MGT 340 Exam 2 Davis UKY

What is ADR?

What is ADR?

Alternative Dispute Resolution

What can ADR be used for?

in place of going to court or can be used along with traditional litigation

What are the primary methods of ADR?

Negotiation, Arbitration and Meditation

What is Negotiation? What are some benefits of it?

Less formal
Private
Preserve a relationship
No 3rd party, just 2 parties (maybe with attorney) talking

What is arbitration? Benefits?

Parties will sit down with an arbitrator, who listens to each side of the party & then makes a decision
-Can have a court like feel
-Can select the arbitrator
-Time is a huge benefit
-Private
-More formal than negotiation, less formal than court

What is Mediation?

-Sit down with independent, neutral, 3rd party
-Get the parties the talk and make a decision themselves
-If mediation falls, it's because the parties couldn't make up their mind

What are some other methods of ADR?

Mock trial, MDE/ARB (mediation and then goes into arbitration to get a result

What is the Civil Trial Process (Litigation)?

A dispute resolution process where the parties avail themselves of the court system

What are the stages of litigation?

1.Pre-litigation
2. standing to sue
3.pleading stage
4. Discovery
5.Pre trial
6. Trial

What is standing to sue?

You have sufficient enough interest in the outcome in the case to justify being in court

What are the steps of the pleading stage?

1. Complaint
2. Summons
3. Answer
4. Failure to Answer
5. Motions

What is a complaint?

-Identify the parties
-Statement on Jurisdiction (Why we filed it)
-Alleged facts (basis of the law suit)
-Prayer for Relief

What is a summons?

a notice requiring the defendant to appear in court and answer the complaint

What is an answer?

-You have 20 days to file an answer
-Counterclaim
-Cross Claim
-Third party complaint

What is a counterclaim?

Defendant turns around and sues the plaintiff

What is a cross claim?

When named defendants started asserting claims against each other

What is a third party complaint?

3rd party gets brought into the lawsuit

What is failure to answer?

Default Judgment will be entered
and this gives the plaintiff what they want

what is a motion?

move the court for relief

what is discovery?

The exchange of information and primary information gathering stage of the litigation process

what is the purpose of discovery?

if its relevant it can be discovered

What are the methods of discovery?

Depositions, interrogatories, request for documents, admissions, IME

What are depositions?

-Questions asked and answered real time under oath
-Typically take place in an attorney's office
-Parties and witnesses can give a deposition

What are interrogatories?

Questions asked under oath on paper

what are admissions?

-Used to issue the statement of facts or law
-ex: "Admit or deny: it was raining at the time of the accident"

What is an IME?

-Independent medical exam
-The defender selects a doctor for the plaintiff to go to

What are the benefits of discovery?

-Preserves Testimony
-Reduces perjury(lying under oath)
-Promotes settlement
-Narrows Issues
-Prevents surprises at trial

What is Pre- Trial?

-Inform judge what lawsuit is about
-Housekeeping matters
-Discovery deadlines
-Judge tries to send to mediation

What stages does a Trial consist of?

-Voir Dire
-Opening Statements
-Presentation of Evidence
-Closing Statements
-Verdict
-Collecting
-appeals

What is voir dire?

jury selection process, has two strikes; For cause and Peremptory Strike

what is for cause?

Judge has to decide if a juror has to be strike for cause ( if they cant be fair)

What is a peremptory strike?

Can get rid of potential juror as long as it's not discriminatory

Who goes first in opening statements?

plaintiff

Who goes first in closing statements?

defense

What does the verdict consist of?

Debilitate, 12 jurors. 2 will get to leave (alternatives)
9/12 to win for civil
The jury is only there on the day of trial

What is business ethics?

an awareness of what is right or wrong in the workplace, and it includes a business taking responsibility for its actions or failure to act

What are primary stakeholders?

Those who feels direct impact by what the business is doing

What are secondary stakeholders?

Experience an indirect effect of what the business is doing

what is the difference between law and ethics?

The ethical code is above and beyond the legal standard

what are ethical standards?

Society, family, religion

what is the principle based approach?

We make ethical decisions based on an already established a set of principles or ideas

What is the Consequences Based Approach?

We focus on the outcome of the decision, we want to choose the ethical solution that provides the most good to the greatest number

what is the values management approach?

an organization establishes a set of values, everything the business does should be aligned with that set of values

what are the three tests to resolving ethical dilemmas?

-Blanchard and Peale Model
-Wallstreet Journal Model
-The Front of the Newspaper Test Model

What is the Blanchard and Peale Model?

1. Is it legal?
2. Is it balanced?
(Considered the perspective of those affected by your plan)
3. How does it make me feel?

what is the wallstreet journal model?

1. Compliance?
2. Contributions?
3. Consequences?

What is the Front of the Newspaper Test model?

