Chapter 3 Business and Law I
What is Litigation
The process of bringing, maintaining, and defending a lawsuit is called
Remember that Becuase of the issues with Judicial Disputes: We now have nonjudicial dispute regulation
have developed in response to the expense and difficulty of bringing a lawsuit. These methods, collectively called alternative dispute resolution, are being used more and more often to resolve contract and commercial disputes.
In a civil case, the judge may reduce the amount of monetary damages awarded by the jury
if he or she finds the jury to have been biased, emotional, or inflamed. This is called remittitur.
A class may be certified if
if the legal and factual claims of all the parties are common, it is impracticable for individual claimants to bring multiple lawsuits against the defendant, the claims and defenses are typical for the plaintiffs and the defendant, and the representative parties will adequately protect the interests of the class.
A class will not be certified
if there is not sufficient commonality among the plaintiffs' claims or if the court otherwise finds that a class action is not suitable to the facts of the case.
To initiate a lawsuit
, the party who is suing must file a complaint in the proper court. The complaint names the parties to the lawsuit, alleges the ultimate facts and law violated, and contains a "prayer for relief" (for a remedy to be awarded by the court).
If no settlement is reached
, the pretrial hearing is used to identify the major trial issues and other relevant factors
The stages of Pleadings:
1.Complaint 2.Answer 3.Cross Complaint 4.Reply
The stages of Pretrial Litigation
1.Pleadings 2.Discovery 3.Pretrial Motions 4.Settlement Conference
When does the Statue of Limitations begin
A BLANK to "run" at the time the plaintiff first has the right to sue the defendant (e.g., when the accident happens or when the breach of contract occurs).
Intervention
A bank that has made a secured loan on a piece of real estate can intervene in a lawsuit between parties who are litigating ownership of the property.
What is the cross complaint and reply?
A defendant who believes that he or she has been injured by the plaintiff can file a cross-complaint against the plaintiff in addition to an answer. In the cross-complaint, the defendant (now the cross-complainant) sues the plaintiff (now the cross-defendant) for damages or some other remedy. The original plaintiff must file a reply (answer) to the cross-complaint. The reply, which can include affirmative defenses, must be filed with the court and served on the original defendant.
What is a deposition?
A deposition is oral testimony given by a party or witness prior to trial. The person giving a deposition is called the deponent. A party to the lawsuit must give a deposition if called on by the other party to do so. The deposition of a witness can be given voluntarily or pursuant to a subpoena (court order). The deponent can be required to bring documents to the deposition. Most depositions are taken at the office of one of the attorneys. The deponent is placed under oath and then asked questions orally by one or both of the attorneys. The questions and answers are recorded in written form by a court reporter. Depositions can also be video-recorded. The deponent is given an opportunity to correct his or her answers prior to signing the deposition. Depositions are used to preserve evidence (e.g., if the deponent is deceased, ill, or not otherwise available at trial) and impeach testimony given by witnesses at trial.
sequestered
A jury can be (i.e., separated from family and so on) in important cases.
Motion for judgment on the pleadings
A motion for judgment on the pleadings can be made by either party once the pleadings are complete. This motion alleges that if all the facts presented in the pleadings are true, the party making the motion would win the lawsuit when the proper law is applied to these facts. In deciding this motion, the judge cannot consider any facts outside the pleadings.
Interrogatories
A party is required to answer in writing within a specified time period (e.g., 60 to 90 days). An attorney usually helps with the preparation of the answers. The answers are signed under oath.
The plaintiff must face the Burden of Proof
A plaintiff bears the burden of proof to persuade the trier of fact of the merits of his or her case.
The plaintiff must face the Burden of Proof
A plaintiff bears the to persuade the trier of fact of the merits of his or her case.
When does the Statue of Limitations begin
A statute of limitations begins to "run" at the time the plaintiff first has the right to sue the defendant (e.g., when the accident happens or when the breach of contract occurs).
