Class Notes For Legal Terminology, 6th Edition

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Online Instructor’s Manualto accompanyLegal TerminologySixth EditionGordon W. BrownProfessor Emeritus, North Shore Community CollegeKent D. KauffmanIndiana-Purdue University, Fort Wayne

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3ContentsChapter 1: Court Systems and Jurisdiction4Chapter 2: Criminal Trail Procedure8Chapter 3: Civil Trial Procedure11Chapter 4: Defensive Pleadings in Civil Trials16Chapter 5: Methods of Discovery19Chapter 6: Pretrial Hearing and Jury Trial24Chapter 7: Steps in a Trial28Chapter 8: Legal Ethics32Chapter 9: Constitutional Law35Chapter 10: Crimes, Accomplices, and Defense38Chapter 11: Crimes Against Property41Chapter 12: Crimes Against the Person and Human Habitation44Chapter 13: Homicide48Chapter 14: Crimes Against Morality and Drug Abuse52Chapter 15: Torts and Tortfeasors56Chapter 16: Intentional Torts60Chapter 17: Negligence and Product Liability64Chapter 18: Formation of Contracts68Chapter 19: Contract Requirements72Chapter 20: Third Parties and Discharge of Contracts77Chapter 21: Personal Property and Bailments81Chapter 22: Intellectual Property85Chapter 23: Law of Agency89Chapter 24: Wills, Testaments, and Advance Directives93Chapter 25: Revocation, Lapses, and Ademption97Chapter 26: Principal Clauses in a Will101Chapter 27: Disinheritance and Intestacy105Chapter 28: Personal Representative of the Estate109Chapter 29: Settling an Estate113Chapter 30: Trusts117Chapter 31: Estates in Real Property121Chapter 32: Multiple Ownership of Real Property125Chapter 33: Acquiring Title to Real Property129Chapter 34: Deeds133Chapter 35: Mortgages137Chapter 36: Landlord and Tenant141Chapter 37: Marriage, Divorce, and Dissolution of Marriage145Chapter 38: Divorce Procedure150Chapter 39: Business Organization154Chapter 40: The Law of Bankruptcy159

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4Chapter 1Court Systems and JurisdictionAnte Interrogatory: DChapter OverviewAfter differentiating between federal and state court systems, Chapter 1 examines the subject ofselecting the court, including matters of jurisdiction. The chapter also explores alternativedispute resolutions available for those who wish to settle disputes outside of court.Chapter ObjectivesThe 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 alternativedispute resolution options.Lecture OutlineI.Federal CourtsA.U.S. District CourtB.U.S. Court of AppealsC.U.S. Supreme CourtII.State CourtsA.State Trial CourtsB.State Intermediate Appellate CourtsC.State Supreme CourtsIII.Jurisdiction and VenueA.In Rem ActionB.Quasi in Rem ActionC.In Personam ActionD.VenueVI.Alternative Dispute ResolutionA.NegotiationB.MediationC.ArbitrationD.Mini-trialNotesThe Sources of Law box is a side note to students to help them grasp from where law in theUnited States comes. Word Wise boxes are helpful to students as they learn about how wordsare used in several ways, such as the word “court” in this chapter. The other Word Wise boxaddressing the definition “to speak” can help students’ minds connect with words they arealready familiar with in learning new terms. Prefixes and suffixes often indicate a Latin rootword, and as students recognize them, they can remember new term definitions easier.List of ChangesTwo Terms in Action boxes are in every chapter to illustrate how terms are used in real-lifesituations. Some are current, quirky stories including celebrities, and others are interestinghistorical cases with surprise endings that will help students remember the terms in the chapters.

