Civil Procedure - Cha. 1 & 2

What 3 things constitute a person being a citizen of a state?

1. A person is a citizen of the state in which she is domiciled. 2. A domicile is the last state in which a person has resided with the intent to remain indefinitely. 3. Indefinitely means a person must live in the state on an open-ended basis.

3 Options Available to an Appellate Court

1. Affirm. 2. Reverse. 3. Reverse and Remand; furthering proceedings, such as a new trial.

What papers are served on the defendant?

1. Complaint. Written by the plaintiff or her lawyer. Informs the defendant about what the cause of action is, what her legal claims are, and what relief she is asking the court to grant. 2. Summons from the court. Issued by the court. States that the court is going to hear the plaintiff's suit and adjudicate the defendant's rights. States the defendant must appear and defend, if she has a defense.

Two Requires for Federal Court SMJ:

1. Constitution must confer the federal court with SMJ in Article III, Section 2. 2. Congress must provide SMJ by statute. Congress need not confer SMJ to the full extent the Constitution allows. If Congress wants to permit less SMJ than Article III, Sec. 2 permits, Congress is allowed to do so. Bottom-line: Type of case must be found in Article III, Section 2, and Congress must authorize the federal court to hear the kind of case that you want to file.

There are many differences in the practice of state and federal systems that could influence counsel's decision to file a particular suit in state or federal court. Here are a few such considerations.

1. Convenience. In some parts of the country, the federal court may sit quite far from where the lawyer and client reside. In those circumstances, it might be easier to litigate the case in state court. 2. Familiarity. Frequently, lawyers choose one system over the other because they litigate there frequently and are familiar with the details of practice in that court. 3. Jury Pools. A civil rights plaintiff in Boston, for example, might prefer the diverse and perhaps more liberal urban jury she would draw in a Suffolk County court to the largely suburban jury she would likely draw in the Federal District Court for the District of Massachusetts. 4. Speed. An important factor may be the speed with which the system processes cases. A lawyer with a badly injured client may want to get the case to judgment as soon as possible. In a particular state, one system may have a smaller backlog of cases than the other. Although there are exceptions, federal courts have the reputation of resolving cases more quickly than state courts. 5. Case assignment to one judge. In many federal courts, cases are assigned to a particular judge when they are filed, and that judge will handle the case from start to finish. By contrast, in some state court systems, cases are not assigned. The parties might litigate a motion to dismiss in front of Judge A, argue subsequent discovery motions in front of Judge B, and end up trying the case in front of Judge C, none of whom have any previous acquaintance with the file. If a case involves complex issues, having a judge assigned to handle all phases of the litigation may be preferable.A plaintiff may also prefer litigating before a federal judge in cases that seek a decision that may prove politically unpopular (such as certain civil rights cases), since life tenure provides federal judges a measure of insulation from majoritarian pressures. 6. Attorney Control. State courts may be more free-wheeling, leaving more control to attorneys in scheduling litigation. 7. Out-of-State Litigants. An out-of-state litigant may prefer to litigate in federal court. Federal judges' life tenure insulates them to some extent from local political pressures. State court judges are frequently elected, and thus, more accountable to local citizens. 8. Expertise. Judges in one system or the other may have more experience dealing with a particular type of case. If a case involves sophisticated federal law issues that federal judges regularly handle, the plaintiff's counsel may prefer to file in federal court. For example, federal courts will have more experience hearing cases under federal antidiscrimination laws or cases under the federal civil rights laws. State courts, on the other hand, may have greater expertise in land use or zoning cases. 9. Other Factors. The rules of evidence may differ in state and federal court. The rules of discovery—the process for compelling production of evidence from other parties and witnesses—may differ. The court's power to order parties to appear in the action may differ. One system may use larger juries than the other or allow non-unanimous verdicts.

Fact-Finding : 2 Types for Juries

1. Empirical Fact-Finding. E.G. Did the defendant strike the plaintiff? Did the manufacturer know about defective tires? 2. Mixed Questions of Fact & Law. Making determinations E.G. Was the defendant negligent, did the plaintiff assume risk of harm, was the defendant's product in a defective condition that was unreasonably dangerous to the user?

Process for Litigation in Most States

1. Plaintiff files a pleading called a complaint in trial court. This sets forth her claims against the defendant. 2. Defendant files an answer. This sets forth his position on the facts alleged by the plaintiff and any defenses he has to the claims in the complaint. 3. Discovery; parties both produce evidence for opposing parties and witnesses - in the trial court. 4. If case goes to trial, it will be tried in that court. 5. A final judgment will be entered for the winning party.

