1
Q
What are criminal laws?
A
Laws that define certain acts as crimes and provide specific punishments for each crime
2
Q
Civil law typically categorizes into public and private law. Define these.
A
Public law - refers to areas of the law that affect the public interest and that govern relationships between the government and non government parties.
private law- refers to areas of the law that primarily involve disputes between nongovernmental parties.
3
Q
What is Civil litigation?
A
a juridical process by which private parties go to court to enforce a legal right or to obtain a remedy for civil wrong.
4
Q
To file a civil lawsuit, a person must have a valid cause of action. Define this/.
A
its a set of facts that gives a person the right to judicial relief
5
Q
When would a case of action arise? (4)
A
- one person has a legal right
- another person has a legal duty to observe that right.
- the second person breaches her legal duty
- the first person suffers a loss or injury as a results of that breach
6
Q
Do all four elements that would of a case of action, have to be present?
A
yes, in order to create a cause of action. (page 40)
7
Q
Common law jurisdictions provide two general types of civil causes of action. Name them
A
Breach of contract- failure of a party to perform a contractual obligation
tort- private wrong, other than breach of contract.
8
Q
Define a contract
A
a legally enforcable agreement between two or more partiesl the agreement consists of a promise or a set of promises.
9
Q
define plantiff
A
injury party, he who files papers with the court setting out her cause of action agaisnt the other party.
10
Q
define defendant
A
other party in a court, who is defending agains the accusation of the plantiff.
11
Q
Name the 3 distinct states of filing a civil action.
A
- pleading stage
- discovery stage
- trial stage
12
Q
What is a pleading?
A
a formal, written statement that set out the claims and defenses of each of the parties to a lawsuit.
13
Q
what is the purpose of a plea? (what is included/ the end point)
A
- define the issues that are in dispute
- set ou tthe material facts that are involved in the dispute
- define the judicial relief that the parties seek from the court.
14
Q
what are the two basic types of pleadings? and define them
A
- complaint- writen document that sets out the cause of action on which the plantiff bases her claim agasint the defendant.
- answer- reply to complaint, here a defendant can 1. admit or deny each of the facts, and 2. answer that he has no knowledge of a fact that the plaintif alleged. They can also include defenses and counterclaims in the answer.
15
Q
What is service of process.
A
the act of delivering or -serving0 the complain to the defendant, and provides the defendant with official notification of the proceeding so as to afford him the opportunity to appear and he heard.
16
Q
What is an affirmative defense?
A
an allegation of facts that constitute a defense to the plantif’s claim.
17
Q
What is a counter claim
A
a claim by the defendant against the plantiff that arises out of the same facts on which the plaintiff’s claim is based. This allows all disputes between the parties to be joint together for resolution in one civil proceeding
18
Q
What is a default judgement?
A
a judgement entered against a defendant who fails to plead0 that is to file an answer within the required time- or fails to defent the lawsuit.
19
Q
What is a dismissal?
A
a court order of judgement that concludes a lawsuit without trial of the issues involved in the lawsuit.
20
Q
What happens if a party fails to file a required pleading?
A
the action is ended fairly quickly with a default judgement or dismissal of the action.
21
Q
What is the discovery stage?
A
a proess in which the parties gather information that is relevant to the lawsuit so they can prepare to present their respective cases at trial.
22
Q
What are the 4 primary functions of the discovery stage?
A
- permits parties and witnesses to be questioned
- allows facts to be reveals,
- facilitates settlements because parties are able to dertermine the relative stregths of their own cases and the other party’s
- seeks to prevent a party from hiding information and avoid trial surprise
23
Q
Name some discovery techniques available to the parties
A
- interrogatories
- deposition
- request to produce documents and thigns
24
Q
What are interrogatories?
A
written question that one party prepares and that the other party must answer in writing within a specified time.
25
answers to interrogatories are submitted in the form of what? what happens if someone lies?
1. in form of affidavit, written statement under oath
| 2. false statements, means client committed perjury,
26
what is a deposition?
a proceedure where a person orally testifies under oath, while being questioned by attorneys. A court reportor records answers, and provides copies to each parties.
27
What is a request to produce documents and things?
a request by one party that the other party produce defined documents and items related to the lawsuit.
28
define contempt of court
any act that hinders the court in administrating justice or that lessens the authority and dignity of the court.
29
Define trial
a formal proceeding at which the parties appear in court along with their respective attorneys and present their cases to the court.
30
An action may be tried by a judge alone, or by judge and jury. Do the parties have a choice>
yes, they have the right to request a trial by jury
31
What is an issue of law?
an issue in which the parties disagree on how the law should be applied to a given set of facts
32
wha is an issue of fact?
an issue in which the parties disagree as to the facts involved inthe action.
33
Who is responsible for declining issues of law?
the judge
34
who is responsible for deciding issues of facts?
the trier of fact.
35
who is the trier of fact
the judge in an nonjury trial and the jury in a jury trial.
36
define evidence
the means by which the disputed facts in an action are proved or disproved.
37
Evidence must be what- to be admissible at trial?
relevant and material to the facts at issue. IT must tend to prove or disprove a relevant fact.
