Glossary of California Civil Litigation
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- Part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to "discover" pertinent facts. Generally discovery devices include depositions, interogatories, requests for admissions, document production requests and requests for inspection.
- Deposition--a proceeding in which a witness or party is asked to answer questions orally under oath before a court reporter.
- Interrogatories--written questions sent by one party to the other party for the latter to answer in writing under oath.
- Request for admission
- Request for admission--a request to a party that he admit certain facts. One party sends the other a request for admission so that basic issues the parties agree upon can be resolved and not have to be proven if the parties go to trial.
- Request for physical examination
- Request for physical examination--a request to a party that he be examined by a doctor if his health is at issue.
- Request for production of documents
- Request for production of documents--a request to a party to hand over certain defined documents. In family law cases, parties often request from each other bank statements, pay stubs and other documents showing earnings, assets and debts.
- Request for inspection
- Request for inspection--a request by a party to look at tangible items (other than writings) in the possession or control of the other party. Items to be inspected include houses, cars, appliances and virtually any other physical item.
- Subpoena--an order telling a witness to appear in court or at a deposition. A subpoena is issued by the court, and if the witness fails to comply, he can be held in contempt of court.
- Subpoena duces tecum
- Subpoena duces tecum--an order telling a witness to turn over certain documents to a specific party or to bring them to a scheduled deposition. A subpoena duces tecum is issued by the court, and if the witness fails to comply, he can be held in contempt.
- Is there a limitation on the scope of discovery?
- The scope of information obtainable through discovery is quite broad and not limited to what can be used in a trial. Federal courts and most state courts allow a party to discover any information 'reasonably calculated to lead to the discovery of admissible evidence.' Because of this broad standard, parties often disagree about what information must be exchanged and what may be kept confidential. These disputes are resolved through court rulings on discovery motions.
- What is a MOTION?
- A motion is a written request to the court. When a party asks the court to take some kind of action in the course of litigation, other than resolving the entire case in a trial, the request is made in the form of a motion. Motions are often made before trials to resolve procedural and preliminary issues, and may be made after trials to enforce or modify judgments. Normally, one side submits a motion, the other side submits a written response, and the court holds a hearing at which the parties give brief oral arguments. (Some motions are considered only on the basis of the writings.) Then the court approves or denies the motion.
- What is summary judgment and/or summary adjudication?
- Motions may also be made to resolve legal issues in the case if there is no disagreement about the facts. Usually called a motion for summary judgment or a motion for summary adjudication of the issues, these motions can resolve all or most of the issues in a case without the need for a trial.
- MOTION FOR SUMMARY JUDGMENT
- MOTION FOR SUMMARY JUDGMENT - A request made by the defendant in a civil case. Asserts that the plaintiff has raised no genuine issue to be tried and asks the judge to rule in favor of the defense. Typically made before the trial.
- SUBJECT-MATTER JURISDICTION
- The authority of a court to decide a particular type of case is called subject- matter jurisdiction and is set by the federal or state Constitution, or by state statutes.
- Procedure - the rules and principles that govern the behavior of courts and lawyers in dealing with disputes that turn into lawsuits
- IN PERSONAM
- PERSONAL JURISDICTION - If the court is being asked to determine any defendant's rights or obligations, it must have the power to make orders concerning the individual defendant. This is called personal jurisdiction. Personal jurisdiction is also called "in personam jurisdiction."
- IN REM JURISDICTION
- Rem is Latin for 'thing.' When a court exercises in rem jurisdiction, it exercises authority over a thing, rather than a person. For example, if a divorcing couple asks a court to supervise the sale of their family home, the court exercises in rem jurisdiction over the house. Usually, the property must be located in the same county as the court for it to have in rem jurisdiction.
- STARE DECISIS
- STARE DECISIS - Lat. "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts.
- NEGLIGENCE - The failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community.
- DISMISSAL WITHOUT PREJUDICE
- DISMISSAL WITHOUT PREJUDICE - When a case is dismissed but the plaintiff is allowed to bring a new suit on the same claim.
- ACTUAL DAMAGES
- Actual Damages - are real damages to compensate for loss or injuries that have actually occurred. This is in contrast to "nominal" damages (a small amount paid where there is no real loss) or "punitive" damages (intended to punish the party who must pay damages).
- DISMISSAL WITH PREJUDICE
- DISMISSAL WITH PREJUDICE - When a case is dismissed for good reason and the plaintiff is barred from bringing an action on the same claim.
