Exam 1 Business Law

Voir Dire

A French phrase meaning, literally, "to see, to speak" that refers to the jury-selection process. In voir dire, 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.

Writ of Execution

A court's order, after a judgment has been entered against the debtor, directing the sheriff to seize (levy) and sell any of the debtor's nonexempt real or personal property. The proceeds of the sale are used to pay off the judgment, accrued interest, and costs of the sale; any surplus is paid to the debtor.

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.

Hourly Fees

A fee based on the attorney's time expended on the matter, sometimes varying depending on whether that time is spent researching, engaging in discovery, or before the court.

Verdict

A formal decision made by a jury.

Brief

A formal legal document submitted by the attorney for the appellant—or the appellee (in answer to the appellant's brief)—to an appellate court when a case is appealed. The appellant's brief outlines the facts and issues of the case, the judge's rulings or jury's findings that should be reversed or modified, the applicable law, and the arguments on the client's behalf.

Default Judgement

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 a New Trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.

Motion or Judgement 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 Judgement

A motion requesting the court to enter a judgement 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.

Motion for Judgement N.O.V.

A motion requesting the court to grant judgement in favor of the party making the motion on the ground that the jury's verdict against him or her was unreasonable and erroneous.

The Appeal

A party may appeal the jury's verdict or any legal issue, motion, or court ruling during the trial. Appellants must have legitimate grounds for appeal (usually legal error). Filing the Appeal: Documentation varies by court but usually includes: A notice of appeal; A record (or transcript) of the pleadings, motions, hearings, the judgment, and any other ruling; Briefs outlining the legal arguments for reversing the judgment (appellant) and for letting the judgment stand (appellee). Once the court has reviewed the case, it issues a written opinion that: affirms the trial court's judgment; reverses part or all of the judgment and remands the case for an additional trial; reverses part or all of the judgment and renders a new ruling without another trial; or modifies the lower court's decision.

Registered Agent

A person or corporation that is empowered to accept service of process on behalf of a corporation.

Expert Witness

A person who, by virtue of education, training, skill, or experience, has scientific, technical, or other specialized knowledge in a particular area beyond that of an average person.

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.

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.

Interrogatories

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

Preponderance of the Evidence

A standard of proof that must be met by a plaintiff if he or she is to win a civil action.

Opening Statement

A statement made to the jury at the beginning of a trial by a party's attorney, prior to the presentation of evidence. The attorney briefly outlines the evidence that will be offered and the legal theory that will be pursued.

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.

Notice of Appeal

A written document filed by the appellant with the court and a copy of which is sent to the appellee—is the initial step in the appeals process. It informs the court and the party in whose favor a judgment or order has been made that the unsuccessful party seeks a review of the case.

Pretrial Motion

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

Affidavit

A written 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.

Posttrial Motions

After the jury reaches a verdict, either party can make a posttrial motion that asks the trial court to alter or disregard the jury's verdict or to order a new trial. Motion for New Trial: A motion asserting that the trial was so fundamentally flawed that a new one is required. The reasons for this motion include: Error by the trial judge; Newly discovered evidence; Prejudice. Motion for Judgment N.O.V. ("non obstante veredicto"): A motion asking the court to enter judgment as a matter of law in the defendant's favor, despite the jury's verdict—as a matter of fact—in the plaintiff's favor.

Closing Argument

An argument made at a trial after the plaintiff and defendant have rested their cases. Closing arguments are made prior to the jury charges.

Hearsay

An oral or written statement made out of court that is later offered in court by a witness (not the person who made the statement) to prove the truth of the matter asserted in the statement. Hearsay is generally inadmissible as evidence.

Peremptorily

Ask that an individual not be sworn in as a juror without providing any reason.

Contingency Fees

Attorneys fees that are based on a percentage of the damages awarded to the client).

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.

Relevant Evidence

Evidence tending to make a fact at issue in the case more or less probable than it would be without the evidence. Only relevant evidence is admissible in court.

Admissible Evidence

Evidence that the court would allow to be presented during the trial.

Jurisdiction

Facts showing that the particular court has subject-matter and personal jurisdiction.

Pleadings

Formal statements made by the plaintiff and the defendant in a lawsuit that detail the facts, allegations, and defenses involved in the litigation; the complaint and answer are part of the pleadings.

