Business Law - Chap 4
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What are the Pretrial Litigation Process?
- paper work that inities and responds to a lawsuit. They include:
- 1. Complaint
- 2. Answer
- 3. Corss-complaint
- 4. Intervention
- 5. Consolidation
- process of discovering facts of the case from the other parties and witnesses
Dismissals and Pretrial Judgements,
- 1. Depositions
- 2. Interrogatories
- 3. Production of documents
- 4. Physical and mental examiniation
What is Pleadings?
the paper work that is filed with the court to initiate and respond to a lwsuit is referred to tas pleadings. The majority pealdins are the complain, the answer, the cross-complaint and answer (reply).
What is a Complaint?
filed by the plaintiff with the court and served with a summons on the defendant. it sets forth the basis of the lawsuit. (Part of Pleadings of pretiral litigation process)
Who is a plaintiff?
party / person who is suing. Person who files and starts the the case.
What is a summons?
A court order directing the defendant to appear in court and answer the complaint. The compalin and summos are served on the defendant by a sheriff, another government official or private process server.
What is an Answer?
which is filed by the defendant with the court and served on the plantiff. It usually denies most allegations of the complain. (Part of Pleadings of pretiral litigation process)
What is a default judgement?
A default judgement establishes the defendant's liabilty. part of Pleadings and reply / answering process) if the defended does not respond or answers the complaint, a default judgment is entered against him or her. Then the pleintiff then has only to prove damages.
What is affirmative defenses?
In addition to answering the complain, a defendant's answer can assert affirmative defenses. For example, if a complaint alleges that the plaintiff was personally injured by the defendant, the defendant's answer could state that he or she acted in selfdefense.
Another defense would be an assertion that the plaintiff's lawsuit is barred because the statute of limitations (time within which to bring the lawsuit) has expired.
What is statute of limitations?
Time within which to bring the lawsuit
What is Cross-Complaint?
filed and served by the defendant if he or she countersues the plantiff. The defendant is the cross-complainant, and the plaintiff is the cross-defendant. The defendant is cross-defendant must file and serve a reply(answer). (Part of Pleadings of pretiral litigation process)
A defendant who believes that he or she has been injured by the plaintiff can file a cross-complaint against the plaintiff in addition to an answer. In th ecorss- complaint, the defendant 09now the corss-complainant) sues the plaintiff (now the corss-defendant for damages or some other remedy. The original plaintiff must file a reply (answer) to the cross-complaint. the reply, which can include affirmative defenses, must be filed with court and served on the original defendant.
Type of Pleadings / Description
1. Complaint - a doucment filed by a plaintiff with court and served with summons on the defendant. it sets forht the basis of the lawsuit.
2. Answer - a document filed by a defendant with a court and served on the plaintiff. It usually denies most allegations of the complaint.
3. Cross-complaint and reply - A document filed and served by a defendant if he or she countersues the plaintiff. The defendant is the corss-complainant and the plaintiff is the cross-defendant. The corss-defendant must file and serve a reply(answer).
What is Intervention?
a person who has an interest in a lawsuit may intervene and become a party to the lawsuit. (Part of Pleadings of pretiral litigation process)
What is Consolidation?
a court may consolidate separate cases against the same defendant arising from the same incident into one case if doing so would not cause prejudice to the parties. (Part of Pleadings of pretiral litigation process)
What is Statue of Limitations?
Statue of Limitations establishes the period during which a plaintiff must braing a lawsuit against a defendant.
What are Depositions?
Depositions are oral testimony given by a deponent, either a party or witness. Depositions are transcribed. (Part of Discovery of pretrial litigation process)
What is Interrogatories?
Written questions are submitted by one party to the other party. They must be answered within a specified period of time. (Part of Discovery of pretrial litigation process)
What is Production fo documents?
a party to a lawsuit may obtain copies of all relevant documents from the other party. (Part of Discovery of pretrial litigation process)
What is Physical and mental examination?
Examinations of a party are permitted upon order of the court where injuries are alleged that could be verified or disputed by such examination. (Part of Discovery of pretrial litigation process)
What is Dismissals and Pretrial Judgements?
1. Motion for Judgement on the Pleadings
2. Motion for Summary Judgment
What is Motion for Judgement on the Pleadings?
alleges that if all facts as pleaded are true, the moving party would win the lawsuit. No facts outside the pleadings may be considered. (part of Dismissals and Pretrial Judgement)
What is Motion for Summary Judgment?
alleges that there are no factual disputes, so the judge may apply the law and decide the case without a jury. Evidence outside the pleadings may be considered ( e.g., affidavits, documents, depostiions) (part of Dismissals and Pretrial Judgement)
What is a Settlement Conference? aka Pretrial hearing
The settlement Conference aka pretrial hearing occurs prior to trial between the parties in front of the judge to facilitate the settlement of th ecase. If a settlement is not reached, the case proceeds to trial.
