BGEN 361 Ch. 5

Rando and Shania are involved in an automobile accident. Rando decides to sue Shania for his injuries, so he files a complaint, a formal pleading that starts the lawsuit and sets out the allegations that Rando has against Shania. Rando has the complaint, along with a summons, served on Shania to give her notice of the lawsuit. If Shania does not respond to the complaint:

a default judgment may be entered against her.

When an appellate court decides to send a case back to the lower court for a decision on a particular issue, it is called:

a remand.

A defendant failed to timely respond to a complaint filed against them. The plaintiff should file a motion for:

default judgment.

Assessment question You own a German Shepherd named Max who you love and adore. You are aware that Max is sometimes aggressive with new people. Because of that, you are usually very careful to prevent Max from running out of the house unleashed. One day, as you open the door to bring in the mail, Max escapes out of the door and attacks a woman walking in the vicinity of your home. The woman suffers significant injuries on her right arm, some of which she claims will leave permanent scars. You feel very bad about this. The woman is now suing you for $18,000 to cover her alleged medical bills, missed time at work, and pain and suffering. To prepare for the trial, you would like to review the woman's medical records, medical bills, work schedule, and salary. Additionally, you would like to have a doctor of your choosing examine her arm and assess the true extent of the injuries. What is the procedure a defendant uses to learn more about a plaintiff's claim before trial?

discovery

contingency fees

fixed as a percentage (usually 33 percent) of a client's recovery in certain types of lawsuits, such as a personal-injury lawsuit. If the lawsuit is unsuccessful, the attorney receives no fee, but the client will have to reimburse the attorney for all out-of-pocket costs incurred.

Maryanne and Trory are in court over a lawsuit that Maryanne filed against Trory for conversion of property. During voir dire, Maryanne's attorney asks the jurors if any of them know either of the parties. Juror number 13 responds that she is Trory's first cousin. Maryanne's attorney asks the court to strike juror number 13 from the panel. Maryanne's attorney is asking that juror number 13 be stricken:

for cause.

hourly fees

may be charged for matters that will involve an indeterminate period of time

fixed fees

may be charged for the performance of such services as drafting a simple will

What are the three steps of a civil trial? Choose 3 answers.

opening arguments, closing arguments, presentation of testimony and evidence

When a party wishes to excuse a potential juror without giving a reason, the party may exercise a:

peremptory challenge.

What is a document called that is filed with the court to state the position of the plaintiff or the defendant in a lawsuit and ask for relief from the court?

pleading

After all pleadings are filed and discovery is completed, a party may ask the judge to rule in their favor on the basis that there are no genuinely disputed facts and the judge need only rule on the law. The motion asks the court for a:

summary judgment.

Angelina sues Harrison for breach of contract and loses. Angelina appeals her case to the state supreme court. The appellate court remands the case, which means that:

the case is sent back to the trial court for further proceedings consistent with the opinion of the appellate court.

Granting a Motion for a J.N.O.V. means:

the jury verdict was wrong and so clearly against the weight of the evidence that no reasonable person could have found as the jury did.

Arliss runs a red light and strikes Jeffry's vehicle. Jeffry sues Arliss, and they proceed to trial. At the end of the trial, Jeffry is not happy with the amount of damages the jury awarded. Jeffry files a notice of appeal in his lawsuit against Arliss. Jeffry must now file the record with the appellate court. The record that Jeffry must file will consist of:

the pleadings, the trial transcript, the judge's rulings on motions made by the parties, and other trial-related documents.

What is the term for an appellate court's decision to overturn the decision of the lower court and rule in favor of the person filing the appeal?

to reverse

What is the process of interviewing prospective jurors and either approving of or challenging a person's impartiality toward service on a particular jury?

voir dire

Which of the following are reasons why a motion for a new trial might be granted? Choose 3 answers.

1. Excessive damages were awarded 2. The judge committed prejudicial error 3. The trial was unfair

Which of the following may a judge consider once a motion for summary judgment has been filed? Choose 3 answers.

1. Facts as presented in affidavits 2. The content of the pleadings 3. Facts as discovered by depositions

What are two types of challenges an attorney can make during voir dire? Choose 2 answers.

1. Peremptory challenges 2. Challenge for cause

An appellate court has the following options after reviewing a case:

1. The court can affirm the trial court's decision. (Most decisions are affirmed.) 2. The court can reverse the trial court's judgment if it concludes that the trial court erred or that the jury did not receive proper instructions. 3. The appellate court can remand (send back) the case to the trial court for further proceedings consistent with its opinion on the matter. 4. The court might also affirm or reverse a decision in part. For example, the court might affirm the jury's finding that Carvello was negligent but remand the case for further proceedings on another issue (such as the extent of Kirby's damages). 5. An appellate court can also modify a lower court's decision. If the appellate court decides that the jury awarded an excessive amount in damages, for example, the court might reduce the award to a more appropriate, or fairer, amount.

After a civil trial at which the losing party believes the jury verdict is contrary to the weight of evidence, the party may file which of the following motions? Choose 2 answers.

1. a motion for a new trial 2. a motion for a judgement notwithstanding the verdict (JNOV)

Stages in a typical lawsuit

1. accident, branch of contract, or other event 2. the party hires a lawyer, who files a complaint and notifies (serves) the defendant 3. defendant's attorney files an answer or a motion to dismiss 4. pretrial discovery and more motions, pretrial conference 5. trial and perhaps posttrial motions and/or an appeal

When the attorney for a party cross-examines a witness at trial, the attorney may: (Choose 2 answers.)

