Lawsuit Basics-Word Study

weishaupt1776 · #1 07-27-2004, 12:44 PM

[b]First of all, if you don't have a Law Dictionary - You're in a coma!

Snap out of it, kid. Try to get a 6th Edition

Since I am an embryo at court procedure, I am trying to start with first principle of a lawsuit which starts with the Complaint by the Plaintiff.

I will provide basic definitions for those of you who are about to buy a Black's.
[center][size = 5]Action by Plaintiff[center][size = 5]
In your beautiful Black's Law Dictionary, highlight the following words:

Sue proceeding for the RECOVERY of a RIGHT . . . . . gain by LEGAL PROCESS

Suit A generic term of comprehensive signification, referring to any proceeding . . . against another in a COURT of LAW in which the PLAINTIFF pursues, in such court, the remedy which the LAW AFFORDS HIM for the REDRESS of an injury or the ENFORCEMENT of a RIGHT, whether at LAW OR IN EQUITY. . . "suit" replaced by the word action (RULE 2 HERE )

Action . . . formal complaint brought within a court of law . . . demand of one's right from another party made & insisted on in a court of justice . . . for the protection of a right, redress or prevention of a wrong, or the punishment of a public offense . . .

While there has been a MERGER of LAW & EQUITY, PRINCIPLES OF EQUITY STILL GOVERN. (RULE 2 HERE )

Complaint The original or initial pleading by which an action is commenced under codes or Rules of Civil Procedure (Rule 3 HERE ).The pleading which sets forth a claim for relief. ... shall contain:

(1)....statement of the grounds upon which jurisdiction of the court depends....

(2)....showing that pleader is entitled to relief....

(3)demand for judgement of a relief to which he deems himself entitled....

. . . .with the summons is required to be served.

Pleading (Rule 7 HERE )

The formal allegations by the parties to a lawsuit of their respective claims & defenses, with the intended purpose being to provide notice of what is to be expected at trial.

Note: I came across Common Law Pleadings in the def.- should we try to bring those in & try to bypass FRCP ?

Rules of Civil Procedure <a href = "http://www.suijuris.net/main/suijuris/staticpages/index.php?page=FRCP">HERE</a> Federal Rules of Civil Procedure govern procedure in the U.S. district courts in ALL SUITS OF A CIVIL NATURE . . . cases at LAW . . . EQUITY . . . ADMIRALTY w/ some exceptions.

 Relief (Rule 8(a) HERE) Deliverance from oppression, wrong or injustice . . . assistance, redress, or benefit which a complaintant seeks at the hands of a court, PARTICULARLY IN EQUITY. . . remedies as specific performance, injunction, or the REFORMATION OR RECISSION OF A CONTRACT.

Jurisdiction A term of COMPREHENSIVE import embracing EVERY kind of judicial action.

. . .defines the power of courts to INQUIRE into facts, APPLY the law, make DECISIONS, & declare JUDGEMENT.

. . . LEGAL right by which judges exercise their authority

IT EXISTS when a court has COGNIZANCE of the CLASS of cases involved, PROPER parties are present, and point to be decided is WITHIN the POWERS of the court.

....power of a court to adjucate concerning SUBJECT MATTER....

SCOPE & EXTENT OF JURISDICTION OF FEDERAL COURTS IS GOVERNED BY 28 USCA 1251<a href = "http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=1251"> HERE </a>

Jurisdictional Amount Requisite jurisdictional amount for diversity of citizenship jurisdictional amount for diversity of citizen ship jurisdiction in the federal courts is set forth in 28USC1332 <a href = "http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=1332"> HERE </a>

Jurisdictional Plea Form of answer addressed to the issue of whether the court has the power over thedefendant or over the subject matter of the litigation (Rule 12(b)(1), (2) HERE

Summons ( RULE 4 HERE ) Used to COMMENCE a civil action or special proceeding & is a means of acquiring jurisdiction over a party.

Note - Upon further reading of the requirements of a summons - I am curious as to whether or not BB uses the proper procedures when they summon us.

Now you are ready to see the first role of the Defendant ![/color] move a few threads up

#2 07-27-2004, 02:11 PM

I disagree. Black's 4th Edition is the best.

dattwing · #3 07-27-2004, 04:05 PM

Thank You for the information weishaupt 1776, I’m sure a lot of the members can use this info. It is interesting to see how a word or definition changes from the earliest Black’s to the most recent edition. I would say something is trying to be hid, or molded in a way that benefits their masters.

dattwing · #4 07-27-2004, 04:15 PM

I would say every edition of Black’s serves a useful purpose, for instance the third edition has case cites with a more descriptive meaning of the word being looked-up, where as the sixth might not be quite as descriptive but contains some more recent case cites. I would think owning more than one Black’s is the way to go!

