Civil Litigation Midterm chapters 1-5

Hendricks Case

While on vacation the Hendricks were viewing some houses, a real estate agent showed them pictures on a house, the lot was 100k, and the bought it without viewing it. When they went to visit the property it as nothing like the pictures. They immediately contacted the relator and company, but they refused to return their money.

Pleadings

Documents filed that describe the claims and defenses of a lawsuit, including the complaint and the answer. The plaintiff files the pleading which the defendant answers.

Code pleading

The method of setting forth claims and defenses by following rules specified in a code, often used in contrast with fact pleading.

Notice Pleading

pleading standards that merely notify the opposing party and court of the general issues in the case

Allegations

A contention of claims made within a pleading, regarding a fact that the party intends to prove at trial.

Elements of a complaint

1. identify P and D, and describes status and capacity to sue and be sued.

2. contains statement showing that the court in which it is filed has proper jurisdiction and venue.

3. describes the factual basis for the lawsuit

4. requests or demands some relief from the court

Format of a complaint

1. Caption

2. Allegations 9cause of action)

3. Prayer

4. Subscription

Caption

Heading of a pleading, usually identifying the court, the parties, the nature of he pleading, and the docket number.

Prayer

Part of the pleading usually the end where the party asks the court to either grant or deny some relief.

Subscription

A signature at the end of a document

Verification

Statement at the end of a document and under penalty of perjury tat the contents of the document are true.

Real Party in Interest

The person who is entitled to the relief requested in a complaint, even though not name as a plaintiff.

Capacity

Having the legal ability to do somethin such as initiating a lawsuit.

Guardian ad litem

A court appointed person who represents a party in a lawsuit, where the party lacks capacity to file the action. They re usually appointed to minors or those who are mentally incapacitated and that do not have a guardian.

Piercing the corporate veil

If a corporation does no act like a corporation, the individuals behind the corporation can be sued individually.

Fictitiously named defendants

Defendants in lawsuit who are not known by their correct names. They are usually referred to as “does”, discovery of defendant after the statute of limitations has passed.

Permissive Joinder

Concept allowing multiple parties to be joined in one lawsuit as plaintiffs or defendants as long as there is some common question of fact or law.

Compulsory joinder

A party who should be included or named in lawsuit, in federal court federal rule of procedure 19 sets out the criteria for compulsory joinder of parties.

Indispensable parties

A person who must be joined in the lawsuit and whose absence makes it impossible for a court to render a judgment.

Class action

A lawsuit brought by a limited number of parties on behalf of themselves and other persons with the same or similar issues.

Interpleader

A type of action in which several different parties claim ownership to a fund or property that is in the control of another.

Counts

Separate claims stated in one complaint

Specific performance

A court order requiring a person to fulfil his or her promises in a contract

Compensatory damages

award of money to compensate the plaintiff for an actual loss

Punitive or exemplary damages

Damages to punish a defendant for intentional or malicious conduct that caused injury

Equitable relief

A judicial remedy other than money damages such as specific performance of a contract or an injunction

Rescission

Type of equitable relief, an order rescinding or voiding a contract

Restitution

Type of equitable relief, an order to return money or property, usually paid in connection with a contract that was subsequently rescinded.

Declaratory relief

Type of equitable relief, a court order defining the rights and obligations of a party under some contract or other document.

Quiet title action

Type of equitable relief, an order clarifying ownership of real property.

Injunction

Type of equitable relief, an order requiring a part to stop doing something.

Temporary restraining order (TRO)

Order from the court requiring a person to act or refrain from acting in a certain way, issued for a limited time until a full hearing on the matter can be scheduled.

Preliminary injunction

court order made prior to final judgment in the case but after all parties have had the opportunity to present evidence, directing that a party take or refrain from some action until the trial in the case takes place.

Filing

Presenting a paper to the court clerk to be included in the court file for the case

Summons

A form served with a complaint informing a person of a lawsuit against them, the time limit for responding and the consequences of failing to respond.

Personal service of process

Notice of a lawsuit or other proceeding that is given to a party personally delivering a copy of the papers to that party.

Proof of service

Written verification that papers have been delivered to a party, detailing when, where and how the papers were delivered.

Stipulations

An agreement between opposing lawyers in a lawsuit.

True or false, Challenging personal jurisdiction may aquire a defendant to move to quash any summons that was served upon them/

False

True or false if a case is in the wrong enue it is thrown out.

False

Civil Litigation

The process of resolving private disputes through the court system.

Substantive law

Laws that determine paties rights and obligations

Procedural Laws

Laws that set fourth legal procedures or methods used by parties to enfore their rights

Complaint

Ususally the first document filed in court in connection with a lawsuit, it sets fourth the allegations of the plaintiff and states the basis for the action, and the releif requested from court.

Petition

Intial document filed with court along with complint askig the court for some order.

Anwer

The itnial pleading filed bu the defenadant in a lawsuit, consesing the factual and egal basis for the lawsuit.

Defualt

Failure to file an answer or other responsive pleading within the proper time will lead to a defualt judgment

Discovery

Procedures by which all parties have the right to obtain informantion from other parties, and witnesses, includes the deposition, intterogotaries, and production of documents

Alternative Dispute Resolution (ADR)

Ways to reolve lega disputes wihtout legal action

Negotiation

Disscussion between opposing parties on an attempt to settle a case, usually involving compromise by both sides.

Settlement

An agreement that resolves a dispute without without the need of a court action

Mediation

A nonbinding process in which a nuetral third party helps isputung parties reach a settelment.

