Allegation
Statement contained in a complaint and claimed by the plaintiff to be true is an allegation
Ad damnun clause
The prayer; the demand for judgment
Can formal discovery be conducted BEFORE complaint is filed?
YES!
May juries decide on issues of law ever?
NO!
Do either compulsory or permissive counterclaims require the court's permission?
NO!
Can a lawyer offer prejudicial evidence?
YES! All evidence is prejudicial to someone.
What does appellate court base its decision on?
The record of the lower court
What rule provides remedy when someone did not answer interrogatory in time?
Rule 37
When is a civil action officially commenced?
When the complaint is filed.
How many days to respond to counterclaim?
20 days
Who may serve a summons?
Any person who is at least 18 years old and not a party may serve a summons and complaint.
Proximate cause & sine qua non
Sine qua non means "but for." To help determine the proximate cause of an injury in Negligence or other tort cases, courts have devised the "but for" or "sine qua non" rule, which considers whether the injury would not have occurred but for the defendant's negligent act. A finding that an injury would not have occurred but for a defendant's act establishes that the particular act or omission is the proximate cause of the harm, but it does not necessarily establish liability since a variety of other factors can come into play in tort actions.
Loss of companionship damages
Loss of consortium
May a party waive personal jurisdiction?
Yes, but he may never waive subject matter jurisdiction
Cross-claims arise out of what?
The same events or occurrences as the original complaint
Interlocutory appeal
An interlocutory appeal, in the law of civil procedure is an appeal of a ruling by a trial court that is made before the trial itself has concluded. Most jurisdictions generally prohibit such appeals, requiring parties to wait until the trial has concluded before they challenge any of the decisions made by the judge during that trial. However, many jurisdictions make an exception for decisions that are particularly prejudicial to the rights of one of the parties. For example, if a party is asserting some form of immunity from suit, or is claiming that the court completely lacks personal jurisdiction over them, then it is recognized that being forced to wait for the conclusion of the trial would violate their right not to be subjected to a trial at all.
Venue Requirements
Diversity and both are similar and different. Each has 3 requirements. Both of the first are the same for diversity and federal question: 1) 1. Where any defendant resides, if all defendants reside in the same state; 2) 2. Where a substantial part of events or omissions occurred, or a substantial part of the property which is subject of action. The last is different: Diversity: 3) 3. Where the defendants are subject to personal jurisdiction at the time the action is commenced (if action can't be brought in another district); Federal Queston: 3) 3. Where any defendant may be found (if action can't be brought in another district)
Does a federal civil action commence when both, summons and complaint are served?
No. Complaint filed, only.
Meaning of venue
In fed. civil - the district where action can or should be tried.
Is U.S. District Court general or limited jurisdiction?
Limited
Does federal question require parties be from different states?
No
May a temporary restraining order be granted ex parte?
Yes!
What's a preliminary injunction?
A preliminary injunction, in equity, is an injunction entered by a court prior to a determination of the merits of a legal case, in order to restrain a party from going forward with a course of conduct until the case has been decided. If the case is decided against the party that has been enjoined, then the injunction will usually be made permanent. If the case is decided in favor of the party that has been enjoined, the injunction will usually be dissolved or dismissed.
Is all relevant evidence admissible?
Rule 402 of the Fed. R. of Evidence says: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress (statutes), by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority, or by some other primary authority. So that's 4: 1) Constitution, 2) Statutes, 3) Fed. R. of Evidence, 4) Primary Authorities. Evidence which is not relevant is not admissible.
Is hearsay evidence admissible?
Not unless a specific exception exists under the Federal Rules of Evidence
Is offer that defendant offered to compromise a claim admissible to prove liability?
Rule 408 of Fed. Rules of Evidence says no: evidence of an offer-to compromise a claim is not receivable in evidence as an admission of, as the case may be, the validity or invalidity of the claim.
If a defendant fixed a problem that caused an accident soon after the accident, is that admissible on issue of liability?
No
Is a paralegal is likely to attend a depo, draft proposed questions for a depo, and digest and summarize a depo?
Yes
Does proper venue in a fed civil action include where plaintiffs reside?
No.
What may a party to a federal civil action do to obtain records from non-party witnesses?
