FIN 3054 Virginia Tech Malone Exam 1 Study Guide

Legal Reasoning

Legal Reasoning

The IRAC Process

IRAC

-Used for legal reasoning/writing
-I: Finding the real issue(s) from the facts
-R: Decide what rules apply to the issue
-A: Analyze how the rule applies to the facts
-C: Based upon the analysis, one may draw a conclusion

Ethics

-Govern how people should act
-Ethics is separate from laws. If an action is legal it still may be unethical.

Values

-Things that one considers to be important
-Ethics assesses whether the actions taken in pursuit of those values are acceptable

Normative ethics

Enable a person to determine whether an action is right or wrong. Normative ethical theories present different ways a decision-maker can assess the ethical impact of a proposed course of action.

Utilitarianism

-A school of normative ethics
- Determines the rightness of a decision from its ultimate effect

Kantian Ethics

-A school of normative ethics
-Is concerned about the reason for a decision and not the consequences of the decision

Religion defined ethics

-A school of normative ethics
-A decision is considered right if it is in line with the decision maker's beliefs

Virtue Ethics

-A school of normative ethics
-Views a decision is ethical if it is made to pursue a virtuous trait

Behavioral ethics

-involves recognizing certain human traits that interfere with ethical decision-making.
- Snap decisions, bias, peer pressure, labeling an issue, slippery slope, organizational pressure

Legal minimalism

-Laws are society's limits of what is - the minimum necessary to comply with the law or the maximum allowed by the law. (can do v. should do)

Model for ethical decision making

-Objectively consider only accurate facts
-Identify all stakeholders who could be impacted by a decision
-Consider all courses of action and their potential impact on the identified stakeholders
-Make a well reasoned final deision

Public disclosure test

"What if everyone in the world knew about the decision I'm making? Would I be ashamed?"

Universalization test

"Would the world be a better place if everyone did what I'm doing?"

Value of ethical practices

-Customer retention and growth
-Current and prospective employees
-Socially responsible investing
Less gov't regulation
-Business contracts

Employees' responsibilities

-It is illegal to fire an employee who refuses to break the law.
-An employee is individually liable where they break the law even though they were told to by a supervisor.
-Where an employee is instructed to do something that is legal, but unethical then follow internal company code of conduct or seek guidance from other superiors in company.

Conflict of interest

-For corporations, an attorney employed or retained by an organization represents the organization via its duly authorized agents.
-Attorneys can be barred from representing you or your business if there are conflicts of interest.

Foreign Corrupt Practices Act

-A federal law that says it's illegal to bribe foreign officials for purposes of business
-Argument against this law is that "in some other countries that's just how business is done".

Three views on the law

-Legal positivism
-Natural law
-Legal realism

Legal positivism

Law is what the sovereign says

Natural law

An unjust law is no law at all

Legal realism

Law is what the enforcer wants it to be

Common law

-The collection of cases and decisions made by other judges in other cases a precedent
-Apply the law to the facts

Civil code

-A comprehensive codified set of rules where judges' previous decisions are deemed less important
-Apply the facts to the law

Private law

Disputes between private individuals or entities v. other private individuals or entities

Public law

Disputes where at least one of the parties involve the government or a government entity.

Criminal law

-Behavior that is outlawed by a society
-Guilt is determined
-Punishment is imposed

Civil law

-The injured party brings the suit, not the government
-Liability is determined, not guilt or innocence
-Relief sought is a form of compensation

Where do we get our laws?

-The constitution
-Statutes
-Ordinances (zoning, building codes)
-Administrative law
-Treaties
-Exec. orders
-Case law

Case law/common law

the collection of cases made by judges interpreting a statute or other source of law, which is then relied on by other judges in other cases as Precedent.

Stare decisis

judges are obligated to follow the precedents within their jurisdiction.

No duty to rescue

-You only have a duty to rescue someone if you created the peril, are the injured party's employer, or if there's a special relationship (i.e., therapist and client) between the two parties

Substantive law

-Creates and defines legal rights
-I.e. state and federal statutes and common law

Procedural law

-Defines the rules that are used to enforce substanitve law.
-Ex. Rules of Civil Procedure; Rules of Criminal Procedure.
-I.e., Who we can put on the witness stand

State legal system order

-State trial court --> state appeals court --> state supreme court --> SCOTUS

Federal legal system order

Federal district court --> federal appeals court --> SCOTUS

US and State Supreme Courts

-Has the option to hear cases.
-If it refuses to hear a case, then the appellate decision is final.
-Final word regarding the law unless it is a State Supreme Court decision.

Writ of Certiorari

-When the justices rule to hear a case at the supreme court
-At least 4 must rule to hear (Rule of Four)

State Supreme Courts

State supreme courts are a bit more diverse - at this level were more concerned with questions of not "did this happen" but "could this happen"

Federal and State Appellate Review

-Reviews trial court's record for any errors of law
-Opinions (unanimous, concurring, dissenting)
-Appellant/Petitoiner v. Appellee/respondent
-Reversed v. affirmed
-Case law is more concerned w/ appellate law

Appellate court v. trial court

Appellate court ties facts to the law to find out if something is legally permissible (is it permissible to burn the American flag?) while trial courts look more at the facts and decide if a party actually broke the law (did he/she have the right to burn the flag?)

