CIV Final

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Author:
croissant
ID:
246080
Filename:
CIV Final
Updated:
2013-11-14 00:07:57
Tags:
civil litigation
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Description:
Civil Litigation Final
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  1. Demurrer
    Asks the court to dismiss all or part of the other side's pleading because it is not legally sufficient.
  2. Grounds for a demurrer
    • SMJ
    • Capacity
    • duplicate action
    • defect or misjoinder of parties
    • failure to state sufficient facts to assert a claim/defense
    • uncertainty (ambiguous and unintelligible)
    • contract improperly pled
    • Lack of CCP 411.35 certificate (ex. professional neglect against architect)
  3. Motion for summary judgement
    all claims
  4. motion for summary adjudication
    • some claims
    • sometimes, some issues
  5. The moving party will prevail if:
    • 1) There is NO triable issue as to any material fact;
    • 2) moving party is entitled to judgment as a matter of law
  6. motion for judgment on the pleadings
    • Determines if, based on the allegations in the pleadings, the moving party is entitled to judgment.
    • Pleadings viewed in light most favorable to party opposing the motion.
  7. What is a motion for summary judgment/adjudication based?
    Based upon evidence, which may include discovery responses, documents, testimony, matters of which the court may take judicial notice.
  8. What is a motion for judgment on the pleadings based?
    Based upon the pleadings only.
  9. material fact
    Fact that impacts the outcome of the case.
  10. Fact finder
    The entity that resolves issues of fact at trial. (Bench Trial v. Jury Trial)
  11. settlement
    Resolution of the dispute by the parties without the need for a trial. (structured v. lump sum)
  12. release
    Written agreement to dismiss claim or claims in exchange for consideration.
  13. Alternative Dispute Resolution (ADR)
    Means of resolving the case without going to trial. Examples include mediation, arbitration, and settlement conference.
  14. mediation
    Formal conference between the parties and a neutral third party with the intent to arrive at a settlement of the parties' dispute
  15. settlement conference
    Judge (not the presiding judge on the case) will assist parties to try and settle the case.
  16. arbitration
    Impartial third party decides the case after hearing evidence and argument from the parties.
  17. binding arbitration v. non-binding arbitration
    Non-binding= can have a new trial. Court mandated arbitration is non-binding.

    Binding= some right to appeal.
  18. injunction
    Order requiring a person to refrain from a particular act.
  19. Three types of injunctions:
    • 1) Temporary restraining order (TRO)
    • 2) Preliminary Injunction
    • 3) Permanent Injunction- be sure to include prayer for relief
  20. Temporary Restraining Order (TRO)
    • Must show:
    • If not ordered, movant will suffer an irreparable injury;
    • Movant will likely succeed on merits of her claims at trial; and
    • On balance, the threatened injury to movant exceeds any threatened injury to opposing party
  21. TRO may be granted ex parte if:
    • 1) Great or irreparable injury will result to the applicant before the matter can be heard on notice;
    • 2) Certify under oath: informed opposing party, or tried but unable to inform opposing party, or for reasons specified, applicant should not be required to inform opposing party.
  22. Preliminary Injunction must show:
    • If not ordered, movant will suffer an irreparable injury;
    • movant will likely succeed on merits of her claims at trial; and
    • on balance, the threatened injury to movant exceeds any threatened injury to opposing party.
  23. Preliminary Injunction details:
    • If court orders preliminary injunction, order must be specific and state in reasonable details what acts are enjoyed.
    • Cannot be granted ex parte
    • Must post bond for payment of costs and damages that may be incurred if party is found to have been wrongly enjoined.
    • Will stay in effect until final trial on the merits.
  24. Permanent Injunction is granted:
    Only after a trial on the merits.
  25. writ
    order
  26. voire dire
    Process when judge or attorney asks questions of prospective jurors to ascertain any bias, prejudice or other information that would affect the decision of the prospective juror in the case.
  27. tort
    A civil, not criminal, wrong. A negligent or intentional injury against a person or property, with the exception of breach of contract.
  28. tortfeasor
    A person who commits a tort.
  29. case-in-chief
    Collective evidence presented to support a particular party's position.
  30. verdict
    Jury's decision regarding outcome of the case. Must be reduced to a judgment before you can collect.
  31. judgment
    Court's final written resolution of the case. Can be used to begin collection proceedings.
  32. exhibit
    Tangible evidence presented at hearing/trial.
  33. demonstrative exhibit
    Exhibits such as photographs, diagrams, models, etc. that are representative of real things.
  34. CCP Sec. 998
    • Offer to Compromise
    • Timing-
    • How long remains open-
    • Effect-
  35. Trial Preparation
    • Trial notbook
    • Trial readiness conference (TRC)
    • Subpoenas/Notice to appear- (witness & documents)
    • meetings with witnesses
    • motions in limine
    • jury bond
    • jury quesitonaire/ voire dire
    • joint statement of the case
    • exhibit organization
    • demonstrative evidence/aid preparation
    • witness outlines
    • trial brief
    • lodge depo transcripts if necessary
    • opening statement
    • closing argument
    • meetings with opposing counsel to coordinate and exchange information/tangible items
    • pay court reporter fees
    • trial call
  36. Joint trial readiness report
    • Given at TRC:
    • jury instructions
    • verdict forms
    • witness list
    • exhibit list (and objections)
  37. motions in limine
    A pretrial request that certain inadmissible evidence not be referred to or offered at trial
  38. strike for cause
    Allows attorney to strike a juror from the panel due to bias
  39. peremptory strike
    Allows attorney to strike a juror from the panel without any stated reason.
  40. Order of Jury Trial
    • Swear in jury then
    • 1) opening statements
    • 2) plaintiff's case-in-chief
    • 3) defendant's case-in-chief
    • 4) rebuttal
    • 5) closing arguments
    • 6) jury instructions
    • 7) jury deliberations
    • 8) verdict
    • *A non-party witness is generally excluded from presence at trial until after she has testified
  41. Verdict-->
    Judgement --> notice of entry of judgment
  42. Post-trial motions to trial court
    • motions for costs (and maybe fees)
    • motion JNOV (judgement not withstanding the verdict)
    • motion to vacate the judgment
    • motion for new trial
  43. motion for judgment notwithstanding the verdict
    Just show verdict not supported by facts. No new trial.
  44. motion to vacate the judgment
    Just show judgment not supported by facts. No new trial.
  45. motion for new trial
    Must show irregularity/misconduct/new evidence or something else that materially affected substantial rights of aggrieved party.

