Business Law Module 1 Chris Carr – Flashcards
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what is the function of state and federal constitutions?
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establish the structure of government and create a separation of powers which prevents units of government from taking certain actions or passing certain laws that restrict individual rights.
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federal statute
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law that is created by congress
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state statute
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law that is created by state legislature
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Common law (aka judge made law, case law)
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it involves judges/courts stepping in and making a law that governs and regulates us/business activity in areas where there has been an absence of legislation. Common law is derived from principals rather than rules.
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stare decisis
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Let the decision stand; decisions are based on precedents from previous cases. "to stand by precedents and not to disturb settled points"
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"distinguishing a case"
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declining to follow a precdent based on the precedential case differing from the case being decided. (also known as Case Law Reasoning)
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Common law vs Statute
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Statute will prevail. ie. if there is a conflict between a statute on the books and a common law court decision, the statute must prevail and the court must follow that statute
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True or false. The common law changes, decision by decision in litigated cases.
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True
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Common law has guaranteed ______ a major role in lawmaking.
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Judges
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What two types of law are created by Administrative Agencies?
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Administrative regulations (EPA regulations) Agency decisions (decisions made from internal court structures in agencies)
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Why do state and federal legislatures create administrative agencies?
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to handle problems that they lack the time or expertise to do so.
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How do administrative agencies get their power to make law?
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By a "delegation" of power from legislature
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Who makes treaties?
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the president with foreign governments
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Who needs to approve treaties?
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2/3 Senate
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Ordinance
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statutory law created by a town, city, or county (ie school districts, municipalities etc)
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Executive orders
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Made by presidents or governors. gives presidents/governors the power to issue and make laws. (ie the president sending troops overseas)
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Name the 7 types of law
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1. State and Federal Constitutions 2. Statutes 3. Common Law 4. Administrative Law 5. Treaties 6. Ordinances 7. Executive Orders
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Supremacy Clause
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federal law is the supreme law of the land
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Public Law
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Concerns the powers of the government and the relations between government and private parties (ie constitutional law and administrative law)
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Private Law
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establishes a framework of legal rules that enable private parties to set the rights and duties they owe to each other. (ie rules of property-how close can your neighbor build his house to your house?)
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Private vs Public law
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a way to classify law
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Criminal Law
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government prosecutes someone for the commission of a crime; criminal law regulates behavior so threatening that society outlaws it altogether Penalty- prison and or fine
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Civil Law
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One party sues another party (note that the government can be a party in such lawsuits); civil law regulates rights and duties between persons Penalty- money damages
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True or False. The rules of law are the same for criminal and civil law.
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False. A whole different set of rules applies to both civil and criminal law.
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Civil vs Criminal Law
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a way to classify law
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Substantive Law
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substantive rights of the people are affected
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Procedural Law
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control the behavior of government bodies as they establish and enforce the rules of substantive law
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Substantive vs Procedural Law
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a way to classify law
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3 Jurisprudential Schools of thought
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1. Natural Law 2. Legal Positivism 3. Legal Realism
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Natural Law (school of thought)
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-says that law should be all commands of a just political authority. -"Unjust law is not law" -Protects the underdog -not super realistic -ie of Natural Law thinkers: Nelson Mandella, MLK Jr, Ghandi
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Legal Positivism (school of thought)
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-says that law should be the command of a recognized political authority. It should be enforced and obeyed, regardless of whether its fair or just -promotes stability and predictability -What if we have a bad leader? (ie hitler or stalin) -ie of legal positivism thinkers: probably most judges
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Legal realism (school of thought)
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says that the law should be what public decision makers actually do. Law is what public decision makers say it is. -more "real world" and practical than the other 2 schools of thought.
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State statute vs federal common law
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Federal common law (supremacy clause)
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Martindale-Hubbell
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Law directory full of lawyers. Best way to find your lawyer for any specific case. Not biased. Lawyers pay a fee to get in there.
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Legal technician
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Someone who goes to law school and passes the BAR
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Trusted Counselor
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Someone who goes to law school and passes the BAR but also adds value to his client. He will get very involved in cases and will do anything he can to help you win.