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5In Chapter 1, the Terms in Action educate the student about courts, jurisdiction and venues. Inthe Terms in Action box about Laci Peterson, the story addresses the occurrence of change invenue.Unraveling Legalese is not in the textbook, but is found below for the instructor to give tostudents as another exercise.Reviewing What You Learned1.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 involvediversity of citizenship (over $75,000) between persons from different states, betweencitizens of the United States and a foreign government, and between citizens of the UnitedStates and citizens of a foreign country. In addition, federal courts hear bankruptcy cases,patent and copyright cases, and admiraltycases.2.Appeals from a state supreme court may be made to the U.S. Supreme Court only when afederal 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 thestate (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 realproperty 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 islocated and the out-of-state defendant does not appear, the plaintiff's recovery will belimited 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'sattorney may have the case dismissed.9.Jurisdiction relates to the power of the court to hear a case, whereas venue relates to thegeographic location where the action should be tried.10.Mediation has a neutral third party (mediator or conciliator) who listens to both sides andmakes suggestions for reaching a solution. The mediator tries to persuade the parties tocompromise and settle their differences. A mediator is not empowered to make partiessettle, but he has authority over the mediation process.Arbitration has a neutral third party who makes a decision after hearing the arguments ofboth sides. Parties have already agreed to resolve their dispute according to a pre-determined arbitration process. Parties can agree to binding arbitration (arbitrator’sdecision will be final) or non-binding arbitration (arbitrator’s decision is simplyrecommended with no need to comply to it).11.Negotiation is a two-party process that has no help of a neutral third party. The sidesattempt to conclude its dispute by bargaining with each other until one side agrees to theother side’s offer of settlement. Parties in legal dispute may have legal representation, butit is not necessary. A written agreement (settlement terms are often kept private) settles thedispute.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 stagesand breaks into private sessions called caucuses. The mediator uses his or her listeningskills and the ability to ask probing questions to learn what the interests are behind each

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6side’s demands. From that point on the mediator seeks small gains from each side as he orshe 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, buthe or she has the authority over the mediation process.13.The parties in an arbitration process agree to binding arbitration in advance. It is thedecision 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 Concepts1.T6.F, property2.F, four7.T3.T8.F, property, person4.T9.T5.F, sometimes10.TChecking Terminology (Part A)1.h5.s9.m13.z17.c2.v6.n10.a, t14.k18.b, j3.q7.x11.g15.l19.d4.o8.y12.r16.p20.e21.wChecking Terminology (Part B)1.h, n5.l9.a13.g17.j, p2.e6.s10.c14.v18.r3.i, o7.m11.d15.b19.k4.f8.q12.s16.uUnraveling LegaleseUse simple, non-legal language, with the help of the glossary, to rewrite this quote in the spacebelow 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 courtshave found concurrent jurisdiction because of the use of the permissive “may,” the statues atissue in such cases did not contain the more potent language contained in this statute: “originalexclusive 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 showsthat it meant to allow two or more courts to decide the case. Although some courts have decidedcases following that argument, those cases did not have the stronger statutory language with thewords “original exclusive jurisdiction,” which means that only one particular court has the powerto hear the case when it is first brought to trial.Using Legal LanguageTo settle a dispute by means other than litigation over who owned the lot next to her, Susan tried

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7to get Conrad to participate in a(n)alternate disputeresolution. Conrad wanted to usenegotiationbecause he didn’t want anyone else involved. Susan wanted to usemediation(alsocalledconciliation)—an informal process in which a neutral third person listens to both sidesand makes suggestions for reaching a solution. This case was not one involving a defendant whoowned land in one state and lived in another; therefore, it was not a(n)quasi in remaction. Thevenuefor the trial was Salem because that is where the disputed land was located, and the courtin that city hadjurisdictionover the case. Because the case involved title to land, the trial had tobe held in the county where thereswas located, and because the suit was directed againstproperty, it was a(n)in remaction not a(n)in personamaction. The suit was a(n)localactionrather than a(n)transitoryaction 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 hadexclusivejurisdictionrather thanconcurrent jurisdiction. Owing to the fact that the case was being triedfor the first time, the court hadoriginal jurisdictionnotappellate jurisdiction.

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8Puzzling Over What You Learned

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9Chapter 2Criminal Trial ProcedureAnte Interrogatory: DChapter OverviewChapter 2 explains criminal trial procedure, beginning the arrest, preliminary hearing,indictment, and arraignment, followed by sentencing and defendants’ rights.Chapter ObjectivesBy studying this chapter, students can learn that the process of criminal cases being taken tocourt is governed by rules that have been adopted by federal and state governments. Theprocedure is outlined in the chapter, and the rules of criminal procedure may be found on theInternet for further study. Students will also learn where defendants’ rights come from and whatthey are.Lecture OutlineI.ArrestII.Preliminary HearingIII.IndictmentIV.ArraignmentV.Reasonable DoubtVI.SentencingVII.Defendants’ RightsVIII.Trial SeparationNotesMiranda Warnings are listed in a box, which can be helpful to the student as they study criminalprocedure.The Web Wise box encourages students to look at overviews of criminal and civil procedure atthe Legal Information Institute atwww.law.cornell.eduand federal procedure rules and Internetjurisdiction atwww.findlaw.com.List of ChangesThe Terms in Action boxes highlights a criminal situation using terms from the chapter and thelongest single prison sentence ever given.Unraveling Legalese is not in the textbook, but is found below for the instructor to give thestudents as another exercise.Reviewing What You Learned1.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 eitherkept 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 anddecide whether or to charge someone with the commission of a crime.

