In complex litigation involving the laws of several states, the state whose law will be used is determined by reference to:
Conflict of laws
Comments contained in judicial opinions that are not necessary to the decision of the case are called:
Obiter Dicta
The city of Tallahassee enacted a law limiting to 4 the number of unrelated individuals who can live together in a house or apartment. This city law has the status of a(n) _____.
Ordinance
The federal government and state governments have separate and distinct powers. This arrangement constitutes a(n) _____ separation of powers.
Vertical
The function of the grand jury is to:
Determine if there is sufficient evidence to bring someone accused of a crime to trial
Diversity of citizenship gives the defendant the right to:
Have a suit filed in state court removed to federal court
In deciding a case brought in equity, a court would draw upon which of the following sources of law?
Equitable maxims
Whether a suit is filed "at law" or "in equity" depends on which of the following?
The remedy the plaintiff is seeking
The website of the Florida Courts is which of the following:
http://www.flcourts.org
The requirement that someone have a personal stake or interest in the outcome of a case in order to be a plaintiff is called _____ to sue.
Standing
In the appeals process, the document submitted by each side arguing the points of law that support its claim that the verdict should (or should not) be overturned is a(n) _____.
Brief
Ben is suing Chad in a tort action for property damages and personal injuries he sustained when Chad negligently ran a red light and crashed into him in a busy intersection. Ben must convince the jury that the light was red and that his injuries were caus
By a preponderance of the evidence
Kay files a suit against Jack. The document that sets out the ground for the court's jurisdiction, the basis of Kay's case, and the relief that Kay seeks is:
The complaint
Linda files a suit against Kate. Kate denies Linda's charges and sets forth her own claim that Linda breached their contract and owes Kate money for the breach. This is:
A counterclaim
Ron files a suit against Delta, Inc., over a contract between them. Before the trial begins, Ron can obtain from Delta:
access to related documents in Delta's possession
Pat loses a lawsuit against Chuck. After the trial, Pat files a motion stating that even if the evidence is viewed in the light most favorable to Chuck, a reasonable jury should not have found in Chuck's favor. This is a motion for:
judgment j.n.o.v.
A Florida state trial court has before it Eagle Manufacturing Co. v. Fine Products Corp., a case with no binding authority. The Court can:
not refuse to decide the Eagle case;
If the caption of a case appears as "Quality Sales Corp. v. Regional Distribution Co.," the part in whose favor the Court decided is:
either party
A state supreme court decides the case of Standard Co. v. United, Inc. Of nine justices, five believe that the judgment should be in Standard's favor. Justice Terry, one of the five, writes a separate opinion. This opinion is:
a concurring opinion;
Kidtoys, Inc., sells a toy truck with a dangerous defect. Phil buys the truck for his son but discovers the defect before the child is injured. Phil files a suit against Kidtoys. Kidtoys could ask for dismissal of the suit on the basis that Phil does not
standing;
Sam files suit against Laura. The document that informs Laura that she is required to respond is:
the summons.
Sam files a complaint in a suit against Tina, and she files an answer. At this point, this case may be:
dismissed or settled before the parties enter a coutroom
What are the 3 types of law?
Legislative laws, judicial pronouncements, procedural law
legislative laws
laws that have been passed by legislative bodies
What are judicial pronouncements?
legal statements made by courts based on statutory interpretation or common law
what is procedural law?
rules of evidence and rules concerning legal/court procedure
what are the 3 classifications of law?
substantive law, procedural law, public law v. private law
what is substantive law?
law used to decide disputes
what is the hierarchy of laws?
us constitution, federal law, state constitutions, state laws
what is the Doctrine of Separation of Powers
Legislative, executive, and judicial branches of government function independently of one another and each branch serves as a check on the other
statute
a law passed by u.s. congress or state legislature
what is an ordinance?
a law passed by a city, county, or other local government entity
what is a code?
a collection of statutes passed by a legislative body on a particular subject
Stare Decisis
Doctrine that law should adhere to decided cases and "stand by the decision
Res Judicata
The matter is closed at the conclusion of the lawsuit between the parties themselves - they cannot ask the same or another court to decide the issue again
natural law
that there is a higher law or a group of universal rules that should bind all human behavior
what is positive law?
law is a command of government
what is Legal Realism?
