LEB 320F Unit 1-10 Exam with correct Answers
What are the two most common forms of Alternative Dispute Resolution? - Answer -
Arbitration and Mediation.
What is the Adversarial system of law? Where did we get it? What cases is it applied to? - Answer -Applied to criminal and civil cases, derived from english law, refers to the amount of control that the parties and their attorneys have over the procedure. Parties research the law and develop the facts, decide which issues are going to be presented, which legal arguments are going to be made, what evidence should be gathered and presented, and how the evidence is to be introduced in court without input from the trial judge
What role does a trial judge play in an adversarial system? How much control does a trial judge have over proceedings? - Answer -Trial judge takes no action unless a party specifically requests it - even if a party presents evidence illegally the trial judge will not act unless the other party objects. Trial judges may sometimes ask questions of witnesses if they believe that an attorney's questioning is not eliciting certain important testimony. Can "comment on the weight of the evidence"—make comments to the jury about the strength of particular testimony or other evidence. If the court is backed up trial judges will take a greater degree of control
What is the Inquisitorial System of law? - Answer -Trial judge decides which issues will be addressed, although the parties provide input. Judges are usually in charge of the investigation and gathering of evidence. Rather than a single trial there are several small trials between which investigation occurs. Citizen juries are not used
Adversarial system vs Inquisitorial system - Answer -The adversarial system shifts more
of the cost to the private sector, whereas the inquisitorial system places more of the cost in the public sector
What are the stages of pretrial? - Answer -pleading, motion to dismiss/answer, reply, discovery
What occurs in the pleading stage? - Answer -Plaintiff's attorney files a complaint to the court with jurisdiction asking the court to file a summons. Ends with a prayer (request) for a remedy based on the facts listed. If a plaintiff wants an injunction it is listed here. What is a Motion to dismiss? What are the next steps if it is granted? - Answer -
defendant asserts that the plaintiff has not even stated a "cause of action"—that is, that even if the plaintiffs allegations are true, the law does not recognize such a claim
The plaintiff can begin such an appeal immediately if the trial court grants the motion to dismiss, but if the trial judge denies the motion to dismiss, the defendant must wait until the case ends at the trial level before appealing
How detailed must a claim be to survive a motion to dismiss? - Answer -Under Twombly
and Iqbal, all that is required for a judge to dismiss for failure to state a claim is that a complaint would allow for a "savvy trial judge" to find the alleged facts improbable and that the plaintiff's chance of ultimately winning is highly unlikely.
Ashcroft v. Iqbal - premise - Answer -Pakistani Muslim, Javaid Iqbal, claims he was unfairly detained and subject to harsh conditions on account of his race, religion, and/or national origin. Iqbal was of high interest in the investigations following the September 11th attacks and was detained in maximum security. He pleaded guilty to his charges and was removed to Pakistan. He then filed a Bivens in the US district court against 34 current and former federal officials and 19 "John Doe" federal corrections officers
Ashcroft v. Iqbal - outcome - Answer -alters common law practices for motion to dismiss
What must an answer to a claim contain? - Answer -A denial
How soon after a claim is filed must a defendant answer? - Answer -20 days
What is a general denial? When can a general denial not be used? - Answer -denies all the plaintiff's allegations together. Some courts require the defendant to deny all allegations individually.
What is a counterclaim? - Answer -a claim against the plaintiff that will allow him/her to collect money or damages if proved true
What is a compulsory counterclaim? - Answer -arises from the same set of circumstances that led to the plaintiff's claim. Must be brought in the same case as the claim; it cannot be brought as a second suit after a case is tried
What is a reply? - Answer -If the defendant raises new matter—additional facts— in the answer, the plaintiff must file a reply. The plaintiff either denies or admits these new facts
By what law was the pretrial discovery stage established? - Answer -Federal Rules of Civil Procedure were adopted in 1938
what are discovery proceedings? - Answer -much of the evidence that each party is going to rely on in proving their version of the facts is fully disclosed to the other party before the case comes to trial What are the three tools of discovery proceedings? - Answer -depositions, interrogatories, and demand for documents
What is a deposition? What are the conditions of a deposition? - Answer -The testimony
of a witness that is taken outside of court. Both parties to the case must be notified so that they can be present when the testimony is given and thus have the opportunity to cross-examine the witness
What is an interrogatory? Why is it used? - Answer -written questions submitted by one party to the other, which must be answered under oath. Primary way by which the questioning party may gain access to evidence that otherwise would be solely in the possession of his or her adversary.
What is a demand for documents? - Answer -gain access to those kinds of evidence—
such as business records, letters, and hospital bills—that are in the possession of the other party
What is electronic discovery? What is a drawback of this? - Answer -demanding electronic documents. Very expensive; can be used as a weapon.
