MGT 360 Exam (Chapters 1,3-5)

Deposition

a pretrial interrogation of a witness

Opinions ________ for future cases involving similar facts and legal issues

precedents

In Batson v. Kentucky, the U.S. Supreme Court outlawed discrimination on the basis of ________ in jury selection

race

Olflex Corp. files a complaint against Tenfour Corp., and the parties are in the discovery phase of litigation. A major issue in the dispute is the wording of the original sales contract between the two corporations. In this case, to get Tenfour to present the original sales contract, Olflex is most likely to ________.

request for production of documents

Attorney-client privilege

right of individual to have discussions with his/her attorney kept private and confidential

Natural Law

rules of conduct discoverable by reason

Arbitration

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

stare decisis

stand by what is decided

Jurisdiction

the official power to make legal decisions and judgments

Jurisprudence

the philosophy of law—how should legal decisions be made?

In determining the jurisdiction of a corporation, what two factors are considered?

the state of incorporation and the state where it has its principal place of business

Reasons why a litigant might care whether they were in state or federal court?

there may be State bias

True or False: Civil cases typically involve a request for damages or other appropriate relief that does not involve punishment of the wrongdoer.

true

True or False: The philosophy of judicial restraint is often termed strict constructionism, or judicial abstention.

true

Counterclaims

where Defendant sues Plaintiff and Plaintiff has to answer, etc.

The Supreme Court agrees to hear very few of cases—if it accepts a case for review, it issues a

writ of certiorari

Personal Jurisdiction

•Authority over the parties to the case on the part of the court •Personal jurisdiction over the defendant obtained by: a Summons or Service of process

Why try to avoid litigation?

•Costs •Time •Privacy •Relationship •Vindication •"Precedent"

Advantages of Case Law

- Stare decisis •Literally, means stand by what is decided •Judges follow precedent whenever possible •Ensures certainty and predictability in the law - Specifies the boundaries of property-based legal system

State System

- State Supreme Court - Court of Appeals - Trial court of general jurisdiction - lower courts of limited jurisdiction (probate, small claims, traffic)

True or False: A jury should treat anything said in an opening statement by an attorney as evidence when deciding the verdict of a trial.

False

True or False: Every court, whether in the state or federal system, has rules that mandate a 12 person jury in both criminal and civil cases

False

True or False: In a common law legal system, a judge would not use stare decisis to make current judicial decisions.

False

True or False: In cases heard before a jury, the jury functions to decide questions of law, while the judge is still present to decide questions of fact.

False

True or False: Legislation passed by the Congress is called an ordinance.

False

Peremptory Challenges

a defendant's or lawyer's objection to a proposed juror, made without needing to give a reason.

The federal and state court have "Concurrent Subject Matter Jurisdiction" if the case can be tried in either federal or state court.

(1) Federal question cases (2) Diversity ofCitizenship

Motion to Dismiss

(asks court to dismiss all or part of the complaint. If court denies, defendant will have to answer the complaint)

Examination

(by the attorney for the party offering the evidence)—asking questions so that the witness can tell his/her story

Cross-examination

(by the other side's attorney) designed to impeach the credibility of the witness's testimony

Civil Law

- Parties: Plaintiff versus Defendant - Burden of Proof: Preponderance of the evidence (more likely than not) - Verdict: Liable or not liable - Primary goal: Compensation

Define Law

- Rules that regulate the conduct of individuals, businesses, and other organizations in society - "obeyed and followed by citizens subject to sanctions or legal consequences"

Criminal Law

- Parties: Prosecutor (gov't employee representing the people) versus Defendant - Burden of Proof: Beyond a reasonable doubt - Verdict: Guilty or not guilty - Primary goal: Punishment and deterrence of crime

After the Verdict

- Post trial motions may be filed - An appeal may be filed

Lawyers

- Serve as representative advocates in court system - Present evidence, points of law, and arguments

Appeals Court Judge

- Often a "panel" of appellate court judges. The "trial is on trial". - no new testimony/witnesses - The highest court of each jurisdiction is also an appellate court

Supreme Court judges in the U.S.