Federal Rules of Civil Procedure 1-3

1. Scope and Purpose. These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding 2. One Form of Action. There is one form of action—the civil action. 3. Commencing an Action. A civil action is commenced by filing a complaint with the court.

3 Requirements for Every Lawsuit

1. Subject Matter Jurisdiction. 2. Personal Jurisdiction. 3. Venue.

What 2 requirements must be met to file a suit in federal court?

1. The U.S. Constitution provides subject matter jurisdiction over the particular case from Art. III, Sec. 2. 2. Congress has passed a statute that permits subject matter jurisdiction over the case. Congress can choose to limit the width of SMJ permitted by the Constitution. It need not be bound by the width laid forth in the Constitution.

State Court System Structure

1. Trial Court. 2. Intermediate Appellate Court (Most states). 3. Court of Final Review.

Three Levels of the Federal Court System

1. United States District Courts. 2. United States Court of Appeals. 3. United States Supreme Court.

Civil Cases

A case involving a noncriminal matter such as a contract dispute or a claim of patent infringement. Person vs. Person. E.G. Contract problems, property disputes, torts.

Tort

A civil wrong not arising from a breach of contract. A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, "injury" describes the invasion of any legal right, whereas "harm" describes a loss or detriment in fact that an individual suffers.

Cause of Action

A claim that, based on the law and the facts, is sufficient to support a lawsuit. The plaintiff's legally actionable claim, the basis upon which he asserts a right to damages or other relief.

Conley v. Gibson

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief.

Pre-Answer Motion to Dismiss

A defendant may have objections to a suit that may prevent the case from going forward. Under Rule 12(b) of the Federal Rules, parties may raise such objections at the beginning of the case, either by asserting them in their answer or by a pre-answer motion to dismiss before responding to the complaint. Some of these objections will end the case if the court agrees. For example, a defendant may raise lack of subject matter jurisdiction or personal jurisdiction by a pre-answer motion. Because the court cannot hear a case if it lacks jurisdiction, it will dismiss the case if it agrees with the defendant's objection.

Demurrer

A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party.

What constitutes domicile for state citizenship identification?

A domicile is the last state in which a person has resided with the intent to remain indefinitely.

What constitutes domicile in state citizenship identification?

A domicile is the last state in which a person has resided with the intent to remain indefinitely. You don't have to swear permanent allegiance to a state to acquire a domicile. You just have to live in that state and not have any definite plans to go elsewhere.

Federalism (The Two American Court Systems)

A form of government, in which governmental power is shared between a national government—the federal government—and state governments in each state of the union.

Default Judgment

A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. ... In a civil trial involving damages, a default judgment will enter the amount of damages pleaded in the original complaint. In effect, you're found guilty because you never entered a defense. Default judgments are sometimes called automatic judgments because of how fast they can happen. Next up could be wage garnishment or a bank account levy, which allows a creditor to remove money from your bank accounts to repay the debt.

Jury Nullification

A jury's knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury's sense of justice, morality, or fairness. Jury nullification is a discretionary act, and is not a legally sanctioned function of the jury. It is considered to be inconsistent with the jury's duty to return a verdict based solely on the law and the facts of the case. The jury does not have a right to nullification, and counsel is not permitted to present the concept of jury nullification to the jury.

Special Verdict

A kind of verdict reached by a jury that makes findings of fact by answering specific questions posed by the judge. The judge then applies the law to the facts as the jury has found them. Jury is usually given a list of questions or special form to guide its deliberations. When required to bring in a special verdict, the court can examine the verdict to determine whether the jury's answers are internally consistent.

General Verdict

A kind of verdict that entails a complete finding and a single conclusion by a jury on all issues presented.

Request for Production of Documents

A method of discovery whereby one party asks the other to provide documents for the requesting party's review. Rule 34 requests must specify the documents sought by category (no "give me everything you've got" allowed) so the producing party understands clearly what documents to produce. Such requests may be extremely burdensome and compliance can be costly.

Motion for Directed Verdict

A motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party making the motion on the ground that the other party has not produced sufficient evidence to support her or his claim. In Federal Court, it is called A Motion for Judgment as a Matter of Law. This motion is made before a case is submitted to the jury, and argues that no reasonable jury could find for the opposing party. Either the plaintiff or the defendant may make this motion.

