Bus Law Today Ch. 3 Terms & Review 10Th Ed. Miller

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Judicial Review

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The process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch.

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Jurisdiction

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The authority of a court to hear and decide a specific case. Before any court can hear a case, it must have jurisdiction over the person (or company) against whom the suit is brought (the defendant) or over the property involved in the suit. The court must also have jurisdiction over the subject matter of the dispute.

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Long Arm Statute

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A state statute that permits a state to exercise jurisdiction over nonresident defendants based on activities that took place within the state. The court must be convinced that the defendant had sufficient contacts, or minimum contacts, with the state to justify the jurisdiction.

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Probate Court

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A state court of limited jurisdiction that conducts proceedings relating to the settlement of a deceased person's estate (transfer of assets and obligations, including matters relating to custody and guardianship of children).

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Bankruptcy Court

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A federal court of limited jurisdiction that handles only bankruptcy proceedings, which are governed by federal bankruptcy law.

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Federal Question

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A question that pertains to the U.S. Constitution, an act of Congress, or a treaty and provides a basis for federal jurisdiction in a case. Whenever a plaintiff's cause of action is based, at least in part, on the U.S. Constitution, a treaty, or a federal law, then a federal question arises, and the federal courts have jurisdiction. Any lawsuit involving a federal question, such as a person's rights under the U.S. Constitution, can originate in a federal court. Note that in a case based on a federal question, a federal court will apply federal law.

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Diversity of Citizenship

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A basis for federal court jurisdiction over a lawsuit between citizens of different states and countries. The most common has two requirements: (1) the plaintiff and defendant must be residents of different states, and (2) the dollar amount in controversy must excess $75,000. For purposes of diversity jurisdiction, a corporation is a citizen of both the state in which it is incorporated and the state in which its principal place of business is located. If the case starts in a state court it can sometimes be transferred, or "removed", to a federal court.

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Concurrent Jurisdiction

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Jurisdiction that exists when two different courts (federal and state) have the power to hear a case.

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Exclusive Jurisdiction

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Jurisdiction that exists when a case can be heard only in a particular court or type of court.

Federal courts have exclusive jurisdiction in cases involving federal crimes, bankruptcy, patents, and copyrights; in suits against the United States; and in some areas of admiralty law (law governing transportation on the seas and ocean waters).

State courts also have exclusive jurisdiction over certain subject matter - for instance, divorce and adoption.

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Venue

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The geographic district in which a legal action is tried and from which the jury is selected (the most appropriate physical location for a trial).

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Standing to Sue

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The legal requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The party bringing the lawsuit must have suffered a harm, or have been threatened by a harm, as a result of the action about which she or he has complained. Also requires the controversy at issue be a justiciable controversy.

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Justiciable Controversy

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A controversy that is not hypothetical or academic but real and substantial; a requirement that must be satisfied before a court will hear a case.

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Small Claims Court

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A special court in which parties can litigate small claims without an attorney. Small claims courts are inferior trial courts that hear only civil cases involving claims of less than a certain amount, such as $5,000 (the amount varies from state to state). Suits brought in small claims courts are generally conducted informally, and lawyers are not required (in a few states, lawyers are not even allowed).

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Appellate, or Reviewing, Courts

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Every state has at least one court of appeals (appellate court, or reviewing court), which may be an intermediate appellate court or the state's highest court. Generally, courts of appeals do not conduct new trials, in which evidence is submitted to the court and witnesses are examined. Rather, an appellate court panel of three or more judges reviews the record of the case on appeal, which includes a transcript of the trial proceedings, and determines whether the trial court committed an error.

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The State and Federal Court Systems

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Each state has its own court system. There are fifty-two court systems - one for each of the fifty states, one for the District of Columbia, plus a federal system - similarities abound.

Federal courts are not superior to the state courts. They are simply an independent system of courts, which derives its authority from Article III, Sections 1 and 2, of the U.S. Constitution.

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Trial Courts

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Courts in which trials are held and testimony taken. State trial courts have either general or limited jurisdiction. Trial courts that have general jurisdiction as to subject matter may be called county, district, superior, or circuit courts. The jurisdiction of these courts is often determined by the size of the county in which the court sits. State trial courts of general jurisdiction have jurisdiction over a wide variety of subjects, including both civil disputes and criminal prosecutions. (In some states, trial courts of general jurisdiction may hear appeals from courts of limited jurisdiction.)

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Question of Fact

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In a lawsuit, an issue that involves only disputed facts, and not what the law is on a given point. Appellate courts generally focus on questions of law, not questions of fact. A question of fact deals with what really happened in regard to the dispute being tried - such as whether a party actually burned a flag.

