Term
| Tools litigants have and must understand (4) |
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Definition
| 1. substantive law; 2. procedural law; 3. evidence law; 4. persuasion "law" |
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Term
| premise of our adversary system |
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Definition
| each interested party presenting her version of the truth is the best way for a jury to determine the probable truth |
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Term
| Some jurisdictions require that opening statements make out this: |
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Definition
| a prima facie case; because the lawyers statements are taken as admissions |
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Term
| in some jurisdictions D may reserve opening statement till... |
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Definition
| after plaintiff rests his case; might be done when D doesn't want P to know his specific trial strategy (e.g. in criminal case offering affirmative defense) |
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Term
| a few judges have lawyers make opening to entire jury panel before jury selection; why? |
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Definition
| idea is that jurors will be more likely to disclose attitudes that affect their suitability to be jurors if they know more about the case being tried |
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Term
| when might defendant go first? |
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Definition
| if defendant has admitted the plaintiff's facts so that only affirmative defenses or counterclaims, on which the defendant has the burden of proof remains to be proved |
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Term
| in plaintiffs case in chief, plaintiff must: |
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Definition
| present sufficient proof on each element of each legal claim alleged in the complaint or indictment |
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Term
| in plaintiffs case in chief plaintiff must prove elements using four possible sources of proof: |
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Definition
| witnesses; exhibits; judicial notice; stipulations |
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Term
| "English Rule" of cross examination |
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Definition
| cross examination can go into any relevant matter |
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Term
| Four principle types of exhibits |
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Definition
1. Real objects (guns, drugs)
2. demonstrative (maps, models)
3. writings (contracts, letters)
4. records (private business and public) |
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Term
| directed verdict is called: |
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Definition
criminal "motion for a directed judgement of acquittal"
civil "motion for judgment as a matter of law" |
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Term
| two elements of D's case in chief |
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Definition
1. evidence to refute P's proof
2. evidence to prove any affirmative defenses and counterclaims (as well as cross claims and third party claims in multiple party cases) |
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Term
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Definition
after D rests and after motions have been made, P has an opportunity to introduce evidence that rebuts defendant's evidence (this evidence usually provides a defense to D's counterclaims or contradicts other specific evidence presented by the defendant)
SURREBUTAL - Defendant has the last chance to rebut specific matters raised in P's rebuttal case |
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Term
| motions at close of all the evidence |
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Definition
P or D may again move for directed verdict; standard is same (in light favorable to non-moving party)
NOTE: in many jurisdictions, motion for a directed verdict is required to preserve the right to move for a judgment notwithstanding the verdict after trial |
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Term
| when is final jury instructions conference |
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Definition
| usually after all evidence presented because judge cannot reach final decision on which instructions to submit before she has heard all the evidence |
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Term
| court reporter present for final jury instruction meeting? |
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Definition
| yes, to record objections and rulings; in most jurisdictions, lawyers must make specific objections on the record to requested instructions before the instruction being given/not given can be raised on appeal as an error |
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Term
| order of closing arguments |
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Definition
| usually party with burden of proof argues first and last (remember this can be the D in some cases) - other jurisdictions allow only two arguments, in these cases Plaintiff goes last usually |
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Term
| when jury deadlocked - judge can do two things: |
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Definition
| give jury an "Allen charge" which encourages jury to listen to each others views and try to reach a verdict; OR if jury is hopelessly deadlocked, declares mistrial, schedules retrial |
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Term
| most common postrial motion |
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Definition
1. judgment notwithstanding the verdict
2. motion for a new trial (asks judge to order new trial because of claimed errors made during the first trial)
these are common made alternatively
also common in civil cases are additur or remittur which asks court to increase or decrease dollar amount of jury verdict |
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Term
| what ends the case in the trial court? |
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Definition
| entering judgment is the jurisdictional fact that ends the case in trial court |
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Term
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Definition
| must file a timely notice of appeal with the clerk of the trial court and in civil cases, a party must usually post an appeal bond in the amount of the judgement; this act begins the appellate process |
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