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119 Cards in this Set
- Front
- Back
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List 4 procedure in how cases are brought/decided in trial courts
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1. Presentation of evidence
2. Determination of applicable law 3. Application of decided facts to applicable law 4. Jury finder of fact- judge determiner of law and instructions to jury |
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What does the appellate court do?
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Reviews the court transcript of trial court to determine if the trial court was incorrect in its trial.
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What is the difference in Appellate court?
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There are no new evidence presented and no jury present, everything is based on written documented records.
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What is Judicial Review?
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Constitutional doctrine that gives to court system the power to annul legislature or executive acts which judges declare unconstitutional.
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What is brief?
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Legal arguments explaining the case which is brought by the attorney.
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What is oral argument?
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Time limited presentation of each side of a case before an appeal court
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What is majority opinion?
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judicial opinion agreed to by more than half of the members of a court. A majority opinion sets forth the decision of the court and an explanation of the rationale behind the court's decision.
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What is dissenting opinion?
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opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment.
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What is reversible error?
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an error by the trier of law (judge) or the trier of fact (the jury or the judge if it is a bench trial) or malfeasance by one of the trying attorneys which results in an unfair trial.
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remand
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to send back...case to trial court to re do trial.
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What is affirm?
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Make firm, repeat agreement; confirm
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What is modify?
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a change or alternation to the case
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What does a Appellate court do?
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Review a trial court record to ensure proper application of the law
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Is evidence and jury present at Appellate court?
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No
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What does Jurisdiction in latin mean?
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"I speak by the law"
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What does jurisdiction mean when used in reference to court?
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Refers to power and authority over court
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Jurisdiction is also political boundaries of state and federal courts and it has jurisdiction over:
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1. subject matter
2. persons and property |
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What are some of the jurisdiction factors:
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1. dollar amount pled
2. civil or criminal action 3. remedy requested 4. nature of problem |
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what is a concurrent jurisdiction?
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power of more than one court to hear a case
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What does subject matter jurisdiction determine?
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determines which type of case a court can hear.
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what does probate courts handle?
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only wills and estate matters
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what is limited jurisdiction?
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limitation on a court as to the types of cases it can hear and decide.
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What is general jurisdiction?
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authorization of a court to hear and decide virtually any type of case occuring within the political boundaries of the geographical area which it is located.
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What is a venue?
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local place within the geographical bounaires of a larger jurisdiction where a case is generally most appropriately tried.
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what is motion for change of venue?
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request to a judge by the counsel to transfer the trial to a different geographic location within the jurisdiction of the court.
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what is 'in personam jurisdiction'
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the power of a court over aperson
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what does summons mean?
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an order informing the person that a lawsuit has been filed against him/her.
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what is a long-arm statue?
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a state law authorizing a court to hear case brought against nonresidents under specified circumstances.
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what are the two requirements before a plaintiff can get jurisdiction over an out-of-state defendant?
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1. state must have a statue that authorizes the state to get jurisdiction under the particular circumstances.
2. constitutional requirement that the basis for jurisdiction must satisfy procedural due process. |
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what is 'in rem jurisdiction"
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the power of a court to declare rights against the world rather than society against the named defendant.
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what is Private Law?
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body of law regulating the rights and duties that exist between private persons ("persons" being a term that includes corporations).
Contract law is an example of private law |
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what is Public Law?
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includes constitutional, administrative, criminal, and international law, all of which are more directly concerned with public rights and obligations.
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what is Procedural Law?
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consists of all the rules or mechanisms, for processing civil and criminal cases through the federal and state judicial systems. "lawyers law".
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What is Substantive Law?
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defines duties, establishes rights, and prohibits wrongs. The substantive law prohibits murder, requires a real estate agent to be licensed, and imposes speed limits and registration requirements on automobile drivers.
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What is Positive Law?
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sometimes also called black-letter law;is the rules members of a society are obliged to obey to avoid punishment or penalty imposed by the government.
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what is Criminal responsibility concern?
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Is concerned with the behavior of the criminal
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what is Civil liability concerned with?
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Is concerned with the victim
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who is an Appellant?
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is a party who appeals a case to another court, sometimes calledpetitioner, usually when the case involves matter in equity.
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Disqualification of Lawyer's New Firm
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A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer was formerly associated had previously represented a client (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired confidential information that is material to the matter; unless the former client gives informed, written consent.
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Common Law: as a system of law?
