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96 Cards in this Set
- Front
- Back
What are the two (2) things you need to also do when you file the complaint for your client under Trial Rule 3?
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1. file your appearance, and
2. pay the filing fee |
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Service of Process:
Rule 4 Service - What are the four (4) ways to serve process on an individual? |
1. certified mail,
2. personal service, 3. leave copy at home (+mail), and 4. service on an agent |
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Service of Process:
Service on Organizations - Are the methods the same as an individual? Who do you serve? |
Partnership = any general partner
Organization = highest exec., or agent State Org. = AG + Exec. of Org. Local Org. = Officer + Town Attorney |
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Service of Process:
When do you use "Service by Publication"? |
Only as a last resort.
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Personal Jurisdiction:
What is the authority over? What does it require? |
- authority over the person or entity.
- it requires "minimum contacts" |
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Personal Jurisdiction:
What is the three (3) part test for PJ? |
1. quality of contacts,
2. quantity of contacts, and 3. how these contacts relate to the lawsuit. |
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General Jurisdiction:
Applies if the defendant's activities in IN are ____________ and _____________? |
"continuous and systematic"
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Specific Jurisdiction:
Applies when Defendant's activities are __________ and ___________, but these activities had an ___________ on the forum state. |
"limited and sporadic"
"impact" |
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Personal Jurisdiction:
Long-Arm Statute (Rule 4.4) What nine (9) times will PJ reach out to the Defendant? [C.R.I.S.P. - B.O.D.S.] |
C = Consents to PJ
R = Restraining Order I = Insurance S = Supplies Goods / Services P = Personal Injury B = Business O = Owns Real Property D = Damage to Property S = Spouse |
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Personal Jurisdiction:
When are the two times to assert lack of PJ as an affirmative defense? |
1. in the answer to the complaint, or
2. In a 12(b)(2) Motion to Dismiss |
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Personal Jurisdiction:
These three (3) things, will effectuate a "Waiver" of PJ as an affirmative defense? |
1. fail to raise in answer,
2. move for change of venue, 3. file Rule 12(b)(6) Motion |
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Rule 5 Service:
What is Rule 5 Service? What must you do to use Rule 5 Service? When is Rule 5 Service satisfied? |
- Service by Mail
- put "Certificate of Service" at the bottom of the pleading. - When mailed |
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Time Issues in the Response to Complaint:
How long do you have to - File the "Answer"? |
20 days
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Time Issues in the Response to Complaint:
How long do you have to - File Rule 12 Motion to Dismiss? |
20 days
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Time Issues in the Response to Complaint:
How long does P have to respond if Motion to Dismiss is granted? How long does D have to "answer" the complaint if it is denied? |
10 days
10 days |
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Answers to the Complaint:
What are the three (3) ways you can "answer" the allegations of the Complaint? |
1. admit
2. deny 3. insufficient info to admit or deny |
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Affirmative Defenses (Rule 8c):
What are the seven (7) "affirmative defenses" you can place in your answer? [W.A.F.E.L.L.L.] |
1. Waiver
2. Accord and satisfaction 3. Fraud 4. Estoppel 5. Lack of PJ 6. Lack of SMJ 7. Lack of consideration |
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What two (2) matters require "pleading with specificity" in the answer and complaint?
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1. Fraud, and
2. Mistake |
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Complaint and Answer Stage:
You get "attorney's fees" if the claim or defense is __________, __________, or ____________? (3) |
1. frivolous
2. groundless, or 3. unreasonable |
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Amendments to Pleadings:
What is the ability to "amend the pleading" considered? |
A Matter of Right
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Amendments to Pleadings:
How often can you "amend" before the answer? Can you "amend" after the answer has been filed? |
One Time
Only with the Court's Permission |
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Attacks on the Pleadings:
What are the six (6) common basis for dismissal? |
1. Failure to State a Claim [12b6 Motion],
2. Jurisdiction, 3. Improper Venue 4. Bad Service / Bad Process 5. Failure to join Necessary Party 6. Same Action Pending in Another Court |
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Attacks on the Pleadings:
Rule 12(b)(6) Motion to Dismiss for "Failure to State a Claim"... Therefore D is entitled to _______________________? |
Judgment as a matter of law
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What is the court's decision on a 12(b)(6) Motion to Dismiss based on?