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105.An indictment is a formal written charge made by a grand jury. In contrast, an arraignmentis 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 followingconstitutional rights: (1) the right to remain silent, (2 any statement made by them may beused against them to gain conviction, (3) they have the right to consult with a lawyer, and tohave a lawyer present during questioning, (4) a lawyer will be provided without cost forindigent defendants.8.Answers will vary. The severity of victim impact can influence the parole boards’ decisionon granting parole.9.A commutation of a sentence reduces it, making it less severe, whereas a pardon sets asidethe punishment altogether.10.A bifurcated trial is one that is separated into two parts providing for separate hearings fordifferent issues in the same lawsuit. In contrast, severance of actions occurs when a courtseparates lawsuits or prosecutions involving multiple parties into separate, independentcases, resulting in separate final judgments..Understanding Legal Concepts1.F, the public at large, is6.T2.F, always7.F, parole3.T8.T4.T9.F, concurrent5.F, defendant10.F, bifurcated trialChecking Terminology (Part A)1.h5.d9.q13.g17.j2.m6.b10.v14.k, o18.i3.p7.n11.f15.x19.l4.a8.e12.r16.w20.cChecking Terminology (Part B)1.u5.p9.j13.x17.k2.i6.d10.b14.w18.v3.m7.l, n11.g,h15.f19.t4.*8.a12.e16.s20.q21.o* question appears in 6thedition book, but there is no answer listed for it. Answer is convict.Unraveling LegaleseUse simple, non-legal language, with the help of the glossary, to rewrite this case quote in thespace 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 thecourt for good cause allows the parties to disclose the pleas agreement in camera.

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11Answer:The prosecution and defense must reveal plea bargains in open court for everyone to hear, unlessthere is a good reason for the judge to allow it to be revealed in the privacy of his or her office.Using Legal LanguageAlphonse, 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 underarrest; that is, deprived of his liberty. Hewas also told about his rights, calledMiranda warnings. The next morning, Alphonse wentbefore the court for apreliminaryhearing, which is also called aprobable causehearing. Thejudge set a highbailto assure Alphonse’s return to stand trial. The district attorney presented thecase to agrandjury, which issued anindictment—a formal written charge of a crime. This wasfollowed by a court appearance called anarraignmentat which Alphonse pleadednot guilty,denying that he had committed the crime. The trial that followed was governed by regulationsknown asrules of criminal procedure.The state brought the action, that is,prosecuted, againstAlphonse who was thedefendant. To find Alphonse guilty, the jury, that is, thefact finder, wasrequired to find beyonda reasonable doubtthat Alphonse committed the crime. At the time ofsentencing, Krista was able to give avictim’s impact statementpointing out the effect the crimehad on her life. Alphonse was given amandatorysentence—one that is fixed with no room fordiscretion.

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12Puzzling Over What You Learned

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13Chapter 3Civil Trial ProcedureAnte Interrogatory: AChapter OverviewChapter 3 discusses civil trial procedure including court selection, pleadings, service of process,and attachments.Chapter ObjectivesThis chapter is intended to help students learn about civil actions–lawsuits other than criminalones–which come about when two or more people are involved in a dispute that they are unableto settle by themselves. The procedure is outlined for the students to learn.Lecture OutlineI.Beginning a Civil ActionII.Selecting the CourtIII.PleadingsIV.Service of ProcessA.The AnswerB.Default JudgmentV.AttachmentsA.Ex Parte HearingB.Writ of AttachmentC.Trustee Process and GarnishmentVI.Burden of ProofVII.Enforcing the JudgmentVIII.Summary ProceedingsNotesThe 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 askingquestions to help students remember the differences.List of ChangesThe Terms in Action boxes have interesting tidbits featuring the movie “Pineapple Express,”billionaire Mark Zuckerberg (Facebook creator), and former football star O.J. Simpson toillustrate how terms like process server, civil complaints, service or process, attachment andgarnishment are used.Unraveling Legalese is not in the textbook, but is found below for the instructor to give thestudents as another exercise.Reviewing What You Learned1.To begin a civil suit, the plaintiff's attorney files a complaint with the clerk of the court.

