Chapter 3 Business Law

True; concurrent!!

True or false? Suit can be "removed" transferred from state court by defendant to federal court in any concurrent jurisdiction situation

after the verdict

facts have already been decided at the trial court level by a jury (or possibly a judge in a bench-trial) and a dispute about the facts is not subject to appeal.

Opening Statements

factual outline of case so jury will understand witness' testimony

- U.S. bankruptcy court -U.S. tax court -usually have exclusive federal jurisdiction for particular subject matter

examples of special courts

verdict

formal decision by jury or fact finder

Post Trial: Supreme Court

- after the court of appeals decision is issued, the losing party then has a time period to "appeal" the court of appeals decision to the proper Supreme Court - Again, to appeal, that losing party must file documents with the Supreme Court and briefs supporting their arguments. The Supreme Court (unlike court of appeals) can chose not to hear an appeal. if they refuse to hear the appeal, the court of appeals decision is final and stands. -then a hearing is scheduled, and the attorneys argue their positions. there is not jury, the court judges (9) listen and ask questions during the hearing -based on the hearing and the filed documents, much later, the court will issue "an opinion" with their decision. these opinions become party of "common law." - if the Supreme Court disagrees with the Court of Appeals - they will "reverse" the Court of Appeal's decision. if they agree - they will "affirm." Sometimes they "remand" which means the facts have to be tried again in the trial court (not the court of Appeals)

arbitration

- binding decision by independent arbitrator -can be just as expensive as litigation - can be as complicated as litigation Court annexed - nonbingin, attorneys present, small amount at stake

Post Trial: Court of Appeals

- the party that lost the trial level has a time period to "appeal" the trial court's decision - to appeal, that losing party must file documents with the Court of Appeals and briefs supporting their arguments, Remember ONLY questions of LAW can be appealed - then a hearing is scheduled, and the attorneys argue their positions. There is no jury. The court judges (3) listen and ask questions during the hearing - based on the hearing and the filed documents, much later, the court will issue "an opinion" with their decision. these opinions became part of "common law" - if the court of appeals disagrees with the trial court - they will "reverse" the trial courts' decision. if they agree - they will "affirm." Sometimes they "remand" which means the facts have to be tried again in the trial court

Alternative Dispute Resolution

- usually cheaper and faster alternative to trial - may have other reasons, such as sole source supplier that you do not want to alienate

.supreme court of state

-also an appellate court - reviews decisions of appellate courts, are the final word on matters of state law Note: Texas has 2 supreme courts - Texas Court of Criminal Appeals for criminal matters and Texas supreme court for civil matters

supreme court of state

-also an appellate court, but reviews decisions of appellate courts, are the final word on matters of state law; Note- Texas has two supreme courts- Texas Court of Criminal Appeals for criminal matters and Texas Supreme Court for Civil Matters

court of appeals

-consists of 12 judicial circuits across country -hear appeals from Federal District Courts -usually 3 judges hear case

appellate courts (state)

-review decisions of trial courts -for errors in applying law (NOT determining facts)

Appellate courts or "court of appeals"

-review decisions of trial courts -for errors in applying law (NOT in determining facts)

District Courts

-trial level courts -every state has at least one

1. Federal Question - the dispute arises under the US constitution or other federal law that do NOT require exclusive federal jurisdiction ex: first amendment violations - freedom of speech, violations of civil rights act of 1964, no minimum amount 2. Diversity of Citizenship + amount in controversy over $75,000 - normally occurs when plantiff and defendant are citizens of different states or countries - individuals: where they reside -Entities: usually where filed their certificate of formation, AND for a corporation -principal place of business, for LLC's and LP's - where members/partners are residents -diversity must be complete- no party on one side of the vs. can be resident of the same state as a part on the other side of the vs. 75,000 in controversy requirement: -in a complaint, the plaintiff asks for relief - so that relief must total over $75,000 - what happens if actual damages awarded end up being less than $75,000? - requirement is a good faith estimate of amount at time the plaintiff files the complaint - must be clear to a "legal certainty" that the claim won't reach $75,000

2 types of concurrent jurisdiction:

1. plaintiff files a petition or complaint, sets out who are the parties and why he is suing; also contains info showing why the court has jurisdiction THEN 2. Defendant either: - files an Answer; generally denying liability - lawsuit continues OR - does not file an answer and the plaintiff can get a default judgement against the defendant - once served lawsuit papers, defendant must timely answer or he will lose without ever having his day in court 3. if the defendant files a counterclaim with his answer - (a suit against the plaintiff) - then the Plaintiff files a "Reply" (similar to an Answer)

3 steps of pleadings

1. In personam jurisdiction 2.In rem jurisdiction 3. Quasi rem jurisdiction or attachment jurisdiction

3 types of jurisdiction over the parties:

