Business Law Final Pt.1

Civil Law

The branch of law dealing with the definition and enforcement of

all private or public rights, as opposed to criminal matters.

Criminal Law

The branch of law that defines and punishes wrongful

actions committed against the public

Liability

The state of being legally responsible (liable) for something, such as a debt or obligation.

Federal Arbitration Act (F A A

Enforces arbitration clauses in contracts involving maritime activity and interstate commerce.

Diversity of citizenship

A basis for federal court jurisdiction over a lawsuit between (1) citizens of different states, (2) a foreign country and citizens of a state or different states, or (3) citizens of a state and citizens or subjects of a foreign country.

Before a federal court can take jurisdiction in such cases…

• The amount in controversy must be more than $75,000

Courts of original jurisdiction

• Courts of the first instance, or trial courts.

Courts having appellate jurisdiction

• Act as reviewing, or appellate courts

Jurisdiction

The authority of a court to hear a case and decide a specific action

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 subject matter of the dispute

In personam jurisdiction

Court jurisdiction over the “person” involved in a legal action; personal jurisdiction

In rem jurisdiction

Court jurisdiction over a defendant’s property

Long arm statue

A state statue that permits a state to obtain personal jurisdiction over nonresident defendants

Minimum contacts

A defendant mist have ____ with that state for the statue to apply (Ex. Xbox case)

• anytime there are benefits in another jurisdiction there is jurisdiction

Federal question

A question that pertains to the U.S. Constitution, acts of Congress, or treaties

Trial Courts

• Courts in which trials are held and testimony is taken

• Trial courts that have general jurisdiction as to subject matter may

  be called county, district, superior, or circuit courts.

Appellate or Reviewing Courts

Focus on questions of law NOT questions of fact

• Question of law: an issue involving the application or interpretation of a law

Highest state courts

The decisions of each state’s highest court on all questions of state law are final

• Only when issues of federal law are involved can the SCOTUS overrule a decision made by a state’s highest court

Writ of certiorari

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

• a denial of the request to issue a writ of certiorari means that the lower court’s decision remains the law in that jurisdiction

Litigation

The process of resolving a dispute through the court system

• is costly and time consuming

Alternative dispute resolution (ADR)

The resolution in ways other than those involved in the traditional judicial process

Forms of ADR

• Negotiation

• Mediation

• Arbitration

Negotiation

A process in which parties attempt to settle their dispute without going to court, with or without attorneys to represent them

• Simplest form of ADR

Mediation

A method of settling disputes outside of court by using the services of a neutral third party, called a mediator

• Mediator may propose a solution but they do not make a decision resolving the matter

• It is the preferred form of ADR for disputes between business partners employers and employees, and other parties involved in long-term relationships because it reduces the antagonism between disputants

Arbitration

The settling of a dispute by submitting it to a disinterested third party (other than a court), who render a decision

• Decision may or may not be binding, parties can also agree to non-binding arbitration

• In non-binding arbitration, the parties can go forward with a lawsuit if they do not agree with the arbitrator’s decision

Pleadings (pre trial)

Formal statements made by the plaintiff and the defendant in a lawsuit that detail the facts, allegations, and defenses involved in the ligation

Complaint

The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit

• Contains statements or allegations concerning jurisdiction, legal theory, and remedy

Answer

Procedurally, a defendant’s response to the plaintiffs complaint

Pretrial motion

A written or oral application to a court for a ruling or order, made before trial

Motion to dismiss

A pleading in which a defendant asserts that the plaintiff’s claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed

Discovery

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial

• Prevents surprises at trial by giving both parties access to evidence that might otherwise be hidden

Discovery rules

• Is allowed regarding any matter that is relevant to the claim or defense of any party

  • Only information that is relevant to the case at hand—or likely to lead to the discovery of relevant information—is discoverable

  • If a discovery request involves privileged or confidential business information, a court can deny the request and can limit the scope of discovery in a a number of ways

Deposition

The testimony of a party to a lawsuit or of a witness taken under oath before a trial

• Gives an attorney the opportunity to ask immediate follow-up questions and to evaluate how witnesses will conduct themselves at trial

Interrogatories

A series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit, usually with the assistance of the party’s attorney

Requests for Admissions

• One party can serve the other party with a written request for an admission of the truth of matters relating to the trial

Requests for documents, objects, and entry upon land

A party can gain access to documents and other items not in his or her possession in order to inspect and examine them

Electronic discovery

The federal rules and most state rules (as well as court decisions) specifically allow individuals to obtain discovery of electronic “data compilations.”

Pretrial Conference

Is to explore the possibility of a settlement without trial and, if this is not possible, to identify the matters in dispute and to plan a course of the trial

Jury Selection

Voir dire- A French phrase meaning, literally, “to see, to speak” that refers to the jury-selection process

Direct examination

The examination of a witness by the attorney who calls the witness to the stand at trial to testify on behalf of the attorney’s client.

Cross-examination (trial)

The questioning of an opposing witness during a trial

Expert Witnesses (trial

Is a person who, by virtue of education, training, skill, or experience, has scientific, technical, or other specialized knowledge in a particular area beyond that of an average person

Opening statement

A statement made to the jury at the beginning of a trial by a party’s attorney, prior to the presentation of evidence.

In civil cases the standard of proof is the ____

Preponderance of the evidence

In criminal cases the prosecution has a higher standard of proof to meet—it must prove its case ____

Beyond a reasonable doubt

Motion for a new trial (post trial)

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or other reason) that a new trial is necessary to prevent a miscarriage of justice

The appeal (post trial)

Either party may appeal not only the jury’s verdict but also the judge’s ruling on any pretrial or post trial motion.

• However, a party must have legitimate grounds to file an appeal (some legal error).