Civil litigation - Test 1

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kkohl1
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200454
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Civil litigation - Test 1
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2013-02-25 15:00:49
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Civil litigation
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Test 1
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  1. Explain the difference between jurisdiction and venue.
    Jurisdiction - the right of the court to hear a case of a particular subject matter - the objection of jurisdiction is never waived.


    Venue - the geographic location where a case can be heard.  Venue is generally where the defendant is located, however venue can be objected to in a timely manner if desired.
  2. List 3 ways a plaintiff could get into federal court
    • Diversity of Citizenship
    • Federal Question Jurisdiction
    • Exclusive Jurisdiction
  3. Explain the difference between Trial court and appellate court.
    • Trial Court -
    • No oral arguement
    • Evidence presented
    • verdict is converted to judgment
    • there is a judge or judge and jury

    • Apellate court-
    • Oral argument
    • no evidence presented
    • Justices review record
    • The review panel will Affirm, Reverse or Remand
    • They are looking for Errors of Law and Abuse of Discression
  4. List the 4 elements of a valid contract.
    • Mutual Agreement
    • Consideration
    • Acceptance
    • Capacity - age of 18, mental health ok (if declared incompent then go to guardian)


    • offeror - OR makes the contract
    • offeree - EE accepts the contract
    • OR contracts to EE
  5. Is its possible to get into the federal district court based on diversity of citizenship
    If the plaintiff is from WI and ALL of the defendants are from OTHER STATES - there is diversity of citizenship IF the case is ABOVE $75,000

    If the plaintiff is from WI and one defendant is from WI - if there is one defendant from out of the country (Alienage jurisdiction)
  6. List two places a corporation is considered a citizen under diversity of citizenship
    • The corporation's principle place of business
    • Articles of Incorporation - Registered agent
  7. First question - Does a cause of action exist?
    Identify general area of Substantive Law that may apply

    Identify the specific area of Substantive law (negligence, defamation, breach of warranty...)

    Identify the elements of the cause of action which must be proven.
  8. Pleading the Alternative
    In Wisconsin you can put all possibilities in the complaint - and then focus on specifics later (inconsistant claims)

    (Complaint can contain both *negligence* emotional distress, and *Intentional* emotional distress)
  9. Frivolous Lawsuit
    you must review the case you are presenting and determine if it is reasonable for a jury to rule on before filing the complaint.
  10. Plaintiff/Burden of Proof
    The plaintiff has the burdent of proof, must prove all of the elements, must be supported by facts
  11. Ordinary Burden of Proof
    Burden of proof is the obligation placed upon a party to prove or disprove a disputed fact.

    Preponderance of evidence - it is likely (51%) that it happened the way that the plaintiff indicates.

    plaintiff must prove each element of the claim, or cause of action, in order to recover

    Used with negligence, contract law and some intentional torts
  12. Middle Burden of Proof
    75% - Clear and convincing evidence

