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PS 317 > First Test > Flashcards

First Test Flashcards

1
Q

Much of modern US law is based on what?

A

English Law

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2
Q

Common law is related to what?

A

Principles of precedent and stare decisis

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3
Q

A statute is passed by who?

A

A legislative body (normally congress)

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4
Q

Substantive law

A

states the rights and duties of individuals

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5
Q

The law of equity deals with what?

A

Fairness

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6
Q

What establishes the process that people who bring or defend a lawsuit must follow?

A

Rules of procedure

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7
Q

What type of case involves the state bringing an action against an individual to determine if he has violated a law?

A

Criminal case

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8
Q

What type of case involves the plaintiff bringing a lawsuit against the defendant, normally for money?

A

Civil Case

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9
Q

T or F: States can make laws that conflict with federal laws as long as it has enough support behind it

A

False

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10
Q

Powers of congress come from which part of the Constitution?

A

Article 1 Section 8

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11
Q

Name 7 things Congress can do

A
  • Collect taxes
  • Regulate commerce between foreign nations
  • Establish rules for naturalization and bankruptcy
  • Establish post offices
  • Declare war
  • Raise and support the military
  • Make laws necessary to carry out the powers granted
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12
Q

Under the Proper and Necessary Clause, the powers of congress are what?

A

Extensive

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13
Q

The powers of state governments are limited by what?

A

The doctrine of preemption

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14
Q

The doctrine of preemption makes the federal government the exclusive in what areas?

A
  • Entering treaties
  • Coining money
  • Passing ex post facto laws
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15
Q

What areas are commonly regulated by states?

A

Criminal conduct, contracts, torts, business corporations

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16
Q

The power of the government to regulate is called what?

A

Jurisdiction

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17
Q

If power belongs solely to one level o government, it is called what?

A

Exclusive Jurisdiction

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18
Q

Article VI (6) of the Constitution is known as what?

A

The Supremacy Clause

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19
Q

What are the supreme laws of the land?

A

The Constitution and anything passed by Congress

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20
Q

In federal cases, a criminal’s rights are contained in which amendments?

A

4th, 5th, 6th, and 8th

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21
Q

In state cases, a criminal’s rights are contained in which amendments?

A

14th

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22
Q

What set the minimum standard of due process?

A

The Constitution

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23
Q

Primary function of the executive branch?

A

Execution and enforcement of the laws

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24
Q

Primary function of the legislative branch?

A

Create laws

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25
Q

Primary function of the judicial branch?

A

Apply and interpret laws

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26
Q

What is a Cause of Action?

A

The basis upon which a lawsuit can be brought

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27
Q

Before a court can resolve a dispute, the court must have what?

A

Basic authority (jurisdiction) to hear the case

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28
Q

What is original jurisdiction?

A

the power to first hear a case

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29
Q

What is Subject matter jurisdiction?

A

Determining whether a case belongs to a particular court

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30
Q

True of false: Federal courts have limited subject matter jurisdiction

A

True (they can only hear cases that involve federal questions)

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31
Q

What is federal question jurisdiction?

A

The power for a federal court to hear a case when the US is a party involved

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32
Q

When can federal question jurisdiction be based on diversity of citizenship?

A

When the plaintiff and the defendant are citizens of different states and the amount in controversy EXCEEDS $75,000

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33
Q

What is in personam?

A

The court having jurisdiction over the defendant

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34
Q

What is in rem jurisdiction?

A

The court having jurisdiction over property

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35
Q

What 2 tests does the exercise of personal jurisdiction require?

A

Fairness and Due Process

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36
Q

What are long-arm statutes?

A

State laws about non-residents being sued in their state

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37
Q

What makes federal law enforceable in state courts?

A

The Supremacy Clause

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38
Q

What two situations give the federal courts power to decide state issues?

A
  • Plaintiff claims difference between federal and state laws

- The federal court claims supplemental jurisdiction

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39
Q

What is supplemental jurisdiction?

