Ch 16 Civil Lit

What postjudgment discovery devices are available to a judgment creditor?

1. Law firm files, including discovery and interrogatories that might list homes, business ownership, and so forth. 2. Motor vehicle registrations. 3. Litigation filings, both as plaintiff and defendant. (potential awards due the debtor?) 4. Deed records. 5. Mortgage records. 6. Tax assessor records. 7. Probate records. (debtor might be due funds from settlement of the estate of a parent, spouse, etc.) 8. UCC and lien searches. (existence of such a filing might indicate a checking, savings, or investment account at the same financial institution.) 9. Secretary of State filing. search for ownership in companies, service on a board of directors, and so forth. 10. Westlaw people and asset searches. -Postjudgment interrogatories, for example, are written questions that the judgment debtor must answer in writing about his assets. -A postjudgment deposition can be taken after sending the opposing counsel a notice of intent to take oral deposition by nonstenographic means. -This type of deposition is taken with only a dictating machine or a tape recorder, with no court reporter present. -The judgment creditor also could use a postjudgment request for production of documents to obtain necessary financial information from the judgment debtor.

List posttrial judgment procedures available to collect a judgment.

1: A Writ of Execution is a court order compelling the seizure of the judgment debtor's property to satisfy the judgment 2: A posttrial garnishment is a separate but ancillary lawsuit, filed in the court that rendered the judgment. -The garnishment is brought against a third-party garnishee that is holding assets belonging to the judgment debtor.

Supersedeas Bond

A bond put up by a person who appeals a judgment. Supersedeas is a judge's order that temporarily holds up another court's proceedings or, more often, temporarily stays a lower court's judgment. The bond delays the person's obligation to pay the judgment until the appeal is lost.

Postjudgment Deposition

A deposition that can be taken after judgment, with only a dictating machine or a tape recorder, with no court reporter present.

Notice of Appeal

A document filed with the appellate court and served on the opposing party, giving notice of an intention to appeal.

Writ of Execution

A document that orders a court official to take a debtor's property to pay a court decided debt. Execution is the official carrying out or completion of a court's order or judgment.

Garnishment

A legal process, taken by a creditor who has received a money judgment against a debtor, to get the debtor's money. This is done by attachment of a bank account or by taking a percentage of the debtor's regular income.

Motion for Enlargement of Time

A motion requesting additional time for an appeal, including the reasons that the additional time is needed and the number of additional days required.

Notice of Intent to take Oral Deposition by Nonstenographic Means

A notice sent to opposing counsel of an intent to take a deposition after the judgment by use of only a dictating machine or a tape recorder, with no court reporter present.

Amicus Curiae

A person allowed to give argument or appear in a lawsuit (usually to file a brief, but sometimes to take an active part) who is not a party to the lawsuit.

Who are the parties to an appeal?

A person bringing an appeal is referred to as the appellant. The person who opposes an appeal is the appellee.

Pro Se

A person representing himself or herself (as a defendant or plaintiff ) without a lawyer in a court proceeding (and whether the matter is civil or criminal).

Judgment Creditor

A person who has proved a debt in court and is entitled to use court processes to collect it.

Judgment Debtor

A person who has yet to satisfy a judgment that has been rendered against him or her.

Garnishee

A person who holds money or property belonging to a debtor and who is subject to a garnishment.

Define "petition for certiorari."

A petition for certiorari is a request for a rehearing before the U.S. Supreme Court. A request to a higher court for review, but which the higher court is not required to take for decision. Certiorari is a writ from the higher court asking the lower court for the record of the case. A petition for a rehearing is not a prerequisite to the filing of a petition for certiorari.

Petition for Rehearing

A request for a new hearing to reconsider an action that may have been wrongfully taken or overlooked in a previous hearing.

Petition for Certiorari

A request to a higher court for review, but which the higher court is not required to take for decision. Certiorari is a writ from the higher court asking the lower court for the record of the case.

Post Trial Garnishment

A separate, but ancillary, lawsuit, filed in the court that rendered the judgment, to permit the judgment creditor to collect on a judgment.

What is a supersedeas bond? What is its purpose?