#5 07-27-2004, 04:53 PM

i agree dattwing...but, the most important definition is the one the supreme courts place in the case cites...

jon

weishaupt1776 · #6 07-29-2004, 09:41 AM

[b]Thanx guys ; in tying those previous posts together, does the 4th edition have more Supreme Court case cites than the 6th edition does?

<center>Motions by the Defense</center>

[color=black][b]Now the next phase in our basic lawsuit structure is by the defense.

The plaintiff is anticipating an addressing of his complaint point by point by the defendant. However, the defendant can instead conduct a flurry of motions to avoid answering the complaint.

<center>There are basically three motions:

Motion to Dismiss,

to Strike, or

Special Demurrer

(Requirement of a More Definite Statement of the Complaint) .</center>

Motion An application made to a court or judge for the purpose of obtaining a rule or order directing some act to be done in favor of the applicant .

Usually made WITHIN the FRAMEWORK of an EXISTING ACTION . . . ordinarily MADE ON NOTICE . . . some . . .WITHOUT NOTICE . . . called

ex parte . . . requisite form of motions see (RULE 7(b) HERE )

Motion to Dismiss A motion requesting that a complaint be dismissed because it does not state a claim for which the law provides a remedy . . . legally insufficient

. . . before trial to attack . . . on the basis of insufficiency of the pleading, of process, venue, joinder, etc.. . .(Rule 12(b) HERE ) See Also Demurrer

Demurrer Allegation of the defendant, which, admitting the matters of fact alleged by complaint to be true that as they are therein set forth they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer . . .

BY FRCP , DEMURRERS, PLEAS & EXCEPTIONS FOR INSUFFICIENCY OF A PLEADING ARE ABOLISHED (Rule 7 (c) HERE ) EVERY DEFENSE IN LAW shall be made by MOTION or by ANSWER; motions going to jurisdiction, venue, processs, or failure to state a claim are to be DISPOSED of BEFORE trial, UNLESS the court orders otherwise. An EQUIVALENT to a demurrer is provided in the motion to dismiss for failure to state a claim on which relief may be granted (Rule 12(b) HERE ) . . . objections by demurrer exists in certain states.(Chikity check 'ya self, kid)

Special Demurrer Goes merely to structure or form of a pleading which it attacks, and usually only to some portion thereof, & must distinctly specify wherein defect lies. Federal Rules analogue of the special demurrer is the MOTION to make MORE DEFINITE & CERTAIN (Rule 12(e) HERE )

Motion to Strike On motion from either party, the court may order stricken from any pleading any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter. (Rule 12(f) HERE )

<center>What If the Defense's motions fail? - What can they do then?

Move up to The Answer

Ice · #7 07-29-2004, 05:56 PM

I truly hope that Members are soaking this in... some of this would be very handy knowledge to have if you get involved in a situation with a bank, loan co., or debt collector.

weishaupt1776 · #8 07-30-2004, 10:05 AM

<center>[b]The Answer[/color]</center>

If the Motions by the Defendant don't succeed, then the Defendant must -

Answer Black's 6th Ed :

. . . denotes an assumption of liability, as to "answer for the debt or default of another. . .

Pleading The response to the plaintiff's complaint, DENYING in part or in whole the ALLEGATIONS made by the plaintiff. A pleading by which defendant endeavors to resist the plaintiff's demand by an allegation of facts, either denying allegations of plaintiff's complaint OR CONFESSING them & ALLEGING NEW MATTER in avoidance, which defendant alleges should should PREVENT RECOVERY on FACTS ALLEGED by plaintiff. . . under FRCP, the answer is the [b]formal written statement setting forth the grounds of his defense; corresponding to what in actions under the common law practice is called the "plea".<.b> (Rule 8 HERE ) & Rule 12 HERE )

Defense . . . reason in law or fact why the plaintiff should not recover or establish what he seeks . . . to diminish plaintiff's cause of action or defeat recovery . . . with respect to a commercial instrument of which a holder in due course takes free, "defense" means a legally recognized basis for avoiding liability either on the instrument itself or on the obligation underlying the instrument. . . . defenses may be raised by motion as well as by answer ,(Rule 12(b) HERE ) while others must be pleaded affirmatively. (Rule 8(c) HERE ) & Rule 9 HERE )

Affirmative Defense In pleading, matter asserted by the defendant which, assuming the complaint to be true, constitutes a defense to it . . .

attacks the plaintiff's legal right to bring an action , as OPPOSED to attacking the truth of the claim. . . . affirmative defenses MUST be raised in the responsive pleading (answer); such defenses are listed in Rule 8(c) HERE.

Equitable Defense . . . With the merger of law & equity, equitable defenses can be raised along with legal defenses in the same action. (Rule 8( HERE )

Justification A maintaining or showing a sufficient reason IN COURT why the defendant did what he is called upon to answer.

