The flashcards below were created by user
on FreezingBlue Flashcards.
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.
List 3 ways a plaintiff could get into federal court
- Diversity of Citizenship
- Federal Question Jurisdiction
- Exclusive Jurisdiction
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
List the 4 elements of a valid contract.
- Mutual Agreement
- 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
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)
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
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.
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)
you must review the case you are presenting and determine if it is reasonable for a jury to rule on before filing the complaint.
Plaintiff/Burden of Proof
The plaintiff has the burdent of proof, must prove all of the elements, must be supported by facts
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
Middle Burden of Proof
75% - Clear and convincing evidence
Used for Intentional Torts, battery and fraud
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
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
If you accept a case
Accept case in writing sending a retainer agreement (contract)
- 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
Letter (contract) that is written to the potential client to explain what services are being provided
- 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.
Sent if client has been accepted but the atty or firm has changed their mind
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.
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).
- 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.
Monetary damagesCompensatory damages (calculaye the value of the actual loss
- Money for pain and suffering or loss of society and compainionship
- (consortium =spouse...also parent/child)
- Jury calculates these damages.
Money awarded for medical bills, lost wages, future medical bills and lost wages.
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
Nominal damages -small amount-plaintiff has a valid claim, however, few monitary damages.
- 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)
Stops something from occuring
- An injunction
- Specific performance - order to fulfill contract
- Rescission - undo transaction
- Restitution - return the parties to their original position
No contact rule
The atty or individuals that work with the atty are unable to contact the opposing party in a lawsuit directly.
- 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.
Must watch who you are speaking to and in front of... no cell phone, no talking about case in elevator...
Fee sharing is prohibited with non attys
- Flat fee - wills
- Hourly fee - typical of divorce
- Contingent - often used in personal injury
Unauthorized practice of law (UPL) - for paralegal to set fees
In Rem Jurisdiction
Can be over real property and personal property or any other thing. Wis statute 801.07 (1)
- 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)
Statute requiring Wisconsin courts to have subject matter jurisdiction
Wis. Stat. 801.04 (1)
This is a set of directions, it is not a plead
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
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
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)
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
- Cross Claim
- Answer to Cross Claim
- Third Party Complaint
- Third Party Answer
Wisconsin uses "notice" pleading - exceptions:
- Fraud, mistake and condition of mind
- Conditions Precident
- Official Document or Act
- Libel or Slander
- Sales of Goods
- Time and Place
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)
Three requirements of a Motion
- 1. Must be in writting or if in court - written by the court reporter
- 2. Particular ground
Wisconsin Statute that requires that a reasonable inquiry be made before beginning a lawsuit
Wisconsin Statute that prohibits tort claims from specifying the amount of money the plaintiff is seaking in the Prayer for Relief.
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.
Wisconsin Statute that allows exhibits to be incorporated by reference into pleadings
Do pleadings in Wisconsin need to be verified?
- 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.
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
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.
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.
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
You must exhaust all of your administrative remedies before going to court (appealing administrative judgement
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.
Motion to dismiss with prejudice
Can't refile claim this is NOT Res judicata
Motion without prejudice
You can refile your claim