LEB 323 Exam 1

appellate courts

All states have one more of these courts, which hear appeals from judgments entered by the courts below. Such courts decide legal questions; they do not hear testimony of witnesses or otherwise entertain new evidence. Also known as the supreme court of a state

common law

All the rules and principles currently existing in any state, regardless of their historical origin, that result from judicial decisions in those areas of law where legislatures have not enacted comprehensive statues

federal and state law

Categorizing law on the basis of the governmental unit from which it arises. Great bulk of law comes from state or "local" law. There are 50 bodies of contract law and 50 bodies of corporation law, etc. in the United States, but the rules parallel those that exist in other states

courts of limited jurisdiction

Every state has courts that are limited as to the kinds of cases they can hear. These courts hear most cases that come to trial, but such cases are relatively minor in nature

what is law

The general purpose of law is to create an orderly society. We want justice when we have been wronged.

motion for new trial

motion alleging the trial judge committed one or more errors in the trial that probably affected the outcome

motion to dismiss

motion instead of answer if the defendant believes that the plaintiff has no claim even if all the allegations in the complaint are true. Also known as demurrer and motion for judgment on the pleadings

default judgement

by failing to respond, the defendant has given up the right to contest liability. The only remaining issue to be determined is the remedy the plaintiff is entitled to

adverse witness

either the opposing party to the case or some other witness for the other side

writ of garnishment

orders third-party holding property belonging to the defendant to deliver the property to the custody of the court

alternative dispute resolution

other methods than litigation to solve legal issues. ADR replaces the harshness of litigation, instead replacing it with increased emphasis on trust, respect, and win-win situations

general charge

outlines and explains the relevant legal principles for the jury, then asking them to decide the relevant facts and reach a verdict either for the plaintiff or the defendant

preemptory challenges

challenges permitting an attorney to have a prospective juror removed without giving any reason for doing so

hearsay

_________ evidence is generally not admissible in court, as second-hand information is often not as reliable as first-hand information. There are exceptions, but often when the evidence presented is not given for the purpose of proving the truth of the claim

Uniform Commercial Code

a popular uniform statute adopted by 49 states

writ of execution

empowers law enforcement to seize the defendant's nonexempt property and sell it at auction until enough money is raised to satisfy the judgment

motion for directed verdict

essentially the same as summary judgment, but is based on more evidence and testimony of witnesses in court. If the defendant's _________________ is denied, they will then present their case

rules of evidence

evidence must be legally obtained; chain of who handles evidence must be documented; judge decides which evidence is admissible

discovery

evidence that each party was going to rely on in proving their version of the facts must be fully disclosed to the other party before the case comes to trial.

remand

further proceeding will be conducted in accordance with the appellate court's opinion

statutory law

also known as written law; the state and federal statutes in effect at a given time—that is, rules that have been formally adopted by legislative bodies rather than by the courts

the record

appellant's attorney begins the appeal by filing a notice of appeal and by requesting that the clerk of the trial court prepare the record of the case and send it to the appellate court

adjudication

applying the laws to the facts and making a ruling; judges to this activity

motion for judgment notwithstanding the verdict

asserts that the judge earlier should have granted a directed verdict in favor of the movant and should not have let the case go to the jury because the evidence was so one-sided in the movant's favor.

mediation

attempting to come to mutually-agreeable terms to solve a legal dispute. Parties involved use a mediator, but decisions made therein are not legally enforceable

personal jurisdiction

authority over the parties in the case

arbitration

parties involved select an arbitrator, submit very brief pleadings, and present evidence and arguments to the arbitrator. The arbitrator makes a decision, an award, which is legally enforceable

requests for production of documents

permits a party to gain access to those kinds of evidence, such as business records, letters, and hospital bills that are in the possession of the other party

criminal law

comprises those statutes by which a state or the federal government prohibits specified kinds of conduct and which additionally provide for the imposition of fines or imprisonment on persons convicted of violating them. Some wrongful acts also can subject wrongdoer to both criminal and civil penalties

subject matter jurisdiction

consists of the power to hear a particular kind of case

primary sources of law

contain legally binding rules and procedures, include federal and state constitutions, statues (legislative enactments), administrative agency regulations, and court decisions; also included are federal treaties and city ordinances

charge

core of the instructions and gives the jury a legal framework for performing its job

injunction

court decree ordering the defendant to do or not to do some particular thing

specialized U.S. courts

courts that have very specialized subject matter jurisdiction, including the U.S. Tax Court, which hears only federal tax cases and the U.S. Claims Court, which hears only claims against the U.S. government

felony

crime for which the legislature has provided a maximum penalty of either imprisonment for more than one year or death, as in the cases of murder, arson, or rape

counterclaim

defendant asserts claim against the plaintiff in response to lawsuit

affirmative defense

defendant believes that the facts create a legally recognized defense

adequate notice, right to a hearing, impartial decision-maker, substantial contact

defendant must be given these four things to show up in court

general denial

denies all the plaintiff's allegations altogether

challenge for cause

if questioning indicates a particular juror may not be impartial, an attorney can file a __________, and if granted, the juror may be excused

the reply

if the defendant raises a new matter (additional facts), the plaintiff must file a _______

motion for summary judgement

in this motion it is proposed that the evidence produced by discovery makes it so clear that the moving party is legally entitled to prevail that a trial would be a waste of time

plain meaning rule

judges are bound to the statutory law's language; the words themselves tell us all we need to know

