Class Notes For Legal Terminology, 6th Edition
Class Notes For Legal Terminology, 6th Edition summarizes important topics for quick revision.
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Online Instructor’s Manual
to accompany
Legal Terminology
Sixth Edition
Gordon W. Brown
Professor Emeritus, North Shore Community College
Kent D. Kauffman
Indiana-Purdue University, Fort Wayne
to accompany
Legal Terminology
Sixth Edition
Gordon W. Brown
Professor Emeritus, North Shore Community College
Kent D. Kauffman
Indiana-Purdue University, Fort Wayne
3
Contents
Chapter 1: Court Systems and Jurisdiction 4
Chapter 2: Criminal Trail Procedure 8
Chapter 3: Civil Trial Procedure 11
Chapter 4: Defensive Pleadings in Civil Trials 16
Chapter 5: Methods of Discovery 19
Chapter 6: Pretrial Hearing and Jury Trial 24
Chapter 7: Steps in a Trial 28
Chapter 8: Legal Ethics 32
Chapter 9: Constitutional Law 35
Chapter 10: Crimes, Accomplices, and Defense 38
Chapter 11: Crimes Against Property 41
Chapter 12: Crimes Against the Person and Human Habitation 44
Chapter 13: Homicide 48
Chapter 14: Crimes Against Morality and Drug Abuse 52
Chapter 15: Torts and Tortfeasors 56
Chapter 16: Intentional Torts 60
Chapter 17: Negligence and Product Liability 64
Chapter 18: Formation of Contracts 68
Chapter 19: Contract Requirements 72
Chapter 20: Third Parties and Discharge of Contracts 77
Chapter 21: Personal Property and Bailments 81
Chapter 22: Intellectual Property 85
Chapter 23: Law of Agency 89
Chapter 24: Wills, Testaments, and Advance Directives 93
Chapter 25: Revocation, Lapses, and Ademption 97
Chapter 26: Principal Clauses in a Will 101
Chapter 27: Disinheritance and Intestacy 105
Chapter 28: Personal Representative of the Estate 109
Chapter 29: Settling an Estate 113
Chapter 30: Trusts 117
Chapter 31: Estates in Real Property 121
Chapter 32: Multiple Ownership of Real Property 125
Chapter 33: Acquiring Title to Real Property 129
Chapter 34: Deeds 133
Chapter 35: Mortgages 137
Chapter 36: Landlord and Tenant 141
Chapter 37: Marriage, Divorce, and Dissolution of Marriage 145
Chapter 38: Divorce Procedure 150
Chapter 39: Business Organization 154
Chapter 40: The Law of Bankruptcy 159
Contents
Chapter 1: Court Systems and Jurisdiction 4
Chapter 2: Criminal Trail Procedure 8
Chapter 3: Civil Trial Procedure 11
Chapter 4: Defensive Pleadings in Civil Trials 16
Chapter 5: Methods of Discovery 19
Chapter 6: Pretrial Hearing and Jury Trial 24
Chapter 7: Steps in a Trial 28
Chapter 8: Legal Ethics 32
Chapter 9: Constitutional Law 35
Chapter 10: Crimes, Accomplices, and Defense 38
Chapter 11: Crimes Against Property 41
Chapter 12: Crimes Against the Person and Human Habitation 44
Chapter 13: Homicide 48
Chapter 14: Crimes Against Morality and Drug Abuse 52
Chapter 15: Torts and Tortfeasors 56
Chapter 16: Intentional Torts 60
Chapter 17: Negligence and Product Liability 64
Chapter 18: Formation of Contracts 68
Chapter 19: Contract Requirements 72
Chapter 20: Third Parties and Discharge of Contracts 77
Chapter 21: Personal Property and Bailments 81
Chapter 22: Intellectual Property 85
Chapter 23: Law of Agency 89
Chapter 24: Wills, Testaments, and Advance Directives 93
Chapter 25: Revocation, Lapses, and Ademption 97
Chapter 26: Principal Clauses in a Will 101
Chapter 27: Disinheritance and Intestacy 105
Chapter 28: Personal Representative of the Estate 109
Chapter 29: Settling an Estate 113
Chapter 30: Trusts 117
Chapter 31: Estates in Real Property 121
Chapter 32: Multiple Ownership of Real Property 125
Chapter 33: Acquiring Title to Real Property 129
Chapter 34: Deeds 133
Chapter 35: Mortgages 137
Chapter 36: Landlord and Tenant 141
Chapter 37: Marriage, Divorce, and Dissolution of Marriage 145
Chapter 38: Divorce Procedure 150
Chapter 39: Business Organization 154
Chapter 40: The Law of Bankruptcy 159
3
Contents
Chapter 1: Court Systems and Jurisdiction 4
Chapter 2: Criminal Trail Procedure 8
Chapter 3: Civil Trial Procedure 11
Chapter 4: Defensive Pleadings in Civil Trials 16
Chapter 5: Methods of Discovery 19
Chapter 6: Pretrial Hearing and Jury Trial 24
Chapter 7: Steps in a Trial 28
Chapter 8: Legal Ethics 32
Chapter 9: Constitutional Law 35
Chapter 10: Crimes, Accomplices, and Defense 38
Chapter 11: Crimes Against Property 41
Chapter 12: Crimes Against the Person and Human Habitation 44
Chapter 13: Homicide 48
Chapter 14: Crimes Against Morality and Drug Abuse 52
Chapter 15: Torts and Tortfeasors 56
Chapter 16: Intentional Torts 60
Chapter 17: Negligence and Product Liability 64
Chapter 18: Formation of Contracts 68
Chapter 19: Contract Requirements 72
Chapter 20: Third Parties and Discharge of Contracts 77
Chapter 21: Personal Property and Bailments 81
Chapter 22: Intellectual Property 85
Chapter 23: Law of Agency 89
Chapter 24: Wills, Testaments, and Advance Directives 93
Chapter 25: Revocation, Lapses, and Ademption 97
Chapter 26: Principal Clauses in a Will 101
Chapter 27: Disinheritance and Intestacy 105
Chapter 28: Personal Representative of the Estate 109
Chapter 29: Settling an Estate 113
Chapter 30: Trusts 117
Chapter 31: Estates in Real Property 121
Chapter 32: Multiple Ownership of Real Property 125
Chapter 33: Acquiring Title to Real Property 129
Chapter 34: Deeds 133
Chapter 35: Mortgages 137
Chapter 36: Landlord and Tenant 141
Chapter 37: Marriage, Divorce, and Dissolution of Marriage 145
Chapter 38: Divorce Procedure 150
Chapter 39: Business Organization 154
Chapter 40: The Law of Bankruptcy 159
Contents
Chapter 1: Court Systems and Jurisdiction 4
Chapter 2: Criminal Trail Procedure 8
Chapter 3: Civil Trial Procedure 11
Chapter 4: Defensive Pleadings in Civil Trials 16
Chapter 5: Methods of Discovery 19
Chapter 6: Pretrial Hearing and Jury Trial 24
Chapter 7: Steps in a Trial 28
Chapter 8: Legal Ethics 32
Chapter 9: Constitutional Law 35
Chapter 10: Crimes, Accomplices, and Defense 38
Chapter 11: Crimes Against Property 41
Chapter 12: Crimes Against the Person and Human Habitation 44
Chapter 13: Homicide 48
Chapter 14: Crimes Against Morality and Drug Abuse 52
Chapter 15: Torts and Tortfeasors 56
Chapter 16: Intentional Torts 60
Chapter 17: Negligence and Product Liability 64
Chapter 18: Formation of Contracts 68
Chapter 19: Contract Requirements 72
Chapter 20: Third Parties and Discharge of Contracts 77
Chapter 21: Personal Property and Bailments 81
Chapter 22: Intellectual Property 85
Chapter 23: Law of Agency 89
Chapter 24: Wills, Testaments, and Advance Directives 93
Chapter 25: Revocation, Lapses, and Ademption 97
Chapter 26: Principal Clauses in a Will 101
Chapter 27: Disinheritance and Intestacy 105
Chapter 28: Personal Representative of the Estate 109
Chapter 29: Settling an Estate 113
Chapter 30: Trusts 117
Chapter 31: Estates in Real Property 121
Chapter 32: Multiple Ownership of Real Property 125
Chapter 33: Acquiring Title to Real Property 129
Chapter 34: Deeds 133
Chapter 35: Mortgages 137
Chapter 36: Landlord and Tenant 141
Chapter 37: Marriage, Divorce, and Dissolution of Marriage 145
Chapter 38: Divorce Procedure 150
Chapter 39: Business Organization 154
Chapter 40: The Law of Bankruptcy 159
4
Chapter 1
Court Systems and Jurisdiction
Ante Interrogatory: D
Chapter Overview
After differentiating between federal and state court systems, Chapter 1 examines the subject of
selecting the court, including matters of jurisdiction. The chapter also explores alternative
dispute resolutions available for those who wish to settle disputes outside of court.
Chapter Objectives
The objectives in chapter 1 are to teach students the difference between federal and state courts,
to help them learn what jurisdiction and venues are, and to enlighten them on the alternative
dispute resolution options.
Lecture Outline
I. Federal Courts
A. U.S. District Court
B. U.S. Court of Appeals
C. U.S. Supreme Court
II. State Courts
A. State Trial Courts
B. State Intermediate Appellate Courts
C. State Supreme Courts
III. Jurisdiction and Venue
A. In Rem Action
B. Quasi in Rem Action
C. In Personam Action
D. Venue
VI. Alternative Dispute Resolution
A. Negotiation
B. Mediation
C. Arbitration
D. Mini-trial
Notes
The Sources of Law box is a side note to students to help them grasp from where law in the
United States comes. Word Wise boxes are helpful to students as they learn about how words
are used in several ways, such as the word “court” in this chapter. The other Word Wise box
addressing the definition “to speak” can help students’ minds connect with words they are
already familiar with in learning new terms. Prefixes and suffixes often indicate a Latin root
word, and as students recognize them, they can remember new term definitions easier.
List of Changes
Two Terms in Action boxes are in every chapter to illustrate how terms are used in real-life
situations. Some are current, quirky stories including celebrities, and others are interesting
historical cases with surprise endings that will help students remember the terms in the chapters.
Chapter 1
Court Systems and Jurisdiction
Ante Interrogatory: D
Chapter Overview
After differentiating between federal and state court systems, Chapter 1 examines the subject of
selecting the court, including matters of jurisdiction. The chapter also explores alternative
dispute resolutions available for those who wish to settle disputes outside of court.
Chapter Objectives
The objectives in chapter 1 are to teach students the difference between federal and state courts,
to help them learn what jurisdiction and venues are, and to enlighten them on the alternative
dispute resolution options.
Lecture Outline
I. Federal Courts
A. U.S. District Court
B. U.S. Court of Appeals
C. U.S. Supreme Court
II. State Courts
A. State Trial Courts
B. State Intermediate Appellate Courts
C. State Supreme Courts
III. Jurisdiction and Venue
A. In Rem Action
B. Quasi in Rem Action
C. In Personam Action
D. Venue
VI. Alternative Dispute Resolution
A. Negotiation
B. Mediation
C. Arbitration
D. Mini-trial
Notes
The Sources of Law box is a side note to students to help them grasp from where law in the
United States comes. Word Wise boxes are helpful to students as they learn about how words
are used in several ways, such as the word “court” in this chapter. The other Word Wise box
addressing the definition “to speak” can help students’ minds connect with words they are
already familiar with in learning new terms. Prefixes and suffixes often indicate a Latin root
word, and as students recognize them, they can remember new term definitions easier.
