CIV PRO I

What are the phases of litigation?

Pre-litigation

Mediation

Litigation

Initial Pleadings

Discovery
Pre-Trial Motions
Trial
Judgment

Appeal

What is pre-litigation?

The lawyer meets with the client, determines legal issues, and typically issues a demand letter.

What is a demand letter?

An attempt to resolve the dispute before going to court; it puts the opposing party on notice of your legal position, outlines the claims intended to be pursued, and invites the other side to resolve the issues prior to filing.

What is mediation?

Disagreeing parties use their lawyers or a hired mediator to negotiate and resolve their issues before starting formal litigation.

What is litigation?

It begins the formal proceedings of the lawsuit.

What are initial pleadings?

The plaintiff’s attorney files a complaint with the appropriate court. The court then issues a summons. Defendant responds. Court issues a scheduling order.

What is the complaint?

It must include information about the parties to the case, allegations about what happened and who bears responsibility, a list of wrongdoings, a demand, and the desired outcome.

What is the summons?

It is issued by the court after receipt of the complaint and notifies the defendant that they’re being sued, informs them of the other party, attorney’s information, case details, and encloses a copy of the complaint.

What is the response?

It is filed by the defendant after review of the complaint and responds to the allegations in the complaint, including counterclaims.

When is an answer (response) an appropriate response to a complaint, and what is the most common type?

Always; a denial of 1+ key allegations

What is FRCP 12(b)?

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required.

What is the scheduling order?

It is issued by the court and outlines the next steps and timeline for the lawsuit.

What is discovery?

Both parties learn as much as they can about the case; it includes document review, interrogatories, subpoenas, and depositions.

Are discovery orders reviewable?

Yes, after final decision, including orders to submit to an examination.

When can a party resist discovery?

On grounds of proportionality, including expense in relation to likely relevance

Are nonparties required to offer evidence?

Yes, if they possess relevant, nonprivileged evidence

What is a motion for summary judgment, and when is it filed?

It asks the judge to decide either hte case or a singular issue without a full trial and argues that there are no genuine disputes over material facts, such that the moving party is entitled to judgment as a matter of law because a trial would be unnecessary based on the existing record; before trial.

What is a Rule 12(b)(6) motion and what does it assume?

Plaintiff’s allegations in the complaint, if proved, would entitle him to the court’s help, but does not consider whether the plaintiff can prove the truth of the statements; it assumes the allegations are true.

When does a trial occur and what are the types?

Judge or jury; when disputes over facts exist

Is an order to submit to a physical or mental examination appealable?

No, it is not appealable.

What are the two limitations on appeals?

Standard of review and timing of review

What is standard of review?

Findings of fact should be affirmed unless clearly erroneous.

Rulings of law should be affirmed only if the appellate court would have reached the same conclusion.

When is the only time the appellate court should reverse?

If the lower court’s error affected the outcome of the lawsuit.

What is the main issue with timing of review?

Interlocutory orders are non-final.

When is the only time the Supreme Court may hear a state case?

If it presents an issue of federal law

What established the system of federal courts?

Constitution, Article 3, Section 1

What addresses the relationship between state and federal government and requires that the full faith and credit be given to each state to judicial proceedings of every other state (if court had jurisdiction)?

Constitution, Article 4, Section 1

What is jurisdiction?

The power of a court to issue a judgment that another court will recognize and enforce.

What does a court need to hear a case?

Personal and subject matter jurisdiction

What is personal jurisdiction?

The Court can exercise power over a defendant or item of property.

What is required for personal jurisdiction?

Some connection to the forum state

What established the concept of personal jurisdiction?

The Due Process Clause (14th Amendment)

What is the forum state?

The place where the lawsuit is filed.

What does Pennoyer say?

A plaintiff cannot sue a defendant wherever they choose because without guaranteeing a fair judicial procedure, a state would violate the due process clause.

What does FRCP 12(b)(2) deal with?

Personal jurisdiction

What are the three elements of personal jurisdiction?

Power, consent, and notice

What is power in terms of personal jurisdiction?

States have jurisdiction over people and things within their borders, but they do not have jurisdiction over people and things not within their borders.

What are the types of personal jurisdiction?

In rem

Quasi-in-rem

In personam

What is in rem jurisdiction?

The court has power over the property, and the property is at issue in the case (not the person).

How is in rem jurisdiction established?

Property must be located in the state, AND property must be the subject of the lawsuit.

What is quasi-in-rem jurisdiction?

The court gains power over the defendant based on the presence of the defendant’s property within the court’s jurisdiction and forces the defendant to appear by threatening to seize the property if they don’t participate in the lawsuit.

What is in personam jurisdiction?

The court has power over the person.

How is in personam jurisdiction established?

Defendant physically lives in the forum state, OR

Defendant is served in the forum state while physically present in the state, OR

Defendant consents to service and shows up to litigate the lawsuit.

What is subject matter jurisdiction?

The court has power over a particular type of case.

What establishes subject matter jurisdiction?

Constitution, Article 3, Section 2