatories to which each party may ask up to 35 special interrogatories of every other party to the action
What are the exceptions to Rule of 35?
1. Form Interrogatories
2. Supplemental interrogatories
3. Declaration of Necessity
4. By stipulation (agreement)
5. By noticed Motion
How do you serve interrogatories?
Serve original copy on responding party with copy of proof of service attached. (Keep original proof of service in file)
Serve copies on non-responding parties to the action with a copy of POS attached (keep original POS in file)
When are responses to Interrogatories due?
30 days after service by had
35 days after service by mail
can be extended by stipulation between parties (counsel)
In what ways are you able to respond to interrogatories?
1. Respond to each interrogatory
2. Able to object and not respond
3. Also able to obtain protective order, so don't have to respond.
What are the grounds for objections in responding to interrogatories?
How do you answer an interrogatory?
1. Answer as narrowly as possible
2. Do not. refer to other. documents or incorporate previous responses
3. Make good faith effort to obtain requested information
4. If compilation/ summary required, then can make documents available to requesting party and let it go through documents
What is a motion to compel?
Request for an order to force a response or a "better" response; used with all discovery devices
What is a motion for protective order?
Request for an order restricting or limiting (Exempting) from discovery.
A motion to compel requires a what between two parties to attempt to resolve the dispute.
Meet and confer
Attach a declaration with description of attempts at resolution to the motion
Describe the timing of a motion
1. If there has been no response, then there is no time limit
2. If there has been an insufficient response, then the motion must be filed no later than 45 days after service of responses by hand or 50 + 5 days after service of responses by mail.
What is the definition of a deposition?
Oral testimony by a party or non-party taken by attorney; subject to cross-exam; given under oath; and recorded by court reporter, who prepares written transcript
What are the advantages of depositions?
1. Take of any witness (party or 3rd party).
2. Spontaneous responses - can see how credible the witness is
3. Requires the witness to commit
4. Preserves testimony in event witness dies or is ill at the time or trial
5. Able to ask witness to testify as to contents of documents
What are the disadvantages of a deposition?
2. Unable to control length
What is a deponent?
A witness who gives testimony at a deposition.
Can be the party, affiliated to the party, or a third party witness.
What types of depositions are available?
1. Oral depo of party or 3rd party.
2. Oral depo of party or 3rd party with requested documents.
3. Production of documents by 3rd party.
4. Depo on written questions - answered in
front on ct. rptr.
What is the limit to a deposition?
1 deposition per natural person; in a limited civil case, each party may take only 1 deposition.
What is the geographical limit to a deposition?
a. Natural person - take within 75 miles of residence; or if taking in county where action is filed, within 150 miles of residence.
b. Corporation - take within 75 miles of principal office/officer's residence; or if taking in county where action is filed, within 150 miles of principal office/officer's residence.
What is the hold on plaintiff in regards to a deposition?
Plaintiff must wait 20 days after s & c before able to NOTICE deposition
What is the minimum amount of days needed for a notice of deposition?
10 day minimum notice (if serve by hand) required before a party may take a depo (add 5 days for service by mail).
What is the deposition cut-off time?
30 days before trial, with exception of experts
What are the contents of a notice of deposition?
1. Name of deponent.
2. Time and place of depo.
3. Stmt.that will con't from day to day.
4. Audio or video taping to be used.
5. Used with both parties and 3rd parties.
6. For corporate deponent, list topics interested in,
so corp. will send most qualified person.
7. If any defect, use a motion to quash to challenge.
What are the three types of deposition subpoenas?
a. Deposition (personal app.) only.
b. Business records only.
c. Deposition (personal app.) and business records.
Can you challenge a subpoena?
Yes, by filing a motion to quash
Are there any fees to a deposition subpoena?
Fees (may serve with subpoena or give at depo); incl. witness fee, mileage, cost of copies.
What is a notice to consumer?
Protects records and privacy, must be sent to the consumer before 3rd parties can disclose information.