A

The power of the federal court to hear an issue that belongs in state court, assuming it deals with a federal question

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40
Q

What is general subject matter jurisdiction?

A

The ability for state courts to hear any case unless there is a specific law preventing it (EX; Traffic court hearing tax case)

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41
Q

A civil action may originate where?

A
  • The judicial district where the defendant resides

- Where the cause of action arose

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42
Q

True or False: Lack of proper venue negates the verdict of the court

A

False

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43
Q

True or False: If a defendant does not object to improper venue, he waives the right to object to the judgement

A

True

44
Q

What is removal?

A

When the plaintiff chooses to sue in a state court instead of a federal court, the defendant has the action to ask the nearest federal court to take the case

45
Q

Before both parties appear in court, they must file what?

A

Pleadings

46
Q

What is “the complaint” pleading?

A

The formal basis of the lawsuit

47
Q

What is notice pleading?

A

The requirement of the plaintiff to put the defendant on notice as to why he is being used

48
Q

What is code pleading?

A

A requirement in some states that make the plaintiff include factual allegation in the complaint that satisfy each element of the cause of action

49
Q

What is a counter-claim?

A

A claim that the defendant asserts against the plaintiff

50
Q

What is a cross-claim?

A

A claim that one defendant has over another defendant (EX: crashing mom’s car)

51
Q

What is a third party action (impleader)?

A

A claim that a defendant has against a new party

52
Q

A complaint consists of what various parts?

A
  • The caption
  • The allegations
  • The prayer
  • The date, address, telephone number, and signature of plaintiff’s attorney
53
Q

What is a summons?

A

A form issued by the clerk court explaining to the defendant why he has been sued. He has a limited amount of time to appear or a default will be taken against him

54
Q

What is the service of process?

A

The process of giving the defendant a copy of the plaintiff’s pleadings

55
Q

What does it mean to serve?

A

To deliver documents to another party in accordance with legal requirements

56
Q

What does personal service mean?

A

The documents are delivered to the defendant personally

57
Q

What does substituted service mean?

A

Leaving the documents at the defendant’s home/workplace with someone who appears over 18

58
Q

What is publication and what does it require?

A

Publishing the summons and other documents instead of them being given privately to the plaintiff. It requires a court order before publication

59
Q

What is a waiver?

A

An informal service on the defendant with the defendant returning a document that states he waives formal service

60
Q

True or false: Plaintiffs can serve documents themselves

A

False

61
Q

Who can serve papers?

A

Any person over 18 who is not a party to the lawsuit

62
Q

What is proof of service?

A

A document filled out by the person who served the papers

63
Q

What is the answer?

A

A pleading in which the defendant denies some or all of the allegations of the complaint

64
Q

If the defendant decides to contest a lawsuit, what does he file?

A

An answer

65
Q

What are affirmative defenses?

A

Where the defendant may admit the allegations are true, but there are reasons why the plaintiff should not win

66
Q

What are the 2 types of answers?

A

General Denial- a simple pleading that denies each allegation in the complaint
Specific Denial- Various allegations of the complaint are addressed by number

67
Q

To challenge a complaint based on a legal claim, a party files what?

A

A motion

68
Q

What are the common motions used to attack complaints?

A

Motions to Dismiss
Motions for judgement on the pleadings
Motions for a more definitive statement

69
Q

What is a demurrer?

A

Something that indicates that the complaint fails to state a cause or action is legally insufficient

70
Q

When deciding pretrial motions, which party is the moving party?

A

The party making the motion; the other side is the responding party

71
Q

What is discovery?

A

Parties doing more research about the specifics of claims made before the trial

72
Q

What are interrogatories?

A

Means of discovery; written questions sent by one party to another that must be answered under oath

73
Q

What are requests for admission?

A

Means of discovery; written requests by one party to another to admit or deny the truth of a statement/genuineness of a document

74
Q

What are requests to produce or inspect?

