civil litigation 2

civil litigation

non-criminal cases in which private parties are involved and no crimes are being charged

Torts

Civil wrongs such as battery, defamation, negligence etc.

pre-pleading phase

when a prospective client meets with an attorney (intake) to give the alleged facts that they have on their situation. then the lawyer diagnoses what all the possible causes of action should be.

causes of action

defined by case law and in the code

happens after pre-pleading

identify if the action is a federal or state court case

statute of limitation

the time limit set by law in which you can commence your case. each cause of action has its own, if not if must by commenced within 6 years.

subject matter jurisdiction

occurs after determining the statute of limitation, when you identify the court within the pyramid you need.

determine the venue

occurs after determining subject matter jurisdiction

pleading phase

specialized documents used in civil litigation are used to commence a civil case.

file the summons

the first step of the pleading phase, completed with the proper venue

naked summons

cannot be served alone, needs a complaint attached

summons with notice

provides notice on what is being sued fro a how much, whereas the other does not.

service of summons

occurs after the summons is filed. it is required upon the defendant in order to give the court personal jurisdiction over the party.

filing the affidavit of service

after the service of summons, and is related to it. it established who served the defendant when and how the defendant was served

pleadings

summons and complaint

summons with notice

service

affidavit of service

response to an allegation

admit, deny, or deny information sufficient to form a belief. anything that is not denied is admitted. it also states the affirmative defense to be used in trial.

issue is joined

this happens once the service of the answer is completed in which the defendant goes through each allegation in the complaint and either admits, deny, or deny information sufficient to form a belief.

cross claim

defendant number one v defendant number two. if there is a reason why the person could fulfill the contract, they add this to the response.

counterclaim

defendant sues the plaintiff

affirmative defenses

a defense that if established will result in dismissal of the cause of action, this is added to the answer/response.

demand for a bill of particulars

tries to get all the details that are not included in the complaint, allows the party to leanr specifics with respect to the case against them

bill of particulars

this is the answer to the list of questions, and considered the final pleading.

discovery phase

phase where the parties are required to exchange information about the case. failure to disclose results in preclusion of that evidence from trial.

demands to produce

physical evidence, recordings, records, documents, letters, reports, pictures, etc.

physical examination by defendants physician

a physical exam to determine the extent injury

witness list

people who observed the incident who are used in trial to testify

expert witness list

people hired due to their expertise to explain things to the jury

demand for depositions/examination before trial

It is to try to get the plaintiff to take a side so that you know if their claims are contradictory.

written interrogatories

a formal set of written questions sent from one party to the opposing party who must answer them in writing under oath within a specific time frame

motion for a summary judgement

no disagreement with respect to facts and one party asks the court to decide the case based upon the application of the law to the facts. one party asserts that there is no need for a trial because the facts are not in dispute

common pre-trial motions

dismiss for failure to state a cause of action

dismiss for summary judgement

plaintiff

who has the burden of proof

preponderance of evidence

what is the standard of proof required to be successful

voir dire

the process of selecting the jury with the goal of selecting those who are fair and impartial

preemptory challenges

the attorney does not have to provide a reason to exclude a potential juror, they have 3

unlimited challenges

these are used when a potential juror has bias. both attorneys have to agree on the bias otherwise the judge must make a ruling

opening statements

presents a roadmap for your case and makes a good first impression while not overpromising

presentation of evidence

occurs when each witness undergoes questions from the plaintiffs attorney called direct testimony. this is followed by the defendants attorney asking question that are limited in scoped that that which was learned directly. this often relies on questions that have yes or no answers (leading questions) called cross-examination.

closing statements

aims to rehabilitate your case and provide a final impression

charges to the jury

occurs when the judge reads the instructions to the jury so the jury knows the rule of that they are required to follow

verdict

5 of 6 jurors required to decide the verdict in a civil case