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138 Cards in this Set
- Front
- Back
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Law
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A body of rules enforced by a government
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Contract
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A legally enforceable promise or set of promises
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Breach of Contract
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A failure to fulfill contractual obligations
1 way to a file a case for $ |
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Tort
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A civil wrong other than breach of contract for which the law provides a remedy
1 way to file a case for $ |
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Negligence - if on purpose not negligence
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An unintentiaonla violation of legal duty to use a standard of care
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Common Law
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A legal system of court-made law where the rules are derived from previously decided cases
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Stare Decisis
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A legal doctrine requiring courts to follow previous decision called precedents
"It's been decided", if we already have a rule we aren't going to change it |
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Judicial Review
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Doctrine that courts determine the constitutionality of stautes
Supreme Court has final decision, gave themselves teh power to change Constitution |
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Cause of Action
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A stated set of facts giving rise to a valid lawsuit
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Philosophical Sources of Law:
Natural Law |
1. The theory that law comes from unchangeable principles evidence from nature or inspired by God
2. Example: Declaration of Independence |
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Philosophical Sources of Law:
Positivist |
1. Governmental rules are supreme
2. Example: Definition of law above. Nazi - claimed it was legal to do that to Jews |
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Philosophical Sources of Law:
Traditional |
1. Law which has worked in teh past is best suited to shape present law
2. Example: Stare Decisis; following precedent |
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Philosophical Sources of Law:
Legal Realists |
1. There is no uniform way to interpret the law; result oriented, considering the impact on parties and society; many are semantic relativists.
Judges are going to manipulate law. Language can be twisted to say what you want it to say. "The Constitution is what the judges say it is." |
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Practical Sources of Law:
Federal |
1. Constitution - the Supreme law of the land
2. Statutes and Treaties - acts of Congress and treaties entered by the President and approved by the Senate 3. Administrative Rules - Laws adopted by Administrative agencies (Ex. EPA, FTC, SEC, etc.) |
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Practical Sources of Law:
State |
1. Constitution
2. Statutes 3. Administrative Rules 4. Municipal Ordinances - City and County (can't conflict with anything above) |
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Practical Sources of Law:
Case Law (Common Law) |
1. Court-made law
2. The laws established by courts particularly in the areas of contract and tort law 3. Case law is overuled by a contrary statue ordinance or rule unless the law involved is unconstitutional |
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Practical Sources of Law:
Persuasive Authority |
1. Uniform Codes - Statutory schemes compiled by experts to be adopted by state legislatures to help insure consistency of law in all the states
a. Examples: Uniform Probate (deceased/incompetent persons); Uniform Commercial Code 2. Restatements - common law schemes compiled by experts to influence courts and encourage nationwide consistency a. Examples: Restatement of Contracts; Restatement of Torts |
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Agencies
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A unit of the executive branch regulating a certain area
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Independent Agency
In Missouri a lot of our are elected. |
An agency designed to be free from the direct authority of the president (or governor)
a. Examples: Federal Reserve Board, FTC(advertising), SEC, DMV |
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Executive Agency
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An agency whose head is directly subject to the president. Example: Cabinet
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Powers of agencies
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1. Powers of all three branches in many administrative agencies.
2. Executive (prosecute violations); Legislative (make binding rules); and Judicial (decide controversies) |
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Criminal Law
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Involves wrongs against society punished by the state through prosecution
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Civil Law
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Involves wrongs against persons or entities enforced by lawsuits to obtain money or other remedies
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Substantive Law
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Defines rights and duties
What is forbidden |
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Procedural Law
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Defines the method or process by which violations of rights or duties will be enforced
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Statutory Law
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Law adopted by a legislative body
Examples: Acts of Congress, Congressional Statues, Acts of MO legislature, Municipal ordinances |
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Case Law
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Law created by court decision
Example: NEED ANSWER |
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Origins of Common Law Courts
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A uniform set of laws derived from following precedents in England
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Equity Today
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a. Sue for a court order compelling an act or a change in status
b. A judge determines the facts in question |
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Origins of Equity Courts
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Created by the king because people whose problems could not be solved by common law suits would petition the king
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Common Law vs. Equity
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Equity suits are now filed in the same courts and are heard by the same judges as common law suits.