Motion

A motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge (or judges) to make a decision about the case.

Appellant

A person who files an appeal.

Discovery

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial. The idea behind discovery is that both sides should share information before going to trial. That way, a trial can proceed smoothly, without parties requesting information from each other and otherwise holding up the process. During the pre-trial phase of filing a lawsuit, discovery, you will be asking for information from the other party and responding to their inquiries as well.

Forum Shopping

A practice whereby the plaintiff chooses a court in which to sue because he or she believes the court will rule in the plaintiff's favor.

Voir Dire

A preliminary examination of a witness or a juror by a judge or counsel.

Affirmative Defense

A response to a plaintiff's claim that does not deny the plaintiff's facts but attacks the plaintiff's legal right to bring an action. An example is the running of the statute of limitations.

Interrogatories

A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath.

Probate Court

A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate.

State Court : Subject Matter Jurisdiction

A state court will have subject matter jurisdiction over just about any type of case, except a very limited number of cases that federal statutes insist must be heard in federal court. Typically, the issue is not whether a state court will have SMJ, but WHICH court will have subject matter jurisdiction.

Legal Theory

A statement of the type of tort that the plaintiff claims the defendant committed. A legal theory determines what the plaintiff must prove to obtain the remedy he/she seeks. The plaintiff's choice of legal theory determines what facts are relevant.

Factual Theory

A statement of what caused the plaintiff 's injury, including a statement of what the defendant did or did not do in the context of the significant circumstances related to the injury. A plaintiff will win her case if: • 1) She can persuade the trier of fact that events occurred and • 2) The jurisdiction's legal doctrines support the conclusion that when these type of events occur, a plaintiff is entitled to a remedy.

Subpoena

A subpoena is similar to a summons in that it is a requirement from the court, but a subpoena does not necessarily mean that there is a case against you. In fact, a subpoena usually comes once a court case has already begun. Typically a subpoena requires you to produce some type of evidence. The most common instance of a subpoena is to require a witness to come testify under oath for a case.

Summons

A summons occurs at the beginning of a legal case. It is an order from the court requiring a person to appear at a hearing. Sometimes, this requirement is as simple as jury duty. Other times, however, it can be for a civil lawsuit. For example, if someone sues you, the court will send you a summons requiring you to attend a hearing with a specified place and time.

Bench Trial

A trial before a judge without a jury. The judge will decide both the factual and legal issues. Even if there is a right to a jury, parties may waive the right for tactical reasons, choosing to try the case before the judge instead.

Intermediate Appellate Courts

An intermediate appellate court is an appeals court that is not the court of last resort in its jurisdiction. 41 states have an intermediate appellate court.

Protective Order (Scope of Discovery)

An order from the court restricting or limiting discovery by one party to another. The court will then determine whether the information is discoverable and may enter an order for production or an order limiting discovery.

Who can deliver service of process papers?

Anyone over 18 and who is not part of a party.

Which article and section establishes inferior federal courts?

Article III, Section 1. Article III, Section 1 of the United States Constitution provides that "[t]he judicial Power of the United States [that is, the federal government], shall be vested in one Supreme Court, and . . . such inferior Courts as the Congress may from time to time ordain and establish."

What Article and Section highlight Federal Court's subject matter jurisdiction?

Article III, Section 2, par. 1. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Article III of the Constitution

Article Three of the United States Constitution establishes the judicial branch of the federal government. Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress.

Subject Matter Jurisdiction

Authority to hear the type of dispute at issue. The power of a court to hear a case of a particular type or subject matter. I.E. If you want to sue someone for hitting your car, you need to figure out which courts have the power to hear motor vehicle accident cases.

When can pre-trial motions be made?

Before or after discovery. This is the first stage the court makes important procedural decisions.

4 Elements of Cause of Action in Torts

Breach of the standard of care is merely the first element of any cause of action in tort. In addition, there must be proof that the plaintiff suffered harm, and that the defendant's action in breaching the applicable standard of care cause that harm. 1. Duty. Legal duty to comply with a particular standard of care. 2. Breach of Duty. Failure to comply with applicable standard of care. 3. Causation. 4. Damages. Typically, a cause of action is the name of a particular tort, such as negligence, battery, or defamation.

United States Supreme Court

Court of Final Review. Single court with nine justices. It exercises discretionary review of the United States Court of Appeals decisions and some state court decisions. It has original jurisdiction in a few special cases.