Re-Direct Examination
After the defendant's attorney completes his or her questions, the plaintiff's attorney can ask questions of the witness. This is called re-direct examination
What is a rebuttal
After the defendant's attorney has finished calling witnesses, the plaintiff's attorney can call witnesses and put forth evidence to rebut the defendant's case. The defendant's attorney can call additional witnesses and introduce other evidence to counter the rebuttal. This is called the rejoinder.
jury deliberation,
After the judge reads the jury instructions, the jury retires to the jury room to consider the evidence and attempt to reach a decision. This is called which can take from a few minutes to many weeks. After deliberation, the jury reaches a verdict. In civil cases, the jury assesses damages against the defendant if they have held in favor of the plaintiff. In criminal cases, if the jury finds the defendant guilty, the jury may assess penalties on the defendant in some jurisdictions or cases.
The judge issues what is called a Judgmenet
After the jury has returned its verdict, in most cases the judge to the successful party, based on the verdict. This is the official decision of the court. The court may overturn the verdict, however, if it finds bias or jury misconduct. This is called a judgment notwithstanding the verdict (or judgment n.o.v. or j.n.o.v.) In a civil case, the judge may reduce the amount of monetary damages awarded by the jury if he or she finds the jury to have been biased, emotional, or inflamed. This is called remittitur. The trial court usually issues a written memorandum that sets forth the reasons for the judgment. This memorandum, together with the trial transcript and evidence introduced at trial, constitutes the permanent record of the trial court proceeding.
What is Cross Examination
After the plaintiff's attorney has completed his or her questions, the defendant's attorney can question the witness.
finding of fact
An appellate court will not reverse a made by a jury, or made by a judge if there is no jury, unless such finding is unsupported by the evidence or is contradicted by the evidence. Very few trial court decisions are reversed because most findings of fact are supported by the evidence. On rare occasions, an appellate court will overturn a jury verdict if the appellate court cannot, from the record of the trial court, find sufficient evidence to support the trier of fact's findings.
An appellate court can reverse a lower court if it finds error of law in the record.
An appellate court will reverse a lower court decision if it finds an error of law in the record.
The most common form of ADR is
Arbitration
Artitrators are usually apart of the
Arbitrators are usually members of the American Arbitration Association (AAA)
What is a closing Argument
At the conclusion of the presentation of the evidence, each party's attorney is allowed to make a closing argument to the jury. Each attorney tries to convince the jury to render a verdict for his or her client by pointing out the strengths in the client's case and the weaknesses in the other side's case. Information given by the attorneys in their closing statements is not evidence
The legal process provides for a detailed pretrial procedure called discovery.
During BLANK, each party engages in various activities to discover facts of the case from the other party and witnesses prior to trial. BLANK serves several functions, including preventing surprises, allowing parties to prepare thoroughly for trial, preserving evidence, saving court time, and promoting the settlement of cases. The major forms of discovery are discussed in the following paragraphs. BLANK involves the Deposition, Interrogatories, Production of Documents
The legal process provides for a detailed pretrial procedure called discovery.
During discovery, each party engages in various activities to discover facts of the case from the other party and witnesses prior to trial. Discovery serves several functions, including preventing surprises, allowing parties to prepare thoroughly for trial, preserving evidence, saving court time, and promoting the settlement of cases. The major forms of discovery are discussed in the following paragraphs.
Opening Statement
Each party's attorney is allowed to make an to the jury at the beginning of a trial. During opening statements, an attorney usually summarizes the main factual and legal issues of the case and describes why he or she believes the client's position is valid. The information given in this statement is not considered as evidence.
Settlement Conference
Federal court rules and most state court rules permit the court to direct the attorneys or parties to appear before the court for a settlement conference, or pretrial hearing. One of the major purposes of such hearings is to facilitate the settlement of a case. Pretrial conferences are often held informally in the judge's chambers. If no settlement is reached, the pretrial hearing is used to identify the major trial issues and other relevant factors. More than 95 percent of all cases are settled before they go to trial.
