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Business Law: Unit 1 Study Guide
Terms in this set (38)
Laws that are separate between each state. Example Include Criminal matters,
Divorce and family matters,
Welfare, public assistance or Medicaid matters,
Wills, inheritances and estates,
Real estate and other property,
Personal injuries such as from a car accident or medical malpractice, and
Workers compensation for injuries at work.
Laws that are created at a federal level, that applies to all of the fifty states. Examples include Immigration law,
Social Security and Supplemental Security Income (SSI) laws,
Federal anti-discrimination and civil rights laws that protect against racial, age, gender and disability discrimination,
Patent and copyright laws,
Federal criminal laws such as laws against tax fraud , and the counterfeiting of money.
The federal government and the states have separate written constitutions that set forth the general organization, powers, and limits of their respective governments. The U.S. Constitution is the supreme law of the land. It is the basis of all law in the United States. All law in violation of the constitution, if challenged, will be declared unconstitutional and will not be enforced. Each state has it's own constitution unless it conflicts with the U.S. constitution, it is supreme in it's state borders.
This is the body of law enacted by the legislative bodies. When a legislature passes a statute, that statute is ultimately included in the federal code of laws or the relevant state code of laws. Statutory laws also include ordinances, which are laws, rules, and orders passed by municipal or county governing units to govern matters not covered by the federal or state law. Ordinances commonly deal with city or county land use, building and safety codes, and other matters affecting the local government unit. A federal statute applies to all states, but a state statute applies only within the states borders.Uniform laws fall under statutes, as these laws are created to make it easier for state to state conduct business with one another.
A set of rules issued by the U.S. Federal or State system to protect or implement something.
The rules of law announced in court decisions. Case law includes the aggregate of reported cases that interpret judicial precedents, statutes, regulations, and constitutional provisions.
A body of enforceable rules governing relationships among individuals and between individuals and their society.
Law that defines and governs actions that constitute crimes. Generally, criminal law has to do with wrongful actions committed against society for which society demands a redress.
Law derived from the roman empire and based on a code rather than case law, the predominant system of law in the nations of continental Europe and the nations that were once their colonies. In the United States, Louisiana, because of its historical ties to France, has a part, a civil law system.
Law that defines, describes, regulates, and creates legal rights and obligations.
Law that establishes the methods of enforcing the rights established by substantive law.
Remedy in Equity
Equity refers to a branch of the law, founded in justice and fair dealing, that seeks to supply a fair and adequate remedy when no remedy is available at law. A Remedy is the relief given to an innocent party to enforce a right or compensate for the violation of a right.This means they can order a party to do or not be able to do something, such as a restraining order.
Remedy at Law
When a court law issues a penalty or makes another court order to impose will. This deal with money.
The body law developed from custom of judicial decisions on English and U.S. Courts, not attributable to legislature.
A common law doctrine under which judges are obligated to follow the precedents established in prior decisions.
Recedent and Types of Authority
A binding authority is any source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction. The U.S. supreme court decisions remain absolute no matter how old. Sometimes it is important to depart from the rule of the precedent if the court decides that the precedent should no longer be followed. Precedents from other jurisdictions because they are not binding on the court are referred to as persuasive authorities.
The process by which the court decides on the constitutionality of legislature enactments and the actions of the executive branch.
A court decision that furnishes an example of authority for deciding subsequent cases involving identical or similar facts.
The authority of a court to hear and decide a specific case.
A court can exercise personal jurisdiction over any person or business that resides in a certain geographic area. A State trial court, for example usually has jurisdiction over the residents including businesses in a particular area of the state, such as a county or district. The Supreme Court has jurisdiction over all people in the country. In addition, under the authority of the long arm statute, a court can exercise personal jurisdiction over certain out of state defendants based on activities that took place within the state. Before personal jurisdiction can take place in this sense, a minimum number of contacts must be established to justify the jurisdiction.
Subject Matter Jurisdiction
This is a limitation on the types of cases a court can hear. In both the federal and state court systems there are courts of general jurisdiction and courts of limited jurisdiction. For example, a probate court is a state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased persons estate. A federal court of limited jurisdiction such as a bankruptcy court handles only bankruptcy proceedings which are governed by the federal bankruptcy law.
