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Business Law: Unit 1 Study Guide

Terms in this set (38)

Pleadings are the complaint and answer, also known as the counterclaim and reply.
• The pleadings inform each party of the other's claims and specify the issues—disputed questions—involved in the case.
• The Plaintiff's complaint—alleges the wrongdoing on the part of the defendant. It is also the document that when filed in court, initiates a lawsuit.
• After the complaint has been filed the sheriff a deputy of the county or another process serve—one who delivers the complaint and summons—serves a summons and a complaint to the defendant. The summons notifies the defendant that he must file an answer to the complaint with both the court and the plaintiff's attorney within a specified time period, usually twenty to thirty days. The summons also notifies the defendant that failure to answer may result in a default judgment for the plaintiff, meaning the plaintiff could be awarded damages alleged in her complaint.
• The defendant's answer—the answer will either admit the statements or allegations set forth in the complaint or deny them and outlines any defenses that the defendant may have. If the defendant admits to all of the plaintiff's allegations in his/her answer the court will enter a judgment for the defendant. If the defendant denies any of the plaintiff's allegations than the litigation will go forwards.
• A Counterclaim--The defendant can deny the allegations and set forth his own claim that the defendant and can set forth his or her own claim for compensation.
o This will be answered with a pleading called a reply, which has the same characteristics as an answer.
o Raising the Affirmative Defense--The defendant can also admit to the truth of the facts, but bring in new facts that may result in a dismissal of action.
• Motion to Dismiss requests that the court dismiss the case for stated reasons.
o Grounds for dismissal include improper delivery of the complaint and summons, improper venue, and the plaintiff's failure to state a claim for which a court could grant relief or remedy.
• Pretrial Motions
o Motion for Judgment on Pleadings
• A motion by either party to a lawsuit at the close of the pleadings requesting that the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if he facts are in dispute.
o Motion for Summary Judgment
• A motion requesting the court enters a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted if no facts are in dispute.
o Discovery
• The phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.
o A Deposition is sworn testimony by a party to the lawsuit or any witness. The person being deposed answers question asked by the attorney's and the questions and answers are recorded by an authorized court official and sworn to and signed by the deponent.
o Interrogatories are written questions for which the written answers are prepared and signed under an oath.
o Requests for Other Information
• A party can write a request on the other party for an admission of the truth of matters relating to the trial. Any matter added in included in the trial.
• Party can gain access to documents
• Party can order physical or mental examination
o Electronic Discovery
o Any relevant material including information stored electronically can be the subject or discovery request.
• Pretrial Conference
o Either party or the court cab request a pretrial conference or gearing, Usually the hearing consists of an informal discussion between the judge and the opposing attorney's after a discover has taken place.
o The purpose of this hearing is to explore the possibility of a settlement without a trail.
• Jury Selection
o A trial can be held with and without a jury
o The seventh amendment to the U.S. constitution guarantee's the right to a jury trial for cases in federal courts.
o Jury selection process if known as Voir Dire—it means to speak the truth. It the process in which attorney's question prospective jurors to learn about their backgrounds, attitudes, biases and other characteristics that may affect their ability to serve as impartial jurors.
• At the trial
o At the beginning of the trial the attorney's give their opening arguments setting forth the facts that they expect to provide during the trial. The plaintiff's case is presented.
o At the end of the plaintiff's case the defendants attorney has the opportunity to ask the judge to direct a verdict for the defendant on the ground that the plaintiff has presented no evidence that would justify rge granting of the plaintiff's remedy. This is known as the motion for a direct verdict.
o If the verdict is not granted then the defendant's attorney presents the evidence and witnesses for the defendant's case. At the conclusion of the defendant's case, the defendant's attorney has another opportunity to make a motion for a directed verdict. The plaintiff's attorney can challenge any evidence introduced and cross-examine the defendant's witness.
o After the defense attorney gives his or her presentation the attorneys presents their closing arguments each urging the verdict in favor of his or her client.
• Post-trial Motions
o Once the jury has reached its verdict either party may make a post trial motion.
o Motion for Judgment 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's verdict against him or her as unreasonable.
o Motion for New trial
o Asking the judge to set aside the adverse verdict and to hold a new trial
• The Appeal
o Filing the Appeal
• Brief is a formal legal document outlining 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 arguments on the defendant's behalf.
• Appellate Review
o Review: Court of Appeals does not hear evidence
o It reviews the records for errors instead
o It's decision is based on the record of appeal, the abstracts, and the attorney's briefs
o If the reviewing court believes that an error was committed during he trial or that the jury was improperly instructed the judgment will be reversed.
• Appeal to a Higher Appellate Court
o If the reviewing court is an intermediate appellate court, the losing party may decide to appeal to the state supreme court.
o This requires a petition for a writ of certiorari from the United States Supreme Court.
o Although the losing party has the right to ask(petition) a higher appellate court, Appellate courts normally have discretionary power and can accept or reject the appeal.
• Enforcing the Judgment
o Enforcing the judgment may depend on the defendants ability to cover the costs of the damages sought