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Chapters 6-10 Civil Procedure

Terms in this set (110)

Fla.R.Civ.P. 1.140 states a response to a complaint must be filed within ____ days?
20
What are the three general categories of responses to a complaint?
Contest the action, negotiate a settlement, or do nothing
What are the two primary categories of contesting an action?
Contesting the facts and contesting the action on a legal basis
How are stipulations enlarging time most frequently accomplished?
An agreement and letter between the parties' attorneys
How can you enlarge time if the other Party/Attorney doesn't agree?
Motion to Extend or Enlarge time
What is an open stipulation?
an agreement b/t parties that a defendant need not answer until specifically notified by the Plaintiff to do so
What should be done before filing a Motion to Extend/Enlarge time to file an answer?
Speak with the other Attorney and ask for an extension
What is a general denial?
Defendant denies all of the allegations contained in the complaint
What is specific denial?
An answer in where the Defendant specifically replies to each contention or paragraph in the complaint
What is qualified denial?
When a defendant expressly admits or denies certain allegations, then denies everything else.
Affirmative defenses
a fact or circumstance that defeats the plaintiff's claim, even if the plaintiff can prove every contention
What is counterclaim?
claim for relief made by a defendant against the plaintiff
What is a crossclaim?
one defendant asserts a claim against a co-defendant
What is third party claim?
Defendant files a claim against a new party
What are legal challenges to a claim?
Motion to dismiss, motion for a more definite statement
What may result as a failure to file a response to a complaint?
Judgment by default
What is Florida's procedure for obtaining default judgment?
...
What are some specific examples of affirmative defenses?
assumption of the risk, contributory negligence, injury by fellow servant
What are the elements of an answer to a complaint?
Caption, Body, Prayer, Signature, and maybe verification
Are verification needed on all pleadings?
No, not needed in Federal court and not all state courts
What is a certificate of service?
A verification that a pleading was sent to the other party or their attorney
Who is served when a document is e-filed?
The other party's attorney or themselves if pro se
How is a pleading amended in FL?
Can be done at any time before a responsive pleading is served or if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, it can at any time within 20 days after it is served.
What is a compulsory counterclaim?
facts are related but not exactly the same
What is a permissive counterlaim?
same set of facts are used
What is indemnification?
a concept allowing a defendant who has paid a judgment to seek reimbursement from another more culpable party
What is the time frame in which a party must respond to a crossclaim or counterclaim?
20 days
What does ex parte mean?
Proceeding in which only one party needs to be present
What is a notice of hearing?
A notice to the other party that you have set hearing before a judge
What documents are included in a motion?
The motion, Notice of hearing, Memo of points and authorities in support of motion
Is a memo of points and authorities a requirement?
Yes, in some courts (not here)
How do you set a hearing?
Coordinate a time with the opposing attorney and set a time with the judge (call Clerk or JA)
What is a tentative ruling?
A judge's tentative ruling after reviewing docs before hearing oral arguments
If FL, who drafts the order after a motion?
The prevailing party
What is a sanction and what are some examples?
Punishment for abusing the motion process; award of attorney's fees for the other side, contempt of court
What is a motion to dismiss?
asking the court to terminate the lawsuit immediately
What is a motion for more definite statement?
Requires the claimant to clarify the allegation(s)
Motion to strike?
Request for the court to delete portions of a pleading that are insufficient, redundant, immaterial, etc.
Motion to amend?
Request to allow a change in a pleading
motion for judgment on the pleadings
Moving party claims that no contested issues remain and a judgment can be entered
Motion to quash return of service?
Motion made by a defendant who claims they were improperly served with the summons and complaint
Motion in limine?
A request that the court delete all or part of a pleading
Motion for judgment as a matter of law?
made during or after trial asking the judge to rule in their favor because the other side produced no evidence on which a judgment can be made
motion for a directed verdict
a request that a judge reverse the jury's verdict
Motion for a protctive order?
asking the court to limit the discovery process
motion for summary judgment
Request that a judgment be entered immediately because there is no genuine dispute as to any material fact
What is an injunction?
An order for one party to take some action or stop some conduct
What is discovery?
procedure to uncover facts in a lawsuit
What is the purpose of discovery and it's value in a case?
Helps to establish facts in a case
Objectives of discovery?
To prevent one party from winning by surprise or trickery; determine truth or falsity; examine facts ad advise on proceeding or settling; preserve testimony
What are the preliminary considerations regarding discovery?
Best techniques for discovery and cost and amount of time involved
Name at least five (5) methods of discovery.
Depositions, interrogatories, request for docs, request for physical/mental exam, request for admission
What is the definition of ESI?
Electronically stored information- encompasses all computer-generated records such as those found in app records, back up tapes, blogs, "cookies, etc
What are three categories of discoverable ESI?
based on configuration of computer system, based on nature of evidence, based on own storage status
What is spoliation of evidence?