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142.Pleadings serve the purpose of giving notice to all parties of the claims and defenses in thesuit and narrow the issues for trial so that both parties and the court know the legal issuesthatmust be decided.3.The defendant is notified of the suit by a method known as process. A summons is obtainedfrom the court, filled out, and given, along with a copy of the complaint, to a process serverwho 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 defendantpersonally, by leaving it at the defendant's last and usual place of abode, or by deliveringthem 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, ona general agent of the corporation, or on the person in charge of the corporation's principalplace of business.6.Plaintiffs can be assured that money will be available for them by attaching the defendant'sproperty at the beginning of the action.7.Under a typical state law, the plaintiff's attorney files with the court a motion for attachmentand an affidavit signed by the plaintiff stating facts that would warrant a judgment for theplaintiff.8.The defendant is notified of the plaintiff's motion for attachment through service of processby a process server.9.The court may allow the attachment if it finds that a reasonable likelihood exists that theplaintiff will recover a judgment against the defendant for the amount of the attachment overand above any insurance coverage that the defendant has.10.The court may allow the attachment without notifying the defendant if it finds (1) that thedefendant is not within its jurisdiction but that the defendant's property is, (2) that a dangerexists 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 atthe 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 theplaintiff is aware of the action, to file a lawsuit. Time limits vary according to the kind ofsuit being filed, but in most jurisdictions the statute of limitations for personal injury is twoyears. This is important because this encourages plaintiffs to bring ripe claims to courtbefore evidence becomes too old.Understanding Legal Concepts1.F, complaint6.F, one2.T7.T3.F, summons8.F, registry of deeds4.T9.F, trustee process of garnishment5.T10.TChecking Terminology (Part A)1.r5.v9.s13.e17.z2.k, n6.u, aa10.b14.o18.bb3.f7.w11.l15.x19.c (only one)4.a, q8.h12.t16.y20.d, g21.m22.p

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15Checking Terminology (Part B)1.c6.a11.p16.g21.n2.l7.i12.q, r17.k22.h3.cc*8.o13.w18.m23.d4.e9.x14.s19.b5.j10.e15.u20.v* Term is in Part AUnraveling LegaleseUse simple, non-legal language, with the help of the glossary, to rewrite this quote in the spacebelow 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 theamounts of damage, are admitted when not denied in the responsive pleading. [Rule 8(d) FederalRules of Civil Procedure]Answer:Claims that a party expects to prove in a written, court-filed statement, which require a responsefrom the opposite party (other than the amount of damages, will be treated as admitted if theopposite party does not deny them in a court-filed statement.Using Legal LanguageAfter checking to see whether the client’s case wasn’t too old, but was still withinthe statute oflimitations, the attorney began the lawsuit by filing thecomplaint, which is the plaintiff's firstpleading, with the clerk of the court who assigned adocket numberto the case to identify it.The attorney then had theprocess serverserve copies of thesummonsand complaint on thedefendant who was called a(n)Doe defendantbecause of an unknown name. Because of the factthatprocess—that is, the means for compelling the defendant to appear in court—occurred byleaving the papers at the defendant's last and usual place of abode, it was notpersonalservice;instead it was calledconstructive service. The attorney also filed a motion for a(n)attachmentat a(n)ex partesession 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 themotion, the attorney was required to file a(n)affidavit, which was signed under oath by theclient who was called theaffiantordeponent. The attachment was allowed by the court, and thewrit of attachmentwas recorded at the Registry of Deeds. Because this did not involve theattachment of property in the hands of a third party,trustee process, which is also calledgarnishment, was not used. When the case was ready for trial, it was placed on thetrial docket,which is sometimes referred to as thetrial list.Puzzling Over What You LearnedThe student textbook should have instructions underCaveattoallowsquares for spaces.