List of Changes
Two Terms in Action boxes are in every chapter to illustrate how terms are used in real-life
situations. Some are current, quirky stories including celebrities, and others are interesting
historical cases with surprise endings that will help students remember the terms in the chapters.
5
In Chapter 1, the Terms in Action educate the student about courts, jurisdiction and venues. In
the Terms in Action box about Laci Peterson, the story addresses the occurrence of change in
venue.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give to
students as another exercise.
Reviewing What You Learned
1. Federal courts hear cases that raise a federal question (a matter that involves the U.S.
Constitution, acts of Congress, or treason). Federal courts also decide cases that involve
diversity of citizenship (over $75,000) between persons from different states, between
citizens of the United States and a foreign government, and between citizens of the United
States and citizens of a foreign country. In addition, federal courts hear bankruptcy cases,
patent and copyright cases, and admiralty cases.
2. Appeals from a state supreme court may be made to the U.S. Supreme Court only when a
federal or U.S. Constitutional question is raised.
3. U. S. Courts of Appeals decide cases that have been appealed from federal district courts,
4. For a court to have jurisdiction over an action in rem, the property must be located in the
state (and usually the county) where the court sits.
5. If a defendant owns real property in one state and lives in another, the court where the real
property is located has jurisdiction over the property only, not the person.
6. In question 7, if suit is brought against the defendant in the state where the property is
located and the out-of-state defendant does not appear, the plaintiff's recovery will be
limited to an amount up to the value of the property located in that state.
7. To bring a lawsuit against a person and hold him or her personally liable, a personal action,
called an in personam action, must be brought by the plaintiff.
8. If the plaintiff's attorney begins an action in a court of improper venue, the defendant's
attorney may have the case dismissed.
9. Jurisdiction relates to the power of the court to hear a case, whereas venue relates to the
geographic location where the action should be tried.
10. Mediation has a neutral third party (mediator or conciliator) who listens to both sides and
makes suggestions for reaching a solution. The mediator tries to persuade the parties to
compromise and settle their differences. A mediator is not empowered to make parties
settle, but he has authority over the mediation process.
Arbitration has a neutral third party who makes a decision after hearing the arguments of
both sides. Parties have already agreed to resolve their dispute according to a pre-
determined arbitration process. Parties can agree to binding arbitration (arbitrator’s
decision will be final) or non-binding arbitration (arbitrator’s decision is simply
recommended with no need to comply to it).
11. Negotiation is a two-party process that has no help of a neutral third party. The sides
attempt to conclude its dispute by bargaining with each other until one side agrees to the
other side’s offer of settlement. Parties in legal dispute may have legal representation, but
it is not necessary. A written agreement (settlement terms are often kept private) settles the
dispute.
12. Mediation is an informal process in which a neutral third party (mediator or conciliator)
listens to both sides and makes suggestions for reaching a solution. It takes place in stages
and breaks into private sessions called caucuses. The mediator uses his or her listening
skills and the ability to ask probing questions to learn what the interests are behind each
In Chapter 1, the Terms in Action educate the student about courts, jurisdiction and venues. In
the Terms in Action box about Laci Peterson, the story addresses the occurrence of change in
venue.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give to
students as another exercise.
Reviewing What You Learned
1. Federal courts hear cases that raise a federal question (a matter that involves the U.S.
Constitution, acts of Congress, or treason). Federal courts also decide cases that involve
diversity of citizenship (over $75,000) between persons from different states, between
citizens of the United States and a foreign government, and between citizens of the United
States and citizens of a foreign country. In addition, federal courts hear bankruptcy cases,
patent and copyright cases, and admiralty cases.
2. Appeals from a state supreme court may be made to the U.S. Supreme Court only when a
federal or U.S. Constitutional question is raised.
3. U. S. Courts of Appeals decide cases that have been appealed from federal district courts,
4. For a court to have jurisdiction over an action in rem, the property must be located in the
state (and usually the county) where the court sits.
5. If a defendant owns real property in one state and lives in another, the court where the real
property is located has jurisdiction over the property only, not the person.
6. In question 7, if suit is brought against the defendant in the state where the property is
located and the out-of-state defendant does not appear, the plaintiff's recovery will be
limited to an amount up to the value of the property located in that state.
7. To bring a lawsuit against a person and hold him or her personally liable, a personal action,
called an in personam action, must be brought by the plaintiff.
8. If the plaintiff's attorney begins an action in a court of improper venue, the defendant's
attorney may have the case dismissed.
9. Jurisdiction relates to the power of the court to hear a case, whereas venue relates to the
geographic location where the action should be tried.
10. Mediation has a neutral third party (mediator or conciliator) who listens to both sides and
makes suggestions for reaching a solution. The mediator tries to persuade the parties to
compromise and settle their differences. A mediator is not empowered to make parties
settle, but he has authority over the mediation process.
Arbitration has a neutral third party who makes a decision after hearing the arguments of
both sides. Parties have already agreed to resolve their dispute according to a pre-
determined arbitration process. Parties can agree to binding arbitration (arbitrator’s
decision will be final) or non-binding arbitration (arbitrator’s decision is simply
recommended with no need to comply to it).
11. Negotiation is a two-party process that has no help of a neutral third party. The sides
attempt to conclude its dispute by bargaining with each other until one side agrees to the
other side’s offer of settlement. Parties in legal dispute may have legal representation, but
it is not necessary. A written agreement (settlement terms are often kept private) settles the
dispute.
12. Mediation is an informal process in which a neutral third party (mediator or conciliator)
listens to both sides and makes suggestions for reaching a solution. It takes place in stages
and breaks into private sessions called caucuses. The mediator uses his or her listening
skills and the ability to ask probing questions to learn what the interests are behind each
6
side’s demands. From that point on the mediator seeks small gains from each side as he or
she works to bring disputing parties together so a mutually acceptable agreement
(settlement) can be reached. The mediator is not empowered to make the parties settle, but
he or she has the authority over the mediation process.
13. The parties in an arbitration process agree to binding arbitration in advance. It is the
decision that the arbitrator or conciliator (neutral third party) makes in favor of one side,
which must be in writing. It is called the arbitrator’s award.
Understanding Legal Concepts
1. T 6. F, property
2. F, four 7. T
3. T 8. F, property, person
4. T 9. T
5. F, sometimes 10. T
Checking Terminology (Part A)
1. h 5. s 9. m 13. z 17. c
2. v 6. n 10. a, t 14. k 18. b, j
3. q 7. x 11. g 15. l 19. d
4. o 8. y 12. r 16. p 20. e
21. w
Checking Terminology (Part B)
1. h, n 5. l 9. a 13. g 17. j, p
2. e 6. s 10. c 14. v 18. r
3. i, o 7. m 11. d 15. b 19. k
4. f 8. q 12. s 16. u
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this quote in the space
below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
The Appellants argue that Congress’s use of the permissive “may” instead of obligatory “must”
demonstrates an intention to sustain concurrent jurisdiction. While it is true that some courts
have found concurrent jurisdiction because of the use of the permissive “may,” the statues at
issue in such cases did not contain the more potent language contained in this statute: “original
exclusive jurisdiction.” That difference makes the analysis in those cases inapplicable.
Answer:
The party that appealed argued that Congress’s use of “may” instead of “must” in the law shows
that it meant to allow two or more courts to decide the case. Although some courts have decided
cases following that argument, those cases did not have the stronger statutory language with the
words “original exclusive jurisdiction,” which means that only one particular court has the power
to hear the case when it is first brought to trial.
Using Legal Language
To settle a dispute by means other than litigation over who owned the lot next to her, Susan tried
side’s demands. From that point on the mediator seeks small gains from each side as he or
she works to bring disputing parties together so a mutually acceptable agreement
(settlement) can be reached. The mediator is not empowered to make the parties settle, but
he or she has the authority over the mediation process.
13. The parties in an arbitration process agree to binding arbitration in advance. It is the
decision that the arbitrator or conciliator (neutral third party) makes in favor of one side,
which must be in writing. It is called the arbitrator’s award.
Understanding Legal Concepts
1. T 6. F, property
2. F, four 7. T
3. T 8. F, property, person
4. T 9. T
5. F, sometimes 10. T
Checking Terminology (Part A)
1. h 5. s 9. m 13. z 17. c
2. v 6. n 10. a, t 14. k 18. b, j
3. q 7. x 11. g 15. l 19. d
4. o 8. y 12. r 16. p 20. e
21. w
Checking Terminology (Part B)
1. h, n 5. l 9. a 13. g 17. j, p
2. e 6. s 10. c 14. v 18. r
3. i, o 7. m 11. d 15. b 19. k
4. f 8. q 12. s 16. u
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this quote in the space
below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
The Appellants argue that Congress’s use of the permissive “may” instead of obligatory “must”
demonstrates an intention to sustain concurrent jurisdiction. While it is true that some courts
have found concurrent jurisdiction because of the use of the permissive “may,” the statues at
issue in such cases did not contain the more potent language contained in this statute: “original
exclusive jurisdiction.” That difference makes the analysis in those cases inapplicable.
Answer:
The party that appealed argued that Congress’s use of “may” instead of “must” in the law shows
that it meant to allow two or more courts to decide the case. Although some courts have decided
cases following that argument, those cases did not have the stronger statutory language with the
words “original exclusive jurisdiction,” which means that only one particular court has the power
to hear the case when it is first brought to trial.
Using Legal Language
To settle a dispute by means other than litigation over who owned the lot next to her, Susan tried
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7
to get Conrad to participate in a(n) alternate dispute resolution. Conrad wanted to use
negotiation because he didn’t want anyone else involved. Susan wanted to use mediation (also
called conciliation)—an informal process in which a neutral third person listens to both sides
and makes suggestions for reaching a solution. This case was not one involving a defendant who
owned land in one state and lived in another; therefore, it was not a(n) quasi in rem action. The
venue for the trial was Salem because that is where the disputed land was located, and the court
in that city had jurisdiction over the case. Because the case involved title to land, the trial had to
be held in the county where the res was located, and because the suit was directed against
property, it was a(n) in rem action not a(n) in personam action. The suit was a(n) local action
rather than a(n) transitory action because it could only be brought in one place. In addition,
because the Salem court was the only one that had the power to hear the case, it had exclusive
jurisdiction rather than concurrent jurisdiction. Owing to the fact that the case was being tried
for the first time, the court had original jurisdiction not appellate jurisdiction.
to get Conrad to participate in a(n) alternate dispute resolution. Conrad wanted to use
negotiation because he didn’t want anyone else involved. Susan wanted to use mediation (also
called conciliation)—an informal process in which a neutral third person listens to both sides
and makes suggestions for reaching a solution. This case was not one involving a defendant who
owned land in one state and lived in another; therefore, it was not a(n) quasi in rem action. The
venue for the trial was Salem because that is where the disputed land was located, and the court
in that city had jurisdiction over the case. Because the case involved title to land, the trial had to
be held in the county where the res was located, and because the suit was directed against
property, it was a(n) in rem action not a(n) in personam action. The suit was a(n) local action
rather than a(n) transitory action because it could only be brought in one place. In addition,
because the Salem court was the only one that had the power to hear the case, it had exclusive
jurisdiction rather than concurrent jurisdiction. Owing to the fact that the case was being tried
for the first time, the court had original jurisdiction not appellate jurisdiction.