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Common Law Today
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a. Sue for money damages
b. Right to a jury trial to determine facts in question |
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Res Judicata
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"It's been decided." An issue decided in one case between parties is binding upon the parties in another case between the parties. It won't be litigated again.
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Class Action
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One or more members of a group of injured parties sue on behalf of the group (class)
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Standing
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1. A person needs a tagable interest in a lawsuit to sue or become a party.
2. Example: Someone slapped your neighbor or grandparent visitation. |
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Jurisdiction
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"To speak the law;" The authority of a court to decide a case.
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Venue
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Proper venue is the place where a case may properly be heard under the law. Example: Country where accident occurs or where defendent lives
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Adjudication
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The process of litigation resulting in a binding (enforceable) final judgment
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Adversary System
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A trial system where the evidence is presented by party opponents, rather than through questions of a judge. Jury won't hear some evidence because it could damage both sides and neither wants it presented.
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Evidence
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The testimony of witnesses and the documents and objects admitted to consideration as part of the testimony.
Testimony is evidence. |
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Supreme Court
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The highest appellate court (court of last resort) in both the state and federal system - appeals from state supreme courts are taken to the United States Supreme Court.
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Court of Appeals-Missouri
Circuit Court of Appeals-Federal |
The intermediate appellate courts - typically the first court to which an agrieved party(loser) may appeal.
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Circuit Court of County-Missouri
District Court-Federal |
The trial court of general jurisdiction in which most important cases are filed.
From small claims court |
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Courts of Limited Jurisdiction
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Courts whose authority is limited by subject matter or the amount in controversy.
Example: Probate Court (only deceased or incompetent estates) |
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Common Law Today
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a. Sue for money damages
b. Right to a jury trial to determine facts in question |
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Exclusive Jurisdiction
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Either a federal or state court is the only court which may hear a case (not both)
Example: Only Federal-Patent,Bankruptcy Only State-Probate,Family |
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Concurrent Jurisdiction
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Either federal or state may hear.
Example: Employee discrimination |
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Persoanl Jurisdiction
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A state or federal court has personal jurisdiction over: the defendant, if
1. Resident fo the state where court sits 2. Persons or entities at least minimum contacts with the state where the court sits Outside the state: long-term jurisdiction 1. Defendent committed tort in state 2. Defendent breeched contract entered in state 3. Defendent regularly does buiness in state |
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Subject Matter Jurisdiction
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1. Federal Courts
a. Federal Question Jurisdiction b. Diversity of Citizenship |
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Federal Question Jurisdiction
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Federal courts have subject matter jurisdiction over cases which invovle a question of federal law
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Diversity of Citizenship
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Federal courts have jurisdiction over cases where the parties (plaintiff and defendant) are from different states and the amount involved (amount in controversy) exceeds $75,000
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State Courts Jurisdiction
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State courts have subject matter jurisdicition over all cases where there is not exclusive federal jurisdiction
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ADR: Alternative Dispute Resolution
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1. Mediation
2. Arbitration 3. Summary Jury Trial 4. Mini Trial |
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Mediation
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A nonbinding process in which a mediator aids parties in negotiating a dispute
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Arbitration
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A binding process in which an arbitrator hears evidence and enters an enforceable decision - quicker, more enforceable, no appeals, less expensive
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Summary Jury Trial
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A shortened trial before an unofficial jury which makes a non-binding, advisory decision, very technical cases, aid in negotiation, test what jury would do
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Mini Trial
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A shortened trial before an unofficial judge, who makes a non-binding decision (recommendation) very technical cases, jude recommended
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Six Phases of a Lawsuit
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1. Pleadings
2. Discovery 3. Pre-Trial Motions 4. Trial 5. Post-Trial Motions 6. Appeal |
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Pleadings
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1. Complaint (Missouri: Petition)
2. Responsive Motion or Answer |
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Complaint (Missouri: Petition)
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1. Initiates the lawsuit (lists 3-5 complaints)
2. Served with a summons requiring an answer to be filed with the court by a certain time or an appearance in court on a certain date (e.g. in small claims court) |
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Responsive Motion or Answer