What if you present other evidence? |
- based on the "four corners" of the document.
- treated like Motion for Summary Judgment. |
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Motion for a More Definite Statement (Rule 12e):
What are you requesting? Why? What happens if the other party doesn't "respond" or "cure the defects" within 20 days? |
- requesting a less ambiguous claim
- as written, you cant respond adequately, - no response / failure to cure = court will strike the pleading or do anything it feels is just. |
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Joinder of Claims and Remedies (Rule 18):
How many claims may one party join to an action? |
As many claims as he has against the opposing party.
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Rule 19 Joinder of "Indespensible Parties":
What makes a party "indespensible"? (2) |
1. "Complete Relief" - can't be given without them, or
2. "Double or Inconsistent Liability" - would happen. |
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Permissive Joinder (Rule 20):
What three (3) things would give a party "permission" to "join" the current action? |
1. similar claims and defenses
2. common questions of law and fact, 3. same transaction or occurrence. |
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Class Action Suits (Rule 23):
Step 1 of getting Class Action Certified: You need all of them! [P.A.C.T.] |
P = Practical
A = Adequate C = Common Issues (of law/fact), and T = Typical (claims and defenses) |
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Class Action Suits (Rule 23):
Step 2 of getting Class Action Suit Certified: You need 1 or more of these? [R.I.P] |
R = Risk of varying results,
I = Injunctive Relief Sought P = Predominant Legal or Factual Issues |
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Intervention (Rule 24):
When a party wants to be added to the lawsuit late... When two (2) times MUST a court allow a party to "intervene? |
1. statutorily authorized,
2. property interest in the litigation |
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Intervention (Rule 24):
When a party wants to be added to the lawsuit late... When two (2) times MAY a court allow a party to "intervene? |
1. common question of law and fact
2. common defenses |
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Pre-Trial Conferences:
The main purpose of a Pre-Trial Conference is to "Simplify the Issues". What are the (4) things to consider during a PTC? |
1. amendments to pleadings
2. stipulations and admissions, 3. witness and exhibit lists, and 4. settlement and ADR |
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Pre-Trial Conference:
How long before the PTC must the attorneys meet privately to discuss the amendments, stipulations, exhibit lists, settlement, etc.... |
10 days
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Discovery (Rule 26):
What are the six (6) methods of obtaining discovery? |
1. Oral Depositions
2. Written Depositions 3. Interrogatories 4. Requests for Production 5. Physical/Mental Exams, and 6. Request for Admissions |
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Discovery (Rule 26):
Testimonial Expert Witness - What four (4) things can you discover about an "expert witness" planning to testify? |
1. ID
2. Subject Matter of Testimony, 3. Substance of Facts/Opinions, and 4. Grounds for those Opinions |
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Discovery (Rule 26):
Protective Orders from Discovery - What five (5) grounds can you use to get a "protective order" for your client in regards to discovery? [ A.E.I.O.U. ] |
A = Annoyance
E = Embarrassment I = Injury O = Oppression U = Undue Expense |
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Discovery (Rule 26):
Protective Orders from Discovery - What four (4) things can a court do if they grant the discovery protective order? |
1. deny it,
2. limit to certain time or place, 3. limit discovery to a certain method, or 4. restrict the discovery from the public record. |
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Oral Depositions:
Who can you get to take part in an Oral Deposition? What is the main purpose of having them deposed? |
a party or a non-party
- to get them under oath |
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Oral Depositions:
What must you give to a "party" before taking an oral deposition? What does this include? |
Reasonable Notice
Date, Time, Location, |
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Oral Depositions:
What must you use when seeking to depose a "non-party"? (What Service?) |
Rule 4 Service
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Oral Depositions:
If you want a "non-party" to bring information, what do you need to serve them with? |
Request for Production
+ Subpoena Duces Tecum |
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Oral Depositions:
If you want a "party" to bring information with them to the deposition, what do you serve them with? |
- Request for Production
+ Subpoena |
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Oral Depositions:
When deposing an "organization" what do you do send along with subpoena? |
You send them the type of information sought.
