Business Law Midterm

Mass Court System : Supreme judicial appeals court

Hear new and novel cases, because everyone is looking to them to solve new types of appeals

Jurish Prudence

guides to human conduct established and enforced by officials

Crime

violation of duty; act against society

Tort

a wrongful act or an infringement of a right (other than under contract) leading to civil legal liability

Trial Court

Hears evidence and decides who to believe and enforce a rule of law

Appeals Court

Hears why the rule of law applied by trial court was not correct/ just

Jurisdiction

Power/Authority Types: subject, territorial, personal

Rule #1

Bring the lawsuit where you find the defendant

Rule #2

When an event takes place in one place and the trial is somewhere else than the state where the trial is taking place will look at their conflicts of law (Hear the case in the place where the defendant is and look to that place's conflict of law

What stat's law is applied in state federal court?

Federal courts will always apply the substantive law in the state where the federal court is located

First Step in a Trial Court

Complaint and SummonsPlaintiff files a complaint where they state their version of what happened. They make factual (but unproven) assertions. And there should be a rule of law to give relief to the caseDefendant has to respond the complaint and their options include a general denial (denying the facts), a motion to dismiss if a rule of law does not exist, or they can file a counterclaim

Second Step in a Trial Court

Discovery: interrogatories- questions and answers written between partiesdepositions- out of court testimony made by a neutral witnesssupinating documents all these things can be seen by the other party

Stare Decisis

to follow decisions and not unsettle that which is already settled"Using the rulings made in other cases to make a decision about a similar case

Dicta

writing made by the judge that go beyond the case a gives an opinion. It is not binding on subsequent cases

Hearsay

an out of court statement by a person who is not now testifying which is being offered for the truth of the content of that statement "person doing the damage must be present in court

Arbitration

private adjudication, no appeal, third party's decision is fairly final

Exceptions to the hearsay rule

When the person doing the damage is in court, under oath, and subject to cross-examination "I saw A stab B" A record made in the "ordinary course of business," or the lack of a record where one normally would have been made in the ordinary course of business, is generally admissible even if it's hearsay. When a person offers an out of court statement and then passes away (Dying Declaration) then it's an exception

Name types of Privilege

Attorney Client Privilege/Doctor Patient Privilege: attorneys/doctors can't testify against the client's confidential informationConfidential Communication Privilege: Spouse can prohibit the other from testifying Priest-Penitent Privilege: Confidential communication between a religious figure and the confessor

Maranda v. Arizona

Prior to any questioning, the person must be warned that they have the right to remain silent, that anything they do say can be used against them. They have the right to have an attorney whether retained or appointed. The defendant may waive these rights provided they make this decision voluntarily, knowingly, and intelligently

Elements of a Valid Search Warrant

-Officer applying for the warrant must appear personally in front of court- Must submit an affidavit (sworn statement in writing) which sets forth the facts/information and circumstances upon which they rely for the probable cause to establish the grounds for the issue of the warrant -Must be stated that property has been/is intended for use of committing a crime or is unlawfully possessed or concealed for an unlawful purpose-The application must state with particularity the goods being searched for and the goods to be searched

Plain View Doctrine

if something is in clear view then no search warrant is needed

Types of Speeches and how much they are protected

Speech involving political, social, religious ideas are most protected. People can choose to listen or not, but a person can still say itSpeech plus action: less protected, have to get permission to do things Economic Speech: must raise money to increase investing. High restricted. Have to be able to prove your information

Defimation

Slander (spoken)Libel (can get physical forms of what was said)--published/ embodied in a physical form

Right to Privacy

No person shall use the name, likeness, or photo of another person for purposes of trade without having their written consent and to do so would be considered a misdemeanor = right to publicity

Public figures and right to privacy

Give up their right to privacy. Anyone can write about you except for rights of trade

Trademark

shows the origin of the product

Degrees of Protection of Trademark

Coin-- Most distinctive; strongest protection; created nameArbitrary Use-- protectedSuggestive--i.e Coppertone; creativity; protectedDescriptive-- not generally protected; i.e Sports Illustrated (before it got a secondary meaning) Generic-- not protected; i.e soap, wineLasts as long as you use it

Copyrights

Protects a manner of expression--books, movie, artFair use: can use things said by someone else if they are given credit Doesn't protect idea, only protects manner of expression Lasts for the life of the author + 70 yearsPublisher-- 95 years

Patients

Things that are new, useful, and not obvious Have to give access to your ideas, but others can't use your ideaHowever, competitors can get ideas from your ideas and get their own patientsOnly lasts 20 years Want to get protection without giving access to your idea--- trade secret... nondisclosure contract

State District Court/State Municipal Court

under $25,000

US Federal Court

Diversirty of Citizenship and over $75,000 in damages

State Conflicts of Law usually states...

Apply the substantive law where the contract was made or apply the law where the tort occurred

Adversary System

Parties have to put their case based on evidence