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04 Key 1. The person against whom a criminal charge is filed by the prosecution is called the defendant, whereas the person sued in a civil case is called the respondent. Answer: False The party sued is known as the defendant. The term defendant also is used to describe the person against whom a criminal charge is filed by the prosecuting state or federal government. 2. When a defendant wants to sue the plaintiff, the defendant files a counterclaim. Answer: True When a defendant wants to sue the plaintiff, the defendant files a counterclaim. 3. If a defendant alleges that there cannot be a complete determination of a controversy without the presence of other parties, he may bring in the new parties who are called third-party defendants. Answer: True If a defendant alleges that there cannot be a complete determination of a controversy without the presence of other parties, he or she may bring in new third parties as third-party defendants. This procedure usually is followed when there is someone who may have liability to a defendant if the defendant has liability to the plaintiff. 4. An individual may not assert the rights of the general public or of a group of which he or she is not a member as a plaintiff. Answer: True The plaintiff must allege a personal stake in the resolution of the controversy. This element of standing prevents any individual from asserting the rights of the general public or of a group of which he or she is not a member. 5. A shareholder of one of the two companies involved in a merger could sue to stop the combination of these companies, Answer: True The plaintiff must allege a personal stake in the resolution of the controversy. Only a shareholder of one of the two companies involved in a merger could sue to stop the combination of these companies, despite the fact that such a merger may have a substantial adverse impact on competition in general. 6. Standing in a case is determined upon resolution of the case, rather than at the outset. Answer: False It is very important to note that standing to sue does not depend upon the merits of the plaintiff's contention that particular conduct is illegal. The presence of standing is determined by the nature and source of the plaintiff's allegations. 7. The only way to obtain personal jurisdiction over a defendant is to have them served with a summons. Answer: False Personal jurisdiction over the defendant is usually obtained by the service of a summons, or notice to appear in court, although in some cases it is obtained by the publication of notice and mailing a summons to the last known address. 8. Personal jurisdiction over the defendant is automatically obtained when the plaintiff files the complaint. Answer: False Personal jurisdiction over the plaintiff is obtained when the plaintiff files the suit. Such action indicates voluntary submission to the court's power. 9. Statutes that permit service of process beyond the borders of an originating state are referred to as long-arm statutes. Answer: True Long-arm statutes, which provide for the service of process beyond state boundaries. Such statutes are valid and constitutional if they provide a defendant with due process of law. 10. Due process requires that a defendant must have certain minimum contacts with a state in order to be hailed into court under a long-arm statute. Answer: True Long-arm statutes do not authorize out-of-state service of process in all cases. Personal jurisdiction is obtained under long-arm statutes only when requiring an out-of-state defendant to appear and defend does not violate due process. 11. At the federal level, the Supreme Court encourages class action suits by consolidating cases and reducing the total caseload burden on the courts. Answer: False At the federal level, the Supreme Court discourages class-action suits. Federal cases require that members of the class be given notice of the lawsuit; actual notice and not merely notice by newspaper publication is usually required. 12. In recent years, the federal courts have developed a much higher standard for approving class-action settlements. Answer: True A tougher standard is especially important where settlements have been proposed because of the risk that the class representatives and their lawyers could sacrifice the interests of the class in order to financially benefit themselves. 13. Typically, the least expensive method of discovery is to present interrogatories to the opposing parties. Answer: True Interrogatories must be answered by the party receiving them. It is fairly common for plaintiff and defendant to attach a series of interrogatories to their respective pleadings. 14. One method of discovery, called depositions, involves written questions for the opposing parties to answer. Answer: False In a deposition, the lawyer orally asks questions of the possible witness and an oral response is given. All the spoken words are recorded by a court reporter, and a written transcript is prepared. 15. Discovery procedures are intended to be used freely by the parties to litigation without the court's direct supervision. Answer: True The discovery procedures are intended to be used freely by the parties to litigation without the court's direct supervision. 16. Each state has prescribed a time limit after which a suit cannot be filed, called a statute of limitations. Answer: True Such matters as a lack of jurisdiction of the court to hear the suit, or expiration of the time limit during which the defendant is subject to suit, may be raised by such a motion. This argument is usually referred to as the statute of limitations. 