Litigation 2023 with verified questions and answers

selecting the proper court involves: 1. subject matter jurisdiction 2. personal jurisdiction 3. venue United States District Court mostly tries cases that: 1. The United States, its agencies, or its officers are parties if named either as a plaintiff or as a defendant in the lawsuit 2. A case involving a federal question if it is a "civil action arising under the Constitution, laws, or treaties of the United States." 3. A case involves diversity of citizenship if it is a civil action "where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between...citizens of different states." domicile the permanent home of the litigant supplemental jurisdiction allows additional claims and additional parties to be added to an existing federal case without independently satisfying the requirements of federal subject matter jurisdiction. pendent jurisdiction a state-created claim between parties sometimes could be added to a similar federal question claim pending in federal court between the same parties, even though the federal court would not have had jurisdiction if the state-created claim were filed separately. removal jurisdiction the right of a defendant to move a lawsuit filed in state court to the federal district court for the federal judicial district in which the state court sits. This is a general exception to the usual American rule giving the plaintiff the right to make the decision on the proper forum. Removal occurs when a defendant files a "notice of removal" in the state court where the lawsuit is presently filed and the federal court which the defendant would like to remove the case to. personal jurisdiction in the law of civil procedure in the United States, refers to a court's power over a particular defendant (in personam jurisdiction) or an item of property (in rem or in limited cases, quasi in rem jurisdiction). If a court does not have personal jurisdiction over a defendant or property, then the court cannot bind the defendant to an obligation or adjudicate any rights over the property. personal jurisdiction may be exercised when the individual: 1. is domiciled within the forum state 2. is present within the forum state 3. consents to suit within the forum state 4. commits tortious acts which cause injury within the forum state 5. does business within the forum state service of process is the procedure employed to give legal notice to a person (such as a defendant) of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal. Usually, notice is furnished by delivering a set of court documents (called "process") to the person to be served. venue the place (geographic location) within a jurisdiction where trial should occur. real party in interest is either one who was damaged or one who caused damage (directly or indirectly) in a specific transaction or occurrence. One who has standing in the suit. joinder of parties more than one plaintiff or more than one defendant may be joined in a single suit 1. if their claims arise from the same transaction or occurrence and 2. if their claims present a common question of law or of fact that will apply to all of them. permissive joinder allows multiple plaintiffs to join in an action if each of their claims arise from the same transaction or occurrence, and if there is a common question of law or fact relating to all plaintiffs' claims. necessary party is one who has an interest in the controversy and who should be joined if possible for the sake of justice; however, if the party's joinder is impossible because of jurisdiction or venue problems, the suit could continue without him. indispensable parties is one whose interest is so essential that litigation without him would be unjust. Rule 24 of the Federal Rules of Civil Procedure allows a person who was not an original party to the suit to enter the suit upon her own initiative. AKA intervention interpleader a form of action originally developed under equity jurisprudence. It allows a plaintiff to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. An interpleader action originates when the plaintiff holds property on behalf of another, but does not know to whom the property should be transferred. It is often used to resolve disputes arising under insurance contracts. impleader procedural device before trial in which one party joins a third party into a lawsuit because that third party is liable to an original defendant. Using the vocabulary of the Federal Rules of Civil Procedure, the defendant seeks to become a third-party plaintiff by filing a third party complaint against a third party not presently party to the lawsuit, who thereby becomes a third-party defendant. This complaint alleges that the third party is liable for all or part of the damages that the original plaintiff may win from the original defendant. class action when there are large numbers of people with similar claims against the same party, this is filed if it meets the requirements: 1. the class must be so large that joinder of all of its members is not feasible 2. there must be questions of law or fact which are common to the class 3. the claims or defenses of the representatives of the class must be typical of class members 4. the representatives must represent the interests of the class fairly and adequately common law pleading different form required for each type of action, highly technical, significant for historical references more than anything else code pleading designed to disclose the facts upon which the claim is based notice pleading designed only to give sufficient notice of the claim or defense requirements of a complaint 1. the caption of the case 2 a short, concise statement of the claims or defenses showing that the pleader is entitled to relief 3. a statement of relief or remedy sought by the pleader 4. the demand for judgment 5. signature of the