Civil Lit 2 Midterm

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Civil Lit 2 Midterm
2013-10-13 18:19:11
Civil Lit Midterm

Civil Lit 2 Midterm
Show Answers:

  1. What do you need to establish that a witness is an expert?
    • Establish their:
    • *Education
    • *Experience
    • *Training
  2. When can you use leading questions?
    During cross examination
  3. What type of questions do you use during direct examination?
    Open ended questions
  4. What are the 5 types of Discovery?
    • Deposition
    • Interrogatories
    • IME
    • Request for Production
    • Request for Admission
  5. What are the types Production (in Request for Production)?
    • Documents (eDiscovery)
    • Tangible things
    • Entry to Land
  6. What is the only type of Discovery that can be used for Parites and Non-Parties?
  7. What do you need in order to have a witness bring along documents?
    Supena Ducus Takum

    * If you don't bring them along or respond it is an automatic stipulation
  8. How many days do you have to give for a request for admission?
    30 calendar days
  9. What is the initial pleading filed in a case?
    Complaint which is accompanied by a Summons (which is like an instruction sheet)
  10. What is the process of filing a summons and complaint?
    Complete the forms and bring them to the Clerk of Courts:

    • File - the summons and complaint
    • Serve - an authenticated copy to the defendant via a process server or sheriff
    • File - Proof of service with the court
  11. When a lawsuit is filed, how many days do you have to serve the defendant? Can this be extended by the judge?
    90 days, and there are no extensions
  12. What are the 3 requirements of a motion?
    • 1. It must be made in writing unless it is during a court proceeding.
    • 2. The motion must state the grounds of the motion with particularity.
    • 3. The motion must clearly state the relief sought
  13. Can we send a Notice of Motion to Compel at the same time as
  14. What is the response to a pleading?
  15. What are the 5 parts to a complaint?
    • Caption
    • Introductory statement
    • Body
    • Prayer for relief
    • Signature block/date
  16. What is a plaintiff's response to a counter claim?
  17. If there is a person missing from a complain that has an interest in the lawsuit?
    3rd party complaint
  18. Response to a 3rd party complaint
    3rd party answer
  19. Suing someone on the same side is called -
    Cross claim
  20. What is the reply to a cross claim called?
    Answer to a cross claim
  21. What does every pleading have?
    Cause of Action

  22. What is a summons and the specifics of a summons?
    The summons informs that an answer is required.

    You have 20 days to reply to a summons unless the action is involving the state, insurance, or is a tort.

    If you don't answer a summons, it results in a default judgment.
  23. Do you put the dollar amount in the wherefore clause of a complaint for a contract?
    Yes you can
  24. Do you put the dollar amount in the wherefore clause of a complaint for a tort?
    No you do not.
  25. What is a Motion for Protective Order?
    If granted, then you do not have disclose trade secrets, and certain information.

    Use when asking for private information - never give because privileged.
  26. What is a Motion to Compel?

    Follow up with a motion for sanction because they did not produce the information (or whatever they were compelled to be doing).
  27. What does Dispositive mean?
    Dispositive ends a lawsuit
  28. What is non-dispositive?
    Non-dispositive does NOT end a lawsuit
  29. List of motions that end a lawsuit (dispositive):
  30. List of motions that do NOT end a lawsuit (non-dispositive):
  31. Notes on Discovery
    Interrogatories are easy

    • Deposition - can be oral or written questions
    •    Depositions are the only discovery option that can be done on party and no-party.  But they are expensive as they require a court reporter, two lawyers, a videographer and perhaps a paralegal

    •   Request for production - produce information
    •   Request for admission - admit or deny statements, evidence
  32. What are the 7 functions of discovery?
    • Narrow
    • A
    • R
    • R
    • P
    • A

  33. What is Motion JOV?
  34. What is Jurisdiction?
    The power - never waive jurisdiction

  35. What is venue?
    The geographic location where the court trial takes place
  36. What are the types of Jurisdiction?
    • Subject matter
    • Person
    • Property
    •      In Rem
    •      Quasi in Rem
  37. What is a sworn Statement of Fact?
  38. What document may be included to support an affidavit?
    A Brief
  39. How many days notice must be given with a motion?
    A Notice of Motion may accompany a Motion and must be served at lease 5 days before trial.

