Civil Litigation Quiz 2

1. By signing the pleadings (complaint or answer) the attorney is certifying under Federal Rules of Civil Procedure 11 that: 1)- 2) - 3) - 4) - Violating Rule 11 of the Federal Rules of Civil Procedure can subject the attorney to sanctions.

1) read the pleading 2) there is a good basis for allegations 3) the pleading is not for improper purpose (like to harrass or cause delay) 4) made due inquiry into the claims and defeneses and beleives that they have a good basis in law

4. Where a plaintiff is not certain about some facts that must be alleged, those allegations are qualified with the statement that they are being made “on ______ and ___.”

Information and belief

8. If the client's medical records are going to be needed, at the client interview the client should be asked to sign an ____________________, giving the attorney permission to obtain medical information and records from the client's medical providers.

authorization or release that complies with HIPAA

12. Federal Rule of Evidence 402 provides that relevant evidence is ___ unless the United States Constitution, a federal statute, or other rules of evidence or Supreme Court rules provide otherwise. Irrelevant evidence is not ___.

admissible

14. An attorney is ___ to handle a particular case if they have the requisite ability, knowledge, and time.

competent

15. An ___ is one who possesses special knowledge, education, experience, and skill in a certain area. As a result, the ___ is allowed to give opinion testimony.

expert

17. The first ___ in commencing a civil action is to prepare the complaint. The complaint states the plaintiff’s claim and describes the basis for the court’s jurisdiction.

step

18. Federal Rule of Evidence 401 provides the test ___ determining whether evidence is relevant. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence

and (b) the fact is of consequence in determining the action.

20. An out-of-court statement offered to prove the truth of the matter asserted is called ___, and is generally inadmissible under Federal Rule of Evidence 802, unless an exception to the rule applies.

hearsay

25. In scheduling a ___, the paralegal must coordinate dates with the attorney and client and determine an appropriate location. The paralegal should send a confirming letter to the client setting up the time and place, as well as listing any documents or information the client should bring with him.

deposition

26. All jurisdictions allow multiple plaintiffs and defendants to be joined in one lawsuit, as long as there is some ___ factual or legal question among them.

common

29. Joinder of a party to a lawsuit that is allowed but not required is called ___ joinder.

permissive

31. It is the Plaintiff's responsibility to make sure that the defendant is ______ _____ with the summons and copy of the complaint.

properly served

32. Requests for ___ relief include any request for something other than monetary damages. Common forms of ___ relief include: specific performance, rescission, restitution, declaratory relief, and injunctions.

equitable

34. Damages that are awarded primarily to compensate the plaintiff for a loss that has been sustained are called ___ damages. ___ damages include both special damages (out of pocket, medical bills, lost earnings, etc.) and general damages (pain and suffering, lost use of a limb, disfigurement, etc.)

compensatory

36. Under FRCP 8's ___ _____ _____, in addition to a statement of jurisdiction and demand for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Under this rule, detailed factual allegations are not required, but rather sufficient facts to put the defendant on ___ as to why they are being sue.

notice pleading standard

37. A temporary ___ order, or TRO, compels the defendant to do something, or more often, to stop certain conduct immediately. A TRO is issued for a limited time until a full hearing on the matter can be scheduled.

restraining

38. Paralegals and student interns (non-attorneys) must never give legal ___ because doing so constitutes the unauthorized practice of law.

advice

39. The ethical rules governing attorneys are called Rules of Professional ___. Many states pattern their

Conduct

1. The two main types of ___ that may be requested from a court are money damages and equitable relief.

relief

2. The required elements of a complaint include: 1. Identifies the plaintiffs and defendants in the lawsuit, 2. describes their status and capacity to sue and be sued, and 3. ____

Contains a statement showing that the court in which it is filed has proper jurisdiction and venue

3. FRCP 23 governs certification of ___ actions. For a suit to go forward as a ___ action, the party seeking Rule 23 certification must demonstrate numerosity, commonality, typicality, and adequate representation of the ___ claims.

class

5. A conflict of ___ is a situation in which, due to competing factors, an attorney or paralegal might be unable to act entirely for the benefit of a party to whom a fiduciary duty is owed (the client). An attorney must not accept a case where there is a conflict of ___.