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1. Failure to file can result in a default judgment which means the defendent loses the case without a trial (30 days in Missouri)
2. A couterclaim (cause of action against the plaintiff by the defendant) may be included with answer |
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Discovery
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1. Interrogatories
2. Request for Admissions 3. Request for Production 4. Depositions |
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Interrogatories
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Written question sent to a party which must be answered in writing and under oath
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Request for Admissions
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Written statements sent to a party which must be admitted or denied (if you do not deny then they are deemed admitted)
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Request for Production
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A written request sent to a pary requiring the delivery of documents or objects at a specified place and time
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Depositions
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An in-person oral examination (questioning) of a pary or a non-party witness under oath
(Supoena brings someone to deposition)(only non-party one) |
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Pre-Trial Motions
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1. Motion to Dismiss
2. Motion for Summary Judgment |
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Motion to Dismiss
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1. A motion(request to the court) typically filed by teh defendant asking the court to throw out the petition
2. Examples: Failure to state a cause of action, lack of jurisdiction or standing |
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Motion for Summary Judgment
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1. A motion which may be filed by any party asking for a judgment based upon affidavites and the sworn evidence uncovered during discovery
2. Requires the court to find that there is no genuine issue of material fact |
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Trial
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1. Voir Dire (Jury Selection)
2. Opening Statement 3. Plaintiff's Case 4. Defendant's Case 5. Rebuttal by Plaintiff 6. Closing Arguments |
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Voir Dire(Jury Selection)
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1. Voir Dire means "to tell the truth"
2. The potential juror are questioned under oath about bias or prejudice against or in favor of one of the parties. |
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Opening Statement
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A statement of the evidence the parties intend to present at trial.
1. Trial Motions-filed in court during the trial 2. Examples: a. Motion for mis-trial: requires a court to find there was an event or an error which makes a fair trial or decision impossible b. Motion for directed verdict: requires a cout to find that the plaintiff did not persent evidence necessary to support a cause of action |
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Plaintiff's Case
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1. Direct Examination-question by the party who calls the witness
2. Cross Examination-questions by teh other party 3. Redirect Examination-new questions to a party's witness to eliminate damage or confusion to the case caused by cross examination |
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Defendant's Case
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Direct, cross and redirect examination
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Rebutal by Plaintiff
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Calling new witnesses to contradict the evidence produced by the defendant
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Closing Arguments
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Also called summation; the oppurtunity of the parties' attourneys to summarize their case and all teh inference of the evidence and to argument to the jury (makes or breaks the case)
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Post-trial Motions
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1. Motion for a New Trial
2. Motion for Judgement N.O.V. (Notwithstanding the Verdict) |
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Motion for New Trial
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A request that the court throw out the decision and grant the movant a new trial
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Motion for Judgment N.O.V. (Notwithstanding the Verdict)
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A request that the court throw out the judgment because based up on the evidence the jury's decison was legally invalid in that the plaintiff failed to produce evidence necessary to support the verdict
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Five Stages of Appeal
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1. Notice of Appeal, Timely - 10 days after judgment is final
2. Trail Record Filed - appelant puts together, respondent looks over 3. Parties Brief Issues - appelant and respondent (appelle) 4. Oral Argument - in front of judges 5. Decision |
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Appeal Decision Choices
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1. Affirm-let the decison stand (whole thing)
2. Reverse-reverse the entire decision 3. Remand-part of the decision is vacated, send back to trial court for further proceedings 4. Combination of the first three |
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Tort
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A civil wrong other than breach of contract for which the law provides a remedy
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Tortfeasor
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person committing a tort
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Join Tortfeasors
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two or more people who join together in committing a tort
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Joint and several liability
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allows victim to collect total damages from one or from all joint tortfeasors
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Intent
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purpose to do the act is all that is required - do not have to intend to harm or results. Reckless disregard of potentila harm is usually enough.
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Nonfeasance
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Failure to act; e.g. failure to rescue someone in danger. Generally no liability for nonfeasance. (Only when there is a special realtionship, ex. Daycare worker)
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Assault
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An intential act causing expectation of injury or offensive contact to another person.
