Deck 4: Defensive Pleadings in Civil Trials

Question 1

When the plaintiff has no legal capacity to sue, what may the defendant's attorney do?

A) File a motion to dismiss
B) File a demurrer
C) Make a motion for judgment of the pleadings
D) Make a motion for summary judgment

Answer 1

File a demurrer

Question 2

How does a demurrer help the defendant attack the plaintiff's complaint?

A) By raising a point of law
B) By stating a legal doctrine
C) By starting a legal controversy
D) By contradicting evidence

Answer 2

By raising a point of law

Question 3

When the demurrer is overruled, what does it mean?

A) Made void
B) Annulled
C) Not sustained
D) All of the above

Answer 3

All of the above

Question 4

What is a consequence of the overruled demurrer for the defendant?

A) Defendant must make a motion for a summary judgment
B) Defendant must make a motion to strike
C) Defendant must file an answer
D) Defendant must make a counterclaim

Question 5

When may the defendant use a demurrer?

A) Any time to attack the plaintiff's complaint
B) When the court allows a demurrer as a formal type of answer
C) When there are grounds for using a demurrer
D) Both B and C

Question 6

When the plaintiff filed the suit in the court which is an improper venue, what may the defendant's attorney do?

A) Make a motion to dismiss
B) Ask for a change in venue
C) Make a motion for summary judgment
D) File a demurrer

Question 7

In what circumstances may a motion for a more definite statement be made?

A) Pleading is extremely vague
B) Pleading is in a foreign language
C) Pleading is full of grammatical errors
D) Pleading is full of legalize

Question 8

How may a party to a lawsuit use a motion to strike?

A) To force another party to come to a mutual agreement
B) To compel the judge to recuse
C) To attack the other party's defenses
D) To have stricken from any pleading any insufficient defense

Question 9

What motion can a party use to have immaterial and scandalous matter removed from pleadings?

A) Motion for judgment on the pleadings
B) Motion to strike
C) Motion to dismiss
D) Motion for a more definite statement

Question 10

How can an attorney make a motion?

A) Make an oral request only
B) Make a written request only
C) Make either oral or written request
D) Send an e-mail to the judge

Question 11

When must the defendant's attorney make a motion to dismiss?

A) Any time after service of process on the defendant
B) Within a prescribed number of days after the defendant receives service of process
C) Any time after the answer is filed
D) After the plaintiff replies to the counterclaim

Question 12

In case of dismissal without prejudice, what is the plaintiff allowed to do?

A) Correct the error
B) Bring another action on the same claim
C) All of the above
D) None of the above

Question 13

What decision may the judge make with respect to a motion?

A) Allow the motion
B) Deny the motion
C) Dismiss the case
D) Both A and B

Question 14

If the judge orders dismissal with prejudice, what are consequences for the plaintiff?

A) Plaintiff cannot file another suit on the same claim
B) Plaintiff can file another suit on the same claim
C) Plaintiff can petition for a writ of certiorari
D) Plaintiff can appeal this case

Question 15

What term describes a mistake in the party's name?

A) Misspelling
B) Misnomer
C) Litigant in error
D) Defect

Question 16

When may a motion for judgment on the pleadings be made?

A) Plaintiff's complaint has been filed
B) Process has been served on the defendant
C) After the plaintiff's complaint and the defendant's answer have been filed
D) None of the above

Question 17

Who can make a motion for judgment on the pleadings?

A) Any party to a lawsuit
B) Defendant only
C) Plaintiff only
D) Judge

Question 18

What term describes a court decision designed to avoid an unnecessary trial?

A) Dismissal
B) Summary judgment
C) Default judgment
D) Nonsuit

Question 19

In what situation may a motion for summary judgment be made?

A) All papers filed in a case show there is no genuine issue of material fact
B) The motion making party will win the case as a matter of law
C) All of the above
D) None of the above

Question 20

On what documents is a summary judgment based?

A) Admissions
B) Affidavits
C) Depositions
D) All of the above

Question 21

What term describes the main pleading filed by the defendant in response to the plaintiff's complaint?

A) Reply
B) Answer
C) Counterclaim
D) Cross-claim

Question 22

If the plaintiff's allegation is partly true and partly false, what must the defendant do?

A) Admit part of the allegation
B) Deny part of the allegation
C) All of the above
D) None of the above

Question 23

What will be the outcome of the suit if the defendant fails to file an answer?

A) Default judgment
B) Dismissal with prejudice
C) Dismissal without prejudice
D) Nonsuit

Question 24

When the plaintiff filed a suit after the statutory set time limit for the commencement of this legal action has ended, what affirmative defense may the defendant use?

A) Statute of limitations
B) Statute of frauds
C) Illegality
D) Res judicata

Question 25

What term describes the affirmative defense under the common law?

A) Accord and satisfaction
B) Res judicata
C) Confession and avoidance
D) Estoppel

Question 26

What does the defendant do when he or she uses an affirmative defense?

A) Defendant admits the plaintiff's allegation
B) Defendant introduces something new that constitutes a defense to the plaintiff's allegation
C) Defendant files a counterclaim against the plaintiff
D) Both A and B

Question 27

When is the counterclaim compulsory?

A) Claim arises out of the same transaction as that of the plaintiff's suit
B) Venue is correct
C) Court has jurisdiction
D) All of the above

Question 28

What term describes the defendant's counterclaim not related to the event that caused the original suit?

