Chapter 4

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Author:
Ladybird1106
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295036
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Chapter 4
Updated:
2015-02-10 17:04:14
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Vocabulary
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Litigation
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  1. Litigation
    The process of utilizing the court system to resolve a legal dispute.
  2. Plaintiff
    The party who files a civil action
  3. Defendant
    The party being sued
  4. Counterclaim
    • A defendant who wants to sue the plaintiff
    •   or
    • Defendant becomes the Counterplaintiff, and the Plaintiff becomes the Counterdefendant.
  5. Third Party Defendant
    A defendant may file a claim against a third party stating that if the defendant is liable to the plaintiff, then the third party is liable to the defendant.
  6. Standing to Sue
    • The plaintiff must be entitled to have the court decide the dispute.
    • 1) The plaintiff must allege that the litigation involves a case or controversy.
    • 2) The plaintiff must allege a personal stake in the resolution of the controversy.
  7. Personal Jurisdiction
    Over the plaintiff is obtained when the plaintiff files the suit. Such action indicates voluntary submission to the court's power. `
  8. Summons
    Is personal jurisdiction over the defendant, a summons, or notice to appear in court.
  9. Long-arm Statutes
    A summons can be served outside of its states borders if;

    • 1)Has committed a tort within the state
    • 2)Owners property within the state that is the subject matter of the lawsuit
    • 3)Has entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within the state.
  10. Extradition
    The process that one state uses to have another state transfer to the jurisdiction of the first state a person accused of criminal activities, at the request of one governor to another.
  11. Class-action Suits
    A suit in which one or more plaintiffs file suit on their own behalf and on behalf of all other persons who may have similar claim.
  12. Pretrial Procedures
    • Plaintiff files complaint
    • Complaints and summons served on defendant
    • Defendant riles motion or answer with possible counterclaim and defenses
    • Court rules on motions
    • Plaintiff files reply to answer attorneys conduct discovery procedures
    • Parties may file motions for summary judgment or judgment on pleadings
    • Court conducts pretrial conference
  13. Pleadings
    The legal documents that are filed with a court to begin the litigation process.
  14. Complaint
    The plaintiff files a pleading, called a complaint, with the court clerk
  15. Answer
    A written  answer to the complaint that will either admit or deny each allegation of the plaintiff's claim.
  16. Default
    If the defendant does not respond in any way, the court may enter an order of default and grant the plaintiff the relief sought by the complaint.
  17. Discovery
    Procedures by which one party to a lawsuit may obtain information relevant to the case from the other party or from third persons.
  18. The purpose of discovery
    To endure that the results of lawsuits are based on the merits of the controversy and not on the ability, skill, or cunning of counsel.
  19. Methods of discovery (1)
    Interrogatories- a written question. Submitted by one party to another in a lawsuit; a type of discovery procedure
  20. Method of discovery (2)
    Request for production of documents- either party may ask the other to produce specific documents that are important to the lawsuit's outcome.
  21. Method of discovery (3)
    Dispositions- a lawyer orally asks questions of the possible witnesses and an oral response is given.
  22. Method of discovery (4)
    Request for an admission- when certain issues presented in the pleading are no longer in dispute, this narrows some issues and makes settlement more likely.
  23. Scope of discovery
    When a question about the scope of what is discoverable arises, and the party objecting to discovery seeks the judge's opinion.
  24. Motions
    During the pretrial phase of litigation, either plaintiff or defendant or both may attempt to convince the court that there are no questions about the factual setting of the dispute.
  25. Motion (1)
    Statute of limitations - a statute that sets a date after which a lawsuit may not be brought. The statute begins running after the happening of a certain event, such as the occurrence of an injury or the breach of a contract.
  26. Motion (2)
    Judgment on the pleadings - ask the judge to decide the case based solely on the complaint and the answer.
  27. Motion (3)
    Summary judgment - seeks a similar conclusion to the litigation prior to trial (judgment on the pleadings). The party filing this motion is asking the judge to base a decision not only on the pleadings but also on other evidence. (affidavits)
  28. Motions (4)
    Affidavits - a sworn written statement made before an officer authorized by law to administer oaths.
  29. Frivolous Cases
    A case totally lacking merit. A judge may terminate the litigation process.

