Legal Test 2 (Ch.3)

How many circuits are there?

-12 -including circuit for district of Colombia

How many judges have to vote hear a writ case?

4

When does the U.S. Constitution entitles the parties to a jury trial?

(7th Amendment) If a plaintiff seeks at least $20 in monetary damages

What is the arbitrator's decision called and how long does it take?

- award; w/in 30 days - Arbitrator's decision legally binding

What 4 instances would a court issue a writ?

- case presents a substantial federal question that Supreme Court has not yet addressed - Multiple circuit courts of appeal have decided the issue of case in different ways - State court of last resort ruled that the federal law is invalid or has upheld a state law that may violate fed law - Fed court ruled that act of Congress is unconstitutional ... if Supreme Court does not issue write, lower courts decision stands

Mediation

- intensive negotiation - Disputing parties select neutral party (third party) to help facilitate communication - Suggest ways for parties solve their dispute - Process is confidential

Uses of Mediation

- most common in collective bargaining disputes - Allows workers to maintain relationship w/ their employer while still get needs addressed - Used a lot in environmental law

How is the losing party eligible for appeal?

- prejudicial error of law -Error of law that is so significant that it affects the outcome of the case -Ex: judge improperly allowed hearsay evidence that enabled plaintiff to prove element of her cases

How many justices are on the Supreme Court?

-9 -Who have lifetime appointments

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.

Courts of General Jurisdiction

-Almost every case in federal system begins in one of these courts -Has pwr to hear wide range of cases and can grant almost any type of remedy

shadow jury

-An unofficial jury, provided by a jury selection firm, that sits in during the actual trial and deliberates at the end of each day to evaluate for the attorneys how each side is doing.

Courts of last Resort (state courts)

-Appeals from state intermediate courts of appeal lead cases to the state court of last resort -If state does not have intermediate court of appeal, goes directly to Court of last resort

Appellate courts have how many benches of judges and what do appellate courts not have?

-At lest 3 judges -Do not have juries

closing argument

-Attorneys' summary of case -each attorney tries convince jury to decide case in their party's favor -occurs after testimony completed/ evidence been submitted -Plaintiff can present rebuttal

Illinois Vs. Hemi Group LLC

-B/c of increasing purchase of products through internet, difficult to know whether court will be able to obtain personam jurisdiction over seller if a defective product **Decided... -court affirmed the district court denial of the defendants motion to dismiss for lack of personal jurisdiction and remanded for further proceeding **-Case provides illustration of standard courts' use to determine whether a company's business over the Internet will be subject to personal jurisdiction in a given state

What are the three Threshold Requirements?

-Before a case makes it to court, it must meet the three threshold requirements 1)Standing 2)Case or controversy 3)Ripeness

Why does the American legal system require personal stake in outcome?

-Belief that plaintiff's personal stake simulates her to present the best possible case

Hertz Corp vs. Friend United States Supreme Court

-Clarified how courts should determine a corporation's principal place of business **-Decided that corporations principal place of business refers to the nerve center from which the corporations high-leveled officers directed, controlled, and coordinated corporations activities **-Significance= about what test to apply to determine where a corporation's primary place of business is

Personam Jurisdiction

-Court jurisdiction over "person" involved in a legal action; personal jurisdiction -Pwr of court require a party (usually defendant) or a witness to come before the court -Courts pwr reduced over specific geographic regions

Pretrial conference

-a meeting of the attorneys and the judge prior to the beginning of the trial -narrow legal and actual issues, possibly work out a settlement ...if settlement not reached=discuss administrative details of trail

In rem jurisdiction

-Court jurisdiction over a defendant's property. "Jurisdiction over the thing" -If defendant has property in a state, a plaintiff may file suit against defendants property instead of against the owner Ex: -Utah resident did not pay property taxes for a piece of land owned in Idaho -Idaho courts have in rem jurisdiction over property -Thus, Idaho state court has pwr to sieze property and sell it to pay the property taxes in an in rem proceedings

Trial Courts

-Courts hear civil/criminal cases when they first enter legal system/consider facts only -Decide cases first enter legal system -Present evidence/call witnesses to the stand

What if the defendant is a corporation?

-Courts serve president of corporation or an agent ...most state acquire courts to have an agent serve there company

diversity-of-citizenship

-Courts use location of party's resident to determine whether a diversity of citizen ship exists -opposing parties in lawsuit are citizens of different states or citizen of foreign country. -plaintiff and defendant have to be from different states -has to be sueing over 75,000

What is direct examination? What is hearsay? What type of questions can attorneys ask during direct examination?

