Chapter 3 Business Law

(Assume for the moment that the motion for summary judgment was not granted and that the case proceeded to trial.) The trial was conducted just like the trial in the motorcycle case between Jed and Milly. The jury verdict was (1) that Brown had been 40% negligent, White 0% negligent, Black 25% negligent and Blue 35% negligent, and (2) that Brown had suffered injuries in the amount of $100,000 and Black had suffered injuries in the amount of $1000. Explain under what circumstances a trial court judge may grant a motion for entry of judgment n.o.v.

A judgment n.o.v. may be granted only if the judge is justified in saying that there is no reasonable, factual basis to support the verdict of the jury. That is, the verdict must be factually unreasonable.

voir dire

A large number of prospective jurors are present and information about them is gathered by questioning. This questioning process is sometimes called voir dire

Pre-trial Conference

A meeting between the judge and the lawyers involved in a lawsuit to narrow the issues in the suit, agree on what will be presented at the trial, and make a final effort to settle the case without a trial.

The Motion Stage.

A motion is a formal request that a court do something. There are various pre-trial motions that a party may bring. A motion for summary judgment is the most common motion. In it, a court is asked to grant judgment summarily, without further proceedings or a trial. This motion is granted when there is no dispute about the facts, or the facts as applied to the law.

The Appeal Stage.

A party dissatisfied with the trial process or result may appeal to the appellate courts. The appeal will be successful if the party appealing (the appellant) can identify an error in the trial proceedings.

Interrogatories

A set of interrogatories is a list of written questions sent by one party to another

Pre-Trial Motions for Summary Judgment

After the commencement of a lawsuit, there are a number of ways that the parties can attempt to end the case before a trial. In order of when they appear in the litigation process, the most common motions that parties file are (1) a motion to dismiss, (2) a motion for judgment on the pleadings, and (3) a motion for summary judgment

Defendant's Case

After the plaintiff rests his case, it is time for the defendant to present her evidence. In her testimony, Milly acknowledges she has not paid for the motorcycle, but she says that she has not paid for it because it was defective.

Explain why it is unlikely that an appellate court would reverse the decision in Brown v. White.

An appellate court would be unlikely to reverse in Brown v. White because there are facts to support the verdict. One may think that the jury's interpretation of those facts is incorrect, but, unless that interpretation exceeds the bounds of reason, the verdict may not be ignored.

Motion for Summary Judgment

At some point in trial preparation, the pleadings and information received through discovery may suggest to one of the parties that the significant facts in the case are not in dispute, and that the case should therefore be resolved in their favor, without a trial.Under those circumstances, a motion for summary judgment may be filed. Suppose, for example, that Milly learned that the motorcycle she bought from Jed was a stolen motorcycle. If that is true, there is no point in proceeding any further with the case, because Jed cannot recover for the sale of a stolen motorcycle, which must be returned to the lawful owner. In such a case, Milly would file a motion for summary judgment and include supporting documents that show the motorcycle was stolen

Defendant's Summation

At this point, each attorney will review the evidence and attempt to persuade the jury that the evidence favors his or her client

Plaintiff's Summation

At this point, each attorney will review the evidence and attempt to persuade the jury that the evidence favors his or her client

This question focuses on the opinion in Randolph v. Commodore Cruise Lines in the text. In that case, summary judgment in favor of the cruise line was reversed and the case was returned to the trial court for further proceedings (a trial). Which of the following is correct? At trial, if the jury concludes that Ms. Randolph did not receive a ticket, she will win if the cruise line was negligent. At trial, if the jury concludes that Ms. Randolph received a ticket, she will win if the cruise line was negligent. At trial, it is likely that Ms. Randolph will win because her case was strong enough that the appellate court reversed the decision of the trial court judge. At trial, it is likely that Ms. Randolph lost because her case was bad enough that the trial court judge tried to dismiss it summarily.

At trial, if the jury concludes that Ms. Randolph did not receive a ticket, she will win if the cruise line was negligent.