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David Boies
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Represented Al Gore in the Florida Recount trial of Bush v Gore. He lost, but was known to be one of the greater lawyers of his time. He is a trusted counselor not just a legal technician.
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A good lawyer is....
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-older/wiser -well rounded (travels, writes books, philosophical etc) -maybe speaks another language -has a good education from impressive schools -helped build and grow the common law -hard worker -loves his job -intellectually curious
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Megafirms Vs A small firm
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Megafirms are expensive but you get what you pay for. there are hundreds of lawyers there to back you up. They have a good reputation. Impersonal. A smaller firm will be much less expensive and your lawyer will be more personal with you and your case. Less lawyers, so less presence in the courtroom. Less of a powerhouse.
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What is the first step in going to Court?
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Get a lawyer
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After getting a lawyer, what is the next step of going to court?
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Preparation, filing, and service of the SUMMONS COMPLAINT. "Youve been served"
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What is the purpose of a summons complaint?
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To give the defendant notice of the plaintiff's allegations and it attempts to define and limit the scope of the lawsuit.
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Once the defendant has been served, how long do they have to file an answer to the Summons complaint? (In state court)
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30 days
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Once the defendant been served, how long do they have to file an answer to the Summons complaint? (In Federal court)
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20 days
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After sending the summons complaint, what is the next step of going to court?
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Prepping and filing of the answer by the defendant.
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What happens if the defendant does not file an answer within the given time restraints?
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Default Judgement. ( The plaintiff wins)
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What is a cross complaint? (aka counter claim)
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When the defendant says not only do they not owe the plaintiff money, but in fact the plaintiff owes them money.
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After the answer by the defendant has been filed, what is the next step in going to court?
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Preliminary Motions to dismiss the case- these are designed to weed out and dismiss any unnecessary lawsuits (SAVES $$)
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Motion to Dismiss
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may be made on various grounds, 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. Although the defendant normally is the party requesting a dismissal, either the plaintiff or the court can also make a motion to dismiss the case. ( ie: the defendant saying "you waited too long to file the case" etc
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The demurrer
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A preliminary motion to dismiss the case. Basically says "so what....?" everything the plaintiff says is true, however there is nothing the law can do to protect them
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After the preliminary motions to be dismissed have been filed, what is the next step in going to court?
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Discovery
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What is the discovery process?
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It involves pretrial exchange of all relevant information between parties and a lawsuit.
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What are the purposes of discovery?
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-the full disclosure of relevant information may encourage 2 sides to settle -helps avoid ambush at trial -keeps witnesses stuck to their stories -helps to predict the outcome of the trial
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What are the 4 tools of Discovery?
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1. Interrogatories 2.Request for production of documents 3. Request for physical/mental exam 4. Deposition
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What are depositions?
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Oral questions under oath (transcribed by court reporter)
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What are interrogatories?
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written questions submitted to the other side to answer
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After discovery is complete, what is the next step of going to court?
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Later pretrial motions filed by the plaintiff or the defendant.
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What are later pretrial motions filed by the defendant?
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Motion for Summary Judgement. Basically where they bring forth all of the evidence and say that youre the winner. It is very difficult for any side to win through later pretrial motions.
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After the later pretrial motions are filed, what is the next step of going to court?
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Pretrial Conference/Hearing
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What is the Pretrial Conference/Hearing?
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Its basically where the lawyers show up (seperately) in the judges chambers and talk about the case and evidence. A good judge will try to convince the parties to settle/drop the case.This is called "mandatory settlement conference"
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What is a mandatory settlement conference and when does it take place?
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Its when the judge tries to convince both parties to settle/drop the case during the pretrial conference hearing.
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After the pretrial conference/hearing takes place, what is the next step of going to court?
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The trial
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What are the 2 types of trials?
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Court Trials (aka bench trial) (judge is the trier of the fact) Jury Trials (Jury is the trier of the fact)
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How many members are on a civil jury? And out of those, how many need to agree?
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12 total you need 9/12 to agree in CA (different in some states)
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How many members are on a criminal jury? And out of those, how many need to agree?
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12 total You need 12/12 to agree (unanimous decision)
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Who presents their opening argument/case/closing arguments first? The Plaintiff or the defendant?