    Wis. Stat. 801.15(4)
  40. How do you calculate the days?
    If 11 days or more, use calendar days

    If less than 11 days use business days only.

    Add 3 days if mailed, add 1 day if faxed after 5pm.
  41. Information about Summary Judgment -
    • Dispositive
    • No genuine issue of material fact only question of law
  42. Judgment on the Pleadings
    • Dispositive
    • No genuine issue of material fact only question of law
  43. In Summary Judgment and Judgment on the Pleadings - benefit of the doubt goes to the NON-Moving party because you are taking away the right to their day in court.
  44. What is a Motion in Limine?
    (Limine - Limit)

    Used pre-trial to limit what the jury will hear
  45. What happens when you present a motion to the court?
    The judge will issue an order (decision).
  46. What are the phases of a lawsuit?
    • 1. Pre-suit
    • 2. File the lawsuit
  47. What happens in the pre-suit phase
    There is a legal standard that you make a reasonable inquiry  this can include:

    • reviewing the police report
    • reviewing the driving record
    • review the weather condition
    • review the witness statements (statement sworn to by the party)
  48. What happens during the "file the lawsuit" phase?
    • File - the summons and complaint
    • Serve -   the authenticated copy or publish if necessary
    • File - the proof of service

    You have 90 days to serve, no exceptions, no enlargement
  49. What is a summons?
    It is a list of instructions, not a pleading
  50. How long does the defendant have to issue an answer to a summons and complaint?
    20 days, unless it is a lawsuit involving a tort, the state, the insurance company then it is 45 days
  51. What is a schedule conference?
    A schedule order is issued with a general timeline for the lawsuit
  52. Alternative Dispute Resolution

    • Cost less money
    • It is private, not on public record
    • Faster and more efficient
    • Less adversarial

    • Judges can rule that you must do ADR
    • Creates a higher rate of settlement versus trial

    Wis stat 802.12
  53. Notes about arbitration:
    The arbitrator can "rule"

    Arbitrator is a neutral third party

    The arbitrator can issue and award and it can be permanent - it depends on what the parties agree to in the beginning
  54. Notes about mediation
    Mediator does not rule or make decisions

    Mediator is there to facilitate communication

    The mediator is a neutral third party
  55. Notes about Summary Jury Trial
    Gives advisory opinion

    Like a "fake" trial

    Has a jury

    Tool used to advise and give an idea as to the outcome

    This is used especially if the plaintiff and defendant are far apart in damages.

    Expensive form of ADR
  56. Notes on Mini trial presentation
    Settlement authority is present

    Attorneys present the best case in front of people who of authority to make decision to try to encourage to settle

    Attorneys will sit in and hear and will give opinion as to what key issues are and advise what settlement to agree to
  57. What is a Settlement
    Monetary Damages that are sought

    • Things to consider:
    •    What is the defendants ability to pay
    •    Is there insurance coverage available
    •    Ease with which liability and damages can be proven
    •    Nature of the injury, disability, horror factor, damage permanent or not, sympathy for plaintiff

    ** Can separate damages from liability **
  58. Items used to promote settlement
    • 1. Demand letter
    • 2. Settlement brochure
    • 3. Day in the life video (for life changing injury)
    • 4. Offer of settlement

    Wis stat 807.01 - pay attention to the penalty for refusing to settle
  59. What is a Structured Settlement
    Settlement that is paid over time (personal injury) large awards to cover expenses over a lifetime

    can purchase annuities to fund and distribute monthly/quarterly/annually
  60. What is a lump sum settlement
    Lump sum settlement is getting all of your settlement award at one time.  Often in the case of an insurance company.
  61. Notes on Settlement offers
    When settlement offer is sent - the answer is due at lease 20 days before trial - (counted by calendar days)
  62. Settlement offers

    If the defendant makes the plaintiff a written offer of settlement
    If plaintiff accepts within 10 days of receipt - so that there can be proper notice to enter judgment.