List the Phases of a Trial
- Jury Seleciton
- Opening statements
- The plaintiff's case
- The defenddant's case
- Rebuttal and rejoinder
- Closing arguments
- Jury Instructions
- Jury deliberation and verdict
- Entry of Judgement
What is Jury selection?
It occurs through a process called voir dire. Biased jurors are dismissed and replaced. (Phases of a Trial)
What is are Opening Statements?
The parties' lawyers make opening statements, which are not evidence. (Phases of a Trial)
What is meant by "the Plaintiff's case" during the process of a trial?
The plaintiff bears the burden of proof. The plaintiff calls witnesses and introduces evidence to try to prove his or her case. (Phases of a Trial)
What is meant by "The defendant's case" during a trial?
The defendant calls witnesses and introdcues evidence to rebut the plaintiff's case and to prove affirmative defenses and cross complaints. (Phases of a Trial)
What is rebuttal and rejoinder ?
- The plaintiff and defendant may call additional witnesses and introduce additioanl evidence.
- (Phases of a Trial)
What are closing arguments during a trial?
The parties' lawyers make closing arguments, which are not evidence. (Phases of a Trial)
What are Jury instructions?
The judge reads instructions to the jury as to what law they are to apply to the case. (Phases of a Trial)
Explain Jury Deliberation and verdict?
The jury retires to the jury room and deliberates until it reaches a verdict. (Phases of a Trial)
What is Entry of Judgement?
- The judge may:
- a. Enter the verdict reached by the jury as the court's judgement
- b. grant a motion for judgement n.o.v. if the judge finds that the jury was biased. This means that the jury's verdict does not stand.
- c. Order remittitur (reduction) of any damages awarded if the judge finds the jury to have been biased or emotional.
(Phases of a Trial)
What is an Appeal?
Both parties in a civil suit and the defendant in a criminal trial may appeal the decision of the trial court. Notice of appeal must be filed within a specified period of time. The appeal must be made to the appropriate appellate court.
What is Alternative Dispute Resolution?
Alternative dispute resolution (ADR) is a nonjudicial means of solving legal disputes. ADR usually saves time and moeny compared to litigation. The following is a part of Alternative Dispute Resolution;
- Judicial Referee
What is Arbitration?
In arbitration, an impartial thrid party, called an arbitrator, hears and decides a dispute. The arbitrator makes an award. The award is appealable to a court if the parties have not given up this right. Arbitration is designated by the parties pursuant to:
1. Arbitration clause - an agreement contained in a contract which stipulates that any dispute arising out of the contract will be arbitrated.
2. Submission agreement - an agreement to submit a dispute to arbitration after the dispute arises.
(Part of Alternative Dispute Resolution)
what is Mediation?
In mediation, a neutral thrid party, called a mediator, assists the parties in trying to reach a settlement of their dispute. The mediator does not make an award. (Part of Alternative Dispute Resolution)
What is Concilation?
an interested third party, called a conciliator, assists the parties in tyring to reach settlement of their dispute. The conciliator does not make an award. (Part of Alternative Dispute Resolution)
What is a Minitrial?
A minitrial is a short session in which the lawyers for each side present their cases to representatives of each party who have the authority to settle the dispute. (Part of Alternative Dispute Resolution)
What is Fact Finding?
The parites may hire a neutral third person, called a fact-finder, to investigate a dispute and report his or her findings to the adversaries. (Part of Alternative Dispute Resolution)
What is a Judicial Referee?
With consent of the parties, the court may appoint a judicial referee (usually a retired judge or lawyer) to conduct a private trial and render a judgment. The judgment stands as the judgement of the court and may be appealed to the appropriate appellate court. (Part of Alternative Dispute Resolution)
What is Administrative Law?
are created by federal, state and local governments. they range from large, complex federal agencies, such as the federal Department of Health and Human services to local zoning boards. They consist of professionals having an area of expertise in a certain area of commerce who interpret and appply designated statues.
- Administrative Rules and Regulations - agencies are empowered to adopt rules and regulations that interpret and advance the laws they enforce.
- Administrative Procedure Act - this act establishes procedures (i.e., notice, hearing) to be followed by federal agencies in conducting their affairs. States have enacted their own procedural acts to govern state agencies.
What is litigation?
The process of birining , maintaining and defending a lawsuit is called litigation.
What is a non judicial dispute resolution?
a way to resolve issues without having the expense and difficulty of brining a lawsuit. It is also know as "Alternative Dispute Resolution" which are being used more and more often to resolve commerical and e-commerce disputes.
Who are the administrative agencies?
The legislative and executive branches of government have created numerous administreative agencies is governed by a body of administrative law. Becauseo f their importance, administrative agencies are informally referred to as the "Fourth branch of government'
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