Chapter 3: The US Legal System

Choice of Law Clause

A clause in a contract designating the law (such as the law of a particular state or nation) that will govern the contract.

Minitrial

A condensed version of the case is presented to the top management from both sides, with an expert neutral party conducting the trial, allowing them to see and hear facts and arguments so more meaningful negotiations can take place.

Pretrial Conference

A conference, scheduled before the trial begins, between the judge and the attorneys litigating the suit. The parties may settle the dispute, clarify the issues, schedule discovery, and so on during the conference.

Appellate Court/Appellate Jurisdiction

A court having jurisdiction to review cases and issues that were originally tried in lower courts.

Trial Court/Original Jurisdiction

A court of law where cases are tried in the first place, as opposed to an appeals court. Determine questions of fact.

Subject-Matter Jurisdiction

A court's power to hear certain kinds of cases. Exclusive Federal Jurisdiction State Jurisdiction Concurrent Federal Jurisdiction

Early Neutral Case Evaluation

A form of alternative dispute resolution in which a neutral third party evaluates the strengths and weakness of the disputing parties' positions; the evaluator's opinion forms the basis for negotiating a settlement.

Writ of Certiorari

A formal writ used to bring a case before the Supreme Court.

Intermediate Courts of Appeal

A level of courts in state courts that stand between trial courts and courts of last resort; they typically have appellate jurisdiction only. There are 11. (courts of appeal or superior courts)

Summary Jury Trial

A method of settling disputes in which a trial is held, but the jury's verdict is not binding. The verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial.

Mediation

A method of settling disputes outside of court by using the services of a neutral third party, called a mediator. The mediator acts as a communicating agent between the parties and suggests ways in which the parties can resolve their dispute.

Motion for a New Trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.

Motion for Judgement on Pleadings

A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute.

Motion for Summary Judgement

A motion requesting the court to enter a judgement without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.

Discovery

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

Motion to Dismiss

A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.

Case-Or-Controversy

A requirement that courts may decide only cases in which an actual conflict between persons exists.

Affirmative Defense

A response to a plaintiff's claim that does not deny the plaintiff's facts but attacks the plaintiff's legal right to bring an action. An example is the running of the statute of limitations.

Interrogatories

A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath.

Long-arm Statute

A state statute that permits a state to exercise jurisdiction over nonresident defendants.

Opening Statement

A statement made to the jury at the beginning of a trial by a party's attorney, prior to the presentation of evidence. The attorney briefly outlines the evidence that will be offered and the legal theory that will be pursued.

Dissenting Opinion

A statement written by a justice who disagrees with the majority opinion, judges present his or her opinion

Med-Arb

A type of dispute resolution process in which both parties agree to start out in mediation and, if unsuccessful, to move on to arbitration.

Brief

A written statement by an attorney that summarizes a case and the laws and rulings that support it

Private Trials

An ADR method in which a referee is selected and paid by the disputing parties to offer a legally binding judgment in a dispute.

Question of Law

An issue concerning the interpretation or application of a law. Only a judge can decide questions of law.

Concurring Opinion

An opinion that agrees with the majority in a ruling but differs on the reasoning.

Affirming

Appellate Court accepts the lower court's decision.

The Rule of Four

At least four justices of the Supreme Court must vote to consider a case before it can be heard

Z. Which of the following is a true statement regarding re-cross examination?

At the judge's discretion, opposing counsel has an opportunity to re-cross the witness to question the witness' testimony on redirect examination.

Z. Which of the following is an accurate statement regarding a minitrial?

Business representatives of disputing corporations participate in a minitrial and have settlement authority.

In Personam Jurisdiction

Court jurisdiction over the "person" involved in a legal action; personal jurisdiction.

Defendants Response

D can response to the summons and complaint by 1. Answer 2. Pre-answer motion to dismiss

Question of Fact

In a lawsuit, an issue that involves only disputed facts.

Pretrial Stage

Informal Negotiations Pleadings Service of Process Defendant's Response Pretrial Motions Discovery Pretrial Conference

Trial Stages

Jury Selection Opening Statements Examination of witnesses closing arguments conference on jury instructions post-trial motions

post trial motions

Motions filed after trial, seeking to change the result

Z. The federal court system has exclusive jurisdiction over all but which of the following types of cases?

Negligence

Preremptory Challenge

Objection or removal of proposed juror by an attorney without reason

Jury Selection (Voir Dire)

Parties question the potential jurors Parties have limited peremptory challenges, where they can eliminate a candidate without providing a reason Parties have unlimited challenges for cause, where they ask the judge to remove the candidate due to potential bias

Appellate Procedure

Prejudicial error of law. Decided by panel of judges -No jury. -Majority vote. -Written opinion. -Dissenting opinions.

Reply

Procedurally, a plaintiff's response to a defendant's answer.

Mock Trials

Recruiting individuals who match the demographics of the real jury to listen to attorneys' arguments and witnesses' testimony.

Threshold Requirements

Requirements for a case to make it to court. 1. standing 2. Case or controversy 3. Ripeness

Pleadings

Statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case.

Z. Long-arm statutes enable the court to serve defendants outside the court's home state as long as the defendant has __________ within the state.

Sufficient Minimum Contacts

Federal Trial Courts

The 94 U.S. District Courts

Z. The Federal Arbitration Act explicitly lists all but which of the following grounds on which an arbitrator's award may be set aside?