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8
Puzzling Over What You Learned
Puzzling Over What You Learned
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9
Chapter 2
Criminal Trial Procedure
Ante Interrogatory: D
Chapter Overview
Chapter 2 explains criminal trial procedure, beginning the arrest, preliminary hearing,
indictment, and arraignment, followed by sentencing and defendants’ rights.
Chapter Objectives
By studying this chapter, students can learn that the process of criminal cases being taken to
court is governed by rules that have been adopted by federal and state governments. The
procedure is outlined in the chapter, and the rules of criminal procedure may be found on the
Internet for further study. Students will also learn where defendants’ rights come from and what
they are.
Lecture Outline
I. Arrest
II. Preliminary Hearing
III. Indictment
IV. Arraignment
V. Reasonable Doubt
VI. Sentencing
VII. Defendants’ Rights
VIII. Trial Separation
Notes
Miranda Warnings are listed in a box, which can be helpful to the student as they study criminal
procedure.
The Web Wise box encourages students to look at overviews of criminal and civil procedure at
the Legal Information Institute at www.law.cornell.edu and federal procedure rules and Internet
jurisdiction at www.findlaw.com.
List of Changes
The Terms in Action boxes highlights a criminal situation using terms from the chapter and the
longest single prison sentence ever given.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give the
students as another exercise.
Reviewing What You Learned
1. The federal, state, or local government brings the action in a criminal case.
2. A criminal action begins with the issuance of an arrest warrant.
3. If the court finds probable cause that the defendant committed a crime, he or she is either
kept in jail or released on bail or on personal recognizance.
4. A grand jury is a jury consisting of not more than 23 people who listen to evidence and
decide whether or to charge someone with the commission of a crime.
Chapter 2
Criminal Trial Procedure
Ante Interrogatory: D
Chapter Overview
Chapter 2 explains criminal trial procedure, beginning the arrest, preliminary hearing,
indictment, and arraignment, followed by sentencing and defendants’ rights.
Chapter Objectives
By studying this chapter, students can learn that the process of criminal cases being taken to
court is governed by rules that have been adopted by federal and state governments. The
procedure is outlined in the chapter, and the rules of criminal procedure may be found on the
Internet for further study. Students will also learn where defendants’ rights come from and what
they are.
Lecture Outline
I. Arrest
II. Preliminary Hearing
III. Indictment
IV. Arraignment
V. Reasonable Doubt
VI. Sentencing
VII. Defendants’ Rights
VIII. Trial Separation
Notes
Miranda Warnings are listed in a box, which can be helpful to the student as they study criminal
procedure.
The Web Wise box encourages students to look at overviews of criminal and civil procedure at
the Legal Information Institute at www.law.cornell.edu and federal procedure rules and Internet
jurisdiction at www.findlaw.com.
List of Changes
The Terms in Action boxes highlights a criminal situation using terms from the chapter and the
longest single prison sentence ever given.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give the
students as another exercise.
Reviewing What You Learned
1. The federal, state, or local government brings the action in a criminal case.
2. A criminal action begins with the issuance of an arrest warrant.
3. If the court finds probable cause that the defendant committed a crime, he or she is either
kept in jail or released on bail or on personal recognizance.
4. A grand jury is a jury consisting of not more than 23 people who listen to evidence and
decide whether or to charge someone with the commission of a crime.
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10
5. An indictment is a formal written charge made by a grand jury. In contrast, an arraignment
is the act of calling a person before the court to answer the indictment or information.
6. If the judge or jury finds there is a reasonable doubt that the defendant committed the crime,
the accused must be acquitted.
7. When arrested, suspects must be told, before being questioned, that they have the following
constitutional rights: (1) the right to remain silent, (2 any statement made by them may be
used against them to gain conviction, (3) they have the right to consult with a lawyer, and to
have a lawyer present during questioning, (4) a lawyer will be provided without cost for
indigent defendants.
8. Answers will vary. The severity of victim impact can influence the parole boards’ decision
on granting parole.
9. A commutation of a sentence reduces it, making it less severe, whereas a pardon sets aside
the punishment altogether.
10. A bifurcated trial is one that is separated into two parts providing for separate hearings for
different issues in the same lawsuit. In contrast, severance of actions occurs when a court
separates lawsuits or prosecutions involving multiple parties into separate, independent
cases, resulting in separate final judgments. .
Understanding Legal Concepts
1. F, the public at large, is 6. T
2. F, always 7. F, parole
3. T 8. T
4. T 9. F, concurrent
5. F, defendant 10. F, bifurcated trial
Checking Terminology (Part A)
1. h 5. d 9. q 13. g 17. j
2. m 6. b 10. v 14. k, o 18. i
3. p 7. n 11. f 15. x 19. l
4. a 8. e 12. r 16. w 20. c
Checking Terminology (Part B)
1. u 5. p 9. j 13. x 17. k
2. i 6. d 10. b 14. w 18. v
3. m 7. l, n 11. g,h 15. f 19. t
4. * 8. a 12. e 16. s 20. q
21. o
* question appears in 6th edition book, but there is no answer listed for it. Answer is convict.
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this case quote in the
space below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
The parties must disclose the plea agreement in open court when the plea is offered, unless the
court for good cause allows the parties to disclose the pleas agreement in camera.
5. An indictment is a formal written charge made by a grand jury. In contrast, an arraignment
is the act of calling a person before the court to answer the indictment or information.
6. If the judge or jury finds there is a reasonable doubt that the defendant committed the crime,
the accused must be acquitted.
7. When arrested, suspects must be told, before being questioned, that they have the following
constitutional rights: (1) the right to remain silent, (2 any statement made by them may be
used against them to gain conviction, (3) they have the right to consult with a lawyer, and to
have a lawyer present during questioning, (4) a lawyer will be provided without cost for
indigent defendants.
8. Answers will vary. The severity of victim impact can influence the parole boards’ decision
on granting parole.
9. A commutation of a sentence reduces it, making it less severe, whereas a pardon sets aside
the punishment altogether.
10. A bifurcated trial is one that is separated into two parts providing for separate hearings for
different issues in the same lawsuit. In contrast, severance of actions occurs when a court
separates lawsuits or prosecutions involving multiple parties into separate, independent
cases, resulting in separate final judgments. .
Understanding Legal Concepts
1. F, the public at large, is 6. T
2. F, always 7. F, parole
3. T 8. T
4. T 9. F, concurrent
5. F, defendant 10. F, bifurcated trial
Checking Terminology (Part A)
1. h 5. d 9. q 13. g 17. j
2. m 6. b 10. v 14. k, o 18. i
3. p 7. n 11. f 15. x 19. l
4. a 8. e 12. r 16. w 20. c
Checking Terminology (Part B)
1. u 5. p 9. j 13. x 17. k
2. i 6. d 10. b 14. w 18. v
3. m 7. l, n 11. g,h 15. f 19. t
4. * 8. a 12. e 16. s 20. q
21. o
* question appears in 6th edition book, but there is no answer listed for it. Answer is convict.
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this case quote in the
space below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
The parties must disclose the plea agreement in open court when the plea is offered, unless the
court for good cause allows the parties to disclose the pleas agreement in camera.
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Answer:
The prosecution and defense must reveal plea bargains in open court for everyone to hear, unless
there is a good reason for the judge to allow it to be revealed in the privacy of his or her office.
Using Legal Language
Alphonse, high on drugs and carrying a handgun, broke into Krista’s apartment one evening,
unaware that Krista and her dog, Lilly, were present. Lilly lunged at the surprised Alphonse,
causing him to shoot himself in the foot. Krista disarmed the bleeding Alphonse and called 911.
When the police arrived, Alphonse was placed under arrest; that is, deprived of his liberty. He
was also told about his rights, called Miranda warnings. The next morning, Alphonse went
before the court for a preliminary hearing, which is also called a probable cause hearing. The
judge set a high bail to assure Alphonse’s return to stand trial. The district attorney presented the
case to a grand jury, which issued an indictment—a formal written charge of a crime. This was
followed by a court appearance called an arraignment at which Alphonse pleaded not guilty,
denying that he had committed the crime. The trial that followed was governed by regulations
known as rules of criminal procedure. The state brought the action, that is, prosecuted, against
Alphonse who was the defendant. To find Alphonse guilty, the jury, that is, the fact finder, was
required to find beyond a reasonable doubt that Alphonse committed the crime. At the time of
sentencing, Krista was able to give a victim’s impact statement pointing out the effect the crime
had on her life. Alphonse was given a mandatory sentence—one that is fixed with no room for
discretion.
Answer:
The prosecution and defense must reveal plea bargains in open court for everyone to hear, unless
there is a good reason for the judge to allow it to be revealed in the privacy of his or her office.
Using Legal Language
Alphonse, high on drugs and carrying a handgun, broke into Krista’s apartment one evening,
unaware that Krista and her dog, Lilly, were present. Lilly lunged at the surprised Alphonse,
causing him to shoot himself in the foot. Krista disarmed the bleeding Alphonse and called 911.
When the police arrived, Alphonse was placed under arrest; that is, deprived of his liberty. He
was also told about his rights, called Miranda warnings. The next morning, Alphonse went
before the court for a preliminary hearing, which is also called a probable cause hearing. The
judge set a high bail to assure Alphonse’s return to stand trial. The district attorney presented the
case to a grand jury, which issued an indictment—a formal written charge of a crime. This was
followed by a court appearance called an arraignment at which Alphonse pleaded not guilty,
denying that he had committed the crime. The trial that followed was governed by regulations
known as rules of criminal procedure. The state brought the action, that is, prosecuted, against
Alphonse who was the defendant. To find Alphonse guilty, the jury, that is, the fact finder, was
required to find beyond a reasonable doubt that Alphonse committed the crime. At the time of
sentencing, Krista was able to give a victim’s impact statement pointing out the effect the crime
had on her life. Alphonse was given a mandatory sentence—one that is fixed with no room for
discretion.
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Puzzling Over What You Learned
Puzzling Over What You Learned
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Chapter 3
Civil Trial Procedure
Ante Interrogatory: A
Chapter Overview
Chapter 3 discusses civil trial procedure including court selection, pleadings, service of process,
and attachments.
Chapter Objectives
This chapter is intended to help students learn about civil actions – lawsuits other than criminal
ones – which come about when two or more people are involved in a dispute that they are unable
to settle by themselves. The procedure is outlined for the students to learn.
Lecture Outline
I. Beginning a Civil Action
II. Selecting the Court
III. Pleadings
IV. Service of Process
A. The Answer
B. Default Judgment
V. Attachments
A. Ex Parte Hearing
B. Writ of Attachment
C. Trustee Process and Garnishment
VI. Burden of Proof
VII. Enforcing the Judgment
VIII. Summary Proceedings
Notes
The Latin word for “truth” is discovered in the Word Wise box. Other words with the same root
(ver) are listed to help students remember definitions.
A small highlighted area contrasts the differences between Criminal and Civil Actions by asking
questions to help students remember the differences.
List of Changes
The Terms in Action boxes have interesting tidbits featuring the movie “Pineapple Express,”
billionaire Mark Zuckerberg (Facebook creator), and former football star O.J. Simpson to
illustrate how terms like process server, civil complaints, service or process, attachment and
garnishment are used.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give the
students as another exercise.
Reviewing What You Learned
1. To begin a civil suit, the plaintiff's attorney files a complaint with the clerk of the court.
Chapter 3
Civil Trial Procedure
Ante Interrogatory: A
Chapter Overview
Chapter 3 discusses civil trial procedure including court selection, pleadings, service of process,
and attachments.
