Chapter 3: Courts and Alternative Dispute Resolution

diversity of citizenship:

a basis for federal court jurisdiction over a lawsuit between citizens of different states or a lawsuit involving a U.S. citizen and a citizen of a different country

counterclaim:

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

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

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

summons:

a document informing a defendant that a legal action has been commenced against her or him and the defendant must appear in court on a certain date to answer the plaintiff's complaint

Bankruptcy courts:

a federal court of limited jurisdiction that handles ONLY bankruptcy proceedings, which 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

discovery:

a method by which the opposing parties obtain information from each other to prepare for trial

summary jury trial (SJT):

a method of settling disputes by holding a trial in which the jury's verdict is not binding but instead guides the parties toward reaching an agreement during the mandatory negotiations that immediately follow

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

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 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 a directed verdict:

a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party making the motion on the ground that the other party has not produced sufficient evidence to support her or his claim

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.

motion for judgment n.o.v:

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

motion to dismiss:

a pleading in which a defendant admits the facts as alleged by the plaintiff but asserts that the plaintiff's claim to state a cause of action has no basis in law

negotiation:

a process in which parties attempt to settle their dispute informally, with or without attorneys to represent them

federal question:

a question that pertains to the U.S. Constitution, an act of Congress, or a treaty and provides a basis for federal jurisdiction in a case (this means that whenever a plaintiff's cause of action is based on a document above, the federal courts have jurisdiction)

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 by a party fo a lawsuit, usually with the assistance of the party's attorney, and then signed under oath

small claims courts:

a special court in which parties can litigate small claims without an attorney -inferior trial courts that hear only civil cases involving claims of less than a certain amount, such as $5,000 (the amount varies from state to state) Ex: municipal court -- mainly traffic cases

Probate courts:

a state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate re: transfer of a person's assets, obligations after that person's death, and matters including custody and guardianship of children

long arm statute:

a state statute that permits a state to exercise jurisdiction over nonresident defendants -a court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state

E-Evidence:

a type of evidence that consists of computer-generated or electronically recorded information (e-mail, voice mail, tweets, blogs, social media posts)

writ of certiorari:

a writ from a higher court asking a lower court for the record of a case

brief:

a written summary or statement prepared by one side in a lawsuit to explain its case to the judge -a formal legal document outlining the facts and issues of the case, the judge's rulings or jury's findings, the applicable law

Appellate courts normally have discretionary power and can ________________ or __________________ an appeal.

accept; reject

Voire Dire:

an important part of the jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes, and biases to ascertain whether they can be impartial jurors

Courts having _____________ jurisdiction act as reviewing courts, or ____________ courts.

appellate

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 the file on their hard drives. Can be described as data about data.

Venue in a civil case typically is where the ____________ resides, whereas venue in a criminal case normally is where _________ __________ ___________.

defendant; the crime occured

The most common type of diversity jurisdiction requires both of the following:

1. the plaintiff and defendant must be residents of different states 2. the dollar amount in controversy must exceed $75,000

A court's subject-matter jurisdiction can be limited by any of the following:

1. the subject of the lawsuit 2. the sum in the controversy 3. whether the case involves a felony (a more serious type of crime) or a misdemeanor (a less serious type of crime) 4. whether the proceeding is a trial or an appeal

Today, more than _____ percent of cases are settled before trial through some form of ADR.

90

U.S. district courts have _____________ jurisdiction in federal matters.

original

answer:

procedurally, a defendant's response to the plaintiff's complaint

reply:

procedurally, a plaintiff's response to a defendant's answer

A court can also exercise jurisdiction over property that is located within its boundaries. It is known as _________________, or "jurisdiction over the thing."

rem jurisdiction

appellate court (question of fact or law?)

review decisions of trial court/questions of LAW

At the federal level, the ______ ____________ __________ enforces arbitration clauses in contracts involving maritime activity and interstate commerce.

