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Qualities of Law

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Fairness and Flexibility

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U.S. Constitution

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"Supreme Law of the Land" -Any law inconsistent with it cannot be enforced -Establishes structure of the federal government (legislative,executive,&judicial)

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Ordinances (def)

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Law enacted by local government entities such as cities, municipalities, counties, and school districts under powers delegated by the state

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Stare Decisis (def)

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Establishes the pecking order of judicial decisions which serves as a guide to judges deciding subsequent cases

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Priority of Law in the U.S.

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- U.S. constitution and treaties take precedent over all else -Federal statutes take precedence over federal regulation -Valid federal law takes precedence over conflicting state or local law

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Executive Orders

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-Issued by president & state governors ex.prohibiting selling of goods to enemy countries in war time

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State Court Hierarchy

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Limited jurisdiction -> General jurisdiction -> Intermediate appellate court -> Highest state court (supreme court)

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State Court of Limited Jurisdiction

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Can only hear cases of specialized or limited nature -Traffic courts -Juvenile courts -Justice of the peace - Probate courts -Family courts

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General-Jurisdiction Trial Courts (State Courts)

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Hears cases not in jurisdiction of limited jurisdiction trial courts. -Some states divide these into 2 courts: 1)Criminal: Crime against person or property 2)Civil: Everything else! *Decisions are not final!

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Intermediate Appellate Courts (State Courts)

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"Court of appeals" - Hears from limited and general jurisdiction -Reviews for errors made that should be modified or reversed -Usually allow parties oral arguments *decisions NOT final

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State Supreme Court

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"Highest State Court" -Hears from intermediate appealate courts & certain trial courts -Decisions are final, unless involves question that can be sent to the U.S. supreme court

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Limited Jurisdiction (Federal Courts)

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-Given power in constitution -Positions held for life Includes: -Tax court -Court of federal claims -Court of international trade -Bankruptcy court -Court of appeals for armed forces -Court of appeals for veterans claim

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U.S. District Courts

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-Serve geographical areas called "districts" - 94 district courts, lifetime appointment - Trial courts of general jurisdiction - Decisions are not final

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U.S. Court of Appeals

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-Intermediate appellate courts -Serve geographical areas called "circuits" -13 circuit courts each athorized by congress -Lifetime appointments - Generally 3 judges panel, but party can petition (for an enblanc) which would include all judges

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Supreme Court or U.S.

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-Highest court of U.S. -Hear appeals from everything (no new evidence or testimony) -Decisions are FINAL! -10,000 cases submitted each year,only 75-80 are heard every year

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Petition for Certiorari

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Filed to get supreme court to hear your case

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Writ of Certiorari

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Filed if supreme court agrees to take the case

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Types of Supreme Court Decisions

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-Unanimous - All agree -Majority -5 agree with outcome & reasoning -Plurality - atleast 5 judges agree with outcome -Tie -rare -Concurring Opinion -disagree with reasoning -Dissenting Opinion - disagree with both

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Jurisdiction of Federal Courts

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Have power to hear cases involving a federal question or a diversity of citizenship

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Federal Cases Arises from:

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-U.S. constitution -Treaties -Federal statutes and regulations

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Diversity of Citizenship Jurisdiction Arises from:

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- Citizens of different states or countries -A dollar amount exceeding $75,000.00

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Federal Courts Can Over Hear:

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Cases about federal questions including: -Federal crimes -Antitrust -Bankruptcy -Patent & Copyright issues -Suits against the U.S. -Admiralty Cases

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Why Transfer to Federal Court?

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-Belief federal judges are more competent -Federal judges are more experienced - Speedier trials in federal court -Federal courts have wider jury pool

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Standing to Sue (def)

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Plaintiff must have a stake in the outcome of the case

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Inpersonam Jurisdiction

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Plaintiff files with the court , gives courts jurisdiction over himself/herself

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Long arm Statute

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Allows court to obtain personal jurisdiction over people in other states or countries

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Inrem Jurisdiction

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Jurisdiction to hear a case because of jurisdiction over property of the lawsuit, regardless or whether parties live in the state

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Quasi Inrem Jurisdiction

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Allow plaintiff who obtains judgement in one state to try to collect the judgement by attaching property of the defendant in another state

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Litigation Process

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Method for settling disputes Includes: 1)Pretrial process 2)The trial 3) The appeal

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Pretrial Litigation Process (includes)

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-Pleadings: papers filed by Plaintiff and defendant - Discovery -Settlement conference -Pretrial motions

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Complaint

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Filed to initiate a lawsuit 1)Lists parties to the lawsuit 2) States relevant and important facts

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Summons

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Issued when a complaint is filed

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Service of Process

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-Defendant must be served personally(placed in hand of the defendant - If in person isn't possible court may allow through mail or left with adult at defendants residence *Service cannot be done by plaintiff

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Answer

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Filed with court and served on plaintiff -admits or denies allegations -might state affirmative defense -If no answer default is entered, Plaintiff wins!