Allocation of responsibility : Judge and Jury

Courts only decide issues of law; juries only decide issues of fact. This is, of course, not the case with a bench trial.

Appellate Courts

Courts that generally review only findings of law made by lower courts. Relating to appeals; reviews by superior courts of decisions of inferior courts or administrative agencies and other proceedings.

Motion to Dismiss vs. Motion for a Directed Verdict

DEFENDANTS: Whereas a defendant's motion to dismiss tests the legal sufficiency of the plaintiff's allegations by assuming them to be true and contending that the plaintiff is nonetheless not entitled to recover, a defendant's motion for directed verdict tests the legal sufficiency of the plaintiff's evidence by assuming it to be true and contending that the plaintiff nevertheless is not entitled to recover. PLAINTIFFS: By the same token, a plaintiff's motion for a directed verdict tests the legal sufficiency of the defendant's position by assuming the defendant's evidence to be true and contending that the plaintiff is nevertheless entitled to recover as a matter of law.

Prima Facie

Definition Latin for "at first sight." Overview Prima facie may be used as an adjective meaning "sufficient to establish a fact or raise a presumption unless disproved or rebutted." An example of this would be to use the term "prima facie evidence." It may also be used as an adverb meaning "on first appearance but subject to further evidence or information." An example of this would be to use the term "prima facie valid." A prima facie case is the establishment of a legally required rebuttable presumption. A prima facie case is a cause of action or defense that is sufficiently established by a party's evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party.

Serve Process

Deliver to her a copy of the complaint and a court summons ordering the defendant to appear and defend the action.

Original Jurisdiction

Every state has a set of trial courts, or courts of original jurisdiction, in which cases are filed and litigated through final judgment. Original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court's decision. A court's power to hear and decide a case before any appellate review. A trial court must necessarily have original jurisdiction over the types of cases it hears.

Dioguardi v. Durning

Extreme example of a court trying to liberally interpret the allegations in the complaint so as to "do justice" under R. 8(e).

A Rule 12(b)(6) dismissal

Failure to state a claim upon which relief can be granted; This motion asserts that the conduct alleged in the complaint does not state a recognized legal claim for which the court can grant relief. Because the court cannot grant a remedy for conduct that does not violate a recognized legal right, the defendant argues that the claim should be dismissed without further litigation.

Federal Trial Courts

Federal District Courts; These courts sit in ninety-four federal districts within the United States. Each district comprises a state or part of a state. The federal District of South Carolina, for example, includes the entire state of South Carolina. California, on the other hand, because of its size and the number of cases it generates, is divided into four federal districts, the Northern, Eastern, Central, and Southern Districts of California, with a federal court sitting in each district.

United States District Courts

Federal Trial Courts. Ninety-four districts, each covering a state or part of a state. These are courts of "original jurisdiction", in which cases are filed, tried, and decided.

Can federal courts hear state statute cases?

Federal courts are courts of limited jurisdiction, meaning they can only hear cases authorized by the United States Constitution or federal statutes. The party who lost this case may ask the United States Supreme Court to review the state court's ruling on the constitutionality of the federal statute. This power of the United States Supreme Court to review issues of federal law, whether litigated initially in a state or a federal court, allows the Supreme Court to provide definitive rulings on issues of federal law. Once it does, its rulings will bind all American courts, state and federal.

Appellate Court

Have no authority to make factual findings. Make only decisions of law. No new evidence is introduced, no jury, and no fact-finding. Factual findings are accepted as made by juries at trial, or accept as facts the findings logically inferred from general verdicts returned by juries.

When does a case proceed to trial?

If a ruling on a pre-trial motion has not disposed of the case and the parties have not settled.

Assume that Harris wishes to sue Panil under the Federal Age Discrimination in Employment Act (ADEA), a federal statute. However, for tactical reasons, she would like to bring the action in state court. May she do so?

If the case is not exclusive to the federal courts, she may. The fact that a case could be brought in federal court does not mean that it has to be. For the most part the jurisdiction is concurrent, that is, the plaintiff has the choice to bring it in federal court or in state court. Congress has not made federal jurisdiction in federal ADEA cases exclusive, so Harris could sue in state court.

Negligence Liability

Imposed only upon proof of some kind of carelessness_ Technically, the failure to exercise reasonable care under the circumstances.

Do many cases make it to court?