    Used for Intentional Torts, battery and fraud
  13. Elements of Negligence
    • 1. Duty of Care - based on reasonable person standard
    • 2. Breach of Duty - by acts or ommission
    • 3. Causation - using the "but for"
    •             PROXIMATE CAUSE - zone of danger
    •             CAUSE IN FACT - forseeable by the plaintiff
    • 4.Damage - injury
  14. What to consider when accepting case
    • Do a conflict check (dont want to sue current or former client)
    • Do name change check - dba, aka, fka,
    • Check statute of limitations or Claim Statute (government entity)
    • Need to accept or reject cases in writing
  15. If you accept a case
    Accept case in writing sending a retainer agreement (contract)
  16. Retainer fee
    • Fee obtained in advance of work being done.
    • Money is kept in a trust, not the law firms business account.
    • We have a fiduciary duty to client.
    • Settlement money also goes in trust
  17. Retainer agreement
    Letter (contract) that is written to the potential client to explain what services are being provided
  18. Non-engagement letter
    • Letter indicating that the law firm will not be accepting the clients case.
    • Sent to avoid the malpractice that could occur if an individual believes they have representation.
  19. Disengagement letter
    Sent if client has been accepted but the atty or firm has changed their mind
  20. Statute of limitations
    • Maximum amount of time after an occurance for it to be taken to court.
    • For an example in an asbestos case the statue of limitations begins when you were discovered as being sick not when you were initially exposed.
  21. Claim statute Type of law that requires a bit notice describing claims to be presented to a defendant before lawsuit can be started (government).
    Type of law that requires a bit notice describing claims to be presented to a defendant before lawsuit can be started (government).
  22. Laches (equity)
    • If plaintiff seeks equitable remedy and too much time has elapsed.
    • Defendant is unfairly hurt of prejudice by delay in bringing suit even though within statute of limitations has not run.
  23. Legal remedies
    Monetary damagesCompensatory damages (calculaye the value of the actual loss
  24. General damages
    • Money for pain and suffering or loss of society and compainionship
    • (consortium =spouse...also parent/child)
    • Jury calculates these damages.
  25. Special damages
    Money awarded for medical bills, lost wages, future medical bills and lost wages.
  26. Punitive or exemplary damages
    • Generally not available in negligence but are available in intentional tort cases (battery) to punish extreme and outrageous behavior.
    • Used in intellectual property
  27. Legal remedies
    Nominal damages -small amount-plaintiff has a valid claim, however, few monitary damages.
  28. Equitable remedies
    • Money won't solve problem.
    • May be forced to complete a contract.
    • Could be a unique item - not fungable or interchangable.
    • Example: THAT piece of jewelry
    • Nuisance. .. rule of no more than 2 dogs but the neighbor has 16 dogs... ($ won't solve)
  29. Injunction
    Stops something from occuring
  30. Equitable remedy
    • An injunction
    • Specific performance - order to fulfill contract
    • Rescission - undo transaction
    • Restitution - return the parties to their original position
  31. No contact rule
    The atty or individuals that work with the atty are unable to contact the opposing party in a lawsuit directly.
  32. Exparte communication
    • This was said in reference to having only one side (atty) talking to the judge.
    • Generally speaking communication with the judge both atty's present.
  33. Confidentiality
    Must watch who you are speaking to and in front of... no cell phone, no talking about case in elevator...
  34. Fee sharing
    Fee sharing is prohibited with non attys
  35. Fee arrangements
    • Flat fee - wills
    • Hourly fee - typical of divorce
    • Contingent - often used in personal injury

    Unauthorized practice of law (UPL) - for paralegal to set fees
  36. In Rem Jurisdiction
    Can be over real property and personal property or any other thing. Wis statute 801.07 (1)
  37. Personal jurisdiction
    • May be obtained over ant natural person present in Wisconsin.
    • Even if they just stop in Wisconsin for a flight layover...
    • this pertains to serving court papers. WIS STAT. 801.05 (1) (a)
  38. Statute requiring Wisconsin courts to have subject matter jurisdiction
    Wis. Stat. 801.04 (1)
  39. Summons
    This is a set of directions, it is not a plead
  40. 5 parts of a Complaint
    • Caption (ends at two solid lines) Wis. Stat. 802.04(1)
    • Introduction - short next sentence
    • Body (802.04(2)
    • Prayer for relief
    • Signature block and date (NEVER put on a page by itself!!!) (802.05(1))

    There is also a jury demand but that is optional
  41. Three functions of a Summons (Wis. Stat. 801.09-801.95)
    • 1. Informs the defendant that an answer is required to the court and the plaintiffs attorney
    • 2. Informs the defendant that they have 20 days to answer (Wis. Stat. 802.06(1)) or 45 days for insurance company, the state, or a tort is involved.
    • 3. Informs Defendant that it MAY result in a default judgment if not answered and responded to. (typically Plaintiff gets everything they asked for) (important to Calendar!)

    Wis. Stat. 801.15(1)(a) for how to count the days
  42. The process of Serving a Complaint
    FILE - the Summons and Complaint with the Clerk of Court (Wis. Stat. 801.02(1)

    SERVE - an authenticated copy of the summons and Complaint within 90 days according to 801.02(1).  Note this deadline cant be extended by the Judge per 801.15(2)(a).  If missed must be refiled within the time set by the Statute of Limitations.

