Social responsibility of business
The responsibility of firms doing business within a community to meet the expectations that the community imposes on them (p. 18).
Counter claim
A claim made by the defendant against the plaintiff along with the defendant's answer (p. 54).
Deposition
A pretrial sworn and recorded testimony of a witness that is acquired out of ct with no judge present (p. 56).
Interrogatories
A formal set of written questions that one part to a lawsuit asks the opposing party during the pretrial discovery process to clarify matters of evidence and help determine what facts will be presented at a trial in the case. The questions must be answered in writing under oath or under penalty of perjury within a specified time. Also called request for further information (p. 56).
Common law
The collection of legal interpretations made by judges. They are considered to be la unless otherwise revoked by a statutory law. Also known as case law (p. 6).
How ct handles advisory opinions
The case or controversy requirement ensures that cts do not render advisory opinions. Cts can give final judgments that solve existing problems; they cannot provide ruling about hypothetical situations (p. 52).
Stare decisis
Latin for "standing by the decision"; a principle stating that ruling made in higher cts are binding precedent for lower cts (p. 6).
Precedent
A tool used by judges to make rulings on cases on the basis of key similarities to previous cases (p. 6).
A reply when pleading
A response by the plaintiff to the defendant's counterclaim (p. 54).
Subject matter jurisdiction
The power of the ct over the type of case presented to it (p. 44).
Venue
The ct with subject matter and personal jurisdiction that is the most appropriate geographic location for the resolution of a dispute (p. 47).
Long arm statue
A statute that enables a ct to obtain jurisdiction against an out-of-state defendant as long as the defendant has sufficient minimum contacts within the state, such as committing a tort or doing business in the state (p. 43).
Uniform law
A law created to account for the variability of laws among other states; serves to standardize the otherwise different interstate laws. Also called model law (p. 6).
Distinguish between public and private law
Private law: law that involves suits between private individuals or groups.
Public law: law that involves suits between private individuals or groups and their governments (p. 2).
US Supreme Ct
The US Supreme Ct is the final appellate ct in the federal system. Nine justices, who have lifetime appointments, make up the high ct. The US Supreme Ct hears appeals of cases from the ct of last resort in a state system. The Ct will not, however, hear cases considering questions of pure state law. The Ct also functions as a trial ct in rare occasions (p. 49).
Burden of proof in criminal and civil cases
In a criminal case, the prosecutor has the burden of proof; which has two parts. First, the "burden of production of evidence" means the prosecution must produce any tangible evidence and testimony that prove the elements of the crime the defendant allegedly committed. Second, the "burden of persuasion" means the prosecutor must persuade the jury beyond any reasonable doubt that the defendant committed the crime.
In a civil case, the plaintiff has the burden of proof. The burden of persuasion requires only that the claim be supported by a preponderance of the evidence (more likely to be true than not).
The defendant does not have to prove anything (p. 173).
Pleading stage of lawsuit
The first formal stage of a lawsuit is the pleading stage. The plaintiff's attorney initiates a lawsuit by filing a complaint to the appropriate ct. The complaint states the names of the parties of the action, the basis for the ct's subject matter jurisdiction, the facts on which the plaintiff bases his claim, and the relief the plaintiff seeks. The pleadings prevent surprises at trial; they allow attorneys to prepare arguments to counter the other side's claims (p. 53).
Discovery tools
Interrogatories" are written questions that one party sends to the other to answer under oath. Frequently, a request to admit certain facts accompanies interrogatories, Attorneys work with their clients to answer interrogatories and requested admissions of facts.
A "request to produce documents" forces the opposing party to produce certain information unless it is privileged or irrelevant to the case. Parties may request documents such as photographs, contracts, written estimates, medical records, tax forms, and other government documents. In tort cases, the defendant frequently asks the plaintiff to submit a mental or physical examination report.
The parties may obtain testimony from a witness before trial through a "deposition". At a deposition, attorney examine a witness under oath. A ct reporter (stenographer) records every word the witnesses and attorneys speak. Both parties receive a copy of the testimony in document form. Depositions provide information and may also set up inconsistencies between a witness's testimony at the deposition and his testimony at trial. If a party discovers an inconsistency in the testimony of one of the other party's witnesses, she can bring the inconsistency to the fact finder's attention to diminish the witness's credibility. The parties may also use depositions when a witness is elderly, moving or ill such that he may be unavailable at the time of the trial (p. 56).
What different cts are called in state and federal systems
Federal:
1) US Supreme Ct
2) US circuit cts of appeal
3) US district cts
State:
1) State supreme ct
2) Ct of appeals or superior cts
3) State trial cts
->called different names in each state
->often referred to as cts of common pleas or county cts
(p. 48-51)
Criminal law
A classification of law involving the rights and responsibilities an individual has with respect to the public as a whole (p. 2).
Qualifications of being an arbitrator
The general qualifications for being an arbitrator are honesty, impartiality and subject matter competence. Additionally, arbitrators are expected to follow the Arbitrator's Code of Ethics (p. 73).
Concurrent jurisdiction
Concurrent federal jurisdiction means that both state and federal cts have jurisdiction over a case. Concurrent jurisdiction covers two types of cases: federal question and diversity of citizenship cases.
Federal question cases require an interpretation of the US Constitution, a federal statute, or a federal treaty.
A diversity of citizenship case must satisfy two conditions: the plaintiff does not reside in the same state as the defendant and the controversy concerns an amount in excess of $75,000 (p. 45).
Legal definition of standing
The legal right of a party to bring a lawsuit by demonstrating to the ct sufficient connection to and harm from the law or action challenged (i.e. the plaintiff must demonstrate that he or she is harmed or will be harmed). Otherwise, the ct will dismiss the case, ruling that the plaintiff "lacks standing" to bring the suit (p. 51).