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the total system of law that originated in medieval England and was adopted by the U.S at the time of the American Revolution.
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what is Action in equity?
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a civil trial held without a jury when relief sought by the plaintiff is equitable in nature; such as an injunction, or a divorce or dissolution of a marriage.
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Common law: as a type of law ?
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that law which comes from the common courts as opposed to a legislature or court of equity
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what is Federalism?
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A government consisting of a union of more of less self-governing states under an umbrella of federal government
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what is Stare decisis?
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-"to stand by things that have been settled" is a common-law doctrine that binds an inferior (subordinate) court to follow and apply decisions and interpretations of higher courts when similar cases arise. Also called the doctrine of precedents.
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what is a Precedent?
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A court decision on a question of law that gives authority or direction on a similar question of law in a later case with similar facts.
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what is an Unwritten law?
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a reference to court-or judge-made law.
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what is a Reporter?
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set of books that contain the written opinions of justices of specified appellate courts. They contain the decisional, or unwritten, law.
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what are Statutes?
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laws enacted by Congress or by state legislatures.
Federal statutory law is limited to matters of federal jurisdiction--> refers to the power or authority the federal government is given to enact statues under the U.S. Constitution. |
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what is an Ordinance?
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a written law enacted by a city or county
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what is Written law?
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the statutes and ordinances of federal, state, and local governments, and the published rules of administrative agencies.
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what are Codes?
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compilations of statutes that are grouped together by subject matter ; ex. A vehicle code.
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what is a Doctrine of supremacy?
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The constitutional doctrine that applies whenever the U.S and a state or local government enact conflicting laws on the same subject. Under this constitutional doctrine, the federal law prevails.
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what is a Case or controversy?
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a requirement that courts may decide only cases in which an actual conflict between persons exists.
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Judicial activists?
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judges whose judicial philosophy includes treating the law as a vibrant and active source of rules. When faced with new issues (e.g., social), such judges are likely to see the Constitution as a flexible document and stare decisis as challengeable when they believe important social needs must be addressed.
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Strict constructionists?
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judges whose reading of the law narrowly interprets legal words and who subscribe to interpreting the law consistent with the believed meaning given it by the drafters.
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what is an Initiative?
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an electoral process for making new statutes or changing the constitution by filling appropriate formal petitions to be voted upon by legislature (and governor) or by the total electorate. The initiative is not available in all states.
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Federal V. State:
a) federal: |
constitution
statues treaties executive orders rules and regulations |
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Federal V. State:
b) State |
constition
statues executive orders ordinances rules and regulations the people |
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what is the three spheres of justice?
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Distributive Justice,
Retributive Justice, Compensatory Justice |
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what is distributive justice?
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Distributive justice concerns what some consider to be socially just with respect to the allocation of goods in a society.
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What is retributive justice?
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Retributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society.
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What is compensatory justice?
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The extent to which injured parties are compensated for their injuries by those who have injured them
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Under case briefings, what is fact?
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those that bear on the issue(s) to be decided
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Under case briefings, what is the issue?
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what legal question(s) is the court addressing?
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Under case briefings, what is the holding?
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what is the final ruling by the court? who won?
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Under case briefings, what is the rationale?
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rule of law the court applies, worked against the fact
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Federal V. State:
a) federal: |
constitution
statues treaties executive orders rules and regulations |
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Federal V. State:
b) State |
constition
statues executive orders ordinances rules and regulations the people |
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what is the three spheres of justice?
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Distributive Justice,
Retributive Justice, Compensatory Justice |
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what is distributive justice?
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Distributive justice concerns what some consider to be socially just with respect to the allocation of goods in a society.
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What is retributive justice?
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Retributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society.
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What is compensatory justice?
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The extent to which injured parties are compensated for their injuries by those who have injured them
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Under case briefings, what is fact?
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those that bear on the issue(s) to be decided
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Under case briefings, what is the issue?
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what legal question(s) is the court addressing?
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Under case briefings, what is the holding?
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what is the final ruling by the court? who won?
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Under case briefings, what is the rationale?
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rule of law the court applies, worked against the fact
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Federal V. State:
a) federal: |
constitution
statues treaties executive orders rules and regulations |
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Federal V. State:
b) State |
constition
statues executive orders ordinances rules and regulations the people |
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what is the three spheres of justice?
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Distributive Justice,
Retributive Justice, Compensatory Justice |
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what is distributive justice?
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Distributive justice concerns what some consider to be socially just with respect to the allocation of goods in a society.