How is cost of electronic discovery combated? - Answer -The Federal Rules of Civil Procedure grant courts the discretion to allocate costs of electronic discovery in such a way as to preserve fairness. Must go through a seven factor analysis before doing an electronic discovery
Which amendment grants the right to a trial by jury? - Answer -Seven for civil cases, six for federal criminal cases
What happens if neither party requests a jury? - Answer -the trial judge performs the fact-finding role in addition to the judicial function
How many jurors are on a panel? - Answer -8-12
what is the voir dire examination? - Answer -preliminary questioning of each juror by the
plaintiff's and defendant's attorneys, by a judge, or by all three, to ensure that they are as impartial as possible
What is a challenge for a cause? - Answer -If questioning indicates that a particular person probably would not be capable of making an impartial decision an attorney makes a challenge for cause that dismisses the prospective juror from duty
What is a peremptory challenge? - Answer -Permit the attorney to have a prospective juror removed without giving any reason for doing so. Limited number. Cannot be done on basis of race. What is the direct examination? - Answer -examination of the witness
Is an attorney allowed to ask leading questions in a direct examination? - Answer -Only if they call an adverse witness (a witness from the opposing party)
What is the cross-examination? What are some common uses of a cross examination? -
Answer -The purpose of the cross-examination is to discredit or cast doubt on the witness's testimony.
Common uses: to uncover withheld pertinent facts or cast doubt on the witness's credibility
Is the attorney allowed to ask leading questions in the cross-examination? - Answer -
yes
What is a redirect examination? - Answer -examination to discuss any new info raised during the cross examination. Not always granted
Does the judge allow illegally obtained evidence? - Answer -Generally yes unless the opposing attorney objects or can convince the judge to order the other side not to present the evidence
What are non-permissible types of evidence? - Answer -hearsay, irrelevant evidence, opinion
What is hearsay? - Answer -a statement made by some person who is not testifying in court for the purpose of proving the truth of that statement is hearsay
What types of hearsay are admissible? - Answer -if it possesses a high level of reliability
it is admissible.
Ex. A business ledger presented in lieu of someone testifying about a business transaction
if it is second-hand info not presented for the purpose of proving the truth of a statement
ex. Party A calls party B "a liar and a cheat" in a defamation case. This is stated not to prove validity of the statement but to prove that party A actually made a statement
When is opinion allowed as evidence? - Answer -in cases where a professional is asked
to give their opinion on what may have happened when given a set of facts. Both attorneys must agree on a qualified witness
What is a Judgement as a Matter of Law (JMOL) AKA a Direct Verdict? - Answer -
Similar to a summary judgement but based more heavily on evidence; if reasonable minds could not differ on the factual question the judge should decide the case as a mater of law instead of sending it to a jury. Raises the question "is there a jury question in this case"?
What are the two most common forms of Alternative Dispute Resolution? - Answer -
Arbitration and Mediation.
What is the Adversarial system of law? Where did we get it? What cases is it applied to? - Answer -Applied to criminal and civil cases, derived from english law, refers to the amount of control that the parties and their attorneys have over the procedure. Parties research the law and develop the facts, decide which issues are going to be presented, which legal arguments are going to be made, what evidence should be gathered and presented, and how the evidence is to be introduced in court without input from the trial judge
What role does a trial judge play in an adversarial system? How much control does a trial judge have over proceedings? - Answer -Trial judge takes no action unless a party specifically requests it - even if a party presents evidence illegally the trial judge will not act unless the other party objects. Trial judges may sometimes ask questions of witnesses if they believe that an attorney's questioning is not eliciting certain important testimony. Can "comment on the weight of the evidence"—make comments to the jury about the strength of particular testimony or other evidence. If the court is backed up trial judges will take a greater degree of control
What is the Inquisitorial System of law? - Answer -Trial judge decides which issues will be addressed, although the parties provide input. Judges are usually in charge of the investigation and gathering of evidence. Rather than a single trial there are several small trials between which investigation occurs. Citizen juries are not used
Adversarial system vs Inquisitorial system - Answer -The adversarial system shifts more
of the cost to the private sector, whereas the inquisitorial system places more of the cost in the public sector
What are the stages of pretrial? - Answer -pleading, motion to dismiss/answer, reply, discovery
What occurs in the pleading stage? - Answer -Plaintiff's attorney files a complaint to the court with jurisdiction asking the court to file a summons. Ends with a prayer (request) for a remedy based on the facts listed. If a plaintiff wants an injunction it is listed here. What is a Motion to dismiss? What are the next steps if it is granted? - Answer -
defendant asserts that the plaintiff has not even stated a "cause of action"—that is, that even if the plaintiffs allegations are true, the law does not recognize such a claim
The plaintiff can begin such an appeal immediately if the trial court grants the motion to dismiss, but if the trial judge denies the motion to dismiss, the defendant must wait until the case ends at the trial level before appealing
How detailed must a claim be to survive a motion to dismiss? - Answer -Under Twombly
and Iqbal, all that is required for a judge to dismiss for failure to state a claim is that a complaint would allow for a "savvy trial judge" to find the alleged facts improbable and that the plaintiff's chance of ultimately winning is highly unlikely.