pleader's attorney 6. verification, if required general denial an answer in which the defendant denies each and every allegation of the complaint except those allegations which are against the interests of the plaintiff affirmative defense an assertion which, if it can be proved at trial, will negate the plaintiff's claims setoff an assertion which, if it can be proved, will reduce the plaintiff's claim but will not cancel it entirely counterclaim the pleading used by a defendant to state a claim against a plaintiff compulsory counterclaim arises from the same transaction or occurrence upon which the plaintiff's complaint is based. The defendant is required to raise it in the same litigation permissive counterclaim arises from a different transaction or occurrence than the one upon which the plaintiff's claim is based. cross-claim a claim filed against a co-party, either plaintiff v. plaintiff or defendant v. defendant. It must involve the same subject matter as the original complaint or a counterclaim sum certain an amount not subject to reasonable dispute discovery a formal, pretrial process designed to give all parties access to the same evidence that will be available to all other parties at the time of trial purposes of discovery obtain evidence that might not be available at trial because of a witness' age, poor health or absence from the jurisdiction 2. to narrow the issues for trial 3. to avoid unfair surprises during trial 4. to encourage settlement before trial self-executing what discovery is. The parties implement discovery procedures on their own, with little court intervention discovery devices 1. interrogatories 2. request for production of documents, things, and land for inspection 3. request for physical or mental examination 4. request for admission 5. deposition interrogatories a series of written questions served by one party upon another party, which must be answered under oath. deposition a discovery device used to record the sworn testimony of a witness prior to trial. They may be oral or upon written questions. subpoena a document commanding a person to appear personally at specified time and place to give testimony. privilege a protection against compulsory disclosure which is given to certain types of information, such as a trade secret or a communication between certain categories of people. work product immunity applies to a lawyer's preparations for trial absolute immunity is given to documents containing the subjective thoughts of a party's lawyer or other representative, including legal theories, conclusions, opinions or mental impressions. dismissal without prejudice a claim may be filed again if the party elects to do so dismissal with prejudice the claim cannot be filed again- invoking the res judicata doctrine. procedure to obtain a summary judgment a party must show that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. summary judgment a determination made by the court without a full trial. Can be a full summary or a partial summary judgment. scheduling order sets a time limit for joinder of additional parties, amendment of pleadings, filing motions, and completion of discovery. motion in limine a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial. This is done in judge's chambers, or in open court, but always out of hearing of the jury. If a question is to be decided in limine, it will be for the judge to decide. Usually it is used to shield the jury from possibly inadmissible and unfairly prejudicial evidence. pretrial order issued by the judge, it summarizes the results of the pretrial conference in terms of contested and uncontested issues as well as identification of witness and exhibits. voir dire the process to select jurors. The potential jurors are examined first by the trial judge and then by the attorney to determine whether they are able to reach a fair and impartial verdict. challenged for cause when a lawyer questions the impartiality of a potential juror. peremptory challenge allows a party to dismiss a potential juror without demonstrating cause for dismissal. defendants goal 1. to refute the evidence put forth by the plaintiff 2. to prove the required elements of the affirmative defenses stated in his answer. burden of proof in civil case by the preponderance of the evidence general verdict a verdict which simply declares which party is the winner general verdict with interrogatories declares which party is the winner and requires to jury to answer answers to questions about specific findings of fact. special verdict requires a special, written finding for each fact in the case. prejudicial error one which both: 1. affects a substantial right of the moving party in the trial process 2. was objected to by the moving party at the time of its occurrence. judicial error ex: improper admission or exclusion of evidence or an improper jury instruction examples of prejudicial error 1. judicial error 2. improper conduct of a party, witness or attorney 3. improper conduct of a juror 4. a verdict which is against the weight of the evidence 5. newly discovered evidence 6. the verdict is excessive or is inadequate nunc pro tunc generally, a motion for an order that seeks to correct clerical types of errors when there is no question about what the order of judgment should have contained. order of stay a motion filed under appeal to prevent the enforcement of the judgment. appeal de novo on record the appellate court's review is limited to the record made in the trial court. disposition by appellate court 1. affirm the lower court decision 2. reverse the lower court decision 3. reverse and remand with instructions for further proceedings merger and bar AKA res judicata a case in which there has been a final judgment and is no longer subject to appeal;[1] and the legal doctrine meant to bar (or preclude) continued litigation of such cases between