BLAW CH 3

There must be federal law involved in order for a case to be heard in federal court.

False

Cyber Filing

Federal Rules of Civil Procedure permits lawyers to file court documents electronically. Under Rule (5) the courts can even go so far as to require that documents be filed electronically, as long as the court also accepts reasonable exceptions from those unable to comply with the new provision.

Verdict

finding of fact; may be limited to the question of liability, or it can be extended to include the issue of damages

Complaint

sets forth the names of the parties to the lawsuit, identifying them as plaintiff's or defendants. Includes: -addresses of all parties -the facts in the case from the plaintiff's perspective -the alleged legal violations by the defendant -the injuries that the plaintiff suffered -the plaintiff's request for relief

Courts with the widest and most varied right to hear cases are said to have special jurisdiction.

False

Discovery is the process used to arrive at their verdict.

False

State Supreme Courts

27 states rely on their supreme court as their appellate court. These states have no intermediate appellate courts. Consist of a panel of three to nine judges. The decisions are final unless a federal issue or a constitutional right is involved.

Demurrer

A motion for dismissal of a case on the grounds that a plaintiff has failed to state a claim for which relief can be granted.

Writ of Certiorari

An order from the Supreme Court to lower court to deliver its records to the US Supreme Court for review. A case will reach the US supreme court only if the court agrees to to issue a writ of certiorari. Will issue if several lower courts have dealt with an issue but cannot agree on how it should be handled.

Courts that have power to review a case for errors of law are courts of _____ jurisdiction.

Appellate

Criminal Procedure Steps

Arrest and initial appearance; preliminary hearing; formal charges; arraignment; trial

The Federal Court System

Authorized by Article III of the US Constitution States: "The Judicial Power of the United States shall be vested in one supreme court, and in such inferior courts as Congress may from time to time ordain and establish."

Cyber-jurisdiction (a/k/a electronic jurisdiction or e-jurisdiction) in court cases is determined by:

Case-by-case analysis

Federal Question

Could involve the US Constitution, a federal stature, or statures, or a treaty. A state law issue can be included in a suit involving a federal question if the state claim is part of the same situation that created the federal question. Federal law now permits lawsuits in the federal courts against a foreign state when that state supports terrorism. The lawsuit must involve a request for damages arising from terrorist acts related to that support and as those acts are defined by law.

Explain the fundamental nature of the American courts.

Courts are authorized by either the federal or state constitutions and generally established by legislative authority. Each of these official bodies is a forum for the party who presents a complaint, the party who responds to the complaint, and the jury and/or judge who settles the dispute.

General Jurisdiction

Courts with the power to hear any type of case.

Special Jurisdiction

Courts with the power to hear only certain types of cases. Ex.: Probate courts and courts of claims

Abuse of Discretion

Determination that the judge in the lower court has misused his or her authority

The US Supreme Court

Est. by the Constitution The court of final jurisdiction in all cases appealed from the lower federal courts and in cases coming from state supreme courts. Composed of a chief justice and eight associate justices appointed by the president with the consent of the Senate and hold office during good behavior.

State Trial Courts

Have the power to hear any type of case Superior courts, circuit courts, or courts of common please organized usually around the counties of the state; each county has its own trial court of general jurisdiction.

Diversity Cases

Inclue lawsuits that are between citizens of different states, between citizens of a state or different states and citizens of a foreign nation, and between citizens of a state and a foreign government as the plaintiff. Must involve over $75,000

US Courts of Appeals

Judges must be guided by the standard of review that is appropriate to each case. The standard of review tells the appellate level judges the degree to which they must remain faithful to the decision of the lower court judge. Hear appeals from the district courts, the US Tax Court, and from many of the administrative agencies There are 13 US courts of appeals within the federal court system. Eleven of these appellate courts cover geographical groupings of states. The thirteenth appellate court has special jurisdiction over certain types of cases. Known as the US Court of Appeals for the Federal Circuit.