- PLAINTIFF - The person who initiates a lawsuit. The person who initiates a lawsuit by filing a complaint is called the plaintiff. When the document that initiates a lawsuit is called a petition rather than a complaint, the initiating person is usually referred to as the petitioner rather than the plaintiff.
- Sources of Law
Where do you find the law applicable to the matter you are handling?
- There are three sources of law you must consult
- court cases
- Where are all statutes enacted by Congress found?
- are laws enacted by congress are found in the United States Code (USC)
- Where will you find the primary statutes and rules for California?
- - the Code of Civil Procedure (CCP)
- the Civil Code (CC)
- the California Rules of Court
- local court rules
- What are Cases?
- Cases are decisions of the court interpreting the law. Once a decision is made, the court will generally write an opinion.
- What is Common Law?
- Body of law developed in England from custom and usage
- Document filed by an aggrieved part to commence litigation.
- Notice accompanying the complaint that commands the defendant to appear and defend against the action within a certain period of time.
- Resolution of disputes through the court system
- Civil Litigation
- Resolution of disputes between private parties through the court system
- How is the California court system structured?
- California Supreme Court
Courts of Appeal
- What are the differences between civil litigation and other types of litigation.
- - resolution of disputes between private parties, unlike criminal which is between the government and an individual
- How does a case move through the litigation process?
- 1. Aggrieved party files complaint and summons(Plaintiff)
2. The person who the complaint is filed against (defendant) files a response
- Failure of a party to respond to the pleading of the opposing party
- What types of remedies can an aggrieved party seek from the court
- - legal remedy (money) damages - this can be compensatory damages or punitive damages
- equitable remedy - two most common is an injunction or declaratory relief.
- Compensatory damages
- compensatory damages may be general (i.e., compensation for pain and suffering)or specific (i.e., payment for medical expenses or loss of income)
- Punitive damages
- Punitive damages are meant to "punish" the wrongdoer for his or her conduct. Can be awarded in addition to compensatory damages.
- Equitable remedy
- Relief requested from defendant that is usually designed to prevent some future harm.
- declaratory relief
- Declaratory relief
- declaratory relief - is used when a controversy arises over the rights and obligations of the parties and neither party has lived up to those obligations.
- injunction - used to stop certain conduct or actions.
- What ethical rules must be followed by paralegals. What are the goals of these rules?
- - Keep all client communication confidential
- Avoid all conflicts of interest
- Do not communicate directly with an adverse party who is represented by counsel
- Always identify yourself as a paralegal
- Never give legal advice
The goal is to protect the attorney/client privilege.
- What are the four stages of the litigation process
- 1. information gathering
3. discovery and motions
4. trial and post-trial proceedings.
- What does Privileged mean?
- Rules providing that certain communications are inadmissible because the communications are deemed confidential.
- Conflict of interest
- When two or more parties with adverse interests are represented by the same counsel.
- Once a litigation matter is appealed, what are four types of decisions that an appellate court may make?
affirm with modification
reverse and remand
- A decision is affirmed if the appeal court rules the same way as the trial court.
- affirm with modification
- When a decision is affirmed but there is some element that needs modifying. e.g., court agrees plaintiff should get back their property but does not agree that back rent owed should be $1000 and modifies it to $50 instead.
- If the appellate court disagrees with the trial court it will reverse the decision.
- reverse and remand
- If appellate court is not certain of the decision based on the records before it, it will state an opinion on how it would rule, then reverse and remand (send it back) to the trial court for a decision in accordance to the opinion expressed by the appellate court.
- What is the structure of the federal court system?
- 1. US Supreme Court - (Court of Final Appeals)
2. US Court of Appeals and the
US Court of Appeals for the Federal Circuit.
3. US Tax Court
US District Courts
US Court of International Trade
US Claims Court
- A response by the defendant to the plaintiff's complaint, which response admits or denies the various allegations and usually asserts a number of affirmative defenses.
- Abstract of judgment
- A lien on all real property owned by the debtor.
File with the County recorder
No right of foreclosure
Subject to extinguishment if superior lienholder (like a bank) forecloses and takes all the equity.
10 year duration
- Notice of Lien of Judgement
- Lien on personal property of debtor
5 years duration
- Writ of Execution
- CCP 669.510
Order of the court empowering law enforcement to levy assets again Judgment Debtor
- What are the different ways a writ of execution can be carried out?
- 1. Till Tap
3. Bank Levy
4. Wage Garnishment
- What is a Till Tap?
- Collection of cash and checks on hand at a business in order to satisfy a judgment
- What is a Keeper?