    FILE - Proof of Service (Affadavit of Service under 801.10(3)
  43. Pleadings (Wis. Stat. 802.01(1))
    Specify the cause of action and/or the defenses in a suit

    Before bringing suit, reasonable inquiry must be made

    • Summons is not a pleading
    • Wisconsin uses notice pleading, not face pleading

    • Complaint
    • Answer
    • Counterclaim
    • Reply
    • Cross Claim
    • Answer to Cross Claim
    • Third Party Complaint
    • Third Party Answer
  44. Wisconsin uses "notice" pleading - exceptions:
    • Capacity
    • Fraud, mistake and condition of mind
    • Conditions Precident
    • Official Document or Act
    • Judgment
    • Libel or Slander
    • Sales of Goods
    • Time and Place
    • Foreclosure
  45. Motion
    Asking the court for something in a formal way

    Facts to support legal position found in the motion is in an affadavit or a brief

    Request for court to issue order, may be dispositive (ends suit - motion to dismiss) or non-dispositive (does not end suit, but resolves an issue)
  46. Three requirements of a Motion
    • 1. Must be in writting or if in court - written by the court reporter
    • 2. Particular ground
    • 3.
  47. Wisconsin Statute that requires that a reasonable inquiry be made before beginning a lawsuit
    Wis. Stat.
  48. Wisconsin Statute that prohibits tort claims from specifying the amount of money the plaintiff is seaking in the Prayer for Relief.
    Wis. Stat.
  49. Wisconsin Statute that requires that pleadings be signed by the attorney and that they include the Attorney's State Bar Number, phone number, address and firm name.
    Wis. Stat.
  50. Wisconsin Statute that allows exhibits to be incorporated by reference into pleadings
    Wis. Stat.
  51. Do pleadings in Wisconsin need to be verified?
  52. Interpleader
    • Esentially, protects plaintiff from multiple liability. 
    • Plaintiff does not dispute that the money is owed, they are prepared to pay. 
    • Dispute is in who gets how much of the money.

    Example: Publishers clearing house awards money, however 2 people claim it is owed to them.  PC owes the money and puts it into an account with the court and then the court decides who is owed what money.
  53. Class action
    Class action lawsuits are filed by a group of people all with same or very similar claim.

    • Federal 23 Wis. Stat. 803.08
    • *Class is so numerous that the joinder of all members is impractical
    • *Question of law and fact is common
    • *Claim of the individual is the same of the whole class
    • *Representative parties will fairly protect the interests of all

    • ** must have all of the above and one of the below **
    • *Individual suits could have inconsistant results
    • *Decision in 1 case may unfairly prejudice other cases
    • *Party opposing - has generally treated everyone the same way
    • *common questions of law or fact predominate over individual question of law or fact
  54. Intervention
    Entry into lawsuit by third party who dispite not being named party to the action has a personal stake in the outcome.

    Example: Defendant damages real estate owned by 3 tenants

    • 2 tenants sue the defendant to do the real estate repair.
    • 3rd tenant intervenes in the lawsuit to make sure that the money is recieved to repair are actually done.

    also

    Trustee sues or is sued and the beneficiary of the account intervenes because they have an interest in the money that may get paid out of the account

    If an agent is sued for wrongful act in scope of employment.  Principal who is nicariously liable can intervene to make sure defense is adequate.

    Respondant Superior
  55. Sovreign Immunity
    You can't sue government - unless the government gives you permission.

    Federal Tort Claims Act

    There are rules regarding the timing of the notice and there are limits on the liability/pay out amounts available
  56. Exhaustion Doctrine
    You must exhaust all of your administrative remedies before going to court (appealing administrative judgement
  57. Due process of law
    Pertains to the 5th amendment and the 14th amendment (the 14th amendment is what allows this to pertain to the state itself)

    Procedural fairness required to deprive someone of life, liberty, or property.

    Provides for right of timely notice and the opportunity to be heard.
  58. Motion to dismiss with prejudice
    Can't refile claim this is NOT Res judicata
  59. Motion without prejudice
    You can refile your claim

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