1. ask questions about the witness's character. 2. ask only questions relating to the testimony already given by the witness.

A party may challenge a potential juror for cause if the party believes the potential juror: (Choose 3 answers.)

1. is biased. 2. has prior knowledge of the facts of the lawsuit. 3. is a friend or relative of one of the parties.

voir dire

A French phrase meaning, literally, "to see, to speak" that refers to the jury-selection process. In voir dire, the attorneys question prospective jurors to determine whether they are biased or have any connection with a party to the action or with a prospective witness.

counterclaim

A claim made by a defendant in a civil lawsuit that, in effect, sues the plaintiff.

writ of execution

A court's order, after a judgment has been entered against the debtor, directing the sheriff to seize (levy) and sell any of the debtor's nonexempt real or personal property. The proceeds of the sale are used to pay off the judgment, accrued interest, and costs of the sale. Any surplus is paid to the debtor.

summons

A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff's complaint. The document is delivered by a sheriff or any other person so authorized.

verdict

A formal decision made by a jury.

breif

A formal legal document submitted to an appellate court when a case is appealed. The appellant's brief outlines the facts and issues of the case, the judge's rulings or jury's findings that should be reversed or modified, the applicable law, and the arguments on the client's behalf. The appellee usually files an answering brief.

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.

motion for a new trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or other reason) that a new trial is necessary to prevent a miscarriage of justice.

motion for judgement on the pleadings

A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.

motion for summary judgment

A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.

motion for judgement n.o.v.

A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury verdict against him or her was unreasonable and erroneous.

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.

motion to dismiss

A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.

motion

A procedural request or application presented by an attorney to the court on behalf of a client.

affrimative 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.

interrgatories

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

opening statements

A statement made to the jury at the beginning of a trial by a party's attorney, prior to the presentation of evidence. The attorney briefly outlines the evidence that will be offered and the legal theory that will be pursued.

e-evidence

A type of evidence that consists of computer-generated or electronically recorded information, including e-mail, voice mail, spreadsheets, word-processing documents, and other data.

pretrial motions

A written or oral application to a court for a ruling or order, made before trial.

affidavits

A written voluntary statement of facts, confirmed by the oath or affirmation of the party making it and made before a person having the authority to administer the oath or affirmation.

closing argument

An argument made at a trial after the plaintiff and defendant have rested their cases. Closing arguments are made prior to the jury charges.

hearsay

An oral or written statement made out of court that is later offered in court by a witness (not the person who made the statement) to prove the truth of the matter asserted in the statement. Hearsay is generally inadmissible as evidence.

metadata

Data that are automatically recorded by electronic devices on their hard drives and that provide information about who created a file and when, and who accessed, modified, or transmitted it. Metadata can be described as "data about data."

relevant evidence

Evidence tending to make a fact at issue in the case more or less probable than it would be without the evidence. Only relevant evidence is admissible in court.

pleadings

Formal statements made by the plaintiff and the defendant in a lawsuit that detail the facts, allegations, and defenses involved in the litigation; the complaint and answer are part of the pleadings.

motion for a judgement as a matter of law

In a federal court, a party's request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The state courts refer to this request as a motion for a directed verdict.

motion for a directed verdict

In a state court, a party's request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The federal courts refer to this request as a motion for judgment as a matter of law.

The complaint contains statements or allegations concerning the following:

Jurisdiction, legal theory, and remedy

Which of the following lists the steps of a trial in the correct chronological order from beginning to end?

Jury selection, opening statements, plaintiff's case, defendant's case

Ethan is charged with armed robbery and is meeting with his attorney, Audrey, to prepare for trial. During the trial prep session, Ethan tells Audrey about a young girl that Ethan killed, unrelated to the armed robbery. It has been all over the local news that this young girl is missing, and her parents have been desperately looking for her. Ethan tells Audrey where the body is buried. Doubting Ethan's story, Audrey actually goes to the burial site and verifies that the body is there. Later, the prosecuting attorney discovers information that makes Ethan a suspect in this murder and also discovers information that Audrey knows about the body and where it is buried. The prosecuting attorney thus subpoenas Audrey to court to testify about this information. Can Audrey testify about where the missing girl's body is buried?

No, that information is protected by the attorney-client privilege.

answer

Procedurally, a defendant's response to the plaintiff's complaint.

rules of evidence

Rules governing the admissibility of evidence in trial courts.

rejoinder

The defendant's answer to the plaintiff's rebuttal.

service of process

The delivery of the complaint and summons to a defendant.

direct examinaiton

The examination of a witness by the attorney who calls the witness to the stand at trial to testify on behalf of the attorney's client.

complaint

The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.

cross-examination

The questioning of an opposing witness during a trial.

rebuttal

The refutation of evidence introduced by an adverse party's attorney.

Federal Rules of Civil Procedure (FRCP)

The rules controlling procedural matters in civil trials brought before the federal district courts.

deposition

The testimony of a party to a lawsuit or of a witness taken under oath before a trial.

impeach

To challenge the credibility of a person's testimony or attempt to discredit a party or witness.