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Sources of Law

Constitution (Supremacy Clause) (both federal and state)
Codified Law (Statutes and Ordinances) (federal, state and local)
Administrative Law (rules adopted by agencies
Case Law - based on rulings of previous cases

Common law

(civil law) a law established by following earlier judicial decisions

Stare Decicis

similar cases should be decided consistently

Differences between Criminal vs. Civil

Civil is preponderance of evidence, Criminal has to be almost certain (85%)

Personal Jurisdiction

Refers to the Court's power or authority over the parties to the litigation, or the "person" involved (in personam jurisdiction)

Resident

actual residents of a state (includes corporations)

long arm statute

A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have certain "sufficient minimum contacts" with that state for the statute to apply.

Property

(in rem jurisdiction) jurisdiction to hear a case because of jurisdiction over the property or the lawsuit
(Quasi in rem jurisdiction) jurisdiction that allows a plaintiff who obtains a judgment in one state to try to collect judgment by attaching property of the defendant located in another state.

Original vs. Appellate Jurisdiction

Original=Where the case is first heard
Appellate= When the case has already been heard but is being appealed to a higher court

Federal Jurisdiction

The power of the federal courts to hear matters of federal law. (federal question)

Exclusive vs concurrent

- Only in Federal or State Courts
- Otherwise, cases can start in either system, EVEN constitutional cases
- State courts: Family law

Remedies - Equitable vs. Legal

Legal = $$$ Equitable = money isn't an adequate remedy (recision- canceling a contract)

Specific Performance

(equitable remedy) A remedy that orders the breaching party to perform the acts promised in the contract.

Reformation

(equitable remedy) An equitable doctrine that permits the court to rewrite a contract to express the parties' true intentions (ex. if both parties signed a contract that had an error in it that wasn't noticed.)

injunction

(equitable remedy) A court order that prohibits a person from doing a certain act. To obtain an injunction, a person must show that he or she will suffer an irreparable injury if the injunction is not issued.

Exclusive federal jurisdiction (must go to Fed court)

Bankruptcy, Patents, anti-trust, US govt is a party, Federal crimes, Admiralty

State court jurisdiction

family law

in rem jurisdiction

jurisdiction to hear a case because of jurisdiction over the property of the lawsuit

quasi in rem jurisdiction

Jurisdiction allowed a plaintiff who obtains a judgment in one state to try to collect the judgment by attaching property of the defendant located in another state.

Federal jurisdiction

Has to have a federal question or diversity of jurisdiction (different states and $75,000 or more)

Exclusive jurisdiction

power of the federal courts alone to hear certain cases

concurrent jurisdiction

authority for both state and federal courts to hear and decide cases

Venue

a concept that requires lawsuits to be heard by the court with jurisdiction that is nearest the location in which the incident occurred or where the parties reside

Standing

plaintiff must have some stake in the outcome of a lawsuit

State court systems

limited jurisdiction (only misdemeanors)
general/district jurisdiction (tries all kinds of cases)
intermediate appellate court (takes appeals)
Highest state court

Federal court systems

special fed courts
US district courts
US Courts of appeal
Supreme court - (writ of cert)
rule of 4 (must have 4 in favor of trying the case)

Types of decisions

Unanimous and majority decisions set precedence, plurality does not. Plurality-majority, but agree for different reasons

Pleadings

paperwork that is filed with the court to respond to a lawsuit (complaint, answer, cross-complaint, and reply)

pre-trial

(law) a conference held before the trial begins to bring the parties together to outline discovery proceedings and to define the issues to be tried

post-trial

motion for a new trial and either side by appeal. Enforcement of award.

Appeals

Request to a higher court for a review of a case

ADR (alternative dispute resolution)

methods of resolving disputes other than litigation (negotiation, mediation, conciliation, mini-trial, fact-finding, using judicial referee)

Criminal sanctions

the punishment afforded to a succesfully prosecuted person in a criminal case.

Felonies

a serious crime such as murder, rape, kidnapping, or robbery (prison)

Misdemeanors

A relatively minor offense such as vandalism or stealing inexpensive items (county jail)

Infractions

breaking the law; minor offenses against the rules, usually punishable by fines. (no jail)

responsible corporate officer doctrine

a corporate officer may be criminally liable even if she did not participate in, direct, or even know of the criminal violation.

burglary

entering a building unlawfully with intent to commit a felony or to steal valuable property

robbery

the taking of property from a person's possession by using force or threats

larceny (theft)

The taking of another's personal property other than from his or her person/building

arson

malicious burning to destroy property

Embezzlement

the fraudulent appropriation of funds or property ENTRUSTED to your care but actually owned by someone else

extortion

threat to expose something about another person unless that other person gives money or property (blackmail)

criminal fraud

intentional misrepresentation which results in harm (physical, monetary, etc.) (false presences/deceit)

money laundering

washing illegal or tainted money through legitimate business

corporate criminal liability

criminal liability of corporations for actions of their officers, employees, or agents

criminal process

arrest with miranda rights
booking
initial appearance (bail can be posted)
Indictment/information - officially issued documents
arraignment- accused is presented charges and asked to give a plea
plea bargain/settlement - deal between prosecution and defendant to save time and money
guilty plea/trial- plead guilty or go to trial

exclusionary rule

(unconstitutional) improperly gathered evidence may not be introduced in a criminal trial (exceptions: good faith and inevitable discovery) (fruit of the poisonous tree)

Mistake of fact

a defense claiming an error or misunderstanding of fact or circumstances resulting in an act that would otherwise not have been undertaken

Self defense

the right to protect oneself reasonably from acts of violence or threatened violence

Entrapment

a defense that claims the defendant would not have broken the law if not tricked into doing it by law enforcement officials

Intentional tort

A wrongful act knowingly committed.