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16Puzzling Over What You Learned

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17Chapter 4Defensive Pleadingsin Civil TrialsAnte Interrogatory: BChapter OverviewChapter 4 explains defensive pleadings including the demurrer, five commonly used motions, thedefendant’s answer, the counterclaim, the cross-claim, and the cross-complaint.Chapter ObjectivesThis chapter is intended to help the student further understand the civil trial procedure, focusingon defensive pleadings.It is expected that the students will learn the motions used in defensivepleadings and be able to discuss the defendant’s answer, as well as affirmative defenses,counterclaims, cross-claims and cross-complaintsLecture OutlineI.DemurrerII.MotionsA.Motion to DismissB.Motion for a More Definite StatementC.Motion to StrikeD.Motion for Judgment on the PleadingsE.Motion for Summary JudgementIII.Defendant’s Answer / Affirmative DefensesIV.CounterclaimV.Cross-ClaimVI.Cross-ComplaintNotesThe Word Wise box defines what compound words are–the joining of two or more wordsalready in usage to create a new word with a new meaning. The term counterclaim, introducedin 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 ChangesTerms 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 thestudents as another exercise.Reviewing What You Learned1.After being served with a summons and a complaint, the defendant must file one or moredefensive pleadings within a certain number of days from the date of service of thesummons. 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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18a cause of action, (b) the court has no jurisdiction over the subject matter of the case, (c) theplaintiff has no legal capacity to sue, (d) another action is pending between the same partiesfor 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 thedemurrer.4.Four important defense motions are: (a) motion to dismiss, (b) motion for a more definitestatement, (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 themerits 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 ananswer.7.Three grounds for a motion to dismiss are: (a) lack of jurisdiction over the subject matter ofthe 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 amore definite statement may be made.9.A motion to strike may be used by either party to have stricken from any pleading anyinsufficient 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 thedefendant's answer does not set forth a legally sufficient defense. A defendant might makesuch a motion on the ground that the plaintiff's complaint does not state a claim on whichrelief can be granted.11.The defendant's answer must state in short and plain terms the defenses he or she wishes toassert. 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 isautomatically admitted.13.If an affirmative defense is omitted from the answer, the defense is lost and cannot be usedlater.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 prescribednumber of days after receiving the counterclaim.17.A crossclaim is brought by one defendant against another defendant in the same suit. Thesubject matter of the cross claim must arise out of the same transaction or occurrence as thatof the original suit.Understanding Legal Concepts1.F, 306.T2.F, overrules7.T3.T8.T4.T9.F, admits5.F, either party10.F, counterclaimChecking Terminology1.m6.w11.x16.z21.aa2.q7.i12.s17.k22.g3.j8.e13.f18.bb23.r

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194.d9.y14.o19.t24.v5.dd10.a,c15.b20.pSharpening Your Latin Skillsad damnum—to the damage; money loss claimed by the plaintiffex parte—apart from; one side onlyin personam—against or with reference to a personin rem—against the thinglis pendens—pending suitnolo contendere—I will not contest the actionquasi in rem—as if against the thingUnraveling LegaleseUse simple, non-legal language, with the help of the glossary, to rewrite this quote in the spacebelow 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 judgmentis sought may, at any time, move with or without supporting affidavits for a summary judgmentin 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 immediatedecision by the court without going to trial based on the papers filed by the parties.Using Legal LanguageAfter reading the allegations in the plaintiff's complaint and determining that they were notvague, the attorney for the defendant decided not to file a motionfor 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 amotion to strike. The attorney did,however, file a(n) motionto dismisson the ground ofmisnomer(mistake in name) of a party.A(n)dismissalis an order disposing of an action without trial of the issues. When thedefendant's motion was disallowed by the court, the defendant's attorney filed a(n)answerwithin the prescribed time, which contained theaffirmativedefense (called a(n)confession andavoidanceunder the common law) of the statute of frauds. Neither party filed a(n)motion forjudgment on the pleadings, which may be filed only after the plaintiff's complaint anddefendant's answer have been filed and which replaces the olderdemurrer. The defendant'sattorney also filed a(n)counterclaimto bring a claim against the plaintiff, which arose out of thesame transaction. In answer to this claim, the plaintiff filed a(n)reply. Because the case did nothave two defendants, nocross claimwas filed.

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20Puzzling Over What You Learned

