Management 3540 Exam 1 - George Brand

Pretrial motions

ask court to do something e.g. motions to extend court 30 days would be short, 1-3 pages

Federal Question Jurisdiction

case involves U.S. Constitution or other federal law

For federal diversity jurisdiction purposes, a corporation has _______ and can be sued in ____ jurisdictions

citizenship, two

Consent

consent to act negates "unwanted" action by would-be tortfeasor (the wrongdoer)

threshold requirements: Case/controversy

courts will not render "advisory opinions" on matters that will not directly affect the litigants

Court cases

create common law that binds courts within a jurisdiction

Plantiff

files suit against the defendant by serving copies of complaint and summons to appear in court

Subject Matter Jurisdiction

jurisdiction over the subject matter of the dispute

Amendment = "______ _______"

minor chance

Criminal case

only government can start (prosecute) a criminal case

Opening statements

purpose is to introduce the jury to the case and tell them what you will show and tell them, from plaintiff and defendant lawyers

Defense of property

reasonable force allowed to defend own property from imminent harm

Threshold requirements

requirements a Plaintiff must meet to bring case before any court 1. Standing 2. Case/controversy 3.Ripeness/Mootness

Stare decisis

to stand by things decided, means courts are generally bound to follow precedent within their jurisdiction

6th Amendment

•Right to jury trial in criminal trials

5th Amendment

"...nor shall private property be taken for public use, without just compensation." •Gives government authority to take private property if (1) intends to use it for "public use" and (2) provides property owner "just compensation"

10th Amendment

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." •Any powers which the Constitution does not give to the federal government are reserved to the states •When state governments create laws in areas where the federal government does not have power, this amendment is the source of the state's authority

For Federal diversity jurisdiction, a corporation can be sued in what 2 jurisdictions?

-state of incorporation -location of its principal place of business

Trial process

1. Jury selections, 2. opening statements, 3. Witness examinations and presentation of evidence, 4. closing arguments, 5. jury instructions, 6. jury deliberation, 7. verdict presented

Trespass to realty

1. intentionally enter land of another without permission 2. Cause object to be placed on land of another without landowners permission 3. Stay on land of another when the owner tells you to leave 4. Refuse to remove something placed on the land of another

How is personal jurisdiction determined?

1. location of service 2. defendants domicile -- in what state they permanently reside 3. location of company's principal place of business

Purpose of the law

1. providing order in society 2. create civil and humane opportunities for resolving disputes 3. encouraging social justice and morality of "right" and "wrong" in society 4. protecting and guaranteeing personal freedoms

Personal jurisdiction

1. required for a court to issue a ruling that binds the parties 2. jurisdiction over the parties involved, largely based on geography

Federal court system: US circuit court of appeal

12, mandatory appellate review

•Constitution has been amended _____ times = ______ amendments

27, 27

Federal court system: US district court

94, federal jurisdiction requires

Bill of Rights

Amendments 1-10

Pleadings: Defendant files an _______ with specific response to all parts of the complaint (affirm, deny or unsure)

Answer

Cross examination (defendant)

Ask witness who saw accident questions from defendant side Lawyers tries to dispute what was said in direct examination frame witness as a liar or unsure about what they saw

Amendments 1-10 known as "______ ___ ______" added Dec. 15, 1791

Bill of Rights

mediation

Can be court-ordered or chosen by parties Parties bring in Third party Neutral mediator to assist in negotiations Mediator usually has expertise and/or experience in subject matter Procedure can vary in practice Private caucuses, joint sessions, virtual mediation, etc. Mediator does not have power to resolve the case Entirely voluntary process of dispute resolution "mediator's proposal"

Federal diversity jurisdiction

Case has BOTH - Amount sought exceeds $75,000; and - Complete diversity of state citizenship between all plaintiffs and defendants

Arbitration: reasons for setting aside award

Corruption, fraud, bias Refusal to postpone or admit evidence resulting in extreme prejudice Award exceed scope of arbitrators authority

venue

Determines which trial court in a jurisdiction can hear the case •Judicial district where defendant is domiciled •Judicial district where substantial amount of events at issue took place •Convenient location for defendant •Need to select unbiased jury

positives of ADR

Faster and cheaper Provide for more creative results that lets parties stay in control of their conflict resolution Businesses can control claims against them and restrict publicly through confidentiality questions

__________ is ONLY required for the act, not required to intent the resulting harm

Intent

Primary drafters of constitution and location

James Madison, Alexander Hamilton, George Washington and other delegates at the Constitutional Convention in Independence Hall inPhiladelphia from May-Sept. 1787

"nerve center" test

Location of high-level officers who direct and control corporate activities e.g. location of company headquarters

Articles of Confederation ratified by the (13) states/effective as of _________________

March 1, 1781

U.S. Constitution superseded Articles of Confederationeffective as of

March 4, 1789

Most recent amendment (27th) ratified on _________________

May 7, 1992

types of pretrial motions

Motion for judgment on the pleadings Motion for summary judgment Motion to dismiss ("so what?")

