BUS 201 - Chapter 3 -Trials and Resolving Disputes

motion to dismiss for failure to state a claim / demurrer

an assertion that even if facts asserted are true, the injury claimed by the plaintiff is one for which the law furnishes no remedy

specific performance

an equitable remedy which requires the offending party to do as it promised

reply

answer to the counter-claim

Everything said in the mediation can be made public or be used in court as evidence if mediation should fail and a suit follows (T/F)

false

the right to a jury trial must be exercised. (T/F)

false

request for admissions

either party can serve the other with written requests for an admission of the truth in matters relating to the dispute (used to settle facts about which there are no disputes)

answer

if motion to dismiss is denied, defendant responds to the allegations made by plaintiff. The defendant will admit, deny, or say that he does not know the truth, with respect to each assertion of the plaintiff

judgment notwithstanding the verdict

judge is asked to hold that there were not legally sufficient grounds to support the jury's verdict and to either overturn the entire verdict or a portion of it

punitive damages

money damages in addition to compensatory damages, designed to punish the wrongdoer

compensatory damages

money damages to compensate for losses incurred because of actions of wrongdoer

complaint

plaintiff must state the basis of the court's subject-matter jurisdiction and jurisdiction over the parties to the dispute

discovery

process of obtaining information prior to trial

interrogations

questions submitted by a party to a case to the other party, or a witness, or another person with relevant information

adversary system of justice

system of justice which requires the parties to represent themselves, usually through their lawyers, and to argue their positions before a neutral court

opening statement

the attorneys tell the jury what the crucial facts are and how they will prove that those facts support their position.

counter-claim

the defendant can file a claim against the plaintiff

res judicata

the final judgment on the merits of a case by a court prevents an issue from being relitigated (applies for arbitration as well)

pleading

the formal statements made to the court by the parties to a case that list their claims and defenses. (sets forth the plaintiff's claim against the defendant)

voir dire

the process used to select jury members

deposition

the sworn, in-person testimony of a witness recorded by a court reporter

remedy

the way a right is enforced or how a violation of a right is compensated or prevented

nominal damages

trivial money damages awarded, indicates that a wrong has occurred but no actual damages were incurred

The discovery process helps prevent surprises (or trial by ambush) by giving the parties access to each others' information. (T/F)

true

equitable remedies

when money is not able to compensate for the loss or the defendant may not be able to pay damages but could do certain things to help rectify a wrong

negotiation

when parties decide to settle a matter between themselves (the use of lawyers or representatives is not required but is common)

The parties present their arguments to the appellate court through _____ and _____.

written briefs, oral arguments

Following the service by the plaintiff's complaint, the defendant must file an answer. What are the three options the defendant may answer with?

-a motion to dismiss -an answer with or without an affirmative defense -a counterclaim

what statements must be contained in the complaint?

-alleging the essential facts necessary for the court to take jurisdiction -of the facts necessary to claim that the plaintiff is entitled to a remedy -of the remedy the plaintiff is seeking

what are the four grounds for overturning an award?

-the award was obtained by corruption or fraud -there was evidence of partiality or corruption by an arbitrator -an arbitrator was guilty of serious procedural misconduct, such as refusing to hear relevant evidence that prejudiced the rights of a party -an arbitrator exceeded his power, and an award was made on a subject not relevant to the proceeding

default judgement

If a party does not comply with a court order, this is issued, granting victory to the other party

protective order

If a trade secret or other confidential information is involved, a company can get this and limit access to the material so as to ensure confidentiality

injunction

a court order directing a person to do or not do something

writ of execution

a court order to an official, such as the sheriff, to seize the property of the defendant to satisfy the judgment

permanent injunction

a final court order, issued after the conclusion of the trial or as part of a settlement agreement

order for the production of documents

a party may access information in the possession of the other party (ex. e-mails, medical bills, business records, letters, and repair bills)

arbitration

a process similar to litigation in which two or more persons agree to allow a neutral person or panel to resolve a dispute

mediation

a third party is always used to help the parties try to reach a solution by coming to an acceptable agreement (mediator cannot impose a decision, but can only help resolve a conflict)

what are the general categories of monetary damage awards? (3)

compensatory, punitive, nominal

pretrial conference

conferences between attorneys and judge which simplify the issues and plan the course of the trial, agreeing on witness lists, exhibits, and the schedule

affirmative defense

defendant admits to the facts claimed by the plaintiff but offers additional facts he asserts constitute a defense—a legal excuse—to the plaintiff's complaint

motion to dismiss

defendant asks the court to dismiss the case because it does not have jurisdiction over either the subject matter of the dispute or the defendant's person