17. A statute of limitations determines the maximum amount of money that a plaintiff may sue for. Answer: False The statute of limitations is a prescribed time limit after which a suit cannot be filed. 18. Evidence in the form of a sworn statement is called an affidavit. Answer: True Some evidence usually is presented in the form of sworn statements called affidavits. A party may ask a judge to base a decision not only on the pleadings but also on affidavits. 19. If a lawsuit is filed that is totally lacking in merit, the attorney filing the lawsuit can be fined according to Federal Rule 11. Answer: True During the past decade, courts within the federal judiciary and most state court systems have increased the frequency of assessing fines against lawyers who file frivolous cases. 20. In jury selections, challenges for cause are also called peremptory challenges. Answer: False Either party in the lawsuit may challenge or excuse a prospective juror for a specific reason or cause. Peremptory challenges are those for which no cause or reason need be given to excuse a prospective juror. 21. If one of the potential jurors is the defendant's brother, the only way for the plaintiff to get the brother off of the jury panel is by using a peremptory challenge. Answer: False If a prospective juror is related to one of the parties or to a witness or the juror admits bias favoring one side, that person may be excused as a juror because of the specific reason. 22. Only the defendant may challenge or excuse a prospective juror for a specific cause or reason. Answer: False Either party in the lawsuit may challenge or excuse a prospective juror for a specific reason or cause. 23. Peremptory challenges may not be used to shape the gender makeup of a jury. Answer: True Batson represented a major development in Supreme Court jurisprudence allowing lawyer misconduct in a single case to establish discriminatory motive in making peremptory strikes. The Court banned gender discrimination in jury selection in the case of J.E.B. v. Alabama. 24. The jury should use anything said in the opening statement as evidence when deciding the verdict of the trial. Answer: False An opening statement is not evidence; it familiarizes the jury with the essential facts that each side expects to prove. 25. Following the closing arguments in a case, the judge acquaints the jury with the law applicable to the case, referred to as the jury instructions. Answer: True Following the closing arguments in a case, the judge acquaints the jury with the law applicable to the case, referred to as the jury instructions. The purpose of jury instructions is to bring the facts and the law together in an orderly manner that will result in a decision. 26. The plaintiff in a civil case must prove his case beyond a reasonable doubt. Answer: False For criminal cases, the burden of proof is described as beyond a reasonable doubt. 27. The verdict is the final decision of the case entered by the judge. Answer: False The jury's decision is called a verdict, and it is announced in the courtroom when the jury's deliberations are completed. 28. A judgment notwithstanding the verdict is generally a pretrial motion. Answer: False The party who is dissatisfied with the jury's verdict may file a posttrial motion with the judge seeking either a judgment notwithstanding the verdict, (state court) or motion for judgment as a matter of law (federal court). 29. The party appealing is usually referred to as the appellant. Answer: True When the result at the trial court level is appealed, the party appealing is usually referred to as the appellant, and the successful party in the trial court is called the appellee. 30. Res judicata means that a final decision is conclusive on all issues between the parties, whether raised in the litigation or not. Answer: True Res judicata means either that the case has been finally decided on appeal or that the time for appeal has expired and a cause of action finally determined by a competent court cannot be litigated by the parties in a new proceeding by the same court or in any other court. 31. The party who files a civil action is called the ________. A. defendant B. appellee C. plaintiff D. appellant E. respondent Answer: C. plaintiff The party who files a civil action is called the plaintiff. 32. If the defendant, upon being served, decides to sue the plaintiff, the defendant is then called the ______. A. plaintiff B. counterplaintiff C. counterdefendant D. appellant E. appellee Answer: B. counterplaintiff The defendant becomes a counterplaintiff and the plaintiff becomes a counterdefendant when a counterclaim is filed. 33. In order to hear a case, a court requires . A. subject matter jurisdiction B. standing to sue C. power of attorney D. garnishment E. jury instructions Answer: A. subject matter jurisdiction The plaintiff must show the court that it has subject matter jurisdiction to hear a case. 34. In addition to proving a case or controversy, what must the plaintiff prove to have standing to sue? A. Power of attorney B. A personal stake in the resolution C. At least $100,000 in damages D. Gross negligence E. Pain and suffering Answer: B. A personal stake in the resolution This element of standing prevents any individual from asserting the rights of the general public or of a group of which he or she is not a member. 