LE 253 Test 1

Contract

a binding agreement between two or more persons that is enforceable by law

Plaintiff

a person who brings a case against another in a court of law.

Defendant

an individual, company, or institution sued or accused in a court of law.

Appellant

The losing party in a court case who appeals the case to an appellate court.

Appellee/Respondent

The other party to a disposition that has been appealed.

Marbury v. Madison (1803)

a landmark case by the United States Supreme Court which forms the basis for the exercise of judicial review in the United States under Article III of the Constitution.

Jurisdiction

The authority of a court to hear a case

In Personam Jurisdiction

Court jurisdiction over the "person" involved in a legal action; personal jurisdiction.

In Rem Jurisdiction

Court jurisdiction over a defendant's property.

Minimum Contacts

the defendant must have sufficient connection to the state for the judge to conclude that it is fair for the state to exercise power over the defendant

Long Arm Statute

A state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have "minimum contacts" with that state for the statute to apply.

Subject Matter Jurisdiction

the power of a court to hear a particular type of case

Probate Court

A state court of limited jurisdiction that conducts proceedings relating to the settlement of a person's estate/will.

District Court

Lowest level of fed. courts, where fed. cases begin &trials are held (bank robbery, environmental violations, tax evasion).

Municipal Courts

local trial courts with limited jurisdiction over violations of city ordinances and very minor criminal misdemeanors

Appellate Jurisdiction

The authority of a court to review decisions made by lower courts.

What courts have appellate jurisdiction?

Court of Appeals and Supreme Court

Original Jurisdiction

The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case.

What courts have original jurisdiction?

District Courts

Federal Question

A question that pertains to the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.

Diversity of Citizenship

The condition that exists when the parties to a lawsuit are citizens of different states, or when the parties are citizens of a U.S. state and citizens or the government of a foreign country. Diversity of citizenship can provide a basis for federal jurisdiction.

Concurrent Jurisdiction

authority for both state and federal courts to hear and decide cases

Venue

The geographic district in which a legal action is tried and from which the jury is selected.

Why a Change of Venue?

Excess pretrial publicity that may prejudice the case (when the right to a fair and impartial jury is

impaired.) For the convenience of the parties and witnesses.

Standing to Sue

the requirement that plaintiffs have a serious interest in a case, which depends on whether they have sustained or are likely to sustain a direct and substantial injury from a party or an action of government

Judicial Controversy

a controversy is not hypothetical or academic but real and substantial, a requirement that must be real and substantial before a court will hear a case.

Trial Courts

Determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions.

Small Claims Court

Inferior trial courts that hear only civil cases involving claims of less than $_6,500 (in Michigan). Parties agree to waive their right to a jury, rules of evidence, representation by lawyer, and the right to appeal the district judge's decision.

Magistrate Judges

district court officials responsible for overseeing some of the early hearings of a criminal trial at which routine matters are carried out, and who may also hear misdemeanor criminal cases and certain civil cases

Inferior Courts

The lower federal courts, beneath the Supreme Court

Circuit Courts

Intermediate federal appellate courts. Cover 13 "circuits" across America. Hear appeals from District Courts in their jurisdiction.

Circuit Court Judge Term

6 years

Requirements to be a Circuit Court Judge

Must be a resident of the circuit where you are running (Ingham County). Qualified elector, licensed to practice law in Mich. and less than 70 years of age at time of

election

Court of Claims

A federal or state court in which legal actions against the government are brought

Appellate Court

Does not conduct new trials. Panel of 3 judges review the records/transcripts and determines if the trial court committed an error. Focused of questions of law, not questions of fact.

Question of Fact

a question about the truth or falsity of an assertion

Question of Law

concerns the application or interpretation of the law

Court of Appeals judges hear cases in Michigan in:

Lansing, Detroit, Grand Rapids, Marquette

Highest Appellate Court in Michigan

Michigan Supreme Court

When can the U.S. Supreme Court review a state Supreme Court decision?

only if a federal question or U.S. Constitution is involved

Michigan Supreme Court

Holds 7 justices at 8 year terms. Sessions are heard in Lansing.

What kind of jurisdiction do district courts have?

U.S. District Courts have original jurisdiction

Writ of Certiorari

An order by a higher court directing a lower court to send up a case for review

Rule of Four

At least four justices of the Supreme Court must vote to consider a case before it can be heard

Litigation

The process of resolving a dispute through the court system.

Pleadings

Statements made by the plaintiff and the defendant in a lawsuit that detail the facts, charges, and defenses involved in the litigation. The complaint and answer are part of the pleadings.

Fact Pleading

Notice Pleading

Summons

A document informing a defendant that a legal action has been commenced against him or her and that the defendant must appear in court on a certain date to answer the plaintiff's complaint. The document is delivered by a sheriff or any other person so authorized.

Default Judgment

A judgment entered by a court against a defendant who has failed to appear in court to answer or defend against the plaintiff's claim.

