Jane Ocean Final Exam Review PLEGAL-6a

5-20-2020 Dr. Mullen

What is jurisdiction​?
JURISDICTION​ ​is the ​power​ and ​authority​ of the court to hear a particular​ type of
case​ and ​amount in controversy​ and ​render​ a ​legally binding decision​ over the ​parties
involved​.
Jurisdiction has an initial ​2-part test​ which must be satisfied to establish ​jurisdiction.
To have jurisdiction, the presiding court must have ​BOTH​ ​subject matter jurisdiction​ ​AND
EITHER​ ​personal​, ​in rem​, or ​quasi-in rem​ jurisdiction.
Subject Matter Personal Jurisdiction – Second 2-Part Test
Jurisdiction
● General/Limited In Personam​ – ​In Rem​ – ​Quasi-In Rem
● Exclusive/Concurrent Constitutionally Sufficient Basis Proper Notice
● Federal Question ● Presence in State ● 30+ days
● Diversity + $75k ● Domicile ● Svc. of Process
● General Appearance
● Agreement (by contract/agreement)
General​ (Substantial, Continual,
Systematic) or
Limited ​(Just for the purpose of litigating
the issue at-hand)

(First 2-part test for ​Jurisdiction​)

1. ​SUBJECT MATTER JURISDICTION​ - ​The authority of the court to render a legally binding
decision over the type of case and amount in controversy.
- ​Subject Matter Jurisdiction​ may lie in ​state​ court, ​federal​ court, or ​both,​ depending upon the type
of claim involved and the allocation of authority between state and federal court systems
2. ​PERSONAL JURISDICTION​ - ​(​in personam jurisdiction​) The court's authority to render a legally
binding decision over a party.

(Second 2-part test for ​Personal Jurisdiction​)

1. ​NOTICE GIVEN​ (by service of process) in a manner that meets constitutional due process and
statutory requirements. (30+ days before trial date by Service of Process)
-AND-
2. ​CONSTITUTIONALLY SUFFICIENT BASIS ​for exerting jurisdiction over the person or entity.

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ORIGINAL JURISDICTION​ - The power of the court to be the first to hear and resolve a case before
it is reviewed by another court; usually the court that has jurisdiction to conduct the trial.
EXCLUSIVE JURISDICTION​ - The power of a court to hear a particular kind of case to the exclusion
of all other courts.
FEDERAL QUESTION JURISDICTION​ - Jurisdiction that exists when the type of case or claim arises
from violations of the U.S. Constitution, federal law or federal treaties (Native American rights, first
amendment issues, and civil rights).
- These cases can be filed in federal or state court as the federal court does not have exclusive
jurisdiction over them.
DIVERSITY JURISDICTION​ - Requires satisfaction of a 2-prong test:
1. The case must be a ​civil action​ where ​the matter in controversy exceeds $75,000.
-AND-
2. The dispute must be ​between citizens of different states​.

CONCURRENT JURISDICTION​ - Two courts (state and federal, or two state courts in different
counties) both have power to hear a case.

● In personam jurisdiction​ - Jurisdiction over the person.

● In rem jurisdiction​ - Jurisdiction over property-at-issue in the case located within the state.
● Quasi-in rem jurisdiction​ - Jurisdiction over the person but is restricted to their specific
interest in property located within the state.

GENERAL JURISDICTION​ - General subject matter jurisdiction allows a court to hear all kinds of
cases, including civil, criminal, juvenile, probate, etc.; general personal jurisdiction is jurisdiction over
all of the defendant's acts in the forum state.
LIMITED JURISDICTION​ - Court's authority to hear cases with ​less than $25,000​ in controversy.

What are Pleadings?

PLEADINGS​ - ​Legal documents​ that define the ​legal issues​ in the case, state the ​facts​ ​in dispute​,
and ​request​ the ​court​ to grant some type of ​relief​.

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** ​WHY ARE PLEADINGS IMPORTANT​?

● They identify the ​parties​ in the case
● They identify the ​property​ or ​other issue(s)​ in the case
● They identify and set the type of ​relief​ given or not given
● Permanent record​ for the court
● Substantive legal theories
● Constitutionally required notice
● To see if ​discovery requests​ are within the ​Scope of Discovery

What are the Types of Pleadings?

COMPLAINT​ ​- The ​first pleading​ filed by the ​plaintiff​ initiating the lawsuit and served on the
defendant, stating ​jurisdiction​, ​standing​, ​causes of action​ sued upon, and the ​remedy​ sought.
** ​CAUSE OF ACTION​ - ​Legal theories​ entitling the plaintiff/cross-complainant to recover from any
or all of the defendants/cross-defendants.
** ​ELEMENTS​ ​- Essential components or portions of a cause of action.
------Generally, ALL elements of an action must be present for a particular charge (cause of action) to
be filed.

**​STANDING​ ​- A ​plaintiff's right​ to bring an action in court, and a ​defendant's right​ to defend that
action.
**​REAL PARTY IN INTEREST​ - The ​injured party​ with a ​vested interest​ in the outcome of the
case.
**​CAPACITY​ ​- Of legal age 18+ (GUARDIAN AD LITEM needed for minors) and mental competency.