35. Which of the following statements is true concerning a criminal matter: A. jurisdiction is obtained by affidavit submitted by the police. B. it does not matter in which state the crime was committed, only that it is severe. C. a defendant may waive jurisdiction. D. long-arm statutes only apply for crimes involving violence. E. courts may bundle several alleged criminals into a class-action prosecution. Answer: C. a defendant may waive jurisdiction. Regardless of the type of case, a defendant may decide not to object to a court's exercise of personal jurisdiction. 36. Which of the following parties would have standing to sue in a case to stop the merger of two companies? A. The CEO of the two companies' biggest competitor B. A competitor of either of the two companies C. The board of the two companies' competitors D. A concerned third party E. A shareholder of one of the two companies Answer: E. A shareholder of one of the two companies Only a shareholder of one of the two companies involved in a merger could sue to stop the combination of these companies, despite the fact that such a merger may have a substantial adverse impact on competition in general. 37. Eli, a resident of New York, wants to sue Tony, a resident of Texas, for a civil incident that occurred in New York. In order to obtain jurisdiction under a long-arm statute, the court must find that: A. Tony has committed some kind of tort in Texas, in addition to the civil incident in New York. B. Tony owns property in Texas that he had bought personally in the past five years. C. the civil incident occurred in New York while both Tony and Eli were there. D. Tony entered into a contract or transacted business that is the subject matter of the law suit in New York. E. Eli committed a tort in Texas or have property in Texas. Answer: D. Tony entered into a contract or transacted business that is the subject matter of the law suit in New York. Due process requires that if a defendant is not present within the state where the lawsuit is filed, he or she must have certain minimum contacts with the state so that maintenance of the suit does not offend "traditional notions of fair play and substantial justice." 38. Alan committed a felony in Delaware, but has returned to Minnesota, where he lives permanently. Alan has a respectable job in Minnesota, and is a respected citizen there. When the Delaware police locate Alan: A. they may go to Minnesota to arrest Alan and bring him back because of the felony committed in Delaware. B. Alan may be arrested and tried in Minnesota for the Delaware felony. C. as long as Alan commits no crimes in Minnesota, he cannot be arrested or detained for something that happened in another state. D. they must wait till the statute of limitations for the felony runs out. E. Delaware must seek extradition of Alan to have him returned to Delaware. Answer: E. Delaware must seek extradition of Alan to have him returned to Delaware. In the event of arrest in a state other than that in which the crime was committed, the prisoner must be transported back to the state where the crime occurred. The process of requesting and transporting the prisoner from one state to another is called extradition. 39. The process of requesting and transporting the prisoner from one state to another is called ______. A. res judicata B. garnishment C. execution D. personal jurisdiction E. extradition Answer: E. extradition This is done by the governor of the state of arrest voluntarily turning the prisoner over to the governor of the requesting state. 40. In a federal class-action law suit: A. only one member of the class must meet the jurisdictional amount of $75,000. B. at least 50% of the class must meet the jurisdictional amount of $75,000. C. the total sued for by the class must add up to the jurisdictional amount of $75,000. D. the average amount sued for by the class must meet the jurisdictional amount of $75,000 each. E. the cost of trying the cases individually must exceed the jurisdictional amount of $75,000. Answer: A. only one member of the class must meet the jurisdictional amount of $75,000. If a class-action suit is in federal court because of diversity of citizenship, only one member of the class must meet the jurisdictional amount of $75,000. 41. Members of a class must be given notice of the lawsuit; this notice must be given to all members of the class whose names and addresses can be found through __________. A. res judicata B. exceptional efforts C. submission D. extradition E. reasonable efforts Answer: E. reasonable efforts Federal cases require that members of the class be given notice of the lawsuit; actual notice and not merely notice by newspaper publication is usually required. This notice must be given to all members of the class whose names and addresses can be found through reasonable efforts. 42. In the pleadings phase, which of the following is false? A. The defendant's response cannot contain affirmative defenses. B. The complaint starts the lawsuit. C. The defendant's response is called an answer. D. The clerk of the court issues the summons to be served on the defendant. E. The complaint contains allegations by the plaintiff and a statement or request of the relief sought. Answer: A. The defendant's response cannot contain affirmative defenses. The defendant's answer will either admit or deny each allegation of the plaintiff's complaint and may contain affirmative defenses that will defeat the plaintiff's claim. 43. After the complaint is filed, the first thing the defendant must file is the: A. writ. B. notice of appeal. C. request for discovery. D. answer. E. deposition. Answer: D. answer. The defendant's answer will either admit or deny each allegation of the plaintiff's complaint and may contain affirmative defenses that will defeat the plaintiff's claim. 