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Question of Law

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In a lawsuit, an issue involving the application or interpretation of a law. A questions of law concerns the application or interpretation of the law - such as whether flag-burning is a form of speech protected by the First Amendment of the U.S. Constitution. Only a judge, not a jury, can rule on questions of law.

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Writ of Certiorari

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A writ from a higher court asking a lower court for the record of a case.

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Rule of Four

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A rule of the United States Supreme Court under which the Court will not issue a writ of certiorari unless at least four of the nine justices approve of the decision to issue the writ.

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Litigation

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The process of resolving a dispute through the court system.

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Procedural Law

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The rules and standards for determining disputes in courts. Procedural rules are very complex, and they vary from court to court and from state to state. In addition to the various set of rules for state courts, the federal courts have their own rules of procedure. The applicable procedures will depend on whether the case is a civil or criminal proceeding.

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Pleadings

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Statements by the plaintiff and the defendant that detail the facts, charges, and defenses of a case. The complaint and answer (and the counterclaim and reply) taken together are called the pleadings. The style and form may be different in different states.

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Complaint

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The pleading made by a plaintiff alleging wrongdoing on the part of the defendant. While filed with a court, the complaint initiates a lawsuit. The complaint contains a statement alleging (1) the facts necessary for the court to take jurisdiction, (2) a brief summary of the facts necessary to show that the plaintiff is entitled to relief (a remedy), and (3) a statement of the remedy the plaintiff is seeking. Complaints may be lengthy or brief, depending on the complexity of the case and the rules of the jurisdiction.

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Summons

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A document informing a defendant that a legal action has been commenced against her or him and that the defendant must appear in court on a certain date to answer the plaintiff's complaint.

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Default Judgment

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A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim. Meaning the plaintiff could be awarded the damages sought in her complaint.

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Damages

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A monetary award sought as a remedy for a breach of contract or a tortious action.

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Answer

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Procedurally, a defendant's response to the plaintiff's complaint. The defendant's answer either admits the statements or allegations set forth in the complaint or denies them and outlines any defenses that the defendant may have.

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Counterclaim

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A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.

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Reply

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Procedurally, a plaintiff's response to a defendant's answer. A pleading, normally called a reply, which has the same characteristics as an answer.

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Motion to Dismiss

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A pleading in which a defendant admits the facts as alleged by the plaintiff but asserts that the plaintiff's claim to state a cause of action has no basis in law. Grounds for dismissal of a case include improper delivery of the complaint and summons, improper venue, and the plaintiff's failure to state a claim for which a court could grant relief. If the judge grants the motion to dismiss, the plaintiff generally is given time to file an amended complaint. If the judge denies the motion, the suit will go forward, and the defendant must then file an answer.

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Motion for Judgment on the Pleadings

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A motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute. In deciding on the motion, the judge may consider only the evidence contained in the pleadings.

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Motion for Summary Judgment

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A motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute, such as sworn statements (affidavits) by parties or witnesses, or other documents relating to the case. Like the motion for judgment on the pleadings, a motion for summary judgment will be granted only if there are no genuine questions of fact and the sole question is a question of law.

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Discovery

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A method by which the opposing parties obtain information from each other to prepare for trial. Discovery includes gaining access to witnesses, documents, records, and other types of evidence. The Federal Rules of Civil Procedure and similar rules in the states set forth the guidelines for discovery. Generally, discovery is allowed regarding any matter that is not privileged and is relevant to the claim or defense of any party.

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Deposition

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The testimony of a party to a lawsuit or a witness taken under oath before a trial. A deposition is sworn testimony by a party to the lawsuit or any witness. The person being deposed (the deponent) answers questions asked by the attorneys, and the questions and answers are recorded by an authorized court official and sworn to and signed by the deponent. (Occasionally, written depositions are taken when witnesses are unable to appear in person.)

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Interrogatories

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A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath. The main difference between interrogatories and written depositions is that interrogatories are directed to a party to the lawsuit (the plaintiff or the defendant), not to a witness, and the party can prepare answers with the aid of an attorney. The scope of interrogatories is broader because parties are obligated to answer the questions, even if that means disclosing information from their records and files.

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E-Evidence

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A type of evidence that consists of all computer-generated or electronically recorded information. Any relevant material, including information stored electronically, can be the object of a discovery request. The federal rules and most state rules now specifically allow all parties to obtain electronic "data compilations." Electronic evidence, or e-evidence, includes all types of computer-generated or electronically recorded information, such as e-mail, voice mail, tweets, blogs, spreadsheets, as well as documents and other data stored on computers.

