Chapter 2 BUSA

writ of certiorari

(pronounced sur-shee-uh-rah-ree) A writ from a higher court asking the lower court for the record of a case.

voir dire

(pronounced vwahr deehr) A French phrase meaning, literally, "to see, to speak." In jury trials, the phrase refers to the process in which the attorneys question prospective jurors to determine whether they are biased or have any connection with a party to the action or with a prospective witness.

counterclaim

A claim made by a defendant in a civil lawsuit that in effect sues the plaintiff.

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.

Sue uses her smartphone to purchase a video security system for her architectural firm from Tipton, Inc., a company that is located in a different state. The system arrives a month after the projected delivery date, is of poor quality, and does not function as advertised. Sue files a suit against Tipton in a state court. Does the court in Sue's state have jurisdiction over Tipton? What factors will the court consider?

A corporation normally is subject to personal jurisdiction in the state in which it is incorporated, has its principal office, and/or is doing business. Under the authority of a state long arm statute, a court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state. Before a court can exercise jurisdiction, though, it must be demonstrated that the defendant had minimum contacts with the state to justify the jurisdiction. The minimum-contacts requirement is usually met if the corporation advertises or sells its products within the state, or places its goods into the "stream of commerce" with the intent that the goods be sold in the state. Therefore, a court will consider whether Tipton advertised or sold its product within Sue's state. The court may also look at whether the contract between Sue and Tipton was negotiated or signed within the state.

summons

A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff's complaint. The document is delivered by a sheriff or any other person so authorized.

Bankruptcy courts

A federal court of limited jurisdiction that handles only bankruptcy proceedings. Bankruptcy proceedings are governed by federal bankruptcy law.

default judgment

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

motion for judgment on the 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 judgment

A motion requesting the court to enter a judgment 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.

motion

A procedural request or application presented by an attorney to the court on behalf of a client.

federal question

A question that pertains to the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.

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.

rule of four

A rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ.

interrogatories

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

Probate court

A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate.

long arm statute

A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have "minimum contacts" with that state for the statute to apply.

e-evidence

A type of evidence that consists of computer-generated or electronically recorded information, including e-mail, voice mail, spreadsheets, word-processing documents, and other data.

Pretrial motions

A written or oral application to a court for a ruling or order, made before trial

affidavits

A written or printed voluntary statement of facts, confirmed by the oath or affirmation of the party making it and made before a person having the authority to administer the oath or affirmation.

in rem jurisdiction

Court jurisdiction over a defendant's property.

in personam jurisdiction

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

Intermediate Appellate Courts

Courts of appeals are reviewing courts. Generally, appellate courts do not have original jurisdiction. About three-fourths of the states have intermediate appellate courts. In the federal court system, the U.S. circuit courts of appeals are the intermediate appellate courts.

metadata

Data that are automatically recorded by electronic devices and provide information about who created a file and when, and who accessed, modified, or transmitted it on their hard drives. Can be described as data about data.

All civil trials held in federal district courts are governed by the

Federal Rules of Civil Procedure (FRCP)

question of fact

In a lawsuit, an issue involving a factual dispute that can only be decided by a judge (or, in a jury trial, a jury).

question of law

In a lawsuit, an issue involving the application or interpretation of a law. Therefore, the judge, and not the jury, decides the issue.

Regarding the U.S. Supreme Court, it is correct to say all of these

It has original or trial court jurisdiction in rare instances. b. It is the highest level of the 3-tiered federal court system. c. It may review any case decided by any of the federal circuit courts of appeal.

Marbury v. Madison

Judicial review

exclusive jurisdiction

Jurisdiction that exists when a case can be heard only in a particular court or type of court, such as a federal court or a state court.

concurrent jurisdiction

Jurisdiction that exists when two different courts have the power to hear a case. For example, some cases can be heard in either a federal or a state court.

Each of the states selects judges by:

NOT appointment. b. compromises between political parties. c. election by voters.

pleadings

Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.

jurisdiction

The authority of a court to hear and decide a specific action.

service of process

The delivery of the complaint and summons to a defendant.

Supreme Courts

The highest state court is that state's supreme court, although it may be called by some other name. Appeal from state supreme courts to the United States Supreme Court is possible only if a federal question is involved. The United States Supreme Court is the highest court in the federal court system and the final authority on the Constitution and federal law.

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.

judicial review

The process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch.

standing to sue

The requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she either has been injured or has been threatened with injury.

Federal Rules of civil Procedure (FRCP)

The rules controlling procedural matters in civil trials brought before the federal district courts.

deposition

The testimony of a party to a lawsuit or a witness taken under oath before a trial.

impeach

To challenge the credibility of a person's testimony or attempt to discredit a party or witness.

At the trial, after Eve calls her witnesses, offers her evidence, and otherwise presents her side of the case, Tom has at least two choices between courses of actions. Tom can call his first witness. What else might he do?

Tom could file a motion for a directed verdict. This motion asks the judge to direct a verdict for Tom on the ground that Sue presented no evidence that would justify granting Jan relief. The judge grants the motion if there is insufficient evidence to raise an issue of fact.

diversity of citizenship

Under Article III, Section 2, of the Constitution, a basis for federal court jurisdiction over a lawsuit between (1) citizens of different states, (2) a foreign country and citizens of a state or of different states, or (3) citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal court can take jurisdiction in such cases.

Before a court can hear a lawsuit, requirements relating to these particulars must be met

a. standing to sue. b. venue. c. jurisdiction.

The complaint, answer, and other legal documents, taken together, are known as the:

b. pleadings.

If a party has "standing to sue" it means:

c. the party has a sufficient stake in the matter to bring suit.

The body of American law includes:

d. the case decisions and legal principles that form the common law.

Attorneys' fees charged for the performance of such services as drafting a simple will are known as:

fixed fees.

Venue

pronounced ven-yoo) The geographical district in which an action is tried and from which the jury is selected.

Trial Courts

state courts—Courts of general jurisdiction can hear any case that has not been specifically designated for another court. Courts of limited jurisdiction include, among others, domestic relations courts, probate courts, municipal courts, and small claims courts. Federal courts—The federal district court is the equivalent of the state trial court. Federal courts of limited jurisdiction include the bankruptcy courts and others shown in

The highest appellate court in a state is usually named the:

supreme court.

Venue in a civil case typically is where:

the defendant resides.

When laws conflict with one another, the work of resolving the conflict belongs to:

the judicial branch.