44. If the defendant does not respond to the complaint as required he or she is said to be in . A. complaint. B. interrogatory. C. discovery. D. voir dire. E. default. Answer: E. default. If the defendant does not respond in any way, the court may enter an order of default and grant the plaintiff the relief sought by the complaint. 45. A series of written questions concerning the lawsuit sent to the opposing parties are known as: A. depositions. B. requests for production. C. requests for an admission. D. interrogatories. E. affidavits. Answer: D. interrogatories. Typically, the least expensive method of discovery is to present a series of written questions to the opposing parties. These questions, called interrogatories, must be answered by the party receiving them. 46. Office Co. has sued Toner Co. and has already filed a complaint. A major issue of dispute is the wording of the original contract. Which discovery method should Office Co. use to get Toner Co. to present the original sales contract? A. Deposition B. Interrogatories C. Extradition D. Request for admission E. Request for production Answer: E. Request for production After answers to the interrogatories are received, either party might ask the other to produce specific documents, called request for production of documents, that are important to the lawsuit's outcome. 47. The judicial standard for interpreting the scope of discovery permits a party to seek information if it: A. will lead to evidence admissible during the trial. B. is immediately indicative of guilt or innocence. C. is clear and convincing evidence of negligence. D. is important enough to the requesting party that they will file a request. E. is protected by lawyer-client confidentiality. Answer: A. will lead to evidence admissible during the trial. The usual rule is that as long as the information sought in discovery will lead to evidence admissible during the trial, the information is discoverable and an objection is overruled. 48. What should a party file if the opposing party fails to produce relevant, requested evidence? A. A motion to assist B. A motion to insist C. A motion to compel D. A motion to controvert E. A motion to sequester Answer: C. A motion to compel If a party fails to produce relevant, requested evidence, the party seeking the information may file a motion to compel discovery, asking the court to order production of the material. 49. Terrell is suing Chad. After he receives the answer, Terrell believes that he should win based solely on his original complaint and Chad's answer. Terrell should file a: A. motion for a directed verdict. B. motion to dismiss for failure to state a cause of action. C. motion in limine. D. motion for a summary judgment. E. motion for a judgment on the pleadings. Answer: E. motion for a judgment on the pleadings. The rules of procedure in the federal court system and in most of the state systems provide for motions for a judgment on the pleadings, which asks the judge to decide the case based solely on the complaint and the answer. 50. Meghan was pulled over by a policeman for speeding. Despite being cooperative, non-threatening and obviously not intoxicated by liquor or drugs, the policeman orders her out of the car and frisks her. He finds a small bag of marijuana in her pocket. This search and seizure was illegal. After she is arrested, her attorney wants the discovery of the marijuana suppressed because of the illegal search. The attorney would file a: A. motion for a directed verdict. B. motion for a summary judgment. C. motion to dismiss for failure to state a cause of action. D. motion in limine. E. motion to sequester witnesses. Answer: D. motion in limine. When a question of law is at issue, the parties can seek a pretrial determination of their rights by filing a motion with the court. A motion in limine is filed to exclude evidence from trial. 51. In what type of motion does a party ask the judge to decide the case based on the complaint and affidavits showing that there are no material facts in dispute? A. Summary judgment B. Judgment on the pleadings C. Judgment notwithstanding the verdict D. General demurrer E. Motion to compel Answer: A. Summary judgment The party filing for summary judgment is asking the judge to base a decision not only on the pleadings but also on other evidence. Such evidence usually is presented in the form of sworn statements called affidavits. If there are no material disputed issues of fact, the judge will decide the legal issues raised by the case and enter a judgment in favor of one party over the other. 52. A lawsuit that is totally lacking in merit is referred to as ______. A. deposed B. peremptory C. res judicata D. cognizable E. frivolous Answer: E. frivolous Either on a motion by a party or on their own initiative, judges may terminate the litigation process if there is a finding that the lawsuit is frivolous, that is, totally lacking in merit. 