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Substantive law

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establishes rights and duties of people and entities, oftentimes with respect to one another

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Procedural law

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or procedure, the process that parties use to enforce those substantive rights and duties

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Courts

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theoretically, courts are fair and impartial tribunals established by the government -- state or federal -- to settle or resolve disputes.

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The Court System

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Federal Courts

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article III of the US constitution states that the judicial power of the US shall be vested in one Supreme Court and such lower courts that Congress establishes. Such as-

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District Courts

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trial courts of general jurisdiction that can hear and decide most legal controversies in the Federal system. they are considered to be courts of Original Jurisdiction, meaning legal disputes originate there.

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Courts of Appeals

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hear appeals from the district courts and review orders of certain admisistrative agencies. they generally exercise APPELLATE JURISDICTION, hear decisions appealed from lower courts. the appellate court makes a decision about a case appealed to it by 3 options: affirm, reverse and render, or reverse and remand.

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The Supreme Court

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our nation's highest court. its principal function is to review decisions of the Federal Courts of Appeals and the highest State courts

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State Courts

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each of the 50 states and D.C. has their own court system

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Inferior Trial Courts

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hear minor criminal cases, such as traffic offenses, civil cases involving small amounts of money. In MS, these courts are justice courts. they can exercise jurisdiction over misdemeanors and civil controversies up to $3,500

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Trial Courts

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general jurisdiction over civil and criminal cases. MS is one of few remaining states to have a dual trial court system. We have Circuit Courts, which are courts of law- hear money disputes.

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Special Trial courts (Chancery Courts in MS)

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like probate courts and family courts, have jurisdiction over a particular area of state law. these Chancery courts are courts of equity, and their jurisdiction is limited to specific kinds of lawsuits - estates, divorces, minors accountings, real estate.

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Appellate Courts

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include one or two levels; MS has two levels of appellate courts -intermediate court of appeals and the supreme court of mississippi. highest courts decisions are final except in those cases reviewed by the U.S. Supreme Court. As with federal appellate courts, these are not courts of original jurisdiction.

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Jurisdiction

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the power or authority that a court has to make a binding resolution a dispute over a particular kind of case and the parties to that case.

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Subject Matter Jurisdiction

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the authority of a court to decide a particular kind of case

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Subject Mattter Jurisdiction in Fed Courts

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...

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Exclusive Federal Jurisdiction

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where federal courts have sole jurisdiction over federal crimes, bankruptcy, antitrust, patent, trademark, copyright, and other specified cases.

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Concurrent Federal Jurisdiction

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where more that one court, state or federal, have the authority to hear the same case; State and Federal courts have concurrent Jurisdiction over FEDERAL QUESTION CASES and DIVERSITY of CITIZENSHIP cases. Federal question cases - cases arising under the Constitution, statutes, or treaties of the US that do not involve exclusive Federal jurisdiction. Diversity of citizenship cases- involves disputes between residents of different states and having an amount in controversy in excess of $75,000.

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State Jurisdiction

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state courts have exclusive jurisdiction over all matters to which the federal judicial power does not reach. -jurisdiction over the parites refers to the power of a court to bind the parties to a suit.

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Personam Jurisdiciton

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jurisdiction based upon claims against a person, in contrast to jurisdiction over the person's property.

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rem jurisdiction

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involves jurisdiction over property

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Attachment Jurisdiction

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jurisdiciton over a defendant's property to obtain payment of a claim not related to the property.

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Venue

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refers to the geographical area in which a lawsuit should be brought.

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Civil dispute Resolution

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Civil procedure

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the process by which parties use the courts to enforce their substantive rights.

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Pleadings

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a series of statements that give notice of the parties' claims and defenses, and they establish the issues of fact and law that are presented and disputed (joined)

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most commonly allowed pleadings:

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complaint

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the initial pleading by the plaintiff stating his case.

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Summons

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notice given to inform a person of a lawsuit against her

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Answer

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the defendant's pleading in response to the plaintiff's complaint

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Counterclaim

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a claim made by a defendant against a plaintiff. The defendant is required to answer a counterclaim.

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Pretrial Procedure

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the process that requires the parties to disclose what evidence is available to prove the disputed facts; designed to encourage settlement of cases or to make the trial more efficient.

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Components of pretrial procedure include:

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...

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Discovery

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the right of each party to obtain evidence from the other party, and includes mechanisms such as interrogatories, requests for production requests for admission, and depositions.

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Summary Judgment

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consists of a final ruling by the judge in favor of one party based on the evidence disclosed by discovery.

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Pretrial Conference

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a conference between the judge and the attorneys to simplify the issues in dispute and to attempt to settle the dispute without trial.

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Trial

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determines the facts and the outcome of the case. They may be "jury trials" or "bench trials".

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Jury Selection

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each party has an unlimited number of challenges for cause and a limited number of peremptory challenges.

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Conduct of trial

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opening statements by attorneys, direct and cross-examination of witnesses, and closing arguments.

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Directed Verdict

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final ruling by the judge in favor of one party based on the evidence introduced at trial

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Jury Instructions

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there the judge gives the jury the particular rules of law that apply to the case proof.

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Verdict

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the jury's decision based on the those facts the jury determines the evidence proves

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Motions challenging the Verdict

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include motions for a new trial and a motion for judgment notwithstanding the verdict

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Appeal

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determines whether the trial court committed prejudicial error

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Enforcement

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how the plaintiff attempts to collect an unpaid judgment. The plaintiff may resort to a writ of execution to have the sheriff seize property of the defendant or a garnishment to collect money owed to the defendant by a third party.

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Alternative Dispute Resolutions-

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...

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Arbitration

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different types of nonjudicial proceedings in which a neutral party selected by the disputants, which may or may not render a binding decision or award, depending on the type process being used.

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Conciliation

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non-binding process in which a third party acts as an intermediary between the disputing parties

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Mediation

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non-binding process in which a third party acts as an intermediary between the disputing parties and proposes solutions for them to consider. Agreements reached in mediation can become binding contracts.

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Mini-Trial

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non-binding process in which attorneys for the disputing parties (typically corporations) present evidence to managers of the disputing parties and a third neutral party, after which the managers attempt to negotiate a settlement in consultation with the third party.

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Summary Jury Trial

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mock trial followed by negotiations

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Negotiation

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consensual bargaining process in which the parties attempt to reach an agreement resolving their dispute without the involvement of third parties.

Chapter 3 – Civil Dispute Resolution – Flashcards

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