Issues in Civil Justice

Civil Justice

Concerned with determining the civil rights of private parties and providing remedies when one party wrongs, harms, or injures another by failing to enforce certain rights, prerogatives, duties, or obligations recognized by law.

Civil Law

Legal matters that do not involve crimes

Civil Justice System

Provides a forum and a process for resolving private disputes involving inter alia, private agreements, torts, ownership, and use of private property, domestic relations, the probate of wills and trusts, and other private matters

Substantive Law

The values and regulations themselves (statutes, ordinances, etc.)

Procedural Law

The means, methods, and steps (the processes) for promulgating, implementing, and enforcing the rules and regulations

Tort Law

to redress a wrong done to a person and provide relief from the wrongful acts of others, usually by awarding monetary damages as compensation

Contract Law

law that involves agreements between people, businesses, and groups

Property Law

the complex of jural relationships between and between persons with respect to things.

Law of Succession

the law regulating the inheritance of property

Family Law

the branch of law that deals with matters relating to the family, such as divorce and child custody

Adversarial Legal System

Structures dispute resolution in a form of a contest between opposing parties

Legal Standing

or locus standi, is capacity of a party to bring suit in court

Pleadings

The alternate and opposing written statements by which the litigants first set the case before the court

Default Judgement

a ruling granted by a judge or court in favor of a plaintiff in the event that the defendant in a legal case fails to respond to a court summons or does not appear in court

Discovery

The process by which opposing parties to a lawsuit secure relevant information regarding the pending action, a process engaged in after completion of the pleadings and prior to trial

Interrogatory

The exchange of written questions between parties

Pretrial Conference

Sees if parties can reach a pretrial settlement

Summary Judgement

Judge can decide if there is no disagreement to what the facts of the case are

General Verdict

Jury applies facts to the law

Jury Verdict

General verdict with Interrogatories. The jury is given written questions they must answer, which is returned as the verdict

Constitution

Jurisdiction’s expression of its fundamental, authoritative law made and/or ratified by those in whom sovereign power of the state resides.

United States Constitution

The foundation of the American organic law. It sets forth the means by which political power may be legitimately exercised. The constitution, in a sense, is a contract or covenant that defines the rules and describes the government institutions by which Americans govern themselves

Notice in Due Process

Requires that there be adequate advance specification of what the law requires before the law can be applied adverse to one’s interests

Hearing in Due Process

Requires that an individual be afforded the opportunity to be heard in one’s defense before an impartial tribunal

Legal Equality in Due Process

Requires that laws be applied in like manner to people in like situations (this is designed to control discretion & invidious discrimination)

Trial Court

Hears and decides controversies by determining facts and applying the appropriate law to the facts.

Appellate Court

Reviews the proceeding of the trial court and corrects errors of law at trial.

Judiciary Act of 1784

Created a three-tiered court system, with two levels below the U.S. Supreme Court.

State Courts

The constitution presumed the continued existence of state courts

Federalism

A political system that separates powers between a central authority and regional authorities.

The Missouri Plan

Combines appointment and election of judges. A list of candidates is selected by the commission and three names are sent to the governor who selects one. New judges will stand for retention in a general election after one year in office if a judge loses, the process begins again.

Legal Remedy

The means of enforcing a right or redressing a wrong. It is something that cures or relieves harm, wrong, or injury. It attempts to put someone back in the position they would have been in had they not been harmed, wronged, or injured by the actions of another.

Damages

Money awarded to a harmed party as a consequence of either a tortious act or breach of a legal obligation

Compensation

Money awarded to compensate a person for losses resulting in another’s wrong.

Nominal

A trivial or token sum of money awarded where no actual loss resulted from a wrong.

Liquidated

Money awarded pursuant to the parties’ previous agreement on how to compensate for a loss.

