320 Exam 1

Definition of Law

A system of official rules created an enforced by a government or society to guide human behavior and maintain public order

Laws are a form of what?

Laws are a form of social control

Usual dynamic of consumer-business relations regarding duties and protections

The balance of legal and ethical rights and obligations between businesses and customers

Definition of Constitutional Law

Law derived from the constitution as well as state constitutions

Where do statutes come from?

They are derived from bills and passed by congressional senators and representatives as well as state

Definition of Common Law

The old laws that came from the UK

Definition of Judicial/Case Law

Descisions issued by judges in federal and state courts

Definition of Administrative Law

Rules, regulations and decisions of administrative/gov’t agencies

Is the US Constitution the supreme law of the land?

True

Definition of Separation of Powers Doctrine

Structure of US federal gov’t consisting of three branches

What are the three branches of government?

Executive, Judiciary, and Legislative

Definition of Executive Branch

The president: enforces the law

Definition of Judiciary Branch

The courts: Interprets the laws

Definition of Legislative Branch

The house & senate: makes the law

Definition of State Sovereignty

Powers not expressly granted to the federal government but are reserved for the states

How does the government conduct business?

Through the legislative process which covers civil rights & foreign treaties

Definition of Statute

An act of Legislature declaring, commanding, or prohibiting something

Definition of Bicameral

Legislative branch has two bodies

What are the two bodies of legislature

Senate and House of Representatives

What is the legislative process?

One house drafts and approves the bill then it goes to the other house after they broth reach an agreement it goes to the president for acceptance without change or a veto

Definition of Case Law

Evolves through judicial descisions

What is the difference between binding and non-binding law?

Binding and non-binding changes who needs to follow

Definition of Stare Decisis

The matter stands decided

What is the concept of Stare Decisis?

Must face new issues open to interpretation; lower courts may rule but not authoritative to other courts until issue moves up the ladder

When does the Judiciary Branch ignore the separation of powers?

When the other branches actions are challenges in court as unconstitutional or a violation of federal law

What does the Judiciary branch do when ignoring the separation of powers and interfearing with the other branches?

Courts may need to to interpret, explain, or throw out a statute enacted by the legislature, or courts may need to enforce the law or prohibit actions taken by the executive branch

What may legislature do when citizens are unhappy with a court descison?

The legislature may enact a statute to almost overturn the court descisons

What may legislature do when citizens are happy with a court descison?

The legislature may codify it in order to protect it from being changed by the court in the future

What is an administrative agency?

A sub-divison of the government that carries out the governments job

Why does the government need Administrative agencies?

The government needs a legal proves to ensure their actions are enforced correctly and fairly, and are not unconstitutional or contrary to the law

What is the main attribute of law?

There needs to be a neutral decision maker, can be a judge or a jury overseen by a judge

What are the two systems of Law?

Criminal and Civil

Definition of Criminal Law

The state (prosecutor) vs. John Doe (defendant/alleged wrong doer)

Definition of Civil Law

Plaintiff (who brings the action) vs. defendant (answers it and can bring cross-claims)

Definition of Ethics

The discipline dealing with what is good and bad and with moral duty and obligation

Definition of Outcome-Based Ethics

Duty or moral obligation of what is good is based on the outcome

Definition of Duty-Based Ethics

Just focuses on where your duty lies. Think about it as “what would happen in everyone did it”

Why are Ethics important?

They help everyone in the organization understand expectations for their actions, sets a standard of behavior, and can help lower risk

What is the concept of legal compliance and business ethics regarding laws and regulations?

There likely laws/regulations that tells a company/industry how to act. Violating these is not only illegal but also unethical

What are the consequences of violating professional or company codes of conduct

Violating a professional or company code of conduct might not be illegal but could cost you your job or professional license

What are the seven questions you ask to see if something is unethical?

1. Is it Legal

2. Does it hurt anyone

3. Is it fair

4. Am i being honest

5. Would I care if it happened to me

6. Would I publicize my actions

7. What if everyone did it

Definition of Plaintiff

Party begins the lawsuit with a civil case; has suffered a legal harm the law recognizes

Definition of Defendant

Alleged wrongdoer against whom the plaintiff brings a suit, sometimes brings a counterclaim

What is a Burden of proof?

The level at which the plaintiff must convince the trier of fact on every element

What are the 3 types of proof?

Beyond a reasonable doubt, preponderance of the evidence, and clear and convincing

What is the only kind of criminal proof?

Beyond a reasonable doubt (highest)

Definition of Preponderance of the Evidence

More probable than not. It is the lowest form and most common

Definition of Clear and Convincing proof

More than a preponderance, but less than beyond a reasonable doubt. Medium and only necessary if a statute calls for it

What are the two types of burden on proof?

Burden of persuasion and burden of going forward

What is the Burden of Persuasion

What the plaintiff has, it will never shift, persuading the trier of fact

What is the Burden of Going Forward

When the plaintiff introduces a fact that helps them meet their burden of persuasion, but if the defendant does nothing the case could not go forward, so the defendant has a burden to refute that fact

What cases are federal court jurisdiction?

Cases where the US is a party, cases involving US Constitution, federal treaty or federal law, Certain types of cases deemed federal, and Diversity jurisdiction

Definition of Diversity Jurisdiction

Lawsuits involving a diversity of citizenship (people from different states) and the claim for damages exceeds $75,000

What types of cases are federal cases?