Emily and Marcus are married and live together in Kansas City, Missouri. After years of saving, they finally had enough money to purchase a lake house in the Lake of the Ozarks for their family to enjoy. They worked together with a local realtor, Earl, who lives in Lake Ozark, Missouri. Earl helped Emily and Marcus tour prospective homes and answer questions about the Lake of the Ozarks. Specifically, Emily and Marcus wanted to be sure that they could rent out their lake house using Airbnb and not violate any local leasing ordinances. Earl assured them that the house they liked the best could also be used as a rental house, so the couple purchased it and figured they could earn roughly $100,000 per year in rental income. It turns out that Earl lied about this in order to ensure they bought the house because it was a house owned by a friend of Earl's who desperately needed to sell it. Can Emily and Marcus sue Earl for fraud in federal court for $100,000?

No, because there is not federal diversity jurisdiction

negotiation

Not a formal process Part of every dispute at some point Opportunity for parties to resolve conflict on their own via settlement agreement

Witness examinations and presentation of evidence

Plaintiff first; then defendant Direct examination (plaintiff) FIRST they Ask witness who saw accident questions from plaintiff side. THEN cross examination

pretrial process

Pleadings, pretrial motions, and discovery. pleadings first, rest in no particular order

Articles 1-3 = "_________ __ ________" within three branches of federal government

Separation of powers

Concurrent jurisdiction

The case could be filed in either state or federal court if filed in one, may be removed or remanded to the other

Arbitration

Third party arbitrator or panel has judge-like authority to issue final decision Arbitrator usually has subject matter knowledge or expertise Process similar to trial; steps culminating in arbitration hearing akin to actual trial although procedural and evidentiary rules can vary Arbitrator issues award that is very hard to overturn in court

T or F: Personal jurisdiction can often have personal jurisdiction in multiple different judicial districts

True

Consittution

US constitution is supreme law of the land, but states have them too

motion for summary judgement

Usually coupled w motion to dismiss Summary judgment used if the dispute has be resolved, the dispute is impractical, dispute is lawful

Fraudulent misrepresentation/fraud

1. Statement made or information concealed 2. Tortfeasor (wrongdoer) knew information was false and suspected victim would believe them 3. Victim actually relied on information 4. Victim harmed by reliance on false statement

Libel

A written defamation of a person's character, reputation, business, or property rights.

pleadings

Complaint + summons = service of process

Expert witnesses (if included)

E.g. Does this product cause cancer? Bring in a chemist or scientist to attest to the fact that the product causes cancer Usually plaintiff and defendant have one

Constitution reflects _______ ____ Original Constitution had seven articles written on ______

English influence, four

statutes

Federal, state, and local legislatures create written laws

_____-____ statutes extend personal jurisdiction based on "________ ________" stand

Long-arm, minimum contacts. e.g., committing a tort, breaching a contract, or doing business in the jurisdiction

Articles of Confederation approved by SecondContinental Congress on ______________________

November 15, 1777

In defense against defamation, public figures must prove "_______ _________"

actual malice

discovery

all parties share/learn more relevant information about the allegations of the lawsuit in order to prepare for trial

Standard of proof criminal cases

beyond a reasonable doubt (99% certain)

closing argument

both sides summarize what they have presented during trial One last plea from lawyers to prove their case to the jury one last time

Business often force arbitration by _________ : lose use of courts

contract

The answer can contain affirmative defenses (yes.. but) or ____________ or __________

counterclaim(s), crossclaim(s)

What court can a case be filed?

court that has 1. personal jurisdiction 2. Subject matter jurisdiction 3. venue

Answer

determines dispute, whether or not it happened

State court system: supreme court (court of last resort)

discretionary review from lower courts reviews both lower court proceedings

Federalism

division of power between federal, state, and localities

article 2

establishes executive branch consisting of a president, vice president, and other leaders

article 3

establishes judicial branch consisting of U.S. Supreme Court and other lower federal courts