In 2015, less than 2 percent of cases that were resolved in the federal district courts actually went to trial.*1 Most were resolved before reaching the stage of a pretrial conference, by voluntary dismissal, dismissal by the court on various grounds, settlement, or summary judgment. The federal courts resolve many cases, but try very few of them.

State Court Systems - Specialization

In addition to trial courts of broad jurisdiction, most states also have several specialized trial courts with limited subject matter jurisdiction. Often, there is a probate or family court, which has jurisdiction over estates, guardianships, divorces, child support, and other domestic matters. There may also be a housing court, which handles landlord-tenant cases; a land court, which deals with cases involving interests in or title to real property; a small claims court; or others suited to local needs. Some of our thirstier states have "water courts," which decide the allocation of water resources. While such courts have limited subject matter jurisdiction, they are still trial courts, that is, they are the courts in which cases within that court's jurisdiction are filed, litigated, tried, and decided. Lastly, many states have municipal courts that handle relatively minor criminal and civil matters.

Do you need a court order to make opposing sides produce documents during discovery?

In most American courts the rules allow the attorneys for the parties to demand production of relevant documents and testimony without a court order. Although relevant evidence is presumptively discoverable under Rule 26(b), the court has authority to regulate and restrict discovery for various reasons. The judge might limit production of relevant evidence because it would be unduly burdensome, it would breach an evidentiary privilege (such as the attorney-client privilege), or because producing it would cost more than the information is likely to be worth.

State Supreme Courts - Appeals

In most states the state's highest court is not required to hear such appeals. It chooses whether to grant further review (appeal by permission or discretionary appeal) and typically does so only in cases that pose novel issues of law or involve important public issues.

How is the state court system typically prescribed?

In most states, the state legislature prescribes the structure of the state courts and determines the subject matter jurisdiction of each court within the state. Every state also has at least one appellate court that hears appeals from trial courts within the state. Typically, a state will have an intermediate appellate court, which hears most appeals from the trial courts. (In a few smaller states, there are only trial courts and a state supreme court, which hears all appeals.)

United States Court of Appeals

Intermediate Appellate Courts. Twelve federal appellate courts hear appeals from cases decided in the district courts within their geographic area, and some decision by federal administrative agencies.

Methods of Discovery

Interrogatories, request for production of documents, depositions, request for admission, medical examination of a party.

Before you plead...

Investigate. Interview the client, Ask about documents & Witnesses, Ask for Permission to Contact People, Look for Favorable and Unfavorable items. TAKE NOTES!!!

Criminal Cases

Involves the government prosecuting an individual or group for a crime. Government vs. Person. E.G. Homicide, arson, kidnapping.

Joinder

Joining of parties or claims in litigation. The rules governing who can be made parties to a single case and the scope of claims that may be asserted in a single action.

Summary Judgment

Judge's ruling to end a lawsuit without a trial based on a matter of law presented in pleadings. Usually occurs after discovery, because all the relevant evidence has been shared and disclosed. Either side asserts: 1. That there is no genuine issue of material fact. 2. That based on the undisputed facts, the moving party is entitled to judgment "as a matter of law". A plaintiff may seek summary judgment on any cause of action, and similarly, a defendant may seek summary judgment in its favor on any affirmative defense. The moving party has the initial burden to show that summary judgment is proper even if the moving party would not have the BURDEN OF PROOF at trial. The court generally examines the evidence presented with the motion in the light most favorable to the opposing party.

Post-Trial (Lifecycle of Litigation)

Judgment entered for winning party, post-trial motions heard.

Common Law

Law made by courts rather than legislatures.

Statute

Law written down by the legislature and passed.

Concurrent Jurisdiction

Lawsuit can be filed in either state or federal court. Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a specific case. This situation leads to forum shopping, as parties will try to have their civil or criminal case heard in the court that they perceive will be most favorable to them.

Intentional Torts

Liability upon proof of the defendant's intention to invade the legally protected interest of another. Some forms of intentional torts do not require an intent to cause harm. Some forms of defamation and some invasions of privacy, for example, are actionable even in the absence of intent to cause harm- as long as the defendant intended to take action that caused the plaintiff harm.

Service of Process

Loosely used to refer to the delivery of various court papers to a party in the course of litigation.

Appeal (Lifecycle of Litigation)

Losing party may appeal errors of law to a higher court.

How many different types of subject matter jurisdiction are elucidated in Article III, Sec. 2?

Nine.

Can a person be a citizen of a state without being a U.S. citizen?

