ba 353 updated study terms test 1

Sources of American Law

U.S. and State Constitutions, Statutes, Administrative Regulations, and Case Law/Common Law

Stare Decisis

Latin for "to stand on decided cases"; courts generally follow previous decisions

Jurisdiction

A court's power to hear and decide a case or legal issue

Personal Jurisdiction

Jurisdiction over the person; generally requires minimum contacts with a state

Subject Matter Jurisdiction

Jurisdiction over the type of case

Probate Court

A court that handles matters involving probate, such as estates and wills

Judge

Decides questions of law

Jury

Decides questions of fact

Right to a Trial and One Appeal

A person has the right to a trial and one appeal; there is no guarantee the Supreme Court will hear the case

Alternative Dispute Resolution (ADR)

Ways of resolving cases outside of the court system

Mediation

A neutral third party helps the parties reach an agreement; mediation is nonbinding

Arbitration

A neutral third party makes a decision; arbitration is usually binding

Pleadings

Legal documents filed with the court in a civil case

Complaint

The document that begins a civil lawsuit

Answer

The defendant's response to the complaint

Counterclaim

A claim made by the defendant against the plaintiff

Motion for Summary Judgment

A pretrial motion asking the court to decide the case based on the law and undisputed facts

Discovery

The process of gathering information and evidence before trial

Interrogatories

Written questions sent from one party to another during discovery

Requests for Admission

Requests asking the other party to admit or deny facts

Requests for Production of Documents

Requests for documents or other evidence from the opposing party

Deposition

Sworn testimony taken before trial

Opening Statements

Lawyers explain what the facts will show; they do not argue the case

Examination of Witnesses

Lawyers question witnesses through direct and cross-examination

Closing Arguments

Lawyers argue their case using the evidence presented at trial

Appeal

A request for a higher court to review a lower court's decision

Tort

A wrong or harm for which a party may bring a lawsuit to obtain compensation

Compensatory Damages

Damages meant to compensate or reimburse a plaintiff for actual losses

Punitive Damages

Damages meant to punish the wrongdoer and deter similar wrongdoing

Civil Burden of Proof

Preponderance of the evidence; more likely than not

Criminal Burden of Proof

Beyond a reasonable doubt

Intentional Tort

A tort where the person intended the consequences of their actions

Assault

An intentional threat of immediate harmful or offensive conduct; actual contact is not required

Battery

Intentional harmful or offensive physical contact

False Imprisonment

Intentional confinement or restraint of another person's freedom to move

Defamation

Wrongfully hurting a person's good reputation

Libel

Defamation in writing

Slander

Defamation in spoken words

Defamation Requirements

The statement must be made to at least one other person, be factual rather than opinion, and actually be false

Trespass

Entering or causing something to enter another person's property without permission, or remaining without permission

Conversion

Civil action for theft

Negligence

Failure to exercise the degree of care that a reasonable person would have exercised under the circumstances

Four Elements of Negligence

Duty, Breach, Causation, and Damages

Duty

A legal obligation to exercise reasonable care

Breach

Failure to meet the required duty of care

Causation

The defendant's conduct must have caused the harm; in negligence this means proximate cause

Causation in Fact

Asks whether the person's actions actually caused the harm; also called "but for" causation

Proximate Cause

Asks whether the harm was foreseeable or too remotely connected to the defendant's actions

Reasonable Person Standard

Measures whether a person acted as a reasonable person would have acted under the same circumstances

Palsgraf

A case associated with the concept of foreseeability and proximate cause

Defenses to Negligence

Failure to prove one or more elements, assumption of risk, contributory/comparative negligence, and statute of limitations

Assumption of Risk

The injured person knew about and accepted the risk

Contributory Negligence

A rule that may prevent recovery when the injured person was also negligent

Comparative Negligence

A rule that reduces financial recovery based on the injured person's percentage of fault

Statute of Limitations

The legally established time period for bringing a lawsuit

Cause of Action

A legal reason to sue, such as negligence, trespass, or another tort

Strict Liability

Liability without fault

Abnormally Dangerous Activities

Activities such as handling or using explosives that may result in strict liability

Wild Animals

Keeping wild animals may result in strict liability; domestic animals may also qualify if there is a known dangerous propensity

Product Liability

Legal responsibility for harm caused by a product

Four Bases for Product Liability

Negligence, Misrepresentation, Strict Liability, and Warranty

Trademark

A word, phrase, symbol, or design that identifies and distinguishes the source of goods

Trademark Infringement

Occurs when there is a likelihood of confusion

Fanciful Trademark

A distinctive trademark such as "Xerox" or "Kinkos"

Descriptive Trademark

A trademark describing the product; generally cannot be trademarked unless it gains recognition through use

Geographic Trademark

A geographic term that generally cannot be trademarked unless it gains recognition through use

Generic Term

A common name for a product that generally cannot be trademarked

Patent

Gives an inventor the exclusive right to make, use, or sell an invention for a limited time

Patent Requirements

An invention must be novel, useful, and not obvious

Copyright

A property right given to the author or originator of a creative work

Copyright Examples

Literary, musical, and dramatic works; photographs, drawings, cartoons, sculptures, and movies

Fair Use

An exception to copyright that may allow limited use of copyrighted material

Fair Use Factors

Commercial vs. nonprofit educational purpose, amount and substantiality used, and effect on the potential market value

Trade Secret

Commercially valuable information that is not public knowledge, such as customer lists, plans, or ingredients

Trade Secret Misappropriation

Improper discovery of a secret or disclosure/use that breaches a duty owed to the owner

Nondisclosure Agreement (NDA)

An agreement commonly used to protect confidential trade secret information

Licensing

An intellectual property owner allows another party to use the property for an agreed-upon fee