-Direct examination=asking witness questions to elicit facts that support plaintiff's case-in-chief -Q's must relate to matters witness has direct knowledge of -Hearsay=information received from other people that one cannot adequately substantiate; rumor. -Cannot ask leading questions (questions that imply a specific answer) Ex: No--> "Did defendant come to your office and ask to purchase stock from him?" Yes--> "When did you first encounter the defendant?"

Intermediate Court of Appeals (state courts)

-Exist in half of states -Have broad jurisdiction -Hearings appeals from Courts of general and limited jurisdiction as well as state administrative agencies -Most states call them courts of appeal or superior courts

What do critiques say about jury selection processes?

-Give an unfair advantage to one side when only one party can afford these services

Why would defendant request to change venue of case?

-If where plaintiff filed case is an inconveniance to the defendant -If defendant feels it will be difficult to select an unbiased jury ...judge has power to move case

What are the pretrial stages

-Informal Negotiations 1)Pleadings 2)Service of Process 3)Defendant's Response 4)Pretrial Motions 5)Discovery

Three common discovery tools:

-Interrogatories -requests to produce documents -depositions

Jury Selection

-Jury selection process begins when clerk of the courts randomly selects a number of potential jurors from the citizens w/in the courts jurisdiction -Once potential jurors have reported for jury duty jury selection process begins (voir dire)

What are the two primary pretrial motions

-Motion for judgement on the pleadings -Motion for summary judgement

What is a motion and what happens after a party files a motion?

-Motion= written request to the court to ask for a decision -after party files motion... -court sends a copy to the opposing attorney, who may respond to the motion immediately

What is a Venue and what determines it Geographic location?

-Place where hearing takes place Geographic location is determined by: -each state's statues and based on where the parties live -where the event occurred -Alleged wrong was committed

What happens after the pleading?

-Plaintiff or defendant may file a motion to conclude the case early -climate some claims -gain some advantages

Pleading and what is the significance of the stage

-Plaintiff's attorney initiates lawsuit by filing a complaint in the appropriate court Complaint states: -name of parties to action -basis for the courts subject-matter jurisdiction -facts on which the plaintiff bases her claim -relief the plaintiff seeks **-pleadings prevent surprises at trial **-Allow attorney to prepare arguments to counter the other side's claims

Examination of Witnesses and Presentation of Evidence

-Plaintiff/defendant present their cases-in-chief by examining witnesses and presenting evidence

mock trials

-Recruiting individuals who match the demographics of the real jury to listen to attorneys' arguments and witnesses' testimony. -Tend to have mock trials in cases involving vast amounts of money

Defendant's Response

-Responds to complaint with an answer -Defendant will either deny, affirm, or claim no knowledge of knowledge to accuracy of the plaintiff's allegations

What is the right of removal involving Concurrent jurisdiction in state of court?

-Right entitles defendant to transfer case to federal court -transfer if...Plaintiff can file case in federal court initially OR if case was initially filed in state court, defendant can transfer case to fed court by exercising right of removal.

Trial Courts (state courts)

-Same as federal in terms of pwr -Most states have trial courts of jurisdiction in each county, which are referred to as courts of common plea or county courts -Have specialized divisions such as domestic relations and probate

What cases do not begin in trial courts of general jurisdiction?

-Special trial courts of limited jurisdiction -Include: Bankruptcy cases, claims against U.S. gov., and copyright/patent/trademark cases ...in extremely rare cases, U.S. Supreme court functions as a trial court of limited jurisdiction -These cases include controversies b/t states and lawsuits against foreign ambassadors

court of last resort (federal court)

-Supreme Court -Highest court in jurisdiction -Hears appeals of cases from court of last resort in a STATE system -Will NOT hear cases considering question of pure law -Will function as a trial court on par occasions

trial courts (federal court)

-The U.S. district courts -District courts contain attest one court of general jurisdiction

informal negotiations

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

Drawbacks of the Adversary System

-Time and expenses each lawsuit requires -damage a suit may cause to the litigating parties' relationship -unfair advantage to those with wealth and experience using court system

What are the three main levels of the federal court system?

-Trial courts -intermediate appellate courts -courts of last resort

What is the voir dire process and what happens during it?

-Vior dire=selects jurors who will decide case -as well as two or three alternate jurors who will watch trial and be available to replace -During this...judge/or attorney question potential jurors to determine whether they are able to render an unbiased opinion in the case

What is the exception that a case does NOT remain in one of the court systems throughout the appeals process?

-When a party to a lawsuit appeals the decision of a state Supreme Court to the U.S. supreme court

When can Appellate courts overrule Trial Courts decisions on question of fact?