Rule 45 subpoena duces tecum
If Def. files a motion for more definite statement under Rule 12 and motion is granted, how long does Def. have to serve her responsible pleading following the Pltf's filing of a more definite statement?
10 days
The U.S. has how may days to give answer to a complaint?
60
When must Def answer a complaint?
(A) A defendant must serve an answer: (i) within 20 days after being served with the summons and complaint; or (ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.
Can you use interrogatories against a non-party?
No
Do federal codes use, code pleading, fact pleading, notice pleading, or federal rules pleading?
Notice pleading
Who issues a summons?
The court clerk
Each party may request that judgment be entered for him/her without submitting the case to the jury after each party has concluded his or her case in fed civl trial by which motion?
Judgment as a matter of law (JMOL) is a motion made by a party (A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury), during trial, claiming the opposing party has insufficient evidence to reasonably support its case. JMOL is similar to summary judgment, which is a motion made before trial. JMOL is also known as a directed verdict, which it has replaced in American Federal courts. Timing is very important in making a motion for JMOL; the motion can only be made once the opposing party has presented its case. JMOL motions may also be made after the verdict is returned, where they are called "renewed" motions for judgment as a matter of law (RJMOL), but the motion is still commonly known by its former name, judgment notwithstanding verdict, or j.n.o.v. However, in order to move for j.n.o.v., the movant must have moved for a JMOL before the verdict as well. This procedural quirk is necessary because it is considered a violation of the 7th amendment for a judge to overturn a jury verdict. Instead, the judge is said in a j.n.o.v. to be reexamining not the verdict, but his previous rejection of JMOL.
After a jury verdict, a party may ask the judge to "overrule" the verdict by requesting what motion?
Judgment as a matter of law. Casually it is known as judgment notwithstanding the verdict, but the real name is judgment as a matter of law. (Directed verdict is a name it had in the past, but not now)
A motion for new trial must be filed how many days after entry of judgment?
10 days. Rule 59: A motion for a new trial must be filed no later than 10 days after the entry of judgment.
Must a motion for new trial be done before an appeal can be requested?
A motion for new trial asks to overturn or set aside a court's decision or jury verdict. Such a motion is proposed by a party who is dissatisfied with the end result of a case. This motion must be based on some vital error in the court's handling of the trial, such as the admission or exclusion of key evidence, or an incorrect instruction to the jury. Generally the motion is filed within a short time after the trial (7-30 days) and is decided prior to the lodging of an appeal.
Enforcement of a judgment may be stayed pending an appeal by entry of an order of stay along with what else?
A supersedeas bond. A supersedeas 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.
To preserve client's right to raise an issue on appeal what does atty do?
Make a motion for judgment on partial findings (rule 52) or motino for judgment as a matter of law (rule 50)
The purpose of the defendant's case is to:
1) Refute Plaintiff's evidence; 2) Prove the affirmative defenses in the answer, If new issues were presented, Plaintiff may be allowed to present further evidence in rebuttal.
What are closing arguments?
Afer each party rests, and motions for judgment as matter of law are overruled or reserved for decision, closng arguments are made to jury for: 1) Point out gaps in other atty's opening statement and what he did or didn't prove, 2) credibility of witnesses, 3) sufficiency or weight of witnesses
What are jury instructions?
Judge instructs jury concerning rules of law to apply to the findings of fact such as evidence, burden of proof, pertinent law, application of the law to the facts. (Either side may file a jury instruction request which judge may or may not incorporate) Judge may comment on quality and weight of evidence. Objections to jury inst. may be made before jury retires for deliberation.
Burden of Proof (Burden of Persuasion)
Criminal: Beyond a reasonable doubt; Civil: By a preponderance of the evidence (more likely than not that it's true)
What is a verdict?
Jury elects foreman and deliberates. If unanimous verdict is required and can't reach it, it's called "hung jury" and has basis for mistrial. The jury may return other verdicts (Rule 49): 1) General Verdict with interrogatories - declares which is the winner but requires jury to answer questions re findings of fact - if these are inconsistent, judge may enter judgment according to findings of fact, or order new trial); 2) Special verdict -Requires a special written finding for each fact. Rule 49. This has been criticized because it gives judge too much control.
