MGMT 518 - Meiners Ch 3

Res Judicata

"a thing decided by judgment" (Once a judgment is final, the same dispute cannot be considered again in that or any other form)

Arbitration

A process similar to litigation in which two or more persons agree to allow a neutral person or panel to resolve a dispute; The most recognized form of alternate dispute resolution;

Motion to Dismiss

A request made by the defendant to dismiss the case because it does not have jurisdiction over either the subject matter of the dispute or the defendant's person

Temporary Restraining Order

A short-term court order, generally lasting just a few days; Primarily used by a court to preserve the status quo until a more formal hearing can be held; A TRO proceeding is often conducted with just the judge and lawyers present

Adversary System of Justice

A system that requires the parties to represent themselves, usually through lawyers, and to argue their positions before a neutral court. The responsibility for bringing a lawsuit, shaping its issues, and presenting evidence rests upon the parties to the dispute. (as opposed to an inquiry system)

An attorney may have the right to _______ the selection of a person to a jury

Challenge

Sworn, in-person testimony of a witness recorded by a court reporter is called a(n) . . .

Deposition

In the federal court system, the right to jury trial is guaranteed if . . .

The amount in controversy exceeds $20 and is a common law claim

Remedy

The way a right is enforced or how a violation of a right is compensated or prevented

Directed Verdict

(aka "judgment as a matter of law" or "judgment on the pleadings") A motion in which the parties ask the judge to issue a favorable verdict that makes jury deliberation unnecessary; Usually based on a lack of legally sufficient evidence on which a jury could find for the other party; Often in favor of the defense - if the plaintiff failed to provide sufficient grounds to win a verdict

Motion to Dismiss for Failure to State a Claim

(aka - 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

Arbitrator

(aka arbiter) A neutral party

Preliminary Injunction

(aka interlocutory injunction) A longer-term court order, usually in force until the dispute is resolved; Issued after a more formal proceeding at which there may be live witness testimony (see Pre-Paid Legal Services case)

Costs of Litigation for Businesses

1 - A great deal of company personnel time and effort 2 - Expensive attorneys 3 - Expensive experts 4 - The production of extensive documents

3 possible responses to the complaint the defendant may choose to file . . .

1 - A motion to dismiss 2 - An answer with or without an affirmative defense 3 - A counterclaim

Typical Stages of a Nonjury Trial

1 - Plaintiff's opening statement 2 - Defendant's opening statement 3 - Plaintiff's presentation of direct evidence 4 - Defendant's presentation of direct evidence 5 - Plaintiff's presentation of rebuttal evidence 6 - Defendant's presentation of rebuttal evidence 7 - Defendant's final argument 8 - Plaintiff's closing argument 9 - Judge's deliberation and verdict

Functions of Discovery

1 - Prevents "trial by ambush" by giving parties access to each others' information 2 - Preserves the evidence of witnesses who might not be available at the time of the trial or whose memories may fade over time 3 - Narrows the issues and focuses the trial by revealing what the parties actually disagree about 4 - Encourages pretrial settlements

Typical Stages of a Jury Trial

1 - Selection of a jury 2 - Plaintiff's opening statement 3 - Defendant's opening statement 4 - Plaintiff's presentation of direct evidence 5 - Defendant's presentation of direct evidence 6 - Plaintiff's presentation of rebuttal evidence 7 - Defendant's presentation of rebuttal evidence 8 - Opening final argument by the plaintiff 9 - Defendant's final argument 10 - Plaintiff's closing argument 11 - Instruction to the jury 12 - Jury deliberation and verdict

Stages of Negotiation

1 - Studying the issues 2 - The parties must exchange information 3 - Most negotiators expect to compromise (settlement offers presented in negotiation may not be used as evidence in court) 4 - If an agreement is reached, it is usually presented in writing and becomes a contract that can be enforced in court

3 Types of Injunction Relief

1 - Temporary Restraining Order (TRO) 2 - Preliminary Injunction 3 - Permanent Injunction

3 Advantages of Using an Arbitrator

1 - The arbitrator is mutually agreed upon by the parties and has the trust of both parties 2 - Because the arbitrator is usually an expert in the subject matter, less time is needed to educate her about the dispute, which usually results in a faster resolution of the matter 3 - Because arbitrators do not usually issue public decisions or hold public hearings, the parties can keep the evidence and decision private

4 Grounds for Overturning an Arbitration Award

1 - The award was obtained by corruption or fraud 2 - There was evidence of partiality or corruption by an arbitrator 3 - An arbitrator was guilty of serious procedural misconduct, such as refusing to hear relative evidence that prejudiced the rights of a party 4 - An arbitrator exceeded his power, and an award was made on a subject not relevant to the proceeding NOTE: Once arbitration is agreed to, it is very rare that a party in the case will be allowed to reject it in favor of litigation

4 Factors Considered Before Issuing a Preliminary Injunction

1 - The parties' relative likelihood of success on the merits 2 - The likelihood that the plaintiff will suffer an irreparable injury if the injunction is not granted 3 - The balance of the equities 4 - The public interest

Expert Witnesses May Be Used to Establish . . .