38
Define rules of evidence
.non-procedural rules that govern the admissibility of evidence at trials and determine whether the evidence presented is sufficient to prove the issues involved in an action.
its meant to aid the court in ascertaining the truth by winnowing out unreliable evidence.
39
What are the two meanings of the term 'burden of proof'
1. duty to present evidence to prove a given fact or set of facts.
2. mean the duty to persuade the trier of fact than an allege fact is true
40
does the burden of presenting evidence every shift between the plaintiff and the defendant during trial?
yes, often
41
What is a prima facie case,
evidence that is sufficient to prove the element of a party's case and that entitles the party to judicial relief, unless the opposing party presents evidence to the contrary.
42
What happens when the plantiff fails to present a prima facie case, and does not meet his initial burden of proof?
the court probably will dismiss the lawsuit.
43
What happens when the plantiff presents a prima facie case?
the burden of producing evidence switches to the defendant, who will lose unless able to present evidence that disproved the prima facie case of the plantiff.
44
what does it mean when they say the degree of proof required in a civil action is a preponderance of the evidence?
it means that the decision as to an issue of facts must be supported by the greater weight of the evidence.
the trier of fact must evaluate the evidence and decide the issue in favour of the party that presented the more convincing evidence concerning the disputed fact.
45
the rules of evidence includes a legal device known as a presumption. What is this?
a rule of law under which a fact is assumed to be true because another fact or set of facts was proven.
- facts that have not been proven
46
A presumption can be either conclusive or rebuttable. What is a conclusive presumption?
a presumption that cannot be refuted.
| ie. a child under a specified age is conclusively presumed to be incapable of committing certain crimes
47
A presumption can be either conclusive or rebuttable. What is a rebuttable presumption?
A presumption that can be disproven but that stands until adequate evidence is presented to the contrary.
48
Define conflict of laws
the area of the law that determines which substantive laws apply to each issue in a case when the laws of more than one jurisdiction are involved in the action
49
What is a judgement?
an official decision of a court that resolved a dispute and determines the rights and obligations of the parties to the action.
50
Does a judgment incorporate the verdict of the trier of facts?
typically. but if the judge disagrees, he can set it aside and refuse to incorporate it into the judgment.
51
When is there a right to appeal a judgement?
when it is granted by statute, and if an appellate court grants a party permission to appeal.
they must be filed with in the time limit, and can be based on issues of facts or on issues of law.
52
Are there appeals in civil action?
no, the judgement becomes final and binding on the parties, and the cause of action may not be the subject matter of the subsequent action.
53
What is the term used, for a matter that has been decided?
Res Judicata.
54
jury trials are available in some public (criminal) cases in civil law jurisdictions. What is the typical legal process for private disputes?
they are hear by a judge or panel of judges.
55
In a civil law jurisdiction, who guides the evidence-gathering process?
Judge, they also question all witnesses, and evaluates the admissibility and weight of all evidence presented. They render the verdit at the final hearing of the metter.
56
What is the purpose of tort law individually developed by each sate in the US,?
the body of tort law, creates rights and imposes corresponding duties on individual and apportions responsibility when a breach of legal duty results in loss to another person.
57
define an obligation.
a duty that one person owes to another, and it may arise from number of sources.
58
What are the two sources of non-contractual civil liabilities?
1. delicts,
| 2. quasi-delicts
59
Who is the main party a law of torts focused on?
compensating the victims of torts rather than on pushing the wrongdoers
60
What is an intentional torts?
a private wrong committed by a person who intended to do something that the law declares as wrong.
1. assualt, battery, fraudulent misrepresentation
2. traspassing, conversion
61
What is assault?
the intentional creation of a reasonable fear in the mind of the victim of imminent bodily harm.
62
What is battery?
an intentional harmful or offensive physical contact with another person.
63
Whats the difference between an assault and battery?
ASSAULT consists of a threat to harm another, where battery occurs when a person touches strikes or otherwise physically harms another person.
64
When does a tort of defamation occur?
when a person makes false statements that injure the good name or reputation of another person.
65
What are the two forms of defamation?
1. slander, (oral statements)
| 2. liberl, (written statemtns)
66
To succeed in civil action for defamation, a plaintiff must do what?
1. prove that the defendant made a false statement about the plantiff
2. the defendant communicated the statement to a third party, and
3. the statement injured the plaintiffs reputation
67
What is fraudulent misrepresentation?
occurs when a person knowingly or willfully makes a false statement with the intent that another person will rely on the statement and will be harmed as the result of that reliance.
68
How does a plaintiff prove that the defendant made a misrepresentation?
1. knowledge of its falsity
2. without belief in its truth
3. reckless or careless disregard for whether it is true.
69
What is the act of inducing a breach of contract?
the intentional tort that occurs when a person who is not a party to a contract persuades a contracting party to breach a contractual obligation.
70
What is trespass to land?
the unauthorized physical invasion of another's land.
71
What is conversion? (in terms of tort)
The unauthorized exercise of dominion and control over another person's property.
ie. theft, embezzelment, and damage to anyones property
72
What is negligence?
is a private wrong committed by a person who failed to exercise the legally required degree of case in
1. doing something that is otherwise legally permissible
2. omitting to do something that is otherwise legally required.