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The plaintiff
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What is voir dire?
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Jury selection
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What is a peremptory challenge?
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where the attourneys can excuse a prospective juror for any reason at all (i believe each attourney gets 6 in a civil case in california)
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What is it called when a prospective juror is excused by the court automatically during voir dire? (ie: brother of plaintiff, neighbor of defendant etc)
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For Cause
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What type of case needs preponderance of the evidence to be proven guilty/not guilty?
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Civil case. This roughly means a greater than 50% chance, based on all the reasonable evidence, that the defendant did the wrong that caused the damage.
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What type of case needs to be proven beyond reasonable doubt?
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Criminal case. This roughly means that there is a great likelihood the accused committed the crime.
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After the trial takes place, what is the next step in going to court?
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Trial and Post Trial motions
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What is the purpose of trial and post trial motions?
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To cure/fix/address any faulty, defective, or crazy things that may have happened during the trial.
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What are the 3 trial/post trial motions?
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1. Motion for directed verdict (trial) 2. Motion for judgement nonwithstanding the verdict (motion for JNOV) (posttrial) 3.Motion for a new trial (posttrial)
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What is a Motion for directed verdict?
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Right after the evidence is presented either the defendant stands up and asks for the case to be dismissed due to the fact that the plaintiff has failed to prove their case OR the plaintiff asks to win right then and there. RARELY GRANTED
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What is a Motion for judgement nonwithstanding the verdict (motion for JNOV)?
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where the defendant asks the judge to set aside all or part of a jurys verdict on the grounds that the jury's verdict was in no way supported by the evidence and/or the law
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After the post trial motions have been filed, what is the next step in going to court?
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Appeal
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True or False: The purpose of an appeal is to re-litigate a case.
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FALSEEE!! The purpose is to ensure that the law (not facts) have been correctly interpreted and applied at lower court trial.
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Where is our nearest court of appeal?
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Ventura, CA (SLO is in the second district so Venturas the intermediate court of appeal for us)
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Name 3 things the appellate court can do
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1. Reverse the verdict (Winner!! rare...) 2. Affirm the verdict (Loser!!! most common....) 3. Send back to trial
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What is the last step in going to court?
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Enforcing judgement/Collection
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What are the two tools of collection?
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1. Writ of execution 2. Garnishment
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What is a writ of execution?
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Allows the sheriff to seize and sell ($$$) the defendants property.
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What is garnishment?
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Allows sheriff to seize property, money or employment wages and put it in the hands of a 3rd party and then give it to the plaintiff. (ie get a certain % of each paycheck etc)
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Who has to nominate and approve potential federal judges?
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The president nominates and 2/3 of the senate must approve
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True or false: Federal judges serve terms.
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False. Federal judges are appointed for LIFE!
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What is jurisdiction?
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It is a courts power to hear a case and issue a decision that is binding on the parties
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The STATE court must have what 2 things to hear a case?
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1. Subject matter jurisdiction (a civil court cannot hear a criminal matter, a small claims court cannot hear a case where more than $7,500 is involved) 2. One of the following a. in personam jurisdiction b. in rem jurisdiction
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What is in personam jurisdiction?
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personal jurisdiction over the parties in the case. It means that a judgment can be enforceable against the person wherever he is. It is usually based on residence, location, or activities of a defendant within the state.
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What is in rem jurisdiction?
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"against or about a thing," referring to a lawsuit or other legal action directed toward property, rather than toward a particular person. Thus, if title to property is the issue, the action is "in rem." The term is important since the location of the property determines which court has jurisdiction and enforcement of a judgment must be upon the property and does not follow a person.
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How does a court obtain personal jurisdiction over an out of state defendant?
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Long arm statute
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What are long arm statutes?
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Each state has their own. Its a law which gives a local state court jurisdiction over an out-of-state company or individual whose actions caused damage locally or to a local resident.