Parts of the Pleadings

Complaint: The plaintiff, Jed, prepares a document called a complaint (see figure 3.3). In order for Jed to avoid his complaint being dismissed, it must contain (1) a statement of fact(s) that shows the court that there is personal jurisdiction over Milly; (2) a statement of fact(s) that describes Jed's legal claims against Milly, also known as a legal cause of action; and (3) a request to the court to grant Jed one or more remedies. Delivering the summons and the complaint to the defendant is called service of process Answer: The defendant, Milly, responds by preparing an answer (see figure 3.4), which responds to the allegations of the complaint, raises any defenses she may have to the allegations, and sets forth any counterclaims. Reply: The plaintiff, Jed, responds to the counterclaim by preparing a reply (see figure 3.5 ), which states whether the allegations of the counterclaim are true, and any defenses he may have to the allegations of the counterclaim

Interrogatories. Defendant White wanted to learn what Brown was doing the night of the accident. He particularly wanted to know if Brown had been drinking. The investigating officer's report suggested that Brown had been speeding (65 mph in a 55 mph zone); did Brown admit he had been going 65 mph? In addition, he wanted to know if Brown was insured. There would be little point in pursuing the counterclaim against Brown for loss of the horse if Brown had no insurance. Hoping to get the information he wanted without a great deal of trouble or expense, White decided to submit Interrogatories (similar to Figure 3.6 at the end of the lesson) to Brown. Brown responded to the interrogatories with Answers to Interrogatories (similar to Figure 3.7 at the end of the lesson). Deposition. The facts related to control of the horse were pivotal to the development of Brown's case. Had Mr. White failed to keep the animal fenced in? Had Blue cut down—and failed to replace—the fence for his ditch repair work? The horse had belonged to White, so Marilyn Albert, Brown's attorney, decided that she should take White's deposition (similar to Figure 3.8 at the end of the lesson). She thought that White would know more about what had happened to the horse than anyone else. Albert had her secretary call each of the other attorneys in the case to find a mutually convenient time for the deposition. Albert prepared a Notice of Taking Depositions. On the date and time specified in the deposition notice, Mr. White and his attorney appeared at Ms. Albert's office, where Ms. Albert and the other attorneys who wished to attend questioned Mr. White about the accident Explain how the processes and results of using interrogatories and a deposition are different.

Figures 3.6 and 3.7 illustrate the mechanics of interrogatories. Interrogatories are written questions sent to other parties (see footnote on Rule 33[a]); the other parties respond with written answers. In contrast, Figure 3.8 illustrates the mechanics of depositions. A deposition is the oral questioning of persons under oath (including nonparties) (see footnote on Rule 56a [c] Summary Judgment) in front of a court reporter who prepares a written transcript. In general, depositions are a more flexible and useful method of gathering information. However, a deposition is a much more expensive process than interrogatories. The information produced by both of these methods may be used at trial.

Motion to Dismiss

If a plaintiff files a complaint that is defective under the rules, the defendant may be able to convince the judge to throw the case out before it ever starts by filing a motion to dismiss.

Motion for Judgment on the Pleadings

If after a defendant files an answer, the plaintiff believes that the defendant has admitted (or agreed with) all of the allegations raised in the complaint, the plaintiff might file a motion for judgment on the pleadings

Motion for Summary Judgment. White thought the deposition demonstrated that he had nothing to do with the accident. He thought that the judge should dismiss Brown's claim against him without a trial because there was no evidence to support Brown's claim. White filed a motion for summary judgment (similar to Figure 3.9 at the end of the lesson). The plaintiff had earlier taken his deposition and in support of his motion he submitted the following excerpts from that deposition: Q. Were you [White] aware that Jack Blue was going to be putting in an irrigation ditch? A. No. Q. You had no idea that was going to take place? A. I had no idea they were going to do it. Q. Did you ever see them working on your property? A. Not until the morning we went out there after the accident. Q. Now, let me ask you this. You had mentioned that the fence is a mesh fence; is that correct? A. Yes. Q. You were aware of an accident involving your horse at some point in time; is that correct? A. That's correct. Q. When did you first become aware of that? A. About three o'clock in the morning, the phone rang and the person on the line said, "This is the sheriff's office at Farmington. We want to let you know your horse was killed." So I went over to the field. As I got to the fence, I looked over and saw the construction. Well, I went and parked and walked over, and they had pinned the fence back. Should the trial court grant or deny the motion for summary judgment?

