Business Legal Ch. 4 and 5

Judicial Function

Interpret and apply law

Judicial

Both federal and state courts exercise the power to determine the
constitutionally of an act of the other two branches of
government
3. Power of the courts to act as the final authority on the
constitutionally of an act by the legislative or executive branch conferred to itself by the Marbury VS. Madison (1803) IT IS THE DUTY OF THE COURTS TO SAY WHAT THE LAW IS- TO DATE UNCHALLENGED 

Beginning a Lawsuit

1. Before a court can hear a case it must have jurisdiction

2. Specifically over the defendant or thing as well as over the type of case to be heard

In personam Jurisdiction

Jurisdiction over the person

a. The power of the court to making a ruling that is binding on the
defendant because the defendant is properly before the court

In Rem Jurisdiction

The court has the power to make a ruling
that is binding on a defendant because the ruling is regarding
property within the court’s boundaries in which the defendant
has an ownership or possessory interest

Subject Matter Jurisdiction

The types of cases the court has the power to hear 

a. Generally established by constitutional authority or by statute
b. Limitations on what types of cases courts can hear disputes on
c. The ability of a court to hear certain cases

ACTS THAT SERVE AS A BASIS FOR COURT IN PERSONAM JURISDICTION

1. A defendant resides in the geographic area where the court is
Located (County or State)
2. Transacting business or entering into a contract in the
Geographic area where the court is located
3. Tortious act committed in the location of the court’s jurisdication
4. Tortious act outside of geographic area causing harm in the
location of the court’s jurisdiction
5. Corporations incorporated in or doing business in area
6. Own property in the area-In Rem
7. Matrimonial domicile
8. Parties can agree in contract to jurisdiction

Long Arm Statutes

1. A court asserting in personam jurisdication over an out-of-state
Resident-defendant must have a sufficient connection to the
State attempting to assert jurisdiction
2. The defendant must have sufficient or minimum contacts with
the state/area before a court can assert in personam jurisdiction
3. Is it fair to require an out-of-state resident to answer in a court’s
location/area where the defendant is not a resident

Subject Matter Jurisdiction 

1) General vs. Limited Jurisdiction 

2. Original vs. Appellate Jurisdiction 

3. Exclusive vs. Concurrent Jurisdiction 

General Jurisdiction 

Court can hear cases with a broad array of issues
State Trial Courts
Federal District Courts

Limited Jurisdiction

Court can only hear certain types of cases depending
on the subject of the lawsuit/amount/crime (F/M)

Courts of Limited Jurisdiction

1. Probate (State)
2. Family Law (State)
3. Small Claims ($)
4. Bankruptcy (Federal)

Original Jurisdiction 

Case is being heard for the first time
Lawsuit begins in court with original jurisdiction
Trial court/Evidence presented

Appellate Jurisdiction

Review court
Cases are on appeal from trial courts
Focuses on questions of law not fact

Exclusive Jurisdiction

When only the State or Federal court has
jurisdiction

Concurrent Jurisdiction

When both Federal and State courts have
jurisdiction

1. Party has a choice to bring suit in Federal or State court
2. State’s substantive law applied in Federal court
3. Diversity of Citizenship/Amount in Controversy $75,000

Federal Court Jurisdiction 

a. Jurisdiction limited by the US Constitution
b. Federal questions (Federal Statutes, Treaties, Constitution)
c. District Courts, Circuit Courts (13), Supreme Court
d. Writ of Certiorari-Rule of 4-order to send case to USSC

State Court Jurisdiction

a. State Statutes, Civil Disputes, Criminal prosecutions
b. Trial Courts/Appellate Courts/Supreme Court

Compliance with Procedural Rules Mandatory/ Significant

Pleading-Summons—Complain—Answer—Motions

informing parties of each other’s claims, specify issues

Summons

Notify defendant of the filing of a lawsuit
Service of Process- Personal service
Defendant or agent for process
Respond or suffer a default judgment

Complaint

Short statement of facts establishing jurisdiction,
statement of the claim, theory for recovery, and
remedy sought

