Business Law Unit 1

Procedural rules

Procedural rules by state; all civil trials in federal court follow the federal rules of civil procedure

3 Stages of Litigation

pretrial, trial, and post-trial

Attorneys’ fees

-          Fixed fee: a set amount for simple, repeatable work (ex: draft a will)

-          Hourly fee: billed for actual time spent; most common structure

-          Contingency fee: a percentage of the plaintiff’s recovery – paid only if the plaintiff wins

Pretrial: procedures

-          Most of the work in a case happens before the trial

o   Consult an attorney

o   Pleadings

o   Discovery

o   Pretrial conference

o   Jury selection

Pretrial: Pleadings

Complaint: the plaintiff’s filing that starts the suit

o   3 parts: jurisdiction, legal theory, and remedy

Answer: the defendants response; missing it can mean default judgment

o   Admits or denies what the complaint says and explains when they deny

o   If defendant fails to file the answer the plaintiff wins by default

Counterclaim: the defendant’s claim back against the plaintiff

Reply: the plaintiff’s response to a counterclaim

Pretrial: dismissals

-          Motion to dismiss: asks the court to throw out the case for a specific reason – lack of jurisdiction or failure to state a claim

o   Failure to state a claim: the plaintiff doesn’t have legal reasoning

Pretrial: Judgment

-          Judgment on the pleadings: asks for judgment based only on the pleadings, when no facts are in dispute

-          Summary judgment: ask for judgment without a trial when only questions of law remain; outside evidence may be considered

Pretrial: discovery

Discovery is how each party obtains information from the other before trial

o   The information must be relevant and not privileged

o   Purpose: prepare for trial, avoid surprises, and encourage settlement

Pretrial: the pretrial conference

After discovery, the attorneys may meet with the judge before the trial

o   Explore one last settlement

o   Identify the issues in dispute for the jury

o   Set ground rules and confirm the trial date

Pretrial: jury selection

-          The 7^th amendment guarantees a jury trial (it can be waived if both parties agree)

-          Voir dire: the process of selecting the jury

-          Jurors may be dismissed with a peremptory challenge (no reason) or for cause (such as bias)

The trial

-          Opening statements

-          Introduction of evidence through witnesses – evidence must be relevant; experts may testify

-          Motions

-          Closing argument – summarize what they showed and shortcoming of other side

-          Jury instruction and verdict: the civil burden of proof is “preponderance of evidence” (51%)

Post-trial: the appeal

-          The appellate court can: affirm(agree), reverse (don’t agree), remand (send back), or modify (change award)

Post-trial: enforcing the judgment

-          If the defendant won’t pay, the plaintiff can ask the court for a writ of execution – the sheriff seizes and sells assets to satisfy the judgment

State Court System

3 tiers

o   Trial courts: limited and general jurisdiction

Look at question of fact: EX) did the person burn the flag

o   Appellate courts: review questions of law or procedural mistakes by the trial court

Look at question of law: EX) Was this protected by the first amendment

o   State’s highest court: decisions are final on questions of state law

You can’t appeal a state law issue to a federal court

Route to supreme court of the U.S.

Federal Court system

1. U.S. District Courts: the federal trial courts (equivalent to state trial court)

2. U.S. Courts of appeals: 13 courts – 12 regional plus for patent cases

3. U.S. Supreme court: nine justices; final authority on the Constitution and federal law

• can review any court of appeals case and federal questions from a states highest court

The U.S. Supreme Court

-          A party must ask the court to issue a writ of certiorari (appeal)

-          The decision to hear a case is entirely discretionary

Alternative dispute resolution (ADR)

ADR resolves disputes without a trial

ADR: Negotiation

parties discuss differences to reach a meeting of minds with no 3rd party

ADR: Mediation

Neutral 3rd party works with party’s to find common ground (mediator proposes a non-final solution)

Arbitration

(formal) neutral arbitrator usually an expert hears the case and grants and award.

• Can be binding or non binding

Judiciary’s Role in Government

interpret the laws and apply them to specific situation

Marbury VS Madison (1803)

established the doctrine of judicial review (ability to declare a law unconstitutional)

Basic Judicial Requirements

A lawsuit must meet all 3 requirements to be brought to court

1. Jurisdiction

2. Venue (proper location, most times where the incident occurred)

3. standing to sue (harm, causation, remedy)

Jurisdiction

(to speak the law) jurisdiction is the power of a court to hear a dispute and to render a verdict with the law and is binding

Jurisdiction: In personam (over the person/business)

• Courts have jurisdiction over the residents in the geographic area

• Businesses are considered to reside in the state in which they are incorporated

Jurisdiction: In Rem (over the things)

Courts have jurisdiction over the objects within the state

Jurisdiction: General vs limited

• General jurisdiction: hear any type of case (unless limited type of case)

• Limited jurisdiction: set to hear specific types of cases

Original and appellate

• Original: hears case for first time

• Appellate: reviews if law was applied correctly

The Constitution

-          The first constitution had a serious flaw: it didn’t protect individual rights and liberties

o   Bill of rights: the first ten amendments

The federal Form of government (federalism)

limited power of central government and gave all other power to the states

Police Powers

powers retained by the state

Privileges and immunities clause

Prevents a state from arbitrarily discriminating against citizens of other states

Full faith and credit clause

Requires states to honor the laws and courts of other states – especially on property, contracts and judgments

Separation of powers / Check and balances

o   Legislative (congress): creates and enacts laws

o   Executive (president, agencies): enforces laws

o   Judicial (courts): interpret laws

Commerce clause

• Government can regulate state-to-state business and your business if it affects out-of-state business (including internet)

• Important constitutional provision for businesses

Supremacy clause

• federal law is superior to conflicting state law

  • federal government legislation has to be in a shared power

Bill of rights

First 10 amendments to the constitution that apply to people and businesses

1st Amendment

free speech

4th amendment

protection from unreasonable searches and seizures

5th amendment

Right to due process

14th Amendment - Equal protection

• government must treat similarly situated people alike

  • strict scrutiny: race, national origin, citizenship

  • intermediate scrutiny: gender, legitimacy

  • Ration basis: economic or social welfare

What is the law?

Body of binding rules of conduct, prescribed by authority, carries legal consequences

• laws come from two places: written laws and court precedent

Functions of the law

peace, justice, predictability, moral standards

Sources of American Law

• constitutional law

• statutory law: laws passed by congress, legislatures, and local government

• administrative law: rules and regulation passed by agencies

• case law: case precedent

• common law: legal system that originated in medieval England

Secondary sources of law

books and articles that summarize or explain the law

Common law tradition

• American law is based on English common law (rulings that grew into general rules from individual cases

Two Early court systems

1. courts of law: only monetary relief (damages)

2. Courts of equity looks at justice and fair dealing. awarded non-monetary remedies

The Doctrine of Stare decisis - “to stand decided cases”

• judges base decisions on principles from earlier cases with similar facts

  • each decision sets precedent

Two aspects of Stare Decisis

1. Courts should not overturn their own precedents without compelling reasons

2. higher court’s decision’s bind the lower courts in the same jurisdiction

What Stare Decisis does?

Efficient, Fair, Predictable, The trade-off

Changing Precedent

Happens when

• precedent is clearly wrong

• Times have changed

• Courts can also distinguish a case based on facts

Common law today

Common law governs areas not covered by statutes or regulations