ANSWER​ ​- ​Responsive pleading​ in which a defendant or cross-defendant may ​admit or deny

allegations​ in a complaint or cross-complaint and ​assert affirmative defenses​; it resists the
opposing party's demand for relief.
● General Denials​: all of the complaint or cross-complaint
● Specific Denials​: specific parts of the complaint or cross-complaint
● Affirmative Defenses
AFFIRMATIVE DEFENSES​ - A defense which, if proven, ​denies recovery​ to the other party,

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1. The ​statute of limitations​ has run, and the action is therefore time-barred.
2. The ​plaintiff assumed the risk​ of his/her own harm, and therefore the defendant is not liable.
3. The ​plaintiff has no standing​ to sue or has standing but lacks competency.

DEMURRER​ - A ​pleading​ (in the form of a ​motion​) attacking the ​legal sufficiency​ of the opposing
party's ​pleading​; raises issues of ​law​, not fact.
* Demurrers ​challenge defects​ on the face of the pleading or bring to the court's attention matters
subject to​ judicial notice​.
MOTION TO STRIKE​ - Motion asking the court to strike out all or parts (a word, a sentence, a
paragraph, a cause of action) of the complaint or other pleading (e.g., cross-complaint, answer, etc.)
on the grounds that they are false, irrelevant, or improper.
MOTION TO QUASH​ - Request to a court to render a previous decision of that court or a lower
judicial body null or invalid. It can arise out of mistakes made by any lawyer in a court proceeding.

AMENDED PLEADING​ v. ​AMENDMENT TO PLEADING

AMENDMENT​– ​Small, supplemental portion to be added to the original pleading, for example,
inserting a now-known DOE or correcting the spelling of a party’s name, but ​DOES NOT REPLACE
THE ORIGINAL PLEADING.
AMENDED PLEADING​ – A pleading which replaces a previously filed pleading; may be filed to add
parties, causes of action, etc.

RELATION BACK DOCTRINE

Relation back doctrine is a way to satisfy the statute of limitations, so that later-identified DOES can’t
use the affirmative defense that they weren’t listed in the original defense. Each cause of action
MUST allege a cause of action against DOE defendants. Once identified, amendment of complaint
can be made without expiring the SOL. ​All of the following must be satisfied:
1. The plaintiff was ignorant of their true names at the time of the original filing, and the original
complaint so stated.
2. The original complaint alleged that the DOES were responsible for the injury claimed.
3. The original complaint contained a valid cause of action against the DOES.
4. The amendment inserting the names of the DOES is based on the same general facts as the
original complaint.

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Describe the TIMELINE of a Lawsuit

Date of Incident​ >> ​Time You Contact an Attorney
- Plaintiff thinks about suing someone or some business organization
- Plaintiff makes an appointment to see an attorney (first contact)

1. ​Plaintiff Performs Pre-Litigation Analysis & Consideration

- First Contact (Initial Consultation) with the Client
- Attorney evaluates the merits of the case to decide whether to represent the Client
- Attorney & Client enter into a Retainer Agreement (Attorney-Client Relationship Established)
- Attorney/Paralegal conduct research as to potential Causes of Action (and their elements), Statutes
of Limitations, Jurisdiction, and Venue
- Attorney Drafts the Complaint

● What claims should be alleged?

● What relief should be sought?
● When should it be commenced?
● On whose behalf should it be filed?
● Against whom should it be filed?
● Where should it be filed?

2. ​Plaintiff Commences Lawsuit

- Paralegal researches the viability of potential ​Causes of Action​ (COAs) for the complaint
- Paralegal ​proofreads​ the ​complaint​, ​assembles​ ​exhibits​, ​prepares​ ​forms​ which must
accompany the complaint, and makes sure the proper ​appearance fee​ is attached
- Paralegal and Attorney ​coordinate filing​ of the ​Complaint
- ​Plaintiff files Complaint​ in the ​proper court

3. ​Plaintiff Serves the Defendant

- ​Service of Process​: Plaintiff serves the Defendant with Complaint + Summons (advising that
he/she has been sued and has 30 days to respond)
- ​Effective Date of Service​: Depends on date served and method served
- Defendant has ​30 days after the effective date of service​ to respond (Answer, Demurrer,
Cross-Complaint, Motion to Strike, Motion to Quash)

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4. ​Defendant Defaults/Responds to/or Attacks the Complaint

- Once served with Summons + Complaint, Defendant must respond within ​30 days of service​.
- If the Defendant fails to do so, Plaintiff may enter a ​Default Judgment​ (obtain a Judgment by
Default)
- Defendant may respond to complaint in a number of ways:

● Ignore it​ (allows plaintiff to obtain ​Default Judgment​)

● Answer it​ (files ​Answer​, various ​motions​, or ​Cross-Complaint
● Attack it​ (files a Demurrer or other motions)
-- ​Demurrer​: attacks complaint on technical grounds
-- ​Motion to Strike​: asks the court to strike offensive portions
-- ​Motion to Quash​: asks the court to quash the complaint
5. ​Discovery
- Parties gather the information necessary to evaluate the strengths & weaknesses of their own case
- Parties gather the information necessary to evaluate the strengths & weaknesses of opposing
party's case
** ​DISCOVERY TOOLS