Article 1

establishes legislative branch consisting of a bicameral Congress (Senate and House of Reps)

article 7

establishes procedure used by states to ratify the original Constitution

Article 4

establishes process for amending the Constitution

article 5

establishes process for amending the Constitution

article 6

establishes the Constitution and all federal law to be the supreme law of the land

Commerce Clause: Wickard v. Filburn (1942)

farmer growing more wheat than was permitted could not escape fine because his surplus could affect interstate commerce by lowering his need to purchase wheat...snowball effect!

administrative law

federal and state agencies regulate specific industries

articles 4-6 = "___________" relationship between federal and state goverments

federalism

Sources of law

federalism, constitution, statutes, administrative law

Relief available for criminal cases

financial damages, incarceration

Relief available for civil cases

financial damages, restitution, equitable relief, declaratory remedy

With assault, Words alone are _________ unless accompanied by actions suggesting imminent harm

insufficient

battery

intentional and unwanted offensive or harmful bodily contact Judged by the tortfeasor's (wrongdoers) perspective

intentional/tortious interference with contract

intentional interference with contract or business relationship of another party

Defamation

intentional publication (or communication to a third party) of a false statement that is harmful to an individual's reputation

Verdict presented

judge reads jury verdict in court; trial over

Jury instructions

judge tells jury what they need to decide E.g. did this product cause its users cancer

Threshold requirements: ripeness/mootness

judge's decision must have the capacity to affect the parties immediately

in court ______ or _____ determine outcome if parties cannot otherwise resolve the dispute

judge, jury

venue can be specified by forum selection and/or choice of ____ ______

law clauses

Disparagement

like defamation, but damage is to a property interest (or economic interest) as opposed to an individual's reputation

Tort reform initiatives often attempt to _______ punitive/non-economic damages available

limit

federal courts are _____ subject matter jurisdiction, cases must show they belong

limited

Economic damages

lost wages, lost earning capacity, medical expenses etc.

__________ courts must follow precedent created by _________ courts within their jurisdiction

lower, higher

State court system: intermediate appellate courts

mandatory appeals from lower courts no trial or juries determines law, reviews lower court proceedings

Alternative dispute resolution (ADR)

methods of resolving a dispute rather than using a court for litigation, 3 types: negotiation, mediation, arbitration

Nominal damages

minimal amount of money that signifies a tort occurred but no real harm to compensate

Compensatory Damages

money damages to compensate victim for harm suffered (including future harm) goal: put plaintiff in position he/she would have been in has tort not occurred

Can often have venue in ________ judicial districts and venue can sometimes change during a case

multiple

Federal court system: US supreme court

only 1, discretionary review

Self-defense

only allowed when battery is imminent or has already happened Only allowed to use COMPARATIVE force used or reasonably threatened by opposition

State court system: trial courts

original (mostly) unlimited jurisdiction bench trial or jury trial determines facts

Non-economic damages

pain and suffering, mental anguish, loss of capacity to enjoy life, loss of consortium, etc.

Court

part of the judicial system purpose: dispute resolution between 2 parties

Conversion

permanently removed personal property form the owners control

Assualt

placing another person in fear or apprehension of imminent and offensive bodily contact -judged by victims' perspective

Standard of proof civil cases

preponderance of the evidence (>50% certain)

jury deliberation

private, secret, unlimited time, must be unanimous or else "hung jury" Might take 15-20 min, might take 5 days Will not end until all members agree Hung jury: jury can't decide unanimously, have to perform new trial w new jury

purpose of tort

provide compensation for injured parties, discourage private retribution by injured parties

amendment 8

provides gov will not set bail at excessive levels prohibits government imposition of excessive fines prohibits cruel and unusual punishment

amendment 9

provides that although the bill of rights names certain rights, such naming does not remove other rights retained by citizens

jury selections, "voir dire"

purpose is to establish an unbiased jury Candidate can be stricken "for cause" or by using :peremptory challenge" for any unspecified reason other than sex, race, religion, can be questioned by judge

summons

service of process, informing defendant of lawsuit

punitive damage

special damages sometimes available and awarded meant to punish defendant for egregious conduct and deter future conduct

civil case

started by private parties

Actual malice

statement made was known to be false or made with reckless disregard for its veracity

Trespass to personal property

temporarily exercising control over another person's personal property

Defenses against defamation

the TRUTH Privilege: required to give honest opinion (testimony, employee, references, etc)

Slander

the action or crime of making a false spoken statement damaging to a person's reputation.

