Blaw 3430 Exam 1

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Function of Legal Process

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To facilitate existence including the freedom of individuals to exercise individual initiative and engage in creative pursuits.

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Law defined

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Law includes rules describing rights and duties of persons and entities as well as procedures for applying rules respecting rights and duties

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Sources of Law

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1. Constitutions - State and Federal setting forth structures of government
2. Treaties - Federal(Agreements between two or more nations)
3. Statutes - As enacted by State and Federal Legislative Entities
4. Regulations - Created by State and Federal Agencies
5. Ordinances - Created by towns and cities
6. Appellate Court Decisions - See Appellate Courts on page 3

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Classifications of Law

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substantive and procedural law

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Substantive Law

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Substantive law states rights and duties of persons and entities.

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Procedural Law

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describes means for applying substantive law by the courts
including where cases should be filed, what evidence will be admissible and whether a jury will hear a case as well as grounds for appeal.

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Written Enactment

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is law created by federal, state and local legislative entities elected by voters as well as by persons selected by elected officials or appointed as provided by the legal process

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Common Law

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is law created and applied by appellate courts by judges appointed(federal) and elected(many states) by voters

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Civil Law

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describes the rights and duties of individuals and enterprises as well as governmental entities

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Criminal Law

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Crimes are acts against society.

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Who may bring Criminal Action

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Only a governmental entity (federal, state or local) can

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Function of trial courts

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find facts and apply law created and interpreted by appellate courts

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Appellate Courts

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review application of law to the facts as found by a trial court and create or interpret law as necessary in order to reach a decision

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State Courts

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apply State and Federal Law except where Federal Law prohibits

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Federal Courts

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apply State and Federal Law.

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Compensatory damages

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include general and special damages

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Consequential damages

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are anticipated or predictable losses that result not directly, but indirectly from events such as a breach of contract

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Liquidated Damages

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are damages parties agree to pay in the event of a dispute

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Punitive damages

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are punishment damages usually awarded by a jury for the purpose of punishing and deterring reckless, malicious or fraudulent conduct - usually defined by tort law.

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Equitable Remedies

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are awarded where money damages are insufficient or inappropriate

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Equitable Remedies include

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Injunctions ,Specific Performance, Reformation of contract, and Rescission of contract

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Requisites for a Defamation Claim

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occurs where defendant PUBLISHES to third parties FALSEHOODS(facts - words, pictures, signs, film etc.) concerning persons that INJURE THE REPUTATION OF THE PLAINTIFF

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Requisites for a Defamation Claim by a person in the
Limelight

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Proof of malice

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Requisites for Product/Service Disparagement Claim

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(1)Defendant published untrue statement respecting Plaintiff’s products, services, property, or business reputation
(2)Defendant knew statement was untrue or acted with reckless indifference
(3)Plaintiff suffered economic harm

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Defenses to a Defamation Claim

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THE TRUTH IS A DEFENSE,
qualified (where defendant is acting in good faith) privilege,ABSOLUTE PRIVILEGE

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Common Law is created by

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Appellate courts

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The Doctrine of Stare Decisis

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Provides appellate court decisions are binding on trial courts

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Written Enactment is created by

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State Legislatures
Congress in Washington D. C.
City Councils

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Long Arm Statutes explain

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What states courts are applicable

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Civil Law is composed of

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Common Law And Written Enactment

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Action by a Grand Jury is required

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Before one can be tried for a felony

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Criminal Law is created by

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legislative process

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Plaintiff seeking an injunction is

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requesting an equitable remedy

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Plaintiff seeking Consequential damages

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is a request for dollars

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In a motion to dismiss defendant can

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Claim no legal basis exists for plaintiffs claims

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An affirmative defense

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Is a legal excuse

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When one is summoned to answer oral questions prior to trial inan attorneys office under oath prior to trial the proceeding is

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Deposition

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Jury will hear a civil case if

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Plaintiff or Defendant requests

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Where within a state a lawsuit should be filed is determined by

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Venue Statutes

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The concept that explains whether a Court has power to
render a binding decision is

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Jurisdiction

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Double Jeopardy is an issue in

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Criminal Trials

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To have standing a Plaintiff must show

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Plaintiff has suffered injury to property interests

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Motion for Judgment that may be made during Discovery

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Summary Judgment

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A motion for judgment NOV may be made

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After a jury hands down a verdict

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In Mediation

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Parties Decides

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A trial de novo is

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A new trial without reference to original trial

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To Invoke the Doctrine of ResIpsaLoquiturclaim

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Defendant is required to introduce evidence of negligence