-When trial courts finding clearly erroneous or no Trial supports trials court findings

Can both parties appeal judges on post trial motion or final judgement?

-Yes -if defendant and plaintiff both not happy with amount or whatever penalty received

peremptory challenge

-a defendant's or lawyer's objection to a proposed juror, made without needing to give a reason. -ex: -lawyer could challenge for cause a potential juror who was a college roommate of the defendant

What are the four possible decisions an appellate court can render?

-affirm it=conclude that lower courts decision was correct -Modify=grants alternative remedy if the lower courts are correct -Reverses=conclude lower courts were wrong -Remands for new trial=return case to trial court b/c feel there was error that affected outcome of case

Why would courts support use of ADR?

-alleviates pressure on overwhelmed court dockets

quasi in rem jurisdiction

-attachment jurisdiction, over a defendant's property unrelated to the plaintiff's claim -Property is sought as compensation by the plaintiff Ex: -New York resident ran a red light in Boston and collided with a another car injuring the Boston driver -Driver sues New York Driver for $200,000 -Boston court exercise quasi in rem jurisdiction over New York Driver vacation home by seizing it, selling it, and transferring $200,000 to Boston Driver -If vacation home worth more than $200,000, then excess proceeds go back to New York Driver

How can peremptory challenges be abused?

-attorney will eliminate certain classes, ethnic groups, or gender from jury Ex's: -Batson v. Kentucky case brought about race-based peremptory violations -J.E.B. v. Alabama: removing someone solely because of their gender is against the rules, 14th Amendment

Subject-Matter Jurisdiction

-authority of court to decide particular kind of case -United States has state and federal court apposed to rest of the world EX: bankruptcy court only has the authority to hear bankruptcy cases.

exclusive jurisdiction

-authority only federal courts to hear and decide cases -Admiralty cases -Bankruptcy cases -Federal Criminal prosecutions -cases in which one state sues another state -Claims against USA -Patent trademark -Copy right case -Other claims involving federal statues that specify exclusive federal jurisdiction

Negation

-bargaining process where disputing parties interact informally to attempt to resolve their dispute -Generally occurs in every case before formal trial, so not necessarily considered an alternative to litigation

Ripeness

-case that is ready for decision to be made and does not depend upon hypothetical future events -Issue of ripeness arises when one party claims that the cases is moot -Moot=no point in the court's hearing the case b/c no judgement can affect the situation b/t parties

Countercliam

-claim made by defendant against plaintiff that is filed along w/ defendants answer

Intermediate courts of Appeal (Federal court)

-courts that stand between trial courts and courts of last resort -Are U.S. circuit courts -Each circuit court appeals from district court in its geographic area -Federal circuit court of appeals hears appeals from gov. administration agencies

What is an affirmative defense

-defendant answer admits the facts contained in complaint are accurate but also include additional facts that justify defendants actions and provide legally sound reason to deny relief to plaintiff Ex: -Woman sued a man for battery b/c he punched her in face -he might claim that he hit her only b/c she aimed a gun at him and threatened to shoot -His claim that he was acting in self defense is an affirmative defense

Arbitration

-disputes submitted for resolution to private nonofficial persons selected by law or agreement of parties -Resolution of dispute by neutral third party outside judicial setting -Used most frequently b/t disagreements if employees and employers / consumers and businesses

Appellate Courts

-do not try criminal cases but hear appeals of decisions of lower courts -pwr to review previous judicial decisions -Determine whether trial courts erred in decision -dont hold trials -Review transcripts of trial courts proceedings -consider additional oral and written arguments from each party

What happens if neither plaintiff nor defendant present a convincing case?

-fact finder must rule in favor of defendant -Since plaintiff has burden of proof (urge to find truth) in case, plaintiff presents their case first

Why might a business prefer ADR rather than litigation?

-faster and cheaper -To avoid uncertainty w/ a jury decision -Avoid setting a precedent through a court decision -Confidential -Less adversarial than litigation, allows parties to preserve a business relations

request to produce documents

-forces the opposing party to produce certain information unless it is privileged or irrelevant to the case -Can request photographs, contracts, written estimates, medical records, tax forms, other gov. documents

What role do the rules of civil procedure play?

