Civil Lit ch1

Diversity of Citizenship

A basis for federal court subject matter jurisdiction under 28 U.S.C. § 1332 existing when no plaintiff and no defendant are citizens of the same state and the amount in controversy exceeds $75,000, or when one party is a citizen of a state and the other is a citizen of a foreign state.

Tickler System

A calendaring system.

Why are substantive laws and procedural rules important to civil litigation?

A case can be litigated only if a right exists under substantive law. In other words, without a substantive basis for the lawsuit, litigation cannot take place. Procedural rules dictate the way in which these rights are enforced.

What is a cause of action?

A cause of action is a legally recognized basis for a lawsuit. A cause of action exists when the law recognizes a right to recover damages for some alleged wrong.

What types of questions should be included in a client interview questionnaire?

A client interview form should contain questions that elicit personal information about the client, such as address, e-mail address, home phone, cell phone, and work phone numbers, as well as questions that are specifically tailored to the facts of the case.

Presumption

A conclusion or assumption of fact that the law requires to be made from the proof of another fact. Presumptions can be rebuttable or conclusive.

Court of Appeals

A court of review; this court reviews decisions from a trial court.

Writ of Education

A court order authorizing the seizure and sale of a person's property to satisfy a judgment against that party.

Trial

A court proceeding in which parties to a lawsuit present their evidence to a judge or jury and the judge or jury make a decision in favor of one party.

Ch 2 Trial Court

A court where the parties to a lawsuit file their pleadings and present evidence to a judge or jury.

Judicial Notice

A court's acceptance of the truth of a fact without the necessity of evidence, often because the facts are official acts or are so universally known that they cannot reasonably be disputed.

Evidence Log

A document attached to an item of physical evidence recording the chain of possession (chain of custody) of that piece of evidence.

Medical Diary

A document in which the client keeps track of medical treatment, daily health complaints, type and amount of medication, mileage to physicians' offices, and other related medical expenses.

Supplemental Jurisdiction

A federal court's right to decide a claim based on a nonfederal issue if this claim depends on the same set of facts as does a federal claim in the case before the court.

Ch 3 Cause of Action

A legal basis for a lawsuit based on the facts of the case and applicable law.

Hourly Billing

A legal fee based on a fixed amount for each hour the law firm spends on the case.

Flat Fee

A legal fee based on a fixed sum rather than on an hourly rate or a percentage of a recovery.

Contingent Fee

A legal fee based on a percentage of the final settlement or recovery from a lawsuit.

Retainer

A legal fee imposed at the beginning of a legal action, usually intended to be applied to future attorney fees actually incurred.

Ch 4 Representation Letter

A letter from an attorney to a new client establishing the ground rules of the litigation, including fees, billing rates, retainer, and work to be performed by the law firm.

Legal Error

A mistake in the way the court interprets or applies the law.

Supreme Court

A name given to the highest court in the federal court system and to many, but not all, of the highest court in state court systems.

Mediation

A nonbinding process in which a neutral third party helps disputing parties reach a settlement.

Expert Witness

A person who possesses special knowledge on a topic because of education and/or experience. An expert witness is allowed to give opinion testimony concerning facts within his or her expertise.

Leading Question

A question that generally calls for a yes or no answer and suggests the answer by the way it is phrased (e.g., beginning the question with "Isn't it true . . . ")

Motion

A request that a judge make a ruling or take some other action, most often in connection with a pending lawsuit.

Motion to Quash Service of Summons

A request that the court declare that service of the complaint and summons is invalid either because the court lacks jurisdiction over the defendant or because of some procedural problem with the service itself.

Authorization

A signed statement empowering someone (such as a doctor or employer) to give out information that might otherwise be treated as confidential.

Conflict of Interest

A situation in which, due to competing factors, one party (i.e., an attorney or paralegal) might be unable to act entirely for the benefit of party to whom a fiduciary duty is owed.