Diversity of Citizenship Jurisdiction
Under article II, Section 2 of the U.S. Constitution, a basis for federal district court jurisdiction over a lawsuit between 1. Citizens of different states, 2. a foreign country and citizens of a state or a different state, 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 district court can take jurisdiction in such cases.
The geographic district in which a legal action is tied and from which the jury is selected.
What are the different types of courts in the U.S. System?
State Court Systems
Federal Court Systems
What are the primary divisions/levels of courts in the federal system?
1. U.S. district courts
2. U.S. courts of appeals
3. The U.S. supreme court
What is the typical structure of divisions/levels of a state court system?
1. Trial courts of limited jurisdiction
2. Trial courts of general jurisdiction
3. Appellate courts
4. The states highest court, the state supreme court
What happens when a case gets appealed?
State Court System
-When a case gets appealed, it goes to the appellate courts.
-This is not a trial, instead it is a panel of three or more judges that review the record of the case on appeal, which includes a transcript of the trial proceedings and determines whether the courts committed an error.
What is the process the case goes through?
-It brings in the question of law, not questions of fact.
-Questions of fact deals with what really happened in regard to the dispute being tried--such as the actual facts that occurred.
-A question of law concerns over the application of the law.
-Only a judge can rule on questions of law.
-Appellate courts normally defer to a trial courts findings on questions of fact because the trial court judge and the jury where in a better position to evaluate testimony. At the appellate level, the judges review the written transcript of the trial ,which does not include the nonverbal elements.
-An appellate court will challenge a trial court's findings of fact only when the findings are clearly erroneous or when there is no evidence to support the finding.
Why don't appellate courts listen to witnesses again, see all the evidence, and hear all the facts from the original trial?
-The appellate courts deal with the questions of law, not the facts. This means that they are concerned with the application of the law rather than the facts given in the trial courts.
What is the difference between trial courts and appeals courts?
Trial courts are exactly what their name references, it is when the trials are held and testimonies are taken. Appellate Courts review the application of the law and do not put people on trial.
Where can you find the decisions of appellate courts?
You can find them online on the courts websites.
What does it mean for a case to be reversed, affirmed, or remanded?
-If it feels the lower court does not appropriately settle the case, it is reversed.
-Means it agrees with the lower court
-It is an appellate court sends back the case to the trial court or lower appellate court for further action.
Explain the process of a lawsuit from start to finish, including: pleadings, complaint, summons, service of process, answer, motions, discovery (depositions, interrogatories, request for production?, choice of jury or no jury, voir dire, peremptory challenge, opening statement, witness examination, closing statement, jury instructions.
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.
• 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
Identify the advantages and disadvantaged of ADR compared with litigation.
Litigation takes longer costs more. ADR can be settled more quickly, and result in less legal fees.
Understand and compare the differences between the process of binding arbitration, non-binding arbitration, mediation, and negotiation.
Final decision made is binding.
o 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.
o Formal arbitration resembles a trial although the procedural rules are much less restrictive than those governing litigation.
o Typical arbitration—parties present opening arguments and ask for specific remedies. The arbitrator then renders a decision, which is called am award.
o The arbitrator's award is usually the final word on the matter.
o The parties my appeal on the arbitrators decision, but the courts review of the decision will be much more restricted in scope than an appellate court's review of a trial court's decision.
Final Decision made is not binding.
o A method of settling disputes outside if 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.
o Mediation is not as adversarial as litigation.
o Mediation is meant to lower the hostility between both parties.
o Mediation is the preferred form of ADR
o It is a process in which parties attempt to settle their dispute informally, with or without attorneys to represent them.
o Attorneys advise their clients to negotiate a settlement during a trial, or after the trial but before the appeal.
What is an arbitration clause?
It is in a in a contract that requires the parties to resolve their disputes through an arbitration process
What are the parts that make up a legal opinion (Case)?
Rule of Case
Judgement or Order
How to real a legal citation?
-volume of the reporter
-page of the volume on which the opinion begins
-year of the opinion
-Title of Code
-Section of the Code
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