- A law enforcement agent who stays on the premises of a business and collects cash or checks sufficient to satisfy a judgment. If insufficient funds exists, the keeper may also take possession of personal property and set the property in order to satisfy the judgment.
- What is a Bank Levy?
- A siezure of funds held in the debtor's bank account.
- What are the different ways that judgments can be enforced?
- Send a demand letter
Abstract of Judgment
Notice of Judgment Lien
Writs of Execution
- Wage Garnishment
- A direction to an employer of a debtor to withhold a certain amount of money from each paycheck for a limited time and pay to the debtor's judgment creditors.
- Where would you locate a debtor's assets?
- Check with client for information
propound post-judgment interrogatories
conduct a debtor's exam
- What is an advantage of arbitration?
- Arbitration can provide a faster and less expensive alternative to procedding in court.
- What are the differences between judicial and non-judicial arbitration?
- Judicial arbitration refers to arbitration handled by the court system and the amount in controversy is less than $50K - decision is non-binding.
- Is the parties' submission of their dispute to an impartial tribunal for resolution by one or more arbitrators.
- A meeting between the parties and a neutral person with the intent to arrive at a settlement
- What is a Demand for arbitration?
- The form that a party files to commence arbitration through the AAA (American Arbitration Association)
- Arbitration award
- The ruling arising from arbitration
- Trial de novo
- New trial if not satisfied with arbitration.
If not favorable could end up paying other sides costs.
- Trial preparation - what is the paralegal's role
- to organize all the data that has been collected throughout the course of the litigation and ensuring that the data are readily available during the trial.
- Pretrial Order or Joint Trial Memorandum
- The pretrial order is a guide for the trial. It identifies issues, witnesses, exhibits, and order of proof.
The pretrial order must be complete, since no deviations are allowed from the pretrail order at trial. Supercedes any pleadings.
- What is the difference between litigation and trial?
- The trial is a phase of litigation. Trial is the culmination of the litigation process. Litigation is the process used to prepare for trial.
- Settlements just before trial are influenced by what?
- Settlements are generally influenced by the parties' perceptio of ow they will do at trial.
- Pretrial Conference
- Is a meeting held before trial between the attorneys and the judge. The purpose is to identify the issues in dispute and the evidence that will be presented.
- File organization during litigation
- All files should be organized, divided and indexed to provide immediate access to the contents at any time during trial.
- Name some common file categories
- Court papers: to include Pleadings etc..
Evidence: Bills,correspondence between parties, receipts, maps, diagrams, photos, business records.
Attorney's records - attorneys activities log, retainer contract, bills and costs, correspondence, legal research, misc.
- There are two common methods of organization of documentation for trial what are they?
- 1. Divider method
2. Trial Notebook method
- How could a trial notebook be tabbed/divided?
Jury selection - chart
Charts - witness list, exhibit chart, trial chart
Direct examinations (your case-in-chief)
Cross-examinations (opponent's case)
- What is the Theory of the Case
- The theory of the case is the lawyers position on, and approach to all the undisputed and disputed evidence that will be presented at trial
- Jury Chart
- A diagram to be used during voir dire examination of the jury.
- Demonstrative evidence
- Exhibits that represent real things - e.g. charts, models, and diagrams
- Opening Statements
- Statements made by lawyers at the beginning of the trial to explain their client's version of the facts and the evidence they expect to prove.
- Rebuttal Evidence
- Evidence refuting the evidence presented by the defendant as part of the defendant's case in chief.
- Evidence presented by the defendant that explains or denies the rebuttal evidence
- Voir dire
- Voir dire refers to the method used to learn about the prospective jurors. The judge and lawyers ask specific questions to learn more information about the juror.
- Peremptory challenge
- Peremptory challenge allows a lawyer to strike a juror from the panel without having a stated reason.
- For cause
- When a juror is stricken from the jury because of a particular reason i.e. bias, racist etc...
- Procedural Events leading up to trial (Federal)
ENE - Early Neutral Evaluation:
- Local Rule 16.1
ENE - Early Neutral Evaluation: Introduces court to the case, review claims/defenses, explore settlement opportunities
Court may refer to: non - b arbitration or schedule a case management conference.