Punitive

Awarded in civil cases to punish defendants for their wrongful or injurious conduct and deter others from engaging in similar conduct

Ejectment

Action to recover possession of land and damages for unlawful possession of land

Replevin

Action to recover possession of items it is alleged were unlawfully taken

Equity

A branch of the common law that is more concerned with the fairness of the outcome than following inflexible legal rules. Equity courts and judges have broad discretion and flexibility to escape the harsh, inflexible rules of common law in the interest of fairness and justice, including in the area of crafting justice remedies.

Specific Performance

Arises when there is a contract and one party is not acting in accordance with the contract. Court orders defendant to honor contract.

Injunction

An order of a court directing the defendant to act or to refrain from acting in a specific way.

Recission

The court rescinds the contract

Reformation

The court reforms or modifies the contract to make it more clear

Restitution

A judicial remedy in law or equity in which the wrongdoer extends money or in-kind services in order to restore the wronged party to the position they were in before.

Declaratory Judgement

A determination of a court in a civil case that declares the rights, duties, or obligations of one or more parties in a dispute. It resolves an indeterminacy in the law or its application to facts. Is legally binding but does not necessarily order any action by a party.

Jurisdiction

The authority of a court to hear and decide on a case

Original Jurisdiction

the power to hear a case for the first time

Appellate Jurisdiction

The right of a court to review a case that has already been heard and decided upon by a lower court

General Jurisdiction

A court's authority to hear any type of case which is not vested in another court.

Limited Jurisdiction

courts with legal authority restricted to specific subjects, cases or persons.

Federal Jurisdiction

cases involving: the United States government, the Constitution or federal laws, or. controversies between states or between the U.S. government and foreign governments.

State Jurisdiction

have general jurisdiction, meaning that they can hear any controversy except those prohibited by state law

Exclusive Jurisdiction

if one court has the power to adjudicate a case to the exclusion of all other courts.

Concurrent Jurisdiction

two or more courts from different systems simultaneously have jurisdiction over a specific case

Diversity Jurisdiction

A plaintiff and defendant have diversity of citizenship if each is a citizen of a different state or one is a citizen of a foreign nation. As long as the required monetary amount and diversity are established, any civil litigation is permissible in federal courts (except divorce or probate).

Complete Diversity

In a multi-party suit, all plaintiffs must be of different citizenship from all defendants.

Pendent Jurisdiction

State law claims not ordinarily within the jurisdiction of a federal court may be determined by the federal court when they arise with other claims that are within the jurisdiction of the court.

Ancillary Jurisdiction

Allows a federal court to hear a claim that would normally be outside of its subject-matter jurisdiction if it is substantially related to a second claim that is within the court's jurisdiction.

Minimum Contacts

Forces defendants to travel to jurisdictions favorable to plaintiffs

Ripeness

A dispute is said to be “ripe” for judicial determination when the subject of the controversy has had a direct, adverse effect on the party initiating legal action. There must be some real harm or immediate threat of harm

Mootness

Concerned with cases where the plaintiff comes too late for the court for relief. Courts will not decide cases in which the dispute has already been put to rest.

Standing to Sue

A person has standing only if they can demonstrate a concrete stake in the outcome of the controversy (a legally sufficient personal interest in the dispute)

No Advisory Opinions

The case and controversy requirement of Article III, section II of the US constitution has been interpreted to preclude federal courts from advising the other political branches of government or any other party on legal or constitutional matters this bars counts from issuing opinions on abstract, theoretical, or hypothetical questions of law.

Res Judicata

 The valid judgment of a court of a competent jurisdiction on the merits of a case is a bar to a new lawsuit involving the same cause of action between the same parties, because it is the interest of the state and individuals that there should be some end to litigation (finality).

Collateral Estoppel

Where a second lawsuit involves a different cause of action (claim) the first judgment may be involved as to all matters or issues actually and necessarily litigated and decided on the merits in the first action and essential to the judgment. The doctrine operates to preclude a reconsideration of substantially similar, if not identical, issues. Generally speaking, issue preclusion is not as strictly applied as claim preclusion.

