BLAW 3

Arbitration Clause

A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court. EXAMPLE: Credit card contracts with banks, and they pick the arbitrators.

2) Counterclaim

A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.

Justiciable Controversy

A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case. EXAMPLE: James Bush visited the FBI's office and filled out complaint forms indicating that he was seeking records under the Freedom of Information Act (FOIA) regarding a police brutality claim and the FBI's failure to investigate it. Bush filed a suit against the U.S. Department of Justice in an attempt to compel the FBI to proved the requested records. The court dismissed the lawsuit on the ground that no justiciable controversy existed. Bush had failed to comply with the requirements of the FOIA when he filled out the forms, so the FBI was not obligated to provide any records. thus, there was no actual controversy for the court to decide.

Personal Jurisdiction

A court can exercise jurisdiction over any person or business that resides in a certain geographic area. EXAMPLE: A state trial court normally has jurisdictional authority over residents and businesses in a particular area of the state. A state's highest court (supreme court) has jurisdiction over all residents of that state. EXAMPLE: Sharon, a California resident, forms a corporation. Brad, an Ohio resident, loans the corporation funds that he borrows from an Ohio bank. A year later, the project is not completed and Sharon agrees to repay Cole's loan in a contract arranged through phone calls and letters between California and Ohio. When Sharon does not repay the loan, Cole files a lawsuit in an Ohio court. In this situation, the Ohio court can exercise jurisdiction over Sharon because her phone and letters have established sufficient contacts with Ohio.

REM Jurisdiction

A court can exercise jurisdiction over property that is located within its boundaries (jurisdiction over the thing). EXAMPLE: A dispute arises over the ownership of a boat in dry dock in Fort Lauderdale, Florida. the boat is owned by an Ohio resident, over whom a Florida court normally cannot exercise personal jurisdiction. The other party to the dispute is a resident of Nebraska. In this situation, a lawsuit concerning the boat could be brought in a Florida state court on the basis of the court's in rem jurisdiction.

1) Summons

A document informing a defendant that a legal action has been commenced against her or him and that the defendant must appear in court on a certain date to answer the plaintiff's complaint. It also informs that failure to answer may result in a DEFAULT JUDEMENT for the plaintiff, meaning the plaintiff could be awarded the damages alleged in her complaint.

Bankruptcy Court

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

Mediation

A method of settling disputes outside the courts by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement. Mediators cannot make final binding decisions. EXAMPLE: Two business partners, Mark and Charles, have a dispute over how the profits of their firm should be distributed. If the dispute is litigated, the parties will be adversaries, and their respective attorneys will emphasize how the parties' positions differ, not what they have in common. In contrast, when the dispute is mediated, the mediator emphasizes the common ground shared by Mark and Charles and helps them work toward agreement. The two men can work out the distribution of profits without damaging their continuing relationship as partners.

3........) 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.

Negotiation

A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them. Involves directly talking to each other, unlike mediation.

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.

Small Claims Court

A special court in which parties may litigate small claims (such as claims $5,000 or less). Attorneys are not required in small claims courts and, in some states, are not allowed to represent the parties.

Long Arm Statue (minimum contacts)

A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have certain "minimum contacts" with that state for the statute to apply. EXAMPLE: After an XBox game system caught fire in Bonnie's home in Texas and caused substantial personal injuries, Bonnie filed a lawsuit in a Texas court against Ji-Haw Industrial Company, a nonresident company that made the XBox components. Bonnie alleged that Ji-Haw's components were defective and had caused the fire. Ji-Haw argued that the Texas court lacked jurisdiction over it, but in 2008, a state appellate court held that the Texas long arm statute authorized the exercise of jurisdiction over the out-of-state defendant.

Question of Law

In a lawsuit, an issue involving the application or interpretation of a law. Only a judge, not a jury, can rule on questions of law.

Question of Fact

In a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point. Questions of fact are decided by the jury in a jury trial (by the judge if there is no jury).

Diversity of Citizenship

In the U.S. Constitution, a basis for federal district 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 district court can take jurisdiction in such cases.

Exclusive Jurisdiction

Jurisdiction that exists when a case can be heard only in a particular court or type of court. 1) Exclusive state jurisdiction involves all matters not subject to federal jurisdiction like divorce and adoption 2) Exclusive federal jurisdiction involves federal crimes, federal antitrust law, bankruptcy, patents, copyrights, trademarks, suits against the U.S.

Concurrent Jurisdiction

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

2) Answer

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

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 case.

1) 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 a court decides on the constitutionality of legislative enactments and actions of the executive branch (checks-and-balances system).

Litigation

The process of resolving a dispute through the court system.

Deposition

The testimony of a party to a lawsuit or a witness taken under oath before a trial. 1) interrogatories are 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 (cheapest). 2) orally.

Marbury v. Madison

When Thomas Jefferson defeated the president, John Adams, in the presidential election, Adams feared the Jeffersonians' antipathy toward business and toward a strong national government. Adams thus rushed to pack the judiciary with loyal Federalists by appointing 59 "midnight judges" before he left office. All 59 judicial appointment letters had to be certified and delivered, but Adams's secretary of state was able to deliver only 42 of them by the time Jefferson took over as president. Jefferson refused to order his secretary of state, James Madison, to deliver the remaining commissions. Since the Marbury v. Madison decision, the power of judicial review has remained unchallenged and today is exercised by both federal and state courts.

Arbitration

the settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision that is (most often) legally binding. The person does not work for the government. Also parties can hire the arbitrator.