53. Maria has been sued in federal court by her former roommate, Theresa, who is a lawyer. Maria and her lawyer look at the complaint and see that it is mean-spirited and vindictive, and lacks any legitimate claims. Maria's lawyer determines that Theresa is merely bullying Maria, hoping to continue the feud that resulted in Maria moving out of their apartment. What may Maria's lawyer do to ensure that Theresa does not file this kind of vindictive case again? A. Have Theresa arrested after the statute of limitations runs out B. File a motion to have Theresa extradited C. File for sanctions under Rule 11 of the Federal Rules of Civil Procedure D. File a motion for judgment notwithstanding the verdict E. File for judicial discipline under Rule 37 of the Federal Rules of Civil Procedure Answer: C. File for sanctions under Rule 11 of the Federal Rules of Civil Procedure During the past decade, courts within the federal judiciary and most state court systems have increased the frequency of assessing fines against lawyers who file frivolous cases. Rule 11 of the Federal Rules of Civil Procedure authorizes the imposition of fines for filing frivolous papers. 54. Sisi, a judge, has reviewed her cases and believes that the lawsuit between Luigi and Franz completely lacks any merit. She is convinced that the suit should not continue. What may Sisi do in response? A. File a motion for judgment on the pleadings B. File a motion to have Luigi extradited C. Terminate the litigation on her own motion D. Wait until Franz files a motion to terminate the litigation E. File a request for admission Answer: C. Terminate the litigation on her own motion Either on a motion by a party or on their own initiative, judges may terminate the litigation process if there is a finding that the lawsuit is frivolous, that is, totally lacking in merit. 55. If bias is admitted, a juror is struck from the jury with a: A. peremptory challenge. B. challenge for cause. C. motion for a directed verdict. D. motion to compel. E. res judicata. Answer: B. challenge for cause. Either party in the lawsuit may challenge or excuse a prospective juror for a specific reason or cause. For example, if a prospective juror is related to one of the parties or to a witness or the juror admits bias favoring one side. 56. Which of the following statements is false concerning peremptory challenges? A. The number of peremptory challenges allowed varies from state to state. B. The number of challenges may vary between the parties. C. One can be used to strike a juror from the jury because he is a man. D. No reason needs to be given to use a peremptory challenge. E. The number may vary depending on the type of case being tried. Answer: C. One can be used to strike a juror from the jury because he is a man. The plaintiff and defendant are given a certain number of challenges, known as peremptory challenges, for which no cause or reason need be given to excuse a prospective juror. The number of peremptory challenges varies from court system to court system and on the type of case being tried. The number also may vary between the parties. 57. When deciding on the jury panel, a party in a lawsuit can challenge a prospective juror on the basis of: A. the prospective juror's race. B. the prospective juror's gender. C. the juror's lack of bias towards the case. D. the prospective juror's ethnicity. E. the juror's relationship to the opposing party. Answer: E. the juror's relationship to the opposing party. Either party in the lawsuit may challenge or excuse a prospective juror for a specific reason or cause. For example, if a prospective juror is related to one of the parties or to a witness or the juror admits bias favoring one side, that person may be excused as a juror because of the specific reason. 58. In Batson v. Kentucky, the Court specifically declared that the use of peremptory challenges by prosecutors in criminal cases to excluded jurors on the basis of violated the equal protection clause. A. gender. B. religious preference. C. race. D. national origin. E. intelligence. Answer: C. race. On the basis of a series of U.S. Supreme Court decisions, beginning with Batson v. Kentucky, 476 U.S. 79 (1986), outlawing racial discrimination in jury selection, the jury has become increasingly more representative of the racial diversity in the United States. 59. In J.E.B. v. Alabama, the Court declared that the use of peremptory challenges by prosecutors in criminal cases to excluded jurors on the basis of violated the equal protection clause. A. gender B. religious preference C. race D. national origin E. sophistication Answer: A. gender The Supreme Court banned gender discrimination in jury selection in the case of J.E.B. v. Alabama Ex Rel. T.B. 60. In a trial, the is the opportunity for the lawyers to give the jury the overall picture of the case and inform the jury of the facts they expect to prove and of the witnesses they expect to call. A. deposition B. opening statement C. verdict D. summation E. interrogary Answer: B. opening statement After selecting jurors to hear the case, the attorneys make their opening statements. An opening statement is not evidence; it familiarizes the jury with the essential facts that each side expects to prove. 61. After the plaintiff has presented all of the evidence, the defendant may make a motion for , which is granted if the evidence, taken in the light most favorable to the plaintiff, establishes as a matter of law that the defendant is entitled to a verdict. A. voir dire B. res judicata C. summary judgment D. directed verdict E. peremptory challenge Answer: D. directed verdict After the plaintiff has presented his or her evidence, the defendant may make a motion for a directed verdict. The court can only direct a verdict for one party if the evidence, taken in the light most favorable to the other party, establishes as a matter of law that the party making the motion is entitled to a verdict. 