Motion for a Judgement as a Matter of Law

In a federal court, a party's request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The state courts refer to this request as a motion for a directed verdict.

Motion for a Directed Verdict

In a state court, a party's request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The federal courts refer to this request as a motion for judgment as a matter of law.

Notice of Motion

Informs the opposing party that the motion has been filed.

De Novo Review

It applies the same standard that the trial court applied.

Fixed Fees

May be charged for the performance of such services as drafting a simple will.

Enforcing the Judgment

No guarantees that a judgment will be enforceable. Writ of Execution: Directs sheriff to seize defendant's non-exempt property and sell it to pay for judgment. A plaintiff and his/her attorney usually consider whether the defendant has sufficient assets before the suit is filed.

Concept Summary 3.2 Trial Procedure

Opening Statements: Each party's attorney is allowed to present an opening statement indicating what the attorney will attempt to prove during the course of the trial. Examination of Witnesses: Plaintiff's introduction and direct examination of witnesses, cross-examination by defendant's attorney, possible redirect examination by plaintiff's attorney, and possible recross-examination by defendant's attorney. Both the plaintiff and the defendant may present testimony from one or more expert witnesses. At the close of the plaintiff's case, the defendant may make a motion for a directed verdict (or for judgement as a matter of law). If granted by the court, this motion will end the trial before the defendant presents witnesses. Defendant's introduction and direct examination of witnesses, cross-examination by plaintiff's attorney, possible redirect examination by defendant's attorney, and possible recross-examination by plaintiff's attorney. Possible rebuttal of defendant's argument by plaintiff's attorney, who presents more evidence. Possible rejoinder by defendant's attorney to meet that evidence. Closing Arguments, Jury Instructions, and Verdict: Each party's attorney argues in favor of a verdict or his or her client. The judge instructs (or charges) the jury as to how the law applies to the issue, and the jury retires to deliberate. When the jury renders its verdict, the trial comes to an end.

The Trial

Opening statements are given by both attorneys to set forth the facts that they expect to prove during the trial. Rules of evidence are those created by the court to ensure that any evidence presented during a trial is fair and reliable. Relevant evidence proves or disproves a fact in question or to establish the degree of probability of a fact or action. Hearsay is testimony given in court about a statement made by someone else who was not under oath at the time of the statement. Examination of Witnesses: The attorneys question each witness as follows: Direct examination; Cross-examination; Redirect examination and recross-examination. The attorney for the party who called the witness does a direct examination. The witness is then cross-examined by the attorney for the opposing party. Redirect examinations and recross-examinations provide opportunities for the attorneys to question witnesses. Expert Witnesses: The plaintiff and the defendant may present testimony from expert witnesses (people who have specialized knowledge due to their education, training, skill, or experience). Motion for Judgment as a Matter of Law/Directed Verdict: A motion for the judge to take the decision out of the jury's hands and direct a verdict for defendant because the plaintiff has presented no evidence to support his/her claim. Defendant's Evidence: The defendant's attorney presents the evidence and witnesses for the defendant's case. Witnesses are called and examined by the defendant's attorney and then cross-examined by the plaintiff's attorney. After the evidence has been introduced, the plaintiff's attorney can present a rebuttal by offering additional evidence that refutes the defendant's case. The defendant's attorney can refute that evidence in a rejoinder. Closing Arguments: After both sides present their cases, the attorneys make their closing arguments by summarizing the facts and evidence and telling their client's story in the most compelling way possible. Closing arguments are presented even if the trial was not heard by a jury. Jury Instructions: After closing arguments are completed, the judge provides instructions (charges) to the jury on the law that applies to the case as well as the standard of proof. Jury Instructions: The standard of proof in most civil cases is a preponderance of the evidence (the plaintiff only needs to show that her factual claim is more likely to be true than the defendant's). The standard of proof in a criminal trial is higher because the prosecution must prove its case beyond a reasonable doubt. Verdict: After deliberation, the jury delivers its findings (verdict). The verdict specifies the jury's findings and liability. Jury can award money damages in a civil case—or prison in a criminal case.