Trust Account (trust deposit)

A special bank account used exclusively for handling money belonging to another, usually a client.

Long-Arm Statutes

A state law that defines the right of state courts to exercise jurisdiction over nonresident defendants.

Hearsay

A statement made out of court used to prove the truth of what was said.

Certiorari

A term used in connection with appellate proceedings indicating that the reviewing court wants the lower court to send the higher court its record, so that the proceedings can be reviewed. When parties ask the U.S. Supreme Court to hear a case, they often file a petition for writ of certiorari, which, if granted, means that the Supreme Court will review the record in the case.

What is a tickler system, and why is it important in a litigation law firm?

A tickler system is a calendaring or tracking system for keeping abreast of important dates. A case in litigation requires that various documents be filed in court, often by certain dates, as well as requiring various court appearances by the attorney. A tickler system operates to remind the attorneys of these dates. Probably the main importance of a tickler system, however, is to make certain that the statute of limitations, or other initial time requirements, is met.

Claim Statute

A type of law that requires a written notice describing a claim to be presented to the defendant before a lawsuit can be filed.

What are some of the different courts in state court systems?

A typical state court system has trial courts and courts of review. Most also have a court of last review, often called a supreme court. Trial courts are referred to as superior courts, supreme courts, circuit courts, city courts, county courts, surrogate courts, and courts of common pleas. Often, there are many specialized trial courts that have the power to hear only certain kinds of cases; for example, probate court or family court. Also, many state court systems have trial courts that hear cases where the amount in controversy is small.

Brief

A written analysis of the facts and law related to a case, written by the attorneys handling the case, and filed in a trial or appellate court. Briefs are also filed in the Supreme Court.

Model Rules of Professional Conduct `

American Bar Association rules setting standards for the ethical conduct of lawyers; while not binding in themselves, these rules form the basis for most state ethical rules.

Venue

Among all the courts that have jurisdiction, venue defines the specific geographical location of the court or courts where an action should be brought. In the federal system, this determines which is the proper district. In state court systems, this often determines the proper county or counties.

Retainer Agreement

An agreement between an attorney and a client setting forth the fee arrangement and details of the attorney's obligations.

Settlement

An agreement that resolves a dispute without the necessity of a court action.

Special Appearance

An appearance in court (either in person or by filing documents) for a limited purpose, often contesting jurisdiction.

Affirm

An appellate court's upholding of the lower court's decision.

Laches

An equitable doctrine preventing a party from pursuing certain types of lawsuits (equitable) because that party has delayed to the extent that it would be unfair to the opposing party.

What is the importance of the expert witness?

An expert witness is one who possesses special knowledge, education, experience, and skill in a certain area. As a result, the expert witness is allowed to give opinion testimony. An expert witness can also explain and simplify complicated technical issues for the judge or jury.

Petition

An initial document filed with the court asking the court for some order. Sometimes petitions are filed in conjunction with a complaint (e.g., asking the court to appoint a guardian for a party who cannot file a lawsuit); sometimes petitions are filed in lieu of a complaint (e.g., in certain jurisdictions petitions and not complaints are used in divorce cases).

Arbitration

An out-of-court process in which disputing parties present their case to a neutral third person who listens to evidence from each disputing party and makes a decision; the decision is sometimes binding and sometimes not binding.

Higher Court

Another term for a court with appellate jurisdiction.

Lower Court

Another term for a trial court.

Quasi In Rem Jurisdiction

Authority of a court to hear a case based on the fact that the defendant owns property that is located within the state, even though that property is not the subject of the lawsuit.

Limited Jurisdiction

Authority to hear only certain kinds of cases.

What are the various ethical standards that control an attorney's decision to accept a case?

Before accepting a case an attorney must determine that he is competent to handle the case, that the claim has merit and is not frivolous, and that there is no conflict of interest with potential defendants.

Form Books

Books containing sample forms for legal professionals to follow in preparing pleadings and other documents.

