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Buss. Law - Ch. 4
Business Law - Chapter 4 - Litigation
| Term | Definition |
|---|---|
| plaintiff | the party who files a claim in a court of law |
| defendant | one who answers a complaint |
| appellant | the party who appeals from one court to another |
| appellee | the party against whom an appeal is filed |
| personal jurisdiction | the power of a court over the parties to the legal action |
| summons | a document issued by a court directing the defendant to appear in court or otherwise respond to the plaintiff’s allegations |
| complaint | the first pleading, a statement of the facts on which the plaintiff rests his or her case and files a lawsuit in court |
| answer | the pleading filed by the defendant responding to the plaintiff’s complaint |
| default | the failure of the defendant to file an answer, which allows the court to enter a judgment for the plaintiff |
| affidavit | a statement of facts reduced to writing, sworn to or affirmed before some officer—usually a notary public—who is authorized to administer an oath |
| 1) motion to dismiss 2) motion of the pleadings 3) motion for a summary judgement | name three of the most common pretrial motions |
| motion to dismiss | determination based on the complaint whether there is law to support the cause of action |
| motion of the pleadings | determination as to whether there is a genuine issue as to any material fact based on the pleadings |
| motion for a summary judgement | determination as to whether there is a genuine issue as to any material fact based on affidavits and the pleadings |
| venire | a panel of potential jurors |
| voir dire | the process of questioning prospective jurors to determine their qualifications and biases |
| peremptory challenge | an objection raised by a party to a lawsuit rejecting a prospective juror for which no reason need be given for the objection |
| directed verdict | a decision of the judge that the jury must decide, as a matter of law, in favor of one party and against the other |
| verdict | the decision of a jury, reported to the court, on matters properly submitted to the jury for consideration |
| standing to sue | the requirement that a person who brings a suit be a proper party to request adjudication of the particular issue involved; one person often brings suit on behalf of a class |
| class-action suit | a suit in which a person files suit on his/her own behalf and on behalf of all other persons who may have a similar claim |
| Commonality Adequacy Numbers Typicality | to be certified by a judge as a class action, plaintiffs must have presented evidence on what four definite characteristics Hint: CANT |
| commonality | there must be one or more legal or factual claims common to the entire class |
| adequacy | the individuals suing on behalf of the class must adequately protect the interests of the entire class |
| number | the class must be so large as to make individual suits impractical from the standpoint of the courts |
| typicality | the claims or defenses must be typical of plaintiffs or defendants |
| subject-matter jurisdiction | the authority or power of a court to hear cases of a particular type or relating to a specific subject matter |
| long-arm statutes | typically extend the personal jurisdiction of courts to cases in which a nonresident temporarily present in the state has caused a tort injury |
| minimum contacts | the connections or activities that a nonresident defendant has with the state where the lawsuit is brought |
| purposeful availment | intentional act by one party directed into a particular state, which allows that state to exercise personal jurisdiction over that party |
| relatedness analysis | dimensions in which two or more businesses are related |
| specific cause of action | the basis of a lawsuit |
| venue | relates to and defines the particular territorial area within the state, out of all those with jurisdiction, in which the case should be filed and tried |
| pleading | also called a declaration or petition; a legal document filed with the court that sets forth the position and contentions of a party |
| counterclaims | causes of action defendant has against plaintiff |
| pro confesso | in a court of equity, it's when defendant has admitted the allegations of plaintiff |
| discovery | designed to take surprise out of litigation and to ensure that the results of lawsuits are based on the merits of the controversy rather than on the ability, skill, or cunning of counsel |
| interrogatories | written questions included in discovery practices and are answered under oath by the opposite party and compulsory physical examinations by doctors chosen by the other party in personal injury cases |
| subpoena | a writ ordering a person to attend a court |
| depositions | the process of oral questioning under oath |
| requests for admission | a written discovery request that allows one party to ask another party to admit or deny certain statements while under oath |
| pretrial conference | occurs prior to the trial; a conference between the lawyers and the judge will be held in states with modern rules of procedure. the pleadings, the results of the discovery process, and the probable evidence are reviewed in an attempt to settle the suit |