Municipal Court

May be only able to hear cases that involve municipal ordinances, criminal cases involving crimes within the city limits, and other cases that involve monetary claims of less that $10,000.

Federal District Courts

Most federal cases begin in the federal district court. Have subject matter jurisdiction over cases that pertain to a federal question

Plenary Review

Most of the time with appellate jurisdiction will be empowered to determine whether the lower courts have made errors of law.

Appellate Jurisdiction

Power of a court to review a case for errors.

From first to last, in which order do the following occur during a criminal trial?

Preliminary hearing, arraignment, verdict, judgment

Motion

Request for the court to rule on a particular issue

Pretrial Motions

Several motions are filed during this stage; Summary Judgement motion is available at this time

Service of Process

The act of giving the summons and the complaint to a defendant. Once the defendant has been served, he or she has 20 to 30 days to file an answer.

A demurrer asks a court to dismiss a case because:

The complain failed to state a claim for which relief can be granted

Personal Jurisdiction

The court's authority over the parties to a lawsuit.

Clearly Erroneous Standard

The determination that the decision made in the lower court was undeniably wrong, given the facts and evidence in the case.

Criminal Prosecution

The first step is to gather evidence of the crime and identify all possible suspects. When the law enforcement agency is convince that it has ample evidence of both the crime and the identity of the suspect, an arrest warrant is issued, and the suspect is arrested.

June is found guilty of larceny by a jury. Who will sentence June?

The judge

Jury Instructions

The judge explains the law to the jury; explain the rules of law that the jurors are to apply to the facts in reaching their decision

Removal

The process of moving a case from a state court to a US District Court. A defendant must have proper grounds for that removal. A defense must show that the case actually belonged in the federal court in the first case.

The Federal Circuit

The thirteenth appellate court. Established by Congress primarily to streamline and unify patent law. Given the power to hear appeals in cases appeals in cases that entail government contracts, trademark disputes, federal workers, veterans' benefits, and international trade, among others. More than one-third of the appeals that end up in the Federal Circuit are patent cases that come either from the US district courts or the US Patent and Trademark Office.

State Intermediate Appellate Courts

To hear appeals on questions of law from the lower courts Usually heard by a three-judge panel Examines the records of the lower court, reads the written arguments submitted by the attorneys, studies the law on its own, and listens to the oral arguments of the attorneys.

Federal courts, in diversity cases, must use state substantive law to decide cases.

True

Usually state appellate courts consist of three judge panels.

True

Applicable Law

When a federal court hears a case involving only federal law or the US Constitution, it must follower federal law, the Constitution, and/or any line of federal precedent that can be used to interpret the situation.

Interrogatories

Written questions that must be answered in writing under oath by the opposite party; cannot be given to witnesses, only to plaintiff and defendant

Third Party Complaint

a complaint filed by the defendant against a third party not yet named in the lawsuit.

Preliminary Hearing

a court procedure during which the judge decides whether probable cause exists to continue holding the defendant for the crime.

Arraignment

a formal court proceeding, during which the defendant, after hearing the indictment or information read, pleads either guilty or not guilty

Class Action

a lawsuit in which one (or a small number) of potential plaintiffs file a lawsuit on behalf of the entire class. The courts will permit a class action lawsuit provided that: 1. it is not feasible for the members of the group to bring the action on their own 2. the members of the group share common questions of law that can be tried together 3. the class action approach is far better than forcing the plaintiffs to file separate actions

Summary Judgment Motion

a motion that asks the court for an immediate judgement for the party filing the motion; is filed when there is no genuine issue as to any material fact, and the party filing the motion is entitled by law to a favorable judgment; cannot be filed without supporting legal arguments written out in a brief and accompanied by applicable supporting evidence.

Affirmative Defense

a set of circumstances that indicate that the defendant should not be held liable, even if the plaintiff proves all of the facts in the complaint.