If there is any reasonable basis for a jury concluding that White has been negligent in any degree, the motion should be denied. If the only evidence presented to the court relating to the motion for summary judgment is the deposition above, there is no evidence demonstrating negligence. The only evidence is that White fenced in his horses and did not know about the construction. On this record, the motion for summary judgment may be granted.

Direct Examination

In direct examination, the attorney must use genuine questions that do not lead the witness; that is, her questions should not include their answer.

The Discovery Stage.

In the discovery stage of a lawsuit, each party is entitled access to all of the available evidence to use for preparation and in trial. The three most common discovery techniques are (1) interrogatories, (2) depositions, and (3) demands for production of documents.

Randolph v. Commodore Cruise Lines

In the second case, Randolph v. Commodore Cruise Lines, the trial court granted summary judgment, but that ruling was appealed and reversed. The appellate court held that summary judgment should not have been granted because the central issues in the case were not established before trial. That is, at least one important fact was unresolved and therefore the outcome was uncertain (or debatable). Therefore, summary judgment should not have been granted. But in Randolph, there was an unresolved dispute about whether the injured plaintiff ever received a ticket. Until that issue was resolved, the question whether she had filed her lawsuit in time could not be resolved

The following is a fictional account of a lawsuit known as Brown v. White. Along the way are questions to answer, which will help you learn the concepts. The Story of Mr. Brown. On July 11, 1994, at 2:40 a.m., a 1992 Chevrolet automobile owned and driven by Robert Brown collided with a horse. At the time of the collision, the automobile was southbound in the outside lane of state road 89, near 1100 North in Farmington, Utah. The horse, which was killed, was owned by A. B. White of Farmington, Utah. The car was damaged beyond repair. Mr. Brown suffered neck injuries and ultimately had surgery where bones in his neck were fused. He now suffers from a 15% permanent partial disability. Formerly a roofer, he must now find a new occupation. Brown cannot afford to hire a lawyer on an hourly basis. As an alternative, he and his lawyer, Marilyn Albert, have entered into a contingent fee agreement: Albert will represent Brown, and if she is successful, she will receive 40% of the amount recovered as her compensation. If Albert is not successful, she will receive no compensation.Apart from the facts of the accident, the only facts known to Brown and his lawyer are that (1) the horse was owned by A. B. White, (2) the owner of the property where the horse was kept was Michael Black, and (3) a man by the name of Jack Blue may have been doing construction work on the property. Marilyn Albert prepared a complaint (similar to Figure 3.3) and a summons, which she had served on the defendants White, Black, and Blue. As a matter of opinion, is it fair (ethical) to sue another person when liability is not clear—when you are not certain that the other person (e.g., Jack Blue) was at fault?

It is not ethical to sue another person without a reasonable basis for believing the claim is justified. On the other hand, sometimes the information to know accurately if a claim is justified can only be obtained through the discovery process. In such a case, filing a lawsuit is the only way to learn if another person is at fault.

Plaintiff's Case

Jed Doe, the plaintiff, is the first witness. Jed says that he sold a new motorcycle to Milly, the defendant, and that it was in mint condition

Jury Deliberation

Jurys talk and come up with a solution Finally, as a compromise, a juror suggests that Milly should at least be reimbursed for her hospital bills of $350 and $1,000 for her bruising and scars. The vote on this is 7-1 in favor, but the holdout juror votes against because no defect had actually been proved in the motorcycle. Then it is suggested that the plaintiff might not actually get all he is entitled to because he will have to pay his attorney. Tired now, someone says, "How about $15,000 for Doe and $500 for the girl?" and all agree.

Depositions

Lawyers for the parties may personally question other parties or witnesses and have the questions and answers recorded by a court reporters, Depositions are generally more effective at getting specific, important, information because the questioner can use follow-up questions when a witness attempts to answer evasively

Jury Selection

Lawyers for the two sides are allowed to challenge prospective jurors and have them removed from consideration. Challenges are in two forms: (1) challenges for cause and (2) peremptory challenges. a juror may be disqualified because he or she is a relative of one of the parties, or a juror may be disqualified because he or she is recovering from surgery and cannot sit for long periods of time.