1 - value of lost profits 2 - nature and extent of injuries 3 - scientific evidence of harm caused by a product

Equitable Remedies

2 Types: 1 - Specific Performance 2 - Injunction

Monetary Damages

3 Types: 1- Compensatory 2 - Punitive 3 - Nominal

What percentage of civil cases are resolved out of court?

90%

Sanctions for failing to respond to a discovery request

>The requesting party can make a motion to the judge to require compliance. >The court may order a default judgment >The noncomplying party may be found in contempt of court

Ways to get information during discovery . . .

>depositions >written interrogatories >orders for production of documents >requests for admissions >orders for a mental or physical examination

Jury

A body of people sworn to give a verdict in a legal case on the basis of evidence submitted to them in court

Counterclaim

A claim asserted by the defendant against the plaintiff after responding to the plaintiff's allegations; the plaintiff must respond to these allegations; May be brought in the same or separate lawsuits

Injunction

A court order directing a person to do or not do something

Specific Performance

A court order requiring the offending party to do what it had promised - may apply in contract cases

Writ of Execution

A court order to an official, such as the sheriff, to seize the property of a defendant who hasn't paid in order to satisfy the judgment

Permanent Injunction

A final court order; Issued after the conclusion of the trial or as a part of a settlement agreement; Usually remains in force indefinitely; Requires that a party persuade the court that money damages are inadequate

Default Judgment

A judgment that grants victory to the other party; May be made if the party does not comply with a court order

ex parte TRO

A temporary restraining order issued where only the party requesting the order is present; Typically intended to prevent the destruction of evidence, removal of assets, or otherwise maintain the court's jurisdiction over matters pending a hearing with all parties

Mediation

A third party mediator is always used to help the parties try to reach a solution by coming to an acceptable agreement - the parties themselves don't meet; The mediator cannot impose a decision, but can only help resolve a conflict

Mediator

A third party that is used to help parties to a dispute try to reach a solution by coming to an acceptable agreement

Requests for Admissions

Admission of truth in matters relating to the dispute; Used to settle facts about which there are no real disputes

What are the three possible decisions of an appellate court?

Affirm Reverse Modify

Cross-Examination

After the direct examination, the defendant's attorney has the opportunity to question the plaintiff's witness

Judgment Notwithstanding the Verdict

After the jury returns a verdict, a losing party may ask the judge to hold that there were not legally sufficient grounds to support the jury's verdict and to either overturn the entire verdict or a portion of it

Reply

An answer to the defendant's counterclaim

Majority Opinion

An appellate court's majority decision; Gives the legal rationale for the court's decision; Usually 3 judges hear an appeal

Irreparable Injury

An injury for which a payment of money would be insufficient to compensate the harmed party

Protective Order

An order that limits access to material that may involve trade secrets or other confidential information so as to ensure confidentiality

Summons

An order to appear before a judge or magistrate

When parties to a dispute agree to meet before a private decision maker who has authority to impose a binding resolution to the dispute, the process is called ________

Arbitration

At the end of arbitration, the decision is called ________

Award

Remand

In this case, the appellate court returns the case to trial court for retrial

Error of Law

Includes mistakes about substantive law or procedural and evidentiary matters; If believed to be present, the case may be appealed

Punitive (Exemplary) Damages

Intended to punish the wrongdoer and discourage others from engaging in similar conduct in the future - when the wrongdoer's actions are particularly reprehensible or when the defendant's conduct is willful or malicious

A losing party may ask the judge to overturn a verdict by granting a motion for ______

Judgment as a matter of law

Nominal Damages

May be awarded if a plaintiff suffers a legal wrong but has not suffered actual damages to person or property, or if the damages are considered trivial by the court; The award may be small, but it may be enough for a party to prevail on a motion for attorney fees and costs

Contempt of Court

May be charged if a party does not comply with a court order - the judge may order the party to jail or impose a fine

Summary Judgment

May be requested by either party at the close of discovery if any of the information show that there are undisputed facts that the court can look at and apply the law and resolve the dispute; If granted, the case is over, or it may only apply to some issues which are eliminated

Concurring Opinion

May be written by the appellate judge if he agrees with the outcome but has different reasons or wishes to make an additional argument

Dissenting Opinion

May be written by the appellate judge if she disagrees with the decision of the majority

Pretrial Conference

Meetings that normally only involve the attorneys and the judge; Used to simplify the issues and plan the course of the trial, agreeing on witness lists, exhibits, and the schedule; Judges usually encourage out-of-court settlements