A

Means of discovery; allows one side to see and copy documents in possession of others

75
Q

What are depositions?

A

Means of discovery; oral proceeding in which one side personally questions another party or witness in a case

76
Q

Which is the only means of discovery that can be used with people who are not parties to the lawsuit?

A

Depositions

77
Q

What are “defense medicals?”

A

Means of discovery; requests for medical examinations

78
Q

What are disclosures?

A

Means of discovery; requires parties to disclose certain basic info to one another (ID people called to be expert witnesses)

79
Q

What is a status conference?

A

A pre-trial conference which determines if a case is ready for trial. If it is, it is assigned a trial date

80
Q

What is a settlement conference?

A

A pre-trial conference where the attorneys meet with the judge to try and reach a settlement

81
Q

What does it mean for parties enter a compromise and release agreement?

A

The agreement ends the case, which is then dismissed by the court with prejudice so it cannot be refiled

82
Q

True or false: in a criminal trial, the defendant may move to suppress evidence

A

True

83
Q

What is summary judgement?

A

A request for the judge to decide a case solely on legal issues. Can only be filed when facts are not in dispute. If it is granted, there is no trial

84
Q

What is a legal brief?

A

A written document that contains a summary of the facts, issues, rules, legal analysis, and a comparison with the facts of a client

85
Q

True or false: Selected jurors are not allowed to be questioned by attorneys before the trial

A

False

86
Q

What is voir dire?

A

The process of questioning jurors

87
Q

What are peremptory challenges?

A

The limited number of challenges each side has to excuse individuals without stating a reason

88
Q

Who gives their opening statement first?

A

The plaintiff

89
Q

Who presents their evidence first?

A

The plaintiff

90
Q

What is direct examination?

A

When a witness is called to the stand and questioned by the plaintiff’s attorney

91
Q

After direct examination, the defendant’s attorney may cross-examine the witness. What is this followed by and how long may it go on?

A

More direct examination, more cross-examination; until all questions are exhausted

92
Q

An attorney may call witnesses until he proves prima facie. What is this?

A

When an attorney proves the essential elements of the party’s claim

93
Q

Once the plaintiff’s attorney rests his case, the defendant’s attorney may move for directed verdict. What is this?

A

A statement saying that the plaintiff has failed to prove his case

94
Q

If the motion for directed verdict is granted, the case is withdrawn from the jury and the judge decides. What happens is the motion is denied?

A

He presents his case and then calls witnesses for cross-examination, redirect, and recross

95
Q

After the defendant rests, the plaintiff may move for directed verdict. If the motion is denied, what may the plaintiff offer?

A

Rebuttal evidence

96
Q

The defendant can offer his own rebuttal evidence, called what?

A

Rejoinder

97
Q

At the end of all evidence, each party may move for a directed verdict. If it is denied, the parties proceed with what?

A

Closing arguments

98
Q

After closing arguments, the judge charges the jury. What does this mean?

A

He offers them instructions that explain applicable law along with the standards of proof that the jurors must use

99
Q

What does the jury do after they are charged?

A

Go to the jury room to deliberate and discuss the evidence heard

100
Q

What is a general verdict?

A

A jury indication on whether they side with the plaintiff or the defendant

101
Q

What is a special verdict?

A

When the judge submits specific written questions to the jury on each factual issue and asks them to respond in writing

102
Q

After the jury has rendered its verdict, the unsuccessful party may request what?

A

Judgement Notwithstanding the Verdict- asking the court to disregard the jury verdict in favor of the losing party

103
Q

A dissatisfied party may also move for what?

A

A new trial

104
Q

True or false: After the jury’s verdict, the court enters judgement. Judgement does not have the government behind it

A

False; it has complete government backing

105
Q

What happens if a plaintiff wins money damages and a defendant refuses to pay?

A

The court can seize the defendant’s property and/or jail them

PS 317 (5 decks)

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