Assault

apprehension of and immediate harmful and offensive contact

battery

an assault in which the assailant makes physical contact

false imprisonment

confinement without legal authority

invasion of privacy

1. misappropriation- using someones likeness to make money without consent
2. intrusion upon seclusion- peeping tom
3. False light- publicized false information
4. public disclosure of private facts- (even if it is true)

Defamation

an abusive attack on a person's character or good name

Libel

false statement that appears in print or media (written defamation)

slander

oral defamation of character

disparagement/ trade libel

defaming a company's product or service (belittling)

fraud

intentional misrepresentation, the intentional defrauding of a person out of money, property, or something else of value

intentional infliction of emotional distress

a tort that says a person who's extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another person is liable for that emotional distress (tort of outrage)

malicious prosecution

a lawsuit in which the original defendant sues the original plaintiff. in the 2nd lawsuit, the defendant becomes a plaintiff and visa versa (frivolous, no legitimate grounds)

business torts

intentional torts that occur almost exclusively in a business setting

wrongful interference with a contract

valid enforceable contract exists and is known and is breached by a third party

wrongful interference with a business

established business relationship ends because of predatory methods

elements of negligence

Duty, Breach, Causation, injury

Duty of care

obligation people owe each other not to cause any unreasonable harm or risk (reasonable person)

breach

a breaching of the duty of care (when you act unreasonably)

causation

actual cause of negligence, a person who commits a negligent act is not liable unless actual cause can be proven (actual- my act led to chain of events which caused an injury, proximate-chain of events is reasonable to have blame) MUST HAVE BOTH TO BE GUILTY

injury

a plaintiffs personal injury or damage to his or her property that enables him or her to recover monetary damages for the defendant't negligence

Malpractice

the liability of a professional who breaches his or her duty of ordinary care

negligence per se

a tort in which the violation of a statute or an ordinance constitutes the breach of the duty of care

res ipsa loquitur

the burden switches to the defendant to prove that they were not negligent (doctor leaves in scalpel)

superseding/intervening event

unforeseeable intervening event breaks the chain of causation (plane crash causes you to hit another person)

assumption of the risk

voluntary assumption of risk (waiver)(know it was dangerous, goes in anyway)

contributory negligence

behavior by the plaintiff that contributes to the harm resulting from the defendant's negligence

comparative negligence

negligence allocated between the plaintiff and the defendant with a corresponding reduction in damages paid to the plaintiff (if 20% negligent, they are only liable 80%) cannot be 50-50, must be less than 50%.

no duty to rescue

you don't have to put yourself in danger to save someone else

strict liability

liability without fault
(all members of a manufacturing chain are liable)

product liability

legal obligation of sellers to pay damages to individuals who are injured by defective or unsafe products

misrepresentation

untrue statement of facts

negligence

breached duty of care and caused harm

Manufacturing defect

defect that occurs when a manufacturer fails to 1. properly assemble a product. 2. Properly test a product 3. adequately check the quality of a product. EX. mouse in Squirt

design defect

defect that occurs when a product is improperly designed

warning defect

Type of defect that exists when foreseeable risks of harm could have been avoided or reduced by providing reasonable warnings (Not generally known dangers, foreseeable misused)

assumption of risk

voluntarily and knowingly subjecting oneself to danger

generally known dangers

defense that acknowledges that certain product are inherently dangerous and are known to the general population to be so

Misuse of the product

relieves a seller of product liability if the use abnormally misused the product. The product must be designed to protect against foreseeable misuse.

supervening event

product must reach consumer without substantial change

statute of limitation

time limit within which you can sue from when injury occurs

Repose

time limit within which you can sue from when product is sold. (longer period of time)

contributory negligence

behavior by the plaintiff that contributes to the harm resulting from the defendant's negligence

comparative fault

actions that says a plaintiff who is contributorily negligent for his or her injuries is responsible for a proportional share of the damages

a party from Nevada and Utah are fighting and $100,000 at stake, MUST this go to federal court?

No

complaint must have these 3 things

pleade facts, legal cause of action, described what remedy you are asking for

answer contains these 2 things

admits or denies, arises affirmative defenses, the party can raise any cross claims

discovery

ask for interrogatories, ask for documents, deposition, examination

after-trial options

motion for a new trial, motion JNOV (judgment not withstanding the verdict) which means the jury was not reasonable and must have disregarded the evidence for some reason (ex. they hated your client`)

3 parts of appeal

transcript of trial, written brief, and they do an oral argument to the judges panel.

arbitration

mini trial

mediation

a procedure offered by local courts to quickly resolve a dispute

lethal force can only be used if...

imminent death or serious bodily harm

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