Business Law Chapter 2: COURTS AND ALTERNATIVE DISPUTE RESOLUTION

What is judicial review?

The process by which a court decides on the constitutionality of legislative enactments and actions of the executive branch

What is jurisdiction?

The power to hear and decide a case

What are the two types of jurisdiction?

In personam jurisdiction and In rem jurisdiction

What is In Personam Jurisdiction?

The power of a court to compel the presence of the parties, including corporations, to appear before the court and to litigate

What is In rem Jurisdiction?

Court's power to decide issues relating to real or personal property

What is long arm status with jurisdiction over persons or property?

Used by courts for non-resident parties based on "Minimum wage" of contact with state.

For corporations, courts usually have jurisdiction in the state where they are incorporated, principle place of business, places goods in stream of commerce, and actively advertise

What is jurisdiction over subject matter?

The power of a court to hear and determine a particular type of case and usually determined by federal or state statutes

What is court of original jurisdiction?

Where the case started (trial court)

What is court of appellate jurisdiction?

Has the power to hear an appeal from a lower court

What is federal question?

Cases in which the rights or obligations of a party are created or defined by the U.S. Constitution, a treaty or some federal law

What are diversity cases?

The parties are not from the same state and the amount in controversy is greater than $75,000

What is concurrent jurisdiction?

Jurisdiction that exists when two different courts have the power to hear a case

What is exclusive jurisdiction?

Jurisdiction that exists when a case can be heard only in a particular court or type of court

What is jurisdiction in cyberspace?

"Sliding-scale" standard rules for jurisdiction

1.When the defendant conducts substantial business over the Internet, jurisdiction is proper.

2.When there is some interactivity through a Website, jurisdiction may be proper.

3.When a defendant merely engages in passive advertising on the Web, jurisdiction is not proper.

What is venue?

Concerned with the most appropriate location for the trial. Courts rarely grant requests for change of venue

What does "Standing to Sue" mean?

A party must have 'standing" to sue, which is a sufficient "stake" in the controversy, party must have suffered a legal injury, there must be a justifiable controversy, a real and substantial controversey

Describe the state and federal court system

- Each state has its own court system.

- There is a system of federal courts.

- Independent systems deriving authority from the U.S. Constitution

What do the state court system include?

Trial courts and appellate or "reviewing courts", highest state courts

What are trial courts?

general or limited jurisdiction and small claims court

What is small claims court?

Special court in which parties can litigate (low $) without an attorney

What are appellate courts?

Every state has at least one, focus on questions of law, defer to trial court's finding of facts

What is the federal court system?

U.S. district courts, U.S. courts of appeals, The United States Supreme Court

What is the Adversary System?

Legal framework where two opposing parties (prosecution/plaintiff and defense) present cases before a neutral arbiter who decides the outcome based on evidence.

What do pretrial procedures include?

Pleadings, pretrial motions, discovery, electronic discovery, pretrial conference, jury selection

What are pleadings?

Plaintiff's complaint, defendant's answer, motion to dismiss

What are pretrial motions?

Motion for judgment on the pleadings, motion for summary judgment

What is discovery?

Depositions and interrogatories, requests for other information

What is Voir dire?

Attorneys question prospective jurors to ascertain whether they can be impartial jurors

What happens at the trial?

- Opening arguments and plaintiffs present case

- Directed verdicts

- Closing arguments

What are directed verdicts?

After the plaintiff's case, the defendant can move for a directed verdict (or judgment as a matter of law). If this motion is denied, the defendant's attorney presents the defendant's case

What happens in posttrial motions?

- Motion for judgment n.o.v. ("notwithstandingthe verdict")

- Motion for a new trial

What happens during the appeal?

- Filing the appeal

- Appellate Review

- Appeal to a higher appellate court

What does it mean to filing the appeal?

Briefs pointing out reversible error that require reversal of the trial court's verdict or a new trial

What happens during an appellate review?

- Courts do not consider new evidence

- Only consider briefs and evidence presented at trial

What is enforcing judgement?

A judgment may not be enforceable because a defendant may not have sufficient assets to pay it

What is Alternative dispute resolution (ADR)?

A method to resolve disputes in ways other than the traditional judicial process, and include:

1. negotiation

2. mediation

3. arbitration

What is a negotiation?

Informal discussion, sometimes without attorneys, where differences are aired with the goal of coming to a "meeting of the minds" in resolving the case

What is mediation?

- Involves a neutral 3rd party (mediator)

- Face-to-face with parties to determine common ground

- Parties approve the Final Decision and No Required Discovery

- Advantages: few rules, customize process, parties control results

- Disadvantages: mediator fees, no sanctions or deadlines.

What is arbitration?

Settling of a dispute by a neutral 3rd party (arbitrator) who renders a legally-binding decision; often an expert in their field and a lawyer.

Arbitrator's decision is usually final

What are arbitration clauses and statutues?

Uniform arbitration act and federal arbitration act (FAA)

What is the issue with arbitrability?

No party will be compelled to arbitration unless a court finds the party consented, and that they are fair to both parties

What are the three ways to negotiate?

Soft: avoid conflict, make concessions; often end up exploited and feeling bitter

Hard: sees any situation as a contest of wills. Exhausts people and resources and harms relationships

Principled negotiation: Where interests conflict, insist that results be based on some fair and independent standards

What is the judgement for negotiation?

1. Does it produce a wise agreement?

2. Is it efficient?

3. Does it improve or at least not damage the relationship between the parties?

What are the 4 basic points of negotiations?

1. Separate People From the Problem

2. Focus on Interests

3. Create Options

4. Use objective Criteria

What are sources of power in negotiation?

- Developing a good working relationship with the other party

- Understanding interests

- Inventing an elegant option

- Using external standards of legitimacy

- Developing a good best alternative to a negotiated agreement (BATNA)

Before a court can hear a case, it must have jurisdiction. Over what must it have jurisdiction?

Subject matter

What is the difference between a trial courtand an appellate court?

- Trial courts are the initial venue for legal disputes, where a single judge or jury hears testimony, examines evidence, and determines facts to reach a verdict

- Appellate courts review trial court decisions for legal errors, using panels of judges rather than juries, and do not accept new evidence or witnesses