BUS 215 Exam 1

Codes

grouping of related statutes.

ex. bankruptcy. seeking divorce (family law codes). estate (wills and trust codes). criminal law codes. contracts from the sale of goods

stare decisis

lower courts must adhere to a higher courts rule of law. if appellate decides something, and a lower court has something similar, they have to have the same decision.

case precedents

landmark cases that establish the rule of law. “you have the right to remain silent” came from a case. they add something to the law.

Plaintiff and Defendant

indicates a civil lawsuit

Petitioner and Respondent

Petitioner: civil or criminal. they are petitioning the court to listen to an issue

Respondent: party responding to petition.

Complaint

usually 2 pages in length.

steps

1. has to be filed w the court. very first step in a civil lawsuit

plaintif v. defendant.

2. it is stamped by the court clerk

3. plaintif must serve the defendant. you must inform the defendant. its a due process right that you are informed. notice and oppertunity to make an argument. called: service of process

the complaint is usually served in person, or can be done through physical mail or email, or can be mailed to a relative or friend of the defendant (someone mentally capable).

Standing to sue

have to have a stake in the claim. aka the plaintif has to establish that they are the injured party, but sometimes the plaintif is not the direct injured party, you can enact on another. this is what it means ot have a stake in the claim.

how to have case heard at federal case lvl

you need to meet 1 or 2 ways to get your case heard. subject matter JDX or personal JDX.

If the fed can’t take the case, the state will.

subject matter jurisdiction aka federal?

constitutional law JDX (con. law) ex. amendment rights, religion. automatically into federal court

diversity of citizenship aka personal JDX

you have to meet diversity of citizenship (you have to reside in different states/company is incorporated in a different state) AND amount in controversy (at least 75k). if its less than 75k, you go to the state. (personal is through the federal court!)

Venue

the location where your case is heard. where do you file the case?

where is the majority of the evidence? where did the injury occur? police report?

you can contract where to have a “proper venue” aka where you file, before something happens.

if both parties are from out of state, you still file where the incident happened.

(the lawyer can say the venue is improper)

Equitable and Legal Remedies

a remedy is what you are seeking as the outcome.

legal remedy: monetary relief

equitable remedy: 2 forms - injunctive relief (aka restraining order), OR specific performance: have a “good” (personal property, also called chavels), and it must have uniqueness

you can get multiple remedies. ex. restraining order and monetary relief

injunctive relief

just asking for defendant to stop

a good

a tangible personal property capable of being moved at the identification of a sale. ex. pets, car, clothes, table, bike, devices.

fixed and not a good = realty. ex. a chandelier is first a good, and then becomes realty.

if you pay someone to create a good, and it has not yet been created, you cannot sue for specific performance bc it is considered enslavement, you cannot force someone to do something

Mala case (MC,SA)

facts - boat explosion

issue - jurisdiction

rule - personal JDX

analysis - found both to be virgin islanders

conclusion - the court found that both parties were deemed virgin islanders; no JDX

Gucci Case (MC)

Facts - Fraudulent Gucci items sold over the internet

Issue - JDX (Internal JDX)

Rule - Personal JDX

Analysis - JDX can be exercised over a foreign Defendant

Conclusion - Yes, valid JDX

Writ of Certiorari

majority had to agree they want to hear the case

• A means to have your case heard before the United States Supreme Court

• Rule of 4-The court will not issue the writ unless 5 of the nine justices approve it

charges

= criminal proceeding

• burden of proof - “beyond a reasonable doubt”

• guilty, not guilty, or acquitted

causes of action

• legal ground and set of facts that gives a person the right to file a lawsuit and seek relief in court

• civil proceeding

  • burden of proof - clear and convincing of the evidence or a preponderance of the evidence (just enough)

• either liable or not liable

summary judgement motion

only looking at one element of a case

Blankenship v. Collier (MC)

• I -Summary Judgement. (this was the issue bc the plaintif could not provide evidence, even after 2 years, so the case was dismissed.

• R - A summary judgement shall be granted were there is no genuine issue of material fact and the evidence is viewed in the light most favorable to the the nonmovant (the party not seeking the summary judgement).

• A - The plaintiff had an exuberant amount of time to .try to find an expert

• C - Granted the Summary Judgement (in favor of the defendants).

how to have the case heard in front of the court

bench trial (judge) or jury trial (jurors)

criminal defendant

if there is the potential of imprisonment of 6 months or more, the the criminal decides

if its less than 6 months, the state decides

in civil, the plaintiff decides whether judge or jury case

plaintiffs questionnaire (voir dire)

the legal process of questioning prospective jurors or witnesses to determine their qualifications, bias, or suitability for a trial.

Judges and attorneys question potential jurors from the pool then test their competence.

preemptory challenges

you get three opportunities to excuse a juror. both plaintiff and defense gets three people to excuse.

