CIVIL LITIGATION - CHAPTER TEST 7-13

AVAILABLE RESPONSES TO A REQEUST FOR ADMISSIONS

1. Admit 2. Deny 3. Refuse to admit or deny 4. Object

LIMITS OF DISCOVERY

1. Attorney-Client privilege 2. Work Product privilege 3. Common Interest privilege 4. Medical privilege 5. Confessor - Penitent privilege 6. Protection of expert testimony 7. Fifth Amendment privilege against Self-Incrimination

FORM AND CONTENT TO A REQUEST FOR ADMISSIONS

1. Caption 2. Title 3. Definitions 4. Instructions 5. Specific Requests

FORML DISCOVERY

1. Deposition 2. Request for Production 3. Request for Exam (Physical or Mental) 4. Interrogatories 5. Request for Admissions 6. E-evidence

ADVANTAGES OF AN ORAL DEPOSITION

1. Evaluate the witness (One major advantage of the oral deposition is that it gives the attorney taking the deposition the opportunity to see how well a witness or the opposing party will perform on the witness stand). 2. Preserves testimony (Preserve the testimony of a witness who might be unavailable to testify at trial).

DISADVANTAGES OF AN ORAL DEPOSITION

1. Inconvenient (Frequently, the deposition must be taken at times and places that disrupt the regular office routine). 2. Expensive (Oral depositions are also expensive and time consuming). 3. Allows witness ability to testify before trial (An oral deposition allows the defending attorney to gain insight into the other attorney's case and strategy.

DISCOVERY METHODS

1. Informal 2. Formal

DISADVANTAGES OF INTERROGATORIES

1. Limited to parties involved in suit. 2. Lack sponteneity. 3. Edited by attorney or paralegal. 4. Do not allow for immediate follow up questions. 5. Motive opposing counsel to begin preparation earlier than ordinarily. 6. Alert opposition to direction of case.

PARTS OF DISCOVERY MOTIONS

1. Motion to Compel 2. Motion for a Protective Order 3. Motion for Sanctions

WHAT OTHER DOCUMENTS ARE PREPARED/FILED WITH A MOTION ?

1. Notice of hearing 2. Affidavits, OR Declaration 3. Memorandum of Points and Authorities 5. Proof of Service

PURPOSES OF INTERROGATORIES

1. Obtain basic information in a case. 2. Determine contentions. 3. Identify individuals. 4. Identify documents. 5. Obtain information customarily exchanged under Federal Rule 26(b). 6. Narrow issues and facts. 7. Facilitate settlement.

DIFFERENT TYPES OF DEPOSITIONS

1. Oral Deposition 2. Videotaped Deposition 3. Telephone Deposition 4. Electronic Deposition 5. Deposition upon Written Questions

ADVANTAGES OF INTERROGATORIES

1. Simple 2. Inexpensive 3. Efficient 4. Can be more thorough than deposition 5. Complement other discovery

FORMAT OF AN AFFIDAVIT

1. The affidavit or declaration is usually, although not always, written in the first person. Even though it may be signed by a party or a witness, it is written by the attorney or paralegal. 2. The first paragraphs should describe the affiant (person making the affidavit) or declarant and describe the person's relationship to the case. 3. The affiant should state whether the affidavit is made in support of or in opposition to the motion and describe the general nature of the motion. 4. The affiant then states the facts supporting of or opposing the motion.

WHEN IS A MOTION TO DISMISS PROPER?

1. The court lacks subject matter or personal jurisdiction, 2. When venue is improper, 3. When process (the summons) or service of process is insufficient, 4. When the complaint fails to state a claim upon which relief can be granted, or 5. When a necessary party has not been joined (Rule 12 of the Federal Rules).

WHAT ARE THE WRITTEN DOCUMENTS THAT ARE INCLUDED IN A MOTION?

1. The motion 2. The Notice of hearing on the motion 3. Affidavits in support of the motion, and 4. A memorandum of points and authorities in support of the motion.

MOTION DESCRIBES?

1. The nature of the motion, 2. The grounds for the motion, and 3. the relief requested.

OBJECTIVES OF DISCOVERY

1. To prevent other side from winning due to surprise or trickery. 2. Determine truth of facts. 3. Examine the facts that form the basis of suit, to preserve testimony that may be lost should a witness disappear or become incapacited. 4. May be used to Impeach credibility of witnesses.

INFORMAL DISCOVERY

1. Websites 2. Visiting scene

MOTIONS

1. an application for a court order to resolve problems that occur during litigation 2. Must be in writing unless made during the trial. 3. If opposed, response must also be in writing. 4. Resemble pleadings, but are not pleadings.

ORAL DEPOSITION

A deposition that involves the actual presence of the deponent who responds aloud to the questons asked by an attorney.

DISCOVERY MOTIONS

A legal process by which parties of the lawsuit are able to discover facts relevant to the case. It is an important part.

JUDGMENT ON THE PLEADINGS

A motion claiming that the allegations in the pleadings, are such that no controversial issues remain and that judgment can be entered for only one party.

TAX COSTS

A motion made after a trial challenging the costs of suit that are claimed by the prevailing party.

NEW TRIAL

A motion made after a trial requesting that the judge set aside the verdict or judgment and grant a new trial to the parties.

A PROTECTIVE ODER

A motion made during discovery asking the court to limit a discovery request.