Answer

Defendant’s response to the complaint
Admitting or denying allegations in complaint

Asserting affirmative defenses
Counterclaim- claim by defendant
Avoid a default by filing an Answer

Pre-Trial  Motions- Procedural request for relief (Dismissal) 

1. Motion to Dismiss 

2. Judgement on the Pleadings 

3. motion for summary judgement 

Motion to Dismiss

Can be filed by either party to dismiss case but usually by the defendant

a. Failure to state a claim in the complaint
b. Not properly served
c. Court lacks jurisdiction...personal or subject matter/Venue
d. Violation of the Statute of Limitations

Judgement on the Pleadings

From looking at the pleadings appears that the defendant has failed to allege facts in defense of the action

a. No factual dispute but only a question of law

b. Look at pleadings only

Motion for Summary Judgement

Grant a judgement in party’s favor without trial-either party may file MSJ 

a. Facts are not in dispute
b. Use affidavits-look at evidence outside of pleadings

Discovery

Before the trial begins the parties can use a variety of fact finding
Devices to obtain information regarding the case is DISCOVERY
Prevents surprise by gaining information before trial
Narrow the issues

Depositions

1. Sworn testimony by a party or witnesses that is recorded
2. Used to discover information and for impeachment purposes
3. Help prepare for trail and evaluate witnesses
4. Used as testimony if witness unavailable at trial/Impeachment

Interrogatories 

1. Written questions that are answered by written answers and
signed under oath
2. Parties ONLY
3. Specific topics with broad scope

Request for Documents

1. A party can gain access for inspection

Request for Admissions

1. Asking a party to admit or deny the truth of a matter relating to
the trial and if admitted deemed true for trial purposes
2. Removes disputable issues and shortens the trial

Requests for Examination 

1. When a party places his state of health into controversy an
Examination by a medical examiner is permitted

Courts Hearings and Trial

1. Pretrial Conference/ Settlement conferences

2. Voir Dire

3. Opening statement

4. Examination of witnesses

5. Motion by Defendant after Plaintiff’s case presented

6. closing Argument

7. Standards of Proof-Jury Instructions

8. Post trial Motions

Pretrial Conference/ Settlement Conferences

a. Clarify issues, set trial date, and attempt to settle case
b. Jury vs. non-jury trials

Voir Dire 

a. Oral questions to ask potential jurors
1. Peremptory-no reason for dismissal
2. For cause-cannot be fair and unbiased

Opening Statements

a. Facts attorneys expect to prove during the trial
b. Not argument
c. Brief version of the case from each lawyer-what the evidence
will be

Examination of Witnesses

Direct examination and cross examination

Direct examination 

Asking your witness questions 

Cross examination

asking questions of the other party’s witnesses

Motion for Directed Verdict

1. Made by Defendant after Plaintiff has put on his case
2. No evidence to support plaintiff’s claim
3. Defendant can make the motion or proceed with his defense

Closing Argument 

a. Summarize facts, argue how facts supports client’s case,
shortcomings of other party’s case

Standards of Proof Jury Instructions

a. Preponderence of the Evidence

b. Beyond a reasonable Doubt

Preponderence of the evidence

applied in civil cases
1. Plaintiff shows her claim more likely true than not

Beyond a Reasonable Doubt 

applied in criminal cases
1. A higher standard, not all doubt but reasonable doubt

Post Trial Motions

a. Motions for New trial

b. Motion for Judgement Nov

Motion for new Trial

1. Set aside the verdict and grant a new trial
2. Jury or judge error, new evidence, misconduct by participants/
misapplied the law

Motion for Judgement NOV

Verdict unreasonable/ erroneous Judge as a 13th juror

Legal Defenses to a Complaint for relief

1. Statute of Frauds

2. Statute of Limitations

Statute of Frauds

Some agreements must be in writing in
order to be enforceable

Statute of Limitations

Actions must be filed in a timely
fashion.

Enforcing the judgement

Writ of Execution- seizing of nonexempt assets