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Cross-Complaint

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Filled by defendant against, alleges injuries caused by plaintiff

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Reply

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Plaintiff answers cross-complaint

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Intervention

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Other parties with an interest in law suit become parties to the lawsuit

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Consolidation

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Several law suits stemming from same situation filled against common defendant -court can consolidate law suits if no undue justice exist - reduces burden on courts

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Class Action

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When group of plaintiffs collectively bring a lawsuit against defendant (must be certified by the appropriate court) -Commonality is essential -Reduces strain on court -Usually 100's-1000's of people *people have the freedom to opt out

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Statute of Limitations

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Laws that require plaintiff to file a lawsuit within a reasonable amount of time after alleged injury occurs. *discovery rule- may extend time

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Discovery

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Process of discovering facts about the case & witness before trial

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Purpose of Discovery

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-Preventing surprises during trial -Allows parties to thoroughly prepare for trial -Preserving evidence -Saving court time -Promoting settlement of cases

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Major Forms of Discovery are:

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1)Deposition 2)Interrogatories 3)Production of Documents 4)Physical & Mental Examination 5)Objections

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Deposition (def)

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Oral testimony given under oath by a party or witness prior to trial and transcribed by a court reporter -Parties in the lawsuit must transcribe to a deposition -Witnesses can volunteer

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Purpose of Depostion

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-Preserve evidence in the event the deponent is not available -Can be used to impeach testimony that deponent gives

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Interrogatories

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Written question submitted by one party or another that must be answered within a certain amount of time *signed under oath

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Production of Documents

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Requests by a party to another to provide inspection copies of all documents (relating to lawsuit)

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Objections

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Parties can file to deny requests for depositions,interrogatories,production of documentation, and physical or mental exams

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Pretrial Motions (def)

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Request by a party to judge that seeks to dispose of all or part of lawsuit prior to trial

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Types of Motions

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1)Motion to dismiss 2)Motion for judgement on the pleadings 3)Motion for summary judgement

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Motion to Dismiss

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Defendant files this before filing an answer asserting the complaint states no facts by which the defendant could be held liable under applicable law

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Motion for Judgement on the Pleadings

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Defendant or plaintiff files this after pleadings have been made

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Motion for Summary of Judgement

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Filed usually after period of discovery. Agreement on facts, clear winner!

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Settlement Conference

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"Pretrial Hearing" -Informal hearing over which judge presides - Judge attempts to facilitate settlement

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Why Settle?

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-Fear of losing -Litigation is expensive - Money recovered may not be worth it -Prevent exposure of sensitive info -Disruptive to business

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Trial Facts

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-7th amendment guarentees right to a jury trial -Jury trial held upon request or either party -If both parties agree to waive jury trial, trial will be without a jury - Judge is trier of facts in nonjury case

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Phases of Trial

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1)Jury selection 2)Opening statements 3)Plaintiffs case 4)Defendants case 5)Closing arguments 6)Jury instructions 7)Jury deliberation 8)Entry of judgement

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Plaintiff's Case

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-Witness testify under direct examination -Cross-examination: only ask within scope of examination -Re-direct examination: Question witness again within scope of examination

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Jury Instructions

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-Judge instructs jury on the law to apply to facts in the case

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Judgement notwithstanding the decision

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Judge can overthrow the jury's decision of completely upsurd

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Remittitur

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Judge reduce monetary damages

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Appeal

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-Filed once judgement is entered -Appellant or petitioner-filled appeal -Appelle or respondent - receive appeal *In criminal case only defendant can appeal, constitution prohibits double jeopardy

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Alternative Dispute Resolution (ADR)

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-Doesn't involve judges or court to have dispute resolved -Neutral party acts a judge - Arbitration vs Mediation

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Arbitration

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-Parties choose neutral third party called an Arbitrator to hear evidence and testimony and decide the case -Parties can agree to binding or non-binding arbitration

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Mediation

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-Parties choose a neutral third party called a Mediation to assist with settlement efforts -If settlement is not reached case proceeds to trial

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Federalism and Delegated Powers

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-Powers not specifically delegated to the federal government are reserved to the state governments

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Doctrine of Separation and Checks and Balances

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-Established 3 branches of the federal government (executive, legislative, & Judicial) -checks make sure no branch ever becomes to powerful

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Supremacy Clause

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-State and local laws that conflict with valid federal law are unconstitutional and are deemed to be preempted

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Preemption Doctrine

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The concept that federal law takes precedence over state or local law

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3 Types of Commerce Government can regulate?