JUDGMENT AS A MATTER OF LAW

A motion made during or after a trial in which one party asks the judge to rule in his or her favor because the other side has produced no evidence upon which a judgment can be based, the motion cannot be made until the party against whom the motion is made has introduced all of its evidence.

SUMMARY JUDGMENT

A motion requesting that judgment be entered immediately because there are no disputed factual issues in the case.

CHANGE OF VENUE

A request from a party that the court transfer the case to a proper court.

REQUEST FOR A PHYSICAL OR MENTAL EXAMINATION

A request from one party to another party in the lawsuit to undergo a physical or mental examination provided that the examination involves a condition that is at issue in the pending action.

REQUEST FOR ADMISSION

A request made by a party to another party in the lawsuit to admit to the truthfulness of a fact or the genuineness of a piece of evidence.

RELIEF FROM JUDGMENT OR ORDER

A request to the court by one party that the court set aside any judgment, order or proceeding.

NOTICE OF HEARING

A simple paper stating when and where the court hearing on the motion will take place.

ORDER

A written command or direction given to a judge.

SUBPOENA DUCES TECUM

A written order issued by a court or an administrative agency commanding the presence of a person in order for that person to give testimony and to surrender the evidence that is enumerated in the subpoena.

WHAT IS A SUBPEONA?

A written order issued by a court or an administrative agency commanding the presence of a person in order for that person to give testimony in an official proceeding.

AFFIDAVIT SERVES

An affidavit serves the same purpose as testimony from a party or writness and is used in lieu of that testimony.

DEPONENT

An individual who responds to questions during a deposition.

PRETRIAL MOTION

Deals with issues or problems that arise before the trial occurs.

PROOF OF SERVICE

Document attached to motion of notice, indicating when document was sent out for service.

EX PARTE

Hearing without notice.

MORE DEFINITE STATEMENT

If a complaint (or other claim for relief) is so vague and ambiguous that it cannot be understood and responded to.

JUDGMENT NOTWITHSTANDING THE VERDITCT

In a jury trial, a request from one party that the judge decide the case in the party's favor on the basis that no facts have been proved that would support a jury's decision for the other party.

MEMORANDUM OF POINTS AND AUTHORITIES

Is a legal argument in the form of a discussion or analysis of the law (statutes, cases, or constitutional provisions) that applies to the case.

QUASH RETURN OF SERVICE

Is a motion made by a defendant who claims that he was improperly served with the summons and complaint.

MOTION TO COMPEL

Is a request by one party to the court for an order requiring the other side to comply with a discovery request.

AMEND

Is a request by one party to the court to allow a change in the content of a pleading. Under some circumstances, pleadings can be amended as a matter of right without the necessity of a court order.

MOTION FOR SANCTIONS

Is a request for penalties for violating the provisions of Rule 11 of the Federal Rules.

MOTION IN LIMINE

Is a request made of the court, usually at the start of a trial and outside the presence of the jury (Because all parties are present in court, no prior notice need to be given, nor do the motions have to be in writing (although attorneys sometimes submit a memorandum of points and authorities in support of their position).

PRODUCTION OF DOCUMENTS

Is a request that a party or other individual involved in a lawsuit provide specific documents or other physical evidence to the party making the request.

STRIKE

Is a request that the court delete portions of a pleading that are insufficient, redundant, immaterial or scandalous (Rule 12(f) of the Federal Rules).

MOTION TO DISMISS

Is a request that the court terminate the lawsuit immediately, without a hearing on the merits of the plaintiff's claim.

ENTRY UPON LAND FOR INSPECTION

Is a request to enter land to inspect that land to gain facts related to the lawsuit.

DECLARATION

Is a statement under penalty of perjury, but it is not sworn to before a notary. It is used in lieu of an affidavit.

AFFIDAVIT

Is a statement, under penalty of perjury, sworn to before a notary or other person authorized to administer an oath.

DEPOSITION

Is an out-of-court question and answer session under oath, conducted in advance of a lawsuit as part of the discovery process.

DISCOVERY

Is the legal process by which the parties to a lawsuit search for facts relevant to a particular case (includes exchange of information between the parties).

PRIMARY PURPOSE OF INTERROGATORIES

Is to obtain information about the basic facts in a case and to supplement the information required to be disclosed under Rule 26 of the Federal Rules of Civil Procesure.

MOTION TO DISMISS IS REQUESTED WHEN?

It is requested in lieu of an answer, and if granted eliminates the need for an answer.

MOVANT

Person who makes a motion

PURPOSES FOR A REQUEST FOR ADMISSIONS

Purpose, to simplify lawsuit by reducing number of issues in controversy.

FORMAT OF A MOTION

Same as pleading, 1. Caption, 2. Body, 3. Prayer, and 4. Subcription

NOTICE OF HEARING

States when and where the hearing on the motion will take place.

MORE DEFINITE STATEMENT

Such a motion is intended to require the claimant to clarify the allegations and make them more intelligible.

AFFIDAVIT DESCRIBES

The facutal basis for making the motion and is made by the person having personal knowledge of those facts.

ENGROSSMENT

The process of creating the final form of a document just before that document is used in a formal setting.

PROOF OF SERVICE

Verification that a pleading, motion, or other document has been served by mailing a copy of the document to another party or attorney.

INTERROGATORIES

Written questions submitted by one party in a lawsuit to another party in that suit, requiring written answers under oath.