62. Which of the following best sums up the sequence of events in a jury trial? A. Opening statements; voir dire; judgment; verdict B. Pleadings; voir dire; discovery; judgment C. Voir dire; discovery; closing arguments; judgment D. Opening statements, pleadings, judgment, closing argument E. Discovery; voir dire; verdict; judgment Answer: E. Discovery; voir dire; verdict; judgment The sequence of events in a jury trial is discovery; voir dire; verdict; and judgment. 63. The burden of proof in most criminal cases is ________. A. beyond a reasonable doubt B. preponderance of the evidence C. clear and convincing proof D. circumstantial evidence E. judgment notwithstanding the verdict Answer: A. beyond a reasonable doubt For criminal cases, the burden of proof is described as beyond a reasonable doubt. 64. The burden of proof known as is achieved when there is greater weight of evidence in support of the proposition than there is against it. A. clear and convincing proof. B. beyond a shadow of a doubt. C. preponderance of evidence. D. beyond a reasonable doubt. E. beyond all doubt. Answer: C. preponderance of evidence. Preponderance of evidence is achieved when there is greater weight of evidence in support of the proposition than there is against it. 65. If the judge agrees with the decision of the jury, he will enter the . A. verdict B. judgment C. appeal D. summation E. deposition Answer: B. judgment The jury's decision is called a verdict, and it is announced in the courtroom when the jury's deliberations are completed. 66. If the judge finds that the verdict is erroneous as a matter of law, she may enter a _______. A. directed verdict B. summary judgment C. judgment notwithstanding the verdict D. voir dire E. peremptory challenge Answer: C. judgment notwithstanding the verdict To grant a motion for a judgment notwithstanding the verdict, the judge must find that reasonable persons viewing the evidence would not reach the verdict the jury returned. 67. When a petition for certiorari is filed to the Supreme Court, the party initiating the petition is the petitioner and the other party is known as the ________. A. plaintiff B. respondent C. appellant D. tortfeasor E. defendant Answer: B. respondent When a petition for certiorari is filed to the Supreme Court, the party initiating the petition is the petitioner and the other party is known as the respondent. 68. Typically, the winner at the trial court level is called the on appeal. A. appellee B. appellant C. counterplaintiff D. third party E. magistrate Answer: A. appellee When the result at the trial court level is appealed, the party appealing is usually referred to as the appellant, and the successful party in the trial court is called the appellee. 69. Courts of appeal require the parties to file a document containing a description of the case and its facts and the research benefiting their client's issues. This document is called a . A. decree B. res judicata C. brief D. pleading E. extradition Answer: C. brief The briefs contain a short description of the case; a factual summary; legal points and authorities; and arguments for reversing or affirming the lower court decision. 70. The contain a short description of the case; a factual summary; legal points and authorities; and arguments for reversing or affirming the lower court decision. A. affidavits B. interrogaries C. briefs D. depositions E. verdicts Answer: C. briefs The briefs contain a short description of the case; a factual summary; legal points and authorities; and arguments for reversing or affirming the lower court decision. 71. Which of the following is a feature of appellate review? A. Calling witnesses. B. Oral argument. C. Introduction of new evidence. D. Statute of limitations. E. Discovery. Answer: B. Oral argument. In addition to the brief, the reviewing court is often given the benefit of oral argument in deciding the case. The attorneys are given a specified amount of time to explain orally to the court their position in the case. 72. After an appeal, the losing party may petition the highest court in the system for a/n . A. subpoena B. execution C. brief D. writ of certiorari E. affidavit Answer: D. writ of certiorari If the review is conducted by an intermediate appellate court, the losing party may petition the highest court in the system for a writ of certiorari. 73. Once a judge has determined that the plaintiff is to be awarded a certain sum of money, the plaintiff may begin the process to obtain the money from the defendant by having the sheriff or other court official seize the defendant's property and sell it. This is called: A. execution. B. summary judgment. C. deposition. D. summons. E. extradition. Answer: A. execution. The primary enforcement mechanism is for the judgment creditor to request the court's assistance to have the execution of the judgment or decree. 74. After the judgment is obtained, requiring the defendant's employer to pay some of the defendant's wages to the court on behalf of the plaintiff is called _______. A. execution. B. garnishment. C. depositions. D. summary. E. subpoena Answer: B. garnishment. One form of execution is garnishment. This method of enforcement involves having a portion of the debtor's wages paid to the court, which in turn pays the creditor. 75. Once the court's decision is final, the decision is conclusive as to all issues between the parties. This is called _________. A. voir dire. B. chancery. C. execution. D. res judicata. E. nolo contendere. Answer: D. res judicata. Res judicata means either that the case has been finally decided on appeal or that the time for appeal has expired and a cause of action finally determined by a competent court cannot be litigated by the parties in a new proceeding by the same court or in any other court. 