1. Required intent for both assault and battery: To cause expectation of harm or to cause injury or physical contact offensive to a reasonable person a.Internd to harm or intend to scare 2. Act: words alone are not enough. Must be some outward display creating immediate expectation of danger. 3. Result: Reasonable expectation of injury or offensive contact a. Examples: Threaten to shoot vs. Having a gun |
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Battery
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An intential act causing another person injury or offensive contact.
1. Intent to act the same as for assault. a. Intend to harm or intend to scare 2. Transferred intent is sufficient a. Example: Intent to injury one person transfers to actual victim 3. Result: Injury or physical contact offensive to a resonable person a. Example: Harmless contac offensive only to a paranoid person is not battery (assuming you don't know they are paranoid) |
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Defenses to Assault and Battery
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1. Consent
2. Self Defense 3. Defense of others 4. Defense of property |
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Consent
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When the victim agrees to physical contact
1. Surgury vs. scapal attack 2. Contact sports, you want to play hockey 3. Voluntary fist fights |
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Self-defense
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The privledge to use the amount of force reasonably necessary to appela real or apparent danger
1. Example: Apparent danger, authentic looking real gun 2. Retailiation is not self defense 3. Deadly force is only allowed when there is a threat of death or serious bodily harm (when danger is gone, reason is gone) |
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Defense of others
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The privledge to use the amount of force reasonabley necessary to repel real or apparent danger to others (stops once danger is gone)
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Defense of property
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The privilege to use the amount of force reasonably necessary to repel real or apparent danger to property
1. Deadly force may never be used to protect property alone 2. Example: Burgular trying to steal your car, burgulary@night have right to use deadly force |
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False Imprisonment
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The intentional detention of another within boundaries for any length of time, with that person's knowledge and without consent
1. Intentional detention of another a. Example: Unintentional detention, locked in somewhere accidentally b. Example: Words alone are enough to create boundaries. A threat alone can be false imprisonment but not an assault. 2. With the person's knowledge and without consent. a. Example: Locked in bar at closing time b. Recovering for the feeling of being detained 3. Shopkeeper's Priviledge |
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Shopkeeper's Privilege
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1. A merchant with reasonable cause to suspect shoplifting may detain suspect in reasonable manner for a resonable length of time.
2. Example: Flashing light is not reasonable |
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Intentional Infliction of Emotional Distress
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1. An intentional act of extreme or outrageous nature causing sever emotional distress.
2. Shows hesitance to allow recovery for emotional injury alone. a. Intentional act-purpose or recklessness (Example: Tell mother child was killed and they weren't purpose was to freak her out) b. Of extreme or outrageous nature-Examples: burial or lack there of c. Causing sever emotional distress: medically significant and medically diagnosable emotional distress |
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Defamation
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A publication of a defamatory, false statement of fact (through the fault of the defendant)
1. Publication: Statement to a third party (a person other that the subject of the statement) a. Oral statement=slander; written=libel 2. Defamatory: injures the reputation 3. Fase statement of fact a. Not opinion or prediction 4. Through the fault fo the defendant a. If Plaintiff is a public figure-must be intentional falsehood or reckless disregard for truth-"actual malice" - Intentional-know the statement is false - Reckless-no basis to believe statement is true |
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Defense for Defamation
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1. Absolute privlege
2. Conditional privlege 3. Truth 4. Retraction |
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Absolute Privlege
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Statements made during government hearings are not proper cause for a government lawsuit (only in court not outside)(Legislative hearing, Judicial hearing, Administrative hearing)
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Conditional Privlege
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Statements made as a matter of the defendant's business interests are not actionable unless made with actual malice
1. Example: NEEDED |
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Truth
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Statement by defendant must be false to be actionable
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Retraction
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A defense to damages NEEDED only
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Four Types of Invasion of Privacy
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1. Intrusion upon solitude or seclusion (Ex: Neighbor mugged marital bedroom or paparazzi climbs a wall and takes a picture)
2. Public disclosure of private facts (Ex: Someone takes picture of you in hospital without your permission) 3. False-light publicity (Ex: Took picture of someone delivery newspaper and then attached to another story abou pregnancy-Globe Magazine) 4. Appropriation of likeness or name (Ex. Elvis' estate sued underwear company for using logo without permission) |
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Nader vs. General Motors
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Ralph made claims against GM, they did things to him prostitutes, bugged telephone with this it became a problem
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Fradulent Misrepresentation
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Intentional misrepresentation of material facts, reasonably relied on by plaintiff, resulting in damages
1. Misrepresentation of material fact: a. Material: important to the deal b. Fact: not opinion or prediction 2. Intent to deceive a. Knowledge of falsity of statement or reckless disregard for the truth 3. Reasonable reliance by the victim (it may not be reasonable to rely soley on statment) 4. Causation of damages |
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Property Torts (Intentional)
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1. Trespass to Land
2. Trespass to Chattels 3. Conversion 4. Nuisance 5. Intentional Interference with contract or business relationship |
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Trespass to Land
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Intentional entry onto the land of another without permission (must see "No Trespassing" sign, sue for damages)
Examples: Logger logged land on neighbor's land on accident |
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Trespass to Chattels
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Intentional damaging or deprevation of another's personal property.