The arbitrator's fee was paid exclusively by one of the disputing parties

Z. Which of the following is not a commonly-recognized drawback of the adversary system?

The constitutional guarantee of due process to litigating parties

The Court of Last Resort

The court authorized by law to hear the final appeal on a matter. (called court of appeals or supreme courts)

Service of Process

The delivery of the complaint and summons to a defendant.

Z. Which of the following is not a criterion necessary for a case or controversy to exist?

The dispute between the plaintiff and the defendant must not give rise to a concomitant criminal action

Direct Examination

The examination of a witness by the attorney who calls the witness to the stand to testify on behalf of the attorney's client.

State Trial Courts

The first courts at the state level before which the facts of a case are decided.

Venue

The geographic district in which a legal action is tried and from which the jury is selected.

Informal Negotiations

The initial attempt to resolve a business dispute is usually informal: a discussion or negotiation among the parties to try to find a solution.

Z. Which of the following is not a United States Supreme Court-recognized requirement for standing to sue?

The plaintiff must consent to waive his or her Fifth Amendment privilege against self-incrimination.

Complaint

The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.

Cross-examination

The questioning of an opposing witness during a trial.

Motion for a Judgement in Accordance with the Verdict

Until the judge enters the judgement, the court has not issued a legally binding decision for the case.

Negotiation

a bargaining process in which disputing parties interact informally to attempt to resolve their dispute

Ripeness

a case that is ready for litigation and does not depend upon hypothetical future events

Counterclaim

a claim made to rebut a previous claim.

Binding Arbitration Clause

a contract provision mandating that all disputes arising under the contract must be settled by arbitration

Residential Service

a court representative leaves the summons and complaint with a responsible adult at the defendant's home

Reverse

a decision is reversed when the litigants appeal the trial court decision and the higher court disagrees with the decision of a lower court

Federal Arbitration Act

a federal statute that provides for the enforcement of most arbitration agreements

Default Judgement

a judgement entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim

Pretrial Motions

a motion a party can make to try to dispose of all or part of a lawsuit prior to trial

Summons

a notice directing someone to appear in court to answer a complaint or a charge

Plaintiff

a person who brings a case against another in a court of law.

Standing

a person who has the legal right to bring an action in court

Deposition

a pretrial interrogation of a witness. A court stenographer records every word spoken.

Alternative Dispute Resolution

a process by which two parties resolve conflicts through the use of a specially trained, neutral third party

Motion

a request made to the court

Directed Verdict (Motion for a Judgement as a Matter of Law)

a ruling that the plaintiff has entirely failed to prove some aspect of her case

Majority Opinion

a statement that presents the views of the majority of judges regarding a case

U.S. Litigation System

an adversary system; a neutral fact finder- a judge or jury- hears evidence and arguments that opposing sides present and then decide the case on the bases of facts and law.

arbitrator's award

an arbitrator's final written decision in binding arbitration

Prejudicial Error

an error of law that is so significant that it affects the outcome of the case

Defendant

an individual or group being sued or charged with a crime

Closing Arguments

arguments made by each side's attorney after the cases for the plaintiff and defendant have been presented

Motion for a Judgment Notwithstanding the Verdict (Judgement non obstante verdicto)

asks the judge to issue a contrary judgement to the jury's verdict.

Concurrent Federal Jurisdiction

authority of federal or state courts to hear the same case

Right of Removal

entitles the defendant to transfer the case to the federal court system

Request to Produce Documents

forces the opposing party to produce certain information unless it is privileged or irrelevant to the case

Z. When a contract contains a(n) ________, the parties specify which court would hear a dispute over an alleged breach of the contract.

forum-selection clause

Z. Generally, a state court's power to exercise ________ jurisdiction extends to the edge of the state's border.

in Personam

Jury Instructions

instructions that are given by the trial judge that specifically state what the defendant can be found guilty of and what the prosecution or plaintiff has to prove in order for a guilty verdict.

Hearsay

is testimony someone gives in court about a statement made by someone else who was not under oath at the time of the statement.

In rem Jursidiction

jurisdiction based on claims against property

Exclusive Federal Jurisdiction

jurisdiction that permits only the federal courts to hear a case

Z. The case-or-controversy requirement for standing to sue is also referred to as __________ controversy.

justifiable

Z. One of the criticisms of arbitration is that _____.

people may be losing important civil rights by agreeing to give up one's right to litigate

redirect examination

questioning after cross-examination, in which the attorney for the witness testifying may ask the same witness other questions to overcome effects of the cross-examination

Z. At the informal negotiation stage, if a party cannot resolve the dispute she will often: ________.

seek an attorney's advice

Arbitration

settling a dispute by agreeing to accept the decision of an impartial outsider

Shadow Juries

shadow jurors sit in during the actual trial and deliberate at the end of each day to evaluate for the attorneys how each side is doing

State Jurisdiction

state courts have exclusive jurisdiction over all matters to which the federal judicial power does not reach

Modifies

the lower court's decision was correct, but the remedy was deemed inappropriate.

Z. All of the following are required for a case or controversy except ______.

the relationship between the plaintiff and the defendant must be conciliatory

z. All of the following are required for a case or controversy except ______.

the relationship between the plaintiff and the defendant must be conciliatory

Z. A choice-of-law clause will generally be enforced when: _______. (Choose TWO correct answers.)

there is some connection to the location of the transaction there is some connection to one of the parties to the dispute

Remand

to send a case back to a lower court to be tried again

Z. According to Case 3-3 the Atlantic Marine Construction case, the Supreme Court held that the lower court should seek to ________ before ______ the case.

transfer, dismissing