    If plaintiff does not accept within 10 days, the offer of settlement and all details can not be discussed in trial.

    If plaintiff refuses offer then plaintiff gets no costs paid and the defendant is entitled to costs.
  63. Settlement offers

    If the defendant makes the plaintiff a written offer, and the defendant fails at defense, offers a specified sum of damages
    If plaintiff accepts within 10 days, and the plaintiff prevails, proper notice given then the damages will be assessed based on the offer of settlement.

    If plaintiff doesn't accept, you cant talk about the offer in the trial.

    If plaintiff doesn't accept and plaintiff's damages awarded are not greater than the settlement offer, then neither party may recover costs.

    Wis stat 807.01(2)

  64. Settlement offer
    Settlement offer must be issued at least 20 days before trial

    Plaintiff makes defendant a written offer of settlement

    If defendant accepts within 10 days notice giving judge the proper written notice.

    If defendant doesn't accept, can't talk about offer or its terms

    • If defendant doesn't accept and plaintiff damages are greater than the settlement offer plaintiff can recover 2 x the damages.

    Wi Stat - 807.01(3)
  65. Settlement offer -
    Offer of settlement by party which is not accepted


    The party recovers a judgment that is greater than or equal to the amount of the offer of settlement then the party is entitled to interest at an annual rate of PRIME plus 1% calculated on 1/1 and 7/1

    wi stat 807.01(4)
  66. Perringer Release
    Used to release one or more but not all joint tortfeasors

    it reserves the right to pursue non-settling parties.

    A release extinguishes the suit - the perringer release will extinguish it with just one of the defendants.

    The Perringer is defendant friendly.
  67. Partial Settlement requires special care
    see paper notes - too difficult to write
  68. What is a release?
    it discharges liability/extinguishes the cause of action
  69. Covenant not to Sue
    Contractual promise not to sue

    Contract between the plaintiff and the defendant who is settling. 

    It is not a release or discharge

    The non-settling defendant's have the right of contribution against the settling defendant.

    ** There is a right of contribution against the settling defendant (which doesn't extinguish the cause of action)
  70. Dismiss with prejudice
    Can no longer be brought back to court
  71. Dismiss without prejudice
    Can still be brought back to court
  72. Comparitive Negligence
    See paper notes - to difficult to write
  73. Stipulation
    Written agreement, signed by all parties involved and which is binding.  It removes the  need to prove the matter at trial.

    Example - facts, authenticity of an exhibit
  74. Subrogation (insurer)
    Steps into the shoes of the insured to pursue a claim.
  75. Abstract notes
    A summary of the deposition that is typically 1/10 of the length.

    Uses complete sentences

    No Abbreviations

    Don't use the words plaintiff and defendant only - especially if there are multiple parties.
  76. Chronological Abstract
    Summarization of the deposition in the order it appears in the deposition
  77. Topical Index
    Organizes your summary based on topic or subject matter
  78. Narrative
    a story format - this is often times used to update the insurance company.
  79. Medical Records - SOAP
    Subjective - what the patient says (patient says her throat hurts)

    Objective - what the physician observes (the throat looks red)

    Assessment - tests conducted to develop a diagnosis (throat culture)

    Plan - diagnosis and treatment (strep throat and prescription of oral antibiotics)
  80. Evidence -
     Direct evidence -
    Personal knowledge or observation

    Doesn't rely on inference

    Example - I saw the defendant throw the baby
  81. Evidence
      Circumstantial evidence
    Suggest the existence of occurrence or thing.  Must add facts together or draw a conclusion.  Requires inference.

