BLAW ch 3
courts and alternative dispute resolution
Terms in this set (49)
What is judicial review, how and when was the power of judicial review established?
the process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch. it was established
by Marbury vs. Madison in 1803
over what must a court have jurisdiction in order to try a case? how are the courts applying traditional jurisdictional concepts to cases involving Internet transactions?
a court must have jurisdiction over the geographical area in which a person lives or a business operates. some courts have instituted cyber courts, wherein cases involving internet transactions can also be tried online. wisconsin has authorized videoconferencing for use in civil and criminal trials.
what is the difference between a trial court and an appellate court?
In an appeal no new evidence can be introduced to the court. trial courts are courts in which trials are held and testimony taken. appellate courts are courts in which a panel of judges reviews for error the record of an appealed decision.
what is discovery, and how does electronic discovery differ from traditional discovery?
a phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial. electronic discovery involves information which is stored electronically. Federal rules and most states allow all parties to obtain electronic data compilations, which include emails, voice mail, spreadsheets, word processing documents and other data.
what are three alternative methods of resolving disputes?
negotiation, mediation and arbitration
alternative dispute resolution
The resolution of disputes in ways other than those involved in the traditional judicial process. Negotiation, mediation, and arbitration are forms of ADR.
Procedurally, a defendant's response to the plaintiff's complaint.
The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision that is (most often) legally binding.
A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.
In litigation, the amount of monetary compensation awarded to a plaintiff in a civil lawsuit as damages. In the context of alternative dispute resolution, the decision rendered by an arbitrator.
A federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law.
a formal legal document prepared by a party's attorney for the appellant or the appellee (in answer to the appellant's brief) and submitted to an appellate court when a case is appealed. The appellant's brief outlines the facts and issues of the case, the judge's rulings or jury's findings that should be reversed or modified, the applicable law, and the arguments on the client's behalf.
The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.
Jurisdiction that exists when two different courts have the power to hear a case. For example, some cases can be heard in a federal or a state court.
A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.
A judgement entered by a court against a defendant that has failed to appear in court to answer or defend against the plaintiff's claim.
The testimony of a party to a lawsuit or a witness taken under oath before a trial.
diversity of citizenship
Under Article III, Section 2, of the Constitution, a basis for federal court jurisdiction over a lawsuit between (1) citizens of different states, (2) a foreign country and citizens of a state or of different states, or (3) citizens of a state and citizens or subjects of a foreign country. The amount in controversy must be more than $75,000 before a federal court can take jurisdiction in such cases.
The list of cases entered on a court's calendar and thus scheduled to be heard by the court.
Evidence that consists of computer-generated or electronically recorded information, including e-mail, voice mail, spreadsheets, word-processing documents, and other data.
Jurisdiction that exists when a case can be heard only in a particular court or type of court
A question that pertains to the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.
A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath.
the authority of a court to hear a case
A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case.
The process of resolving a dispute through the court system.
long arm statute
A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have certain "minimum contacts" with that state for the statute to apply.
A method of settling disputes outside of court by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement.
motion for a directed verdict
In a jury trial, a motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party who filed the motion on the ground that the other party has not produced sufficient evidence to support her or his claim.
motion for a new trial
A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.
motion for judgement n.o.v.
A motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury verdict against him or her was unreasonable and erroneous.
motion for judgement on the pleadings
A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted ONLY if no facts are in dispute.
motion for summary judgement
A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute.
motion to dismiss
A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed.
a process in which parties attempt to settle their dispute informally, with or without attorneys to represent them
online dispute resolution
the resolution of disputes with the assistance of organizations that offer dispute-resolution services via the internet.
Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.
A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate.
question of fact
In a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point. Questions of fact are decided by the jury in a jury trial (by the judge if there is no jury).
question of law
In a lawsuit, an issue involving the application or interpretation of a law. Only a judge, not a jury, can rule on questions of law.
Procedurally, a plaintiff's response to a defendant's answer.
rule of four
A rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at least four justices approve of the decision to issue the writ.
small claims court
A special court in which parties may litigate small claims (such as $5,000 or less). Attorneys are not required in small claims courts and, in some states, are not allowed to represent the parties.
standing to sue
The requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she has been either injured or threatened with injury.
summary jury trial
A method of settling disputes, used in many federal courts, in which a trial is held, but the jury's verdict is not binding. The verdict acts only as a guide to both sides in reaching an agreement during the mandatory negotiations that immediately follow the summary jury trial.
A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff's complaint. The document is delivered by a sheriff or any other person so authorized.
The geographic district in which a legal action is tried and from which the jury is selected.
An Old French phrase meaning "to speak the truth." In legal language, the process in which the attorneys question prospective jurors to learn about their backgrounds, attitudes, biases, and other characteristics that may affect their ability to serve as impartial jurors.
writ of certiorari
A writ from a higher court asking the lower court for the record of a case.