- Appellate court judges - Referred to as justices

Settlement

- Can occur at anytime throughout the litigation process - A legal settlement is a contract between the parties - Generally has the following: •Confidentiality clause •Release of claims

Constitutional limits to peremptory challenges

- Cannot remove jurors based on race or sex - Rule in both criminal and civil trials

Where does law come from?

- Constitutions -Statutes -laws passed by legislative bodies -Case law - judicial decisions - Administrative law - Treaties - Executive orders

Points to determine jurisdiction

- Court's geographic territory - Court's power over the issues involved in the case (subject matter jurisdiction) - Court's power over the parties involved in the case (personal jurisdiction)

Advantages of Mediation

- Disputing parties retain full control over the resolution of controversy - Efficient as it generally does not involve any formal presentation - Helps preserve relationships - Provides possibility of creative solutions to dispute

Disadvantages of Arbitration

- Efficiencies and lower costs may decrease as arbitration numbers increase - Difficulty of appeal - Loss of civil rights and remedies available through litigation - Defendants may hide disputes under confidentiality clauses

Advantages of Arbitration

- Efficient - Less expensive than litigation - More control over the process - Parties can generally choose an arbitrator - Arbitrator has flexibility in decision-making - Ease congested court dockets

Jurors

- Fact-finding body - Trial by jury is guaranteed by the Bill of Rights - 6-12 members - Decision must be unanimous in most states (in criminal trials)

How do jurors decide who/what to believe?

- First, what is evidence? - Weighing the credibility(believability) of witness testimony and other evidence .- Examination(by the attorney for the party offering the evidence)—asking questions so that the witness can tell his/her story - Cross-examination(by the other side's attorney) designed to impeach the credibility of the witness's testimony

If both the state and federal court have the power to hear a case, who decides where it is tried?

- Initially, the plaintiff chooses where to file the lawsuit - A defendant may REMOVE a case from state court to federal court if there is concurrent jurisdiction - This right of removal only works from state to federal court, NOT the reverse - Ultimately, whoever wants the case in federal court wins this battle.

Pretrial Discovery

- Interrogatories - Requests for Production of Documents - Depositions

Arbitration Issues

- May be voluntary, contractual, or mandatory by law - May be binding (final) or non-binding - Selecting the Arbitrator - Scope of review very limited

Disadvantages of Mediation

- No enforcement mechanism to ensure the parties will mediate in good faith - Selection of the neutral mediator - Uniformity of training and licensing requirements for a mediator - May be delay tactic

Positive Law

- Obedience to duly authorized law. - Law is and should be distinct from morality.

What might lead the Supreme Court to grant certiorari?

- To resolve a conflict of law on an issue of federal or constitutional law - To address a highly unusual or important case such as U.S. v Nixon (concerning the Watergate tapes) or Bush v. Gore (concerning the extremely close election in 2000), or a case with an important social issue - to decide an issue in a justice's favorite area of law.

Federal System

- U.S. Supreme CourtCourt of Appeals - "U.S. Circuit Courts of Appeals" 12 geographical circuits plus the Federal Circuit (Fig. 3.3 at page 70) Trial Courts - "U.S. District Court" At least one in every state and D.C.

Disadvantages of Case Law

- Volume of cases - Conflicting precedents - Distinction between the holding and dicta - Increases the difficulty of determining the precedent - Rejection of precedent - Conflicts of law

Mediation

- a third party attempts to assist disputing parties in resolving their difficulties - cannot impose a binding solution

Complete Diversity of Citizenship:

1. Ps and Ds do not reside in same state (location of residence) 2. Controversy over $75,000

What is the purpose of "the law"---what functions does it serve?

1.Keep the peace—alternative to fighting 2.Protect expectations and predictability—facilitate planning 3.Protect individual freedoms 4.Provide for the "general welfare" 5.Promote social justice 6.Serve as moral guide

petition for certiorari

A petition asking the Supreme Court to hear a case

What are interrogatories?

A series of written questions presented to the opposing parties

For a trial attorney, the principle objective of the jury selection process is to select jurors who:

A. Are best suited to determine the truth related to the case. B. Are best suited to apply the law correctly to the case. C. Are most inclined to find in favor of the attorney's client. D. Meet the strict standards of the trial judge.