- Used when personal consumer records are sought.
a. Consumer records incl. bank, medical, hospital records.
- Served with depo subpoena by personal service.
- Method to protect party's privacy and record holder. Party may object to subpoena, but if doesn't, then record holder may produce records.
Where is the deposition held?
At the noticing party's choice of location
- Noticing party hires the court reporter and all counsel and parties may attend.
What is the deposition proceeding process?
1. Oath to deponent given by rptr.
2. Admonitions to witness.
3. All stmts. made during depo are recorded, unless "off the record".
3. Examination (Questioning by noticing party).
4. Cross-Examination (Questioning by witness' atty.)
5. Attys. may object; then, may instruct client not to answer.
a. Depo may terminate then until objection resolved at court by motion to compel, or
b. Depo may continue.
6. Stipulations by counsel:
a. Time to review.
b. If witness fails to sign, use of certified copy.
Transcript (Sample on Canvas) prepared and reviewed by witness - may be expedited.
Witness makes any corrections/changes and signs.
What are the paralegal duties for a deposition?
A. Depo preparation - taking depo vs. preparing witness.
B. Administrative/logistical support.
C. Assist at depo.
D. Review transcript and summarize.
1. Atty. will supervise.
2. Different uses of deposition transcript, so different types of deposition summaries.
In regards to settlements, what does "Release" mean?
Complete discharge of claims in return for settlement payment
Define covenant not to sue
Contract between parties in which party with claim (plaintiff) agrees not to sue/pursue claim
What is a structured settlement?
Settlement under which plaintiff receives payments periodically (over time)
-Secured with a stipulated judgement that can be entered if there is a default on payments under the settlement.
What is a mandatory settlement conference (MSC)?
Also called a Voluntary Settlement Conference ("VSC").
- MSC is req'd in matters other than "short- cause" (less than a day of trial).
- Held by indiv./direct cal. ct judge or 1 of settlement judges.
Written stmt. prepared for judge, but not filed.
- Trial counsel and parties attend, need authority to settle.
-If settlement reached, then judge/attys. put on the record, making agreement enforceable.
Describe CCP 998 - Offer of Judgment
Based on statute (vs. "casual" negotiated settlement).
AKA, "Offer to Settle".
- Incentive to settle. If party rejects and obtains less under judgment/verdict, is penalized financially.
- Plaintiff will not recover costs incurred after offer and must pay Defendant's costs incurred after offer.
- Defendant will pay 10% interest from date of offer (rather than date of judgment) and may also pay cost of Plaintiff's experts.
what is the time limit on CCP 998 Offer of Judgement?
- Make prior to trial up to 10th day before trial.
- Offer expires if not accepted w/in 30 days or on 1st day of trial, whichever is earlier.
What is a case management conference?
- Held pre-trial; informal (in chambers).
- Attended by attorneys; overseen by
- Case Management Stmt. req'd 15 days prior
- Topics of Discussion:
1. Issues in dispute. 2. Evidence
What are the two ways a case is set for trial?
1. Individual Calendar Court -- individual judge at status, or case mgmt.,conference.
2. Master Calendar Court - based on At-Issue Memorandum (triggers trial setting).
What does preference mean in terms of trial setting?
Preference (priority) in trial-setting - certain cases advance to top of list.
For example, injunctive/declaratory relief; unlawful detainer actions; plaintiff is at least 70 years old and ill.
What is the definition of a trial book?
Contains all documents which atty. will need close at hand during trial.
a. In past, paper; but currently, move to electronic storage (laptops, flash drives; CD/DVDs).
What are the contents of a trial book?
Motions to be made at trial.
Jury selection information.
Jury instructions (proposed or approved).
Witnesses - contact info, outline of exam; impeachment
Notes for opening stmt./closing argument.
When are jury fees due?
25 days before trial
What are jury fees?
Party who requested a jury must post the cost of one (1) day's service ($15.00) for 20 jurors (juror fees only; mileage of 34 cents/mile due later).