1. exclusive federal jurisdiction 2. concurrent jurisdiction 3. exclusive state jurisdiction

3 types of subject matter jurisdiction

court of appeals

A court with appellate jurisdiction that hears appeals from the decisions of lower courts; congress has established 11 numbered circuits plus the D.C. circuit. Each circuit has a ______________; this court also reviews decisions of administrative agencies, the Tax Court, and the Bankruptcy court

inferior trial courts

JP courts, small claims courts, municipal court; tend to be more informal. No record of proceedings so if lose, can 'appeal' by starting over in county or district court - will retry facts

stare decisis

Let the decision stand; decisions are based on precedents from previous cases

1. district courts 2. court of appeals 3. supreme court 4. special courts

List the federal courts:

-use state procedural law because are in state court -use federal substantive law

Now you have determine whether Federal or State court can hear the matter, how does this work? We are in STATE COURT hearing a suit related to breach of a federal statue, so _________________

- use federal procedural law because are in federal court -use state substantive law

Now you have determined whether Federal or State court can hear the matter, how does this work? We are in FEDERAL COURT hearing a state law case, so ______________________

exclusive federal jurisdiction

ONLY a federal court can decide controversies related to the below list: - federal crimes -admiralty -bankruptcy -antitrust -patent, trademark (if registered), and copyright cases -lawsuits vs. US -lawsuits based on some federal laws that specify ONLY federal court jurisdiction

BOTH at the trial court and appeals court level

Questions of Law are determined ____________

ONLY at trial court level

Questions of fact are determined __________________

1. judgement on the pleadings 2. discovery 3. pretrial conference 4. summary judgement

Pretrial procedure

True; we are generally concerned with how to get jurisdiction over the defendant

True or false? Plaintiff is automatically under jurisdiction of court when she files petition.

-Voir Dire -opening statements -direct examination -cross-examination -closing arguments -directed verdict -jury instructions -verdict -motions challenging verdict

Trial

3; all judges of the circuit

US court of appeals usually hear cases in panels of ______ judges, although sometimes the will hear cases "en banc" with _______________

Questions of Law

Was the driver's conduct "negligence per se"? Does XYZ Company have strict liability related to its manufacture of the widgets? What evidence is admissible?

Questions of Fact

Who was driving the car? Did XYZ Company deliver 1,000 widgets? Who decides: jury or judge if: jury waiver or both parties agree

Judge, Schedule, procedure, etc.

Why would you choose federal court over state court?

-entity is formed -or where it has registered to do business as a foreign entity

a registered agent must be in the state where the: - -

Exclusive State Jurisdiction

all other matters: examples - diversity of citizenship but amount in controversy under $75,000 -car wrecks (that don't involve federal law) - torts -Contract disputes (that dont involve federal law) - State crimes

closing arguments

attorneys summarize strong points of their case and point out weaknesses in opposing case

concurrent jurisdiction

authority for both state and federal courts to hear and decide cases

Special Courts

courts in the federal judicial system include the U.S. Court of Federal claims, the U.S. Bankruptcy Courts, the U.S. Tax Court, and the U.S. Court of Appeals for the federal circuit; each of these courts has jurisdiction over a particular subject matter

it does in certain types of cases

does the supreme court have original jurisdiction?

independent court system

each state and the district of columbia has its own _______________________

trial courts (state)

each state has trial courts of general jurisdition, which may be called county, district, superior, circuit, or common pleas courts. thesecourts do not have a dollar limitation on their jurisdiction in civil cases and hear all criminal cases except minor offenses. these courts maintain formal records of their proceedings. many states also have special trial courts such as probate courts or family courts. Appeal is to the general state appellate courts

Voir Dire

examination of jurors; question them for bias against your party

-non-resident defendant committed a tort in state, ex car wreck; negligent -non-resident defendant owns property in the suit state AND that property is the subject matter of lawsuit, ex: new jersey resident owns an apartment complex in Waco, TX and suit is about the apartment complex - non resident defendant has entered into multiple contracts within the suit state. example: Iowa machinery manufacturer sells hundreds of machines in TX -Non-resident defendant has transacted business within the suit state AND that transaction is the subject matter of lawsuit. example: Pennsylvania resident borrowed money from a Texas bank and all payments are to be made in Texas and collection suit relates to this debt

examples of minimum contacts:

jury intructions

has definition and series of questions for jury to answer - lawyers prepare and judge reviews and revises

The U.S. Supreme Court

highest court; generally reviews Federal appellate decisions and state supreme court decisions