A supersedeas bond is a promise, supported by a form of surety, to secure suspension of a judgment and delay execution upon the judgment, pending the outcome of the appeal. The appellant and its surety, usually an insurance company, agree to pay to the appellee the amount of any damages sustained due to the delay caused by the appeal if the appellant loses the appeal. The court has the authority to set the amount of the supersedeas bond, based on a monetary value set to the risk taken in the appeal. A bond put up by a person who appeals a judgment. -Supersedeas is a judge's order that temporarily holds up another court's proceedings or, more often, temporarily stays a lower court's judgment. -The bond delays the person's obligation to pay the judgment until the appeal is lost.

List and define four types of appellate briefs.

APPELLANT'S BRIEF: the brief of the person bringing an appeal - they generally include the following in this order: 1. A corporate disclosure statement if required by Rule 26.1 2. Table of contents, with page references 3. Table of cases in alphabetical order, with page references and list of statutes, treatises, and law review articles, including the author's name where appropriate, with page references 4. Statement regarding oral argument required by Rule 34(a)(1) 5. Statement of jurisdiction 6. Statement of issues 7. Statement of the case, the nature of the case, the course of the proceedings, and disposition in the court below 8. The statement of facts relevant to the legal issues, including appropriate references to the record 9. Summary of the argument 10. The argument, including the reasons for the contentions regarding issues, as well as citations to authorities, statutes, and parts of the record relied upon, and so on 11. A short conclusion listing the exact relief sought 12. Certificate of compliance, if required by Rule 32(a)(7) of the Federal Rules of Appellate Procedure APPELLEE'S BRIEF: the brief of the person who opposes an appeal. -The appellee's brief should follow the requirements of the appellant's brief, with the exception that none of the following are required unless the appellee is dissatisfied with the appellant's statement: (a) the jurisdictional statement, (b) the statement of the issues, (c) the statement of the case, (d) the statement of the facts, or (e) the statement of the standard of review. REPLY BRIEF: Rule 28(c) of the Federal Rules of Appellate Procedure permits the appellant to file a brief in reply to the appellee's brief. -A reply brief must contain a table of contents, with page references, and a table of authorities that includes cases arranged alphabetically, and statutes and other authorities, complete with references to the pages of the reply brief on which the authorities are cited. AMICUS CURIAE (literally, "friend of the court") or INTERVENOR BRIEF: is one that is voluntarily filed by an attorney who is not a part of the case but who has been granted permission to present some legal argument before the court.

Cross-Appeal

An appeal by the appellee.

What is an appeal?

An appeal is filed by a party who has lost a case or who is dissatisfied with a judgment or a court order. The appeal asks that a higher court review the lower court's decision.

Appeal

Asking a higher court to review the actions of a lower court in order to correct mistakes or injustice.

Appellant's Brief

Brief of the person bringing an appeal.

Appellee's Brief

Brief of the person who opposes an appeal.

What is a motion for a new trial?

Rule 59 of the Federal Rules of Civil Procedure allows a dissatisfied party to file a motion asking for a new trial. A motion for a new trial must state the legal grounds on which a new trial should be granted. The court may grant such a new trial on the following grounds: (1) the verdict was contrary to law, (2) the verdict was totally defective, (3) irregularity in the court proceeding, (4) excessive or insufficient damage awards, (5) jury misconduct, or (6) newly discovered evidence.

Describe the paralegal's duties in relation to oral arguments.

The paralegal's duties related to oral argument may vary, depending on the complexity of the case, the economic constraints, or the paralegal's experience. As an experienced paralegal, you may be asked to prepare for and attend the oral argument. You might be required to: 1: You may be requested to assist your attorney in preparing the written outline for the oral argument. 2: For the convenience of the court, you may be asked to prepare a notebook of research for each justice, consisting of cases that your attorney anticipates the court will need to consider in its decision. 3: You may be given the responsibility of delivering the exhibits to the court of appeals for the oral argument. -You also will have to make arrangements for the prompt removal of these exhibits. 4: As in the deposition or the trial, you may be asked to attend the oral arguments and make complete notes for your attorney's use during her portion of the oral argument.

Appellee

The person against whom an appeal is taken.

Appellant

The person who appeals a case to a higher court.

Oral Argument

The presentation of each side of a case before an appeals court. The presentation typically involves oral statements by a lawyer, interrupted by questions from the judge.

Postjudgment Interrogatories

Written questions that the judgment debtor must answer in writing about his or her assets.