in rem

jurisdiction over the assets in the state instead of the person

proactive law

law addressing future needs

reactive law

laws addressing past events; addresses case law going in the wrong direction

affirm

majority of appellate court judges conclude that no material errors occurred, sending the case back to the trial court for appropriate action to enforce judgment

reverse

majority of appellate court judges conclude that some material error was committed. Reversals may be the complete overturning of a lower court decision

long-arm statute

personal jurisdiction can be acquired over a nonresident defendant who has "done business" or committed a "tort" within the forum state. Summons may then be sent to the secretary of state's office, then to be forwarded to the defendant's out-of-state address

delegated powers

power given to the federal government

reserved powers

powers given to the states

redirect examination

questioning to deal with new matters that might have developed during cross-examination

aids to interpretation

reference books, statutory context, legislative history, social context, precedent

certainty, flexibility, knowability, reasonableness

requirements of a legal system

reasonableness

rules have to appear reasonable to the great majority of people if they are going to be obeyed for long

process-oriented approach

sees the law in a broader light: the processes by which the rules and principles are formulated (rather than the rules and principles themselves) constitute the major element of law

special charge

series of questions to the jury, with each question relating to a disputed facts and asks for a yes or no answer

uniform statutes

set of statutes that begin as identical in multiple states

complaint

sets forth the plaintiff's version of the facts and ends with a "prayer" (request) for a certain remedy based on these facts. The plaintiff alleges those facts that, if proved by evidence, will establish a legally recognized claim against the defendant

damages

sum of money roughly equivalent to the loss that he or she has suffered as a result of the defendant's wrong

secondary sources of law

summarize and explain the law, and sometimes criticize and suggest changes in it. Such sources are not legally binding, but are frequently referred to and used by courts, administrative agencies, legislative staff members and practicing attorneys as aids in determining what the law is or should be

deposition

testimony of a witness taken outside of court

review of trial court's legal determinations

the appellate court decides whether the trial court's interpretations and applications of the legal principles were correct

U.S. district courts

the basic trial courts within the federal system are the U.S. district courts, sometimes called federal district courts. Most federal cases originate in these courts. There are 96 judicial districts, each covering all or part of a state or a U.S. territory. Although these are most important courts in federal system, they have power to hear only those cases that have been specifically placed in their jurisdiction by the constitution and federal statutory enactments

pleading stage

the typical suit is commenced by the plaintiff, through an attorney, filing a complaint (petition) with the court having jurisdiction of the case. At the same time, the plaintiff asks the court to issue a summons to the defendant. After receiving the summons, the defendant has a prescribed period of time in which to answer the complaint (file a response)

implied preemption

there must be an indirect link to a delegated power

cross-examination

to discredit or cast doubt on the witness' testimony

rule-oriented approach

views the law as consisting of the rules that are in effect within a state or nation at a given time

jury instructions

when a case is submitted to jury, the judge provides instructions to the jury in its deliberations. These instructions are often read aloud to the jury in open court, and in most states, a written copy of these instructions is then given to the jury before they begin their deliberations

direct examination

when a witness is called to testify in court by the plaintiff's attorney, that attorney questions the witness first

trial by jury

when there is a right to a trial by jury, a jury will be impaneled if either party formally requests one. Failure to demand a jury trial results in a waiver of the right to one

perjury

witness who gives false testimony under oath may be convicted of this

interrogatories

written questions submitted by one party to the other, which must be answered under oath

appellee

the other party; also known as the respondent

adversarial system

the parties themselves (acting through attorneys) research the law and develop the facts. They decide which issues are going to be presented, which legal arguments are going to be made, what evidence should be gathered and presented, and how the evidence is to be introduced in court. The trial judge does not make these decisions, although, the trial judge exercises ultimate supervisory authority over the entire process. Cost is shifted to private sector

appellant

the party appealing; also known as the petitioner

burden of proof

the plaintiff has the duty to prove the facts alleged in the complaint

preponderance of the evidence

the plaintiff must convince the fact-finder of the truth of the allegations by a _____________________________, or that more likely than not the evidence is true

in personam

the plaintiff seeks a judgment that will be legally binding against the defendant

general trial courts

Most important cases involving state law commence end up in these courts. These courts have "general jurisdiction," so they are empowered to hear all cases except those expressly assigned by statute to the courts of limited jurisdiction. Also known as district courts, common plea courts, or superior courts.

civil law

actions in which the parties bringing the suits (plaintiffs) are seeking to enforce private obligations or duties against the other parties (defendants). Civil laws are all those that spell out the rights and duties existing among individuals, business firms, and sometimes even government agencies. Contract law, tort law, and sales law are all examples of civil law

negotiated settlement

agreeing to plaintiff demands to avoid trial

commerce clause

federal government has the power to regulate commerce between states

express preemption

federal government owns that area of the law

misdemeanor

a type of crime carrying lesser penalties, such as traffic offenses

certainty

one essential element of a stable society is reasonable certainty about laws, not only at a given moment but over long periods of time...if not, chaos would result. Courts are generally reluctant to overturn principles that have been part of the law for any appreciable length of time...most changes come from modifications rather than reversals

preemption

one law trumpets another law

flexibility

societal changes present new legal problems that must be resolved without undue delay. Court actions should always be viewed as a last resort. Negotiated settlements, mediation, arbitration, and other non-judicial dispute resolution techniques also play in an important role in society

review of trial court's factual determinations

some points raised by the appellant may require the appellate court to study the evidence that appears in the record, such as the transcript of witnesses' testimony and physical evidence that has been included in the record

transcript

official court reporter was recording every word of the proceedings, including all the attorney's questions, witnesses' answers, attorneys' objections, and the judge's rulings