    Example - abandoned car, no banking, apartment untouched, for 7 years - the inference that the person is dead is acceptable - but it is circumstantial evidence.
  82. Evidence -
    • From a witness
    • Either spoken or signed witness statement (deposition)
  83. Evidence -
     Documentary evidence
    Supplied by a writing or other document

    Example - contracts, letters, medical records, emails, employment records
  84. Evidence -
      Physical evidence
    a knife wound

    that itself plays a direct part in the incident in question

    the light fixture in a product liability case about the light fixture
  85. Evidence -
      Demonstrative evidence
    An illustration or representation of a real thing

    Example - diagram or picture of a scar, a model or a map
  86. Presumptions
    Inferences allowed by law
  87. Judicial Notice
    Allows the court to accept the truth of certain facts because the facts are common knowledge or irrefutable source

    Don't have to subpoena the medical records clerk - we can assume that medical records are highly accurate.
  88. Admissible
    To be admissible the evidence must be relevant - but just because it is relevant, doesn't mean it is admissible

    Wi Stat 904.01
  89. 3 R's of Evidence
    Must be Real, Reliable and Relevant
  90. Probative value
    Evidence tends to prove or disprove a fact of important consequence to the lawsuit
  91. Exclusion of relevant evidence -
    As provided by the US Constitution, WI Constitution, WI Statues, Rules of Civil Procedure

    WI Stat 904.02
  92. Relevant evidence may be inadmissible because:
    • Causes Confusion
    • Misleads jury
    • Results in delay
    • Waste of time
    • Unfair Prejudice
    • Needless presentation of cumulative evidence

    WI Stat 904.03

    Use a Motion of Limine to ask court not to allow this type of evidence
  93. Character Evidence
    Is generally not admissible as proof that a person's conduct conformed to that trait

    WI Stat 904.04 -

    So you can't say that the defendant has a gambling problem so he must have been at the casino

    If the trait is an element of the claim then you can use the character reference (reference that the defendant is a liar in a fraud case?)
  94. Evidence of Habit/Routine
    Generally admissible - if it is a standard business practice -

    Admission to show you acted in accordance with your routine

    WI Stat 904.06
  95. What is the Public Policy Exception?
    Exclude these items of evidence because of public policy consideration

    • 1. Offers of compromise (settlement) (WI Stat 904.08)
    • 2. Subsequent Remedial Measures (if you fix the handrail that hurt the defendant so that others will not get hurt)(WI Stat 904.07)
    • 3. Liability Insurance (Cant know how much or the terms or else you are likely to have someone determine the limits based on them) (WI Stat 904.XX)
  96. What is the result of failing to respond to a request for admission?
    The information is deemed to be admitted and you do not have to prove these items in court.
  97. What is a Stipulation?
  98. What is redacting?
    The blackening out of privileged information
  99. What are the reasons relevant information is inadmissible?
    1. Priviledge (905)

    2. Prejudical, Confusion of Issues, Misleading to the Jury, Undue delay, Waste of time, Needless Presentation of Cummulative Evidence (904.03)

    • 3. Objection based on rules of evidence or constitution principles
    •   Hearsay
    •   Lack of Foundation
  100. What evidence is Admissible, What evidence is Inadmissible?
  101. Objections
    If sustained, then the judge agrees with you.

    If over-ruled, then the judge disagrees with you.

    Reserve the ruling - the judge must gather more information before ruling.

    Object while you can because you can't complain later.
  102. The grounds for objection:
    • Irrelevant
    • leading question
    • Hearsay
    • Opinion
    • Speculation
    • Badgering
    • Argumentative question
    • Testifying/Narration
    • Improper character testimony
    • Outside the scope of the Mock Trial
    • Narrative
    • Asked and Answered
    • Non-responsive
    • Lack of foundation
  103. Privledges
    • Attorney/Client
    • Clergy/Parishioner
    • Interpreter
    • Trade Secret
    • Work Product (Qualified and Absolute)
    • Husband/Wife
    • Doctor/Patient

    NO Parent/Child Privilege in Wisconsin

    WI Stat 905
  104. Hearsay
    Generally not admissible

    • Exception:
    • 1. Declarant is immaterial

    • 2. Declarant must be unavailable
    • (WI Stat 908.04 - 908.045)

    WI Stat 908.03
  105. Hearsay
    Statement made by an "out of court declarant" which is being introduced in court by someone other than the declarant to prove the truth of the matter asserted
  106. What makes Hearsay less reliable?
    Out of court declarant is not there and cant assess credibility

    No ability to cross examine

    Not made under oath

    (If deposed it is sworn under oath)