Exclusive Federal Jurisdiction

Cases involving federal crimes, bankruptcy, patents, copyrights, trademarks, and suits against the United States

What exceptions are there to attorney-client privilege?

Crime/Fraud exception in the future

In a ______________, a lawyer orally asks questions of the possible witness and an oral response is given.

Deposition

Federal Court ADR

District courts can decide whether to require ADR - Some mandate it, others make it voluntary - Some refer almost all civil cases to ADR

Citation

Enables to locate the case in a library or computer databases

Judicial Decisions (Case Law)

Interpret the constitutional, legislative, and regulatory laws

Plaintiff files Complaint

It has numbered paragraphs (what defendant did and what laws violated)and "prayer for relief" (what plaintiff wants court to do)

Sociological School of Jurisprudence

Judges should consider more than just the law.

Primary ADR process in federal district courts

Mediation

Sanction

Method used by law enforcement officials and courts to encourage or force compliance with obedience to the law

________ law jurisprudence believes that law is simply the commands of the state backed up by force and punishments.

Positive

Trial Court Judge

Presides over the trial, decides questions of law (and questions of fact in a bench trial), what evidence can be admitted, rules on motions, and renders the decision

Counselor

Professional rules and rules of evidence protect confidential communications to a lawyer

Standing to Sue

The legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit.

Venire

a panel from which a jury is to be selected

Mary was driving her four kids to soccer practice one day when she was rear-ended by Ted, who was driving his Porsche too fast and did not see that traffic was at a standstill. Mary's mini-van was damaged and required extensive repairs. Additionally, she had to go to the chiropractor for whiplash that she sustained in the accident. Mary meets with an attorney to discuss filing a lawsuit against Ted to recover compensation for the damages to herself and her vehicle. If the attorney takes the case, she will likely utilize which type of law?

Tort Law

Petit jury

Trial jury that returns a verdict in criminal and civil situations

True of False: ADR may be used to resolve particular disputes within cases

True

True or False: If a court does not have a pre-existing statute or case law to reference, it may still decide a case and create law in the process.

True

True or False: Natural law theory asserts that law contains universal moral principles.

True

True or False: The U.S. legal system is an adversarial system.

True

True or False: Through the standing-to-sue requirements, courts are able to insist that there be an adversarial relationship between plaintiff and defendant.

True

Determining where a corporation is a "citizen"

a corporation is a citizen of: (1) Its state of incorporation; AND (2) the state in which it has its principal place of business.

Subject matter jurisdiction is defined as _____:

a court's power over the issues involved in the case

Challenges for cause

a claim that a juror has demonstrated probable bias

Defendant files Answer

admits or denies each numbered allegation in complaint or files a motion to dismiss

The federal courts have the power to hear cases in which there is diversity of citizenship, meaning that ________.

all plaintiffs be citizens of different states from all defendants

voir dire

allows each party to question potential jurors as to their ability to be fair and impartial

Pretrial Pleadings

are the documents that are filed with the court to begin and continue the litigation process

Crossclaims

claim made between defendants

What are the three capacities a lawyer works at?

counselor, advocate, and public servant.

When a defendant files a claim against a plaintiff, that claim is called a ________.

counterclaim

When defendants file claims against each other in a lawsuit, those claims are called _____.

cross claims

Opinions

decisions made by judges on legal issues

Society's ______ values may become law through legislation and court decisions

ethical

True or False: During jury selection, the defendant is the only party that can excuse a juror for a particular reason.

false

In the pretrial phase of litigation, if a party fails to produce relevant, requested evidence, the party seeking the information is most likely to ________.

file a notion to compel discovery

One of the reasons U.S. Congress provides for diversity of citizenship jurisdiction is to ________.

guard against state court bias against a nonresident party in a lawsuit

U.S. Supreme Court Justices are appointed for _____

life

Questions to Ask When Selecting a Dispute Resolution Method

•How concerned am I about keeping costs low? •How quickly do I want to resolve the dispute? •Do I want to keep the dispute private? •Do I want to protect the relationship between the disputing parties? •Am I concerned about vindication? •Do I want to set a precedent with the resolution of my dispute?