What happens after verdict or judgment?
When jury returns a verdict, a udgment is entered into the official court file. Pending matters must be resolved before the judgment can be entered. 1) Motion for Judgment As a Matter of Law (Judge must rule on the motion before entering judgment) 2) Motion for New Trial 3) Motion for order Nunc Pro Tunc
How does Motion for Judgment as matter of law work?
1) If verdict is for moving party, the motion is moot; 2) If verdict is against moving party, and judge thinks there was no legally sufficient evidence upon which reasonable jury could've found as it did, Judge may overturn in favor of the moving party (similar to Judgment NOV)
What is Motion for for New Trial?
This allows the trial judge to correct prejudicial errors which occurred during the trial (Prejudicial error is one which affects: 1) A substantial right of the moving party in the trial process, and, 2) was objected to by moving party at the time of its occurrence). A Harmless Error is one which did not affect a substantial right of the moving party.
Do prejudicial errors require a new trial?
Yes. Harmless errors do not.
Examples of prejudicial error
1) Judicial errors (improper admission or exclusion of evidence, improper jury instruction); 2) Improper conduct of a party, witness or atty, 3) Improper conduct of a juror, 4) Verdict against the weight of the evidence; 5) Newly discovered evidence; 6) Verdict is excessive or inadequate
What should a judge do if judgment is excessive?
Remittitur (to reduce) or additur (increase) - alternative to remittitur is partial new trial on the evidence only
What is order nunc pro tunc?
Seeks to correct clerical errors in the order of judgment. Similar to Motio to Alter or Amend Judgment. Must be done w/in 10 days after judgment is entered
Interpleader?
To avoid a party having to pay a claim more than once when he wasn't sure who the claimant was.
Can depos be conducted BEFORE a cvil complaint is filed?
Yes!
Does permissive counterclaim require court's permission?
No
Can objections to interrogatories be made?
Yes, within the 30 day period.
When can Plaintiff answer and do counterclaim?
When answer is due, 20 days from date of service.
What is an interlocutory appeal?
The method used to obtain appellate review of a discovery order prior to time of trial
Which court does summary judgment exist in?
Both federal and state courts.
Are pretrial conferences mandatory?
No, it's not mandatory that judge conduct one.
Must rogs be answered within 30 days?
Rule 33 - The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
What's the # of interrogatories allowed?
Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories,
A local court rule, is it procedural or adjective?
BOTH!
Are all post-motion rules calculated from the moment the verdict is returned by the jury but before the order of judgment is prepared and entered?
YES!
What post-trial motions are there?
1 ) M/Judgment as a matter of law, 2) M/for ew trial, 3) M/for Order Nunc Pro Tunc
What are the proceedings to enforce a judgment called?
Ancillary proceedings
What post-trial motions may be filed by Def. after the Plaintiff's case?
1) M/judgment of Partial findings, 2) M/Judgment as a matter of law
How do you object ot a subpoena?
Do M/Quash
Which M can be filed at end of Def's case?
Both, Pltf and Def may make M/Judgment as a Matter of Law (also formerly called Directed Verdict)
Can a state court of gen. jurisdiction hear a case based upon federal civil rights statute?
Yes!
Must answers to interrogs be verified by party to whom addressed?
Yes!
Which discovery is not self-executing?
Mental and phys examination
Can privileged info be used at trial in fed questions or state privilege rules in diversity?
Fed R. Evidence 501 says no.
When should a counterclaim be responded to?
20 days after service except for the U.S., which gets 60 days
In federal diversity action the Plaintiff may not file a claim against a 3rd party Defendant under supplemental jurisdiction?
NO!
If a person is a necessary party, can a suit go ahead even if they can't be served?
Yes! Rule 19
What types of pleadings are there and which does Fed. R. Civ P rule?
1) Common law, 2) Code pleading, 3) Notice pleading (this is the one FRCivP rules)
If personal jurisdiction is not raised asap in fed civ suit, is it waived?
Yes!
What is set-off?
Amount paid by Def. previously. Sounds like an affirmative defense, but it is not! It's an assertion!
Are an answer and cross-claim filed at the same time?
Yes!
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