Default Study Guide: Law Essay

Submitted By kmpleasant
Words: 872
Pages: 4

Demonstrative evidence: work product prepared for presentation to the fact finder to illustrate the facts or issues of the case; PHOTOS, DRAWINGS, MODELS, CPU ANIMATIONS
Visual aide to illustrate
Created for trial
Must accurately reflect evidence
LIMITATIONS
Cost
Not real evidence
Cannot prove anything
Court can limit
Could distract, confuse or bore if not well done

TYPES
Blowups
Photos
Graphs/Charts
Drawings
Maps
Models
Videos
Computer animation
Multimedia
POWERPOINTSmistakesToo much writing on slide, Just highlight points – not sentences, No more than four (4 ) bulletpoints

DEFAULT JUDGMENTS:::
Take default if:
Plaintiff files Request for Entry of Default
10 days to do so
Mail copy to defendant
Proof of service of summons
Court will not do without request
Clerk enters default
This does not give judgment
Prevents defendant from answering

Personal injuries or punitive damages:
Must serve and have proof of service that served Statement of Damages in PI case
Must serve written notice that are seeking punitive damages and give an amount.
Serve like a summons

Entry default v. Default judgment
Clerk enters
Prevents defendant from filing answer v.
Clerk or Court will enter
Determines $$ defendant owes, or makes other award

Default judgment:
Plaintiff has 45 days from entry of default to ask for judgment
Clerk enters it under CCP sec. 585 (a)
Based on contract if easy to determine amount
Enters principal amount demanded in complaint or other statement required by statute

Prove up:
Brief summary of case identifying the parties and the nature of claim
What happened briefly, supporting judgment
Itemize damages

Requirements to set aside:
On motion
If it is just
If it is requested within a reasonable time less than 6 months after default
If answer is filed with request and there is a defense
REASONBALE TIME
Must act diligently to set aside
Three months delay probably too long
Court looks to whether there will be prejudice to plaintiff. Less burden on defendant if no prejudice
PRODECURE
Motion to set aside default and default judgment
Attorney affidavit of fault or
Declarations by client
Competent evidence
Points and Authorities
Proposed answer
Proposed order
GROUNDS FOR SETTING ASIDE
Attorney’s fault
Mistake
Inadvertence
Surprise
Excusable neglect

SUMMARY JUDGMENTS::: Asks judge to decide if there are any facts in dispute; If not, then judge can decide case based on law
DONE-
After discovery complete
Because it is based on evidence found and not pleadings only
PURPOSE-
Avoid trial and testimony that might hurt
Save costs of trial
If win, case is OVER
PROVING FACTS-
Complaint
Answer
Interrogatory answers
Deposition answers
Requests for admission
Declarations
TRIABLE ISSUE OF FACT:
Fact – need to prove this element to win
Triable – Could be decided either way by a reasonable person – NEED JURY
Something that testimony will be taken on and submitted to a jury and result could go either way
If no disagreement on evidence, why go to jury?
EXAMPLES-
Negligence – duty to plaintiff
Contract – offer
Punitive damages – lack of oppression, fraud or malice
Premises liability – ownership
Statute of limitations
Government claim
Amount of damages is usually TRIABLE
SUMMARY JUDGMENT V. SUMMARY ADJUDICATION
Every element in entire action is not in factual dispute
If win, case is over V.
Facts of one issue, cause of action, affirmative defense, or punitive damage claim are not in dispute
Rest of case will continue

PROCEDURE: DOCUMENTS
Notice of Motion
Declarations or other evidence
Points and Authorities
Separate Statement of…