Chapter Objectives
This chapter is intended to help students learn about civil actions – lawsuits other than criminal
ones – which come about when two or more people are involved in a dispute that they are unable
to settle by themselves. The procedure is outlined for the students to learn.
Lecture Outline
I. Beginning a Civil Action
II. Selecting the Court
III. Pleadings
IV. Service of Process
A. The Answer
B. Default Judgment
V. Attachments
A. Ex Parte Hearing
B. Writ of Attachment
C. Trustee Process and Garnishment
VI. Burden of Proof
VII. Enforcing the Judgment
VIII. Summary Proceedings
Notes
The Latin word for “truth” is discovered in the Word Wise box. Other words with the same root
(ver) are listed to help students remember definitions.
A small highlighted area contrasts the differences between Criminal and Civil Actions by asking
questions to help students remember the differences.
List of Changes
The Terms in Action boxes have interesting tidbits featuring the movie “Pineapple Express,”
billionaire Mark Zuckerberg (Facebook creator), and former football star O.J. Simpson to
illustrate how terms like process server, civil complaints, service or process, attachment and
garnishment are used.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give the
students as another exercise.
Reviewing What You Learned
1. To begin a civil suit, the plaintiff's attorney files a complaint with the clerk of the court.
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14
2. Pleadings serve the purpose of giving notice to all parties of the claims and defenses in the
suit and narrow the issues for trial so that both parties and the court know the legal issues
that must be decided.
3. The defendant is notified of the suit by a method known as process. A summons is obtained
from the court, filled out, and given, along with a copy of the complaint, to a process server
who delivers copies of the summons and complaint to the defendant.
4. Process may be served by delivering a copy of the summons and complaint to the defendant
personally, by leaving it at the defendant's last and usual place of abode, or by delivering
them to the defendant's agent or publishing them in a newspaper.
5. If the defendant is a corporation, process may be served on an officer of the corporation, on
a general agent of the corporation, or on the person in charge of the corporation's principal
place of business.
6. Plaintiffs can be assured that money will be available for them by attaching the defendant's
property at the beginning of the action.
7. Under a typical state law, the plaintiff's attorney files with the court a motion for attachment
and an affidavit signed by the plaintiff stating facts that would warrant a judgment for the
plaintiff.
8. The defendant is notified of the plaintiff's motion for attachment through service of process
by a process server.
9. The court may allow the attachment if it finds that a reasonable likelihood exists that the
plaintiff will recover a judgment against the defendant for the amount of the attachment over
and above any insurance coverage that the defendant has.
10. The court may allow the attachment without notifying the defendant if it finds (1) that the
defendant is not within its jurisdiction but that the defendant's property is, (2) that a danger
exists that the defendant will conceal the property or sell it or remove it from the state, or (3)
that a danger exists that the defendant will damage or destroy the property.
11. When real property is attached, the writ of attachment or notice of lis pendens is recorded at
the registry of deeds in the county where the property is located.
12. The statute of limitations is a set time limit for how long plaintiffs can wait, after the
plaintiff is aware of the action, to file a lawsuit. Time limits vary according to the kind of
suit being filed, but in most jurisdictions the statute of limitations for personal injury is two
years. This is important because this encourages plaintiffs to bring ripe claims to court
before evidence becomes too old.
Understanding Legal Concepts
1. F, complaint 6. F, one
2. T 7. T
3. F, summons 8. F, registry of deeds
4. T 9. F, trustee process of garnishment
5. T 10. T
Checking Terminology (Part A)
1. r 5. v 9. s 13. e 17. z
2. k, n 6. u, aa 10. b 14. o 18. bb
3. f 7. w 11. l 15. x 19. c (only one)
4. a, q 8. h 12. t 16. y 20. d, g
21. m
22. p
2. Pleadings serve the purpose of giving notice to all parties of the claims and defenses in the
suit and narrow the issues for trial so that both parties and the court know the legal issues
that must be decided.
3. The defendant is notified of the suit by a method known as process. A summons is obtained
from the court, filled out, and given, along with a copy of the complaint, to a process server
who delivers copies of the summons and complaint to the defendant.
4. Process may be served by delivering a copy of the summons and complaint to the defendant
personally, by leaving it at the defendant's last and usual place of abode, or by delivering
them to the defendant's agent or publishing them in a newspaper.
5. If the defendant is a corporation, process may be served on an officer of the corporation, on
a general agent of the corporation, or on the person in charge of the corporation's principal
place of business.
6. Plaintiffs can be assured that money will be available for them by attaching the defendant's
property at the beginning of the action.
7. Under a typical state law, the plaintiff's attorney files with the court a motion for attachment
and an affidavit signed by the plaintiff stating facts that would warrant a judgment for the
plaintiff.
8. The defendant is notified of the plaintiff's motion for attachment through service of process
by a process server.
9. The court may allow the attachment if it finds that a reasonable likelihood exists that the
plaintiff will recover a judgment against the defendant for the amount of the attachment over
and above any insurance coverage that the defendant has.
10. The court may allow the attachment without notifying the defendant if it finds (1) that the
defendant is not within its jurisdiction but that the defendant's property is, (2) that a danger
exists that the defendant will conceal the property or sell it or remove it from the state, or (3)
that a danger exists that the defendant will damage or destroy the property.
11. When real property is attached, the writ of attachment or notice of lis pendens is recorded at
the registry of deeds in the county where the property is located.
12. The statute of limitations is a set time limit for how long plaintiffs can wait, after the
plaintiff is aware of the action, to file a lawsuit. Time limits vary according to the kind of
suit being filed, but in most jurisdictions the statute of limitations for personal injury is two
years. This is important because this encourages plaintiffs to bring ripe claims to court
before evidence becomes too old.
Understanding Legal Concepts
1. F, complaint 6. F, one
2. T 7. T
3. F, summons 8. F, registry of deeds
4. T 9. F, trustee process of garnishment
5. T 10. T
Checking Terminology (Part A)
1. r 5. v 9. s 13. e 17. z
2. k, n 6. u, aa 10. b 14. o 18. bb
3. f 7. w 11. l 15. x 19. c (only one)
4. a, q 8. h 12. t 16. y 20. d, g
21. m
22. p
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Checking Terminology (Part B)
1. c 6. a 11. p 16. g 21. n
2. l 7. i 12. q, r 17. k 22. h
3. cc* 8. o 13. w 18. m 23. d
4. e 9. x 14. s 19. b
5. j 10. e 15. u 20. v
* Term is in Part A
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this quote in the space
below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
Averments in a pleading to which a responsive pleading is required, other than those as to the
amounts of damage, are admitted when not denied in the responsive pleading. [Rule 8(d) Federal
Rules of Civil Procedure]
Answer:
Claims that a party expects to prove in a written, court-filed statement, which require a response
from the opposite party (other than the amount of damages, will be treated as admitted if the
opposite party does not deny them in a court-filed statement.
Using Legal Language
After checking to see whether the client’s case wasn’t too old, but was still within the statute of
limitations, the attorney began the lawsuit by filing the complaint, which is the plaintiff's first
pleading, with the clerk of the court who assigned a docket number to the case to identify it.
The attorney then had the process server serve copies of the summons and complaint on the
defendant who was called a(n) Doe defendant because of an unknown name. Because of the fact
that process—that is, the means for compelling the defendant to appear in court—occurred by
leaving the papers at the defendant's last and usual place of abode, it was not personal service;
instead it was called constructive service. The attorney also filed a motion for a(n) attachment
at a(n) ex parte session of the court to place a(n) lien, which is also called a(n) encumbrance,
on the defendant's real property without the defendant being notified beforehand. Along with the
motion, the attorney was required to file a(n) affidavit, which was signed under oath by the
client who was called the affiant or deponent. The attachment was allowed by the court, and the
writ of attachment was recorded at the Registry of Deeds. Because this did not involve the
attachment of property in the hands of a third party, trustee process, which is also called
garnishment, was not used. When the case was ready for trial, it was placed on the trial docket,
which is sometimes referred to as the trial list.
Puzzling Over What You Learned
The student textbook should have instructions under Caveat to allow squares for spaces.
Checking Terminology (Part B)
1. c 6. a 11. p 16. g 21. n
2. l 7. i 12. q, r 17. k 22. h
3. cc* 8. o 13. w 18. m 23. d
4. e 9. x 14. s 19. b
5. j 10. e 15. u 20. v
* Term is in Part A
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this quote in the space
below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
Averments in a pleading to which a responsive pleading is required, other than those as to the
amounts of damage, are admitted when not denied in the responsive pleading. [Rule 8(d) Federal
Rules of Civil Procedure]
Answer:
Claims that a party expects to prove in a written, court-filed statement, which require a response
from the opposite party (other than the amount of damages, will be treated as admitted if the
opposite party does not deny them in a court-filed statement.
Using Legal Language
After checking to see whether the client’s case wasn’t too old, but was still within the statute of
limitations, the attorney began the lawsuit by filing the complaint, which is the plaintiff's first
pleading, with the clerk of the court who assigned a docket number to the case to identify it.
The attorney then had the process server serve copies of the summons and complaint on the
defendant who was called a(n) Doe defendant because of an unknown name. Because of the fact
that process—that is, the means for compelling the defendant to appear in court—occurred by
leaving the papers at the defendant's last and usual place of abode, it was not personal service;
instead it was called constructive service. The attorney also filed a motion for a(n) attachment
at a(n) ex parte session of the court to place a(n) lien, which is also called a(n) encumbrance,
on the defendant's real property without the defendant being notified beforehand. Along with the
motion, the attorney was required to file a(n) affidavit, which was signed under oath by the
client who was called the affiant or deponent. The attachment was allowed by the court, and the
writ of attachment was recorded at the Registry of Deeds. Because this did not involve the
attachment of property in the hands of a third party, trustee process, which is also called
garnishment, was not used. When the case was ready for trial, it was placed on the trial docket,
which is sometimes referred to as the trial list.
Puzzling Over What You Learned
The student textbook should have instructions under Caveat to allow squares for spaces.
Loading page 15...
16
Puzzling Over What You Learned
Puzzling Over What You Learned
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Chapter 4
Defensive Pleadings in Civil Trials
Ante Interrogatory: B
Chapter Overview
Chapter 4 explains defensive pleadings including the demurrer, five commonly used motions, the
defendant’s answer, the counterclaim, the cross-claim, and the cross-complaint.
Chapter Objectives
This chapter is intended to help the student further understand the civil trial procedure, focusing
on defensive pleadings. It is expected that the students will learn the motions used in defensive
pleadings and be able to discuss the defendant’s answer, as well as affirmative defenses,
counterclaims, cross-claims and cross-complaints
Lecture Outline
I. Demurrer
II. Motions
A. Motion to Dismiss
B. Motion for a More Definite Statement
C. Motion to Strike
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgement
III. Defendant’s Answer / Affirmative Defenses
IV. Counterclaim
V. Cross-Claim
VI. Cross- Complaint
Notes
The Word Wise box defines what compound words are – the joining of two or more words
already in usage to create a new word with a new meaning. The term counterclaim, introduced
in this chapter, is such a word. Further common examples are listed to reinforce the concept,
with methods on how to make compound words.
The Web Wise box lets students know of a website to customize flash cards for terms.
List of Changes
Terms in Action boxes illustrate the use of nine different terms in startling real life stories.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give the
students as another exercise.
