LAW 322O EXAM 1 ( Trial and Rights)

Clemson University Prof. Bonnery

Bill of Rights

first 10 amendments of constitution that protect individual freedoms

1st Amendment

freedom of religion, speech, press, assembly, and petiton

2nd Amendment

right to bear arms

3rd Amendment

No forced quartering of soldiers in homes

4th Amendment

protection against unreasonable search and seizures

5th Amendment

rights of the accused (due process, no self-incrimination, no double jeopardy)

6th Amendment

right to fair and speedy trial

7th Amendment

right to a jury in civil cases

8th Amendment

no excessive punishment (bail, fines, cruel and unusual punishment)

9th Amendment

rights beyond those listed in consitution

10th Amendment

powers not given to the federal government go to the states or people

Trial stages

pleadings, discovery, trial, remedies, rewards, appeals

Pleadings

parties file a complaint, answer, and any motions to define the issues

Pleadings (parts)

• 1st stage of trial

• complaint —> filed by plaintiff; states facts, jurisdiction, and remedy

• answer —> defendants’ response to the complaint

• motion to dismiss —> case should be thrown out

• motion for summary judgment —> no disputed judgment, decide without trial

• counterclaim —> defendant sues plaintiff

• reply —> plaintiff responds to counterclaim

• service of process —> defendant served with summons

Discovery

both sides exchange information and gather information

Discovery (parts)

• 2nd stage of trial

• purpose —> exchange info, reveal facts, avoid surprises

• depositions —> oral testimony under oath

• interrogatories —> written questions under oath

• production of documents —> exchange records/files

• Request for Admissions —> admit or deny facts

• expert witness —> provides opinion and report

• mental/physical exam —> condition in dispute

• attorney-client privilege —> only protected communication

Trial (parts)

• jury trial —> jury decides facts

• bench trial —> judges decide facts (civil cases)

• opening statement —> overview of case

• direct examination —> question your own witness

• cross examination —> question opposing witness

• redirect examination —> clarify after cross examination

• closing arguments —> final summaries

• verdict —> decision of judge or jury

Trials (order)

• opening statements

• direct examination

• cross examination

• redirect examination

• closing arguments

• judges instructions to the jury

• verdict (did plaintiff meet the burden of proof)

Burden of Proof

preponderance of evidence

• 51% for civil cases

• beyond a shadow of a doubt for criminal cases

Remedies

court order relief given to injured party

Remedies (parts)

• compensatory damages —> restore plaintiff to original position (compensation)

• punitive damages —> punish defendant

• nominal damages —> you win but don’t really get anything

• specific performance —> usually in contracts, said you do something but didn’t

• injunction —> court order to stop doing something

• TRO —> temporary injunction

appeals

• request for higher courts’ decision for legal errors

• looks at process, not facts

appeals (parts)

• affirm —> lower court upheld

• reverse —> lower court overturned

• remand —> send back for retrial

jury selection

• voir dire —> question jurors for bias

• for clause challenge —> removed biased juror

• peremptory challenge —> remove juror without reason

• size —> usually 12 (sometimes 6)

administrative agency trials

• administrative hearing —> trial before agency

• administrative procedures act —> governs agency trials

• expert testimony —> common in agency cases

alternative dispute resolution

• arbitration —> private decision by arbitrator (private verdict)

• mediation —> neutral party helps negotiate

• negotiation —> parties resolve dispute directly

court systems

• federal and state operate separately but may overlap

• supremacy clause —> federal gov has final say

federal courts & judges

• federal judges —> appointed by the president, serve for life

• judicial immunity —> judges cannot be used for decisions made in court

state courts & judges

• state judges —> selection varies by state

• appointment —> chosen by governer

• election —> voted on by the people

jurisdiction

• courts authority to hear a case

• depends on where it happened, who is involved, and how much damage

subject matter jurisdiction

• type of case a court can hear

• federal question —> when the US constitution or federal statutes are involved

• diversity —> parties from different states or amount over $75,000

personal jurisdiction

• courts power over defendant

• minimum contacts —> defendant must have sufficient ties to the state

long arm statues

• allows courts to sue of state defendants

• businesses can be sued

  • where headquarter

  • where main operations are

  • where lawsuit relates to in state

  • where registered to do buisness

jurisdiction over property

sue where the property is located

original v appellate jurisdiction

• original —> court where complaint was first filed

• appellate jurisdiction —> court reviews legal erros

• appellate courts —> no witnesses

• appellate review focus

  • proper legal process

  • correct application of law

supreme court jurisdiction

• discretionary jurisdiction —> they can choose which cases to hear

• writ of certiorari (cert) —> order agreeing to hear a case

• original jurisdiction (supreme court)

  • state Sueing another state

  • state sues federal government

when supreme court takes cases

• circuit split —> conflicting interpretations of law

• great public importance —> major national impact

• lower court disagrees with precedent —> ignores supreme court rulings

• mandatory jurisdiction —> law ruled unconstitutional by lower court

supreme court caseload

• about 7000 cases filed annually

• hears about 75 (56 last term)

• current trend —> most business friendly court in 100+ years

relations between court systems

• concurrent jurisdiction —> case cab be heard in federal or state court

• exclusive jurisdiction —> only federal courts hear certain cases

  • federal crimes

  • bankruptcy

  • copyright

venue

• proper location for a trial

• change of venue —> move the case for fairness or neutrality

• common reasons

  • highly criticized case

  • location of accident or events

court hierarchy

municipal courts —> district court (do the trial) —> circuit courts (check the trial, appellate courts) —> supreme court