Think about how a reporter would describe your response to your ethical dilemmas as a newspaper headline

What is a failure to reach an ethical decision consist of?

rationalization

What is a contract>

-agreement that a court of law will enforce
-a promise or set of promises enforceable by law

What are the different contract categories?

-Oral vs Written
-Bilateral vs. Unilateral contracts
-Expressed vs. Implied contracts
-Executory vs. Execute contracts
-Valid vs. Void contracts
-Voidable vs. Unenforceable contracts

Oral vs. Written

Oral: can be just as enforceable as a written contract
Written: contract with terms in writing, less problematic

Bilateral vs. Unilateral contracts

Bilateral: both parties promise to perform
Unilateral: 1 party makes a promise, the other party acts in response to that promise

Expressed vs. Implied Contracts

Expressed -parties overtly and expressly manifest their intent to enter into an agreement

Implied in Fact Contracts
-contract inferred by the behavior/actions of the parties

Implied in Law contract (Quasi Contract)
-allows a court to treat the parties who don't have a contract as if they do
-more of an exception than a rule
-where 1 party receives a benefit at the expense of another party

Executory vs. Execute contracts

Executory: labeled executory while at least 1 of the parties is still performing
Executed: when every party has performed as required

Valid vs. Void contracts

Valid: contract that satisfies all the necessary contractual requirements
Void: Where we have no contract because one of our necessary requirements is missing or deficient

Voidable vs. Unenforceable contracts

Voidable: contract that can be enforced or canceled by 1 of the parties, a contract that may be legally avoided at the option of one or both of the parties.

Unenforceable: contract
a contract that meets all the necessary contractual elements
but some other law says the contract can't be enforced

What are the different sources of contract law?

Common law, UCC, Hybrid

What is common law?

-contracts involving services, sale of land
-not very flexible, kinda harsh

What is U.C.C.- Statutory?

-Universal Commercial Code
-Article 2: contracts for the sale of goods (a tangible, movable thing)

What are hybrid contracts?

-contract covers services and sale of goods
-whichever is predominant nature (service or good) then UCC governs as is
-if it is about 50/50 then court gets to make the call

What are contact formation requirements?

- Agreement
-Assent
-Consideration
-Capacity
-Legality

What does agreement consist of?

offer and acceptance

What is an offer?

a promise to do something or to refrain from doing something

What are the 3 requirements to make an offer valid?

-present intent to enter an agreement (can't be joking around)
-define critical terms (price, subject matter, etc. under Common Law) (but under UCC, only need to define subject matter and a quantity)
-communication: offeree has to be made aware of the offer

What is an acceptance?

-offerees positive response to the offeror's proposed contract
-offeror controls method of acceptance
-on the absence of language/communication, offer remains open for a reasonable period of time, which depends on the current circumstances

What is the mirror image rule?

acceptance terms must reflect offer terms (can further negotiate under UCC since it involves goods, cannot further negotiate under Common Law since it involves services and is more strict)

what are different types of termination of anoffer?

rejection, counteroffer, revoke offer before the offer is accepted, operation of law (if 1 party passes away, if house burns down before agreed service is completed)

What is the mailbox rule?

acceptance is effective when it is sent, even if never received (offeror cannot revoke once it is sent)

Is silence usually a valid acceptance?

no

What does assent consist of?

Fraud, mutual mistake, duress, undue influence

What is the scienter element of fraud?

the intent to deceive

what is duress?

Deprived of a meaningful choice

what is undue influence?

One of the parties in the contract uses the close personal relationships they have with the other party to gain contractual benefits

What is consideration?

-Bargain for legal value
-What one party gives up in exchange for what they receive
-Nominal or very little consideration is sufficient for contractual agreements
- doesn't have to be equal

What is the pre existing legal duty rule?

If you're already obligated to do something, that's not sufficient consideration in your current contract

What is capacity?

are you sane, sober and of age?

When is age voidable under capacity

you have a contract with a necessity of life (food, shelter clothes) are voidable regardless of age
Example: paying for food at a restaurant

When is your mental state voidable under capacity?

If you have been called legally insane, you have no capacity whatsoever

What does it mean to be considered mental?

Do you understand and appreciate what you're getting yourself into?

What are legal concepts?

Statute of Frauds and Parol Evidence

What is statute of frauds?

-certain types of contracts must be in writing to be enforceable
-ex.- contract for the sale of land, prenup, the sale of goods over $500

what is the parol of evidence rule?

If a contract has been reduced to writing and it is the intent of the parties that the writing represents the entire agreements, then neither party can introduced oral or written evidence to prove or disprove the contract

what are two types of remedies?

legal and equitable

what is a legal remedy?

$$, court prefers this, compensatory, puts the parties in the position they would have been in had the other party not breached

What is a equitable remedy>

-Injunction
-Specific Performance
(Only for things that are rare and unique )