I. REVIEWING WHAT YOU LEARNED
After studying the chapter, write the answers to each of the following questions:
1. How does the plaintiff’s attorney begin a civil suit?
The plaintiff’s attorney begins a civil suit by filing the plaintiff’s first pleading which is a complaint with the clerk of the court.
2. What two purposes do pleadings serve?
Pleadings served the purpose of giving notices to all parties of the claims and defenses in the suite. Thus, they also help narrow the issues for trial so that both parties and the court know the legal issues that must be decided.
3. How is the defendant notified that a lawsuit has been brought against him or her?
The defendant is notified that a lawsuit has been brought against him/her by means of a summons.
4. Describe three ways that process may be served on the defendant.
Process may be served on the defendant in three ways:
- Personal service: The process server can serve process by delivering a copy of the summons and complaint to the defendant personally.
- Constructive service: The summons and complaint are left at the defendant’s last and usual place of abode.
- Substituted service: The summons and complaint are delivered to the defendant’s agent, mailed, or published in a newspaper.
5. In what ways may process be served if the defendant is a corporation?
If the defendant is a corporation, the process may be served on an officer of the corporation, on a registered agent of the corporation, or on the person in charge of the corporation’s principal place of business.
6. How can plaintiffs be assured that money will be available from defendants if the plaintiffs win a lawsuit?
If the plaintiff obtains a judgment against the defendant, they can be assured that the money will be available from defendants with an attachment. An attachment is the act of taking a person’s property and bringing it into the custody of the law so that it may be applied toward the defendant’s debt if the plaintiff wins the suit.
7. Under a typical state law, what two documents must the plaintiffs’ attorney file with the court to obtain an attachment?
To obtain an attachment under a typical state law, the plaintiff’s attorney must file a motion for attachment and an affidavit signed by the plaintiff.
8. How is the defendant notified of the plaintiff’s motion for attachment?
The defendant is notified of the plaintiff’s motion for attachment through the process server after it has been sent to the process server by the plaintiff’s attorney.
9. The court may allow an attachment if it finds what?
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. On what three occasions may the court allow an attachment without notifying the defendant beforehand?
The court may allow the attachment without notifying the defendant on three occasions:
- If the court finds that the defendant is not within its jurisdiction;
- If the court finds that a danger exists that the defendant will conceal the property, sell or remove it from the state;
- If the court finds that a danger exists that the defendant will damage or destroy the property.
11. What is done with the writ of attachment or notice of lis pendens when real property is attached?
When real property is attached, the writ of attachment or a notice of lis pendens is recorded at the registry of deeds in the county where the property is located so as to put a lien on the property until the lawsuit is completed.
12. What is a statute of limitations, and why is it important?
A statute of limitations refers to a law that limits the maximum time frame during which legal proceedings – civil or criminal – can be initiated after an alleged offense. A statute of limitations is important because it sets a time limit for how long plaintiffs can wait, after the plaintiff is aware of the action, to file a lawsuit. Therefore it is a critical consideration for the attorney whether the applicable statute of limitations bars the lawsuit from being filed.
II. UNDERSTANDING LEGAL CONCEPTS
Indicate whether each statement is true or false. Then, change the italicized word or phrase of each false statement to make it true.
ANSWERS
1. To begin a lawsuit, the plaintiff's attorney files a summons with the clerk of the court. FALSE (a summons → a complaint)
2. Pleadings help to narrow the issues for trial so that both parties and the court know what legal issues must be decided. TRUE
3. A complaint is a formal notice to the defendant that a lawsuit has begun and that the defendant either must file an answer within the number of days set by state law or lose the case by default. FALSE (a complaint → a summons)
4. To obtain an attachment, under a typical state law, the plaintiff's attorney files a motion for attachment with the court at the same time that the complaint is filed. TRUE
5. An affiant is also known as a deponent. TRUE
6. An ex parte session of the court is attended by both parties to the suit. FALSE (both parties → only one party)
7. A writ of attachment is a written order to the sheriff to attach the property of the defendant. TRUE
8. When real property is attached, the writ of attachment is recorded at the city or town hall where the property is located. FALSE (city or town hall → registry of deeds in the county)
9. The procedure for attaching the defendant's property that is in the hands of a third person is called a writ of encumbrance in some states. FALSE (writ of encumbrance → trustee process)
10. A trustee process summons orders the trustee to file, within a prescribed number of days, a disclosure under oath of the goods, effects, or credits of the defendant that are in the possession of the trustee. TRUE
III. CHECKING TERMINOLOGY (PART A)
From the list of legal terms that follows, select the one that matches each definition.
ANSWERS
1.(r) Docket: a record of cases that are filed with the court.
2.(k, n) Complaint/ Declaration: a formal document containing a short and plain statement of the claim, indicating that the plaintiff is entitled to relief and containing a demand for the relief sought.
3.(f) Attachment: the act of taking a person’s property and bringing it into the custody of the law so that it may be applied toward the defendant’s debt if the plaintiff wins the case.
4.(a, q) Affiant/ Deponent: a person who signs an affidavit.
5.(v) Ex parte: on one side only.
6.(j) Class action: a claim that one person or entity has against the property of another.
7.(w) Garnishment/ Trustee process: a procedure for attaching the defendant’s property that is in the hands of a third person.