What are three types of cases that can be brought in federal court?

Cases may be brought in federal court in the following circumstances (students should respond with any three of the following): a. The United States is a party. b. Federal laws so provide. c. Diversity of citizenship exists and if the controversy involves money, the amount in controversy exceeds $75,000. d. A treaty is involved.

What is the difference between civil procedure and criminal procedure?

Civil procedure deals with the rules and methods that apply when pursuing a civil case. It is the same as civil litigation. Criminal procedure deals with the methods that are employed in a criminal case. These methods include not only the court proceedings but also methods used by police in investigating criminal cases.

Electronically Stored Information (ESI)

Computer-generated records such as those found in e-mail files, databases, calendaring programs, and all other relevant data files created by spreadsheets, word processing, or any analogous program.

negotiation (negotiate)

Discussion between opposing parties in an attempt to settle a case; usually involving compromise by both sides.

Describe the demeanor that a paralegal should maintain during and after the initial interview.

During and after the client interview, the paralegal's demeanor must always remain professional. This includes acting with common courtesy toward your client, your coworkers, an opposing party, and opposing counsel. Do not use an informal method of addressing an individual and exercise care with any e-mail communications.

General Appearance

Either a physical appearance or a filling of documents in a court, without specifically limiting the purpose of the appearance; a general appearance confers personal jurisdiction on the court on the party appearing.

Cloud Computing

Electronic file storage where files are stored on the Internet rather than on the office computer.

Describe the various objections to admissibility of evidence.

Evidence is not admissible if it is not relevant. It is also objectionable if its probative value is outweighed by undue prejudice or consumption of time, if it is documentary evidence and has not been properly authenticated, if it violates the best evidence rule, if it violates the hearsay rule and is not subject to one of the many exceptions, or if it is a privileged communication.

Habit

Evidence of a party's routine practice, used to show that on a particular occasion the party acted in accordance with that practice.

Character Evidence

Evidence of a person's character or character trait shown by testimony regarding that person's reputation. This is admissible only in limited situations.

Relevant Evidence

Evidence that tends to prove or disprove any fact that is of consequence to the determination of the action.

What is the difference between exclusive jurisdiction and concurrent jurisdiction?

Exclusive jurisdiction means that a case must be brought in a specific court system. Only one court system (i.e., federal or state) has the power to hear the case. Concurrent jurisdiction means that a case can be brought either in federal court or in state court. Concurrent jurisdiction might also refer to the fact that more than one state has jurisdiction.

What are some possible sources for locating fact witnesses or elusive defendants?

Fact witnesses may be located through city directories, neighbors, utility companies, the post office, driver's license, Social Security number, automobile license plate, county records, credit bureaus, professional associations, and various sites on the Internet. General search engines and social media sites often provide relevant information.

Default

Failure to file an answer or other responsive pleading within the proper time; can eventually lead to a default judgment.

What forms might be needed during the client interview for client signature?

Forms that might be needed during a client interview, and that should be prepared by the paralegal, might include a retainer agreement, a medical release form, and an employer's release.

Removal

Generally, the transfer of a case from a state court to a federal court where concurrent jurisdiction exists and the case was initially filed in a state court.

Release

Giving up a claim or right to sue.

Discovery

In a civil case, the procedures by which all parties have the right to obtain information from other parties, and in some cases from witnesses; includes such procedures as depositions, interrogatories, and production of documents.

Judgment

In a civil court action, the final decision from the trial court.

When does a court have personal jurisdiction over a party to a lawsuit?

In general, a state court has personal jurisdiction over defendants who reside in the state. A state court also has personal jurisdiction over nonresidents where the exercise of jurisdiction meets the constitutional standard of due process and where a state long-arm statute so permits. This occurs when a defendant has substantial contacts with the state so that the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice. A state court also has personal jurisdiction over parties to a lawsuit when the parties agree to appear before the court. Federal courts have personal jurisdiction consistent with the jurisdiction of the state in which the federal court is located.