An Indictment

a set of formal charges against a defendant issued by a grand jury

An Information

a set of formal charges against the defendant drawn up and issued by the prosecutor or district attorney

Opening Statements

an attorney presents the facts in the case and explains what he or she intends to show during the trial

Prosecutor

an attorney that represents the government; could also be called a district attorney

Requests for Real Evidence

ask a party to produce documents, records, accounts, correspondence, photographs, or other tangible evidence

Requests for Physical or Mental Examination

ask a party to undergo a physical or a mental examination

Original Jurisdiction

authority to hear a case when it is first brought to court

Counter Claim

claim the defendant has against the plaintiff

Direct Examination

designed to present the facts that will support the plaintiff's/defendant's version of those facts

Minimum Contacts

identifies the fewest number of contacts needed to allow the court to exercise jurisdiction over the out of state defendant.

Writ of Execution

if the judgement is not paid, the court will order the loser's property to be sold by the sheriff to satisfy the judgment

cross-claim

is a claim filed by a defendant against another defendant in the same case

Courts

judicial tribunals that meet in a regular place and apply the law in an attempt to settle disputes by weighing the arguments presented by advocates for each party.

Requests for Admissions

made to secure a statement from a party that a particular fact is true or that a document or set of documents is genuine; eliminates the need to demonstrate the truthfulness of the fact or the genuineness of the documents at trial.

Formal Charges

may be brought either by indictment or by information

Forum Shopping

occurs when a plaintiff searches for a jurisdiction with law that is favorable to its case, and then files the case in that jurisdiction.

Civil litigation/lawsuit

one individual, organization, or corporation brings an action against another individual, organization, or corporation. Objective is usually to obtain money to compensate the victim. Process of bringing a case to court to enforce a right.

Case in Chief

opportunity to present evidence that will prove his or her version of the case to the jury

Deposition

oral statements made out of court under oath by witnesses or parties to the action in response to questions from the opposing attorneys.

The Three Standards of Review

plenary, clearly erroneous, and abuse of discretion.

Jury Selection

question prospective jurors to determine whether they will be allowed to sit on the jury

Damages

refers to the money recovered by the plaintiff for the injury or loss caused by the defendant

Equitable Remedy

requires a party to do something or to refrain from doing something beyond the payment of money

Injunction

stops a party from doing something

Closing Statements

the attorneys emphasize aspects of the testimony and other evidence they believe will best persuade the judge or jury

Jurisdiction

the authority of a court to hear and decide cases. Set by law and limited as to territory and type of case.

Subject Matter Jurisdiction

the court's power to hear a particular type of case.

Liability

the defendant is held legally responsible for his or her actions

The Pre-Answer Stage

the defendant will take some time to examine the nature of the claim that has been filed t=by the plaintiff. this happens after an extension has been filed. defendant may decide to file one or more pre answer motions

Answer

the defendant's official response to the complaint; admits or denies the allegations

Cross-Appeal

the party that prevailed at trial may wish to file an appeal

Defendant

the person against who the lawsuit has been brought and from who a recovery is sought.

Plaintiff

the person who begins the lawsuit by filing a complaint in the appropriate trial court of general jurisdiction.

Cyber-Jurisdiction (electronic jurisdiction, e-jurisdiction)

the power of the court to hear a case based on Internet-related transactions.

Discovery

the process by which the parties to a civil action search for information that is relevant to the case; objective is to simplify the issues and avoid unnecessary arguments and surprises in the subsequent trial.

Appeal

the referral of a case to a higher court for review; to be successful it must show some legal error occurred

Cross Examination

the witnesses answer questions of the defense attorney

Data Compilations

to deal with data stored in or produced by computers; used to cover all such evidence, whether produced by hand or by the computer. This short cut no longer works

Pretrial Conference

to discuss the possibility of settling the case without the need for a trial and to decide on the details involved in bringing the case to trial

Voir dire

to speak the truth

Electronically Stored Information (ESI)

what the Federal Rules refer to cyber-evidence; computerized evidence

Pretrial Stage

where after the parties have answered they must wait for the trial.

Specific Performance

would require a party to a contract to go through with the terms of the contract; usually only permitted in cases involving real estate or unique one of a kind goods