Reviewing What You Learned
1. After being served with a summons and a complaint, the defendant must file one or more
defensive pleadings within a certain number of days from the date of service of the
summons. If this is not done, the defendant may lose the case by default.
2. Grounds for a demurrer include (a) the complaint does not state facts sufficient to constitute
Chapter 4
Defensive Pleadings in Civil Trials
Ante Interrogatory: B
Chapter Overview
Chapter 4 explains defensive pleadings including the demurrer, five commonly used motions, the
defendant’s answer, the counterclaim, the cross-claim, and the cross-complaint.
Chapter Objectives
This chapter is intended to help the student further understand the civil trial procedure, focusing
on defensive pleadings. It is expected that the students will learn the motions used in defensive
pleadings and be able to discuss the defendant’s answer, as well as affirmative defenses,
counterclaims, cross-claims and cross-complaints
Lecture Outline
I. Demurrer
II. Motions
A. Motion to Dismiss
B. Motion for a More Definite Statement
C. Motion to Strike
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgement
III. Defendant’s Answer / Affirmative Defenses
IV. Counterclaim
V. Cross-Claim
VI. Cross- Complaint
Notes
The Word Wise box defines what compound words are – the joining of two or more words
already in usage to create a new word with a new meaning. The term counterclaim, introduced
in this chapter, is such a word. Further common examples are listed to reinforce the concept,
with methods on how to make compound words.
The Web Wise box lets students know of a website to customize flash cards for terms.
List of Changes
Terms in Action boxes illustrate the use of nine different terms in startling real life stories.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give the
students as another exercise.
Reviewing What You Learned
1. After being served with a summons and a complaint, the defendant must file one or more
defensive pleadings within a certain number of days from the date of service of the
summons. If this is not done, the defendant may lose the case by default.
2. Grounds for a demurrer include (a) the complaint does not state facts sufficient to constitute
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a cause of action, (b) the court has no jurisdiction over the subject matter of the case, (c) the
plaintiff has no legal capacity to sue, (d) another action is pending between the same parties
for the same cause, and (e) a defect or misjoinder of the parties in the suit exists.
3. Usually the attorneys attend the hearing without their clients and argue for and against the
demurrer.
4. Four important defense motions are: (a) motion to dismiss, (b) motion for a more definite
statement, (c) motion to strike, and (d) motion for judgment on the pleadings.
5. The attorneys for each party attend the motion session and argue their viewpoint as to the
merits of the motion. The judge makes a decision either to allow or deny the motion.
6. If the motion to dismiss is denied, the defendant is given a certain number of days to file an
answer.
7. Three grounds for a motion to dismiss are: (a) lack of jurisdiction over the subject matter of
the case, (b) lack of jurisdiction over the defendant personally, and (c) improper venue.
8. If a pleading is so vague that the other party cannot properly respond to it, a motion for a
more definite statement may be made.
9. A motion to strike may be used by either party to have stricken from any pleading any
insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.
10. A motion for judgment on the pleadings may be made by a plaintiff on the ground that the
defendant's answer does not set forth a legally sufficient defense. A defendant might make
such a motion on the ground that the plaintiff's complaint does not state a claim on which
relief can be granted.
11. The defendant's answer must state in short and plain terms the defenses he or she wishes to
assert. In addition, each of the claims made by the plaintiff must be admitted or denied.
12. If the defendant fails to deny an allegation made in the plaintiff's complaint, it is
automatically admitted.
13. If an affirmative defense is omitted from the answer, the defense is lost and cannot be used
later.
14. Three affirmative defenses are: (a) accord and satisfaction, (b) contributory negligence, and
(c) failure of consideration.
15. If the defendant wishes to bring a suit against the plaintiff, he or she will file a counterclaim.
It is made part of the defendant's answer.
16. The plaintiff is required to file a reply to the defendant's counterclaim within a prescribed
number of days after receiving the counterclaim.
17. A crossclaim is brought by one defendant against another defendant in the same suit. The
subject matter of the cross claim must arise out of the same transaction or occurrence as that
of the original suit.
Understanding Legal Concepts
1. F, 30 6. T
2. F, overrules 7. T
3. T 8. T
4. T 9. F, admits
5. F, either party 10. F, counterclaim
Checking Terminology
1. m 6. w 11. x 16. z 21. aa
2. q 7. i 12. s 17. k 22. g
3. j 8. e 13. f 18. bb 23. r
a cause of action, (b) the court has no jurisdiction over the subject matter of the case, (c) the
plaintiff has no legal capacity to sue, (d) another action is pending between the same parties
for the same cause, and (e) a defect or misjoinder of the parties in the suit exists.
3. Usually the attorneys attend the hearing without their clients and argue for and against the
demurrer.
4. Four important defense motions are: (a) motion to dismiss, (b) motion for a more definite
statement, (c) motion to strike, and (d) motion for judgment on the pleadings.
5. The attorneys for each party attend the motion session and argue their viewpoint as to the
merits of the motion. The judge makes a decision either to allow or deny the motion.
6. If the motion to dismiss is denied, the defendant is given a certain number of days to file an
answer.
7. Three grounds for a motion to dismiss are: (a) lack of jurisdiction over the subject matter of
the case, (b) lack of jurisdiction over the defendant personally, and (c) improper venue.
8. If a pleading is so vague that the other party cannot properly respond to it, a motion for a
more definite statement may be made.
9. A motion to strike may be used by either party to have stricken from any pleading any
insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.
10. A motion for judgment on the pleadings may be made by a plaintiff on the ground that the
defendant's answer does not set forth a legally sufficient defense. A defendant might make
such a motion on the ground that the plaintiff's complaint does not state a claim on which
relief can be granted.
11. The defendant's answer must state in short and plain terms the defenses he or she wishes to
assert. In addition, each of the claims made by the plaintiff must be admitted or denied.
12. If the defendant fails to deny an allegation made in the plaintiff's complaint, it is
automatically admitted.
13. If an affirmative defense is omitted from the answer, the defense is lost and cannot be used
later.
14. Three affirmative defenses are: (a) accord and satisfaction, (b) contributory negligence, and
(c) failure of consideration.
15. If the defendant wishes to bring a suit against the plaintiff, he or she will file a counterclaim.
It is made part of the defendant's answer.
16. The plaintiff is required to file a reply to the defendant's counterclaim within a prescribed
number of days after receiving the counterclaim.
17. A crossclaim is brought by one defendant against another defendant in the same suit. The
subject matter of the cross claim must arise out of the same transaction or occurrence as that
of the original suit.
Understanding Legal Concepts
1. F, 30 6. T
2. F, overrules 7. T
3. T 8. T
4. T 9. F, admits
5. F, either party 10. F, counterclaim
Checking Terminology
1. m 6. w 11. x 16. z 21. aa
2. q 7. i 12. s 17. k 22. g
3. j 8. e 13. f 18. bb 23. r
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19
4. d 9. y 14. o 19. t 24. v
5. dd 10. a,c 15. b 20. p
Sharpening Your Latin Skills
ad damnum—to the damage; money loss claimed by the plaintiff
ex parte—apart from; one side only
in personam—against or with reference to a person
in rem—against the thing
lis pendens—pending suit
nolo contendere—I will not contest the action
quasi in rem—as if against the thing
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this quote in the space
below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory judgment
is sought may, at any time, move with or without supporting affidavits for a summary judgment
in the party’s favor as to all or any part thereof. [Rule 56(b) Federal Rules of Civil Procedure]
Answer:
A party against whom a lawsuit is brought may, at any time, ask for an immediate
decision by the court without going to trial based on the papers filed by the parties.
Using Legal Language
After reading the allegations in the plaintiff's complaint and determining that they were not
vague, the attorney for the defendant decided not to file a motion for a more definite statement.
Similarly, because the complaint contained nothing that was redundant, immaterial, impertinent,
or scandalous, the attorney for the defendant did not file a motion to strike. The attorney did,
however, file a(n) motion to dismiss on the ground of misnomer (mistake in name) of a party.
A(n) dismissal is an order disposing of an action without trial of the issues. When the
defendant's motion was disallowed by the court, the defendant's attorney filed a(n) answer
within the prescribed time, which contained the affirmative defense (called a(n) confession and
avoidance under the common law) of the statute of frauds. Neither party filed a(n) motion for
judgment on the pleadings, which may be filed only after the plaintiff's complaint and
defendant's answer have been filed and which replaces the older demurrer. The defendant's
attorney also filed a(n) counterclaim to bring a claim against the plaintiff, which arose out of the
same transaction. In answer to this claim, the plaintiff filed a(n) reply. Because the case did not
have two defendants, no cross claim was filed.
4. d 9. y 14. o 19. t 24. v
5. dd 10. a,c 15. b 20. p
Sharpening Your Latin Skills
ad damnum—to the damage; money loss claimed by the plaintiff
ex parte—apart from; one side only
in personam—against or with reference to a person
in rem—against the thing
lis pendens—pending suit
nolo contendere—I will not contest the action
quasi in rem—as if against the thing
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this quote in the space
below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
A party against whom a claim, counterclaim, or cross claim is asserted or a declaratory judgment
is sought may, at any time, move with or without supporting affidavits for a summary judgment
in the party’s favor as to all or any part thereof. [Rule 56(b) Federal Rules of Civil Procedure]
Answer:
A party against whom a lawsuit is brought may, at any time, ask for an immediate
decision by the court without going to trial based on the papers filed by the parties.
Using Legal Language
After reading the allegations in the plaintiff's complaint and determining that they were not
vague, the attorney for the defendant decided not to file a motion for a more definite statement.
Similarly, because the complaint contained nothing that was redundant, immaterial, impertinent,
or scandalous, the attorney for the defendant did not file a motion to strike. The attorney did,
however, file a(n) motion to dismiss on the ground of misnomer (mistake in name) of a party.
A(n) dismissal is an order disposing of an action without trial of the issues. When the
defendant's motion was disallowed by the court, the defendant's attorney filed a(n) answer
within the prescribed time, which contained the affirmative defense (called a(n) confession and
avoidance under the common law) of the statute of frauds. Neither party filed a(n) motion for
judgment on the pleadings, which may be filed only after the plaintiff's complaint and
defendant's answer have been filed and which replaces the older demurrer. The defendant's
attorney also filed a(n) counterclaim to bring a claim against the plaintiff, which arose out of the
same transaction. In answer to this claim, the plaintiff filed a(n) reply. Because the case did not
have two defendants, no cross claim was filed.
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Puzzling Over What You Learned
Puzzling Over What You Learned
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Chapter 5
Methods of Discovery
Ante Interrogatory: D
Chapter Overview
Methods of discovery, including bills of particular, interrogatories, and depositions, production
of documents and things, permission to enter on land, physical and mental examinations, and
requests for admission are examined in this chapter.
Chapter Objectives
This chapter teaches students that attorneys often enter into stipulations about many aspects to a
case, and methods of discovery have been established to allow each party to obtain information
from the other party and from witnesses about the case before going to trial. In this way, real
issues in the case are exposed early, and much less time is wasted. The common methods of
discovery are taught in this chapter.
Lecture Outline
I. Bills of Particular
II. Interrogatories
III. Depositions
A. Depositions on Oral Examination
B. Depositions of Witnesses on Written Questions
C. Use of Depositions in Court Proceedings
IV. Production of Documents and Things
V. E-Discovery
VI. Permission to Enter on Land
VII. Physical and Mental Examination
VIII. Requests for Admission
Notes
The Web Wise box lists web sites and blogs that have been created to inform the legal
community about recent changes to e-discovery rules, or to provide case dealing with e-
discovery controversies.