Fourth Circuit

-The circuit that VA is in
-Contains VA, NC, SC, W.Va, MD, and DC

Federal and state trial courts

-Finders of fact
-Ltd. jurisdiction (small claims, juvenile, probate, bankruptcy (federal))
-General jurisdiction

Election/Appointment of Judges

-Federal judges are appointed for life
-Some states elect judges, others appoint

Jurisdiction

The power of the court to hear a particular case
-Courts must have subject matter jurisdiction and personal jurisdiction

Subject Matter Jurisdiction

-the power of a court to hear a particular type of case based upon the case's subject matter
-i.e. a JDR court cannot hear a case for a speeding ticket

Personal jurisdiction

-Refers to the power that a court has to make a decision regarding the party being sued in a case. Before a court can exercise power over a party, the U.S. Constitution requires that the party has certain minimum contacts with the forum in which the court sits

Getting a case to federal court

-2 types of civil lawsuits are permitted in federal court
-Federal question cases
-Diversity jurisdiction cases ( cases between parties of citizens of different states and the amount in controversy exceeds $75,000)

Counterclaim

Jumps across the "v." - filed by defendants against the plaintiff from similar facts arising from the lawsuit

Crossclaim

One defendant or plaintiff sues another plaintiff/defendant in the same case.

Executive agencies

-Refers to cabinet departments and their associated agencies
-Most executive agencies fall within a federal cabinet-level department
-President appoints members of their cabinet.

Independent regulatory agencies

-Typically not involved with regulation (NASA) but can be.
-Similar to Executive Agencies, but the high ranking administrators are called commissions or boards

The Administrative Procedure Act

-Provides guidelines for Agency procedure
--Organic Statute typically trumps
-Outlines Rulemaking Procedure
-Congress created the APA in 1946 in response to concern that agencies had too much power and its provisions apply to all federal agencies.

Formal rulemaking

-Involves a trial type hearing
-Often time consuming and rarely used by agencies
-The hearing involves witnesses testifying along with the presentation of other relevant evidence.
-Only required where
-Congress specifies that rulemaking must take place "on the record"

Notice and comment

A step in the rule-making process in which proposed rules are published in the Federal Register and made available for debate by the general public.

Informal agency action

-This is the bulk of agency actions.
-Informal agency actions do not create new substantive rule.
-I.e., Resolution of workers' compensation claims,
Determining social security benefits, Granting governmental licenses, leases, and permits, Contracting with government

Policy statement

-Agency issued declarations of how they will interpret legislative rules and when they will move to enforce certain violations of such rules.
-Policy statements are not substantive, but like interpretive rules, merely informative.
-Not legally binding.

Enforcing an agency's rules

-Investigations (Citizen reports, Required compliance reports, Inspections, Subpoenas/Search warrant)
-Adjudication: Negotiated settlements, formal complaints

Freedom of Information Act (FOIA)

-Can request government records
-Agency is required to respond in 10 days, but in practice in can take months
-Requesters must pay cost of locating and copying records (except for public interest groups, reporters and some others)
-Not all documents are available for public inspection

Adversary System

-Unlike many civil code countries.
-The best way to bring out the truth is for the two contesting sides to present the strongest case possible to a neutral fact-finder within the parameters of the law.

Forms of Alternative Dispute Resolution (ADR)

-Negotiation
-Mediation
-Arbitration

Negotiation

-Form of ADR
-Least formal ADR Form
-When parties seek to voluntarily resolve a dispute by reaching a settlement. This is non-binding,
-This is the least formal form of ADR.
--Can occur at all stages of a case

Mediation

-Form of ADR
-Somewhat formal
-A neutral, third-party, mediator aids parties in their attempt to reach settlement. --Mediation is non-binding. Wants to build consensus among parties.
-Most effective when the parties have an interest in preserving an existing relationship, like business partners.
-Anyone can be a mediator

Arbitration

-Form of ADR
-Most formal form
-A neutral third party renders a (typically) a decision.
-Non binding Arbitration versus Binding Arbitration
-Binding arbitration has the same force has an order from a judge

Civil litigation process

-Pre-suit - where investigation is done
-Pre-trial Proceedings = Determination of what, if any, factual issues are to be decided by trial.
-Trial Proceedings = Determination of factual Issues.
-Post-Trial

Pre-Suit

-Stage of civil litigation
-Plaintiff prepares for the case: interviews witnesses, documents damages, considers the cost of trial.
-Letter to defendant.
-Defendant considers pre-suit options.
--Settlement before trial begins?
---Is it worth going to trial in the first place?