No, even if they are domiciled there.

Does all information in discovery need to be permissible evidence?

No. Information sought in discovery need not be admissible in evidence to be discoverable, as long as it has the potential to lead to admissible evidence.

Harris, a citizen of Wisconsin, wishes to sue Panil, also a citizen of Wisconsin, for violation of a Wisconsin statute, the Wisconsin Employment Discharge Act. Can she bring this case in federal court?

No. This case doesn't fit into any of the Article III, Section 2 categories. The parties are not diverse. And the claim arises under a Wisconsin statute. That is a law of one of the states of the Union, but not a law of "the United States," which refers to federal laws made by Congress, regulations promulgated by federal agencies, or in some cases, common law rulings of federal judges.

Do Federal Rules of Civil Procedure regulate criminal cases?

No. Torts are not crimes. There is overlap; It could be a crime, but also could be an intentional tort. However, Federal Rules of Civil Procedure DO NOT regulate criminal cases.

Are all federal district courts the same size?

No; They vary substantially, drawn more with an eye to population and centers of commercial, litigation-generating centers. The number of judges also varies depending upon caseload.

Job of Appellate Courts

Not concerned with facts. Differing standards of review. Affirm, reverse, and/or remand. They are about the law!

Administrative Law

Often agencies hearing a multitude of claims - DMV, National Transportation Safety Board, administrative agencies; This is not typically what one thinks of when they think of civil procedure. Still, they see a vast amount of claims.

Trial (Lifecycle of Litigation)

Opening statements, P's evidence/D's evidence, closing statements, instruction to jury, jury deliberates and renders verdict.

Pleading (Lifecycle of Litigation)

P files complaint. D defaults, answers, and/or moves to dismiss.

Two Sides of the Same Coin

PLAINTIFF'S ANGLE. COMPLAINT. FRCP 8(a)(2): General Rules of Pleading • (a) Claim for Relief. • A pleading that states a claim for relief must contain: • (2) a short and plain statement of the claim showing that the pleader is entitled to relief. DEFENDANT'S ANGLE. MOTION TO DISMISS. FRCP 12(b)(6): Defenses and Objections • (b) How to Present Defenses • ... a party may assert the following defenses by motion: • (6) failure to state a claim upon which relief can be granted.

Discovery (Lifecycle of Litigation)

Parties investigate facts, take discovery, file and argue motions.

Request for Admission

Parties may also send requests for admission to other parties, asking them to admit facts about the issues in the case or the authenticity of documents. Such admissions can narrow the issues litigated at the trial, since issues agreed upon by the parties need not be proved.

Pretrial (Lifecycle of Litigation)

Pretrial conference, possible motions for summary judgment or on evidentiary issues.

"Civil"

Refers to non-criminal cases.

Equity Relief

Relief other than monetary damages, such as a request for performance of a contract or a request that a threatened action be stopped by the court. ONLY JUDGES PROVIDE EQUITABLE RELIEF.

Burden of Persuasion (Plaintiff)

Requires the plaintiff actually to persuade the jury by a preponderance of the evidence, of each element of his or her claim. To satisfy this preponderance standard, the jury must be persuaded that it is "more probable than not" that element of the claim (duty, breach of duty, caution, and damages) is true.

Medical Examination of a Party

Rule 35 authorizes parties to conduct a medical examination of a party whose physical or mental condition is at issue in the lawsuit. Unlike the other discovery tools, medical exams require a court order because they are uniquely intrusive on a party's privacy.

Complaint

Said to contain "allegations" because the assertions in it do not count as facts unless and until the defendant admits them, or a jury finds them to be true at trial.

Federal Rule 4:

Service of Process Determinations: 1. The papers that must be delivered on the defendant. 2. Who must deliver the papers. 3. How they may be delivered. 4. When they must be delivered.

State Court Systems - Naming

Since the states establish their own court systems they can call their courts whatever they like, and states have chosen different names and configurations for their courts

Court System Layout

State Courts: Trial > Appellate > State Supreme. Federal Courts: District > Circuit > US Supreme Court.

Do state or federal courts handle more cases?

State.

Taylor is domiciled in Great Britain, and is a US citizen. She has no intent to leave. Of what state is Taylor a citizen?

Taylor is still a U.S. citizen, but she's not a citizen of any state because she is not domiciles in any state.

What is the act that established Article III, Section 1?