Doe v. Roe

Milly and Jed with the motorycle. Milly bought from jed then crashed it and then refused to pay because she said the motorcycle was defective

N.O.V

Non obstante verdicto notwithstanding the verdict if the verdict is outside the bounds of reason

Post-Trial Motions and Judgment

Normally, a judge will enter a judgment in the same amount as the verdict. He can only vary from the verdict if the jury decision is outside the bounds of reason. If the verdict is outside the bounds of reason, he can enter a judgment n.o.v. (n.o.v. represents the Latin non obstante verdicto, or "notwithstanding the verdict"). Jed moves for entry of a judgment n.o.v. of $15,000 for him and no recovery for Milly. The theory of Jed's motion is that there was no credible evidence on which the jury could grant Milly $500.

The Pleading Stage.

Pleadings are the documents in which each party states its claims. These are categorized as complaint, answer, counterclaim, and reply.

Cross-Examination

The assumption is that the witness may be hostile or not friendly to the opposing attorney, who should accordingly be allowed a more rigorous style of questioning. A leading question attempts to limit the witness's answer to "yes" or "no."

King v. Tanner

The following two cases illustrate the standard for granting a motion for summary judgment. In the first case, King v. Tanner, the question was whether the trial court properly granted summary judgment in a claim for slander. The plaintiff, King, sued the defendant, Tanner, for slander because Tanner said that he (King) was the father of Tanner's child. DNA tests submitted to the court showed with 99.993% certainty that, indeed, plaintiff (King) was the father of the child. Because truth is a defense to a claim of slander, the defendant (Tanner) moved for summary judgment dismissing the plaintiff's claim. King resisted the motion. This one was easy. The defendant submitted facts demonstrating that King was the father of the child. King introduced no facts. Because, based on the facts, a judge or a jury could reach only one result (that King was the father of the child), the trial court properly granted summary judgment. The phrase with prejudice means that the decision is final and the claim cannot be renewed.

Verdict

The jury foreman writes down the decision of the jury on a piece of paper supplied by the court (this is the verdict) and tells the bailiff that they have finished.

It is alleged in a case that Manny negligently failed to yield the right of way as he drove a car into an intersection, with the result that Hillary, a pedestrian, was injured. Citing the statement of an eyewitness that he did, in fact, yield the right of way, Manny moves for an order of summary judgment. Hillary, however, resists the motion. She asserts that the witness did not have a good view of the intersection. Which of the following is correct? A. The motion will probably be granted (dismissing Hillary's complaint.) B. The motion will probably not be granted (not dismissing Hillary's complaint.)

The motion will probably not be granted (not dismissing Hillary's complaint.)

The Process of Litigation.

The process of litigation may be subdivided into five parts: pleading, discovery, motions, trial, and appeal.

3.3: Discovery Techniques

The three most common discovery techniques are (1) the use of interrogatories, (2) the use of depositions, and (3) the use of demands for production of documents.

The Trial Stage.

The trial of a civil action includes the following: pre-trial conference jury selection opening statements plaintiff's case direct examination cross-examination defendant's case direct examination cross-examination instructions plaintiff's summation defendant's summation deliberation verdict post-trial motions and judgment

Instructions

When all of the evidence is in, the judge instructs the jury on the law that applies to the case. When the judge is finished, each of the attorneys is allowed to argue his or her case to the jury.

