ESP Vocab Chapter 4.2 Civil Process Pt 2 pg 70-78

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54 Terms

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jurisdiction

what gives a certain court the authority to hear and rule on a case

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in personam jurisdiction

court jurisdiction over the person (county and state have jurisdiction over the plaintiff)

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in rem jurisdiction

court jurisdiction over a controversial feature of the case, usually property, like whichever county a cabin is in in a case where two people are suing for title of the cabin

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quasi in rem jurisdiction

jurisdiction over property that isn’t directly linked to the case, but if the case swings one way the property will become part of the settlement, so in order for it to be effectively in the settlement, the court that has jurisdiction over it should rule the case.

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lis pendens

when a piece of property is potentially involved in a case settlement, the title of the property gets a lis pendens attached, which notifies any potential buyers that the title is subject to the outcome of the litigation

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lien

a lien prevents a piece of property from being sold until the case is completed / previous financial obligations are satisfied. a judgment is required to file a lien, so they’re less common than lis pendens.

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rules of court

the rule of law that governs the procedures of trials

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answer

a second type of pleading, filed by the defendant, that responds to the (accusations) allegations that the plaintiff writes in the complaint (the first type of pleading)

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affirmative defense

a type of answer where the defendant admits that the specific action did occur (no debate), but that it’s not the defendant’s fault. this is meant to eliminate or reduce plaintiff damages.

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counterclaim

a type of answer where the defendant argues that it’s actually the plaintiff’s fault, so the plaintiff should pay their own damages.
affirmative defense blames someone else besides the defendant, while a counterclaim blames the plaintiff themself. in an affirmative defense, the defendant is involved but is trying to lessen their liability. in a counterclaim, the defendant tries to absolve themselves of damages.

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third party complaint

a type of cross claim, where the defendant answers by arguing that it’s not the defendant’s fault, it’s a 3rd-party’s fault, so the defendant should not be held liable.

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cross-claim

any kind of claim where the defendant, for his defense, blames another co-defendant, in an effort to lessen his own liability.

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reply

the response that the plaintiff gives to whatever answer the defendant made to the summons/complaint

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default judgment

after the summons/complaint have been served, the defendant has 20 days to file their answer, to avoid a default judgement, which rules in favor of the plaintiff. this is the penalty if the defendant fails to respond quick enough.

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motion

the word for requesting the court to take a procedural step. there’s many motions in a case. for example, the defendant could file a motion to extend time to respond, allowing a wider than 20 day window to avoid default judgment.

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litigation

the process where a court of law decides the outcome of a dispute/lawsuit

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contest

to challenge the legitimacy/credibility/usability of something. the defense can contest evidence.

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discovery

the investigative searches conducted by both parties to learn about the case and gather all the necessary information. the logic goes that if both parties are trying to expose the truth competitively, what they produce in court will be a complete picture. discovery itself doesn’t usually involve the court directly.

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5 kinds of discovery

interrogatories, request for admissions, request for production, request for mental or physical examination, depositions

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discovery: interrogatories

one party has written questions to the opposing party that they must answer (penalty of perjury), such as “describe the events leading to the accident”

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discovery: request for admissions

written objective statements that one party brings to the other, where the opposing party must either admit is true, or deny as false (penalty of perjury). they only have 30 days to do this; failure to respond means the court assumes they admitted it to be true.

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discovery: request for production

a request that specific documents are provided for inspection, like receipts or memos

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discovery: depositions

oral questions that are answered under oath. these take place outside of court, but still with a professional court reporter (who takes testimony), and both of the attorneys. usually these conversations question the witnesses or the parties themselves.

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certificate of mailing or certificate of service

whenever a document is filed with the court / a discovery is sent to a party, it' has a receipt attached called a certificate of mailing. this is a promise that the document being mailed is accurate, true, and unaltered. if in person, aka receipt of copy. essentially it’s the paper trail of proof of legitimacy, so if it’s ever in question, you can see who sent what when.

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order

an official command, by the court, demanding that 1 or both parties perform an act

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hearing

a court proceeding with the judge and both parties

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privileged

if a piece of evidence is privileged, it has the right to not be used in the case. can justify a refusal to testify, or to prevent someone from testifying, or to prevent a piece of evidence from being used. in contrast, everything public is fair game.

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ex parte hearing

a hearing with just one party (uncommon)

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third-party defendant

a defendant who was only brought into the case because the original defendant answered with a 3rd party complaint. the original defendant becomes the “3rd party plaintiff” because they’re now blaming this new 3rd party defendant.

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motion to dismiss

a type of motion where they ask the court to end the case without going to trial

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motion to dismiss: dismissal without prejudice

if the court dismisses the case, they cannot bring the case back to the court. the court made up its mind, and they have to settle outside of court.

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motion to dismiss: dismissal without prejudice

the courts dismiss the case, but there’s an open opportunity to bring it back to trial later. the court has not made up its mind concretely. they can refile for trial.

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trial brief / trial memorandum / points and authorities

the document filed with the court to argue a legal issue. filed in support of a motion, persuasive, argues that the law supports the party’s position. only argues points in support of the thesis (no refutation)

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motion for summary judgment

a pre-trial motion, where they ask the court to rule based on the pleadings/motions, instead of going to a formal trial with a jury. this is only possible when both parties do not dispute any of the facts. the jury is the trier-of-facts, while the judge is the trier-of-law, so if it’s only a law dispute, the court can rule without a jury. if there are factual disputes, you cannot successfully get a summary judgment, but you may get a partial summary judgement.

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magistrate

the judicial officer who supervises hearings. doesn’t have judge authority to rule but just organizes procedural matters.

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pre-trial conference

a meeting between the court and parties to clarify any procedural measures and try and promote settlement before trial.

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stipulation

can occur during the pre-trial conference; agreement between parties that a given fact will not be disputed during the trial.

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settlement agreement

the agreement that ends the litigation, after agreeing on some resolution, usually money.

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at issue or in issue

a legal question that the court needs to answer

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evidence

things that are meant to objectively establish or disprove a fact

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direct evidence

evidence from personal observation (a witness who saw someone shoot a gun)

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circumstantial evidence

evidence where a witness puts 2 circumstantial pieces of evidence together to reach a plausible conclusion (a witness heard a gunshot, turned, and saw someone with a smoking gun, concludes they just shot the gun)

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oral evidence

evidence provided through speech, aka verbal testimony

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physical / tangible / demonstrative evidence

evidence that can be touched

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admissible

status of a piece of evidence; only admissible evidence can be considered by the jury. if a piece of evidence is retroactively considered inadmissible, the jury is not supposed to rule on it. for all admissible evidence, it’s up to the jury to decide whether they believe it.

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docket

the court calendar that orders trials and hearings

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set for trial

setting a date for trial that the attorneys, parties, and court all agree on

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jury jurors

a group of jurors make up a jury, all citizens. they’re the trier-of-fact and they evaluate the credibility of evidence.

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jury panel

the larger group from which a jury is picked

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voir dire (aka for the jury)

ways to challenge and question prospective jurors from the jury panel

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voir dire: challenge for cause

a juror can be dismissed if good cause is shown

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voir dire: preremptory challenge

a juror can be dismissed for no reason (only 3 or 6 jurors can be dismissed like this, not all of them)

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bailiff

the court employee who keeps the order in the courtroom

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alternate juror

a swing juror who hears the whole case, but is a backup in case any of the jurors have to leave later in the case or is dismissed. alternate jurors are uncommon in civil cases.