Federal Arbitration Act (FAA)

Generally, courts of appeals do not conduct new trials, in which evidence is submitted and witnesses are examined. Rather, an appellate court panel of three or more judges ________ the record of the case on appeal, which includes a transcript of the trial proceedings, and determines whether the trial court committed an error.

reviews

The courts have developed a standard -- called a ________ __________ standard -- for determining when the exercise of jurisdiction over an out-of-state defendant is proper.

sliding scale

pleadings:

statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case

jurisdiction:

the authority of a court to hear and decide a specific case

service of process:

the delivery of the complaint and summons to a defendant

venue:

the geographic district in which a legal action is tried and from which the jury is selected

standing to sue:

the legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit

docket:

the list of cases entered on a court's calendar and thus scheduled to be heard by the court

award:

the monetary compensation given to a party at the end of a trial or other proceeding

complaint:

the pleading made by a plaintiff alleging wrongdoing on the part of the defendant. When filed with a court, the complaint initiates a lawsuit.

judicial review:

the process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch -acts as a check on the other two branches of government (checks-and-balances)

litigation:

the process of resolving a dispute through the court system

alternative dispute resolution (ADR):

the resolution of disputes in ways other than those involved in the traditional judicial process, such as negotiation, mediation, and arbitration

online dispute resolution (ODR):

the resolution of disputes with the assistance of organizations that offer dispute-resolution services via the Internet (may best be suited for resolving small to medium sized business liability claims)

arbitration:

the settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision

deposition:

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

The sliding-scale standard identifies three types of Internet business contacts and outlines the following rules for jurisdiction:

1. When the defendant conducts substantial business over the Internet (such as contracts and sales), jurisdiction is proper. 2. When there is some interactivity through a Web site, jurisdiction may be proper, depending on the circumstances. 3. When a defendant merely engages in passive advertising on the Web, jurisdiction is never proper.

The complaint contains statements alleging:

1) The facts necessary for the court to take jurisdiction. 2) A brief summary of the facts necessary to show that the plaintiff is entitled to relief (a remedy). 3) A statement of the remedy the plaintiff is seeking.

The federal court system is basically a three-tiered model consisting of:

1) U.S. district courts (trial courts of general jurisdiction) and various courts of limited jurisdiction 2) U.S. courts of appeals (intermediate courts of appeals) 3. the United States Supreme Court

After reviewing a case, an appellate court has the following options:

1. The court can AFFIRM the trial court's decision. 2. The court can REVERSE the trial court's judgment if it concludes that the trial court erred or that the jury did not receive proper instructions. 3. The appellate court can REMAND (send back) the case to the trial court for further proceedings consistent with its opinion on the matter. 4. The court might also affirm or reverse a decision in PART. 5. An appellate court can also MODIFY a lower court's decision.

A major provider of ADR services is the ______________________.

American Arbitration Association (AAA)

Generally, this means that the defendant must have enough of a connection to the state for the judge to conclude that is _________ for the state to exercise power over the defendant.

fair

Trial courts are courts in which trials are held and testimony taken. State trial courts have either __________ or ____________ jurisdiction.

general; limited

trial courts (question of fact or law?)

hear evidence/question of FACT

Typically, the Court grants petitions when cases raise _______________ __________ ________________ or when the lower courts are issuing ______________ decisions on a significant issue.

important constitutional questions; conflicting

question of law:

in a lawsuit, an issue involving the application or interpretation of a law

question of fact:

in a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point

Before any court can hear a case, it must have _________________ over the person or company against whom the suit is brought (the defendant) or over the property involved in the suit.

jurisdiction

exclusive jurisdiction:

jurisdiction that exists when a case can be heard only in a particular court or type of court

concurrent jurisdiction:

jurisdiction that exists when two different courts have the power to hear a case

Because corporations are considered ___________ _____________, courts use the same principles to determine whether it is fair to exercise jurisdiction over a corporation.

legal persons

Usually, the parties in arbitration agree that the third party's decision will be ___________ ___________, although the parties can also agree to _______________ ______________ arbitration. In nonbinding arbitration, the parties can go forward with a lawsuit if they do not agree with the arbitrator's decision.

legally binding; nonbinding

A party must have ___________ grounds to file an appeal. In other words, he or she must be able to claim that the lower court committed an ____________.

legitimate; error

Courts apply the ____________ ___________ test to determine if they can exercise jurisdiction over out-of-state corporations.

minimum-contacts -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.

Courts having original jurisdiction are courts of the first instance, or _________ _________ --- that is, courts in which lawsuits begin, trials take place, and evidence is presented.

trial courts ORIGINAL JURISDICTION = TRIAL COURT

arbitrability:

when one party files a lawsuit to compel arbitration, it is up to the court to resolve the issue; that is, the court must decide whether the matter is one that must be resolved through arbitration

To bring a case before the Supreme Court, a party requests that the Court issue a ______________________.

writ of certiorari