The law is the impact of decisions of those who are charged with administering the law
law comes from what 4 sources?
constitution, legislation, judicial decisions, rules, regulations, and decisions of administrative agencies
what is common law?
law derived from past judicial decisions
what is civil law?
codified laws (statutes) as the main source of law
Marbury v. Madison (1803)
The power of courts to declare laws and executive actions unconstitutional
what are conflicts of law?
A body of legal principles used to determine the appropriate law to apply to a litigated case when more than one state is involved
what law are torts based on?
the law of the state of injury?
what 4 possible laws are contracts based on?
law of the state where the contract was made, law of the place of performance, the law of the state most involved with the contract, law of the state specified in the contract
what are rules regarding trial judges?
Oversees the litigation process. Must avoid appearance of impropriety. Should recuse themselves in any controversy in which they or near relatives have an interest. Must not be swayed by public opinion or personal popularity or be apprehensive of unjust criticism
what are the 3 levels of state court systems?
trial courts, appellate courts, and supreme courts
what jurisdiction does small claims court have?
controversies less than $5000
Jurisdiction of county courts
$15000 or less, traffic offense cases, misdemeanors
what are the four sets of Florida's courts
supreme court, district courts of appeal, circuit courts, county courts
what is the federal court structure?
u.s. supreme court, congress, 12 circuit courts of appeal, and special courts of appeal
in cases involving U.s. Constitution, treaties, and federal statutes, what law is used?
substantive law
When is a writ of certiorari issued?
When the supreme court decides to hear a case
decisions of equity court are called?
decrees
Equity courts apply to what laws?
rescission of contracts, injunctions and specific performance on contracts
What are the 3 rules to sue?
Plaintiff must have been or will be directly and personally injured by the Defendant's action;
There must be some threatened or actual injury resulting from the Defendant's action;
Generalized Grievances - harm alone does not typically grant standing to sue!
what are the four requirements for class action suits?
numerosity, typicality, commonality, and adequacy
what is subject matter jurisdiction?
the ability of a court to resolve a controversy between parties
subject matter jurisdiction would not exist for a claim to be heard in small claims court if what?
if the amount in controversy is 6000 and the limit for small claims court is 5000
What are the four pleadings?
complaint, answer, counterclaim, reply
What are the different types of discovery?
interrogatories, requests for production of documents, requests for admissions, depositions
what are the five pretrial stages of a lawsuit
pleadings, motions attacking pleadings, discovery, pretrial conference, pretrial motions
what is a complaint?
First pleading / statement of the facts on which the Plaintiff rests his or her case and files a lawsuit in court.
an answer
Pleading filed by the Defendant responding to the Plaintiff's Complaint - typically must be filed within 30 days after service on the Defendant. Can also contain affirmative defenses. Certain affirmative defenses MUST BE raised in either the Answer or a Motion (defense of lack of personal jurisdiction and statute of limitations are examples) or otherwise are waived
counterclaim
May be filed by the Defendant if there is a cause of action against Plaintiff. Plaintiff must then file a reply
what is Default Judgment?
If the Defendant fails to answer or otherwise appear, the Plaintiff can file for a Motion for Default Judgment, which, in essence, admits all the facts and allegations of Plaintiff's Complaint.
what is a motion to dismiss?
Filed by Defendant on basis that Plaintiff's Complaint does not allege facts sufficient to set forth a cause of action.
when are motions to dismiss typically filed?
on the basis that the Complaint/Petition does not state a claim upon which relief can be granted, but also can be filed on the basis that the Court lacks jurisdiction or the statute of limitations has expired.
interrogatories
Written questions directed only to a PARTY which are answered under oath
what are requests for production of documents?
Request for documents directed only to a PARTY.
what are requests for admission?
Requests for admissions or denials of facts under oath, can be served only to a PARTY
what is a deposition?
Oral questioning under oath. PARTIES and NONPARTIES may be deposed.
what is the pretrial conference?
Often set by Court before trial in order to discuss the possibility of settlement and also to discuss trial procedure
what is the motion for judgment on the pleadings?
Court examines PLEADINGS only to determine if a genuine issue of material fact remains. If not, the Court can enter judgment to a party as a matter of law.
what is the motion for summary judgment?
Summary judgment is granted if a genuine issue of material fact does not remain and the moving party is entitled to judgment as a matter of law. Evidence outside the pleadings CAN and OFTEN is presented at a hearing (i.e., Affidavits, Exhibits, etc.).
what is the difference between motion for judgment on the pleadings and motion for summary judgment?
motion for judgment on the pleadings is when all the parties agree on the facts, and the only question remaining is how the law applies to those facts. In the motion for summary judgment, there may still be some facts in dispute
what is beyond a reasonable doubt?
