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71 Cards in this Set

  • Front
  • Back
The law vs. A law

The law is very broad


A law has to be enacted by legislation

Classifications of the law

Civil law- spells out the rights and duties that exist between people and their governments, as well as the relief available when a person's rights are violated


Criminal law- wrongs against the public as a whole. Violation of law jail & fine

Classification of the law cont.

Substantive law- define what rights & duties we have procedural laws.


Procedural law- Enforce rights and responsibilities of substantive law



Four primary sources of law

Constitutional- US and state


Statutory law- Federal laws, state laws, local ordinances


Administrative law- regulations of administrative agencies(federal, state, and local) IRS, DEA. created and given authority by congress


Case Law- Judicial decisions, largest amount

Doctrine of Stare Decisis
Precedent used as guidance, for consistency, time, and efficiency.

Case of first impression
There is no precedent
Jurisdiction
Authority court has to decide certain matters
Types of Jurisdiction

Original


Appellate


In personam


Diversity


Cyberspace



Original Juris

Lower trial courts

Appellate Juris

Review transcript of lower trial

In personam
courts have jurisdiction over people and business' with border disputes
Diversity
occurs when there are people from two different states and dollar amount must exceed 75,000$
Cyberlaw
The courts have created a sliding scale standard to use in determining when jurisdiction over a website owner or operator in another state is proper
Court system terms

Venue


Standing


Contempt

Venue
Most appropriate location for a trial
Standing
Sufficient outcome to persue a case
Contempt
Violate a court order
Purge
Do what you need to do and get out of jail
State court system

Trial court- if under 5,000 can go to small claims


PA superior court- focus on question of law


PA supreme court- final decision if made

Federal Court system

US district court- at least one per state


US court of appeals-13 in the nation


US supreme court- one with 9 justices

Writ of certiorari
Rule of 4, 4 justices want to hear a case, so they can
Alternative dispute resolution

Another way to solve a dispute before a trial

ADR advantages
Flexibility, privacy, speed, cheaper, not as emotionally draining, helps avoid destroying relationship
Negotiation

Process in which the parties attempt to settle their dispute informally, with or without attorneys to represent them


Highly advised by lawyers

Mediation

A neutral third party acts as a mediator and works with both sides in the dispute to facilitate a resolution


Less adversarial


Mediator tries to bring them together

Arbitration

More formal


Method in which an arbitrator hears a dispute and imposes a resolution on the parites

Usually legally binding


mini-trial

Each party's attorney briefly argues the party's case before the other party and a panel of representatives from each side who have the authority to settle the dispute.


Usually an expert acts as an adviser

Summary jury trials

Federal court holds, in which the parties present their arguments and evidence and the jury renders a verdict.


Not binding, but acts as a guide to an agreement

Conciliation
The act of adjusting or settling disputes in a friendly manner through out of court means. Conciliation means bringing two opposing sides together to reach a compromise in an attempt to avoid taking a case to trial.
Selecting an attorney
Usually from a friend or family recommendatin
Attorney fee arangements

Hourly rate


Fixed rate


Contingency fee, 33 % of award

Pleadings
The complaint and answer, taken together. Each side's story
Complaint

Filed by Plantiff


Contains a statement showing the court has subject matter and personal jurisdiction, the facts establish basis for relief, and the remedy sought.

Reply to complaint
Defendant says admits, denies, or neither and demand proof in a trial
Counterclaim
Claim set forth by defendant , which plaintiff has to answer
Pretrial motions
Submitted to court by attorney on behalf of client Include the motion to dismiss, the motion for judgment on the pleadings, and the motion for summary judgment
Motion to dismiss

Party asks for court to dismiss case based on reasons stated in the motion


If granted, plaintiff has time to amend complaint

Motion for judgment on the pleadings

Asks the court to decide the issue solely on the pleadings without proceeding to trial


Granted when there is no dispute over facts of case and the sole issue is the question of the law

Motion for summary judgment

Asks the court to grant a judgment in that party's favor without a trial.


Question is how law applies to facts


Can consider evidence outside the pleadings, such as sworn statements and other materials that would be admissible as evidence at trial

Discovery

The process of obtaining information from the opposing party or from witnesses prior to trial.


Gaining access to witnesses, documents, records, and other types of evidence

Deposition

Sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official


Answer questions from both attorneys

Interrogatories

Written questions for which written answers are prepared and then signed under oath.


Directed to a party to the lawsuit, not a witness


13 days to answer

Request for documents, objects

A party can gain access to items not in their possession

Request for examinations
Physical or mental condition of one party is in question, the opposing party can ask the court to order a physical or mental examination by an independent examiner
Pretrial confrence

An informal discussion between the judge and the opposing attorneys after discovery has taken place. Explores the possibility of a settlement before trial


Establishes ground rules

Bench trial
No jury, judge hears and makes decision
Jury trial
Held in front of a normal jury
Trial

Introduction to case


Jury selection

Voir dire
Jury selection, questions asked by lawyers to determine if there are any biases or connections to the case.
Challenge
Order given by judge to dismiss a jurer
Opening statements
Made by both attorneys, setting forth the facts that they expect to prove during the trial. Their own version of the story
Plaintiff case

Direct examination


Cross examination


Redirect examination


Recross examination

Direct examination

Made by Plantiff to witnesses, first round

Cross examination

Defendants lawyer is given chance to ask same witness questions that relate to topics covered

Redirect examination
Made by plaintiff, responds to defendants questions, less topics
Recross examination
Last questioning done by defendant, afterwards everyone "rests"
Motion for directed verdict
Made at conclusion of plaintiff's case by defendant asking judge to direct a verdict because there is no evidence to support their claim
Defendants case
Same as plaintiff case
Rebuttal
Additional evidence offered by plaintiff that refutes defendant's case
Rejoinder
Refute from defendant about evidence introduced in rebuttal
Rules of evidence
Series of rules created by courts to ensure any evidence presented in trial is fair and reliable

Relevance
Tends to prove or disprove a fact in question or to establish the degree of probability of a fact

Hearsay
Testimony someone gives in court about a statement made by someone else who has not under oath at the time

Closing arguments

Made after each side rests their case, each attorney summarizes the facts and evidence and why it supports their client.


Shortcomings of opposition

Verdict

Specifies the jury's factual findings, decides amount on the reward.


Jurors then dismissed

Charge to the jury
Jury instructions given by judge
Jury deliberation
When jury reaches a verdict
Standard of proof
Balance of probabilities
Appeal procedure
Submit a brief, which will be reviewed by court
Differences between criminal and civil trial

Need only 6 jury members in civil case


need majority rather then unanimous


Based on probability, not beyond reasonable doubt

Appellate review

Review records for errors of law


Attorneys present oral argument, court then issues a written opinion


Court can: confirm decision


reverse decision


remand(send back)


decision in part- send back part of decision


Modify- change the opinion of lower court such as reducing reward