Different motions that can be made
Motion for judgment on the pleadings: in a civil case, a request made by either party, after pleadings have been entered, that asks a judge or ct, to issue a judgment.
Motion for summary judgment: in a civil case, a request made by either party that asks a judge or ct to promptly and expeditiously dispose of the case without a trial. Any evidence or information that would be admissible at trial may be considered on a motion for summary judgment. The ct may hold oral arguments or decide the motion on the basis of the parties' briefs and supporting documentation alone.
Motion to dismiss: in a civil case, a request by the defendant that asks the judge or ct to dismiss the case because even if all the allegations are true, the plaintiff is not entitled to any legal relief. Also called demurrer (p. 53, 56).
Statutory law
The assortment of rules and regulations put forth by legislatures (p. 5).
Who is plaintiff and defendant in criminal and civil cases
Criminal:
-> plaintiff - state
-> defendant - accused
Civil:
-> plaintiff - victim of a tort or a non-breaching party (K)
-> defendant - tortfeaser or breaching party (K)
Different types of alternative dispute resolution (ADR)
Negotiation: a bargaining process in which disputing parties interact informally to attempt to resolve their dispute.
Mediation: disputing parties select a neutral party to help facilitate communication and suggest ways for the parties to solve their dispute.
Arbitration: disputes are submitted for resolution to private non-official persons selected in a manner provided by law or the agreement of the parties.
Summary jury trial: an abbreviated trial that leads to a non-binding jury verdict.
Minitrial: lawyers for each side present their arguments to a neutral advisor, who then offers an opinion on what the verdict will be if the case goes to trial. This decision is not binding.
Early neutral case evaluation: the parties select a neutral third party and explains their respective positions to this neutral, who then evaluates the strengths and weaknesses of the case. The parties use this evaluation to reach a settlement.
Private trials: a referee is selected and paid by the disputing parties to offer a legally binding judgment in a dispute (p. 69-85).
Primary way a case is appealed to the US Supreme Ct
To file an appeal to the US Supreme Ct, a party files a petition asking the Ct to issue a writ of certiorari. A writ of certiorari is a Supreme Ct order, issued after the Ct decides to hear an appeal, mandating that the lower ct send to the Supreme Ct the record of the appealed case (p. 62).
Different between civil and criminal law
Civil law:
- regulates the rights and responsibilities implied in relationship between people and between people and their government
- civil cases involve either two individuals or two organizations
- defendant must be found guilty by a preponderance of evidence
- guilty defendant of a civil case is never incarcerated; typically if defendant is found guilty, the victim receives some sort of compensation
Criminal law:
- regulates incidents in which an individual or organization commits an act against the public
- criminal cases usually involve the person who is suspected of committing a crime and the public, such as a state or federal government
- defendant must be found guilty beyond all reasonable doubt
- guilty defendant of criminal cases could be incarcerated or be required to pay a fine
(p. 4)
Constitutions
The US Constitution and the constitution of each state establish the fundamental principles and rules by which the US and the individual states are governed (p. 5).
Business law
The enforceable rules of conduct that govern the actions of buyers and sellers in market exchanges (p. 2).
What happens if a defendant does not answer the complaint in the time allotted
If the defendant does not respond to the lawsuit within a certain period of time, the plaintiff will receive a default judgment. A default judgment is a judgment in favor of the plaintiff that occurs when the defendant fails to answer the complaint and the plaintiff's complaint alleges facts that would support such a judgment.
Motion to dismiss
Upon receiving the complaint, if the defendant believes that even though all the plaintiff's factual allegations are true, the law does not entitle the plaintiff to a favorable judgment, the defendant may file a motion to dismiss or demurrer. In deciding whether to grant a motion to dismiss, a judge accepts the facts as stated by the plaintiff and rules on the legal issues in the case. Judges generally grant a motion to dismiss only when it appears beyond a doubt that the plaintiff cannot prove any set of facts to justify granting the judgment she seeks (p. 53).
Advantages of mediation
1) Allows parties to preserve their relationship throughout the dispute
-> each party typically leaves with a better understanding of the opposing party
2) Potential for creative solutions
-> neutral party must find a solution so that both parties can benefit from the resolution of the dispute
3) High level of autonomy
-> allows parties to take control of the process and resole the dispute together
-> parties usually have more dedication to the agreement because they helped make the decision
4) Less costly, less time consuming, and less complicated than litigation
Personal jurisdiction
The power of a ct to require that a party (usually the defendant) or a witness come before the ct; extends to the state's borders in the state ct system and across the ct's geographic district in the federal system. Also called "in personam" jurisdiction (p. 42).
Internet transactions
The likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.
At one end of the spectrum are situations in which a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper.
The middle ground is occupied by interactive Web sites at which a user can exchange information with the host computer. In the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.
At the opposite end are situations in which a defendant has simply posted information on an Internet Web site that is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise of personal jurisdiction.
Model laws
While they are not a source of law in the same sense as constitutions and statutory law, model or uniform laws serve as a basis for some statutory law at the state level. Business activity is made more difficult when laws vary from state to state. Thus, states are urged to enact model laws to prove greater uniformity (p. 6).
What do trial cts hear cases about
Trial courts or courts of original jurisdiction have the power to hear and decide cases when they first enter the legal system. They can decide questions of law and fact
(p. 41).
Appellate cts
A higher ct, usually consisting of more than one judge, that reviews the decision and results of a lower ct (either a trial ct or a lower-level appellate ct) when a losing party files for an appeal. Appellate cts do not hold trials but may request additional oral and written arguments from each part; they issue written decisions, which collectively constitute case law or the common law. Also called "court of appellate jurisdiction" (p. 41).