76. When might a third-party defendant be necessary in a trial, and what purpose dies this type of parry serve? Answer: This procedure usually is followed when there is someone who may have liability to a defendant if the defendant has liability to the plaintiff. So if a plaintiff was struck by a truck driver, the plaintiff may be able to sue the truck driver, as well as the company the driver worked for. 77. What is standing to sue and what must the plaintiff allege to establish required standing? Answer: To establish standing to sue, a plaintiff must allege first that the litigation involves a case or controversy and second, that the plaintiff has a personal stake in the resolution of the controversy. 78. Describe the standard and three criteria that allow the typical long-arm statute to allow jurisdiction over a non-resident defendant? Answer: Jurisdiction can be obtained if the defendant has minimum contacts in the state seeking jurisdiction and may be indicated by: if the defendant has committed a tort within the state, if he owns property within the state that is the subject matter of the lawsuit, or if he has entered into a contract within the state or transacted the business that is the subject matter of the lawsuit within the state. 79. When might a court be forced to use extradition, and what is the process? Answer: In criminal suits, the crime must have been committed within the state for the court to have jurisdiction over the case. Jurisdiction over the person of the defendant is obtained by arrest. In the event of arrest in a state other than that in which the crime was committed, the prisoner must be transported back to the state where the crime occurred. This is done by the governor of the state of arrest voluntarily turning the prisoner over to the governor of the requesting state. 80. Why are many class-action suits settled? Answer: Usually a cost-benefit analysis leads to a class-action settlement. If the action fails, the plaintiffs receive nothing and are out the money spent on the litigation. If the plaintiffs win, it may destroy the defendant's business. Therefore, both sides have powerful incentives to settle rather than litigate. 81. Do you believe that class-action litigation should be reformed? Do you think that it is a fair means by which relatively vulnerable plaintiffs can get remuneration from powerful corporations, or an abuse of the judicial system by clever lawyers and overly-litigious citizens? Answer: Student answers will vary, but should address the discussion in the text on the federal discouragement of class-action suits, the description of such suits being the law's version of a nuclear weapon, and the ethics and reform of settlements. 82. What are some of the theoretical and actual purposes of discovery? Answer: The discovery process is designed to ensure that, prior to trial, each side is fully aware of all of the facts involved in the case and the intentions of the parties. Furthermore, discovery serves to narrow the issues in dispute, which encourages settlement. The discovery process facilitates a trial and outcome based on the facts of the case rather than on the cunning of the attorneys. 83. In a personal injury suit, what may the defendant's attorneys request and obtain by using the discovery methods? Answer: The defendant's attorney may ask for and receive any documents relevant to the case, depositions and interrogatories, requests for admissions of facts not in issue and even a physical examination by the defendant's expert physician. 84. How might lawyers and their clients abuse the discovery process? Answer: Discovery can be extremely expensive, and some lawyers can use it to intimidate or bully other parties. Discovery imposes a tremendous burden on the judicial system because judges must be diverted from other important matters, such as hearing criminal cases or conducting trials, to resolve heated discovery disputes. If the parties are acting belligerently, they could greatly extend the timeframe of a case, make the case far more expensive and time-consuming than it should have been, and cause more anger and frustration between the parties and the lawyers than needs to exist. 85. Though it is often thought of as the main component of the American judicial system, it is actually rather rare to go to trial. What are some procedures or methods for either avoiding a full trial or getting cases resolved before trial? Answer: Answers may include descriptions of pretrial motions such as for a judgment on the pleadings of summary judgment. Students should be able to distinguish the two. There should also be discussion of settlements, plea bargaining, and even such measures as getting the case removed because of frivolous litigation. 86. What is meant by the term "frivolous case" and what is being done to remedy the problem? Answer: A frivolous case is a law suit filed that has no merit. Even if the plaintiff believes in their case, if it is so trivial or so silly as to waste the courts valuable time or to function only to harass the defendant, the case may be deemed frivolous. Rule 11 of the Federal Rules of Civil Procedure permits the court to assess a fine against a lawyer who files frivolous papers and many states have followed by creating their own similar rules and statutes. State and federal courts may also dismiss suits filed that they deem frivolous. Fines are also authorized at the federal and state level for filing frivolous documents in conjunction with law suits such as motions, requests and other paper that serve to harass, unnecessarily delay or needlessly increase the costs of litigation. 