8.(h) Cause of action: the ground on which a suit is maintained.
9.(s) Docket number: a number assigned to each case by the clerk of court.
10.(b) Affidavit: a written statement sworn to under oath, before a notary public, as being true to the affiant’s own knowledge, information, and belief.
11.(l) Constructive service: a type of service in which the summons and complaint are left at the defendant’s last and usual place of abode.
12.(t) Doe defendants: references to defendants whose names are unknown.
13.(e) Answer: the defendant’s pleading in written response to the plaintiff’s complaint.
14.(o) Default judgment: a court decision entered against a party who has failed to plead or defend a lawsuit.
15.(x) Gravamen: the essential basis or gist of a complaint filed in a lawsuit.
16.(y) Justiciable: appropriate for court assessment.
17.(z) Legal issues: questions of law to be decided by the court in a lawsuit.
18.(bb) Lis pendens: a pending suit.
19.(c) Allegation: claims that the party making it expects to prove.
20.(d, g) Allege/ Aver: to make an allegation, to assert positively.
21.(m) Counterclaim: a defendant’s suit filed against the plaintiff.
22.(p) Defendant: a person against whom a lawsuit is brought.
IV. CHECKING TERMINOLOGY (PART B)
From the list of legal terms that follows, select the one that matches each definition.
ANSWERS
1.(c) Petition: a written application for a court order.
2.(l) Standing to sue: a party that has a tangible, legally protected interest at stake in a lawsuit.
3.(cc) Litigant: parties to a lawsuit.
4.(f) Preponderance of evidence: evidence of the greater weight.
5.(j) Rules of civil procedure: regulations that govern the proceedings in civil cases.
6.(a) Litigation: a suit at law.
7.(i) Ripeness doctrine: the principle under which the court will not hear a case unless there is an actual, present controversy for the court to decide.
8.(o) Summary proceeding: a short and simple trial.
9.(x) Writ of execution: a written order to the sheriff, commanding the sheriff to enforce a judgment of the court.
10.(e) Pleadings: the written statements of claims and defenses used by the parties in the lawsuit.
11.(p) Summons: a formal notice to the defendant that a lawsuit has begun and that the defendant either must file an answer within the number of days set by state law or lose the case by default.
12.(q, r) Trial docket/ Trial list: the calendar of cases that are ready for trial.
13.(w) Writ of attachment: a written order to the sheriff commanding the sheriff to attach the real or personal property of the defendant.
14.(s) Trustee: a person who holds legal title to property in trust for another.
15.(u) Verification: a written statement made under oath, confirming the correctness, truth, or authenticity of a pleading.
16.(g) Process: the means of compelling the defendant in an action to appear in court.
17.(k) Service of process: the delivering of summonses or other legal documents to the people who are required to receive them.
18.(m) Statute of limitations: set time limit for how long plaintiffs can wait to file a lawsuit.
19.(b) Personal service: the delivery of a copy of the summons and complaint to the defendant personally.
20.(v) Writ: a written order of a court, returnable to the same, commanding the performance or nonperformance of an act.
21.(n) Substituted service: a type of service in which the summons and complaint are delivered to the defendant’s agent, mailed, or published in a newspaper.
22.(h) Process server: a person who carries out service of process.
23.(d) Plaintiff: one who brings a lawsuit.
V. USING LEGAL LANGUAGE
Read the following story and fill in the blank lines with legal terms taken from the list of terms at the beginning of this chapter:
After checking to see whether the client’s case wasn’t too old, but was still within 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(n) 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 defendants 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) writ, which is also called a(n) writ of attachment 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 lis pendens 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.
VI. PUZZLING OVER WHAT YOU LEARNED
Caveat: Do not allow squares for spaces between words and punctuation (apostrophes, hyphens, etc.) when filling in crossword.
Across
1. Service in which papers are left at defendant's last and usual place of abode. CONSTRUCTIVE SERVICE
4. Calendar of cases that are ready for trial. TRIAL DOCKET
6. Another name for trial docket. TRIAL LIST
8. Act of bringing a person's property into the custody of the law. ATTACHMENT
9. Written order of the court commanding the performance of an act. WRIT
10. Defendants whose names are unknown. DOE DEFENDANTS
11. Ground on which a suit is maintained. CAUSE OF ACTION
13. Written order to a sheriff commanding the attachment of property. WRIT OF ATTACHMENT
14. Written statement under oath confirming the correctness of a pleading. VERIFICATION
15. Person who signs an affidavit. AFFIANT
16. The common law name for a complaint. DECLARATION
17. The delivering of summonses or other legal documents. SERVICE OF PROCESS
Down
1. Formal document containing short statement of the plaintiff's claim. COMPLAINT
2. Service in which summons and complaints are delivered to an agent or mailed. SUBSTITUTED SERVICE
3. Claim that one has against the property of another. LIEN
5. Record of cases that are filed with the clerk of court. DOCKET
7. Written statement sworn to under oath. AFIDAVIT
12. Written statements of claims and defenses used in a lawsuit. PLEADINGS
Source: Brown, G. W., & Kauffman, K. D. (1998). Legal terminology. Prentice Hall.
Chapter 3: Civil Trial Procedure, Book 1, pages 86-88
Edited by Nguyễn Nhật Linh
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