The prayer of relief
For a remedy to be awarded in court
Consolidation
If a commercial airplane crashes, killing and injuring many people, the court could consolidate all the lawsuits against the defendant airplane company. This is because the deaths and injuries all relate to the same fact situation.
If the court Certifies the class
If a court certifies a class, notice of the class action must be sent, published, or broadcast to class members. Class members have the right to opt out of the class action and pursue their own legal process against the defendant. If a class action lawsuit is won or a settlement is obtained from the defendant, the members of the class share the proceeds as determined by the court.
A class Action Lawsuit
If certain requirements are met, a lawsuit can be brought as a BLANK. A occurs when a group of plaintiffs collectively bring a lawsuit against a defendant. Usually, one or several named plaintiffs file a lawsuit against a defendant on behalf of her- himself, or themselves and other similarly situated alleged aggrieved parties.
A class Action Lawsuit
If certain requirements are met, a lawsuit can be brought as a class action. A occurs when a group of plaintiffs collectively bring a lawsuit against a defendant. Usually, one or several named plaintiffs file a lawsuit against a defendant on behalf of her- himself, or themselves and other similarly situated alleged aggrieved parties.
More than
If no settlement is reached
intervention.
If other persons have an interest in a lawsuit, they may intervene and become parties to the lawsuit. This is called blank
This is called consolidation.
If several plaintiffs have filed separate lawsuits stemming from the same fact situation against the same defendant, the court can BLANK the cases into one case if doing so would not cause undue prejudice to the parties.
This is called consolidation.
If several plaintiffs have filed separate lawsuits stemming from the same fact situation against the same defendant, the court can BLANK the cases into one case if doing so would not cause undue prejudice to the parties. HENCE SAME SITUATION AND SAME DEFENDANT
This pertains if the defendant does not answer: The result is a default Judgement
If the defendant does not answer the complaint, a default judgment is entered against him or her. A BLANK establishes the defendant's liability. The plaintiff then has only to prove damages.
This pertains if the defendant does not answer: The result is a default Judgement
If the defendant does not answer the complaint, a is entered against him or her. A BLANK establishes the defendant's liability. The plaintiff then has only to prove damages.
Judgement notwithstanding of the verdict
If they court find bias or jury misconduct
Remittiur
In a civil case, the judge may reduce the amount of monetary damages awarded by the jury
Affirmative defenses:
In addition to answering the complaint, a defendant's answer can assert BLANK.
Affirmative defenses:
In addition to answering the complaint, a defendant's answer can assert affirmative defenses.
Physical or mental Examination
In cases that concern the physical or mental condition of a party, a court can order the party to submit to certain physical or mental examinations to determine the extent of the alleged injuries. This would occur, for example, where the plaintiff has been injured in an accident and is seeking damages for physical injury and mental distress.
If the jury reaches the Verdict
In civil cases, the jury assesses damages against the defendant if they have held in favor of the plaintiff. In criminal cases, if the jury finds the defendant guilty, the jury may assess penalties on the defendant in some jurisdictions or cases.
its called Judicial Dispute because the cases are used to decide the case:
It is also called judicial dispute resolution because courts are used to decide the case
Pretrial Motions
Motion for judgement and Motion of Summary Judgement
Summon- Once a Complaint has been filed
Once a complaint has been filed with the court, the court issues a summons.. Usually this is accomplished by a sheriff, another government official, or a private process server personally serving the complaint and summons on the defendant. If personal service has been tried and is unsuccessful, the court may permit alternative forms of service, such as by mail, fixing the complaint on the last known address of the defendant, or e-mail.
impaneled
Once the appropriate number of jurors is selected (usually six to twelve jurors, depending on the jurisdiction), they are to hear the case and are sworn in. Several alternative jurors are usually also selected to replace jurors who cannot complete the trial because of sickness or other reason. The trial is ready to begin. A jury can be sequestered (i.e., separated from family and so on) in important cases.