The Word Wise box lists three common time prefixes, re-, post-, and pre-, with the meanings and
word examples, which appear in legal situations. If students use the Word Wise boxes to
increase their knowledge about the formation of words, then this can help them in figuring out
definitions when there is uncertainty.
List of Changes
Terms in Action discuss a $35-million-dollar gift to Princeton University, which was fought by
the donor’s children, and an e-discovery scenario to enlighten students on how discovery terms
are used in real situations.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give the
students as another exercise.
Chapter 5
Methods of Discovery
Ante Interrogatory: D
Chapter Overview
Methods of discovery, including bills of particular, interrogatories, and depositions, production
of documents and things, permission to enter on land, physical and mental examinations, and
requests for admission are examined in this chapter.
Chapter Objectives
This chapter teaches students that attorneys often enter into stipulations about many aspects to a
case, and methods of discovery have been established to allow each party to obtain information
from the other party and from witnesses about the case before going to trial. In this way, real
issues in the case are exposed early, and much less time is wasted. The common methods of
discovery are taught in this chapter.
Lecture Outline
I. Bills of Particular
II. Interrogatories
III. Depositions
A. Depositions on Oral Examination
B. Depositions of Witnesses on Written Questions
C. Use of Depositions in Court Proceedings
IV. Production of Documents and Things
V. E-Discovery
VI. Permission to Enter on Land
VII. Physical and Mental Examination
VIII. Requests for Admission
Notes
The Web Wise box lists web sites and blogs that have been created to inform the legal
community about recent changes to e-discovery rules, or to provide case dealing with e-
discovery controversies.
The Word Wise box lists three common time prefixes, re-, post-, and pre-, with the meanings and
word examples, which appear in legal situations. If students use the Word Wise boxes to
increase their knowledge about the formation of words, then this can help them in figuring out
definitions when there is uncertainty.
List of Changes
Terms in Action discuss a $35-million-dollar gift to Princeton University, which was fought by
the donor’s children, and an e-discovery scenario to enlighten students on how discovery terms
are used in real situations.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give the
students as another exercise.
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Reviewing What You Learned
1. Years ago, it was considered good legal practice for one party to a lawsuit to give the other
party as little information as possible about the case before the trial. Today the opposite is
true.
2. The seven most common methods of discovery are bill of particulars, interrogatories,
depositions, production of documents and things, permission to enter on land, physical and
mental examinations, and requests for admission.
3. After an action has begun, any party to a suit may ask written questions of any other party to
the suit.
4. Interrogatories must be answered in writing and signed by the client answering them under
the penalties of perjury.
5. Two principal types of depositions are (a) depositions on oral examination and (b)
depositions of witnesses on written questions.
6. Depositions are taken before persons authorized to administer oaths, such as a notary public.
The testimony is taken down by a stenographer, unless the court authorizes some other
method of recording it.
7. After the testimony is transcribed by the stenographer, it is either read or shown to the
witness whose testimony it is. Any changes that the witness desires to make are written on
the deposition by the officer who administered the oath with reasons given by the witness
for making the changes. The deposition is signed by the witness or a reason is noted for the
witness's failure to sign. It is then filed with the court in most states.
8. In some states, after depositions on written questions are served, a party may serve cross
questions, the other party may serve redirect questions, and these may be followed by
recross questions.
9. Depositions may be used in court to contradict any contrary testimony of a witness. They
may also be used at the trial if the witness is dead, is at a greater distance than 100 miles
from the place of the trial, is unable to testify because of age, sickness, infirmity, or
imprisonment, or other exceptional circumstances that would make it desirable that the
deposition be used.
10. A party requested to produce documents must serve a written response within a prescribed
number of days after the service of the request stating that the request will be permitted or
that it is objected to with reasons given for any objection.
11. Requests for permission to enter on land may be for the purpose of inspection, measuring,
surveying, photographing, testing, or sampling the property.
12. When the mental or physical condition of a party is in controversy, the court may order the
party to submit to a physical or mental examination.
13. A party who is requested to admit a particular matter must file a written answer stating
under the penalties of perjury either: (1) denial of the matter; (2) a reason why the answering
party cannot truthfully admit or deny the matter; or (3) an objection, with reasons, to the
request.
14. Any information that is stored electronically rather than on paper may be discovered by
parties and is called e-discovery.
15. In 2006, the Federal Rules of Civil Procedure were amended to reflect the growth of e-
discovery. It included a definition of ESI(electronically stored information), and the
acknowledgment that ESI is discoverable, including metadata.
16. When documents are created on a computer, another form of data is created “underneath”
the document, such as dates files were accessed, whose computers were being used, and the
various changes made to the files before they were saved as final drafts. Metadata are like
Reviewing What You Learned
1. Years ago, it was considered good legal practice for one party to a lawsuit to give the other
party as little information as possible about the case before the trial. Today the opposite is
true.
2. The seven most common methods of discovery are bill of particulars, interrogatories,
depositions, production of documents and things, permission to enter on land, physical and
mental examinations, and requests for admission.
3. After an action has begun, any party to a suit may ask written questions of any other party to
the suit.
4. Interrogatories must be answered in writing and signed by the client answering them under
the penalties of perjury.
5. Two principal types of depositions are (a) depositions on oral examination and (b)
depositions of witnesses on written questions.
6. Depositions are taken before persons authorized to administer oaths, such as a notary public.
The testimony is taken down by a stenographer, unless the court authorizes some other
method of recording it.
7. After the testimony is transcribed by the stenographer, it is either read or shown to the
witness whose testimony it is. Any changes that the witness desires to make are written on
the deposition by the officer who administered the oath with reasons given by the witness
for making the changes. The deposition is signed by the witness or a reason is noted for the
witness's failure to sign. It is then filed with the court in most states.
8. In some states, after depositions on written questions are served, a party may serve cross
questions, the other party may serve redirect questions, and these may be followed by
recross questions.
9. Depositions may be used in court to contradict any contrary testimony of a witness. They
may also be used at the trial if the witness is dead, is at a greater distance than 100 miles
from the place of the trial, is unable to testify because of age, sickness, infirmity, or
imprisonment, or other exceptional circumstances that would make it desirable that the
deposition be used.
10. A party requested to produce documents must serve a written response within a prescribed
number of days after the service of the request stating that the request will be permitted or
that it is objected to with reasons given for any objection.
11. Requests for permission to enter on land may be for the purpose of inspection, measuring,
surveying, photographing, testing, or sampling the property.
12. When the mental or physical condition of a party is in controversy, the court may order the
party to submit to a physical or mental examination.
13. A party who is requested to admit a particular matter must file a written answer stating
under the penalties of perjury either: (1) denial of the matter; (2) a reason why the answering
party cannot truthfully admit or deny the matter; or (3) an objection, with reasons, to the
request.
14. Any information that is stored electronically rather than on paper may be discovered by
parties and is called e-discovery.
15. In 2006, the Federal Rules of Civil Procedure were amended to reflect the growth of e-
discovery. It included a definition of ESI(electronically stored information), and the
acknowledgment that ESI is discoverable, including metadata.
16. When documents are created on a computer, another form of data is created “underneath”
the document, such as dates files were accessed, whose computers were being used, and the
various changes made to the files before they were saved as final drafts. Metadata are like
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an electronic fingerprint, and they are discoverable.
Understanding Legal Concepts
1. F, often 6. T
2. T 7. F, may not
3. F, client 8. T
4. F, not in 9. F, or
5. T 10. T
Checking Terminology
1. q 5. x,y 9. d 13. s 17. i
2. h 6. z 10. w 14. g 18. o
3. m 7. p 11. l 15. a 19. j
4. e 8. r 12. b 16. u 20. v
21. aa
22. n
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this quote in the space
below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of
justice, it shall make an order designation or describing the persons whose depositions may be
taken and specifying the subject matter of the examination and whether the depositions shall be
taken upon oral examination or written interrogatories. [Rule 27(3) Federal Rules of Civil
Procedure]
Answer:
If the judge believes the maintenance of the testimony may be important to prevent delay or to
maintain justice, he or she must order either written or oral out-of-court testimony.
Using Legal Language
Before going to trial, attorney Mary Grey entered into an agreement, called a(n) stipulation,
with the opposing attorney, admitting certain facts. She also used certain methods of discovery
to obtain information from the other party and from witnesses about the case. She sent thirty
questions, called interrogatories, to be answered under oath by Conrad Allen, the defendant,
who was a(n) party to the suit. She also sent a(n) subpoena duces tecum, rather than a plain
subpoena, to Leroy Henning, a witness commanding him to bring with him certain payroll
records of the defendant to a deposition, which is the testimony of a witness given under oath
but not in open court. Because written questions were submitted in advance to Leroy Henning,
the deponent, this was known as a(n) deposition on written questions. After receiving the
questions Leroy Henning sent cross questions to be answered by the plaintiff. The plaintiff, in
turn, responded with further questions, called redirect questions to be answered by Leroy
Henning. The testimony was taken before a(n) notary public, who was authorized to administer
oaths, and written down verbatim—that is, word for word—by a stenographer. When the case
goes to court, the questions and answers may be used to impeach—that is, call in to question—
Leroy's testimony. If Leroy gives false testimony, it is known as perjury.
an electronic fingerprint, and they are discoverable.
Understanding Legal Concepts
1. F, often 6. T
2. T 7. F, may not
3. F, client 8. T
4. F, not in 9. F, or
5. T 10. T
Checking Terminology
1. q 5. x,y 9. d 13. s 17. i
2. h 6. z 10. w 14. g 18. o
3. m 7. p 11. l 15. a 19. j
4. e 8. r 12. b 16. u 20. v
21. aa
22. n
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this quote in the space
below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of
justice, it shall make an order designation or describing the persons whose depositions may be
taken and specifying the subject matter of the examination and whether the depositions shall be
taken upon oral examination or written interrogatories. [Rule 27(3) Federal Rules of Civil
Procedure]
Answer:
If the judge believes the maintenance of the testimony may be important to prevent delay or to
maintain justice, he or she must order either written or oral out-of-court testimony.
Using Legal Language
Before going to trial, attorney Mary Grey entered into an agreement, called a(n) stipulation,
with the opposing attorney, admitting certain facts. She also used certain methods of discovery
to obtain information from the other party and from witnesses about the case. She sent thirty
questions, called interrogatories, to be answered under oath by Conrad Allen, the defendant,
who was a(n) party to the suit. She also sent a(n) subpoena duces tecum, rather than a plain
subpoena, to Leroy Henning, a witness commanding him to bring with him certain payroll
records of the defendant to a deposition, which is the testimony of a witness given under oath
but not in open court. Because written questions were submitted in advance to Leroy Henning,
the deponent, this was known as a(n) deposition on written questions. After receiving the
questions Leroy Henning sent cross questions to be answered by the plaintiff. The plaintiff, in
turn, responded with further questions, called redirect questions to be answered by Leroy
Henning. The testimony was taken before a(n) notary public, who was authorized to administer
oaths, and written down verbatim—that is, word for word—by a stenographer. When the case
goes to court, the questions and answers may be used to impeach—that is, call in to question—
Leroy's testimony. If Leroy gives false testimony, it is known as perjury.
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24
Puzzling Over What You Learned
Puzzling Over What You Learned
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25
Chapter 6
Pretrial Hearing and Jury Trial
Ante Interrogatory: B
Chapter Overview
The process of impaneling the jury, including the examination and challenging of jurors, is
explained in Chapter 7.