Why do states have long-arm statutes?

In order for a state to exercise jurisdiction over a nonresident defendant, it must be authorized by state law to do so. This authorization is found in statutes generally known as long-arm statutes. Without such a statute, personal jurisdiction is limited to defendants residing within the state.

What are the steps in setting up a client interview?

In scheduling a client interview, the paralegal must coordinate dates with the attorney and client and determine an appropriate location. The paralegal should send a confirming letter to the client setting up the time and place of the interview, as well as listing any documents or information the client should bring with him or her.

Circumstantial Evidence

Indirect evidence that helps to prove a fact, often requiring the trier of fact to draw reasonable and logical inferences.

Civil Laws

Laws dealing with private disputes between parties.

Substantive Law

Laws that determine parties' rights and obligations as opposed to the procedures used to enforce those rights.

Criminal Law

Laws that prohibit conduct that society deems harmful and provide for punishment in the form of jail, fines, or probation.

Procedural Law

Laws that set forth legal procedures or methods used by parties to enforce their rights or to oppose claims made against them.

Describe different types of civil litigation cases.

Lawsuits are categorized in different ways. Some cases are designated as complex, while others are relatively simple. Both complex and simple cases are also categorized by the substantive nature of the case. These categories include lawsuits based on personal injuries, employment disputes, intellectual property issues, construction issues, securities violations, general business disputes, real estate matters, asbestos injuries, and civil rights violations.

What are the steps in the litigation process?

Litigation commences with the plaintiff filing a complaint in the proper court. The complaint is then served on the defendant. Defendants either can respond to the complaint by filing an answer or other proper response or can ignore the complaint. If they ignore the complaint, they default, and judgment may be entered against them. If the defendants answer, the parties conduct discovery while waiting for the case to come to trial. Motions may also occur during the course of litigation. Finally the case is tried. Either party can appeal.

What activities lead to a paralegal's success in a litigation law firm?

Litigation paralegals are constantly called upon to interact with other people. They may have to interview clients and witnesses. They may act as an intermediary between the attorney and the client. They may draft letters to clients or assist in the drafting of various documents. To do all of this, paralegals must be able to communicate orally and in writing as well as possess organizational and analytical skills. Litigation paralegals must also have technology knowledge and skills.

What skills must a litigation paralegal have? Why are these skills needed?

Litigation paralegals should be able to do legal research. They may have to research the substantive law in preparation for drafting pleadings or motions. They may also have to use form books. On the other hand, litigation paralegals who are part of a larger team may have little need for legal research, especially if their job is limited to document management.

What are the ethical responsibilities governing law firms that handle litigation?

Once a firm agrees to handle a litigation case, several ethical standards control the litigation process. The following is a list of those standards: a. The firm should keep the client advised about the status of the case. b. Communication with an opposing party should be through the party's attorney. c. The members of the law firm must honor the confidentiality of their client. d. The members of the firm must be honest in their dealings with the court and other law firms. e. Attorney fees cannot be unreasonable or unconscionable; they should be clearly explained to the client and set forth in a written retainer agreement. f. Property of clients must always be kept in a special trust account.

Costs

Out-of-pocket expenses incurred in pursuing a legal action (e.g., filing fees).

What are the special ethical concerns of litigation paralegals?

Paralegals must be concerned with the following: clearly indicating his or her status as a paralegal, preserving confidences, avoiding giving legal advice, establishing the attorney-client relationship or setting fees, and keeping honest and accurate billing records.

What are five tasks performed by litigation paralegals?

Paralegals research the law, prepare memoranda of points and authorities, draft pleadings, organize files, interview parties and witnesses, and assist with technology needs.

What is the difference between personal jurisdiction and in rem jurisdiction?