Concept Summary 3.3 Posttrial Options

Posttrial Motions: Motion for a new trial-If the judge believes that the jury was in error but is not convinced that the losing party should have won, the motion normally is granted. I can also be granted on the basis of newly discovered evidence, misconducted by the participants during the trial, or error by the judge. Motion for judgement n.o.v. ("notwithstanding the verdict")-The party making the motion must have filed a motion for a directed verdict at the close of the presentation of evidence during the trial. The motion will be granted if the judge is convinced that the jury was in error. The Appeal: Either party can appeal the trial court's judgement to an appropriate court of appeals: Filing the appeal-The appealing must file a notice of appeal with the clerk of the trial court, who forwards the record on appeal to he appellate court. Attorneys file appellate briefs. Appellate Review-The appellate court does not hear evidence but bases its opinion, which it issues in writing, on the record on appeal and the attorneys' briefs and oral arguments. The court may affirm or reverse all (or part) of the trial court's judgement and/or remand the case for further proceedings consistent with its opinion. Most decisions are affirmed on appeal. Further review-In some cases, further review may be sought from a higher appellate court, such as a state supreme court. If a federal question is involved, the case may ultimately be appealed to the United States Supreme Court.

Pretrial Procedures

Pretrial litigation process consists of filing the pleadings, gathering of evidence (called discovery), and completing other procedures such as jury selection. The Pleadings: Formal statements made by the plaintiff and the defendant in a lawsuit that detail the facts, allegations, and defenses involved in the litigation. The plaintiff's complaint contains statements or allegations concerning the following: Jurisdiction; Legal theory; Remedy. The defendant must be formally notified of the lawsuit (service of process). The plaintiff must deliver—or serve—a copy of the complaint and a summons to the defendant. A court may not exercise jurisdiction over a defendant until it has proof that the defendant was properly served. If the defendant does not answer within the time allotted by the applicable rules, the plaintiff may seek a default judgment. Service of Process: Plaintiff serves defendant with complaint and summons; Default judgment for plaintiff, if defendant does not answer. Acceptable Means of Service of Process: An individual defendant may be served at his residence or his principal place of business; A corporate defendant may be served by serving an officer or registered agent, designated for the purpose of receiving service; A partnership defendant may be served by serving any (general) partner. The Federal Rules of Civil Procedure permit—and even encourage—waiving formal service of process. The answer is the defendant's response to the allegations stated in the plaintiff's complaint. In the answer, the defendant must specifically admit or deny each allegation in the complaint. Defendant's Response: Affirmative Defense: Burden is on defendant to introduce proof; Counterclaims: Defendant sues plaintiff, and the plaintiff answers by filing a reply. Dismissals and Judgments before Trial: Motion: A procedural request submitted to the court by an attorney on behalf of her or his client; Pretrial motions include the motion to dismiss, the motion for judgment on the pleadings, and the motion for summary judgment. Motion to Dismiss: A motion (normally filed by the defendant) that asks the court to dismiss the case for a specified reason, such as lack of personal jurisdiction or failure to state a claim. Motion for Judgment on the Pleadings: A motion by either party asking the court to enter judgment in his or her favor based on the pleadings because there are no facts in dispute. Motion for Summary Judgment: A motion asking the court to enter a judgment in his or her favor without a trial. Case Analysis 3.1 Espresso Disposition Corp. 1 v. Santana Sales & Marketing Group, Inc. (2013). Discovery: The process of obtaining information from the opposing party or from witnesses prior to trial. Discovery Rules: Generally, discovery is allowed regarding any matter that is relevant to the claim or defense of any party. Case 3.3 BROTHERS v. WINSTEAD (2014). Discovery can involve: Depositions; Interrogatories; Requests for Admission; Requests for Documents, Objects, or Entry; Requests for Examination. Depositions: Sworn testimony, recorded by a court reporter and often by videotape, of the parties and other key witnesses. Interrogatories: Written questions related to the subject matter of the lawsuit that must be answered under oath. Requests for Admission: Questions to the responding party phrased in an "admit" or "deny" format. Requests for Documents, Objects, and Entry Upon Land. Requests for Examination. Electronic Discovery: The federal rules and most state rules now allow for the parties to obtain electronic "data compilations." Electronic evidence (or e-evidence) consists of all computer-generated or electronically recorded information including: E-mail, voice mail, tweets, social media posts, documents, and other data stored electronically. Computers, smartphones, and other devices automatically record metadata, or certain information about files such as: Who created them and when; Who accessed, modified, or transmitted them. Pretrial Conference: A court will typically schedule one or more conferences (or hearings) before trial to resolve procedural matters and to narrow the issues for trial. The right to a jury trial is guaranteed by the Seventh Amendment to the U.S. Constitution. In many state and federal courts, one of the parties must request a jury. Most cases are tried without juries. A trial without a jury is called a bench trial and the trial judge decides all questions of fact and of law. In a jury trial, the judge decides questions of law, but the jury decides all questions of fact (including the amount of damages due the plaintiff). Jury Selection ("Voir Dire"): Most civil trials are heard by six-person juries. In most jurisdictions, attorneys for the plaintiff and defendant question prospective jurors to determine bias or connection with a party in the case. Jurors can be dismissed peremptorily (no reason) or for cause (bias). Prospective jurors cannot be excluded by the use of discriminatory challenges such as those based on racial criteria or gender.

