Deck 5: Civil Procedure

Question 1

Scott entered into a contract with Nadine to landscape her yard.When Scott completed the job, Nadine refused to pay, claiming the work was not done properly because the wrong plants were used and the job was not finished on time.Scott brought suit against Nadine to collect the amount due.If Nadine wished to raise the defense that the work was performed improperly, in what legal document will she state her defense?

A) Answer
C) Reply
B) Complaint
D) Summons

Answer 1

A

Question 2

The main purpose of procedural rules is to allow parties to fairly present their case to the tribunal.

Answer 2

True

Question 3

The reply is a pleading filed by a plaintiff.

Answer 3

True

Question 4

The summons in a civil case must be personally served on the defendant.

Question 5

Because of the importance of protecting the right to privacy, the law prohibits any waiver of the rule protecting privileged communication between a patient and her or his doctor.

Question 6

In Fracasse v.Brent, an attorney filed a complaint against a former client who discharged the attorney without cause in order to recover a one-third interest in any damages recovered in the personal injury action brought by the former client as provided for in their contingency fee contract.It is settled law that clients may discharge their attorneys with or without cause and that the contingency fee is not due unless the contingency has occurred, which it had not in this case.In this case, the attorney would only be entitled to the reasonable value of his services up to discharge.What should the client do?

A) Ask the court to issue a peremptory challenge.
B) Make a motion to dismiss for the failure to state a claim on which relief can be granted.
C) Make a motion for a directed verdict.
D) Make a motion for a subpoena to sanction discovery violations.

Question 7

A counterclaim is a pleading filed by the defendant.

Question 8

The state and the federal governments use different rules of civil procedure.

Question 9

A subpoena duces tecum commands a witness to produce documents that are in his or her possession.

Question 10

The losing party pays the attorney's fees and associated costs in a civil legal proceeding.

Question 11

Material evidence logically tends to prove or disprove some issue that is in dispute between litigating parties.

Question 12

The informal discovery period is

A) a period before formal legal proceedings begin.
B) a period after the trial begins, during which discovery continues.
C) a period preceding the judgment, designed to influence the award amount.
D) All of the above are correct.

Question 13

Courts can initiate litigation when asked by the legislature.

Question 14

Suppose instead that the attorney in Fracasse vs.Brent sued for the reasonable value of the services he had rendered up until the time of discharge.In response to this complaint, the client alleged in a court document that the attorney's services were worthless because he missed an important filing date and thereby compromised the validity of the client's claim.The client further alleged that the attorney's conduct constituted legal malpractice and sued him in tort for the defendant attorney's negligence.What is the court document that contains such counterclaims by the defendant client properly called?

A) Reply
C) Answer
B) Complaint
D) JNOV

Question 15

The motion for summary judgment disposes of controversies prior to trial when the material facts cannot be proved.

Question 16

Plaintiffs must serve the summons on a corporation the same way as they would serve it on a non-corporation defendant.

Question 17

The U.S Constitution requires states to provide jury trials in all civil cases.

Question 18

A civil trial is only available to parties who have failed to settle in negotiation or mediation.

Question 19

How can an attorney's fee be determined?

A) Hourly rate
B) Contingency fee
C) Retainer
D) All of the above are correct.

Question 20

Discovery in a civil case is based on the premise that each party is entitled to all unprivileged information in the possession of others.

Question 21

Plaintiff sued a city college that terminated his employment without affording him a hearing on the grounds for his dismissal.The defendant college argued to the trial judge that as the plaintiff was an at-will employee without tenure, without a contract of employment, and without any promise of continued employment, he had no property interest in his continued employment and was not entitled to due process prior to dismissal.Before trial, the defendant college asked the judge to rule as a matter of law that it should prevail, as the fact of his at-will employment status was undisputed.If the trial judge believes that the plaintiff indeed had no reasonable expectation of continued employment, hence no property interest and no entitlement to constitutional due process, what should he do?

A) Grant the defendant's motion for summary judgment.
B) Grant summary judgment in favor of the plaintiff.
C) Grant the defendant's motion for a directed verdict.
D) Grant plaintiff's motion to JNOV.

Question 22

On the basis of the general rules of evidence and assuming that no exceptions to those rules apply, which of the following pieces of evidence will a judge not allow into court?