Ashcroft v. Iqbal - premise - Answer -Pakistani Muslim, Javaid Iqbal, claims he was unfairly detained and subject to harsh conditions on account of his race, religion, and/or national origin. Iqbal was of high interest in the investigations following the September 11th attacks and was detained in maximum security. He pleaded guilty to his charges and was removed to Pakistan. He then filed a Bivens in the US district court against 34 current and former federal officials and 19 "John Doe" federal corrections officers
Ashcroft v. Iqbal - outcome - Answer -alters common law practices for motion to dismiss
What must an answer to a claim contain? - Answer -A denial
How soon after a claim is filed must a defendant answer? - Answer -20 days
What is a general denial? When can a general denial not be used? - Answer -denies all the plaintiff's allegations together. Some courts require the defendant to deny all allegations individually.
What is a counterclaim? - Answer -a claim against the plaintiff that will allow him/her to collect money or damages if proved true
What is a compulsory counterclaim? - Answer -arises from the same set of circumstances that led to the plaintiff's claim. Must be brought in the same case as the claim; it cannot be brought as a second suit after a case is tried
What is a reply? - Answer -If the defendant raises new matter—additional facts— in the answer, the plaintiff must file a reply. The plaintiff either denies or admits these new facts
By what law was the pretrial discovery stage established? - Answer -Federal Rules of Civil Procedure were adopted in 1938
what are discovery proceedings? - Answer -much of the evidence that each party is going to rely on in proving their version of the facts is fully disclosed to the other party before the case comes to trial What are the three tools of discovery proceedings? - Answer -depositions, interrogatories, and demand for documents
What is a deposition? What are the conditions of a deposition? - Answer -The testimony
of a witness that is taken outside of court. Both parties to the case must be notified so that they can be present when the testimony is given and thus have the opportunity to cross-examine the witness
What is an interrogatory? Why is it used? - Answer -written questions submitted by one party to the other, which must be answered under oath. Primary way by which the questioning party may gain access to evidence that otherwise would be solely in the possession of his or her adversary.
What is a demand for documents? - Answer -gain access to those kinds of evidence—
such as business records, letters, and hospital bills—that are in the possession of the other party
What is electronic discovery? What is a drawback of this? - Answer -demanding electronic documents. Very expensive; can be used as a weapon.
How is cost of electronic discovery combated? - Answer -The Federal Rules of Civil Procedure grant courts the discretion to allocate costs of electronic discovery in such a way as to preserve fairness. Must go through a seven factor analysis before doing an electronic discovery
Which amendment grants the right to a trial by jury? - Answer -Seven for civil cases, six for federal criminal cases
What happens if neither party requests a jury? - Answer -the trial judge performs the fact-finding role in addition to the judicial function
How many jurors are on a panel? - Answer -8-12
what is the voir dire examination? - Answer -preliminary questioning of each juror by the
plaintiff's and defendant's attorneys, by a judge, or by all three, to ensure that they are as impartial as possible
What is a challenge for a cause? - Answer -If questioning indicates that a particular person probably would not be capable of making an impartial decision an attorney makes a challenge for cause that dismisses the prospective juror from duty
What is a peremptory challenge? - Answer -Permit the attorney to have a prospective juror removed without giving any reason for doing so. Limited number. Cannot be done on basis of race. What is the direct examination? - Answer -examination of the witness
Is an attorney allowed to ask leading questions in a direct examination? - Answer -Only if they call an adverse witness (a witness from the opposing party)
What is the cross-examination? What are some common uses of a cross examination? -
Answer -The purpose of the cross-examination is to discredit or cast doubt on the witness's testimony.
Common uses: to uncover withheld pertinent facts or cast doubt on the witness's credibility
Is the attorney allowed to ask leading questions in the cross-examination? - Answer -
yes
What is a redirect examination? - Answer -examination to discuss any new info raised during the cross examination. Not always granted
Does the judge allow illegally obtained evidence? - Answer -Generally yes unless the opposing attorney objects or can convince the judge to order the other side not to present the evidence
What are non-permissible types of evidence? - Answer -hearsay, irrelevant evidence, opinion
What is hearsay? - Answer -a statement made by some person who is not testifying in court for the purpose of proving the truth of that statement is hearsay
What types of hearsay are admissible? - Answer -if it possesses a high level of reliability
it is admissible.
Ex. A business ledger presented in lieu of someone testifying about a business transaction
if it is second-hand info not presented for the purpose of proving the truth of a statement
ex. Party A calls party B "a liar and a cheat" in a defamation case. This is stated not to prove validity of the statement but to prove that party A actually made a statement
When is opinion allowed as evidence? - Answer -in cases where a professional is asked
to give their opinion on what may have happened when given a set of facts. Both attorneys must agree on a qualified witness
What is a Judgement as a Matter of Law (JMOL) AKA a Direct Verdict? - Answer -
Similar to a summary judgement but based more heavily on evidence; if reasonable minds could not differ on the factual question the judge should decide the case as a mater of law instead of sending it to a jury. Raises the question "is there a jury question in this case"?