| evidence | presented in open court by means of examination of witnesses and the production of documents and other exhibits |
| leading questions | questions in which the desired answer is indicated by the form of the question |
| redirect examination | occurs after cross-examination, and the party calling the witness again has the opportunity to examine the witness |
| rules of evidence | in the conduct of a trial, these rules govern admissibility of testimony and exhibits and establish which facts may be presented to the jury |
| burden of proof | may describe the person with the burden of coming forward with evidence on a particular issue or it identifies the party with the burden of persuasion |
| burden of persuasion | the party with this burden must convince the trier (judge or jury) on the factual issues |
| 1) beyond a reasonable doubt 2) preponderance of evidence 3) clear and convincing proof | what are the three distinct levels of proof recognized by the law? |
| beyond a reasonable doubt | in criminal cases, means that the prosecution in a criminal case has the burden of convincing the trier of fact, usually a jury, that the defendant is guilty of the crime charged and that the jury has no reasonable doubt about guilt |
| preponderance of evidence | in civil cases, requires that a party convince the jury by a preponderance of evidence that the facts are as contended |
| clear and convincing proof | used in certain civil situations in which the law requires more than a simple preponderance of evidence but less than proof beyond a reasonable doubt |
| questions of law | after the judgment is entered, the losing party starts the procedure of post-trial motions, which raise ________________ concerning the conduct of the lawsuit |
| motion seeking a new trial | may be granted if the judge feels that the verdict of the jury is contrary to the manifest weight of the evidence |
| motion for a judgment notwithstanding the verdict | may be granted if the judge finds that the verdict is, as a matter of law, erroneous; the court must find that reasonable people viewing the evidence could not reach the verdict returned |
| appeal by right | the first level of an appeal; the appellate court MUST grant a hearing and hear the case |
| discretionary appeal | beyond the first level of appeal; an appellate court HAS AN OPTION as to whether to take the case |
| notice of appeal | must be filed within a statutory time period (usually thirty days) after the trial court has entered a final judgment or order. failure to file the notice of appeal on time denies the appellate court jurisdiction |
| transcript | consists of a record of the testimony; a copy of the judgment, decree, or order appealed from; and other papers required by rules of the court |
| brief | filed by the appellant court; contains a statement of the case, a list of the assignment of errors on which the appellant has based the appeal, and the appellant’s legal authorities and argument |
| affirm; reverse; remand | The court, by its decision, may ______ or _______ the court below, or the court may ______ (send back) the case for a new trial |
| appellant; appellee | cases on appeal are usually titled in the name of the _________ versus the ________ (respondent) |
| summons | jurisdiction over the defendant is usually obtained by the service of a _______ |
| newspaper | in some cases, jurisdiction may be obtained by publishing a notice in the _________; may be served beyond the borders of the state if the state has a long-arm statute |
| minimum contact | plaintiff may file a lawsuit in a state without _______________ since plaintiff is voluntarily submitting to the jurisdiction of the court |
| motions attacking pleadings | the deciding factor in many cases; the law requires certain minimal allegations; and if each of these allegations is not present, a court may dismiss the complaint |
| bankruptcy; illegality | motions may also be filed during the pleading stage that raise technical matters such as __________, __________, or other matters that would indicate that a trial was unnecessary |
| 1) depositions 2) the furnishing of copies of documents and photographs 3) serving interrogatories 4) completing compulsory physical examinations | what are some of the techniques that parties use in court to discover facts known by the other |
| pleading | if it appears that there is no material fact in dispute during the ________ stage, then there is no need for a trial |
| pleadings | the court will decide the questions of law raised by the _________ and other documents on file; may also be a summary judgement |
| judgement | based on the verdict; the final decision of the court |
| post-trial motion | filed when the losing party seeks either a new trial or a judgment in its favor notwithstanding the verdict; it is from this ruling that the losing party appeals |
| law | the issues before the reviewing court are essentially questions of ___, and great respect is given the findings of fact at the trial level |
Created by:
Kendall Posey
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