73
To prevail a civil action based on negligence, a plaintiff generally has the burden of proving what four elements of a cause of action?
1. defendant had a legal duty to the plaintiff to act in accordance with a prescribe standard of care
2. the defendant breached his legal duty
3. the plaintiff suffered a loss
4. the defendants conduct was the cause of the paintiff's loss.
74
What is contributory negligence?
is a plantiff's own negligence that contributes to his loss. This law states a plaintiff who was responsible to any extent of his loss is denied ant recovery from the defendant. To reduce harshness, most states have modified this law by adapting a system of comparative negligence.
75
Define comparative negligence
Allows a plaintiff who was contributorily negligent to recover from the defendant, but the amount that recovery is reduced is proportioned to the plaintiff's fault.
76
Define assumption of the risk
an affirmative defence that totally bars a plaintiff's claims when the plaintiff understood the nature of the risk presented by the defendant's conduct and voluntarily incurred that risk.
77
Do most states follow the assumpton of risk rule?
no, most have abolished this common law defence, by merging the rule into a system of comparative negligence.
78
What is strict liability?
liability without regard for whether the defendant was at fault. ITs applied only in very restricted situations, such as when a defendant engages in hazordous acitvities.
79
How are remidies categorized in common law jurisdictions?
Legal or equitable.
80
define legal remidies
primarily involved the payment of money damages to injured parties.
81
Define equitable remedies.
remedies developed by the equity courts. They are not bound by rigid procedures and are based on moral rights and concepts of justic.e
82
what is the basic legal remedy for most civil wrongs?
damages, which consist of monetary compensation that may be recovered by a plaintiff who suffered a loss or injury as a result of a defendants wrongful conduct.
83
Civil damages awards generally provide a plaintiff with compensatory damages. What is this?
damages intended to compensate an injured party for the amount of monetary lossess that resulted from the defendant's wrongful conduct.
- sometimes referred to as actual damages.
84
When is a loss foreseeable? in terms of defendant liability in his action.
when it would ordinarily be expected to result from the wrongful actions of the defendant knew of specific facts that would make the loss likely.
85
In an action from breach of contract, compensatory damages, are generally measured as the benefit of the bargain, meaning what?
the damage award is that amount that will put the plaintiff int he finanical position he would have been in, if the contract had been preformed.
86
What are punitive damages?
are awarded in addition to compensatory damages when a defendant's wrongful conduct was malicious or willful
87
What is nominal damages?
award to plantiff when he was wronged by he did not suffer a loss as a result of the wrong, cannot prove the amount of the loss with reasonable certainty, or the loss was trivial. the plaintiff is not entitled to compensatory damages. but if the defendant was wrongful, the plantiff might get a small sum.
88
Can a plaintiff recover damages for a loss that she could have avoided or lessened by reasonable efforts?
no, they always have the duty to make a reasonable effort to mitigate the amount of damages that result from the defendant's wrong.
89
Name 3 kinds of damages examples that are sometimes awarded in civil lawsuits.
1. liquidated damages
2. prospective damages
3. statutory damages
90
Name 2 kinds of damages that are not generally awarded in civil actions in the US
remote damages
| speculative damages
91
What 3 principles must be met to grant equitable relief to a plantiff in a civil action?
1. must have no adequate remedy at law
2. must come into court with clean hands - its used to apply justice, not aid a party.
3. must not be guilty of laches.
92
define the term guilty of laches
when he unreasonably delayed in pursuing a claim for relief and the defendant was harmed in some way as a result of the undue delay.
93
What are 3 addition equitable principales, created by courts to fashion remedies and make decisions based on what is fair to the parties.
1, reformation- where a written contract is rewritten to express the original agreement of the contracting parties.
2. Resicion- contract is cancelled and the parties returned to the positions they would have been in, had the contract not been made.
3. specific performance- requires a party who has breached a contract to carry out the contract according to its terms.
94
Define declaratory judgement
a judicial statement that declares or denies the partie's legal rights but does not include specific relief or any means to enforce those rights.
95
What is an injunction?
a court oder that prohibits a party from committing a specific act.
96
Define resitution
sometimes its a legal remedy, and other times an equitable remedy under which a party is ordered to return property to its owner or to the person entitled to it.
97
What is an alternative dispute resolution method?
any nonjudicial method of resolving civil disputes.
98
What are the two most common forms of dispute resolution in the united states?
1. medication,- uses mediator to negotiate between parties, and create a mutually agreeable resolution. if they dont agree parties typically have the right to arbitration or civil litigation,
2. arbitration- arbitrator evaluates the facts and renders a decision that is binding on the parties.
99
Are there appeal options for arbitrated decisions?
yes, only if the arbitration was conducted improperly.
100
What is conciliation? (in terms of alternative dispute resolutions in other countries)
method that is similar to medication in that the parties are encouraged to come to a mutually acceptable agreementl a third party facilitates the negotionations and helps them resolve the dispute themselves.
LOMA 311- ISTAR
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