A) Optional
B) Permissive
C) Not obligatory
D) Discretionary

Question 29

What claim is brought by one defendant against another defendant in the same suit?

A) Cross-claim
B) Counterclaim
C) Cross-complaint
D) Cross-counterclaim

Question 30

In California, a defendant may use a cross-complaint to file a claim against what party?

A) Another defendant
B) Third party
C) Plaintiff in the same action
D) All of the above

Question 31

The demurrer is a defensive pleading used at common law and frequently used in all states.

Question 32

A demurrer emphasizes that no cause of action exists even if the plaintiff's allegations are true.

Question 33

The federal courts have eliminated the demurrer as a formal type of answer.

Question 34

A motion for recusal is a request for dismissal of the case.

Question 35

Motions are made for many different reasons and can be made by either party to a suit.

Question 36

Only the defendant can make a motion to dismiss the case.

Question 37

Clients are required to attend the court motion sessions.

Question 38

If the motion to dismiss is denied, the defendant must file an answer to avoid losing the case by default judgment.

Question 39

A motion for judgment on the pleadings may be made only by the plaintiff.

Question 40

A summary judgment is an immediate decision of the trial judge based on documents filed by parties.

Question 41

The defendant might make the motion for judgment of the pleadings on the ground that the plaintiff's complaint does not state a claim on which relief can be granted.

Question 42

The defendant must file an answer immediately after service of process.

Question 43

A default judgment is entered on failure of a party to appear or plead at the proper time.

Question 44

An affirmative defense may stop the plaintiff from winning the case.

Question 45

If a particular affirmative defense is omitted from the answer, the defendant can use this defense later in the same suit.

Question 46

When the defendant uses an affirmative defense, he or she wins the case as a matter of law.

Question 47

The defendant's counterclaim is filed separately from his or her answer.

Question 48

The plaintiff is required to file a reply to the defendant's counterclaim within a prescribed number of days after receiving the counterclaim.

Question 49

When a suit is brought against two defendants, one of those defendants may bring a claim against another defendant in the same suit.

Question 50

The subject matter of the cross-claim must arise out of the different transaction or occurrence than that of the original suit.

Question 51

A pleading available to the defendant to attack the plaintiff's complaint by raising a point of law is a(n) ________.

Question 52

The termination of an action without adjudicating issues on the merits is called a(n) ________.

Question 53

A written or oral request made to a court for certain action to be taken is a(n) ________.

Question 54

A motion for a more ________ statement is made when a pleading is so vague that the other party cannot properly respond to it.

Question 55

An order disposing of an action without trial of the issues is called ________.

Question 56

If the order is dismissal with ________, the plaintiff is barred from bringing another suit on the same claim.

Question 57

A motion for judgment on the ________ may be made by either party.

Question 58

To avoid an unnecessary trial, a trial judge can make an immediate decision known as a(n) ________ judgment.

Question 59

When a party fails to appear or plead at the proper time, a(n) ________ judgment is entered.

Question 60

If the defendant fails to deny a(n) ________ made in the plaintiff's complaint, it is automatically admitted.

Question 61

When a(n) ________ defense is used in federal courts, it must be stated in the defendant's answer.

Question 62

A counterclaim is a claim that the defendant has against the ________.

Question 63

The legal name of the answer to the counterclaim is the ________.

Question 64

The State of California uses a pleading known as a(n) ________ in place of a counterclaim and a cross-claim.

Question 65

A claim brought by one defendant against another defendant in the same suit is called a ________.

Question 66

Match the terms with their descriptions:

-Insufficiency of summons

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 67

Match the terms with their descriptions:

-Dismissal

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 68

Match the terms with their descriptions:

-Permissive counterclaim

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 69

Match the terms with their descriptions:

-Ground for using a demurrer

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 70

Match the terms with their descriptions:

-Reply

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 71

Match the terms with their descriptions:

-Filing of an answer

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 72

Match the terms with their descriptions:

-Make a motion

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 73

Match the terms with their descriptions:

-Motion for summary judgment

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 74

Match the terms with their descriptions:

-Compulsory counterclaim

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 75

Match the terms with their descriptions:

-Unfairness of the judge

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 76

Match the terms with their descriptions:

-Duress

A) Another action is pending between the same parties for the same cause
B) Defendant's counterclaim not related to the event that caused the original lawsuit
C) Affirmative defense
D) Order disposing of an action without trial of the issues
E) Motion made when all papers filed in a case show the absence of a genuine issue of fact and that the motion making party will win the case as a matter of law
F) Reason to make a motion for recusal
G) Answer to the counterclaim
H) Defendant's counterclaim that arises out of the same occurrence caused the original lawsuit, the venue is right, and the court has jurisdiction
I) Reason to make a motion to dismiss
J) To ask a court to take certain action
K) Action of the defendant to avoid the default judgment

Question 77

Define the demurrer and discuss how the defendant can use it.

Question 78

Define the motion to dismiss. Discuss the reasons for the use of this motion and possible outcomes when the motion is granted.

Question 79

Define a motion for judgment on the pleadings and a motion for summary judgment. Compare and contrast these motions.

Question 80

Define an affirmative defense. Give several examples of affirmative defenses and discuss how they can help the defendant to win the suit.