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21Chapter 5Methods of DiscoveryAnte Interrogatory: DChapter OverviewMethods of discovery, including bills of particular, interrogatories, and depositions, productionof documents and things, permission to enter on land, physical and mental examinations, andrequests for admission are examined in this chapter.Chapter ObjectivesThis chapter teaches students that attorneys often enter into stipulations about many aspects to acase, and methods of discovery have been established to allow each party to obtain informationfrom the other party and from witnesses about the case before going to trial. In this way, realissues in the case are exposed early, and much less time is wasted. The common methods ofdiscovery are taught in this chapter.Lecture OutlineI.Bills of ParticularII.InterrogatoriesIII.DepositionsA.Depositions on Oral ExaminationB.Depositions of Witnesses on Written QuestionsC.Use of Depositions in Court ProceedingsIV.Production of Documents and ThingsV.E-DiscoveryVI.Permission to Enter on LandVII.Physical and Mental ExaminationVIII.Requests for AdmissionNotesThe Web Wise box lists web sites and blogs that have been created to inform the legalcommunity 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 andword examples, which appear in legal situations. If students use the Word Wise boxes toincrease their knowledge about the formation of words, then this can help them in figuring outdefinitions when there is uncertainty.List of ChangesTerms in Action discuss a $35-million-dollar gift to Princeton University, which was fought bythe donor’s children, and an e-discovery scenario to enlighten students on how discovery termsare used in real situations.Unraveling Legalese is not in the textbook, but is found below for the instructor to give thestudents as another exercise.

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22Reviewing What You Learned1.Years ago, it was considered good legal practice for one party to a lawsuit to give the otherparty as little information as possible about the case before the trial. Today the opposite istrue.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 andmental examinations, and requests for admission.3.After an action has begun, any party to a suit may ask written questions of any other party tothe suit.4.Interrogatories must be answered in writing and signed by the client answering them underthe 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 othermethod of recording it.7.After the testimony is transcribed by the stenographer, it is either read or shown to thewitness whose testimony it is. Any changes that the witness desires to make are written onthe deposition by the officer who administered the oath with reasons given by the witnessfor making the changes. The deposition is signed by the witness or a reason is noted for thewitness'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 crossquestions, the other party may serve redirect questions, and these may be followed byrecross questions.9.Depositions may be used in court to contradict any contrary testimony of a witness. Theymay also be used at the trial if the witness is dead, is at a greater distance than 100 milesfrom the place of the trial, is unable to testify because of age, sickness, infirmity, orimprisonment, or other exceptional circumstances that would make it desirable that thedeposition be used.10.A party requested to produce documents must serve a written response within a prescribednumber of days after the service of the request stating that the request will be permitted orthat 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 theparty to submit to a physical or mental examination.13.A party who is requested to admit a particular matter must file a written answer statingunder the penalties of perjury either: (1) denial of the matter; (2) a reason why the answeringparty cannot truthfully admit or deny the matter; or (3) an objection, with reasons, to therequest.14.Any information that is stored electronically rather than on paper may be discovered byparties 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 theacknowledgment 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 thevarious changes made to the files before they were saved as final drafts. Metadata are like

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23an electronic fingerprint, and they are discoverable.Understanding Legal Concepts1.F, often6.T2.T7.F, may not3.F, client8.T4.F, not in9.F, or5.T10.TChecking Terminology1.q5.x,y9.d13.s17.i2.h6.z10.w14.g18.o3.m7.p11.l15.a19.j4.e8.r12.b16.u20.v21.aa22.nUnraveling LegaleseUse simple, non-legal language, with the help of the glossary, to rewrite this quote in the spacebelow 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 ofjustice, it shall make an order designation or describing the persons whose depositions may betaken and specifying the subject matter of the examination and whether the depositions shall betaken upon oral examination or written interrogatories. [Rule 27(3) Federal Rules of CivilProcedure]Answer:If the judge believes the maintenance of the testimony may be important to prevent delay or tomaintain justice, he or she must order either written or oral out-of-court testimony.Using Legal LanguageBefore 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 ofdiscoveryto obtain information from the other party and from witnesses about the case. She sent thirtyquestions, calledinterrogatories, to be answered under oath by Conrad Allen, the defendant,who was a(n)partyto the suit. She also sent a(n)subpoena duces tecum, rather than a plainsubpoena, to Leroy Henning, a witness commanding him to bring with him certain payrollrecords of the defendant to adeposition, which is the testimony of a witness given under oathbut not in open court. Because written questions were submitted in advance to Leroy Henning,thedeponent, this was known as a(n)deposition on written questions. After receiving thequestions Leroy Henning sentcross questionsto be answered by the plaintiff. The plaintiff, inturn, responded with further questions, calledredirect questionsto be answered by LeroyHenning. The testimony was taken before a(n)notary public, who was authorized to administeroaths, and written downverbatim—that is, word for word—by a stenographer. When the casegoes to court, the questions and answers may be used toimpeach—that is, call in to question—Leroy's testimony. If Leroy gives false testimony, it is known asperjury.