The prosecution in a criminal case has the burden of convincing the trier of fact that the Defendant is guilty of the crime charged and that the jury has no reasonable doubt about guilt.
Preponderance of the Evidence
A party must convince a jury by the preponderance of the evidence (the greater weight of the evidence) that the facts are as contended.
Clear and Convincing Proof
Situation where the law requires proof more than the preponderance of the evidence but less than proof beyond a reasonable doubt.
what are peremptory challenges?
objection by a party to a lawsuit rejecting a prosptive juror for which no reason need be given for the objection. these challenges CANNOT be used to exclude a potential juror on the basis of race or gender
what are the steps in the jury selection process?
summoning of potential jurors, questioning prospective jurors to determine their qualifications and biases, any peremptory challenges
main proceedings of trial
opening statements, plaintiff's presentation of evidence, motion for directed verdict, closing statements
what is a motion for directed verdict?
After Plaintiff rests his/her case. A directed verdict is a decision of the judge that the jury must decide, as a matter of law, in favor of one party and against the other.
when may the court direct a verdict for the defendant?
ONLY if the evidence, taken in the light most favorable to the Plaintiff, establishes as a matter of law that the Defendant is entitled to a verdict.
what happens if the motion for directed verdict is denied?
the Defendant presents his/her case.
verdict
Decision of a jury, reported to the court, on matters properly submitted to the jury for consideration
what happens after the verdict is announced?
a judgment is entered by the judge
How can you get a motion for a new trial?
A motion for new trial or for rehearing shall be served not later than 10 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action
What is a motion for JNOV?
Requesting Court to find that the verdict is, as a matter of law, erroneous. (Example: Verdict for the plaintiff based upon sympathy).
How long does appelant have to file a notice of appeal?
within 30 days of judgment or Motion for New Trial
What is a supersedeas bond?
guarantees payment of costs that may be charged against him/her on the appeal.
How long does the appelant have to file a supersedeas bond?
within 10 days after notice of appeal
what are the steps to file an appeal?
appelant must file a notice of appeal, a supersedeas bond, the transcript, a bill of exceptions, and prepare a brief
What does a brief contain?
a statement of the case, assignment of errors, and legal authorities/argument for the court
Appelate courts can do what 3 things?
affirm the court below, reverse the court below, or remand the case to the court below for a new trial
What is mediation?
the process involving a third party's efforts to help disputing parties reach a settlement
When do many laws and courts require mediation?
either prior to filing suit or prior to setting a trial
What is arbitration?
the procedure used, as an alternative to litigation, to submit a dispute to one or more third parties who have authority to impose a resolution to the dispute
What are some advantages to arbitration?
quicker and less expensive, less hostile, less formal than a trial, decreases caseload for the system
What are some grounds for arbitration?
fraud, mutual mistake, or lack of capacity
How long after the dispute arises must arbitration be submitted?
six months
submission
The act of the disputing parties to refer an issue to the arbitration process.
What is the award?
the decision of the arbitrator
When the submission does not restrict arbitrators to decide according to principles of law, what may they do?
they may make an award according to their own notion of justice without regard to the law
What is sufficient to vacate an arbitration award?
Only clear, precise evidence of fraud, misconduct, or other grave irregularity
Do arbitrator's awards set precedents for subsequent litigated disputes?
NO!
What are the procedures in arbitration hearings?
Parties are given notice of time and place of hearing, testimony and evidence is given, arbitrator makes decision, arbitrators are the sole and final judges and are obligated to act fairly
In regards to arbitration, judicial action is necessary when:
Party refuses to submit the dispute to arbitration
Party refuses to comply with the arbitrator's award
What are advantages of stare decisis?
Certainty in the law; Equality in the law; Makes judicial decision making easier.
What are courts of general jurisdiction?
Have the power to hear almost any type of case. Example: Circuit Civil Trial Courts
What are courts of limited jurisdiction?
Courts that are allowed to hear only certain types of cases.
What are examples of courts of limited jurisdiction?
Small claims courts have jurisdiction over controversies involving less than $5,000; County Courts have jurisdiction over controversies involving $15,000 or less, and also hear traffic cases, misdemeanor criminal offenses, etc.