Bankruptcy, copyright, patent, and maritime law

What cases are heard before SCOTUS?

SCOTUS jurisdiction is discretionary

How do you get a case heard before SCOTUS?

You must petition the court to hear a case bu having the losing party file a writ of certiorari arguing why the case should be heard

What are the 3 kinds of cases most likely to be heard before SCOTUS?

Cases of tremendous national importance, a case where justices believe lower courts have misapplied or misinterpreted a prior Supreme Court precedent, and a circuit split

Definition of Circuit Split

When there is a split among the federal circuit courts of appeals on the meaning of a federal law

What is the first step after a SCOTUS petition has been granted?

Parties are instructed to file written briefs laying out arguments why their side should win.

What is the second step after a SCOTUS petition has been granted?

After justices have read the briefs, they hear oral arguments from both sides

What is the third step after a SCOTUS petition has been granted?

After the oral arguments the justices “meet” in conference to decide the outcome of the case

What is the final step after a SCOTUS petition has been granted?

Lastly they take the task of drafting legal opinions after deciding which side should win

What is the importance of opinions within SCOTUS?

Opinions are how the court communicates withe the public. After all opinions are drafted the court hands down the decision to the public

What are the three types of SCOTUS opinions?

Majority opinion, dissenting opinion, and concurring opinion

Definition of Majority Opinion

Opinion of the court, written by a single judge and joined by other judges who voted the same way

Definition of Dissenting Opinion

Opinion of a judge who disagrees with the outcome and reasoning employed by the court majority

Definition of Concurring Opinion

Opinion written by a judge who agrees with the majority’s outcome but disagrees with their reasoning

yes

What 3 things must a complaint have?

Jurisdiction of the court, facts specific/basis of claim, and claim for relief/statement of relief sought

What is the concept of jurisdiction of the court?

What authority does this court have to hear the complaint, has it been brought in the right court?

What is a facts specific/basis of claim?

Usually a numbered paragraph document that is specific. Plaintiff must be clear enough so that the defendant knows what they have to defend

Definition of Summons

Order to defendant to appear and answer complaint

What is the first service of process?

Defendant receives or is served a copy of complaint and summons after it has been files with the court

What is the second service of process?

The defendant must file a written answer to complaint, addressing issues of fact and law

What happens if there is a fault with a complaint?

If there is a fault with a complaint the defendant may file a motion raising that fault prior to answering

What happens if anything files is not served to all other parties?

If anything files is not served to all other parties it is considered '“ex parte” which are not permitted in court as they violate the idea of due process

What are the types of motions?

Motions to move court, motions related to pleadings, motion for summary of judgement, or motion to make a ruiling on other things before trial

What is the concept of Motions to Move Court?

Either party can move court to grant some sort of relief while the case is pending before getting to a final outcome. These are usually temporary decisions

What is the concept of Motions related to Pleadings?

The plaintiff might want to respond to the defendants answers, or the defendant might say the plaintiff has a jurisdiction problem

Definition of Motion for Summary Judgement

Motion where one side (usually the defendant) asks the judge to rule based on just pleadings and no other evidence

What are the 4 types of discovery?

Written interrogatories, depositions, request for production of documents, and physical inspection of property

Definition of Written Interrogatories

Written questions submitted to other side that they must answer in writing

Definition of Depositions

Bringing a person in and asking them questions on the record (parties, witnesses, experts)

Definition of Request for Production of Documents

Can get your hands on just about anything via this process and a big case can fill a warehouse

Definition of Physical Inspection of Property

When you want someone to come on sight to see where the accident happened

When is a good time to start talking about settlements?

Once you know the strengths and weaknesses of each position

What is Arbitration?

Seeking an outside arbitrator to resolve dispute, usually binding but sometimes not binding

What is Mediation?

A non adversarial, but neutral person who tries to help parties find middle ground

What happens during a pre-trial conference/ADR?

A conference in court with clerks trained to assist, try to get at least some issues resolved so there are less issues to bring to trial

What is the flow of a trial?

Jury selection, opening statements, plaintiff’s case in chief & defendant’s case in chief, closing arguments/summation, jury instructions, jury deliberations, verdict, judgement

Who can select a jury in a civil or criminal suit?

In a criminal suit the criminal defendant had the right to choose, and in a civil case either party can choose

When might you want a bench trial in a civil suit?

If the issues are technical or if the jury is likely to dislike your client

Definition of Opening Statement

Attorney’s opportunity to tell “trier of fact” what they hope to prove at trial, facts only

What is the concept of the plaintiff’s case in chief?

P direct exam of witness (introduce evidence), D cross exam, P can re-direct. The plaintiff needs to get everything in here as there is only one chance to meet the burden of proof

What is the concept of the defendant’s case in chief?

D calls witnesses, gets evidence, and P cross examines. P can bring a case in rebuttal like a dispute to something D said

Definition of Closing Arguments

When parties get up to sum up their case and possible do some damage control on something the other side might have gotten out at trial

What is the concept jury instructions?

When a judge says if you find x, then you must decide y, but if you find a, then you must decide b

What is the concept of Jury Deliberations?

When the jury must make the findings of fact, then look at how law applies. Once they reach a verdict they might also have to determine damages

Definition of Verdict

The jury’s decision, in a criminal case it must be unanimous, but in civil some majority

Definition of Judgement

Judge must take verdict from jury and enter judgement