the same parties collateral estoppel prevents the same issues from being litigated by the same parties in different actions The basic pleadings in a federal civil case include the complaint, the answer, and the reply to the counterclaim when a case is appealed, the appellate court will base its decision on the record of the lower court Juries may NOT decide issues related to both law and fact in simple cases Rule 37 provides the remedy... If a person fails to answer interrogatories within the time specified. The purpose of summons is to notify the defendant that suit has been filed and the time limit in which to respond. A civil action is commenced in federal court when the complaint is filed. when computing the deadline for response exclude the day of service if a plaintiff denies the allegations of a counterclaim, she must respond 20 days from date of service if subject matter jurisdiction is defective, the parties may NOT agree among themselves to waive this requirement The United States District Court is a court of limited jurisdiction all post-trial motions are calculated from the time the judgment is entered a local court rule is an example of procedural law AND adjective law proceedings to enforce a judgment ancillary proceedings the proper method for objection to the issuance of a subpoena in a civil case is motion to quash civil actions in the federal courts use this type of pleading notice pleading a summons in a federal civil action may be issued by the court clerk motion for judgment as a matter of law after each party has concluded his or her case in a federal civil trial, either party may request that judgment be entered for him or her without submitting the case to the jury by... judgment as a matter of law at the conclusion of a federal civil trial, a party may, in certain situations, ask the court to 'overrule' the jury verdict by requesting a... enforcement of a judgment may be stayed pending appeal by entry of an order of stay coupled with the filing of a supersedeas bond. supersedias bond also known as a defendant's appeal bond, is a type of surety bond that a court requires from an appellant who wants to delay payment of a judgment until the appeal is over. proper venue in a federal civil action may not be based on where the plaintiffs reside a party to a federal civil action may obtain records from non-party witnesses by using Rule 45 subpoena duces tecum Complaint Rule 3 Rule 8 (a) Rule 9 Summons Rule 4 Preliminary Motions Rule 12(b) Reply to Counterclaim Rule 7(a) Answer Rule 8 Rule 12(a) Motion for Judgment on the Pleadings Rule 12(c) Interrogatories Rule 33 Request to Produce Rule 34 Request for Physical or Mental Examination Rule 35 Depositions Rule 30 Rule 31 Requests for Admission Rule 36 Motion to Compel Rule 37 Motion for Summary Judgment (during/after discovery) Rule 56 Pretrial Conference Rule 16 Pretrial Order or Scheduling Rule 16 Motion for Judgment as a Matter of Law (jury trials only) Rule 50 Motion for Judgment on Partial Findings (nonjury trials only) Rule 52(c) Motion for Judgment as a Matter of Law (both jury and nonjury trials) Rule 50 Motion to Amend Judgment Rule 59(e) Motion for New Trial Rule 59(a) Federal Rules of Civil Procedure govern civil procedure (i.e. for civil lawsuits) in United States district (federal) courts. Formal discovery cannot be conducted before a civil complaint is filed. False The basic pleadings in a federal civil case include the complaint, the answer and the reply. True A permissive counterclaim is one that requires the court's permission before it can be filed in a civil case. False It is unethical for a lawyer knowingly to offer evidence during litigation that he or she knows is prejudicial. False A civil action is commenced in federal court when the defendant is served with a summons and a copy of the complaint. False A federal court summons is issued by the plaintiff's attorney and may be served by the United State's Marshal's Office. False An attorney may issue a subpoena to a witness in a federal civil action. True Proximate cause is involved when the term 'sine qua non' is used. True Proper venue for a federal civil action is where... 1. all defendants reside 2. the cause of action arose 3. the defendants are subject to service of process Neither the court nor any of the parties ever can waive personal jurisdiction. False A state court of general jurisdiction may hear a case based upon a federal civil rights statute. True The term "engrossment" is used to indicate that interrogatory questions and their answers related to a particular party are numbered sequentially from one set of interrogatories to the next. False Answers to interrogatories must be verified by the party to whom they are addressed. True All the discovery methods provided in the Federal Rules of Civil Procedure are self-executing. False The time limitation for responding to a counterclaim is 20 days after the date of its service. True A plaintiff may aggregate her claims against a single defendant to reach the minimum dollar amount required to establish federal diversity jurisdiction. True In federal diversity action, the plaintiff may be able to invoke the federal court's supplemental jurisdiction to file a claim against a third-party defendant. False Pretrial conferences are mandatory in federal civil litigation. False An interlocutory appeal is the method used to obtain appellate review of a discovery order prior to the time of trial. True Summary judgment exists in most state court litigation but no longer exists in federal court litigations. False Depositions cannot be conducted before a civil complaint is filed. False The usual method of serving process on a corporation is to serve its board of directors. False If a criminal charge is pending, the defendant may not be sued in a related civil case until the criminal case is concluded. False