-Must "serve" process upon a defendant: AND -defendant is a resident of the same state where the suit is filed -defendant is temporarily in the same state as where the suit is filed (defendant is a resident of a diff state) personal service required, not by certified mail -defendant has agreed that the suit state will have jurisdiction over him: * contract can provide that defendant has already agreed the court has jurisdiction over him *by taking certain actions, the defendant can unknowingly agree to the court's jurisdiction *knowing consent - defendant can agree to be sued in that state OR -Long arm statues - state laws that allow personal jurisdiction over non-resident defendant so long as subjecting that non-resident defendant to suit in the state -Standard: "does not offend tradition notions of fair play and substantial justice" -to meet this standard, the plaintiff must prove the non-resident defendant has "minimum contacts" with the suit state

how is in personam jurisdiction accomplished?

make full disclosure to your attorney and do not discuss the lawsuit with anyone else without consulting your attorney

if you become involved in a litigation _______________________________

courts

impartial tribunals established by government to settle disputes

The Supreme Court

is the nation's highest tribunal. consists of 9 justices (Chief Justice and 8 associate justices) who hear cases in Washington D.C. This court has a quorum of any six justices. principal function: review decisions of the federal court of appeals and sometimes those of highest state courts

judgement on the pleadings

judge decides case (applies law) just based on facts alleged in pleadings - RARE

summary judgement

judge decides case because facts are not disputed

directed verdict

judge decides case before jury verdict

president

judges in the federal court system are appointed by the ____________ for life, subject to confirmation by the senate

In rem jurisdiction

jurisdiction is based on claims against property. Example: dispute is over ownership of property located in Texas - potential owners are residents of New Jersey and New York

Quasi in rem jurisdiction or attachment jurisdiction

jurisdiction over property not based on claims against it. is the jurisdiction that allows you to go to a different state and obtain property of a defendant to satisfy a judgement

in personam jurisdiction

jurisdiction over the person

litigation

legal proceedings; civil procedure

jurisdiction

means the power or authority of a court to hear and decide a case. to resolve a lawsuit, a court must have both ____________ over the subject matter of the lawsuit and ________ over the parties to a lawsuit

motions challenging verdict

motion for new trial; motion for judgement notwithstanding the verdict

mediation

non-binding decision; mediator suggests ways to settle dispute

Conciliation

non-binding decision; third party tries to help parties settle dispute - usually in family law cases

cross-examination

opposing attorney questions adverse witnesses; judge rules throughout trial on objections to questions, admissibility of evidence, etc.

summons or citation

plaintiff "serves" the petition or complaint on defendants informing defendants of lawsuit

venue

refers to a particular geographical place where a court with jurisdiction may hear a case example: Texas state district court could obtain: - in personam jurisdiction over corporate defendant (ex corporation is a TX corporation) - so this satisfies the jurisdiction over the parties requirement , -Subject matter jurisdiction can be satisfied because the dispute is over a contract providing for manufacture and delivery of products in TX -_______________ is which state court in Texas can hear the suit

Subject Matter Jurisdiction

refers to the authority of a court to judge a controversy of a particular kind; answers the question: Which court system federal and/or state has the authority to hear this particular case?

direct examination

testimony by witnesses when questioned by attorney by using him

district courts, court of appeals, a number of special courts, and the U.S. Supreme Court

the federal court system consists of _______________, _______________, _________________, and _____________

district court

the general trial courts of the United States federal court system; most federal cases begin in the _______________ where the issues of fact are decided

Jurisdiction over the parties

the power of a court to bind the parties to a suit; Answers the question - in which state does the federal or state court need to be located?

dual court system

the united states has a ___________ in which the federal government as well as each of the fifty states has its own independent system

inferior trial courts (state)

these courts decide the least serious criminal and civil matters and usually do not keep a complete written record of their proceedings. minor criminal cases such as traffic offenses are heard by __________________________. This court is also referred to as municipal courts, justice of the peace courts, or traffic courts. appeal from the decision of a small claims court is to a trial court of general jurisdiction where the appellant is entitled to a new trial (trial de novo)

pretrial conference

to narrow issues to be covered at trial; maybe to settle

true

true or false: litigation is expensive

1. arbitration 2. conciliation 3. mediation 4. negotiation

types of Alternative Dispute Resolution:

Trial courts

usually called County Court, District Courts (other names also depending on state); very formal court proceedings; sometimes have specialized trial courts, such as only for family law matters or probate matters have juries or if waived, judge will determine

discovery

very important; must do to develop case includes: Depositions - can be used at trial just like live testimony Written interrogatories - questions and answers Requests for production - (of documents or items) Requests for admissions (of facts) - can be used to streamline what truly is in dispute occasionally court ordered examination by physician

in a case when only when it has jurisdiction over both the dispute and the parties of dispute

when can a court make a binding decision?

negotiation

you can always agree to settle outside of court