A) A witness's testimony about hearing defendant's brother says that two years ago defendant committed the offenses.
B) A plumber's testimony as to the likelihood that a pipe will fail under certain conditions
C) The original copy of plaintiff's birth certificate
D) None of the above is correct.

Question 23

The most common tool of discovery is

A) physical or mental examination.
B) motions for summary judgment.
C) depositions.
D) None of the above is correct.

Question 24

Nancy, a nurse, is summoned for jury duty in a medical malpractice case.She asserts under oath that she will not substitute her own judgment for the facts presented at trial and that she can render a fair and impartial verdict.Counsel for the defendant doctor, however, feels that she probably dislikes doctors and will not be prodefense.Counsel for the plaintiff likes Nancy and the judge believes that she can render a fair and impartial verdict.What should defense counsel do?

A) Issue a dismissal for cause.
C) Move for a mistrial.
B) Exercise a peremptory challenge.
D) Ask for a change in venue.

Question 25

If a state's common law did not recognize a right of privacy against unauthorized publicity or the appropriation of someone's likeness for another's commercial advantage, what should the trial court do?

A) Encourage the plaintiff to appeal.
B) Transfer the case to the U.S.Supreme Court.
C) Enter an order for discovery.
D) Grant the defendant's motion to dismiss for failure to state a claim on which relief could be granted.

Question 26

Yolanda is suing ABC Floral Company for damages related to her wedding floral order.The flowers arrived a day too late and Yolanda had to buy other flowers instead.Yolanda wants to present the original order form at trial, which ABC Floral has in its possession.What should Yolanda do to get access to the form?

A) Make a motion of summary judgment.
B) Submit written interrogatories.
C) Compel the production of documents.
D) None of the above is correct.

Question 27

Discovery usually takes place

A) immediately after the complaint is filed.
B) after answer is filed.
C) after opening statements at trial.
D) None of the above is correct.

Question 28

Which of the following is not a pleading?

A) Deposition
C) Answer
B) Reply
D) Complaint

Question 29

If a defendant defaults, the court can

A) award a judgment to the plaintiff.
B) have the defendant jailed until he or she agrees to comply.
C) prohibit a jury trial.
D) None of the above is correct.

Question 30

Nurse Ratchet is called for jury duty and is on a panel of prospective jurors in a medical malpractice case involving an alleged failure to diagnose in a timely manner and properly treat breast cancer.Which of the following reasons would be either a valid challenge for cause or peremptory challenge?

A) The defense attorney wishes to remove her from consideration because of a rather lengthy battle her sister fought with breast cancer and his feeling that Ratchet's grief will prevent her from rendering a fair and impartial verdict.
B) The defense attorney wishes to remove her from consideration because he feels that nurses inherently resent doctors and are open to the argument that doctors sometimes make mistakes.
C) The defense attorney wishes to remove her from consideration because she won't make eye contact with him and he is afraid that she does not like him or his client for some reason.
D) All of the above are valid challenges.

Question 31

If the jury grants an award that is exceedingly high or low, the trial court can award

A) additur.
B) remittitur.
C) either additur or remittitur.
D) only the amount decided upon by the jury.

Question 32

A summons is sent to

A) the plaintiff.
B) the defendant.
C) both the plaintiff and the defendant.
D) neither the plaintiff nor the defendant.

Question 33

Federal trial judges are constitutionally entitled to grant which of the following motions if a jury's award of money damages is found by the judge to be grossly excessive as a matter of law?

A) Forum non conveniens
B) Additur
C) Remitittur
D) Summary judgment

Question 34

At a civil trial, the plaintiff has been largely unsuccessful in proving medical malpractice against the defendant doctor.In the rebuttal stage of the trial, the plaintiff produces a surprise witness, who was previously unavailable and who testifies dramatically that the doctor was in fact negligent.Unfortunately for the plaintiff, the judge correctly rules that the witness's testimony is inadmissible and instructs the jury to disregard it.Notwithstanding the judge's admonition, the jury finds in favor of the plaintiff, on the basis of no evidence that was legally admitted into the record.The trial judge should grant a JNOV for the

A) plaintiff and grant the defendant's motion for a new trial.
B) plaintiff and grant the plaintiff's motion for a new trial.
C) defendant and grant the plaintiff's motion for a new trial.
D) defendant and grant the defendant's motion for a new trial.