Trial

Occurs if, after discovery, there has been no dismissal, summary judgment, or settlement

Negotiation

Occurs when parties decide to settle a matter between themselves; The least formal form of ADR; Has no mandatory procedure; A negotiated settlement of a dispute is usually like a contract that is enforced by the courts

Hung Jury

Occurs when the jurors are unable to reach a unanimous decision

If a court issues an order of indefinite length to a party, instructing them to do something or not do something, it is called _____

Permanent injunction

A case begins by the _____ filing a(n) ______ against the ______ who may have claims and files a(n) _______

Plaintiff Complaint Defendant Counterclaim

Closing Argument

Presented by each attorney to summarize the evidence for the jury in a manner most favorable to their case

Instructions (Charges)

Provided to the jury by the judge before they retire to deliberate and reach a verdict; Includes the applicable law, a summary of the issues of the dispute, and a statement of which of the parties has the burden of persuasion

Interrogatories

Questions submitted by a party to a case to the other party, or a witness, or another person with relevant information; The receiving party prepares written answers and signs them under oath

Which Amendment(s) provide for the right to a jury in certain cases?

Sixth and Seventh Amendments

Daubert Case

The Supreme Court instructed courts to exclude evidence that was not reliable and was contrary to scientific standards; When expert testimony is critical to a case but is rejected because it is not scientifically sound, then it is proper to grant summary judgment to the defendant and not allow another trial on the matter; Trial judges are to screen the reliability of experts (see Barabin case)

Opening Statement

The attorneys tell the jury what the crucial facts are an how they will prove that those facts support their position; Often limited to 20 minutes; The lawyers' chances to explain their clients' view of the case to the jury

Judgment

The decision of the court; After the trial, if no appeal is taken or available, this decision becomes final; The same dispute cannot be considered again in that or any other form

Award

The decision reached by an arbitrator after a hearing; Usually given in writing within 30 days

Affirmative Defense

The defendant may assert additional facts that should result in the action being dismissed; Admit to facts claimed by the plaintiff, but assert a legal excuse; eg - self-defense, assumption of risk, contributory negligence, statute of limitations etc

Answer

The defendant's response to the allegations made by the plaintiff; He will admit, deny, or say he does not know the truth with respect to each assertion; Must be filed if the defendant's motion to dismiss is denied or never filed

Pleading

The first complaint filed by the plaintiff to begin a lawsuit; A formal statement made to the court that lists the claims and defenses

Complaint

The first pleading in which the plaintiff must state the basis of the court's subject-matter jurisdiction and jurisdiction over the parties to the dispute; A statement that sets forth the plaintiff's claim against the defendant; Contains statements: >alleging the essential facts necessary for the court to take jurisdiction >of the essential facts necessary to claim that the plaintiff is entitled to a remedy >of the remedy the plaintiff is seeking

Service of Process

The means by which the plaintiff notifies the defendant of the lawsuit; includes the summons and a copy of the complaint

Direct Examination

The plaintiff's attorney begins by calling a witness and questioning him with the intent of providing testimony that supports the plaintiff's case.

Discovery

The process of obtaining information before trial; The parties use various legal tools to obtain evidence from each other and outsiders about the dispute; Limited use in criminal trial

Voir Dire

The process used to select jury members; The purpose is to determine whether a prospective juror is likely to be so biased that he or she could not reach a fair decision based on the evidence presented

Four-Part Test for a Preliminary Injunction

The requesting party must demonstrate: 1 - Likelihood of Success - That it has a substantial likelihood of prevailing on the merits 2 - Likelihood of Irreparable Injury - That it will suffer irreparable harm unless the preliminary injunction is issued 3 - Balance of Equities - That the threatened injury outweighs the harm the preliminary injunction might cause the opposing party 4 - Public Interest - That the preliminary injunction if issued will not adversely affect the public interest

Preponderance of the Evidence

The requirement parties must meet to prove their contentions to the jury in a civil trial

Deposition

The sworn, in-person testimony of a witness recorded by a court reporter

Mistrial

This is declared if the jury is hung and a new trial before a different jury is necessary

How do parties present their arguments to the appellate court?

Through written briefs and oral arguments, which focus on the law, not the facts of the case

Compensatory Damages

To award injured parties enough money to restore them to the economic position they were in before the injury, or to cover the losses caused by the injury (see Naples case)

Garnishment

Usually involves an order to a third party who owes the debtor money to pay the money to the plaintiff instead

Remedies at Law

Usually monetary damages

Alternate Dispute Resolution

Various ways to resolve disputes outside of the court system. Includes arbitration, mediation, and negotiation

The process used to select members of a jury is called ______

Voir dire