-govern civil case proceedings ...Federal courts of Civil Procedure apply in all federal courts -Each state has its own civil rules but they are very similar to the federal rules of of Civil procedure -Each court has its own set of local court rules

What do attorneys try to show in a cross-examine

-inconsistencies in witness's testimony -cast doubt on claims of plaintiff's case -elicit info to support defendant's case

Jury Instructions

-instructs jurors on how law applies to the facts of case -both side attorneys submit statements to judge explaining how they believe she should charge jury -after judges charge jury, jurors retire to jury room to deliberate -Once decision is made, return to courtroom, where judges read their verdict/ discharges them from their duty

Question of Law

-issue concerning interpretation or application of a law -Only Judges Decide Ex: Whether 1st Amendment protects students right to utter racial slur

Default judgement

-judgement 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 judgement

What is the presidential value of one of the judges who votes with the majority records of the court's decisions and its reason in the majority opinion?

-judges use prior appellate court decisions to make decisions in future cases and these decisions establish new guidelines in law that all citizens must follow -If judge agrees w/ majority but for diff. reasons, may write concurring opinion (staring reason why reached majority conclusion) -If disagree w/ majority opinion, dissenting opinion

Case or Controversy and the three criteria's for it to actually exist?

-known as Justifiable controversy -A requirement that courts may decide only cases in which an actual conflict between persons exists. 1)Relationship b/t plaintiff and defendant must be adverse 2)Actual or threatened actions must give rise to an actual legal dispute 3)Courts must have ability to render a decision that will resolve dispute -Courts can give judgments that solve existing problems -Cannot provide rulings about hypothetical situations

Standing

-legal right for person to bring an action in court(standing to sue) -Outcome of case must personally affect him or her Ex: hire a landscaper to mow your lawn every week and fails to show up every other week, you have standing to sue landscaper ...But if your friend hired the landscaper, you cannot sue on their behalf, b/c you do not have personal stake in outcome of case

adversary system (fact finders)

-neutral fact finder (judge, jury)hears evidence/arguments that opposing sides present -decides case on basis of facts and law -strict rules govern types of evidence fact finders may consider -Fact finders make informed/impartial rulings b/c each party has incentive to find relevant evidence and make strong arguments on behalf of position

Jurisdiction

-official power make legal decisions and judgments -Pwr hear cases/ render decisions that bind parties before them

what is a motion for a judgement in accordance w/ the verdict

-once trial ends, party who received verdict files this -judge has to enter the judgement before the court can issue a legally binding decision for the case

cross-examine

-opposing council ask questions only related to the direct examination -can ask leading questions

Discovery

-opposing parties obtain information from each other to prepare for trial

What do you have to do to file an appeal to US Supreme Court?

-party has to file a petition asking court to issue writ of certiorari (order to lower courts to send Supreme Court record of case)

Question of Fact

-question about an event or characteristic in a case -Only trial courts decide Ex: Whether a white student yelled racial slurs on a college campus

redirect examination

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

federal-question cases

-require interpretation of US Constitution, a federal statute, or a federal treaty Ex: -Plaintiff alleges that a Florida campaign-financing law violates his First Amendment free speech rights -B/c case raises a federal question...falls under concurrent jurisdiction and both state and federal court have pwr to hear it -apply, intcrupt constitution

What is Alternative Dispute Resolution (ADR)?

-resolution of legal dispute through methods other than litigation -Negotiation, mediation, arbitration, summary jury trials, mini trials, neutral case evaluations, private trials

directed verdict

-ruling that plaintiff has entirely failed to prove some aspect of case -RARE b/c plaintiff almost always present some sort of evidence

Explain an Arbitration hearing

-similar to trial Different from trial b/c... - arbitrator takes more active role than judge ,Arbitrator can question witnesses - No official written record of hearing - Rules of evidence applicable in a trial typically relaxed in arbitration

state jurisdiction

-state courts have exclusive jurisdiction over all matters to which the federal judicial power does not reach -Adoption and divorce -Caterpillar case

long arm statute and explain Caterpillar case

-state statute permits a state to exercise jurisdiction over nonresident defendants as long defendant has sufficient minimum contact within states Caterpillar case... -Company sold products in Kentucky and products caused injury in that state -^These two facts were sufficient minimum contacts to allow Kentucky court to serve Caterpillar, even though it was an out-of state company

opening statement

-statement made by lawyer for each side at beginning of trial, in which each lawyer outlines case they intend to present to judge and jury

concurrent federal jurisdiction and what two cases does it cover?

-two or more courts from different systems simultaneously have jurisdiction over a specific case -parties try to have civil or criminal case heard in court that perceive will be most favorable to them -authority of federal or state courts to hear same case -Covers two types of cases 1)Federal question 2) Diversity of citizenship

When would defendant file a motion to dismiss

-upon receiving the complaint, if defendant believes that even though all the plaintiff's factual allegations are true, the law does not entitle the plaintiff to a favorable judgement, then file a motion to dismiss

What is a brief?