Example: Somone stole boyfriend, then hit their car with hammer or borrow car, sue to get damages |
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Conversion
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Intentional retention or service damaging of another's personal property
Example: Bigger than chattels, stole car and kept it as theirs or keep hitting the car (sue to get whole price) Every conversion is also a trespass to chattels |
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Nuisance
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Unjustified interference with the use or enjoyment of another's real estate
Example: Loud noises, hog farm got in trouble because they didn't do it correctly |
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Intentional Interference with contract or business relationship
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Contract-type of property
Examples: Induce a consumer to change insurance companies while under contract. Texaco vs. other oil companies |
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Negligence
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An unintentional violation of a legal duty to use an standard of care.
Elements-Was there: 1. An unintentional act? If not, look at the intentional torts and see if all the elements of proof are presnt for one or more torts 2. A legal duty to use a standard of care? a. Examples where their is no duty (Passenger in a car has no dury to keep look out, Stranger has no durty to rescue from danger, Professor must not give accurate information) b. Standard of care vary with actor and activity -Actor: higher standard for professionals; lower standard for young children -Activities: higher standards for more dangerous activity 3. A violation of that standard? a. Typically a fact question for judge or jury to decide b. negligence per se: when the act of the defendant violates a safety standard, sometimes the jury only decides if there is a violation of that statue-automatically presummed to be negligence a. Example: run a red light 4. Causation of Damages? a. Cause in fact-the negligence of defendant was an essential factor in the chain of events leading to damage b. Proximate cause-the harm caused plaintiff must be of a type reasonable foreseeable to someone in the defendant's position-not too remote in teh chain of events (no superseding cause) c. Examples: Train worker helped (not) passenger dropped explosive that ruined track (Yes-1 and No-2) |
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Defenses to Negligence
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1. Comparative Negligence
2. Contributory Negligence 3. Assumption of Risk 4. Immunities |
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Comparative Negligence
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The recovery of the plaintiff is reduced by the plaintiff's percentage of fault in causing the damages. (Judge does math, jury finds %)
Example: Hit by redlight runner but you were speeding, part of it is you fault |
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Contributory Negligence
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The recovery of the plaintiff is barred (prevented) by any negligence of the plaintiff in causing damages. (States either use Comparative or Contributory) Missour uses Contributory
Example: Because you were speeding you get nothing |
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Assumption of Risk
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The recovery of the plaintiff is barred if the plaintiff voluntarily encounters a known risk.
Example: Sports, baseball and race cars Compare defense of consent in a battery case |
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Immunities
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1. Sovereign immunity-can only sue the government if it gives you permission (general rule) exception some federal law, federal gov. gives broad if fed employ. (Missouri limited: 1.Injured by employee in vehicle 2. Injured by dangerous condition on state property)
2. Official immunity-cannot recover from government officials if the act complained of involves a matter of policy and there was no malice by the official |
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Strict Liability
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Definition:
1. Liability without fault 2. No need to prove an intentional or negligent act. 2 Types: 1. Ultra Hazardous Activity 2. Products Liability |
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Ultra Hazardous Activity
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An activity so abnormally dangerous that the actor is the guarantor of the safety of the activity.