Chapter Objectives
The learning objectives for this chapter are to have the student know about the pretrial hearing
and right to a jury trial, as well as the process of jury selection and the examination process they
go through in order to be appropriate to serve on the jury.
Lecture Outline
I. Pretrial Hearing
II. Right to Jury Trial
A. Selecting the Venire
a. Traditional Method
b. One day – One Trial Method
III. Impaneling the Jury
IV. Examination and Challenge of Jurors
Notes
The Word Wise box explains a little history on why the word “men” has been used as a generic
term instead of “people.” The alternative words to use for “people” are listed as well.
The Web Wise box has a guideline for students on the five W’s to ask whenever using the
Internet for a source of information: Who created this site? What type of site is it? When was
the site created or updated? Where can you find more information? Why was this site created?
List of Changes
Terms in Action are used to illustrate terms used in trials, and in this chapter William Kennedy
Smith, nephew of the late President John F. Kennedy, is featured in his 1991 trial. Another
Terms in Action box discusses jury terms as it affected black jury members in Baton v. Kentucky
in 1986.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give the
students as another exercise.
Reviewing What You Learned
1. Under the rules of civil procedure, any party may demand a jury trial of any issue that is
triable by a jury.
2. A pretrial hearing is for the purpose of speeding up the trial.
3. Under the traditional method of selecting a jury, members of the clergy, lawyers, practicing
physicians and surgeons, nurses, public school teachers, and certain other people are exempt
from jury duty. Jurors serve for one month.
4. Under the on day-one trial system, there are no exemptions from jury duty. Jurors serve for
Chapter 6
Pretrial Hearing and Jury Trial
Ante Interrogatory: B
Chapter Overview
The process of impaneling the jury, including the examination and challenging of jurors, is
explained in Chapter 7.
Chapter Objectives
The learning objectives for this chapter are to have the student know about the pretrial hearing
and right to a jury trial, as well as the process of jury selection and the examination process they
go through in order to be appropriate to serve on the jury.
Lecture Outline
I. Pretrial Hearing
II. Right to Jury Trial
A. Selecting the Venire
a. Traditional Method
b. One day – One Trial Method
III. Impaneling the Jury
IV. Examination and Challenge of Jurors
Notes
The Word Wise box explains a little history on why the word “men” has been used as a generic
term instead of “people.” The alternative words to use for “people” are listed as well.
The Web Wise box has a guideline for students on the five W’s to ask whenever using the
Internet for a source of information: Who created this site? What type of site is it? When was
the site created or updated? Where can you find more information? Why was this site created?
List of Changes
Terms in Action are used to illustrate terms used in trials, and in this chapter William Kennedy
Smith, nephew of the late President John F. Kennedy, is featured in his 1991 trial. Another
Terms in Action box discusses jury terms as it affected black jury members in Baton v. Kentucky
in 1986.
Unraveling Legalese is not in the textbook, but is found below for the instructor to give the
students as another exercise.
Reviewing What You Learned
1. Under the rules of civil procedure, any party may demand a jury trial of any issue that is
triable by a jury.
2. A pretrial hearing is for the purpose of speeding up the trial.
3. Under the traditional method of selecting a jury, members of the clergy, lawyers, practicing
physicians and surgeons, nurses, public school teachers, and certain other people are exempt
from jury duty. Jurors serve for one month.
4. Under the on day-one trial system, there are no exemptions from jury duty. Jurors serve for
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one day or one trial and no longer.
5. The clerk places each juror's name on a ballot and puts it in a ballot box. When a case is
ready for trial, twelve names are picked out of the ballot box, and those chosen take seats in
the jury box.
6. If the case is expected to be lengthy, fourteen or sixteen jurors are impaneled to hear the
case, but before deliberating, the jury is reduced (by lot) to twelve members who decide the
case.
7. In some states, the judge chooses one of the members of the jury to be the foreperson. In
other states, the foreperson is elected by the members of the jury.
8. If at least seven jurors have been chosen for a case, but not enough jurors are left on the
venire to make up a complete jury, the judge has the power to send the sheriff out onto the
street to obtain bystanders or people from the county at large to serve on the jury.
9. Jurors do not stand indifferent if they (a) are related to either party or either attorney, (b)
have an interest in the case, (c) have expressed or formed an opinion about it, (d) are aware
of any bias or prejudice that they may have in the case, or (e) know of any reason why they
do not stand indifferent.
10. No limit exists to the number of challenges for cause that may be made.
11. In a capital criminal case each side is entitled to as many peremptory challenges as there are
jurors. In a noncapital criminal case and in a civil case, each side is entitled to four
peremptory challenges and an additional one if fourteen jurors are selected or two additional
challenges if sixteen jurors are selected.
Understanding Legal Concepts
1. T 6. F, may not
2. F, speeding up 7. T
3. F, draw from the ballot box 8. T
4. T 9. T
5. F, are not exempt 10. F, peremptory challenges
Checking Terminology
1. e 5. h, s 9. j 13. k 17. d, p
2. i 6. y 10. a 14. v 18. m
3. l 7. c, n, o, z 11. bb 15. b 19. q
4. u 8. t 12. g 16. aa 20. r
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this quote in the space
below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or
several plaintiffs may be considered as a single party for the purposes of making challenges, or
the court may allow additional peremptory challenges and permit them to be exercised separately
or jointly.
Answer:
In non-criminal cases, each party can remove three jurors (who will be replaced by someone
else) without giving a reason for the removal. More than one party can be considered a single
one day or one trial and no longer.
5. The clerk places each juror's name on a ballot and puts it in a ballot box. When a case is
ready for trial, twelve names are picked out of the ballot box, and those chosen take seats in
the jury box.
6. If the case is expected to be lengthy, fourteen or sixteen jurors are impaneled to hear the
case, but before deliberating, the jury is reduced (by lot) to twelve members who decide the
case.
7. In some states, the judge chooses one of the members of the jury to be the foreperson. In
other states, the foreperson is elected by the members of the jury.
8. If at least seven jurors have been chosen for a case, but not enough jurors are left on the
venire to make up a complete jury, the judge has the power to send the sheriff out onto the
street to obtain bystanders or people from the county at large to serve on the jury.
9. Jurors do not stand indifferent if they (a) are related to either party or either attorney, (b)
have an interest in the case, (c) have expressed or formed an opinion about it, (d) are aware
of any bias or prejudice that they may have in the case, or (e) know of any reason why they
do not stand indifferent.
10. No limit exists to the number of challenges for cause that may be made.
11. In a capital criminal case each side is entitled to as many peremptory challenges as there are
jurors. In a noncapital criminal case and in a civil case, each side is entitled to four
peremptory challenges and an additional one if fourteen jurors are selected or two additional
challenges if sixteen jurors are selected.
Understanding Legal Concepts
1. T 6. F, may not
2. F, speeding up 7. T
3. F, draw from the ballot box 8. T
4. T 9. T
5. F, are not exempt 10. F, peremptory challenges
Checking Terminology
1. e 5. h, s 9. j 13. k 17. d, p
2. i 6. y 10. a 14. v 18. m
3. l 7. c, n, o, z 11. bb 15. b 19. q
4. u 8. t 12. g 16. aa 20. r
Unraveling Legalese
Use simple, non-legal language, with the help of the glossary, to rewrite this quote in the space
below so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
In civil cases, each party shall be entitled to three peremptory challenges. Several defendants or
several plaintiffs may be considered as a single party for the purposes of making challenges, or
the court may allow additional peremptory challenges and permit them to be exercised separately
or jointly.
Answer:
In non-criminal cases, each party can remove three jurors (who will be replaced by someone
else) without giving a reason for the removal. More than one party can be considered a single
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party in doing this, or the court may allow more than one party to act separately, thereby causing
more than three jurors to be removed.
Using Legal Language
The plaintiff's attorney, Mary Grey, attended a(n) pretrial hearing before the judge prior to the
trial in an attempt to speed up the trial. Mary wanted a jury trial instead of referring the case to
a(n) master—that is, a lawyer appointed by the court to hear testimony. In addition, she did not
want a(n) jury waived trial or a(n) bench trial, which is a trial without a jury. The clerk of
court sent a(n) writ of venire facias to each city and town within the court's jurisdiction to
obtain jurors for the next sitting of the court. When the trial began, jurors were selected by lot
from the venire (the jury pool), and after the voir dire was held to be sure that they stood
indifferent, fourteen jurors were impaneled to hear the case. The number included two
alternate jurors who would be used in the case of sickness or removal of any of the regular
jurors. No challenges for causes existed, but several peremptory challenges did, which required
no reason to be given. The lawyers did not wish to stipulate to a lesser number of jurors, and no
need to obtain talespeople existed—that is, bystanders or people from the county at large, to
serve on the jury. The trial was not a(n) capital case because it did not involve the death penalty.
A woman was chosen to be the foreperson who would speak for the group.
party in doing this, or the court may allow more than one party to act separately, thereby causing
more than three jurors to be removed.
Using Legal Language
The plaintiff's attorney, Mary Grey, attended a(n) pretrial hearing before the judge prior to the
trial in an attempt to speed up the trial. Mary wanted a jury trial instead of referring the case to
a(n) master—that is, a lawyer appointed by the court to hear testimony. In addition, she did not
want a(n) jury waived trial or a(n) bench trial, which is a trial without a jury. The clerk of
court sent a(n) writ of venire facias to each city and town within the court's jurisdiction to
obtain jurors for the next sitting of the court. When the trial began, jurors were selected by lot
from the venire (the jury pool), and after the voir dire was held to be sure that they stood
indifferent, fourteen jurors were impaneled to hear the case. The number included two
alternate jurors who would be used in the case of sickness or removal of any of the regular
jurors. No challenges for causes existed, but several peremptory challenges did, which required
no reason to be given. The lawyers did not wish to stipulate to a lesser number of jurors, and no
need to obtain talespeople existed—that is, bystanders or people from the county at large, to
serve on the jury. The trial was not a(n) capital case because it did not involve the death penalty.
A woman was chosen to be the foreperson who would speak for the group.
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Puzzling Over What You Learned
Puzzling Over What You Learned
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Chapter 7
Steps in a Trial
Ante Interrogatory: D
Chapter Overview
Chapter 7 goes over the specific steps in a jury trial which are: the plaintiff’s opening statement,
the plaintiff’s case in chief, the defendant’s opening statement, the defendant’s case in chief,
requests for instruction to the jury, final arguments (summation), instructions to the jury (jury
charge), jury’s verdict, court’s judgment or decree, and appeal. Although execution (in civil
cases), and sentencing (in criminal cases) are steps in a jury trial, they are not discussed in the
text.
Chapter Objectives
The objectives for chapter 7 are to help students understand the process of a trial and how
evidence and testimonies lead to the outcome of a trial. Discussion on jury selection and duties
is in the chapter, and aspects of verdicts are explained. Finally, points about appeals are outlined
so students have a general understanding of that process.
Lecture Outline
I. Plaintiff’s Opening Statement
II. Plaintiff’s Case in Chief
III. Defendant’s Opening Statement
IV. Defendant’s Case in Chief
V. Requests for Instructions to Jury
VI. Final Arguments
VII. Instructions to Jury
VIII. Verdict
IX. Judgment or decree
X. Appeal
Notes:
Please note the Word Wise box with the Latin root “circum.” It tells students how the term
circumstantial evidence is defined using the Latin root. These connections of Latin root words or
Latin words are used frequently in legal terms, so a point has been made in this textbook to teach
students the background of many terms. The exercise at the end of the chapter gives the students
a chance to learn and review Latin terms.