Answer

Procedurally, a defendant's response to the plaintiff's complaint.

For Cause

Provide a reason why an individual should not be sworn in as a juror.

Recross-Examination

Refers to resumption of cross-examination by the original cross-examiner in order to respond to matters that may have arisen during the re-examination of a witness.

Rules of Evidence

Rules governing the admissibility of evidence in trial courts.

Procedural Rules

Stages of Litigation: Pretrial; Trial; Posttrial. Hire an Attorney: An attorney may charge one or more of the following fees for service: Fixed Fee; Hourly Fee; Contingency Fee. Settlement Considerations: The amount of resources an attorney will spend on a given case is affected by: The time and funds of the client.; The defendant's ability to pay the damages sought.

Concept Summary 3.1 Pretrial Procedures

The Pleadings: The plaintiff's compliant-The plaintiff's statement of the cause of action and the parties involved, filed with the court by the plaintiff's attorney. After the filing, the defendant is notified of the suit through service of process. The defendant's response-The defendant's response to the plaintiff's compliant may take form of an answer, in which the defendant admits or denies the plaintiff's allegations. The defendant may also raise an affirmative defense and/or assert a counterclaim. Pretrial Motions: Motion to dismiss-See Exhibit 3-4. Motion for judgement on the pleadings-May be made by either party and will be granted only if facts are in dispute and only questions of law are at issue. Motion for summary judgement-See Exhibit 3-4. Discovery: The process of gathering evidence concerning the case, which may involve the following: Depositions (sworn testimony by either party or any witness); Interrogatories (in which parties to the action write answers to questions with the aid of their attorneys); Requests for admissions, documents, examinations, or other information relating to the case; Requests for electronically recorded information, such as e-mail, text messages, voice mail, and other data. Pretrial Conference: A pretrial hearing, at the request of either party or the court, to identify the matters in dispute after discovery has taken place and to explore the possibility of settling he dispute without a trial. If no settlement is possible, the parties plan the course of the trial. Jury Selection: In a jury trial, the selection of members of the jury from a pool of prospective jurors. During a process known as voir dire, the attorneys for both sides may challenge prospective jurors either for cause or peremptorily (for no cause).

Award

The compensation to be paid to the prevailing party.

Rejoinder

The defendant's answer to the plaintiff's rebuttal.

Service of Process

The delivery of the complaint and summons to a defendant.

Direct Examination

The examination of a witness by the attorney who calls the witness to the stand at trial to testify on behalf of the attorney's client.

Legal Theory

The facts establishing the plaintiff's claim and basis for relief.

Compliant

The pleading made by a plaintiff alleging wrong-doing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.

Charges

The process whereby a judge addresses the jury before the verdict. During the charge, the judge summarizes the case and gives instructions to the jury concerning such matters as the rules of law that are applicable to various issues in the case.

Cross-Examination

The questioning of an opposing witness during a trial.

Rebuttal

The refutation of evidence introduced by an adverse party's attorney.

Remedy

The remedy (such as an amount of damages) that the plaintiff is seeking.

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 of a witness taken under oath before a trial.

Redirect Examination

The trial process that follows cross-examination and is exercised by the party who called first and questioned the witness.

Record on Appeal

Timely resort by an unsuccessful party in a lawsuit or administrative proceeding to an appropriate superior court empowered to review a final decision on the ground that it was based upon an erroneous application of law.

Impeach

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