Legal Environment of Business- Chapter 3

Jury Selection

-6th and 7th Amendments give rights to a jury in certain cases -if no use of jury, judge becomes trier of fact -selection of jury involves voir dire (process determining whether members would be biased)

Basic Trial Procedures- Appellate Stage

-Arguments before the court: written briefs, oral arguments focusing on the law, not the facts in the case -Decisions by the court: majority opinion, concurring opinions, dissenting opinions -Outcomes of decisions: affirmed, modified, reversed, remanded -appellate court's decision is called majority opinion -remanding the case means to return the case to the trial court for retrail

Arbitration

-Most widely recognized forms of ADR (?) -Usually results are faster in resolution matters -3rd neutral party or panel (usually expert) -Arbitrator's decision is binding -Decision is final and matter cannot usually be litigated further or appealed -Usual rule: no right to go to trial, parties must give up this right

Remedies in Civil Litigation

-Remedies -Monetary vs. Equity -Monetary--> Compensatory vs. Punitive vs. Nominal -Equity--> Specific Performance vs. Injunction

Mediation

-Some states have no requirements of law

Basic Trial Procedures- Pretrial Stage

-Summary Judgment: either party may request, judge renders -Pretrial Conference: either party or court may request, attorneys and judge attend, simplify issues, plan course of trial, judges encourage parties to reach out-of-court settlement, helps to focus on key issues

The Judicial System

-The court system is adversarial in nature -the Court applies rules to facts presented -trials are often costly and uncertain -parties have a responsibility to bring a lawsuit, shape issue and present evidence -complex facts, extensive evidence and mountains of business records -lawyers present parties' claim -judges do not investigate -juries tend to be less sympathetic to businesses

writ of execution

-a court order to an official, such as a sheriff, to seize the property of the defendant to satisfy the judgment

motion to dismiss for failure to state a claim/ demurrer

-an assertion that even if the facts asserted are true, the injury claimed by the plaintiff is one for which the law furnishes no remedy

motion to dismiss

-by the defendant -asks the court to dismiss the case because it does not have jurisdiction over either the subject matter of the dispute or the defendant's person

alternate dispute resolution

-consists of various ways to resolve disputes outside of the court system -use is widespread

garnishment

-courts may order ____ of a debtor's property, which usually involves an order to a third party who owes the debtor's property

error of law

-decision in a case may be appealed if one of the parties believes an error of the law was made during the trial -mistakes about substantive law or procedural and evidentiary matters

judgment

-decision of the court -may be a monetary award, declaration of the rights between the parties, or an order prohibiting some activity

affirmative defense

-defendant admits to the facts claimed by the plaintiff but offers additional facts he asserts constitute a defense (legal excuse)

counterclaim

-defendant's own claim against the plaintiff -may be based on the same events that the plaintiff bases the complaint on -plaintiffs answer is called a reply

res judicata

-doctrine that says the final judgment on the merits of a case by a court prevents an issue from being relitigated -applies to arbitration awards -a thing decided by judgment

mediation

-form of ADR where the mediator (third party) is used to help the parties try to reach a solution by coming to an acceptable agreement -cannot impose a decision by can only help resolve

Basic Trial Procedures- Pleading Stage

-formal statements made to court by parties -jurisdiction needed -complaint -responses to complaint

service of process

-how the plaintiff gives notice to the defendant

answer

-if motion to dismiss is denied or not filed, the defendant must file an answer -a pleading where the defendant responds to the allegations made by the plaintiff (admit, deny, or say that it does not know the truth)

Basic Trial Procedures- Enforcement Stage

-if no further appeal is available judgment becomes final, res judicata

negotiation

-least formal form of ADR -almost voluntary and has no mandatory procedure, can be legal consequences for lying -parties decide to settle a matter between themselves

arbitration

-most widely recognized form of ADR (alternate dispute resolution) -usually results are faster in resolution of matters -3rd neutral party or panel (usually expert) is arbitrator or arbiter, often attorneys, must be impartial -mutual agreement on arbitrator or selection method

Basic Trial Procedures- Trial Stage

-opening statements made by attorneys -presentation of Direct Testimony (direct examination, cross examination, redirect, recross) -closing arguments -instructions to jury or charges -verdict by jury -motions for a verdict

Basic Trial Procedures- Discovery Stage

-parties use various legal tools to obtain evidence from each other and outsiders about the dispute -Rules of Civil Procedure set guidelines and limits -Depositions of parties and witnesses, experts -Interrogatories of the parties -Purposes: prevents trial by ambush by giving parties access to each other's information, preserves evidence of witnesses who may not be available during trial or those whose memory may fade, encourages pretrial settlements

interrogatories

-questions submitted by a party to a case to to the other party,witness, or another person with relevant info -party prepares written answers, usually with aid of attorney

award

-the decision that the arbitrator reaches -usually given within 30 days in writing -based on application of law to the evidence presented -decides what parties owe to each other plus fees

complaint

-the first pleading -the plaintiff must state the basis of the court's subject-matter jurisdiction and jurisdiction over the parties to the dispute

deposition

-the sworn, in-person testimony of a witness recorded by a court reporter -could be an eyewitness or an expert witness -could be questioned by both sides, recorded

adversary system of justice

judicial system that requires parties to represent themselves, usually through their lawyers, and to argue their positions before a neutral court