Opening statement

educate the judge/jury about what will happen during the hearing (summarize what the court will hear. plaintiff or prosecution/state goes, then defendant goes)

Leading questions

leading questions = when counsel on the opposing side asks questions to discredit the other party. they can cancel out things the other party has said.

on direct, you cannot ask leading questions

on cross examination, you ask leading questions

closing arguments - restating evidence

Jury instructions if you have a jury trial (not if you have a bench trial)

Verdict - again, in civil, liable or not liable. or Motion for a new trial - jury tampering, misconduct by the jurors, ineffective council, inflammatory remark. council can interview jury so that they can make their case better if they get the answer they don’t want. Appellate review - the process where a higher court checks a lower court's decision to find and fix legal errors.

Espresso case (MC, SA)

I - venue proper in Illinois or Florida?

R - venue is proper where … breach of contract
A - Santana tried to sue espresso four separate times in a Floridian court, when it was contracted beforehand legal affairs should have been handled in Ohio?
C - venue proper in Illinois

alternative dispute resolutions

3 ways for alt disp res:

negotiations: settlement. Both parties either on their own or with an attorney come to some mutual agreement. you start the case off this way

mediation: only applicable through civil cases. Rule-Where a neutral 3rd party helps to
facilitate an agreement between the parties. they are the mediator. not the party involved, they are outside of the situation.

before having a civil suite, you must have tried to negotiate and try mediation.

each party submits brief/case to mediator. mediator come to a decision. then, they distribute a general conclusion - opinion based, not final and binding. both parties then have the opportunity to individually speak to the mediator. if you then dont have a settlement, you then go to court.

arbitration: Rule-Where one signs an arbitration agreement knowingly and willfully the arbitration agreement will be deemed valid unless the agreement is unconscionable (Example of unconscionability-the Lhokta case found in the supplement under modules).
An arbitration award is deemed final, binding and just-when you sign an arbitration agreement you have waived your right to try your case before the court.
Unconscionability-so heavily favored towards one side. This will invalidate the arbitration agreement.

Lhokta v. Geographic Expeditions (MC, SA)

Facts: mother and son. reside in Colorado. there is an arbitration agreement: arb in SF, CA. the remedy caps at 8k, purchase price of the trip. The son dies in the trip due to altitude sickness. negligence. Even though the arb is signed, it is favorable to Geo Ex. it was nullified

Issue- Whether the agreement to arbitrate is unconscionable and, therefore
unenforceable?
Rule- Where one signs an arbitration agreement knowingly and willfully the arbitration
agreement will be deemed valid unless the agreement is deemed unconscionability.
Unconscionability means it is so heavily favor towards one side (here GeoEx).
Analysis- (1) The waiver and release of liability is one-sided. plus paying GeoEx for it’s
costs and attorney fees for defending any claims under the release of liability form (2)
Venue- San Francsisco (these are clients from Colorado) (3) Recovery under any claim
limited to the purchase price of the trip (more or less 8k per person).
Conclusion- The court affirmed the lower courts order denying GeoEx’s motion to compel
arbitration.

Johnson v. Shaffer (MC)

facts - mechanic case

I - business ethics

legal ethics

there cannot be conflicts of interest - relationship, judge cannot be close with p v. d

you cannot accept extravagant gifts - no cars, money, putting person in will

cannot be deceptive or fraudulent

lawyer fees - dont charge for every little thing

for every crime you need 2 elements

1. mens rea: guilty mind

2. actus rea: guilty act

if you dont have both, it can be a civil suit

Common Law felony crimes (MR BARK)

Murder

Rape

Burglary

Arson

Robbery (only common law)

Kidnapping

Burglary

with burg, cl or ml, you always have two crimes: burg, and whatever they wanted to do

CL: unlawful breaking (physically, breaking the air space. alr open item does not count) and entering into the dwelling house (a fixed to the ground, lived in) of another during the night time (sunset to sun rise) with the specific intent to commit a crime therein.

ML: the unlawful breaking (you do not have to break the air space) and entering into any structure at any time. (automatic doors opening for you counts!)