● Form Interrogatories
● Special Interrogatories
● Depositions
● Requests for Production of Documents and Things
● Requests for Admission
● Motion to Compel (if opposing party doesn't cooperate)

6. ​Law & Motion

- Disputes over Discovery are common
- One party files a motion (facts of dispute, relief requested, citing the law)
- ​Dispositive Motions​: Intend to dispose of one or more issues in case, or the entire case
* Motions for judgment on the pleadings
* Motions to dismiss motions for summary judgment
* Motions for summary judgment

7. ​Alternative Dispute Resolution (ADR)

- At any point in the lawsuit, settlement conference with a judge
- ​Mediation​ or ​Arbitration​ (Binding or Non-binding)
- Prepare client, draft the mediation statement or brief, settlement agreement, notice of settlement,
and request to dismiss the case

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8. ​Trial Prep & Trial

- ​Trial​: Each side presents its evidence to the trier of fact (judge or jury)
- Judgment rendered in favor of ​prevailing party
- Prepare jury instructions and trial exhibits
- Draft and file ​motions in limine
- Manage evidence and witness lists
- Manage time limitations and notebooks
- Coordinate appearances with (expert) witnesses
- Review and summarize court testimony
- Evaluate reactions of the jury
- Draft the judgment

9. ​Post-Trial Motions and Requests for Costs

● For recovery of ​attorney​ ​fees​ and ​costs​ (​Memorandum of costs​)

● For a ​new trial
● To reduce the ​judgment​ (moving party complains that there is no basis for the size of the jury
award, such as in tobacco company cases
- Research case law, court rules, statutes, etc., that are relevant to the motion
- Prepare compilations of fees & costs, some or all of the motions, cite-check

10. ​Appeal
- Losing party may appeal the trial court judgment based on errors in procedure or application of the
law

● Successful​: Judgment changed, case remanded to trial court or retried on one or more issues
● Unsuccessful​: Judgment denied, case appealed to higher court
- Conduct research re grounds for appeal
- Draft, file, and serve notice of appeal
- Draft portions of the appellate briefs
- ​Cite-check

11. ​Enforcement of Judgment

​ udgment Debtor​ (losing party) does not voluntarily pay the judgment
- J
- J​ udgment Creditor​ (winning party) takes steps to collect judgment

● Liens on judgment debtor's assets

● Levying on bank accounts
● Garnishing wages or other income
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- Research and verify parties, properties, employers, and sources of income

- Draft the documents & complete forms needed to enforce the judgment
- File, record, and serve them as necessary

What is Formal Discovery?

DISCOVERY​: To enable the parties to obtain the evidence necessary to evaluate their case, possibly
reaching a resolution or settlement before trial, or, in the alternative, to present their best possible
case and their best defense at trial
● Identify additional witnesses or a third party that needs to be ​joined​ in the lawsuit.
● Narrow and clarify the issues in dispute.
● Preserve testimony and evidence for trial.
● Promote early settlements, thus avoiding lengthy and expensive trials.
● Prepare parties for trial and eliminate surprises.
Disadvantages to Formal Discovery
● Formal discovery is expensive.
● Formal discovery can educate the opposition.
● Discovery disputes can be very expensive and waste time.
● Discovery disputes can exacerbate the adversarial nature of the case.
● Discovery ​abuses​ can be costly.

SCOPE OF DISCOVERY​: Any matter, ​not privileged​, that is ​relevant​ to the subject matter of the
action or a motion made in the action, that is ​admissible​ or is ​reasonably calculated​ to lead to the
discovery of ​admissible evidence​.
** The ​PLAINTIFF​ must wait ​10 days​ after ​effective date of service​ to submit discovery requests
** The ​DEFENDANT​ can propound discovery requests immediately
What are Formal Discovery Tools?
● INTERROGATORIES​: Written questions to be answered in writing under oath (“interrogs” or
“rogs”)
o Form​ Interrogatories​: Forms with checkboxes
o Special​ Interrogatories​: Actual written questions
o Fact​ ​Interrogatories​: Used to obtain simple, factual info and focus on objective facts
necessary to prove the propounding party’s case
o Document​ ​Interrogatories​: Ask the other party to identify documents (so they can later
be sought via an inspection demand

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oContention​ ​Interrogatories​: Intended to elicit info about the bases for the opposing
party’s allegations or defenses, i.e., what they contend supports their case
● DEPOSITIONS​: Oral “question and answer” session under oath (“depos”)
● INSPECTION DEMANDS​: Written demands from one party to another to allow inspecting,
copying, testing, or sampling documents, tangible things, land or other property, and
electronically stored information.
● REQUESTS FOR ADMISSION​: Written statements of fact which must be admitted or denied
(“RFAs”)
● PHYSICAL or MENTAL EXAMINATIONS​: Requiring a party to undergo examination and/or
testing by a particular medical professional (“IMEs”)

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