- They choose who to send as spokesperson |
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Oral Depositions:
What (2) things are you allowed to object to at a depo? |
1. form of the question
2. manner of the deposition |
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Written Depositions:
Although rarely used, how does it work? |
Step 1 - deposing party writes and sends out "Direct" questions,
Step 2 - Responded to with "Cross" Step 3 - Write "Re-Direct" and send all to the court reporter. Step 4 - Court reporter asks the witness all questions, and they respond on the record |
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Use of Depositions in Court(Rule 32):
For what four (4) purposes can you use depositions in court? |
1. in lieu of live testimony
2. to impeach a witness 3. in support of "summary judgment", or 4. to oppose summary judgment |
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Interrogatories (Rule 33):
What are "interrogatories"? |
Written Questions - for Written Answers.
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Interrogatories (Rule 33):
Who can you serve with interrogatories? |
ONLY "parties" to the action
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Interrogatories (Rule 33):
Who must "verify" the interrogatory you send to a party? |
The Party and Their Attorney
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Interrogatories (Rule 33):
How long does a party served with an Interrogatory have to respond? What happens if they don't? |
30 days
- Motion to Compel and possibly sanctions |
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Requests for Production (Rule 34):
Who can you serve a Request for Production on? |
anybody relevant to the action
"party" or "non-party" |
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Requests for Production (Rule 34):
If you serve a Request for Production to a "Non-Party", what must you send also? |
Subpoena
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Requests for Production (Rule 34):
How long do you have to respond? |
30 days
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Requests for Production (Rule 34):
If served, what must you produce? |
Written Answers
or the Documents themselves |
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Physical / Mental Examinations (Rule 35):
When are you going to use a Rule 35 exam? What must you get before taking the exam? |
When the party's mental or physical state is at issue.
Court Order |
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Physical / Mental Examinations (Rule 35):
You must show ___________? You must give ___________ to all parties? |
Good Cause
Notice |
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Physical / Mental Examinations (Rule 35):
What must you always specify in your request? |
Time, Place, Manner, and Scope of the exam
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Request for Admission (Rule 36):
Who can you serve them on? |
ONLY "Parties" to the suit.
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Request for Admission (Rule 36):
How long do you have to respond? |
30 days
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Request for Admission (Rule 36):
If a party fails to respond, what happens? |
Treated like an admission
(failure could likely be malpractice) |
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Request for Admission (Rule 36):
What method of service do you use? |
Rule 5
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Request for Admission (Rule 36):
If you object, how must you do so? |
- to each question "individually" for good cause.
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Discovery Sanctions (Rule 37):
After a Motion to Compel is ignored, what are eight (8) types of "sanctions" a court may levy? [S.P.E.A.D. - C.D.C.] |
1. strike the pleading
2. prohibit introduction 3. establish facts your seeking 4. attorney's fees 5. dismissal 6. contempt 7. default judgment 8. continuance |
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Discovery Sanctions (Rule 37):
What MUST you prove to the court before you seek their involvement in discovery? |
That you have tried to resolve the issues without them!
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Subpoenas (Rule 45): What are the three (3) main uses for subpoenas?
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1. deposition
2. request for production 3. trial testimony |
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Right to a Jury Trial (Rule 38):
Must demand within ______ days? If not, then you _________? |
10 days
waived |
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Right to a Jury Trial (Rule 38):
Once Jury Trial is "demanded", all parties must __________ before it can be "withdrawn"? |
consent
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Jury Challenges (Rule 47):
Jury Selection = ____________? Civil Jury = _____ people? Civil Jury has _____ alternates? |
Voir Dire
6 3 |
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Jury Challenges (Rule 47):
You get _____ "preemptory challenges? You have __________ challenges for cause? |
3
Unlimited |
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What is a "Final Judgment" under Rule 54?