-when appealing case, after clerk forwards the record of appeal to appeals court -Written legal argument that a party presents explaining why that party to the case should prevail (arguing why appeals court should reverse it -Attorney for party who won in lower courts then filed an answering brief

Interrogatories

-written questions and answers under oath -attorneys work w/ their clients to answer

When does a judge decide on a Question of Fact? When does the jury decide on Question of Fact?

1) In a bench trial (Trial w/ no jury) 2)In a Jury trial

What are the six stages of a trial?

1)Jury selection 2)Opening statements 3)examination of witnesses 4)closing arguments 5)conference on jury instructions 6)post-trial motions

What three cases can Subject-Matter Jurisdiction fall under

1)State Jurisdiction 2)Exclusive Federal Jurisdiction 3)Concurrent Juridiction

What three locations are corporations subject to in personam jurisdiction?

1)State of their corporation 2)Location of their main office 3)Geographic area where they conduct business

What are the options for the party that loses at trial?

1)file a motion for judgement notwithstanding the verdict - asking judge to issues judgement contrary to the jury's verdict - To grant it...judge must find that when viewing envidence in the light most favorable to the nonmoving party, a reasonable jury could not have found in favor of that party (as a matter of law, judge must determine the trial did not produce sufficient evidence to support the jury's verdict) - Cannot make motion until after jury issues a verdict 2)file a motion for a new trial - judge did not believe other side should of won the case - Often happens when... - parties discover new evidence - Judge made erroneous ruling - Misconduct during trial that may have prevented jury from reaching a fair decision

Requirements for Standing and what case is it based off of?

1)must have injury in fact that is concrete and actual or imminent 2)injury must be fairly traceable to the challenged action of the defendant 3)Must be likely that the injury will be redressed by a favorable decision -EX: Friends of the Earth(FOE) vs. Laidlaw Environmental Services In case... -FOE people were afraid to fish and swim in water that they previously did... satisfied 1st and 2nd criteria -FOE people did not directly receive money from Laidlaw but benefited from penalties that Laidlaw had to pay for future polluting river

How many US district courts are there?

94

What happens after a case in a proper court system?

A VENUE will determine which trial court in the system will hear the case

Advantages/ Disadvantages of Mediation

Advantage= - help disputing parties preserve relationship - Find creative solutions - High level of autonomy participants receive Disadvantages= -creates image of equal parties parties working toward equitable solution/ hides power imbalances that lead party w/greater pwr getting greater benefit out of agreement -People draw out dispute with no intention of finding a solution

What does the complaint and Summons say in a Service of Process

Complaint= explains basis of the lawsuit to defendant Summons=tells the defendant that if he or she does not respond to the lawsuit w/in a certain period of time, plaintiff will receive a default judgement

What does early pleading do?

Establish legal and factual issues of the case

What do parties do when they have to go to court when a dispute arises?

Have to choose b/t Federal/State court systems

Plaintiff versus Defendant

Plaintiff: -party who initiates a lawsuit before court by filing complaint w/ clerk of court against defendant Defendant: -party against whom a civil or criminal lawsuit is filed in a court of law

Do Appellate Courts answer to Question of Law or Question of Fact? Why?

Question of Law, b/c

What is Service of Process? What are some other methods of Service today?

Service of Process... -Procedure which courts present complaint and summons to defendants Methods used today... -Residential Service( Court representative leaves summons and complaint w/ a responsible adult at defendants home) -Service by certified or ordinary mail

What is a court reporter called?

Stenographer

When does a court acquire personam jurisdiction over a person?

When files a lawsuit w/ court

When does a court acquire jurisdiction over person the plaintiff is suing (the defendant) ?

When it gives him a copy of the complaint and a summons

Is the procedure for each witness the same? What is it?

YES 1)direct examination 2)cross-examine witness 3) redirect examination 4) re-cross

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Deposition

a pretrial interrogation of a recorded testimony of a witness that is acquired out of court with no judge present

Reply

a response by the plaintiff to the defendant's counterclaim

What type of system is the U.S. litigation system

adversary system

When do post trial motions begin?

after the jury instructions

motion for judgment on the pleadings vs. Motion for summary judgement

motion for judgment on the pleadings: -party's request to the court to rule in his/her favor based on the pleadings on file, without accepting evidence, as when the outcome of the case rests on the court's interpretation of the law. Motion for summary judgement: -request for the court to rule that the other party has no case, because there are no facts at issue. The party making the motion is claiming that either the case should not go before a jury at all, or a jury could only rule in favor of the moving party.