The Judiciary Act of 1789. Since then Congress has periodically revised the structure and jurisdiction of the lower federal courts, but both federal trial courts and federal appellate courts below the Supreme Court have operated continuously since the First Judiciary Act.

If a plaintiff wishes to bring a case that falls within some category in Article III, Section 2, must she sue in federal court or can she choose a state court instead?

The Supreme Court has construed Article III, Section 2 to authorize jurisdiction over the listed categories of cases on the federal courts, but not to withdraw jurisdiction over such cases from the state courts. Thus, generally speaking, a case that could be brought in federal court may also be brought in state court. In such cases, the plaintiff determines (as least initially) which court system will hear the case by filing in the court she prefers.

Submitting a Factual Contention to the Jury

The court decides a legal question when it applies the rule that a factual contention may only be submitted to the jury for decision if there is evidence to support it. If there is no evidence to support a contention whose proof is essential for a party to prevail, then that party has not met the burden of production, and the opposing party prevails. If there is evidence to make out a jury question, on all the elements of the case, then the case is submitted to the jury.

To determine diversity, when must the parties be diverse?

The court only looks at the citizenship of the parties on the date that the plaintiff files the case. If the parties are diverse on that one day, the court acquires diverse jurisdiction.

The Answer (Pleading Phase)

The defendant must respond to the suit by filing an answer. The answer must respond to each allegation made in the complaint, admitting those that are true, denying those the defendant believes untrue, or stating that the defendant does not have sufficient information to admit or deny the allegation. Allegations that are admitted are assumed to be true for purposes of the case; trial preparation will thus focus on those allegations in the complaint that the defendant denies.

Pleadings

The documents by which parties commence a case and state their positions on the issues in dispute. A paper containing factual assertions (allegations) that support jurisdiction and legal claims in a civil lawsuit. Statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case.

Amending the Pleadings (Pleading Phase)

The intensive process of discovery and preparing a case for trial takes place after pleading and is likely to lead to new information and new theories that are not reflected in the original complaint and answer. The Federal Rules allow parties to amend their pleadings—that is, rewrite them to change the allegations or defenses—quite liberally, although the judge must usually grant leave to amend a pleading. The rationale for freely allowing amendments is that the trial should reflect the parties' educated understanding of their cases after substantial preparation of the case; they should not be rigidly confined (as the early common law required) to positions asserted at the beginning of the case, before they had fully investigated the relevant facts and law.

What is good reasoning behind establishing Article III of the Constitution?

The original states existed long before the Constitution was adopted, and each had its own court system. The Framers saw no reason to abolish these state courts, which functioned well enough in many respects. However, they did see the need for a set of national courts that could hear certain types of cases that implicate national interests or pose significant risks of local bias.

Venue

The plaintiff must choose a court that is an authorized venue for the action under the relevant venue statute. Venue defines which courts within a court system (e.g., the California state court system) can hear a particular suit.

Complete Diversity

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

Personal Jurisdiction

The power of a court to force a person and/or parties to appear before it. Lawsuits are a great inconvenience to defendants. Consequently, both the United States Constitution and statutes restrict the power of courts to force a defendant from one state to appear and defend a lawsuit in another.

Diversity Jurisdiction

The power of the federal courts to hear matters of state law if the opposing parties are from different states and the amount in controversy exceeds $75,000. "Citizens of different States" (the diversity jurisdiction) Several categories of jurisdiction in Article III, Section 2 involve cases in which local courts might be biased against out-of-state litigants. For example, the Framers probably created diversity jurisdiction out of concern that state courts might favor the local litigant in a case between an in-state citizen and an out-of-state citizen.

Admissibility of Evidence

The principle rule governing admissibility is that evidence which is irrelevant to the issues to be decided is not admissible.

Burden of Production (Plaintiff)

The responsibility of a party in a legal action to introduce sufficient evidence in support of an assertion. Requires the plaintiff to introduce evidence from which the jury could find that each element of the case has been proved.

"Procedure"

The rules that govern the process or mechanism by which parties resolve a lawsuit.

Federal Question Jurisdiction

The subject-matter jurisdiction of United States federal courts to hear a civil case because the plaintiff has alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party. "arising under this Constitution [or] the Laws of the United States" (the federal question jurisdiction) In United States law, federal question jurisdiction is the subject-matter jurisdiction of United States federal courts to hear a civil case because the plaintiff has alleged a violation of the United States Constitution, federal law, or a treaty to which the United States is a party. The Framers recognized that the new national government could be undermined if it relied solely on state courts to enforce and interpret laws made by the federal government. The other categories in Article III, Section 2 involve cases in which the federal government has a direct interest (cases to which the federal government is a party) and cases with a potential impact on foreign relations, such as maritime cases and those involving ambassadors and foreign ministers.