interest

6. The summons is the ___ that the court issues as soon as the complaint is filed, explaining that the defendant has been sued and should answer the complaint by a certain date. The attorney fills out the ___ summons, and the clerk of court signs it at the time that the complaint is filed. The plaintiff must then make sure that the summons is served on the defendant with the complaint. Then the proof of service portion of the summons ___ is filled out (the back side of the summons), and the summons, with proof of service, is filed with the court.

document

7. Damages awarded to punish or deter others from engaging in the type of particularly egregious actions that the defendant has done are called ___ or exemplary damages.

punitive

9. Joinder that is required, where the court cannot resolve the case without the presence of a party because they are an indispensable party to the suit is called ___ joinder.

necessary

10. If an attorney turns down case, this must be communicated clearly to the client in ___.

writing

11. Legal basis for a lawsuit based on the facts of the case and applicable law

cause of action or legal right to recover damages.

13. Communication between a client and the attorney must be kept ___. This requirement extends to the entire law office as well, including the paralegal.

confidential

16. The Federal Rules of Civil Procedure encourage defendants to ___ formal service of process. Rule 4 provides that if the defendant does not sign and return the form stating that they will ___ service within 30 days, then traditional, personal service of process must be made, and defendant has to pay the costs of the process server.

waive

19. FRCP 15 provides that the plaintiff is allowed to ___ the complaint once, as a matter of right, within 21 days after responsive pleading or motion is filed. After that, a stipulation from the defendant(s) agreeing that the plaintiff may ___ the complaint is needed, or in the absence of agreement, plaintiff makes a motion to the court and the court will grant the motion to ___ so long as it would not cause undue hardship or prejudice, or delay the case.

amend

21. “___ allegations” are needed in a complaint where there is more than one defendant, and one defendant is an agent or employee of another Defendant. It is an allegation that the employee was acting within the scope of that ___, so as to allege liability on behalf of the employer for certain actions of their employees.

agency

22. A ___ injunction is issued before a full trial of all the issues, but after a hearing at which both sides have the opportunity to argue for or against the restraining order remaining in effect until the time of trial of all the issues.

preliminary

23. ___ evidence is indirect evidence that can help to prove a fact. It does not directly establish a disputed fact, it requires the trier of fact to draw reasonable and logical inferences.

circumstantial

24. A time limit for filing a complaint, or the maximum time period in which a lawsuit must be filed in court, is called a statute of ___.

limitations

27. The benefits of ___ filing include: documents are prevented from being misplaced

accessibility--allowing the judge and attorneys to view the documents at any time

28. Relevant information used to prove the allegations in the parties’ pleadings at trial, is called ___.

evidence

30. Evidence that a witness personally observed and that, if believed, directly establishes a fact is called ___ evidence.

direct

33. To determine whether a potential client has a cause of action to pursue, one should: 1) Research the applicable law

2) Identify the legal elements of the applicable cause of action

35. Under FRCP 4: Anyone age 18 or over can serve the summons and complaint on the defendant, so long as that person is not a ___ to the action. Many attorneys (and their paralegals) hire professional process servers.

party

2. Motions made during the trial are usually made orally, whereas all other motions must be made in writing, filed with the court clerk, and ___ on the opposing attorneys.

served

3. A motion brought at the beginning of trial, or shortly before trial, that is made to ask the court to disallow the admission (or even the presentation) of certain evidence (testimony or documentary), often made on the grounds that the prejudicial effect of the proffered evidence would outweigh any probative value, but can be made for any reason why the movant would argue that the evidence should not be admitted.

limine

5. The party who makes a motion to the court asking the court to issue an order in the case is called the ___ or moving party.

movant

6. ___ is an affirmative defense applicable to all cases which dictates that a delay in pursuing a claim can be so long that the person against whom you are proceeding is unfairly hurt or prejudiced by that delay and the claim should be denied.

laches

9. An _____ is organized in the same general format as the complaint. It contains a caption that contains the title of the case (which is the same as that found in the complaint or petition), and the docket number assigned to the case by the court. The body or main part of the ____ also contains allegations in the form of numbered paragraphs in which the contentions of the complaint are affirmed, denied, or denied on information and belief. Following these paragraphs might also be paragraphs setting out affirmative defenses. The answer concludes with a prayer, or “wherefore” clause, usually requesting that the plaintiff take nothing by way of the complaint. The signature and address of the attorney filing the answer.