Personal jurisdiction means that the court has jurisdiction over the parties and can make decisions affecting the rights of those parties. In rem jurisdiction means that a court has jurisdiction over property located within state boundaries and can make decisions affecting title to that property.

Concurrent Jurisdiction

Power or authority of more than one court system to hear a case.

Exclusive Jurisdiction

Power or authority to hear a case that belongs to one court system only (i.e., federal or one state court system)

What are the primary sources for finding the law of civil litigation? How do these sources differ from secondary sources?

Primary sources for finding the law are constitutions, statutes, and cases. Secondary sources are books that tell us about constitutions, statutes, and cases. They explain the law. Important secondary sources in civil litigation are form books.

Secondary Sources

Print or electronic publications about the law, such as articles, treatises, and encyclopedias; these are not binding on a court.

Primary Sources

Print or electronic publications that contain the actual law (i.e., case reporters, codes, constitutions).

What practical considerations must be reviewed prior to accepting a case?

Prior to accepting a case, the attorney should verify that the damages claimed justify the cost of litigation. The attorney should also check to determine the ability of the defendant to pay any judgment.

Direct Evidence

Proof that establishes a fact without the necessity of other evidence or the drawing of inferences.

Local Rules of Court

Rules that are adopted by individual courts and apply only in those courts.

Attachment

Seizing property pursuant to a court order and giving the court the right to make orders regarding disposition of the property.

What are the methods for locating, controlling, and preserving evidence?

Sources for locating evidence will vary depending on the kind of case. When personal injuries are involved, sources might include medical records, medical literature, work history, wage earning statements, tax returns, product labels, and photographs of the scene. Court records might also provide evidentiary information. All physical evidence should be kept in a safe place and an evidence log maintained to trace the possession of the evidence at all times.

What is subject matter jurisdiction?

Subject matter jurisdiction is the power that a court has to hear a certain kind of case. It also includes the power to hear the type of proceeding in that case (e.g., trial, appeal).

How is technology used in litigation?

Technology is used by both the courts and by lawyers. Attorneys use computers with general business software as well as legal software to perform everyday office tasks. Case management software is used to manage case files. Legal professionals also rely on electronic devices such as smart phones and tablets. The Internet is used for various tasks. Attorneys and judges use the Internet for legal research, communications (e-mail), and electronic filing of court documents. In addition, courts use the Internet to post information about cases. Some courts also use videoconferencing to manage short court proceedings.

Remand

The act of an appellate court sending a case back to the lower court after reversing a decision, often with specific instructions as to how the lower court must deal with the case.

Reverse

The act of an appellate court setting aside the decision of a lower court.

Demeanor

The appearance of a person and the way in which a person acts as opposed to what he or she says.

In Rem Jurisdiction

The authority of a court to hear a case based on the fact that property, which is the subject of a lawsuit, is located within the state in which the court is situated.

Subject Matter Jurisdiction

The authority that a court has to hear a particular type of case.

What is the importance of a cause of action to the litigation process?

The elements of a cause of action determine what must be proven at trial in order to win a case. They therefore provide a guideline for the gathering of evidence prior to trial. In some jurisdictions, facts that support each of the elements of a cause of action must be alleged in the initial pleading.

How is the federal court system structured?

The federal court system consists of three levels of courts: the U.S. Supreme Court, the U.S. Courts of Appeals, and the U.S. District Courts. In addition, there are miscellaneous trial courts that have specialized jurisdiction.

Describe typical office procedures in a law firm?

The following is a list of basic law office procedures: a. Conflict check b. Analysis of cause of action and verification of time limitations c. Preparation of proper fee agreements d. Creation of office file e. Creation of financial ledger f. Where applicable, creation of trust account and deposit of retainers g. Tickling of dates h. Explanation of role of paralegal i. Representation letter sent to defense

Answer

The initial pleading filed by the defendant in a lawsuit, contesting the factual and/or legal basis for the lawsuit.

Statute of Limitation

The maximum time period in which any lawsuit must be filed in court.