Counterclaim

A claim made by a defendant in a civil lawsuit against the plaintiff. In effect, the defendant is suing the plaintiff.

Reply

Procedurally, a plaintiff's response to a defendant's answer.

When would a court grant a motion to dismiss?

1. Improper Venue. 2. Improper Delivery of the complaint and summons. 3. Plaintiff's failure to state a claim for which a court can grant relief.

Motion for Summary Judgment

request that the court decide a case on basis of law only because there are no material issues disputed by the parties

Motion for Judgment on the Pleadings

a motion that alleges that if all the facts presented in the pleadings are taken as true, the party making the motion would win the lawsuit when the proper law is applied to these asserted facts

Discovery

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

Desposition

the testimony of a witness made under oath but not in open court

Interrogatories

A series of written questions for which written answers are prepared by a party to a lawsuit, usually with the assistance of the party's attorney, and then signed under oath. Not given to witnesses.

Pretrial Conference

Informal discussion between the judge and opposing counsel, explore the possibility of a settlement, or identify the real issues in dispute, and plan the course of the trial.

When do litigants have a right to a jury trial?

Civil - As established by statute

Criminal - guaranteed by Constitution

Voir Dire Process

the questioning of potential jurors to determine whether they have biases that would disqualify them from jury service

Preemptory Challenge

a defendant's or lawyer's objection to a proposed juror, made without needing to give a reason.

Challenge for Cause

A voir dire challenge for which an attorney states the reason why a prospective juror should not be included on the jury.

Grounds for Challenging a Juror for Cause in Michigan

Not Qualified, Convicted Felon, Bias towards party or attorney

Who conducts voir dire?

Parties Attorneys or presiding judge.

Qualifications to be a Juror in Michigan

(1. Elector from the county (2. Resident of the district (3. Conversant with English (4. Posses Natural Facilities (5. No Claim Exception (6. Not a Grand Juror in the last year

Verdict

the decision a jury makes in a trial; the decision said by the jury

Judgement

final result of a trial

Direct Examination

The examination of a witness by the attorney who calls the witness to the stand to testify on behalf of the attorney's client.

Cross Examination

The questioning of an opposing witness during a trial.

Award

The monetary compensation given to a party at the end of a trial or other proceeding.

Directed Verdict/Judgment as a Matter of Law

motion made by a party, during trial, claiming the opposing party has insufficient evidence to reasonably support its case; occurs during trial

Closing Argument

a direct address each lawyer gives to the judge or jury at the end of a trial, summarizing his or her case and attempting to weaken the other side's case

Judgement n.o.v (notwithstanding the verdict)

motion for the judge to set aside the jury verdict and enter settlement for the party adversely affected/making motion

Motion for New Trial

A motion asserting that the trial was so fundamentally flawed (because of error, newly discovered evidence, prejudice, or another reason) that a new trial is necessary to prevent a miscarriage of justice.

Appeal

apply to a higher court for a reversal of the decision of a lower court.

Brief

A written statement by an attorney that summarizes a case and the laws and rulings that support it

Diversity Jurisdiction

Applies when (1) the plaintiff and defendant are citizens of different states and (2) the amount in dispute exceeds $75,000

U.S. Constitution

The document written in 1787 and ratified in 1788 that sets forth the institutional structure of the U.S. government and the tasks these institutions perform. It replaced the Articles of Confederation.

What articles of the constitution establish the governance structure of the U.S.

Articles 1, 2, and 3.

How many amendments does the Constitution have?

27

Separation of Powers

Constitutional division of powers among the legislative, executive, and judicial branches, with the legislative branch making law, the executive applying and enforcing the law, and the judiciary interpreting the law

Executive Branch

enforces laws (president)

Legislative Branch

The branch of government that makes laws; the U.S. Congress

Judicial Branch

the branch of government that interprets the laws and the Constitution (Supreme Court)

Checks and Balances

A system that allows each branch of government to limit the powers of the other branches in order to prevent abuse of power

Federalism

a form of government in which power is divided between the federal, or national, government and the states

10th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Supremacy Clause

Article VI of the Constitution, which makes the Constitution, national laws, and treaties supreme over state laws when the national government is acting within its constitutional limits.

Preemption

A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.

Full Faith and Credit Clause (Article IV)

Constitution's requirement that each state accept the public acts, records, and judicial proceedings of every other state

Privileges and Immunities Clause (Article IV)

No state or municipality may deny citizens of other states the privileges and immunities it affords its own citizens without substantial justification

Commerce Clause (Article 1, Section 8)

Congress can regulate trade between nations, between states, and among Indian tribes.

1st Amendment

Freedom of Religion, Speech, Press, Assembly, and Petition

Establishment Clause

Clause in the First Amendment that says the government may not establish an official religion.

Free Exercise Clause

A First Amendment provision that prohibits government from interfering with the practice of religion.

Secular Purpose