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Small Claims Court
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-$7,500 or less -informal -no lawyers present -cheap, fast -lowest level of court (its a part of state court btw) -many times people bring in expert witnesses to further prove their point (ie diesel expert in video)
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Municipal Court
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-one step above small claims court and one below superior trial state courts -0-$25,000 -informal -rules of evidence are relaxed -Bench/judge trials NOT JURY TRIALS
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Superior State Court
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-can be any amount of $$$ but usually above $25,000 -where MOST business cases are heard in state court -jury trials -court reporter ($$$) -Takes ~2 years to get a case heard (slower) -Hard to get a courtroom/judge -Our nearest one is in LA (travel $$$)
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Where is our state supreme court?
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Sacramento
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Rundown of the federal court system (written up flowchart)
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US Supreme court | Federal Courts of Appeal | Federal District Courts | Specialty Courts (Tax, Bankruptcy, US Claims, Military Appeals, International Trade)
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The FEDERAL court must have what 2 things to hear a case?
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1. Subject Matter Jurisdiction EITHER OF THESE 2 THINGS a. Diversity Jurisdiction (plaintiff and defendant from different states*** AND the lawsuit exceeds $75,000) OR b. Federal Question Jurisdiction (the case arises under federal law such as constitution, bill of rights, federal treaty/statute) ***sidenote... a corporation is considered to be a citizen of both its place of origination and its main place of business ANDDDDD 2. in personam OR in rem jurisdiction
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Where is the nearest federal court for appeal?
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San Francisco
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Where is our nearest federal district court?
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LA BABY
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How many Supreme Court Justices are there?
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9
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What is "the rule of four"?
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4 out of the 9 US Supreme Court Justices must approve to hear a case
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Writ of certiorari
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what you file to the US Supreme court in order to try to have your case heard (4/9 must approve)
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Where do most appeals to the US Supreme Court come from?
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Federal Courts of Appeal and State Supreme Courts
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How many appeals are made to the US Supreme Court each year? Out of those, how many are actually heard?
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~8,000 appeals are made ~50-60 are actually heard (half of these are business cases, maybe 1 out of these are social cases (ie abortion))
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How does Supreme Court Justice Scalia interpret the constitution?
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He is an ORIGINALIST which means he interprets it the way the founders meant it to be interpreted when they wrote it 200 yrs ago. He interprets it that way because he believes the constitution was made to prevent change.
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What are 3 common forms of ADR?
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1. Arbitration 2. Mediation 3. Settlement discussions and or negotiations
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Pros of ADR
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-greater flexibility -faster -cheaper -less formal
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Cons of ADR
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-you can get an incompetent, lazy, biased mediator/arbitrator -no written record making it almost impossible to file an appeal
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True or False. Arbitration is a cooperative process.
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FALSE. Arbitration is an adversarial process. Meaning that there are 2 parties competing with each other in front of a neutral arbitrator
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True or False. Mediation is a cooperative process.
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True. The 2 parties are working together to come to an agreement.
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Is an arbitrator or mediator more like a judge?
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An arbitrator is more like a judge because in the end they make a decision/come to a conclusion. Whereas a mediator more guides the two parties to make a decision on their own
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Are parties obligated to accept the mediators recommendations?
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No
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Both arbitration and mediation (are)....
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-informal/less formal than a court trial (arbitrations are more formal than mediations) -private -can take place anywhere
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The 2 most common types of ADR are....
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Arbitration and Mediation
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How do you get to ADR?
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-In many contracts (ie employee contracts, health care contracts etc) there is a provision that states all problems will be handled with ADR -Some parties in court agree to take the case out of court and proceed with ADR (saves $$$ and time) -The court may order parties to go to ADR
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In order for a party to bring forward a lawsuit challenging the authority of government action, the party must have _____________.
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Standing.
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What is "standing"?
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The party that is suing the authority of government action mush have a real concrete interest in the outcome of the litigation. It also must be shown that the alleged injury suffered will be remedied by a decision in the injured party's favor.
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What does it mean for a case to become "moot"?
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It means that somewhere along the litigation journey, something happened that took care of the problem. When a case is moot it is no longer available for judicial review.
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All powers not granted to the federal gvt by the US Constitution are retained by... a. congress b. president c. federal admin agencies d. the states
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the states (d)
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the notion of civil disobedience is founded on what school of thought?
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Natural Law
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What does it mean to "remand" a case?
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the case is being returned to trial court for additional consideration
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Legislation is a synonym for
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statutory law