Threshold requirements: standing

the outcome of the case must personally affect the plaintiffs 1.injury in fact that is concrete and actual or imminent 2.injury must be fairly traceable to the challenged action of the defendant 3.likely that injury can be redressed by decision in favor of the plaintiff

Defense of others

third parties can step in to defend another. Still limited to force based on what is used/reasonably threatened by opposition

Checks and balances: executive branch

to judicial branch: Appoints federal judges, Can pardon federal offenders to legislative branch: can veto laws passed by legislative branch, can call special sessions of congress

Checks and balance: judicial branch

to legislative branch: Can declare laws or executive actions unconstitutional to executive branch: can declare acts of executive branch unconstitutional

T or F: same activity can result in both civil and criminal cases

true, e.g. fraud can be policed by the government and by private parties

States have ______ subject matter jurisdiction, most cases can be filed here

unlimited

Depositions

verbal examination under oath to gather sworn testimony from key witnesses court reporter and videographer often present can be used at trial for various purposes Like a trial but not a trial bc not in courtroom usually in conference room, can be anywhere Can last 8 hours, usually does

Commerce clause: NLRB v. Jones & Laughlin Steel Corp. (1937)

work stoppage at manufacturing plant affects interstate commerce

Request for admission facts

written and must be answered in written response under oath, 30 days to answer, if you don't answer court will deem them all as true not asking questions asking to admit smth Responses are yes or no e.g. admit you we not wearing your seatbelt

interrogatories

written questions answered in written reply under oath many questions ( usually 30 ) Responses in sentences e.g. were you wearing your seatbelt?

requests to produce documents

written requesting to share documents; privileges may be asserted Request to see all evidence that will be brought up in trial e.g. documents to prove whether or not your wearing a seatbelt

intentional tort

wrongdoer ("tortfeasor") intended and consequences OR knew the likely consequence of his/her actions - requires intent behind the act that happened

Commerce clause

•Congress has power to regulate any activity that may have an affect on interstate commerce •This doctrine has been aggressively expanded and provides authority for majority of Congress' actions

Checks and balances: legislative branch

•Controls structure of lower courts •Drafts legislation that can overrule judicial rulings - to judicial branch: can pass amendments to overrule judicial rulings, can impeach judges, establishes lower courts and sets number of judges -to executive branch: can refuse to approve presidents budget, can overrule presidential vetoes, can refuse to approve presidential appointments, can refuse to ratify treaties, can impeach and remove president

Supremacy clause

•Federal law is the supreme law of the land •Any state or local law that conflicts with any federal law is void ("preempted")• Concurrent authority possible •States can further regulate and set higher standards than federal law •Federal law can use field preemption to prevent states from regulating the same subject matter area

7th Amendment

•Grants all citizens a right to trial by jury in civil lawsuits where the remedy being sought is payment of money for more than $20

To regulate commercial advertising (speech) gov't must show

•Legitimate and substantial governmental interest served by regulation •Regulation must directly advance that government interest •Regulation must not be more extensive than necessary to serve the government interest

Judicial review

•Not explicitly stated anywhere in the Constitution (or amendments) •Created via common law by Marbury v. Madison (1803) •Doctrine that gives courts in the judicial branch the power to review legislative and executive action and strike down unconstitutional action •Also allows higher federal courts to review constitutionality of lower federal courts' decisions

1st amendment

•Political speech is given the highest degree of protection; hard for government to restrict political speech •Commercial speech considered "low value" speech so government has more power to regulate its content •Does not protect "low value" speech such as defamatory or obscene speech

Privileges and immunities clause

•Prohibits states from discriminating against citizens of other states in ordinary and essential activities (e.g. buying/selling property, seeking employment, using court system) -Substantial reason for discrimination or unordinary/nonessential activity is not covered (e.g. out of state tuition, hunting licenses

Taxing and Spending authority

•Taxing: Congress can impose taxes as long as they are applied uniformly among the states •Spending: Congress can spend federal money to pay debts, military expenses, and for "general welfare"

Tort

Wrongful act (other than breach of contract) that causes harm