    Rule 11 of the Federal Rules of Civil Procedure authorizes the imposition fine for filing frivolous papers. Many states court systems also have a increased the frequency of assessing fines against layers.
  30. The trial
    if efforts to resolve a case through pretrial motions or negotiations have been unsuccessful, the case will proceed to trial.
  31. Jury selection
    Parties to a lawsuit is entitled to fair and impartial jurors in both civil and criminal cases.
  32. Voir dire
    definition to speak the truth,

    examination allows the court and the attorneys to examine each potential juror as to his or her qualifications and ability to be fair and impartial.
  33. Peremptory challenges
    Either party in the lawsuit may challenge or excuse a prospective juror for a specific person or cause.

    In addition the excuse for cause, attorneys are given a certain number of challenges for which no cause or reason need be given to excuse a prospective juror.
  34. Direct verdict
    This motion is called a Judgment as a Matter of Law. The court can only direct a verdict for one party if the evidence taken establishes as a matter of law that the party making the motion is entitled to a verdict.
  35. Jury instruction
    is to bring the facts and the law together in an orderly manner that will result in a decision.
  36. Trial steps
    • Voir dire- (jury selection)
    • Attorneys present opening statements
    • Plaintiff presents evidence through witnesses
    • Defendant moves for directed verdict/judgment as a matter of law
    • Defendant presents evidence through witnesses
    • Attorneys present closing arguments
    • Court instructs jury on the law
    • Jury deliberates and makes decision (verdict)
    • Judge enters judgment on verdict
    • Losing party files posttrial motion
  37. Burden of proof
    Describe the burden or responsibility that a person has to come forward with evidence on a particular issue.
  38. Burden of pesuasion
    The party with this burden must convince the trier of the fact on the issue involved.

    If burden of persuasion fails the party loses the lawsuit.
  39. Beyond a reasonable doubt
    This burden of proof means that the prosecution in a criminal case has the burden of convincing the trier of fact, that the defendant is guilty of the crime charged and that the jury has no reasonable doubt of the defendants guilt.
  40. Preponderance of evidence
    In the judgment of the jurors, evidence that has greater weight and overcomes the opposing evidence and presumptions.
  41. Clear and convincing proof
    A burden of proof that requires the party with the burden to establish clearly the existence of the alleged facts. This burden requires more proof than merely having a preponderance of evidence on one's side.
  42. Verdict
    Determines what the facts are and to apply the law, as instructed by the judge, to these facts
  43. Judgment
    If the judge agrees with the verdict it is entered in favor of the party that won the jury's verdict.
  44. Judgment notwithstanding the verdict
    If the judge finds the verdict is erroneous as a matter of law, the judge may enter a judgment opposite to the jury's verdict.
  45. Appeal
    The right of the litigation parties to have the legal decisions of the trial judge reviewed by an appellate court.
  46. Appellate procedures (1)
    Brief - contains a shorty description of the case; factual summary; legal points and authorities; and arguments for reversing or affirming the lower court decision.
  47. Appellate procedures (2)
    Oral argument - the attorneys are given a apecified amount of time to explain orally to the court their position in the case. This also gives the court of review an opportunity to question the attorneys about various aspects of the case.
  48. Enforcement of judgment and decrees (1)
    Execution - the seizure of property that is sold at public auction, and applies the proceeds to the creditor's claim, therefore paying the debt owed.
  49. Enforcement of judgments and decrees
    Garnishment - having a portion of the debtor's wages paid to the court, which in turn pays the creditor.
  50. Res judicata
    The thing has been decided. The final decision is conclusive on all issues between the parties.

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