What are the production o documents
One party to a lawsuit may request that the other party produce all documents that are relevant to the case prior to trial. If the documents sought are too voluminous to be moved or are in permanent storage or if their movement would disrupt the ongoing business of the party that is to produce them, the requesting party may be required to examine the documents at the other party's premises.
Other forms of ADR are
Other forms of ADR are negotiation, mediation, mini-trial, fact-finding, and using a judicial referee
pretrial motions
Parties to a lawsuit can make several to try to resolve or dispose of all or part of a lawsuit prior to trial. The two are motion for judgment on the pleadings and motion for summary judgment.
The appealing party is called
The appellant or the petitioner
The appellee can file a responding brief
The can file a responding brief that answers the appellant's contentions. Appellate courts usually permit a brief oral argument at which each party's attorney is heard.
The service of process
The complaint and the summon are served to the defendant
This is called a judgment notwithstanding the verdict (or judgment n.o.v. or j.n.o.v.)
The court may overturn the verdict, however, if it finds bias or jury misconduct.
The defendants case:
The defendant's case must (1) rebut the plaintiff's evidence, (2) prove any affirmative defenses asserted by the defendant, and (3) prove any allegations contained in the defendant's cross-complaint. The defendant's witnesses are examined by the defendant's attorney. The plaintiff's attorney can cross-examine each witness. This is followed by re-direct examination by the defendant and re-cross-examination by the plaintiff.
to a subpoena (court order).
The deposition of a witness can be given voluntarily or pursuant to BLANKKKK (court order).
to a subpoena (court order).
The deposition of a witness can be given voluntarily or pursuant to a subpoena (court order).
trier of fact
The judge sits as the in nonjury trials
Pleadings
The paperwork that is filed with the court to initiate and respond to a lawsuit is referred to as the
Defendant
The party who is being sued
Th plaintiff
The party who is suing
This is called direct examination.
The plaintiff's attorney calls witnesses to give testimony. After a witness has been sworn in, the plaintiff's attorney examines (i.e., questions) the witness. Documents and other evidence can be introduced through each witness. After the plaintiff's attorney has completed his or her questions, the defendant's attorney can question the witness. This is called cross-examination. The defendant's attorney can ask questions only about the subjects that were brought up during the direct examination. After the defendant's attorney completes his or her questions, the plaintiff's attorney can ask questions of the witness. This is called re-direct examination.
The Pretrial Litigation
The pretrial litigation process can be divided into the following major phases: pleadings, discovery, pretrial motions, and settlement conference.
Appellee
The responding party is called the or respondent.
A Memorandum
The trial court usually issues a written memorandum that sets forth the reasons for the judgment. This , together with the trial transcript and evidence introduced at trial, constitutes the permanent record of the trial court proceeding.
A Memorandum
The trial court usually issues a written that sets forth the reasons for the judgment. This , together with the trial transcript and evidence introduced at trial, constitutes the permanent record of the trial court proceeding.
Pretrial Motions
The two are motion for judgment on the pleadings and motion for summary judgment.
Physical or mental examination
This would occur, for example, where the plaintiff has been injured in an accident and is seeking damages for physical injury and mental distress.
If the documents sought are too voluminous to be moved or are in permanent storage or if their movement would disrupt the ongoing business of the party that is to produce them,
When will tge requesting party be required to examine the documents of other party's premises?
To maintain a class action Lawsuit
a class must be certified by the appropriate federal or state court. A class can be certified if the legal and factual claims of all the parties are common, it is impracticable for individual claimants to bring multiple lawsuits against the defendant, the claims and defenses are typical for the plaintiffs and the defendant, and the representative parties will adequately protect the interests of the class.
Pursuant to the Seventh Amendment to the U.S. Constitution,
a party to a civil action at law is guaranteed the right to a jury trial in a case in federal court.2 Most state constitutions contain a similar guarantee for state court actions. If either party requests a jury, the trial will be by jury. If both parties waive their right to a jury, the trial will occur without a jury. . At the time of trial, each party usually submits to the judge a trial brief that contains legal support for its side of the case. A trial can last less than one day to many months, depending on the type and complexity of the case. A typical trial is divided into stages. The stages of a trial are discussed in the following paragraphs.