Deposition

The taking of testimony from a witness under oath. The lawyers may take depositions of any witness with relevant information, whether a party to the case or not. Typically, the deposition is taken at the office of the requesting lawyer. A court reporter swears the witness, records the testimony verbatim, and produces a written transcript for both parties.

Standard of Care

The watchfulness, attention, caution and prudence that a reasonable person in the circumstances would exercise. If a person's actions do not meet this standard of care, then his/her acts fail to meet the duty of care which all people (supposedly) have toward others. Failure to meet the standard is negligence, and any damages resulting therefrom may be claimed in a lawsuit by the injured party. The problem is that the "standard" is often a subjective issue upon which reasonable people can differ.

What is an exception to concurrent jurisdiction?

There is an important exception to this principle of concurrent jurisdiction. While state courts usually have concurrent jurisdiction over cases within the Article III grant, Congress may, in conferring jurisdiction over a particular category of federal cases, provide that those cases may only be heard in federal court. Some federal statutes provide for such exclusive federal jurisdiction. For example, 28 U.S.C. § 1333 provides that the federal district courts "shall have original jurisdiction, exclusive of the courts of the States" in admiralty and maritime cases. Similarly, 28 U.S.C. § 1338 provides for exclusive federal jurisdiction in patent and copyright cases.

True or False: A Federal Law claim can only be filed in Federal Court.

This is false. In most cases over which the federal district courts have subject matter jurisdiction, including in cases involving federal law claims, state courts also have subject matter jurisdiction. The only exception is where Congress has expressly stated that the claim must be heard only in federal court.

Judgment as a Matter of Law (JMOL)

This motion is made before a case is submitted to the jury, and argues that no reasonable jury could find for the opposing party (i.e., whatever evidence exists for such ruling is legally insufficient).

Adjudicate

To act as judge in a matter; to settle through the use of a judge or legal tribunal.

Claim Preclusion and Issue Preclusion

Two doctrines that limit relitigation of claims or issues resolved in a prior case. Claim preclusion bars litigation of all issues that were or could have been litigated in the original action under the original claim, while issue preclusion resolves only those issues that were actually litigated.

Lifecycle of Litigation

Very few cases proceed through all of these stages of litigation. 1. Pleading. 2. Discovery. 3. Pre-Trial. 4. Trial. 5. Post-Trial. 6. Appeals.

Choice of Law

When courts determine which state's law should apply to a case.

Why is subject matter jurisdiction important to a lawyer?

When filing a lawsuit, a lawyer must know which court has the authority to hear a certain type of case. That is, which court has subject matter jurisdiction. If the court does not have SMJ, the case will be dismissed, wasting the court's and client's time.

Trial Courts

Where cases are litigated through trial. In the trial court, evidence and testimony are first introduced, received and considered. Findings of fact and law are made in the trial court and eventually, the findings of law may be appealed to a higher court that has the power of review.

Does a court need personal jurisdiction over both parties in a case?

Yes, especially the D.

Can a plaintiff assert multiple claims in a complaint? Can a plaintiff sue on multiple claims in a single suit?

Yes. Under the Federal Rules of Civil Procedure and similar state rules, a plaintiff may assert whatever claims she has against the defendant, so they may all be settled in a single litigation. Fed. R. Civ. P. 18(a). The Rules even allow a plaintiff to assert contradictory claims (Claim #1: "We never properly executed the contract so it should be declared invalid." Claim #2: "We had a valid contract and I want damages for breach."). In addition, plaintiffs could sue multiple defendants together for a single claim.

What happens if you don't comply with a subpoena or summons?

You are legally required to comply with the orders. If you don't show up for a summons, you'll automatically lose the civil case brought against you. If you don't show up with what was requested of you with your subpoena, you may be facing fines or even jail time for contempt of court.

Making out a jury question

"If reasonable people could disagree"... the case goes to the jury. There is an issue to dispute. If reasonable people could not disagree, then the plaintiff wins as a a matter of law, or the defendant wins because, as a matter of law, the plaintiff failed to provide evidence sufficient to make out a jury question on one or more of the necessary elements of the case.