What are the various types of time limitations on filing a lawsuit?

The most common time limitation for filing a lawsuit is known as a statute of limitations. These are statutory time limits for filing a lawsuit, found in appropriate state or federal codes. Time limits vary depending on the type of case and the jurisdiction. Some cases, such as those against a government entity or the estate of a deceased, may be governed by claim statutes, which require that the defendant be served with a claim prior to the filing of a lawsuit. Equitable cases are governed by an additional concept known as laches. Laches prevents lawsuits where they would be unfair.

Arbitrator

The neutral third party who presides over the arbitration process and makes a decision.

Mediator

The neutral third person who facilitates the mediation process.

What is the paralegal's role in retaining an expert witness?

The paralegal might be asked to assume various responsibilities in retaining an expert witness. The paralegal might be asked to locate potential expert witnesses and to review or investigate their background and qualifications, as well as review any prior testimony given by the experts. A paralegal might also be involved in coordinating interviews between the experts and the attorney and taking notes during any interview. Finally, the paralegal might also be asked to make travel arrangements if the experts are not located near the attorney's office or the court.

What are the paralegal's responsibilities in preparing for the client interview?

The paralegal's role in preparing for the client interview may include researching potential causes of action or defenses, contacting the client to coordinate the interview plans, developing an interview questionnaire, and gathering forms and documents for client signature.

Plaintiff

The party who initiates a civil or criminal lawsuit in court.

Defendant

The party who is sued in either a civil or criminal case.

Original Jurisdiction

The power of a court to conduct a trial in a case; confers a court the right to be the first court to hear the matter.

Appellate Jurisdiction

The power of a court to review the decision of a lower court or administrative agency.

General Jurisdiction

The power or authority of a court to hear cases that are not within the exclusive jurisdiction of a different court.

Personal Jurisdiction

The power or authority of the court to make a ruling affecting the parties before the court.

Jurisdiction

The power that a court has to hear a particular case; requires that a court has the power to hear the type of case (subject matter) and that a court has power to render a decision against a particular defendant (personal) or over property (in rem).

What are the functions of trial courts and courts of appeals in the litigation process?

The primary function of trial courts is to provide a forum for the parties to resolve their factual disputes. This takes place at a trial in which the parties present evidence to a judge or jury. The judge or jury then applies appropriate legal principles to the facts to reach a decision regarding the dispute. The primary function of a court of appeals is to review what happened at the trial court to determine whether any substantial legal error occurred.

Civil Litigation

The process of resolving private disputes through the court system.

Civil Procedure

The rules that apply in a civil case and determine how a civil case proceeds through the legal system; in federal courts many of the rules are found in the Federal Rules of Civil Procedure and the Federal Rules of Appellate Procedure.

Criminal Procedure

The rules that apply in a criminal case and determine how a criminal case proceeds through the legal system; these are based on federal and state constitutions, codes, rules of court, and cases.

Complaint

Usually the first document filed in court in connection with a lawsuit; this sets forth the allegations or contentions of the plaintiff and states the basis for the action and the type of relief requested from the court.

What is venue?

Venue is the proper geographical location of a court proceeding.

Alternative Dispute Resolution

Ways to resolve a civil dispute without resort to a legal action.

What is the proper procedure for turning down a case?

When an attorney decides to turn down a case, he should send a letter to the individual explaining that he cannot accept the case. In this letter he should advise the individual of any time limitations to pursue the case and be careful about expressing opinions regarding the merits of the case.

What are some of the alternatives to litigating a case?

a. Settlement—The parties agree to resolve their dispute. b. Mediation—The parties meet with a third party, discuss their differences, and try to resolve them. c. Arbitration—The parties allow a third party to decide their dispute. d. Submission to Agency—The law requires that certain disputes be resolved by special agencies or boards.

Agent for Service of Process

party designated by a corporation who is authorized to be served with a lawsuit against the corporation.