If parties settle before trial, refundable.
Where is the pre-trial conference held and what do they discuss during this conference?
A. Informal; held in chambers; not on the record; held few weeks prior to trial.
B. Judge and Counsel discuss status of case,
1. Logistical issues (i.e. scheduling of witnesses).
2. Evidentiary problems/disputes.
3. Trial procedures.
When a party makes a
_______________________, the party is requesting the court to bar certain evidence from orr limit the use of such evidence at trial.
motion in limine
What reading level are the jury instructions written in?
9th grade reading level
What is a general verdict?
States name of prevailing party and award, if any.
What is a special verdict?
States name of prevailing party and award, if any, plus answers questions about jury's findings
What if the courtroom is not available on day of trial?
- Case will "trail" (wait for courtroom).
- On stand-by - when court is available, may be called-in (i.e. beeper program).
When to challenge assigned judge?
- Individual Cal. Ct. - at beginning of case (time of assignment, i.e. within 15 days of first appearance).
- Master Cal. Ct. - at time assigned to trial judge (day of trial), so atty. must be prepared.
Who hears and rules on challenges ?
Judge may also recuse (disqualify) him/herself
What does the challenge "for cause" mean?
For specific reason
i.e. bias; have unlimited number of challenges
What does peremptory challenge mean?
No reason required; against judges, only one challenge per party, but against jurors, limited number set by judge at pre-trial conference
define voir dire
Process of interviewing potential jurors to find out background and biases, if any
How is voir dire conducted?
Usually, both judge and attys. conduct.
May be written or oral; use both standard and special questions.
12 jurors are selected and 2 alternates
What are opening statements?
Attorneys telling the story of their case
What are the 3 types of evidence presented in a plaintiff's case?
1. Testimonial (witnesses) by direct exam; Defendant cross-examines/impeaches; Plaintiff re-directs.
3. Demonstrative (i.e. models, re-enactments).
what does motion for directed verdict mean?
Defendants may make a motion for directed verdict by arguing that the plaintiff has failed to prove case, so court should find for defendant
Who has the last word in a closing argument?
What is jury deliberation?
- jurors considering the evidence and attempting to reach a decision
- If jury has question(s), jurors brought back to court; attys. must be available when judge answers.
- Parts of trial transcript maybe be read back to jury if requested.
- Occasionally, jury will be sequestered (if case requires, jurors not allowed to go home).
What is a jury verdict?
Jury foreperson reads in court
Superior court may have one of the following types of calendar systems - the _______ or ___________ calendar court system
In a _______________ court, the case moves from judge to judge at different stages of litigation
In a ______________ court, one judge is assigned for all purposes i.e. from the complaint until trial
After the complaint is served, the process server prepares a document called the _______________ to indicate the delivery has been completed
Proof of service
A demurrer is decided on the _______________ calendar (or by Dept)
law and motion
A single new allegation is called an ______________ to the pleading
When asking for an order permitting the filing of an additional pleading, the litigant asks for_____________
Leave of court
Use a __________ demurrer in order to challenge the subject matter jurisdiction of the court.
If a defendant chooses to attack a Superior Court Complaint, he/she files a document called a ____________
Improper material in a complaint can be attacked by a Motion to ______________ in Superior court
An _______________ may be filed before the response to the original pleading
The response to a complaint that attacks the pleading is called a _____________
A successful demurrer is ____________ by the court
A completely new pleading to replace the original complaint is called an
After the plaintiff identifies a DOE defendant, he/she ______________ the complaint to include the name
A failure to allege that a contract is oral or written in a complaint is grounds for a _______________________ demurrer
If a court does not approve a demurrer, it will _____________ it
What discovery device is used to obtain copies of documents from parties to a lawsuit.