answer

11. Contributory ___ and comparative ___ are affirmative defenses applicable to tort cases, in which the defendant alleges the person who was harmed themselves engaged in negligent or careless conduct.

negligence

12. An affirmative defense applicable to tort cases called __ __ ____ ______ arises when harm or injury is caused by a co-employee; in some jurisdictions it relieves an employer for work-related injury if employees were carefully chosen.

injury by fellow servant

14. A motion for a ___ order is a discovery motion brought pursuant to FRCP 26(c), asking the court to limit a discovery request or to protect certain information from discovery due to a privilege, trade secrets, confidentiality, etc.

protective

21. An ___ defense is a fact or circumstance that, if proven, defeats the plaintiff’s claim, even if the plaintiff can prove every contention alleged in the complaint (every element of the cause of action). ___ defenses must be alleged in the answer or they are deemed waived. In other words, if an ___ defense exists and is not alleged in the answer, the defendant may be barred from asserting it at trial.

affirmative

25. ___ of frauds is an affirmative defense applicable to contract disputes alleged where there is a Law that requires certain types of contracts (for example, those over $500) to be signed and evidenced by a writing to be enforceable in court and the alleged contract at issue in the case does not comply with those legal requirements.

statute

26. An affirmative defense applicable to contract disputes where something that is offered as part of a deal (the “___”) becomes worthless or ceases to exist before the deal is completely carried out, is called failure of ___.

consideration

27. A posttrial motion to tax ___ is brought under FRCP 54 by the prevailing party to recover their ___ of litigation (filing fees, service fees etc.) in addition to the judgment.

costs

31. Defendant's options in responding to a complaint include (1) negotiating a settlement, (2) challenging or contesting the factual claims of the plaintiff by filing and serving a responsive pleading called an ___, (3) challenging legal aspects of the case (jurisdiction, improper service, failure to state a claim upon which relief can be granted, etc.) by making an appropriate motion or by asserting these legal defenses in the answer as affirmative defenses, or by (4) choosing to not respond to the initial pleading, allowing the plaintiff to pursue default remedies.

answer

33. An affirmative defense applicable to contract disputes by which one is stopped by their own prior acts from claiming a right against another person who has legitimately relied on those acts is called ___.

estoppel

34. Any request that a party makes to the court to issue an order in the case, whether on a procedural issue or on a substantive issue, is called a ___.

motion

36. A motion to strike made orally at trial is a request to the court to ___ testimony from the record.

exclude

37. Motions must be made or opposed in good faith, and so if a court finds that an attorney has abused the motion process, the court may order ___ to punish that attorney.

sanctions

40. In order to oppose a motion, the responding party usually prepares affidavits or declarations, a memorandum of law in opposition to the motion, and a proposed order. These documents are then filed in court and served (usually by mail or electronically) on all other ___ to the action.

parties

44. A motion for a more ___ statement can be filed pursuant to FRCP 12(e) when the complaint is so vague and ambiguous that it cannot be understood and cannot be answered. This motion asks plaintiff to clarify the allegations and make them intelligible. The moving party is expected to point out the defects in the complaint and explain what details need to be added.

definite

A posttrial motion for ___ ____ ______ or order brought pursuant to FRCP 60, is a request to the court by one party that the court relieve a party from any judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies ___.

relief from judgment

46. An affirmative defense applicable to contract and tort disputes is ___, the voluntary giving up of a right.

waiver

48. A denial in an answer on the basis of _______ ___ ______ is only acceptable when the pleader “honestly lacks firsthand knowledge of the true facts” and cannot easily ascertain the information necessary to straight up admit or deny the allegation.

information and belief

49. In federal court, the time for a defendant to ___ to a complaint depends on the way the complaint was served. If the defendant waived formal service, the time in which to ___ is 60 days. The same time applies if the defendant is the United States, a federal agency or a federal employee. In other instances, defendants generally have 21 days in which to file and serve an answer or a responsive motion.

respond