    Verdict/judment vacated in whole or in part; and new or further trial granted to extent of vacation.
  46. appeal
    Request made to higher court to review decision at trial court level to determine if the decision at trial court was correct.
  47. Why is it important to make sure you have a complete RECORD at the trial court level?
    Because the appellate review is limited to whatever is on the RECORD.
  48. judgment debtor
    The party who owes money to the other as a result of the judgment.
  49. appellant
    The party who appeals a trial court decision.
  50. respondent
    Party who opposes or responds to the other party's appeal
  51. Applying for CA Supreme Court Review
    • Aggrieved party file "Petition for Review"
    • Court may grant "Review"
  52. Primary sources of CA Ethics and Mandates
    Paralegals, in particular, are governed by B&P Code Sec. 6450, which includes requirements for continuing education.

    Contracts with or employed by attorney, law firm, corporation, etc. performing substantial legal work under direction and supervision of active member of State Bar of California (or practicing in federal courts in CA)

    Has appropriate certificate or degree/diploma + appropriate experience; and

    Every two years, four hours of general or specialized MCLE and four hours of ethics MCLE
  53. Overzealous advocacy
    • discovery abuses
    • law and motion abuses
    • payment to witnesses
    • pursing unmeritorious claims
  54. ex parte
    Without notice to the other side, or very limited notice to the other side.
  55. Advertising
    Any communication, disseminated by television or radio, by any print medium, including, but not limited to, newspapers and billboards, or by means of a mailing directed generally to member of the public and not to a specific person, that solicits employment of legal services provided by a member, and is directed to the general public and is paid for by, or on the behalf of, and attorney.
  56. Solicitation
    • Runners and Cappers
    • Any person, firm, association or corporation acting for consideration in any manner or in any capacity as an agent for an attorney at law or law firm... in the solicitation or procurement of business [for an attorney or law firm]
  57. Conflict of Interest
    Lawyer or paralegal who has an interest that is adverse to the client's whether the adverse interest is a personal or business one or relates to the current or past representation of the client.

    Key = current or past representation; business or personal interest
  58. Fees
    • No illegal or unconscionable fees. Factors to consider:
    • 1) fee compared to the value of services
    • 2) relative sophistication of attorney and client
    • 3) novelty and difficultly of the questions involved and  the skill requisite to perform the legal service properly
    • 4) likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member;
    • 5) amount involved and the results obtained
    • 6) time limitations imposed by the client or by the circumstances
    • 7) nature and length of the professional relationship with the client
    • 8) experience, reputation, and ability of the member or members performing the services
    • 9) fixed or contingent fee
    • 10) time and labor required
    • 11) informed consent of the client to the fee
  59. duty to the client
    • attorney competence
    • avoid conflict of interest
    • confidential communications
    • duty to keep client informed

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