Example: Blasing, happened on Stadium, Storing chemicals |
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Product Liability
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1. The defendant marketed the product (In Missour, exception if passing good on as is, ex. used car)
2. The product was unreasonably dangerous (defective) 3. The plaintiff suffered physical injury as a result of the defect (huge business implication)(Ex: Ford and Goodyear with roll overs in Explorers, weird combination. They were found guilty) |
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Procedural Protections
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1. Constitutional Protections
2. Procedural Protections |
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Constitutional Protections
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1. Protection against unreasonable search and seizure (goods or persons)
2. Right to remain silent 3. Right to counsel 4. Right to notice of charges 5. Right to confront witnesses 6. Right to speedy trial by jury 7. Protection against double jeopardy |
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Protection against unreasonable search and seizure (goods or persons)
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1. Searches and seizures usually require probably cause (resonable ground to believe something is true-beyond hunch)
2. Fourth amendment right 3. A warrantless search is presumed invalid; exceptions: a. Valid consent b. Search incident (as part of) a valid arrest c. Exigent (urgent)(emergency) circumstances Example: Criminal fleeing scence and may 1. Destroy evidence or 2. Hurt someone |
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Right to Remain Silent
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1. Fifth amendment right not to be compelled to testify against yourself in a criminal trial
2. So zelously protected that even a comment by the prosecutor on a defendant's failure to testily will typically result in a mistrial |
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Right to counsel
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1. Sixth amendment right to have an attorney represent you if you are a criminal defendant
2. Begins with arrest and continues through the appeal 3. Includes the right to have the government pay for an attorney if the defendant cannot afford one (One way that Constitution has been "changed") |
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Right to notice of charges
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1. Sixth amendment right to be informed of the exact criminal charge against you
2. Importance: Difference between robbery (serious-injruy) and burgulary (misdeamenor) |
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Right to confront witnesses
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1. Sixth amendment right to have witnesses testify in front of you and to cross examine the witness
2. Importance: Exception child abuse (young defendants) and rape (past sexual experiences kept out) |
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Right to speedy trial by jury
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1. Sixth amendment right to be tried quickly and to have a jury decide guild or innocence
(Must provide guilt beyond a reasonable doubt) (Make sure criminals are not sentenced incorrectly if gov. delays not if defendent) (Unanimous for either guilt or innocence, hung jury prosecutor gets mis-trial may or may not be tried again) |
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Protection against double jeopardy
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1. Fifth amendment right: a criminal defendant may not be tried twice for the same offense
2. Loopholes: State vs. Federal, Kidnapping vs. False Imprisonment |
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Procedural Protections
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1. Miranda Rights
2. Exclusionary Rule |
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Miranda Rights
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1. A suspect must be informed of his Constitutional rights before he can validly waive them
2. Applies to any custodial interrogation 3. Evidence discovered during illegal questioning, such as a confession, will be inadmissable under the exclusionary rule (Miranda-hispanic who didn't know constitutional rights vs. Arizona) (If confess before rights can't use it) (Any limit of freedom) |
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Exclusionary Rule
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1. Evidence illegally obtained by police is inadmissable in a criminal trial
2. Resulting discoveries are also inadmissable-fruit of the poisonous tree doctrine (Unless you would discover anyway, mst be proved by state) (Violation of rights above) |
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Stages of Criminal Proceeding
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1. Arrest
2. Charges filed by indictment of information 3. Arraignment and plea 4. Disclosure 5. Trial 6. Post Trial |
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Arrest
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1. Deprivation of freedom of movement by a police officer
2. An arrest is legal if a. Valid arrest warrant exists OR b. Officers have probable cause to believe the suspect committed a crime |
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Indictment
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a criminal charge filled by a grand jury
Grand Jury: group of citizens, supoened, that have the right to supoena. Job to protect criminal from an over zealous prosecutor (almost always convinces) |
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Information
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A criminal charge filed by a prosecutor
a. Felony information requires confirmation by a judge after a preliminary hearing |
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Indictment or Information
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1. A prosecutor acting alone cannot file a felony charge
2. Prosecutorial discretion-the prosecutor decides when to press charges, not the victim (won't press charges: legal fiction in MO, prosecutor can do it with or without victim) |
