Business Law and Ethics - Chapter 3 (Dispute Resolution)

What is a "brief?"

A Brief: The appeals court allows both sides to submit written arguments on the case, called briefs.

What is a "Class Action?"

A Class Action: A suit in which one injured party represents a large group of people who have suffered similar harm.

What is a "Motion to Dismiss?"

A motion to dismiss: Is a request that the court terminate a case without permitting it to go further.

What is a "Motion?"

A motion: Is a formal request to the court that the court take some step or issue some order.

What is meant by the word "affirmed?"

Affirmed: The appellee's lawyer has 15 minutes to persuade the court that the trial court acted correctly, and that the result should be "affirmed," that is, permitted to stand.

What is "Alternative Dispute Resolution?"

Alternative dispute resolution: Is any other formal or informal process used to settle disputes without resorting to a trial.

What is meant by, "Answer?"

Answer: The pleading, filed by the defendant in court and served on the plaintiff, which responds to each allegation in the plaintiff's complaint. Short version: The Answer to the Complaint

What is an "Appellant?"

Appellant: An "Appellant" is the party file-ing the appeal is the appellant.

What are "Appellate Courts?"

Appellate courts: Are entirely different from trial courts. Three or more judges hear the case. There are no juries, ever. These courts do not hear witnesses or take new evidence. They hear appeals of cases already tried below. Appeals courts generally accept the facts given to them by trial courts and review the trial record to see if the court made errors of law. An appeals court reviews the trial record to make sure that the lower court correctly applied the law to the facts.

What is an "Appellee?"

Appellee: An "Appellee" is opposing the appeal, "because it won at trial."

What is "Arbitration?"

Arbitration: A form of "Alternative Dispute Resolution." The parties agree to bring in a neutral third party, an arbitrator, with power to impose an award. Arbitration ensures that there will be a final result. Arbitration is generally faster and cheaper than litigation.

What is "Burden of Proof?"

Burden of proof: The allocation of which party must prove its case. In a civil case, the plaintiff has the burden of proof to persuade the fact-finder of every element of her case. In a criminal case, the government has the burden of proof.

What is "Camera Inspection?"

Camera Inspection: One device a judge can use in reaching a discovery ruling is an in camera inspection, meaning that the judge views the requested documents alone, with no lawyers present, and decides whether the other side is entitled to view them.

What is "Challenge for Cause?"

Challenge for cause: An attorney's request, during voir dire, to excuse a prospective juror because of apparent bias.

What is a, Complaint?

Complaint: A short, plain statement of the facts one is alleging and the legal claims they are making. The purpose of the complaint is to inform the defendant of the general nature of the claims and the need to come into court and protect his interests.

What is a "Counter-Claim?"

Counter-claim: A claim made by the defendant against the plaintiff.

What is "Cross-Examination?"

Cross-examination: During a hearing, for a lawyer to question an opposing witness.

What is a "Deponent?"

Deponent: The person being questioned, during a deposition, is the deponent.

What is a "Deposition?"

Depositions: These provide a chance for one party's lawyer to question the other party, or a potential witness, under oath.

What is "Direct Examination?"

Direct examination: During a hearing, for a lawyer to question his own witness.

What is "Directed Verdict?"

Directed verdict: The decision by a court to instruct a jury that it must find in favor of a particular party because, in the judge's opinion, no reasonable person could disagree on the outcome.

What is "Discovery?"

Discovery: Allows the two sides in a lawsuit to obtain, before trial, documentary and other evidence from the opponent. Discovery is the critical, pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent's case.

What is a diversity case?

Diversity Case: Even if no federal law is at issue, federal courts have diversity jurisdiction when (1) the plaintiff and defendant are citizens of different states and (2) the amount in dispute exceeds $75,000. The theory behind diversity jurisdiction is that courts of one state might be biased against citizens of another state. To ensure fairness, the parties have the option of federal court.

What is a Federal Question Case?

Federal Question Case: A claim based on the United States Constitution, a federal statute, or a federal treaty is called a federal question case.

What is "Interrogatories?"

Interrogatories: These are written questions that the opposing party must answer, in writing, under oath.

What is a "Judgment non obstante veredicto (n.o.v.)?"

Judgment non obstante veredicto (n.o.v.): "Judgment notwithstanding the verdict." A trial judge overturns the verdict of the jury and enters a judgment in favor of the opposing party.