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Voir Dire

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An important part of the jury selection process in which the attorneys question prospective jurors about their backgrounds, attitudes, and biases to ascertain whether they can be impartial jurors.

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Motion for a Directed Verdict

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A motion for the judge to take the decision out of the hands of the jury and to direct a verdict for the party making the motion on the ground that the other party has not produced sufficient evidence to support evidence to support her or his claim. (Known in federal courts as a motion for judgment as a matter of law.)

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Award

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The monetary compensation given to a party at the end of a trial or other proceeding.

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Motion for Judgment N.O.V. (Latin non obstante veredicto, which means "notwithstanding the verdict")

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A post trial motion requesting the court to grant judgment in favor of the party making the motion on the ground that the jury's verdict against him or her was unreasonable and erroneous.

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Motion for a New Trial

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A motion asserting that the trial was so fundamentally flawed (because of error by the judge, newly discovered evidence, prejudice, misconduct by the participants or the jury during the trial or another reason) that a new trial is necessary to prevent a miscarriage of justice.

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Brief

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A written summary or statement prepared by one side in a lawsuit to explain its case to the judge. The brief is a formal legal document outlining the facts and issues of the case.

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Docket

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The list of cases entered on a court's calendar and thus scheduled to be heard by the court.

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Alternative Dispute Resolution (ADR)

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The resolution of disputes in ways other than those involved in the traditional judicial process, such as negotiation, mediation, and arbitration.

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Negotiation

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A process in which parties attempt to settle their dispute informally, with or without attorneys to represent them. This is the simplest for of ADR.

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Mediation

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A method of settling disputes outside the courts by using the services of a neutral third party, who acts as a communicating agent between the parties and assists them in negotiating a settlement. The mediator may propose a solution (called a mediator's proposal), but does not make a decision resolving the matter.

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Arbitration

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The settling of a dispute by submitting it to a disinterested third party (other than a court), who renders a decision. A more formal method of ADR, an arbitrator hears a dispute and imposes a resolution on the parties. Arbitration differs from other forms of ADR in that the third party hearing the dispute makes a decision for the parties.

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Arbitration Clause

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A clause in a contract that provides that, in the event of a dispute, the parties will submit the dispute to arbitration rather than litigate the dispute in court.

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Summary jury Trial (SJT)

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A method of settling disputes by holding a trial in which the jury's verdict is not binding but instead guides the parties toward reaching an agreement during the mandatory negotiations that immediately follow.

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Online Dispute Resolution (ODR)

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The resolution of disputes with the assistance of organizations that offer dispute-resolution services via the Internet.

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What is judicial review? How and when was the power of judicial review established?

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The courts can decide whether the laws or actions of the legislative and executive branches of government are constitutional. The process for making this determi­nation is judicial review. The doctrine of judicial review was established in 1803 when the United States Supreme Court decided Marbury v. Madison.

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Before a court can hear a case, it must have jurisdiction. Over what must it have jurisdiction? How are the courts applying traditional jurisdictional concepts to cases involving Internet transactions?

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To hear a case, a court must have jurisdiction over the person against whom the suit is brought or over the property involved in the suit. The court must also have jurisdiction over the subject matter. Generally, courts apply a “sliding-scale” stan­dard to determine when it is proper to exercise jurisdiction over a defendant whose only connection with the jurisdiction is the Internet.

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What is the difference between a trial court and an appellate court?

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A trial court is a court in which a lawsuit begins, a trial takes place, and evidence is presented. An appellate court reviews the rulings of trial court, on appeal from a judgment or order of the lower court.

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What is discovery, and how does electronic discovery differ from traditional discovery?

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Discovery is the process of obtaining in­forma­tion and evidence about a case from the other party or third parties. Discovery en­tails gaining access to witnesses, documents, records, and other types of evidence. Electronic discovery differs in its subject—that is, e-media rather than tradi­tional sources of information, such as paper documents.

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What are three alternative methods of resolving disputes?

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The traditional method of resolving a legal dispute is through litigation. Alternative methods include negotiation, mediation, and arbitration. In negotiation, the parties attempt to settle their dispute informally without the involvement of a third party acting as mediator. In mediation, the parties attempt to come to an agreement with the assistance of a neutral third party, a mediator, who does not, however, make a decision in the dispute. In arbitration, a neutral third party or a panel of experts hears a dispute and renders a decision.