Chapter 5 - Court Procedures

What type of system is used for court procedure in the US?

Adversarial system, lawyers on each side "fight it out"

What is Pro Se?

Parties who represent themselves in court

What is the FRCP?

Federal Rules of Civil Procedure: governs how procedures are conducted in court

What are the three types of ways to pay an attorney?

- Fixed fees
- Hourly fees (most typical)
- Contingency fees

What is the most common way to pay for an attorney?

Hourly fees

Describe the common charges to an attorney for contingency fees

33% of the settlement or 40% of the damages awarded if case goes to trial

What is judgement proof?

Even if you win, you must determine if it is worth it. Does the defendant even have the money or assets to pay you if you win? This is why so many people consider settlement

What must the plaintiff show in a complaint?

- Jurisdiction
- Legal theory
- Remedy

What is a summons?

A notice requiring the defendant to appear in court and answer the complaint

Describe service of process

Proof that defendant was notified of the lawsuit
- Usually delivered by sheriff, private company, lawyer, or via social media

What is a default judgement?

The court rules against the defendant if he fails to respond in a timely manner to a service of process

What are the three different types of responses a defendant can give to a service of process?

- Answer: admit/deny/don't know
- Affirmative defense: raising new facts to show a lack of liability
- Counterclaim: defendant then sues the plaintiff

What is a motion to dismiss?

Formal request to dismiss the case

What is a motion to strike?

Request by a party to have the judge remove all or part of opposing party's pleading

What is a motion to make more definite or certain?

Obtaining a more detailed motion from opposing party before giving a responsive pleading

What is a motion for judgement on the pleadings?

Request to have the judge act in favor of their party based on the pleadings

What is a motion to compel discovery?

File from a party when they believe one side was insufficient in response to a request for discovery

What is a motion for summary judgement?

Showing the court that there are no issues of law or fact

What are affidavits?

Sworn statements by parties or witnesses

What is the difference between depositions and interrogatories?

- Deposition: oral questions under oath
- Interrogatories: written questions under the oath

What are the different types of discovery?

- Impeach of witness (challenge their credibility)
- Request for admission (did you do this?)
- Request for documents
- Request for examinations
- Electronic disovery

Describe the pretrial conference

After the discovery and before the trial, it is an informal discussion between the judge and attorneys
- Judge will encourage settlement

What is voir dire?

The jury selection process in which attorneys for both sides question jurors and can dismiss jurors for cause or peremptorily (no cause)

What are the two ways in which the attorneys can dismiss a juror?

- For cause
- Peremptorily: no cause, limited number of these

What are the four types of examination of witnesses?

- Direct examination: ask you witness
- Cross examination: ask their witness
- Re-direct examination
- Re-cross examination

What is the verdict?

Final decision of the jury

What are the two post-trial motions?

- Motion for a new trial
- Motion for a Judgement NOV (notwithstanding the verdict): now judge's decision

T/F: There is no guarantee that a judgement will be enforceable

True

What are the two alternate ways that the winning party can receive damages if the losing party doesn't pay voluntarily?

- Wage garnishment: taking up to 25% of their income
- Tax refund offset: taking their tax-refund

What is a levy?

AKA Writ of Execution: an order directing the sheriff to seize and sell defendant's non-exempt assets