What is "Litigation?"

Litigation: Refers to lawsuits, the process of filing claims in court, and ultimately going to trial.

What is "Mandatory Arbitration?"

Mandatory Arbitration: Is when parties agree in advance to arbitrate any disputes that may arise.

What is "Mediation?"

Mediation: A form of "Alternative Dispute Resolution" or "ADR." A neutral person, called a mediator, attempts to coax the two disputing parties toward a voluntary settlement. A mediator does not render a decision in the dispute, but uses a variety of skills to prod the parties toward agreement.

What is a "Motion for a Protective Order?"

Motion for a protective order: This is a request that the court limit discovery by decreasing the number of depositions.

What is a "Motion to compel answers to interrogatories?"

Motion to Compel Answers to Interrogatories: A formal request that the court order the defendant to supply more complete answers.

What is "Negotiation?"

Negotiation: A form of "Alternative Dispute Resolution" or "ADR." In most cases the parties negotiate, whether personally or through lawyers. Negotiation often begins as soon as a dispute arises and may last a few days or several years.

What is "Peremptory Challenge?"

Peremptory challenge: During voir dire, a request by one attorney that a prospective juror be excused for an unstated reason.

What is "Physical and Mental Examination?"

Physical and Mental Examination: A party may ask the court to order an examination of the other party, if his physical or mental condition is relevant, for example, in a case of medical malpractice.

What are, Pleadings?

Pleadings: The documents that begin a lawsuit are called the pleadings. These consist of the complaint, the answer, and sometimes a reply.

What is "Preponderance of the Evidence?"

Preponderance of the evidence: The level of proof that a plaintiff must meet to prevail in a civil lawsuit. It means that the plaintiff must offer evidence that, in sum, is slightly more persuasive than the defendant's evidence.

What is "Production of Documents and Things?"

Production of documents and things: A form of discovery in which one party demands that the other furnish original documents or physical things, relating to the suit, for inspection and copying.

What is "Public Policy?"

Public Policy: Public policy refers to the interest that society has in any dispute.

What is "Reasonable Doubt?"

Reasonable doubt: The level of proof that the government must meet to convict the defendant in a criminal case. The fact-finder must be persuaded to a very high degree of certainty that the defendant did what the government alleges.

What is a "Reply?"

Reply: A pleading, filed by the plaintiff in response to a defendant's counter-claim.

What is "Requests for Admission?"

Requests for Admission: Either party can insist that the opposing party admit or deny certain facts, to avoid wasting time on points not in dispute.

What is meant by the word "reversed?"

Reversed: The appellant's lawyer has about 15 minutes to convince the judges that the trial court made serious errors of law, and that the decision should be "reversed," that is, nullified.

What is "Summary Judgement?"

Summary Judgment: Is a ruling by the court that no trial is necessary because there are no essential facts in dispute.

What is the "Law of Evidence?"

The Law of Evidence: Determines what questions a lawyer may ask and how the questions are to be phrased, what answers a witness may give, and what documents may be introduced.

What is the "State Supreme Court?"

The State Supreme Court is the highest court in the state, and it accepts some appeals from the court of appeals. In most states, there is no absolute right to appeal to the Supreme Court. If the high court regards a legal issue as important, it accepts the case. It then takes briefs and hears oral argument just as the appeals court did. If it considers the matter unimportant, it refuses to hear the case, meaning that the court of appeals' ruling is the final word on the case. In most states seven judges, often called justices, sit on the Supreme Court. They have the final word on state law.

What establishes the U.S. federal courts?

The United States Constitution

What limits what kinds of cases can be brought in any federal court?

The United States Constitution

What are "Trial Courts of General Jurisdiction?"

Trial Courts of General Jurisdiction: Hear a very broad range of cases.

What are "Trial Courts of Limited Jurisdiction?"

Trial Courts of Limited Jurisdiction: May hear only certain types of cases.

What are "Trial Courts?"

Trial courts: Determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions.

What two kinds of civil lawsuits are permitted in federal court?

Two kinds of civil lawsuits permitted in federal court: Federal question cases and diversity cases

What is "Voir Dire?"

Voir Dire: The process of selecting a jury is called voir dire, which means "to speak the truth."