Biz Law Chp 3

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Biz Law Chp 3
2012-09-16 15:35:46
Business Law

Chapter 3
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  1. Federal Rules of Civil Procedure (FRCP)
    all civil trials held in federal district courts are governed by this
  2. Litigation Process has 3 Steps
    • 1: Pretrial
    • 2: Trial
    • 3: Posttrial
  3. Types of Attorney Fees
    • Fixed fees: performance of such services as drafting a simple will
    • Hourly fees: may be computed for matters that will involve an indeterminate period of time
    • Contingency fees: fixed as a percentage (usually 25-40%) of a client's recovery in certain types of lawsuits
  4. Pleadings
    inform each party of the other's claims and specify the issues involved in the case
  5. Complaint...
    contains the following:
    • the facts showing that the court has subject-matter and personal jurisdiction
    • facts establishing the plaintiff's basis for relief
    • remedy the plaintiff is seeking
  6. Service of Process
    • formally notifying the defendant of a lawsuit
    • must be received before a lawsuit can begin
  7. Summons
    notice requiring the defendant to appear in court and answer the complaint

    If no response by defendant, default judgement awarded
  8. Answer
    • the defendant's response to the complaint
    • defendant either admits or denies each of the allegations in the complaint & may set forth defenses to these allegations
  9. Affirmative Defense
    • when a defendant admits truth in a complaint but raises new facts to show how not liable for damages
    • can happen in both civil and criminal cases
  10. Motion
    • procedural request submitted to the court by an attorney on behalf of her or his client
    • when a motion is filed, that party must also send, or serve on, the opposing party a notice of motion
  11. Pretrial Motions include...
    • motion to dismiss
    • motion to strike
    • motion for judgement on the pleadings
    • motion to compel discovery
    • motion for summary judgement
  12. Motion for Judgement on the Pleadings
    asks the court to decide the issue solely on the pleadings without proceeding to trial
  13. Motion for Summary Judgement
    • asks the court to grant a judgement in that party's favor without a trial
    • can be made before or during a trial
  14. Affidavits
    sworn statements by parties or witnesses
  15. Discovery
    • process of obtaining information from the opposing party or from witnesses prior to trial
    • includes gaining access to witnesses, documents, records and other types of evidence
  16. Deposition
    sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official
  17. Interrogatories
    • written questions for which written answers are prepared and then signed under oath
    • these are directed to a party of the lawsuit, not a witness
  18. Request for Admissions
    • one party can serve the other party with a written request for an admission of the truth of matters relating to the trial
    • this shortens the trial time
  19. E-evidence
    consists of all computer-generated or electronically recorded information, such as email, voice mail, spreadsheets, word documents and other data
  20. Pretrial Conference
    • attorneys meet with the trial judge after discovery
    • purpose is to explore the possibility of a settlement without trial or to plan the course of the trial
  21. Voir Dire
    • jury selection process
    • (most civil cases only require a 6-person jury)
  22. Rules of Evidence:
    series of rules that hve been created by the courts to ensure that any evidence presented during the trial is fair and reliable
    • 1: evidence must be relevant to the issues
    • 2: hearsay evidence not admissible - testimony someone gives in court about a statement made by someone else who is not under oth
  23. Examination of Witnesses
    consist of the following...
    • direct examination
    • cross-examination
    • redirect examination
    • recross-examination
  24. Motion for a Judgement as Matter of Law
    at conclusion of the plaintiff's case, defendant's attorney has the opportunity to ask the judge to direct a verdict for the defendant on the ground that the plaintiff has presented no evidence to support the claim
  25. Motion for Judgement N.O.V.
    • from the Latin non obstante veredicto, meaning "notwithstanding the verdict"
    • will be granted only if the jury's verdict was unreasonable and erroneous
  26. Brief
    formal legal document outlining the facts and issues of the case, the judge's rulings or jury's findings that should be reversed or modifed, the applicable law, etc
  27. Appellate Court has following options:
    • affirm the trial court's decision
    • reverse the judgement
    • remand (send back) the case to the trial court
    • can affirm or reverse a decision in part
    • modify a lower court's decision
  28. Writ of Execution
    an order directing the sheriff to seize and sell the defendant's nonexempt assets or property