BLW 302 Perez Exam 1

Two Aspects of Stare Decisis

1. A court should not overturn its own precedents unless there is a compelling reason to do so.

2. Decisions made by a higher court are binding on lower courts. Stands for "Let the Decision Stand" ex. Brown v. Board of ED

Substantive Law

consists of all laws that define, describe, regulate, and create legal rights and obligations

Procedural law

consists of all laws that outline the methods of enforcing the rights established by substantive law. How we go about it

Plaintiff/Petitioner

the party who initiates a lawsuit

Defendant/Respondent

the party against whom a lawsuit is brought

appellant (petitioner)

The party who takes an appeal from one court to another.

Appellee

the party against whom the appeal is taken

Damages

A monetary award sought as a remedy for a breach of contract or a tortious action.

Statute of Limitations

A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced.

Laches

Equitable equivalent to stature of limitations. Claim must be brought within "Reasonable Time". These are injuctions and such where money is not good enough

Judge/Justice

The terms judge and justice are usually synonymous and represent two designations given to judges in various courts

Opinion

The court's reasons for its decision, the rules of law that apply, and the judgment.

Unanimous Opinion

An opinion that represents the view of all the judges who heard a case

Majority Opinion

a court opinion reflecting the views of the majority of the judges

concurring opinion

A court opinion by one or more judges who agree with the majority opinion but non the legal reasoning behind the opinion. Different legal opinion is important part

Dissenting Opinion

an opinion by one or more judges who disagree with the majoritys opinion

Plurality Opinion

an opinion that has the support of the largest number of judges, but less than a majority of them

per curiam opinion

A unanimous opinion that does not indicate which judge wrote it.

juristiction

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

In personam jurisdiction

jurisdiction over the parties to a lawsuit. OVER THE PARTIES

In Rem Jurisdiction

Court jurisdiction over a defendant's property. OVER THE THINGS like property

Long-Arm statutes

Courts use long-arm statutes for nonresident parties based on activities that took place within the state. Defendant must have minimum contacts. Minimum contacts is the test, Gucci Case

Corporate Contacts

Corporations are normally subject to personal jurisdiction in the state in which they are incorporated, have their principal office, and/or are doing business

Subject Matter Jurisdiction

authority of a court to decide a particular kind of dispute. What the case is about

Courts of original jurisdiction

trial courts that hear cases for the first time and determine issues of fact and law

Courts of appellate jurisdiction

HAve the power to review a prior decision in the same case made by another court

Subject matter jurisdiction of the federal courts

is limited, diversity of citizenship, constitutional rights, treaties

Federal Question Cases

contain disputes which pertain to the U.S. constitution, acts of congress, or treaties

Diversity of Citizenship cases

parties in the lawsuit are from different U.S. states and or the United States and a foreign country AND the dollar amount exceeds $75000

Exclusive Jurisdiction

only one court (state or federal) has the power (jurisdiction) to hear the case

EX. Family Law

Probate

Bankruptcy

Concurrent Jurisdiction

more than one court can hear the case

Diversity Jurisdiction (State or Federal). You cannot go from one court to another if you lose

Venue

the most appropriate location for a trial

Standing to Sue

A party must have a sufficient stake in the dispute to justify seeking relief through the court system

Federal Court System

US District Court (Trial), US Court of Appeals, US Supreme Court

U.S. District Courts

Trial courts of general jurisdiction, each state (as well as the District of Columbia and certain other U.S. territories and possessions) has at least one "district". F.SUPP is where to see the court

U.S. Courts of Appeals

courts that hear appeals from the federal district courts located within their judicial circuits

U.S. Supreme Court

The court exercises discretionary review over all federal appellate courts as well as state supreme and appellate courts in some circumstances

Writ of certiorari

A formal writ used to bring a case before the Supreme Court. Rule of 4

Negotiation

Informal settlement talks. Part of ADR(Alternative Dispute Reslution)

Mediation

Mediator meets with parties and tries to work a resolution(Alternative Dispute Resolution)

Arbitration

Arbitrator(s) hears a dispute and makes a decision called an award. Forced Decision, it is binding. Awards have to be turned into judgments to be collected. (Alternative Dispute Resolution)

Attorney Fees

Fixed Fee

Hourly Fee

Contingency Fee

Recovery of Fees

English Rule- Loser pays costs

American Rule- Each pay your own unless statute says other party recover fees

Statute authorizes

Rule authorizes

Contractual Language - language in contract that says successful party will recover fees

Complaint

Details the facts, allegations. Service of process copy of the complaint and a summons to the defendant. Default judgment for a plaintiff, if defendant does not answer.

Answer

the defendant's response to the complaint. Filed after receiving a complaint. says admit or deny

Affirmative Defense

burden is on defendant to introduce proof. you list them

Counterclaims

Defendant sues plaintiff, and the plaintiff answers by filing a reply

Motion to Dismiss

a motion that asks the court to dismiss the case for a specified reason, such as lack of personal jurisdiction or failure to state a claim

Motion for Summary Judgment

A motion asking the court to enter a judgment without a trial

No questions of Fact only question of Law

Depositions

sworn testimony recorded and transcribed by a court reporter

Interrogatories

written questions for which written answers are prepared and then signed under oath. Attorney can help you answer these

Requests for Admission

Questions to the responding party phrased in an "admit" or "deny" format, giving no opportunity for explanation, and binding the responding party to its admissions.