The Story of Mr. White. A. B. White knew, of course, that his horse had been hit by an automobile and killed. He kept the horse in a rented field next to the road where the accident occurred. After the accident, he discovered that approximately ten feet of the fence had been cut and removed. At that point he did not know who had removed the fence. After being served with the summons and complaint, he looked into the matter more seriously and learned that construction work had taken place on an irrigation ditch located next to the cut in the fence. White was told by neighbors that the construction work was done by Michael Black, the man who owned the field where White kept his horse. Other neighbors said that a man named Blue was actually doing the construction work. White was not sure who was at fault in the matter, but he believed (a) that Brown, the plaintiff, may have been negligent (the police officer's report states that Mr. Brown's speed was 65 mph in an area posted 55 mph) or (b) that Black or Blue may have caused or permitted the fence to be cut, allowing the horse out onto the road. To protect White's interests, his attorney filed an Answer (similar to Figure 3.4) to the Complaint of Brown (denying the claims in the Complaint), and a Counterclaim (similar to Figure 3.4 at the end of the lesson) against Brown in which it was alleged that Brown had negligently caused the death of White's horse. When Marilyn Albert received White's Counterclaim, she filed a Reply (similar to Figure 3.5 at the end of the lesson) in response.The Story of Mr. Black. Mr. Black was surprised to be served with the summons and complaint from Brown. He knew of the accident but thought it had nothing to do with him. The cross-claim from White was likewise a surprise. These pleadings made Black realize for the first time that the construction near the fence may have been related to the accident. The irrigation ditch near the fence was being constructed by Jack Blue, Black's neighbor. Blue had asked permission to move the fence, if necessary, to get his equipment into place to dig the ditch. Black had given his consent, with the understanding that the fence would be replaced in its original condition. Black concluded that Blue, or his workers, must have been the ones who cut the fence and failed to repair it. To protect his interests, Black's attorney filed an Answer (similar to Figure 3.4 at the end of the lesson) to the Complaint (denying the claims in the Complaint). The Story of Mr. Blue. After he was served with the summons and complaint, Mr. Blue investigated and concluded that one of his workers cut the fence and failed to replace it. Mr. Blue, however, had two concerns. First, even if his workers were negligent, Blue believed the real cause of the accident was the conduct of Brown. Mr. Blue reasoned that if Brown had been driving more carefully, he would not have hit the horse. And second, even if Brown was not negligent, the amount of money claimed by Brown for his personal injuries and the damage to his car, and by White for the loss of his horse, appeared to be excessive. To protect Blue's interests, Blue's attorney files an Answer to the Complaint (denying the claims in the Complaint). 2. As a matter of opinion, is it honest (ethical) for Blue to deny liability under the circumstances above when he knew that his workers cut the fence, which let the horse escape onto the highway?

Yes, Blue's denial is ethical. Although he knows that he has some degree of liability, there are at least two things he does not know. First, Blue does not know what proportion of fault is his; that is, he does not know (for example) if he is 25% at fault or 75% at fault. Second, even if he knows the degree of fault, he does not know the dollar amount in which Brown is injured. That is, he does not know (for example) if Brown's injuries are reasonably valued at $50,000 or $250,000. Blue cannot admit liability until he knows the answer to these questions.)

Which of the following are the most alike? a. answer and reply b. complaint and reply c. answer and counterclaim

a. answer and reply

In which of the following is the questioner allowed to use leading questions? a. cross-examination b. direct examination

a. cross-examination

Which of the following is most likely to produce more specific, useful information? a. deposition b. interrogatories

a. deposition

In the Jed Doe and Milly Roe case, illustrated in the text, the jury granted Milly $500 for her personal injuries. Jed moved for entry of a judgment n.o.v. The judge did not grant this motion. Which of the following is correct? a. The judge was not correct in refusing to grant the motion. b. The judge was correct in refusing to grant the motion

b. The judge was correct in refusing to grant the motion

When the jury foreman writes down the decision of the jury on a piece of paper (which will be thereafter handed to the clerk of the court), what is the decision on the piece of paper called? a. the judgement b. the verdict

b. the verdict

When does service of process occur? a. When a plaintiff files his or her complaint with the court b. When a defendant delivers his or her answer to the court c. when a deputy sheriff hands a complaint and summons to a defendant

c. when a deputy sheriff hands a complaint and summons to a defendant

Andy has recently had a hernia operation and cannot sit upright for long periods of time. he will most likely be removed from the panel of prospective jurors by the use of what kind of challenge? a. a peremptory challenge b. a challenge for cause

challenge for cause

An attorney plans to give an impassioned argument to the jury for the purpose of persuading them to return a verdict in favor of her client. When would this be most appropriately done? a. in an opening statement b. in a closing argument

in a closing argument

Opening Statements

statements by opposing attorneys that tell the jury what their cases will prove