During the Openng Statement
an attorney usually summarizes the main factual and legal issues of the case and describes why he or she believes the client's position is valid. The information given in this statement is not considered as evidence.
ADR services
are usually provided by private organizations or individuals who qualify to hear and decide certain disputes. A landmark federal arbitration statute is discussed in the following feature.
Interrogatories
are written questions submitted by one party to a lawsuit to another party. The questions can be very detailed. In addition, certain documents might be attached to the answers. A party is required to answer interrogatories in writing within a specified time period (e.g., 60 to 90 days). An attorney usually helps with the preparation of the answers. The answers are signed under oath.
Motion for judgment on the pleadings
can be made by either party once the pleadings are complete. This motion alleges that if all the facts presented in the pleadings are true, the party making the motion would win the lawsuit when the proper law is applied to these facts. In deciding this motion, the judge cannot consider any facts outside the pleadings.
In a civil case, and only in a civil case:
either party can appeal the trial court's decision once a final judgment is entered. Only the defendant can appeal in a criminal case. The appeal is made to the appropriate appellate court.
A default Judgement
establishes the defendant's liability. The plaintiff then has only to prove damages.
A statute of limitations
establishes the period during which a plaintiff must bring a lawsuit against a defendant. If a lawsuit is not filed within this time period, the plaintiff loses his or her right to sue. A statute of limitations begins to "run" at the time the plaintiff first has the right to sue the defendant (e.g., when the accident happens or when the breach of contract occurs). Federal and state governments have established statutes of limitations for each type of lawsuit. Most are from one to four years, depending on the type of lawsuit.
A summon
is a court order directing the defendant to appear in court and answer the complaint.
The Appellant
is often required to post bond (e.g., one and one-half times the judgment) on appeal.
Selection of the Jury
is usually selected from voter or automobile registration lists. Individuals are selected to hear specific cases through a process called voir dire ("to speak the truth"). Lawyers for each party and the judge can ask prospective jurors questions to determine whether they would be biased in their decisions. Biased jurors can be prevented from sitting on a particular case. Once the appropriate number of jurors is selected (usually six to twelve jurors, depending on the jurisdiction), they are to hear the case and are sworn in. Several alternative jurors are usually also selected to replace jurors who cannot complete the trial because of sickness or other reason. The trial is ready to begin. A jury can be sequestered (i.e., separated from family and so on) in important cases.
A notice of Appeal
must be filed by a party within a prescribed time after judgment is entered (usually within 60 or 90 days).
The defendants response to a complaint
must file an BLANK to the plaintiff's complaint. The defendant's answer is filed with the court and served on the plaintiff. In the answer, the defendant admits or denies the allegations contained in the plaintiff's complaint. A judgment is entered against a defendant who admits all of the allegations in the complaint. The case proceeds if the defendant denies all or some of the allegations.
The defendants response to a complaint
must file an answer to the plaintiff's complaint. The defendant's answer is filed with the court and served on the plaintiff. In the answer, the defendant admits or denies the allegations contained in the plaintiff's complaint. A judgment is entered against a defendant who admits all of the allegations in the complaint. The case proceeds if the defendant denies all or some of the allegations.
In arbitration,
the parties choose an impartial third party to hear and decide the dispute. This neutral party is called the arbitrato r. Arbitrators are usually members of the American Arbitration Association (AAA) or another arbitration association. Labor union agreements, franchise agreements, leases, employment contracts, and other commercial contracts often contain arbitration clauses that require disputes arising out of the contract to be submitted to arbitration. If there is no arbitration clause, the parties can enter into a submission agreement whereby they agree to submit a dispute to arbitration after the dispute arises.
How long does a party have to answer Interrogatories
within a specified time period (e.g., 60 to 90 days). An attorney usually helps with the preparation of the answers.