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-Commerce with Native American tribes -Foreign commerce -Interstate commerce

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Interstate Commerce

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-Any activity that has an effect on interstate commerce is subject to federal regulation as long as it has a substantial effect on interstate commerce, even if the activity itself is not in interstate commerce

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Purpose of Interstate Commerce

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All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation

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First Amendment

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-Freedom of speech, press, religion, peaceable assembly, and to petition the government

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Second Amendment

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-Right for the people to keep and bear arms, as well as to maintain a militia

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Third Amendment

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-Protection from quartering of troops

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Fourth Amendment

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-Protection from unreasonable search and seizure

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Fifth Amendment

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-Due process, double jeopardy, self-incrimination, private property

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Sixth Amendment

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-Trial by jury and other rights of the accused

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Seventh Amendment

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-Civil trial by jury

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Eighth Amendment

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-Prohibition of excessive bail, as well as cruel and unusual punishment

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Ninth Amendment

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-Protection of rights not specifically enumerated in the Bill of Rights

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Tenth Amendment

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-Powers of states and people

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Bill of Rights

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Guarantees certain fundamental rights to natural persons

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Incorporation Doctrine

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Makes states adhere to the 10 Amendments will the federal government

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3 Types of Speech

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1)Fully protected speech 2)Limited protected speech 3)Unprotected speech

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Fully Protected Speech

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Cannot be regulated or prohibited by the government

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Limited Protected Speech

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Cannot be prohibited but can be regulated ex.vulgar TV but be shown later at night

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Unprotected speech

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Can be prohibited and regulated ex.Dangerous,threatening or violent speech

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Tort (Def)

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-An area of the civil law under which an injured person files a lawsuit to receive monetary compensation from the person who caused the injury

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3 Types of Tort

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1) Intentional torts 2) Unintentional (Negligent) torts 3) Strict liability tort

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Compensatory Tort damages

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-Actual damages of the injured person such as lost wages, pain and suffering, mental distress, and past and future medical expenses

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Punitive damages

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-Punishes the defendant for outrageous conduct and seeks to deter such conduct in the future

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Types of Intentional Torts

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1)Assault 2)Battery 3)False Imprisonment 4)Misappropriation of the right to publicity 5)Defamation of character 6)Disparagement

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Assault

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- An intentional act that makes another person reasonably apprehensive of imminent harmful or offensive contact -Physical contact doesnt need to be made *must be imminent

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Battery

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-The intentional harmful or offensive physical contact with another person without that person's consent which results in injury ex.Spitting on someone,throwing a rock,punching

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False Imprisonment

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-Intentional confinement or restraint of another person without authority or justification and without that persons consent -If there is a means of escape, there is no false imprisonment *Person is not required to take dangerous risks or act with indignity to escape

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Ways of falsely imprisoning:

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-Physical force -Barriers -Threats of physical violence -False assertion of legal authority

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Shoplifting & Merchant Protection Stautes

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A defense against a complaint of false imprisonment but there must be: -Reasonable grounds for suspicion -Suspect detained only for a reasonable amount of time -Suspect is investigated in a reasonable manner

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Misappropriation of the Right to Publicity

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-Right to earn a living off your own identity for COMMERCIAL purposes

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Types of Defamation of Character

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-Slander: Oral defamatory statements -Libel: Written defamatory statements

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In Defamation Defendants Must Prove:

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-Untrue statement of fact about plaintiff was made by the defendant -Statement was intentionally or accidentally published to a third party *A third party must hear the statement

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Disparagement

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Untrue statement made about products, services, property, or reputation of a business

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Unintentional Torts (def)

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A doctrine that says a person is liable for harm that is the forseeable consequence of his/her actions

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Negligence (def)

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Omission to do something which a reasonable person would do or doing something a reasonable person would not do

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Elements of Negligence

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-Defendant owed duty of care -Defendant breached duty of care -Plaintiff suffered injury -Defendants act cause plaintiffs injury -Defendants negligent act was the proximate cause of plaintiff's injury

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Duty of Care

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Obligation each person has to another to act with the attentiveness, caution, and prudence with which a reasonable person in the circumstance would

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