45 days after answer filed or sooner
- Procedural Events leading up to trial (Federal)Case Management Conference
- 30 days after ENE or 60 days after ene if arbitration was ordered. Review nature of case, discovery, motion practice, complexity of trial
Set dates for discovery cut-off, pre-trial motions, expert exchanges, mandatory settlement conference (unless deemed not useful) and date for pre-trial conference
- Procedural Events leading up to trial (Federal) -
- Both parties file Pre-Trial Memorandum of Contentions of Fact and Law w/ witness and Exhibit lists
- Procedural Events leading up to trial (Federal)- Pre Trial CF Order
- Plaintiff prepares initial draft, but final version is responsibility of both parties.
Nature of the case
Issues of Fact
Issues of Law
Exhibit Lists (with objections)
Supercedes pleadings and governs the scope of the trial
- Stages of Trial
- Motions in Limine
Jury selection - voir dire
Plaintiff rebuttal case
- Post-Trial Motions
- JNOV - Judge not withstanding the verdict
New Trial - motion for new trial
REmittitur - reducing damages or judgment
- Procedural events leading upto trial (STATE) - Case Management Conference
- SD Sup Ct Rule 2.1.7
150 days after complaint filed
determine status of the case and if ADR would be appropriate
all parties to file case management statement
- Procedural events leading upto trial (STATE) - Trial Readiness Conference
- 4 weeks before trial
parties to meet before in effort to settle or narrow issues
- Procedural events leading upto trial (STATE) - Joint Trial Readiness Conference Report
- should be jointly prepared
nature of case
law at issue
law not at issue
jury instructions requested.
- Notice of appeal
- The losing party in the trial court may file an appeal by filing a Notice of Appeal
60 days after entry of judgment
- Party appealing
- Party defending appeal.
In federal court referred to as 'appellee'
- Record on appeal
- The transcript and any documents and exhibits filed in trial court, which are submitted to the appellate for review. Appellant has 10 to order transcript of trial and designate record for appeal.
- Written briefs
- Opening brief of Appellant
Brief of Respondent
Reply brief of Appellant
Contents as required by CRC 13-15
- Standard of review
- Determines how an appellate court should look at the issues in deciding an appeal.
- Prejudicial errors
- Errors that occur in the trial that, if such errors had not occurred, might have changed the outcome of the trial.
- California Rules of Court
- Rules adopted by the courts on a statewide basis
- Code of Civil Procedure
- The procedural rules governing litigation filed in California
- Stages of Formal Litigation
- Legal (compensatory damages, punitive damages)
Equitable (Injunction; Declaratory Relief)
- Role of paralegal
- As defined in Business & Professions Code 6450 et seq.
- Ethical rules applicable to Paralegals
Conflicts of Interest
No direct communication to a party represented by counsel
Cannot practice law or give legal advice
- Article III judges versus non article III judges
- Lifetime tenure
- Sources of Law
- Substance: Constitutions; statutes; common law
Concept of Stare Decisis
Procedure: Federal Rules of Civil Procedure; Cal Code of Civil Procedure; Cal Rules of Court, Cal Civil Code, Local Rules
- Duties and Obligations of an attorney
Conflict of Interest
- Due Dates: Complaint, Amended Complaint or Cross-Complaint
- Service of Complaint is due within 60 days of date complaint filed
- Due Dates: Answer to complaint
- Answer to complaint must be filed within 30 days of the date the complaint was served.
- Demurrer to Complaint
- Demurrer to Complaint must be filed and served within 30 days of the date the complaint was served.
- Due Dates: Motion to strike who or part of the complaint
- motion to strike must be filed and served within 30 days of the date the complaint was served
- Due Dates: Answer to complaint after demurrer
- Answer to complaint after demurrer must be filed and served within 10 days after ruling on the Demurrer to complaint
- Due Dates: Demurrer to Answer
- Demurrer to Answer must be filed and served within 10 days after Answer was served
- Due Dates: Interrogatories
- Service of response due within 30 days after service of interrogatories.
Service of motion to compel further responses due within 45 days of service of inadequate responses, unless later date agreed in writing.
- Due Dates: Request for Production/Inspection of Documents
- Service of response due within 30 days after service of demand.
Service of motion to compel further responses due within 45 days of service of inadequate responses, unless later date agreed in writing.
- CCP Section 128.7(b)
- Provides that by presenting to the court any pleading or similar paper, the attorney is certifying, that after inquiry reasonable under the circumstances," the document is not being presented for an improper or frivolous purpose.
- Advantages of discovery
- information is power
information obtained earlier on is more likely to be accurate and complete.
3. information sought before the action is formalized is more likely to be given freely.
4. information obtained before the suit is filed is less expensive to acquire.
5. you can obtain information informally without the opposing party participating or even being aware you are conducting an investigation.
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