87. How does the process of jury selection affect the progress and outcome of a trial? Answer: Through voir dire, the lawyers could ascertain which jurors are likely to agree with their case, and through challenges, remove those who won't. Also, during voir dire, the lawyers have an opportunity to give the potential jury members an idea of what the case is about, preparing the path for their litigation. And though cases like Batson and J.E.B. attempt to prevent selection discrimination, lawyers may be able to construct a jury that is favorable to their client. 88. In your opinion, would the American court system be better off if it eliminated the use of peremptory challenges? Answer: Students' answers may vary. Peremptory challenges are those for which no cause or reason need be given to excuse a prospective juror. Given all of the criticism raised about juries today, particularly their ability to decide celebrity criminal cases or complex civil cases, we are likely to see further court decisions clarifying the use of peremptory challenges. Several legal commentators have suggested following the example of England and eliminating the use of peremptory challenges altogether. These commentators argue that there would be fewer problems and more just results if the first 12 prospective jurors who walked through the courtroom door were seated. By taking this action, the cost spent on hiring jury selection experts or litigating the use of peremptory challenges would be eliminated. But the use of these challenges also serve justice in that the lawyers may remove biased, overburdened, or unfit jurors, ensuring that the trials are tried on merits that are understood and results are appropriate. 89. Differentiate between a judgment notwithstanding the verdict and motion for judgment as a matter of law. When are they used? Answer: The judgment notwithstanding the verdict is a state court motion and the motion for judgment as a matter of law, or directed verdict, is a federal motion made when the jury's verdict does not reflect the evidence presented at trial. The judge may enter a judgment opposite of the jury's verdict if that verdict is erroneous as a matter of law. 90. Explain the function of jury instructions. Answer: Following the closing arguments, the judge acquaints the jury with the law applicable to the case. These are the jury instructions. Jury instructions are used to acquaint the jury with the law applicable to the case by bringing facts and the law together in an orderly manner that will result in a decision. 91. What changes with the burdens of proof for civil and criminal cases? What must lawyers do differently in response to a weaker or stronger burden, and how could the burden affect the trial? Answer: In a civil trial, the burden is relatively low, often only a preponderance. All a lawyer on either side must do is convince the jury that its side is only a bit more convincing than the other, so the lawyers may take fewer risks, hoping only to be convincing and not make any mistakes. With the clear and convincing standard, the lawyers will have to marshal more evidence in their support, so they may take longer to present their cases. 92. What is the standard of review and how much deference do appellate judges give to findings by judges in the trial courts? Answer: Courts of appeal are essentially concerned with questions of law. However, a reviewing court may be asked to grant a new trial on the ground that the decision in the lower court is contrary to the manifest weight of the evidence found in the record. In the federal courts and in many states, appellate courts are not allowed to disturb factual findings unless they are clearly erroneous. 93. What must lawyers do in order to preserve an argument for appeal of an evidentiary ruling? Answer: Lawyers must show that an objection was made during the trial, the objection was made in a timely manner, the objection must have challenged the evidence on specific grounds, the lower court ruling was erroneous and the erroneous ruling was harmful to the lawyer's client. 94. Discuss the purposes of execution and garnishment in terms of post-judgment relief, and describe how the two differ. Answer: The primary enforcement mechanism is for the judgment creditor to request the court's assistance to have the execution of the judgment or decree. An execution of a judgment occurs when a court official, such as a sheriff or marshal, seizes some property of the debtor, sells it at public auction, and applies the proceeds to the creditor's claim. Garnishment is a method of enforcement that involves having a portion of the debtor's wages paid to the court, which in turn pays the creditor. 95. What is the meaning of res judicata and what is its effect? Answer: Res judicata means that a final and conclusive decision has been reach in a civil case. All appeals have been exhausted or the time for appeals has expired. Res judicata prevents future law suits involving the same facts between the same parties. A matter once litigated and legally determined is conclusive between the parties in all subsequent proceedings. Test Bank for The Legal and Regulatory Environment of Business O. Lee Reed, Marisa Pagnattaro, Daniel Cahoy, Peter Shedd, Jere Morehead 9780073524993, 9780077437336, 9781260161793