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24Puzzling Over What You Learned

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25Chapter 6Pretrial Hearing and Jury TrialAnte Interrogatory: BChapter OverviewThe process of impaneling the jury, including the examination and challenging of jurors, isexplained in Chapter 7.Chapter ObjectivesThe learning objectives for this chapter are to have the student know about the pretrial hearingand right to a jury trial, as well as the process of jury selection and the examination process theygo through in order to be appropriate to serve onthe jury.Lecture OutlineI.Pretrial HearingII.Right to Jury TrialA.Selecting the Venirea.Traditional Methodb.One day–One Trial MethodIII.Impaneling the JuryIV.Examination and Challenge of JurorsNotesThe Word Wise box explains a little history on why the word “men” has been used as a genericterm 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 theInternet for a source of information: Who created this site? What type of site is it? When wasthe site created or updated? Where can you find more information? Why was this site created?List of ChangesTerms in Action are used to illustrate terms used in trials, and in this chapter William KennedySmith, nephew of the late President John F. Kennedy, is featured in his 1991 trial. AnotherTerms in Action box discusses jury terms as it affected black jury members in Baton v. Kentuckyin 1986.Unraveling Legalese is not in the textbook, but is found below for the instructor to give thestudents as another exercise.Reviewing What You Learned1.Under the rules of civil procedure, any party may demand a jury trial of any issue that istriable 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, practicingphysicians and surgeons, nurses, public school teachers, and certain other people are exemptfrom 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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26one 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 isready for trial, twelve names are picked out of the ballot box, and those chosen take seats inthe jury box.6.If the case is expected to be lengthy, fourteen or sixteen jurors are impaneled to hear thecase, but before deliberating, the jury is reduced (by lot) to twelve members who decide thecase.7.In some states, the judge chooses one of the members of the jury to be the foreperson. Inother 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 thevenire to make up a complete jury, the judge has the power to send the sheriff out onto thestreet 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 awareof any bias or prejudice that they may have in the case, or (e) know of any reason why theydo 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 arejurors. In a noncapital criminal case and in a civil case, each side is entitled to fourperemptory challenges and an additional one if fourteen jurors are selected or two additionalchallenges if sixteen jurors are selected.Understanding Legal Concepts1.T6.F, may not2.F, speeding up7.T3.F, draw from the ballot box8.T4.T9.T5.F, are not exempt10.F, peremptory challengesChecking Terminology1.e5.h, s9.j13.k17.d, p2.i6.y10.a14.v18.m3.l7.c, n, o, z11.bb15.b19.q4.u8.t12.g16.aa20.rUnraveling LegaleseUse simple, non-legal language, with the help of the glossary, to rewrite this quote in the spacebelow 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 orseveral plaintiffs may be considered as a single party for the purposes of making challenges, orthe court may allow additional peremptory challenges and permit them to be exercised separatelyor jointly.Answer:In non-criminal cases, each party can remove three jurors (who will be replaced by someoneelse) without giving a reason for the removal. More than one party can be considered a single

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27party in doing this, or the court may allow more than one party to act separately, thereby causingmore than three jurors to be removed.Using Legal LanguageThe plaintiff's attorney, Mary Grey, attended a(n)pretrial hearingbefore the judge prior to thetrial in an attempt to speed up the trial. Mary wanted a jury trial instead of referring the case toa(n)master—that is, a lawyer appointed by the court to hear testimony. In addition, she did notwant a(n)jury waived trialor a(n)bench trial, which is a trial without a jury. The clerk ofcourt sent a(n)writ of venire faciasto each city and town within the court's jurisdiction toobtain jurors for the next sitting of the court. When the trial began, jurors were selected by lotfrom thevenire(the jury pool), and after thevoir direwas held to be sure that they stoodindifferent, fourteen jurors wereimpaneledto hear the case. The number included twoalternate jurorswho would be used in the case of sickness or removal of any of the regularjurors. Nochallengesfor causes existed, but severalperemptory challengesdid, which requiredno reason to be given. The lawyers did not wish to stipulate to a lesser number of jurors, and noneed to obtaintalespeopleexisted—that is, bystanders or people from the county at large, toserve on the jury. The trial was not a(n)capital casebecause it did not involve the death penalty.A woman was chosen to be theforepersonwho would speak for the group.