Statute of Limitations

A time period, established by the legislature, within which a legal action must be initiated upon claims or rights to be enforced. If a plaintiff initiates a lawsuit after the statutory period has expired, the defendant may plead the statute of limitations as a defense and the lawsuit will be dismissed.

Immunity

The common law exempted certain parties from legal liability (tort liability) , which was thought to be in the public interest. Such an exception is an exception to the general rule that a remedy must be provided for every wrong. If a defendant has immunity, a suit cannot be successfully maintained against that defendant. The modern trend is to limit the liability of parties from tort liability.

Sovereign Immunity

Precludes a litigant from asserting an otherwise meritorious cause of action against a sovereign without the expressed consent of the sovereign.

Federal Tort Claims Act of 1946

Federal government waived its immunity and thus consented to be sued. It permitted suits against the government in federal courts for negligence or wrongful acts committed by its employees acting within the scope of their employment

Charitable Immunity

A judicial doctrine that excuses charitable institutions from tort liability has been abandoned or restricted in most states.

Diplomatic Immunity

The privilege of exemption from certain laws and taxes is granted to diplomats by the country where they work.

Intra-familial Tort Immunity

Immunity from a tort action brought by an immediate family member

Pro Bono Publico

Imposes responsibility on lawyers to reduce prices to those who cannot afford it. A condition of retaining a law license.

Legal Aid Societies

Private nonprofit services to provide legal aid to help members of a community for free or reduced cost seen in many different low-income communities

Lawyer Referral Services

Helps people get in contact with lawyers that work in the field of their concern

Pre Paid Legal Services

Monthly subscription/sort of like insurance

Legal Clinics

Typically in urban areas, advertise heavily, look for large-capacity and highly routine type needs (heavy use of paralegals under supervision of a couple of attorneys)

Contingency Fee

Lawyers will take the case and pay all upfront costs. If the case is won, the lawyer gets paid a percentage of the winnings. The client never puts money in

Government Subsidized Legal Services

Federally funded legal services offices provide lawyers who are experts in helping low-income people with legal problems.

Small Claims Courts

A local court in which claims for small sums of money can be heard and decided quickly and cheaply, without legal representation.

Pro Se

Representing Oneself

Unauthorized Practice of Law (UPL)

If you do not have a license to practice law you cannot represent others

Lawyer Advertising

The ethical lawyer was instructed that success in the profession flowed from character, reputation, and conduct, not from aggressive solicitation

Bates v. Arizona (1977)

Determined then first amendment protects lawyer’s right to advertise

Retainer Agreement

a work-for-hire legal document or a service contract between a company or an individual and a client

Venue

The county or district where a case is to be tried.

Change of Venue

The removal of a suit begun in one district or county to another court of a county or district for trial

Pleadings

The alternate and opposing written statements by which the litigants first set their case before the court.

Complaint

The principal pleading on part of the Plaintiff

Answer

The principal pleading on the part of the defendant

Affirmative Defenses

A defense that seeks to avoid an allegation by introducing on raising additional facts that provide legal justification or excuse, rather than attempting to deny the allegation in the complaint

Pretrial Discovery

The process by which opposing parties to a lawsuit secure relevant information regarding the pending action—a process engaged in after completion of the pleadings and prior to trial.

Deposition

The written record of the oral testimony of a witness who is examined out of court before an official who is empowered to administer an oath by a party who has given notice to all other parties so that they can be present to cross-examine the deponent

Interrogatory to a Party

A written question propounded on behalf of one party in an action to another party that must be answered in writing under oath

Production of Documents

Document discovery enables parties to obtain access to record books, documents, and other tangible items not in their possession.

Physical and Mental Examination

When the mental or physical condition of a party is an issue the court, upon motion and for good case, may order this party to submit to a physical or mental examination

Request for Admission

A party may serve any other party a written request to admit the truth of a matter in a dispute

Federal Rules of Civil Procedure (Rule 26)

amended to impose upon parties to a lawsuit a duty to disclose to other parties certain basic information that receded to prepare for trial or make an informed decision about settlement

Venire

A jury pool is selected from the community and summoned to the court house