Altering, concealing, falsifying, or destroying evidence
Is preservation of ESI a strict liability concept?
No
What is the purpose of a spoliation sanction?
Not to punish but rather to ensure compliance with the rules of civil procedure.
What are the three (3) primary sources of Florida's ESI law?
...
Two primary Florida rules which address ESI?
1.285 and 1.380
Name at least four (4) characteristics of ESI?
exists in large quantities, accessibility problems, need to review for privilege and privacy, cost is very hight
What is a spoliation letter?
letter to opposing party placing them on notice that they should make an effort to preserve all ESI
Regarding ESI, what advice/directions should be given to a firm's client regarding any ESI that may be discoverable?
Don't delete anything
What is "chain of custody"?
a record of who received, handled, evaluated, and safeguarded evidence
What are the two levels of ESI?
reasonably accessible and not accessible
What are some of the limits on discovery?
Privileged info
What is a confidentiality agreement?
used to protect confidential info for being revealed during discovery
Protective order?
an order protecting a party in a suit form revealing info to another party who has requested that evidence
Does Florida have a "mutual discovery" rule?
...
What principle or concept does the Zubalake case stand for? Do all Florida courts employ this concept?
analytical process that provides the court w/7 factors determining who should pay and how much RE: ESI; Yes, all have a proportionality test
What is a deposition?
out of court question and answer session conducted under oath
What is a deponent? Sponsor? Defender?
Deponent is being questioned; sponsor is the attorney taking depo; Defender is attorney for the person being questioned
What are the two general categories of depositions?
Oral and e-deposition
What is the court reporter's role in a deposition?
to create a transcript
What is a transcript? And what are some of the uses of a transcript?
Electronic or word processed copy of the testimony of a witness; to preserve testimony
What are some of the advantages of an oral deposition?
gives the attorney the chance to see how witness will do on the stand; can be used to preserve testimony of an unavailable witness
What are some of the disadvantages of the oral deposition?
expensive and time-consuming
What are some roles of the paralegal in the deposition process?
Prepare documents, scheduling
What are some of the duties of a paralegal during a deposition?
Note taking, witness evaluation
Who can depositions be taken of?
Parties and witnesses
Is formal notice of taking a deposition required?
Yes
What is the paralegal's role after the deposition?
assume responsibility for the transcript, prep depo summary
What is a deposition summary? And what are the types of summaries?
Page-line, topical, chronological
What is a deposition upon written questions?
depo before a court reporter that consists of oral responses to written questions
What are the advantages of written deposition?
Cost is lower
What deponent types are most commonly subjected to written deposition
Minor witnesses whose oral depo could be expensive due to distance
What are some of the practical recommendations given to your client prior to a deposition? (5 c's)
appear confident, clear and convincing, correct, candid
What are interrogatories?
written questions submitted by one party to another in a lawsuit
Who may interrogatories be directed to?
Only parties in a lawsuit
Are interrogatories under oath or sworn to?
Yes
In Florida does a party need leave of court to serve interrogatories?
No
In Florida, is there a limit on the number of interrogatories that may be propounded to the receiving party?
30
Must all of the interrogatories be propounded in one episode?
No
In Florida, what is the scope of interrogatories?
Wider than at trial
What is the purpose of interrogatories?
obtain info about the case, determine party's contentions, impeach witnesses at trial
What are some advantages of interrogatories?
simple, inexpensive, and efficient; more thorough than depositions
What are some of the disadvantages of interrogatories?
limited to parties in the suit; do not eliminate the need for a depo; lack spontaneity
What are some of the preliminary steps a paralegal should utilize in preparing interrogatories?
familiarize yourself with the facts of the case as well as policies and procedures
For the most effective interrogatories, what should be contained in the interrogatory request?
definitions and instructions
What are some of the goals of interrogatories?
...
What is the time limit for responding to A request for interrogatories?
30 days
When does this time frame start?
When the paper copy has been served
Compare and contrast the differences between interrogatories and deposition and how do they relate to one another?
Interrogatories are limited to parties only, interrogatories are limited to 30; Both are used to gain info for the case
According to your instructor, which discovery device should be employed first between the two?
Interrogatories; so that you can fine-tune issues for depo
Is a party required to conduct depositions and issue interrogatories?
NO
What are some of the possible sanctions for failure to respond to interrogatories?
striking pleadings, payment of expenses, staying further proceedings
The components of responding to interrogatories?
check deadlines, review pleadings for contradictory answers, review possible objections
Does a party have a duty to supplement their interrogatories?
yes
What are some of the basis for objecting to interrogatories?
Privilege (atty-client, medical, work product); inadmissible and irrelevant; overbroad, vague, unintelligible; unduly burdensome; confidentiality or protective orders
What motion device might a party employ should a party fail to respond to the interrogatories?
Motion to Compel
Should a party desire to ask more than the allowable number of interrogatories, what steps should the attorney for that party take?
leave of court
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