Arbitration

An out of court process in whcih disputing parties present their case to a nuetral third person who listens to evidence from each disputing party and makes a decision, it can be binding but not always.

Form book

Books containing sample forms for legal professionals.

Jurisdiction

The power of a court t hear a type of case.

Orginal jurisdiction

Power of a court to conduct a trial in a case confers a court the right to be the first cout to hear the matter.

Legal error

A mistake in te way the court interprets or applies the law

Appllate jurisdiction

The power of a court to review the descion of a lower court or administrice agency

U.S. District courts

94 district courts, compalints and answers are filed here and they conduct trials

Subject mater jurisdiction

The power for a court to hear a particular type of case

Personal jurisdiction

Power of a court to make rulings affecting the parties before a court

In rem Jurisidction

The power of a court to hear a cased based on the fact that property is the subject of the lawsuit, is located in the state which the court sits.

Quasi in rem jurisdiction

Authority of a court to hear a case based on the fact that the defendant owns property that is located wihin the sateseven though the property is not the subject matter of the lawuit.

Subject matter jurisdiction for Ferderal courts

1. Case ivloves costitutional issues

2. case involves treaty

3. case involves federal laws (tax, bankrupcy, maritime)

4. U.S government is party in the lawsuit

5. Diversity of citizenship

Diversity of citizenship

1. Plaintiff and defendant are residents of different states

2. Case claims of money amounts over $75,000

Exclusive jurisdiction

Power of a court to hear a case that belongs to on court system only.

Concurrent jurisdiction

Power of more than one court to hear a case.

Removal

Transfer of a case from a state court to a federal court where concurrent jurisdiction exists.

Supplemental Jurisdiction

A federal courts right to decide a claim based on a nonfederal issue if this claim depend on the sae set of facts as does a federal claim in the case before the court.

General jurisdiction

Power of a court to hear cases that are not within the exclusive jurisdcition of a different court

Limited jurisdiction

Power of a court to hear only certian kinds of cases

Long arm statutes

Law which defines right of state courts to exersice jurisdiction over non resident defendants

General apperance

Physical apperance or filing of documents in a court without specifically limiting the purpose of the apperance, a general apperance confers personal jurisdiction on the court on the party appearing

Special apperance

An apperance in court for a limited purpose, often contesting jurisdiction.

Motion to quash service of summons

A request that the court decalre that service of the complaint and summons is invalid either because the court lacks jurisdiction over the dendant or becuase of some preocdeural problem with the service itself.

Venue

Among all the courts that have jurisdiction, venue defines the specific geographical location of the court or courts where an action should be brought . In the federal system, this determines whoch is the proper district. In the state court systems this often determins the proper county or counties.

Cause of action

A legal basis for a lawsuit based on the facts of the case.

Elements for a negaligence cause of action

1. Duty of care

2. Breech of duty of care

3. Causation

4. Damages

   (In book there is 5, he only cares about these 4)

Statute of limitations

The maximum time period in which any lawsuit must be filed in court.

Claim statutes

Type of law that requires a written notice describing a claim to be presented to the defendant before a lawsuit can be filed.

Laches

An equitable doctrine preventing a party from prusing certain types of lawsuits because that party has delayed to the extent that it would be unfair to the opposing party

Tickler system

Calender system

Model rules of conduct

American Bar Assosication rules setting standards for the ethical conduct of lawyers, while not binding in themselves, these riules form tje basis for the mosts state ethical rules.

Conflict of intrest

A situiation in which, due to competing factors, one party might be unable to act entirley for the benfit of the party to whom a fiducacry duty is owed.

Flat fee

A legal fee based on a fixed sum rather than an hourly rate or a percentage of a recovery

Hourly fee

Legal fee based on a fixed amount for each hour the law firm spends on the case

Contigent fee

A leagl fee based on the percentage of the final settelment or recovery from a lawsuit

Retainer

A legal fee imposed at the beggining of a legal action, usually inteded to be applied to future attonry fees actually inccured

Trust acoount

A special bank account used exclusivley for handling money belonging to another, usually a client

Representaion letter

A letter form an attorney to a new client establishing the ground rules of the litigation, including fees, billing rates, retainer, and work to be peformed by the law firm.

Retainer agreement

An agreement between an attorney and a client setting forth the fee arangment and details of the attorney obligations.

Release

Giving up a claim to right to sue

Authorization

A signed statment empowering someone to give out information that might otherwise be treated as confidential.

Mdeical diary

A document in which the client keeps track of medial treatment, daily health complaints, type and amount of medication, milage to physicians offices and other related medial expense.

Agnet for service of process

Party designated by a corporation who is authorized to be srved with a lawsuit aganist the corporation.

Judicial notice

A courts acceptance of the truth of a fact without the necessity of evidence, often because the facts are offical acts or are so universially known that they cannot reasonably be disputed.

Evidence log

A document attacthed to an item of physical evidence recording the chain of possesion of that piece of evidence

Federal sources of law

1. U.S. Consitituion

   Art I-Legislative Congress

   Art II-Executive pres/vp/admin agencies

   Art III-Judicial Supreme court

2. Satutues (Codified) Art I

3. U.S. case law Art III

4. Regulations/Rules Art II Code of federal regulation codifed

Maryland (state) Sources of law

1. MD consititution General assembly

   House of delegates (pop) and Senate 2

2. Statutes (Codified)

3. Case Law Appellate courts

4. Regulations COMAR