"Magic Language"? |
- Any order that may be appealed
- "the court issues judgment on this matter" |
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Once a "Final Judgment" is certified, how long do you have to initiate your appeal?
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30 days
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Default Judgment (Rule 55):
When do you usually see Default Judgments? |
When D is properly served, and doesn't respond.
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Default Judgment (Rule 55):
Why don't courts like "default judgments"? |
They want to decide judgments "on the merits"!
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Default Judgment (Rule 55):
Under what three (3) circumstances will courts almost always set aside a "default judgment"? |
1. lack of actual notice
2. excusable neglect, or 3. mistake |
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Declaratory Judgments (Rule 39):
What two (2) situations are courts most likely to use a "declaratory" judgment? |
1. to "resolve controversy" between parties
2. to set out "rights and duties" of the parties (examples: statute improperly applied to action or ambiguous K language). |
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Default Judgment (Rule 55):
What is rarely awarded in default judgments? |
money damages
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Motion for Summary Judgment (Rule 56):
A Motion for Summary Judgment is basically a...? |
Trial on Paper
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Motion for Summary Judgment (Rule 56):
What is the main thrust of a summary judgment motion? |
There are "no genuine issues of material fact"
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Motion for Summary Judgment (Rule 56):
How long must a P wait to file a summary judgment motion after filing the complaint? What about the defendant? |
20 days
D can file at any time |
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Motion for Summary Judgment (Rule 56):
How long do you have to respond? What do you respond with? Is a reply brief required? |
30 days
- affidavits, briefs, depos, etc... (anything to show a "material fact is in controversy). - no, but parties always do. |
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Motion for Summary Judgment (Rule 56):
When is a hearing required? |
If the party asks for one within 10 days of response.
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Motion for Summary Judgment (Rule 56):
What are the two "designations" you must file in a "response" to a motion for summary judgment? |
1. materials which support you, and
2. a list of all "material facts" you claim exist. |
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Using "Affidavits" in Support of Pleadings:
Witness must be __________, and have _________ ___________? |
Competent
Personal Knowledge |
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Using "Affidavits" in Support of Pleadings:
They must set forth evidence that would be ___________ at trial? If they don't, a court can strike them in ___________ or in _________? |
admissible
in whole or in part |
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Motions to Reconsider (Rule 60):
Reasons to File? [ F - M.E.N.S.A ] |
F = Fraud
M = Mistake E = Excusable Neglect N = New Grounds S = Surprise A = Any other good reason |
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Preliminary Injunctions (Rule 65):
What type of remedy are they? What are you seeking from them? |
- Equitable Remedies
- You want to "Maintain the Status Quo" through trial. |
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Preliminary Injunctions:
What four (4) things must you prove? |
1. reasonable likelihood of success (like a mini-trial),
2. remedies at law inadequate, 3. threatened injury to you outweighs harm to opposing party, 4. the public interest would be served |
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Preliminary Injunctions:
Can you appeal them? How? |
Yes.
Interlocutory |
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Temporary Restraining Orders (Rule 65):
What is a TRO? |
Emergency Order to Maintain Status Quo
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Temporary Restraining Orders (Rule 65):
If successful, how long does it last? |
10 days
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Temporary Restraining Orders (Rule 65):
Can they be done ex parte? |
Yes
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Temporary Restraining Orders (Rule 65):
What must you show to get a TRO? |
Good Cause
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Local Rules of Court (Rule 81):
Can each Court adopt their own rules? |
Yes
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Local Rules of Court (Rule 81):
If a Court adopts their own rules, what must they not be inconsistent with? |
Indiana Trial Rules
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Local Rules of Court (Rule 81):
Where do you find local rules? |
with the Court Clerk, or
the Indiana Supreme Court |