requests for documents, objects, and entry upon land

Most frequently is request for documents

Requests for Examination

IF physical/mental at issue

Mechanical devises

Location of event

Spoliation of Evidence

destruction of evidence

Adverse inference - they will assume the worse becasue they assume the information was bad for the case

Bench Trial

A trial in which the judge alone hears the case decides questions of face and law

Jury Trial

Judge decides questions of law

Jury decides questions of fact

Jury Selection (Voir Dire)

Question prospective jurors to determine bias or connection with a party in the case

Challenge:

Peremptorily (No reason, cannot be used for protective classes) or

For cause(bias)

Opening statements

set forth the facts that they expect to prove during the trial

Relevant evidence

proves or disproves a fact in question or to establish the degree of probability of a fact or action

Hearsay

testimony someone gives in court about a statement made by someone else who was not under oath at the time of the statement

Examination of Witnesses

The attorneys question each witness as follows:

Direct examination.- whoever put them on the stand gets to ask first

Cross-examination.

Redirect examination and recross-examination.

Motion for Judgment as a matter of law/directed verdict

After plaintiff rests

Plaintiff has presented no evidence to support his/her claim

Closing arguments

summarizing the facts and evidence and telling their client's story in the most compelling way possible

Jury Instructions

Judge provides instructions (charges) to the jury on the law that applies to the case as well as the standard of proof

Civil cases is a preponderance of the evidence

Some civil matters require clear and convincing

Criminal trial is beyond a reasonable doubt

Verdict

After deliberation, the jury delivers its findings(Verdict)

The verdict specifies the jurys findings and liability

Jury can award money damages in a civil case or prison time in a criminal case

Motion for new trial

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

motion for judgment n.o.v. (non obstante veredicto)

A motion asking the court to enter judgment as a matter of law in the defendant's favor, despite the jury's verdict—as a matter of fact—in the plaintiff's favor.

Filing the appeal

Documentation varies by court but usually includes:

A notice of appeal.

A record (or transcript) of the pleadings, motions, hearings, the judgment, and any other ruling.

Briefs outlining the legal arguments for reversing the judgment (appellant) and for letting the judgment stand (appellee).

Oral Arguments

if granted; questioning by justices

Affirms

Confirms the trial courts judgment

Reverses or Remands

Could reverse part or all of the judgment or remand the case back to the other courts for an additional trial

Reverses and renders

Part or all of the judgment and gives a new ruling without another trial

Modifies

Changes the lower courts decision

Writ of execution

directs sheriff to seize defendant's non-exempt property and sell them to pay for judgment

Bankruptcy

Automatic Stay - when you file bankruptcy you get this and people cannot take your money when you serve them this document

Discharge (7 v. 13)

Privileges and Immunities Clause

Article IV of the U.S. "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States"

When can the Privileges and Immunities Clause be broken

A state may not treat citizens of other states differently from citizens of its own state without a substantial reason that is substantially related to the purpose of the rule

Full faith and credit clause (Art. IV section 1)

Ensures that any judicial decision with respect to such property rights will be honored and enforced in all states

Seperation of Powers

Legislative Branch - Creates Laws

Executive Branch - Enforces Laws

Judicial Branch - Interprets Laws

Checks and Balances

Each branch limits action sof the other two branches

Legislative Branch

Can override the Presidents veto

Can define the jurisdiction of the judiciary

Must confirm judiciary appointees

Executive Branch

Has the pwoer to veto legislation passed by congress

Can appoint the members of the judicary

Judicial Branch

Has the power to void the acts of the executive and legislative branches because they are unconstitutional

The commerce clause

The clause in the Constitution (Article I, Section 8, Clause 1) that gives Congress the power to regulate all business activities that cross state lines or affect more than one state or other nations.

The "Dormant" Commerce Clause

When state regulations interfere with interstate commerce, courts must balance the state's interest against the burden that the regulation places on interstate commerce

Presumed to be Valid

Generally, state laws enacted pursuant to the states police powers are presumed to be valid(relative to their effect on interstate commerce)

Substantially interferes

If a state law substantially interferes with interstate commerce, it will most likely be held to violate the commerce clause and will be struck down

The supremacy clause and federal preemption

Article VI of the Constitution provides that the Constitution, laws, and treaties of the United States are the "Supreme Law of the Land."

Preemption

A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.

Congressional intent

It is not clear whether Congress intended to preempt an entire subject area through passing a certain law.

In these situations, the courts determine whether Congress intended to exercise exclusive power.

Congressional intent to preempt a conflicting state or local law, regulation, or ordiance exists if the federal law

is so pervasive, comprehensive, or detailed that it leaves state and local law no room to supplement it, or

Creates a federal regulatory agency that is empowered to enforce federal law

Taxing and spending powers

Congress has the "Power to lay and collect Taxes, Duties, Imposts, and Excises" which shall be "uniform" among the states

Taxing and spending powers 2

Also gives congress its spending power - The power "To pay the debts and provide for the common defense and general welfare of the United States"

First ten amendments to the US constitution

Bill of Rights

Freedom of Speech

Right to free speech is the basis for our democratic govenment

Free speech also includes symbolic speech including gestures, movements, and articles of clothing

Reasonable Restrictions on Freedom of Speech

There is a balance between governments obligations to protect and citizens exercise of rights

Content-Neutral laws

Laws that regulate the time, manner, and place, but not the content, of speech receive less scrutiny by the courts than do laws that restrict the content of expression.

Laws that restrict content of speech

Must have compelling government interest

Freedom of speech: Corporate political speech

Also falls under the protection of the first amendment