Oral testimony may be obtained by________________
What is the investigation stage of litigation called
Which privilege protects communications between a client and his/her lawyer
Both federal and superior court procedures provide for a period prior to trial for trial preparation called the __________________
Only discovery tools which may be used against third parties are _______ and ___________
The identities of experts hired to support a party's case can be obtained through _________ and ______________
Each party in litigation is limited to ___________ special interrogatories
Interrogatories are ___________ on, or asked of, only parties to a legal action.
If a party fails to respond adequately to interrogatories, or other discovery devices, the other party may file a ____________ to obtain the responses
Motion to compel
Use the ______________ to obtain documents from third parties
A party prepares a ______________ (document) when either answering or objecting to interrogatories
The responding party to discovery requests, such as interrogatories, must _________________ their responses
Parties who cannot agree on proper responses must _______________ before filing a ____________ to obtain better responses
Meet and confer
Motion to compel
Two common ways to serve more interrogatories then allowed under the statutory limit are to use _____________ or ________________
Declaration of necessity
A party requests your client's bank produce its records of your client's business transactions. These records are called ______________ and the production of such requires special notice
deposition transcript will contain all material provided
A _____________ is used to obtain business records from a person or company not a party to the lawsuit
If the attorney requests a court reporter prepare the deposition transcript overnight, he/she is asking the reporter to ____________ the transcript
During a deposition, when counsel do not want their discussion recorded in the transcript, counsel says, _________________________
Off the record
A corporate officer or employee of a company that is a party to a lawsuit is an example of a _________________ witness
Medical records can be obtained by serving a ____________ on the treating physician
A party trying to avoid his/her deposition would file a motion to ______________ to challenge the notice of deposition
The notary who takes the deposition is called a _____________ or a ___________________
A _________________ document compels a party and a ______________- witness to attend a deposition
Notice of deposition
If medical records are sought, such personal records are referred to as _________________ and a __________________ (document) that such records are sought must be served on the patient (party)
Notice to consumer
Oral testimony at trial is obtained by direct, or cross, _____________
Client and counsel must carefully consider whether to exercise the right to a jury trial, which requires the deposit of _____________ to cover the cost of the jury
A 74 year old plaintiff suffering from a serious illness is entitled to _____________- in trial setting
The process of bringing a case to trial is called
A witness who contradicts his responses to interrogatories during a trial is subject to ______________________
Counsel may agree to reschedule, or ___________________ a witness' appearance until another day when the testimony will be needed
Most jurisdictions have programs requiring counsel and parties to attend the ______________ conference overseen by a judge prior to trial
Cases are ______________ when all the allegations have been answered
Counsel prepares a blueprint for trial, called a ______________________, which contains the pleadings, important motions, parts of discovery responses, deposition summaries, preparation for direct and cross examinations, as well as notes and memos for opening and closing statement and relevant to research
Client and counsel must carefully consider whether to exercise the right to a jury trial, which requires a deposit of ______________to cover the cost of the jury
In a master calendar court, when the parties agree that a case is ready for trial and counsel file the ______________ memorandum, the superior court will set the case for trial by placing it on the _________________
Civil active list
Counsel at judicial settlement conference must have ______________ to settle, and their clients must be present or with the court's permission, on ____________________ to authorize settlement agreements
The parties ask questions of, or interview, the potential jurors at the beginning of the trial. This process is called ________________
When the jury answers a few questions along with issuing the decision following trial, it is called a _________________ verdict
When a party challenges a potential juror without giving reason, the party is exercising a __________________ challenge
What is the basis on which a potential juror who displays overt bias during jury selection may be challenged ?
At trial, counsel must be careful that all oral rulings are preserved ________________
Prior to the plaintiff putting on his/her case, the lawyers for the plaintiff and the defendant will give __________ statements in which they introduce the parties and give an overview of the case
For a defendant to prevail at trial without putting his/her own evidence, he/she must move for a
The only time counsel may state his/her arguments to the jury comes towards the end of trial and is called _________________
When the jury decides which party should prevail and the amount of the damages to award, it is called a ______________ verdict.
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