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What is retributive justice?
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Retributive justice is a theory of justice that considers that punishment, if proportionate, is a morally acceptable response to crime, with an eye to the satisfaction and psychological benefits it can bestow to the aggrieved party, its intimates and society.
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What is compensatory justice?
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The extent to which injured parties are compensated for their injuries by those who have injured them
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Under case briefings, what is fact?
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those that bear on the issue(s) to be decided
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Under case briefings, what is the issue?
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what legal question(s) is the court addressing?
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Under case briefings, what is the holding?
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what is the final ruling by the court? who won?
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Under case briefings, what is the rationale?
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rule of law the court applies, worked against the fact
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what is a legal remedyor 'damages'
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$
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what is "equitable remedy"?
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Court-ordered action that directs parties to do or not to do something; such remedies include injunctive relief and specific performance
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What's the difference of equitable and legal remidy?
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You're not getting money or compensation for damages instead you're getting a court backed behavioral -injunctive relief
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what are Two kinds of injunction?
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Mandatory and Prohibitory
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what is mandatory injunction?
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order someone to do something
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what is prohibitory injunction?
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ordering somebody to stop doing something
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What is defense or privilege?
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When the law defines an exception to the general rule
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What's the difference between a fine and a legal remedy?
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Fine-government gets fine legal remedy -victim
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Two kinds of remedies:
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Civil, Criminal
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what is civil remedy?
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legal remedies and or equitable remedy , injunctive relief
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What is criminal remedy?
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jail, probation, fine, equitable remedies, restitution, restraining order
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what is it possible to get equitable remedy in a criminal situation?
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It is also possible in a criminal situation you can get some criminal equitable remedy, but their only criminal laws and cases
Protective order, domestic restraining order, sometimes court can issue restitution. -these are types of criminal Court can order |
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what is the difference between substantive and procedural?
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Substantive law defines a standard conduct
- Procedural, your talking about the process and procedure in enforcing the standards of conduct. And these will be specified in mechanism in other words, how you would get your remedies. |
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What is the difference between criminal law and civil law?
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Criminal law -are any wrong involving a fine or imprisonment or both.
Civil law -every law that is not criminal, by its nature. |
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Criminal law is public by nature, why is that?
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because it is the public as a whole that is wronged, which is why if you commit a crime, you get prosecuted by a government-state vs you, or u.s. vs. you -criminal law is public wronged.
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what are private laws?
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laws defining rights and wrongs between private persons -private person private business
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difference between international law and domestic law?
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Laws are either international or domestic
Treaties ex. Of international law International -laws defining between sovereign nations Domestic -laws defining within in its own borders |
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Common Laws are...
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judge made law-in this country judges can make law, they make it upon customs and usages of the people and the original source---> English common law
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Statutory law is ?
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law made by legislatures -in government ..admin agencies.
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Is the landlord tenant law, common law or statutory?
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Statutory because the state made law-statutory law…
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Landlord tenant law is civil or criminal? substantive or procedural?
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civil, substantive
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what is the adversarial system?
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system of law that relies on the contest between each advocate representing his or her party's positions and involves an impartial person or group of people, usually a jury or judge, trying to determine the truth of the case. ...
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what is the inquisitorial system?
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legal system used in some countries that allows the judge to investigate, question witness, and seek out evidence before a trial
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what is a fiduciary relationship?
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When one person stands in a special relationship of trust, confidence or responsibility to another.
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in propria persona (in pro se) term means?
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meaning the person represents him/herself in a legal action with out the appearance of an attorney
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contingency fee?
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fixed percentage of the $ recovery obtained by a lawyer for a client. it is agreed in advance and accepted in full payment.
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public interest law firms are
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non profit law firm that offer assistance in area such as employment, minority rights, family law, political rights, environmental law.
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attorney-client privilege?
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right of a client to keep communications with his or her attorney confidential and free from disclosure
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retainer fee?
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an advance payment for legal services on a flat or continuing basis.
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what's class actions?
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when all memebers of a group of persons who havce suffered the same or similar injury join together in a single lawsuit.
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Right to counsel is which amendment?
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6th: "right to a speedy and public trial"
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due process?
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requirement that legal proceeding (including arrest, civil and criminal trials and punishment) comply with the u.s constitution and other applicable substantive and procedural laws.
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incorporation doctrine?
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supreme court's utilization of he 14th amendment to the find bill of rights limitations on state and local government
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