“a majority of jurisdictions”

maj of states in US agree on a rule/law

the extension of oneself

whatever you are touching: clothes, table, least and dog

Arson

CL: the malicious burning of a dwelling house of another. (you burning your own home does not count)

ML: the malicious burning house of any structure. (you could burn your own house down)

burning = charing (true destruction of property). mere blackening is not enough

Robbery

crime against a person (not against the property)

CL: the unlawful (tryspisory) taking and asportation (any movement; you can pick up something and put it in the same spot) of the personal property of another (good; not realty) by force, fear, or intimidation.

the victim must feel fear or force, or there must be force.

pickpocketers: still robbery bc FORCE

Kidnapping

CL: unlawful (trespisory) taking of a person outside of the country

ML: unlawful (trespisory) taking of a person without consent

with youth, even with consent, still a kidnapping

Felony v. Misdemeanors

Felony crime: potential imprisonment of a year or more

Misdemeanor crimes: potential imprisonment of less than a year OR a fine

The State of Minnesota v. Smith (MC)

I - burglary

Robbery/Embezzlement/Larceny

Robbery - The trespassory taking and asportation of the personal property of another by force, fear or intimidation (higher included offense)

Embezzlement- The trespassory taking and asportation of the personal property of another while in lawful custody or possession (lower included offense).
ex. if a valet driver were to take your car for a joy ride.

Larceny- The trespassory taking and asportation of the personal property of another (least included offense).
ex. if you are a person, who is not a worker at the dry cleaner, and you borrow a dry-cleaned item

someone having the intent before committing the act can be for example a burglary and an embezzlement

People v. Sisuphan (MC, SA)

I-Embezzlement or you could say Whether the evidence of the defendant Sisuphan’s return of the money reasonable tends to prove he lacked the requisite intent to commit the embezzlement at the time of the taking?

R-The trespassory taking and asportation of the personal property of another while in lawful custody or possession.

A-The exclusion of the evidence that the defendant returned the money is irrelevant because the return of the money is not a defense to embezzlement.

C-The appeals court affirmed the trial court’s decision. The fact that he returned the money is irrelevant and he was in fact guilty of embezzlement

Receiving stolen goods (property)

-Receiving stolen property you either knew or should have known the property to be stolen. “should have known” is a grey area.

Forgery

The modification or alteration of a legal document/instrument.

wills, trusts, deeds, driver’s license, paycheck, credit card

Fraud

The intentional misrepresentation of fact known to be false by the wrong doer for purposes of inducing action or inaction and, in fact induces the action or inaction desired.

ex. sales person lying about a car/house to get a sale.
be careful! if someone creates a false document, that is fraud, not a forgery

Bribery

Enticing a government official to do something they would not otherwise do.

Extortion

Enticing a lay person to do something they would not otherwise do.q

ex. blackmail, return of kidnappee for gain.

Self defense

One may use both deadly or non-deadly force to defend him/herself where the same amount of force is being used against them.

Defense of others

One may use both deadly or non-deadly force to defend another where the same amount of force is being used against the other. You have to make sure the person you are protecting the the rightful victim. You could misjudge who is the rightful victim if you didn’t see the whole scenario.

Defense of Property

One may use only non-deadly force to defend his/her property.

A majority of jurisdictions (a majority of states) agree that you cannot use deadly force to protect your property.

Consent

• expressed consent - verbal OR written

• implied consent - gestures OR through past, repeated behaviors; habitual.

Duress

One may use the defense of being under duress (fear/intimidation/anxiety) for everything except murder. This is when someone is forcing you to do something.

Necessity

The criminal act was necessary to prevent an even greater danger. Valid legal defense of everything except murder. Cannot murder to survive. (no one forcing you to do something)

Insanity: M’Naghten Rule and Irresistible Impulse Rule

1. M’Naghten Rule-Majority rule (most states agree this is the rule to define insanity). The defendant at the time of the crime did not know the difference from right or wrong (also know as the right/wrong test).

2. Irresistible Impulse Rule- Minority rule. The defendant at the time of the crime could not resist the impulse to do the crime even if they knew it to be wrong-think of heat of passion…no time to think, just does the act without really thinking things through. ex. seeing your spouse cheat on someone. recognizable diagnosis (kleptomaniac).

3. Model Penal Code – Look to the state that the crime was committed to determine the rule of law. State by state

Insanity: intoxication and infancy

Intoxication:

• Voluntary intoxication- you don’t have a valid legal defense under intoxication

• Involuntary intoxication- absolute defense. ex. hazing, and after you commit a crime, you argue involuntary intoxication. the first you take a medication and if you have a bad reaction, you can use this. if the pharmacy gives you the wrong medication.

Infancy- biological age of the criminal defendant (considered an infant when you are a minor)
• 0-7 presumption of innocence
• 7-14-rebuttable presumption of innocence. use persuasive argument.
• 14 and above-guilty of the crime
IQ is also considered an infancy defense. Someone with the IQ of an “infant” may not be fully charged.

First Amendment

• Freedom of religion (as long as it does not cause harm to another)

ex. being denied to observe religious holiday. forced to eat food that goes against religious beliefs.

• Free speech-*Doe v. prosecutor, Marion County in supplement

as long as it does not incite others. ex. encouraging someone to harm another.
you cannot have like full freedom of speech on private property. ex. no soliciting sign.

Jury instructions

guidelines a jury reads at the end of the trial to help reach a verdict