Question 35

Sludge Inc., a Wisconsin corporation, has a website in Wisconsin on which it advertises its wares.This website is accessible in every state in the nation.A Colorado company believes that Sludge has infringed on its trademark, which is protected under federal law, and sues Sludge in Colorado.Sludge wishes to challenge the jurisdiction of the Colorado court because the company alleges that it has insufficient contacts with Colorado.What should Sludge do?

A) Make a motion to dismiss for lack of in personam jurisdiction.
B) Make a motion to dismiss for lack of subject matter jurisdiction.
C) Ask for a default judgment.
D) File a reply.

Question 36

Which of the following would be considered privileged and would not be admissible under the rules of evidence?

A) A confession made to one's spouse during the marriage
B) Relevant information disclosed to one's doctor during treatment
C) Relevant information disclosed to one's attorney in the course of professional consultation and considered to be part of the preparation of the case for trial
D) All of the above communications are privileged.

Question 37

Plaintiff Carol Burnett, the comedienne, believed she had been defamed by an article in the National Enquirer, which stated that Burnett was intoxicated and involved in a row with Henry Kissinger in a Washington, D.C., restaurant.She sued the Enquirer, and the jury awarded her $300,000 in general damages and $1,300,000 in punitive damages.The National Enquirer argued that the evidence produced at trial did not establish malice as a matter of law.What posttrial motion would the Enquirer make?

A) JNOV
C) Summary judgment
B) Directed verdict
D) Motion to dismiss

Question 38

How could A's attorney get the conversation between B and C, as well as the account books, into evidence?

A) Call C as a witness and subpoena the books.
B) Take D's deposition and introduce it instead.
C) Ask the secretary to waive her confidentiality privilege.
D) Qualify the secretary as an expert.

Question 39

The following exchange occurs between a defense attorney and a doctor testifying as an expert witness for her client: "Q: In your opinion and on the basis of your experience, does the computer overread or underread EKGs? A: Overread.Q: And that's the way it should be, isn't that correct? A: Yes.Q: And that is because all doubt must be resolved in favor of the patient, isn't that right? A: Yes." What objection should opposing counsel raise?

A) Hearsay
C) Leading questions
B) Privilege
D) Best evidence rule

Question 40

If a lawyer fails to follow the rules of discovery, the injured party can

A) file a motion for a directed verdict.
B) ask the court to impose sanctions.
C) either file a motion or impose sanctions.
D) None of the above is correct.

Question 41

A defendant who loses the case because the judge, after the conclusion of the trial, awards a money judgment to the plaintiff is called

A) the defendant debtor.
C) the defendant creditor.
B) the judgment debtor.
D) the judgment creditor.

Question 42

Liens and garnishments are examples of

A) pretrial motions.
B) reasons for excluding jurors.
C) methods of enforcing judgments.
D) methods of discovery.

Question 43

Pretrial motions include the motion to dismiss and a motion for summary judgment.What is the purpose of each of these motions and when would it be appropriate to make them?

Question 44

The pleadings take place before a civil trial and are meant to inform the court and the parties of the contentions of each party.List and explain the content of each of the documents that are filed as part of the pleadings and state whether they are prepared by the plaintiff or the defendant.Do not include any pretrial motions in your discussion.

Question 45

Cody brought suit for injuries sustained in an automobile collision between her car and the defendant Adkins pickup truck.The jury found that considering the hazardous weather conditions at the time of the accident, the defendant was not at fault or negligent in the operation of his vehicle and that the injuries that plaintiff sustained were the result of an unavoidable accident.The jury returned a verdict in favor of the defendant Adkins.The plaintiff moved for a judgment notwithstanding the verdict.The judge should grant that motion if

A) she would have voted differently had she been on the jury.
B) the plaintiff also moves for a new trial.
C) she denied the directed verdict.
D) there is an absence of any substantial evidence to support the verdict entered.

Question 46

Certain kinds of evidence considered to be both relevant and trustworthy are excluded because society's interest in establishing the truth in lawsuits is outweighed by some greater interest.When this is so, the evidence usually is excluded on the ground that privilege exists.Explain what privilege exists and why it exists.