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28Puzzling Over What You Learned

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29Chapter 7Steps in a TrialAnte Interrogatory: DChapter OverviewChapter 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 (jurycharge), jury’s verdict, court’s judgment or decree, and appeal. Although execution (in civilcases), and sentencing (in criminal cases) are steps in a jury trial, they are not discussed in thetext.Chapter ObjectivesThe objectives for chapter 7 are to help students understand the process of a trial and howevidence and testimonies lead to the outcome of a trial. Discussion on jury selection and dutiesis in the chapter, and aspects of verdicts are explained. Finally, points about appeals are outlinedso students have a general understanding of that process.Lecture OutlineI.Plaintiff’s Opening StatementII.Plaintiff’s Case in ChiefIII.Defendant’s Opening StatementIV.Defendant’s Case in ChiefV.Requests for Instructions to JuryVI.Final ArgumentsVII.Instructions to JuryVIII.VerdictIX.Judgment or decreeX.AppealNotes:Please note the Word Wise box with the Latin root “circum.” It tells students how the termcircumstantial evidence is defined using the Latin root. These connections of Latin root words orLatin words are used frequently in legal terms, so a point has been made in this textbook to teachstudents the background of many terms. The exercise at the end of the chapter gives the studentsa chance to learn and review Latin terms.The Web Wise box provides Internet sites that students can search to learn more about FederalRules of Evidence, and practice and procedure information by state.List of ChangesTwo Terms in Action boxes have been added to lend interest to the chapter while using somechapter terms. One story addresses how current social media can affect trials. The other onebrings 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 thestudents as another exercise.

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30Reviewing What You Learned1.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 tothe 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 abearing on the case such as an item of clothing, a weapon found at the scene of the crime, aphotograph, chart, or model.4.(a) It is direct evidence when a witnesses testifies, "I saw that man shoot the gun." (b) It iscircumstantial evidence when a witness testifies, "I heard the sound of a gun being fired andthen 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 courtfinds that the evidence is insufficient as a matter of law to support a verdict in the plaintiff'sfavor.7.After the defendant's attorney rests the case, the plaintiff's attorney may introduce rebuttalevidence.8.Questions of law are questions relating to the application or interpretation of law. Questionsor fact are questions about activities that took place between the parties which caused themto 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 ajudgment for the payment of money.Understanding Legal Concepts1.T6.F, law2.F, direct7.T3.F, cross8.T4.T9.T5.F, last10.F, lawChecking Terminology (Part A)1.r7.q13.dd19.u25.s2.f8.g14.v20.b26.t3.d9.cc15.c21.m27.k4.x10.h, o, nn16.n22.e28.p5.w11.aa, bb17.j23.i6.a12.l18.z24.yChecking Terminology (Part B)1.p6.m11.g16.l21.y2.e7.f12.j17.d22.r3.k8.w13.h18.q, cc23.s4.a, u9.b14.c19.n5.x10.o15.v20.i

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31Sharpening Your Latin Skillscertiorari—to be informed of; to be assurednon obstante verdicto—notwithstanding the verdictprima facie—at first sight; on the face of itsubpoena—under penalty; a process to cause a witness to appear and give testimonysubpoena ad testificandum—an order commanding a person to appear and testify in a legalactionsubpoena duces tecum—bring with you; a subpoena ordering a witness to produce a papervenire—the large group of people from whom the jury is selected for a trialvenire facias—order to the sheriff to bring people to court to serve as jurorsUnraveling LegaleseUsing simple, nonlegal language, with the help of the glossary, rewrite this quote in the spacebelow, 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 anacquittal. 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 maydeclare the defendant not guilty. If the jury can’t reach a verdict, the judge may declare thedefendant not guilty.Using Legal LanguageThe plaintiff's attorney, Mary Grey, was required to set forth a(n)prima facie casein heropening statement before the jury. Her evidence consisted of a photograph, which wasrealevidence, payroll records, which wasdocumentary evidence, and oral statements of a witness,which wastestimonial evidence. On the stand, Mary's witness, Leroy Henning, said, "I am thepayroll clerk, and these payroll records are true and correct." This wasdirectevidence, notcircumstantial evidence, and because she was examining her own witness, Mary’s examinationwas calleddirect examination. Mary could not askleading questions, which suggest to thewitness the desired answer. The opposing attorney could do so, however, oncross 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 thejury, whose decision is called a(n)verdict. Following this decision the court issued itsjudgment, which is sometimes called a(n)decreein a court of equity. Mary's client won thecase, and the opposing attorney decided not toappealto a higher court because onlyquestionsof lawmay be raised at that time. Had he done so, his client who would have been called theappellant, would have had to put up a(n)appeal bondas security.

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