Civil Litigation Quiz 1

Litigation

Resolution of disputes through the court system

Civil Litigation

Resolution of disputes between private parties through the court system

Complaint

Document filled by an aggrieved party to commence litigation

Summons

Notice accompanying the complaint that commands the defendant to appear and defend agains the action within a certain period of time

Default

Failure of a party to respond to the pleading of the opposing party

Equitable remedy

Relief requested by plaintiff from defendant that is usually designed to prevent some future harm

Privileges

Rules providing that certain communcations are inadmissable because the communications are deemed confidential

Order of Federal Court

District Court, Court of Appeals, Supreme Court

Four Basic Stages of Litigation

1 Information Gathering

2 Pleading

3 Discovery and motions

4 Trial and post trial

Administrative Litigation

the process by which administrative agencies resolve disputes that concern their administrative rules and regulations

Answer

The defendant’s response to the specific allegations in the complaint and states any defenses the defendant may haveD

Discovery and motion stage

The parties will conduct formal factual investigation through written responses and oral testimony received from the other side

Affirm

The decision of the lower court should remain the same

Affirm with modifications

the decision of the lower court should remain the same with the exception that a particular part of the decision should be modified

Reverse

ruling that the judgement of a lower court was incorrect and is reversed. The lower court which tried the case is instructed to dismiss the original action

Reverse and remand

The decision that the lower court made should be changed AND the case should be sent back to be retried

Cause of action

Theory of recovery that entitles the plaintiff to recover against the defendant

Affirmative defense

A defense pled by the defendant in the answer that, if proven, denise recovery to the plaintiff

Jury Instructions

Instructions that itemize the elements for various claims, releifs and defenses

Negligence

A cause of action in which the plaintiff must allege a duty of care by one party to another that was breached and that was the cause of plaintiff’s damages

Breach of contract

A cause of action that alleges a contract was breached by the defendant, causing damages to the plaintiff also, plaintiff must allege that he performed under the contract or is excused from performing

Basic sources of proof

client exhibits, witnesses, experts, opposing party

Counterclaim

Claim in the form of a pleading brought by the defendant against the plaintiff as part of the same lawsuit

Exhibits

Tangible items of evidence presented at trial

Contingency Fee Agreement

An Agreement between the lawyer and client whereby the lawyer will receive as compensation for the lawyer’s fee a certain percentage in the recovery ultimately obtained by the client

Fixed Flat Fee

Lawyer receives a predetermined sum as fee regardless of how much work is expended on the client’s behalf

Retainer fee

A cash payment of a sum of money to a lawyer before work begins on the client’s case

Theory of the case

The lawyer’s position on and approach to all the undisputed and disputed evidence that will be presented at trial

Party to an action

a person group of people, or a legal entity that has the right to bring or defend an action

Partnership

made up of two or more individuals who carry on a business and divide any profit or loss of the business

Unincorporated association

made up of individual members, who operate undera common name, such as social organizaions, churches, and homeowners’ groups

Real party in interest

The party who under applicable substantive law, has the right that the lawsuit seeks to enforce

Assignment

a claim that has been transferred to another person or entity

Subrogation

occurs when one party becomes obligated to pay for the loss sustained by another

Joinder of parties

the bringing together of different parties in one lawsuit

Intervention

the ability of a person, not a party to the lawsuit, to become a party to the lawsuit when such person has an interest in the outcome of the lawsuit

Permissive Joinder

A joinder of parties that is allowed but not required by the court

Joinder of claims

The bringing together in one lawsuit of the different claims that a party may have against another party

Subject matter jurisdiction

the power of a court to hear particular matters

Standing

The right of a person to challenge in court the conduct of another

Pendent Jurisdiction

Jurisdiction by the federal court over nonfederal claims when both the federal and nonfederal claims derive from a common set of facts

Sovereign immunity

The insulation of government from being sued when acting in is official capacity

Diversity jurisdiction

The power of the federal court to hear controversies between citizens of different states

Complete diversity

the plaintiff must have a different state citizenship from each defendant in order for the federal courts to have jurisdiction

Ancillary jurisdiction

the authority of a federal court to hear certain types of pleadings involving claims that do not have an independent basis for federal jurisdiction

Removal

the procedure in which the defendant may transfer a case, already filed in a state court, to the federal district court for the same district in which the state action is pending

Personal jurisdiction

The power of a court to bring a party before it and to make a decision binding such a person

Forum

the state in which the action is brought

Service of process

refers to the actual delivery of the legal document to the defendant

Long arm statutes

State laws that enable a court to exercise jurisdiction overa defendant who is outside the geographical boundaries of the court

Venue

the geographic district where a lawsuit may properly be heard

Choice of law decisions

Determining in which court a complaint should be filed

Writ of certiorari

legal order from the high court for the lower court to send the records of the case to them for review

5 Sources for Informal Discovery

1- client

2- exhibit

3 witness

4 experts

5 opposing parties