The Web Wise box provides Internet sites that students can search to learn more about Federal
Rules of Evidence, and practice and procedure information by state.
List of Changes
Two Terms in Action boxes have been added to lend interest to the chapter while using some
chapter terms. One story addresses how current social media can affect trials. The other one
brings up a highly public trial of British nanny, Louise Woodward, and her trial outcomes.
Unraveling Legalese is not in the textbook, but is available below for the instructor to give the
students as another exercise.
Chapter 7
Steps in a Trial
Ante Interrogatory: D
Chapter Overview
Chapter 7 goes over the specific steps in a jury trial which are: the plaintiff’s opening statement,
the plaintiff’s case in chief, the defendant’s opening statement, the defendant’s case in chief,
requests for instruction to the jury, final arguments (summation), instructions to the jury (jury
charge), jury’s verdict, court’s judgment or decree, and appeal. Although execution (in civil
cases), and sentencing (in criminal cases) are steps in a jury trial, they are not discussed in the
text.
Chapter Objectives
The objectives for chapter 7 are to help students understand the process of a trial and how
evidence and testimonies lead to the outcome of a trial. Discussion on jury selection and duties
is in the chapter, and aspects of verdicts are explained. Finally, points about appeals are outlined
so students have a general understanding of that process.
Lecture Outline
I. Plaintiff’s Opening Statement
II. Plaintiff’s Case in Chief
III. Defendant’s Opening Statement
IV. Defendant’s Case in Chief
V. Requests for Instructions to Jury
VI. Final Arguments
VII. Instructions to Jury
VIII. Verdict
IX. Judgment or decree
X. Appeal
Notes:
Please note the Word Wise box with the Latin root “circum.” It tells students how the term
circumstantial evidence is defined using the Latin root. These connections of Latin root words or
Latin words are used frequently in legal terms, so a point has been made in this textbook to teach
students the background of many terms. The exercise at the end of the chapter gives the students
a chance to learn and review Latin terms.
The Web Wise box provides Internet sites that students can search to learn more about Federal
Rules of Evidence, and practice and procedure information by state.
List of Changes
Two Terms in Action boxes have been added to lend interest to the chapter while using some
chapter terms. One story addresses how current social media can affect trials. The other one
brings up a highly public trial of British nanny, Louise Woodward, and her trial outcomes.
Unraveling Legalese is not in the textbook, but is available below for the instructor to give the
students as another exercise.
Loading page 29...
30
Reviewing What You Learned
1. The steps in a jury trial are: (a) plaintiff's opening statement, (b) plaintiff's case in chief, (c)
defendant's opening statement, (d) defendant's case in chief, (e) requests for instructions to
the jury, (f) final arguments, (g) instructions to the jury, (h) verdict, (i) judgment, (j)
execution.
2. The opening statement must set forth a prima facie case.
3. Testimonial evidence consists of oral testimony of witnesses made under oath in open court.
Documentary evidence consists of such evidence as written contracts, business records,
correspondence, wills, and deeds. Real evidence consists of actual objects that have a
bearing on the case such as an item of clothing, a weapon found at the scene of the crime, a
photograph, chart, or model.
4. (a) It is direct evidence when a witnesses testifies, "I saw that man shoot the gun." (b) It is
circumstantial evidence when a witness testifies, "I heard the sound of a gun being fired and
then saw that man run past me."
5. Leading questions are allowed on cross-examination and not allowed on direct examination.
6. A motion for a directed verdict will be allowed if, after the plaintiff rests the case, the court
finds that the evidence is insufficient as a matter of law to support a verdict in the plaintiff's
favor.
7. After the defendant's attorney rests the case, the plaintiff's attorney may introduce rebuttal
evidence.
8. Questions of law are questions relating to the application or interpretation of law. Questions
or fact are questions about activities that took place between the parties which caused them
to go to court. Only questions of law may be raised on appeal.
9. In a criminal case, the jury must agree unanimously to reach a verdict.
10. A judgment is the decision of a court of law. A writ of execution is used to enforce a
judgment for the payment of money.
Understanding Legal Concepts
1. T 6. F, law
2. F, direct 7. T
3. F, cross 8. T
4. T 9. T
5. F, last 10. F, law
Checking Terminology (Part A)
1. r 7. q 13. dd 19. u 25. s
2. f 8. g 14. v 20. b 26. t
3. d 9. cc 15. c 21. m 27. k
4. x 10. h, o, nn16. n 22. e 28. p
5. w 11. aa, bb 17. j 23. i
6. a 12. l 18. z 24. y
Checking Terminology (Part B)
1. p 6. m 11. g 16. l 21. y
2. e 7. f 12. j 17. d 22. r
3. k 8. w 13. h 18. q, cc 23. s
4. a, u 9. b 14. c 19. n
5. x 10. o 15. v 20. i
Reviewing What You Learned
1. The steps in a jury trial are: (a) plaintiff's opening statement, (b) plaintiff's case in chief, (c)
defendant's opening statement, (d) defendant's case in chief, (e) requests for instructions to
the jury, (f) final arguments, (g) instructions to the jury, (h) verdict, (i) judgment, (j)
execution.
2. The opening statement must set forth a prima facie case.
3. Testimonial evidence consists of oral testimony of witnesses made under oath in open court.
Documentary evidence consists of such evidence as written contracts, business records,
correspondence, wills, and deeds. Real evidence consists of actual objects that have a
bearing on the case such as an item of clothing, a weapon found at the scene of the crime, a
photograph, chart, or model.
4. (a) It is direct evidence when a witnesses testifies, "I saw that man shoot the gun." (b) It is
circumstantial evidence when a witness testifies, "I heard the sound of a gun being fired and
then saw that man run past me."
5. Leading questions are allowed on cross-examination and not allowed on direct examination.
6. A motion for a directed verdict will be allowed if, after the plaintiff rests the case, the court
finds that the evidence is insufficient as a matter of law to support a verdict in the plaintiff's
favor.
7. After the defendant's attorney rests the case, the plaintiff's attorney may introduce rebuttal
evidence.
8. Questions of law are questions relating to the application or interpretation of law. Questions
or fact are questions about activities that took place between the parties which caused them
to go to court. Only questions of law may be raised on appeal.
9. In a criminal case, the jury must agree unanimously to reach a verdict.
10. A judgment is the decision of a court of law. A writ of execution is used to enforce a
judgment for the payment of money.
Understanding Legal Concepts
1. T 6. F, law
2. F, direct 7. T
3. F, cross 8. T
4. T 9. T
5. F, last 10. F, law
Checking Terminology (Part A)
1. r 7. q 13. dd 19. u 25. s
2. f 8. g 14. v 20. b 26. t
3. d 9. cc 15. c 21. m 27. k
4. x 10. h, o, nn16. n 22. e 28. p
5. w 11. aa, bb 17. j 23. i
6. a 12. l 18. z 24. y
Checking Terminology (Part B)
1. p 6. m 11. g 16. l 21. y
2. e 7. f 12. j 17. d 22. r
3. k 8. w 13. h 18. q, cc 23. s
4. a, u 9. b 14. c 19. n
5. x 10. o 15. v 20. i
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31
Sharpening Your Latin Skills
certiorari—to be informed of; to be assured
non obstante verdicto—notwithstanding the verdict
prima facie—at first sight; on the face of it
subpoena—under penalty; a process to cause a witness to appear and give testimony
subpoena ad testificandum—an order commanding a person to appear and testify in a legal
action
subpoena duces tecum—bring with you; a subpoena ordering a witness to produce a paper
venire—the large group of people from whom the jury is selected for a trial
venire facias—order to the sheriff to bring people to court to serve as jurors
Unraveling Legalese
Using simple, nonlegal language, with the help of the glossary, rewrite this quote in the space
below, so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
If the jury has returned the guilty verdict, the court may set aside the verdict and enter an
acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.
[Rule 31(c)(2) Federal Rules of Criminal Procedure.
Answer:
Even if the jury finds the defendant guilty, the judge may refuse to accept the verdict and may
declare the defendant not guilty. If the jury can’t reach a verdict, the judge may declare the
defendant not guilty.
Using Legal Language
The plaintiff's attorney, Mary Grey, was required to set forth a(n) prima facie case in her
opening statement before the jury. Her evidence consisted of a photograph, which was real
evidence, payroll records, which was documentary evidence, and oral statements of a witness,
which was testimonial evidence. On the stand, Mary's witness, Leroy Henning, said, "I am the
payroll clerk, and these payroll records are true and correct." This was direct evidence, not
circumstantial evidence, and because she was examining her own witness, Mary’s examination
was called direct examination. Mary could not ask leading questions, which suggest to the
witness the desired answer. The opposing attorney could do so, however, on cross examination.
At the close of Mary's case, the opposing attorney made a(n) motion for a directed verdict,
asking the court to find in favor of his client. this request was denied, and the case went to the
jury, whose decision is called a(n) verdict. Following this decision the court issued its
judgment, which is sometimes called a(n) decree in a court of equity. Mary's client won the
case, and the opposing attorney decided not to appeal to a higher court because only questions
of law may be raised at that time. Had he done so, his client who would have been called the
appellant, would have had to put up a(n) appeal bond as security.
Sharpening Your Latin Skills
certiorari—to be informed of; to be assured
non obstante verdicto—notwithstanding the verdict
prima facie—at first sight; on the face of it
subpoena—under penalty; a process to cause a witness to appear and give testimony
subpoena ad testificandum—an order commanding a person to appear and testify in a legal
action
subpoena duces tecum—bring with you; a subpoena ordering a witness to produce a paper
venire—the large group of people from whom the jury is selected for a trial
venire facias—order to the sheriff to bring people to court to serve as jurors
Unraveling Legalese
Using simple, nonlegal language, with the help of the glossary, rewrite this quote in the space
below, so that it is shorter and can be understood by a layperson without losing its meaning.
Exercise:
If the jury has returned the guilty verdict, the court may set aside the verdict and enter an
acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.
[Rule 31(c)(2) Federal Rules of Criminal Procedure.
Answer:
Even if the jury finds the defendant guilty, the judge may refuse to accept the verdict and may
declare the defendant not guilty. If the jury can’t reach a verdict, the judge may declare the
defendant not guilty.
Using Legal Language
The plaintiff's attorney, Mary Grey, was required to set forth a(n) prima facie case in her
opening statement before the jury. Her evidence consisted of a photograph, which was real
evidence, payroll records, which was documentary evidence, and oral statements of a witness,
which was testimonial evidence. On the stand, Mary's witness, Leroy Henning, said, "I am the
payroll clerk, and these payroll records are true and correct." This was direct evidence, not
circumstantial evidence, and because she was examining her own witness, Mary’s examination
was called direct examination. Mary could not ask leading questions, which suggest to the
witness the desired answer. The opposing attorney could do so, however, on cross examination.
At the close of Mary's case, the opposing attorney made a(n) motion for a directed verdict,
asking the court to find in favor of his client. this request was denied, and the case went to the
jury, whose decision is called a(n) verdict. Following this decision the court issued its
judgment, which is sometimes called a(n) decree in a court of equity. Mary's client won the
case, and the opposing attorney decided not to appeal to a higher court because only questions
of law may be raised at that time. Had he done so, his client who would have been called the
appellant, would have had to put up a(n) appeal bond as security.
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Subject
Civil Law