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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
Differences between Criminal vs. Civil
Civil is preponderance of evidence, Criminal has to be almost certain (85%)
Refers to the Court's power or authority over the parties to the litigation, or the "person" involved (in personam jurisdiction)
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.
(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
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)
(equitable remedy) A remedy that orders the breaching party to perform the acts promised in the contract.
(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.)
(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
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.
Has to have a federal question or diversity of jurisdiction (different states and $75,000 or more)
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
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
paperwork that is filed with the court to respond to a lawsuit (complaint, answer, cross-complaint, and reply)
(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
ADR (alternative dispute resolution)
methods of resolving disputes other than litigation (negotiation, mediation, conciliation, mini-trial, fact-finding, using judicial referee)
A relatively minor offense such as vandalism or stealing inexpensive items (county jail)
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.
entering a building unlawfully with intent to commit a felony or to steal valuable property
The taking of another's personal property other than from his or her person/building
the fraudulent appropriation of funds or property ENTRUSTED to your care but actually owned by someone else
threat to expose something about another person unless that other person gives money or property (blackmail)
intentional misrepresentation which results in harm (physical, monetary, etc.) (false presences/deceit)
corporate criminal liability
criminal liability of corporations for actions of their officers, employees, or agents
arrest with miranda rights
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
(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
a defense that claims the defendant would not have broken the law if not tricked into doing it by law enforcement officials
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)
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)
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)
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
Duty of care
obligation people owe each other not to cause any unreasonable harm or risk (reasonable person)
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
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
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)
unforeseeable intervening event breaks the chain of causation (plane crash causes you to hit another person)
behavior by the plaintiff that contributes to the harm resulting from the defendant's 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%.
legal obligation of sellers to pay damages to individuals who are injured by defective or unsafe products
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
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)
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.
behavior by the plaintiff that contributes to the harm resulting from the defendant's negligence
actions that says a plaintiff who is contributorily negligent for his or her injuries is responsible for a proportional share of the damages
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
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.
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