Denial must be specific & directed at the particular allegations . . .

in part ( i.e.

, specific denial) or in whole ( i.e., general denial) . . .

should be specific & "meet the substance of the avertments denied. (Rule 8(b) HERE )

General . . . puts in issue all the material avertments of the complaint or petition, and permits the defendant to prove any & all facts tending to negative those avertments or any of them. . . . gives defendant same right to require the plaintiff to establish by proof all the material facts necessary to show his right to a recovery as was given by that plea.

Specific . . . applicable to one particular allegation of the complaint.

Negative Avertment Opposed to the simple denial of an affirmative allegation . . . IS an allegation of some SUBSTANTITIVE FACT , e.g., that premises are not in repair, which, although negative in form, is really affirmative in substance, & the party alleging the fact of non-repair must prove it.

Supplemental Pleading consisting of facts arising since filing of the original. (Rule 15(d) HERE )

Amendment Practice & Pleading The CORRECTION of an ERROR committed in any process . . . as of course, or by the consent of parties, or upon motion to the court in which the proceeding is pending . . . any change in pleadings, which a party may accomplish once as a matter of course at any time BEFORE a responsive pleading has been served. (Rule 15(a) HERE )

May be necessary to cause pleadings to conform to evidence (Rule 15(b) HERE )

Amendment relates back to the original pleading if the subject of it arose out of the transaction set forth or attempted to be set forth in the original pleading. (Rule 15(c) HERE )

Supplemental Pleading consisting of facts arising since filing of the original. (Rule 15(d) HERE )

<center>Following the Answer, what's next in a lawsuit?

Move up to Discovery

weishaupt1776 · #9 07-31-2004, 06:28 AM

[b]<center>Discovery</center>[/color]

[color=black]Following the defendant's answer, this is the MOST IMPORTANTstage of any lawsuit PRECEDING TRIAL because both sides need to make a record of the truth after the defense has answered.

Without a recording of the facts, how can one expect to win?

Discovery The ASCERTAINMENT of that which was previously UNKNOWN ;

DISCLOSURE . . . of what was PREVIOUSLY HIDDEN ;

ACQUISITION of NOTICE or KNOWLEDGE of given ACTS or FACTS

Trial Practice The PRE-TRIAL devices . . . to OBTAIN FACTS & INFORMATION from the other party to assist in the OTHER PARTY"S PREPARATION for trial.

Under Federal Rules of Civil Procedure, tools for discovery ( in order of importance-NOT LISTED IN BLACK"S by the way) include :

1.Request for Admission Written statement of facts concerning the case which are submitted to an adverse party & which that party is required to admit or deny; those STATEMENTS which are ADMITTED will be TREATED BY the COURT as having BEEN ESTABLISHED & NEED NOT be PROVED at trial. (Rule 36 HERE )

2. Request for Production No Black's definition here, but ALWAYS REQUEST to see ORIGINAL DOCUMENTS or THINGS because you have THE RIGHT to them & to make copies of them. DEMAND your RIGHT to see ORIGINALS! ( Kinda like the VoD, huh?) (Rule 34 HERE )

3.  Interrogatories . . . WRITTEN questions . . .purpose of being propounded(new word, dude) to a party, witness, etc . . . having information of interest in the case. . . . ANSWERS to the interrogatories are usually given UNDER OATHi.e., . . . SIGNS a sworn STATEMENT that the answers are true. (Rule 33 HERE )

The court may submit to the jury . . . for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. (Rule 49 HERE ) - Can we move the court to do this?

4. Depositions ( Generally, FRCP 27-32) . . . one party (through his or her attorney) asks oral questions . . . conducted UNDER OATH outside the courtroom . . . transcript is made . . . Testimony of witness, taken in writing, under oath or affirmation, before some judicial officer in answer to questions or interrogatories. (Rule 26 HERE)

Oral Depositon (Rule 30 HERE)

Written Depositon (Rule 31 HERE)

5. Motion the Court In the event not enough facts to win are gathered through the previous methods, it is necessary to order the necessary relief via subpoena, writ, or other methods.

Subpoena Command to appear at a certain time & place to give testimony . . .

 Subpoena duces tecum A court process, initiated by a party in litigation, COMPELLING production of certain specific documents and other items, material & relevant to facts in issue in a pending judicial proceeding, which documents & items are in custody & control of person or body served with process. ( So where's the original PN, jerky?) (Rule 45 HERE)

Writ A written JUDICIAL ORDER to perform a specified act. or GIVING AUTHORITY to have it done . . . directing that a sheriff or judicial officer . . .

( I would like to see a systematic compilation of all the NECESSARY, POPULAR & RELEVANT writs & their uses {how, when, why} posted.)

suijuris · #10 07-31-2004, 05:33 PM

Great research! Keep it coming please...