Class action suit

-A class representative files on behalf of a group of individuals who share common injuries from the same source (party defendant).
-Often exists where the plaintiffs' have suffered similar harm from similar facts.
-Before class is formed (confirmed) plaintiff must prove:
-Class is so large that it is impracticable to join all members.
-Everyone in the class must have a common cause of action from the same facts.
-Plaintiff's injury is typical of others' involved in lawsuit.
-Most require one to "opt out," but can have to "opt in."
-Ex. Opting out of a suit against a defective dryer that one also owns
-Class Action Fairness Act.
-Limits long term liability - binds present class members and future members; avoids large differences in verdicts across jurisdictions.

Mass tort litigation

-Similar to class actions, but do not have to be certified.
-Each plaintiff has an individual claim unique to their individual damages.
--Ex. Defective drugs, airplane crashes, chemical spills.
--The negative effects of these result in different injuries to different people.

Starting the suit

-Complaint
--Short set of facts and claims (causes of action).
--Filed by the Plaintiff (P).
---The court's proper jurisdiction
---General facts that support named causes of actions
---A requested remedy
-Service of Process
--Puts the Defendant (D) on notice that they have to file a responsive pleading or risk a default judgment.

Starting the suit p.2

-Answer
--Prior to the answer, a defendant may file a Motion to Dismiss
---Rarely granted
-D answers. D denies some (or all) of P's allegations. Anything not denied is treated as admitted.
--Affirmative defenses
---D raises any affirmative defenses
---E.g.: the Statute of Limitations has run (P didn't file the claim within the legally prescribed time).
-Default Judgment
--If D does not respond with an answer, a Default Judgment may be issued.
--P is entitled to everything they asked for in their complaint

Motion to dismiss

-Asks the court to terminate the case.
--E.g.: failure to state a claim for which relief can be granted.
-Plaintiff often has a right to amend his/her complaint.
If a motion is not granted, D must file an answer.

Counterclaim

Against the party bringing the action.

Cross-claim

Claims against co-parties

Discovery

-The phase of pretrial for which all parties gather evidence and information regarding the facts of the case.
--Each side must provide information to his adversary.

Types of Discovery

-Interrogatories: written questions that must be answered in writing.
-Depositions: oral interrogations under oath.
-E-Discovery.

Motion for summary judgment

-A party asks the court to rule on the issue before trial.
--There must be no essential facts disputed.
--With no facts in dispute, the court can rule on the issue is a matter of law.

Civil trial juries

-Available for trial for money damages, not for equitable remedy
-Waiver
--The right can be waived.

Jury size in VA

-IF action is for more than $15,000, the jury has 7 jurors.
-Actions under $15,000 have a jury of 5 jurors.
-Courts may allow 12 person juries in certain instances.

Burden of proof in civil cases

-Plaintiff must prove liability by a preponderance of the evidence.
-50.00001% = sufficient to prove liability.

Burden of proof in criminal cases

State must prove guilt beyond a reasonable doubt.

Voir Dire

Judge and attorney can ask questions of prospective jurists to discern any bias related to the parties, witnesses, or attorneys

Challenges for Cause

-Voir dire
-E.g. Parties are blood relatives

Peremptory challenges

-if an attorney doesn't like a juror they have three strikes to potential jurors
-E.g. no men that wear eyeliner

Trial procedure steps

-Plaintiff's Opening
-Defendant's Opening
-Plaintiff's Case in Chief
-Defendant's Case in Chief
-Jury Instructions
-Plaintiff's Closing
-Defendant's Closing
-Deliberation/Verdict
-Appeal?

Openings

-Merely an outline of a part's case.
-Plaintiff's typically go first.
-No Argument, just facts.
-Storytelling what happened.
-One chance at a first impression.

Plaintiff's case in chief

-This involves the plaintiff's attorney calling their witnesses to the stand to testify
-A witness testifies by answering questions that are posed to them by the attorneys
--Will only call witnesses that are going to help tell their side of the story

Evidence

-Testimony by witness is considered evidence
-Not all evidence is considered admissible.

Direct examination

calling upon a witness where you call forth a witness (the witness is yours) can only ask non-leading questions (questions that do not really lead to an answer= can only be answered yes or no)

Cross examination

-Not your witness
-Can ask leading questions

Leading questions

Non yes or no questions

Non leading questions

Questions that do not really lead to an answer - can only be answered in yes or no

Redirect

Direct examination after opposing party questions

Recross

Cross questioning after opposing party asks questions

Defendant's Case in Chief

-Refute Plaintiff's case.
-Defendant's witness will try to disprove any elements the plaintiff's witnesses testified to.
-Prove any Counterclaims.

Closing arguments

-Where the lawyer argues the importance of the Evidence and how it should be applied to the Jury Instructions to render a positive verdict for his/her side.
-Each party states why their side of the story should be believed over the other.

Torts

-A wrong
-Based on an obligation imposed by law
-Court will provide a remedy to the injured party

Criminal law

behavior classified as dangerous to society; prosecuted by the government, whether victim wants to prosecute or not

Contract law

based on breach of an agreement between the two parties; injured party files a civil action and receives compensation

Tort law

based on an obligation imposed by the law with no agreement needed between parties; injured party files a civil action and receives compensation

Types of torts

-Intentional torts
-Negligence torts
-Strict liability