Studied by 2 peopleCivil Trial Process
a dispute resolution process where the parties take advantage of a court system
Prelitigation
before getting involved in a lawsuit, before filing a complaint after the event has happened, informal resolution or draft a demand letter, must consider statute of limitations
Standing to Sue
a legal right to be in court, sufficient enough interest in the outcome of the case to justify being in court, showing proof of damage
Pleading Stage
documents filed by parties with the court in the court record
Complaint
official beginning of involvement in litigation, filed by the plaintiff
Complaint identification
indentify the parties, plaintiffs, and defendants
Statement on Jurisdiction
why the lawsuit was filed in the specific court
Basis of Action
alleged facts, fairly minimum, who, what, where, and when
Prayer for Relief
what you want out of the lawsuit, compensation
Summons
issued by the court clerk, informs the defendant they are being sued, served by constable or sheriff
Answer
filed by the defendant, preserves defenses
Counterclaim
defendant countersues the plaintiff, both parties now have burden of proof
Cross Claim
two named defendants start asserting claims against each other, a separate plead
Third Party Complaint
unnamed party is brought into the lawsuit, separate pleading
Failure to respond to summons
20 days to respond in KY, default judgement against the defendant
Motion
one side asks the court for some form of relief, normally when a judge becomes aware of the lawsuit
Discovery
the exchange of information, primary gathering stage, required
Purpose of discovery
free flow of information if relevant to the case at hand
What are Interrogatories?
Written questions answered under oath.
Who can respond to Interrogatories?
Only parties to a case.
How long do parties have to respond to Interrogatories?
30 days.
What are Request for Documents?
Written requests for relevant documents.
Who can respond to Request for Documents?
Only parties to a case.
How long do parties have to respond to Request for Documents?
30 days.
What are Admissions?
Paper transactions to admit or deny facts.
Who can participate in Admissions?
Only parties to a case.
What are IME's?
Independent medical exams.
Who can require an IME?
The other party.
What are the benefits of discovery?
Preserves testimony, reduces perjury, promotes settlement, defines issues, prevents surprises.
What happens during a Pretrial Conference?
Discovery deadlines are set, trial date is requested.
Who attends a Pretrial Conference?
Counsel of both sides, not the parties.
What is Voir Dire?
Questioning of potential jury members.
What is Strike/Challenge For Cause?
Dismissing a potential juror for bias.
What is Peremptory Strike/Challenge?
Dismissing a potential juror without reason.
What happens during Opening Statements?
Each side declares what they hope to prove.
What is the Burden of Proof in a civil case?
On the plaintiff.
What happens during Closing Statements?
Defendant followed by the plaintiff, limited to trial evidence.
How many jurors are needed for a verdict in a civil case?
9 out of 12.
What is ADR?
Alternative Dispute Resolution.
What is arbitration?
Procedure where a third party makes a binding decision.
What are the advantages of arbitration?
Cost-effective, private, quicker than litigation.
What are the disadvantages of arbitration?
More contentious, not bound by rules of discovery.
What is mediation?
Neutral third party helps parties reach an agreement.
What are the advantages of mediation?
Less costly, easier to preserve relationships.
What are the pros of arbitration?
Cost, time, privacy, preservation of relationships.
What are the cons of arbitration?
No case law created.
Can arbitration be used instead of traditional litigation?
Yes.
What is business ethics?
Awareness of right or wrong in the workplace.
Who are stakeholders?
Those affected by a business's actions.
What are primary stakeholders?
Those directly impacted by a business.
What are secondary stakeholders?
Those indirectly impacted by a business.
Is everything legal ethical?
No.
How does management influence ethical culture?
By valuing whistleblowers and creating an ethical culture.
What are the categories of ethical dilemmas?
False pretense, conflict of interest, hiding/divulging information, taking unfair advantage.
What is the principles-based approach to ethical decision making?
Using established guidelines and principles.
What is the consequences-based approach to ethical decision making?
Focusing on the outcome and choosing the best solution.
What is values management?
Prioritizing moral values and aligning behaviors with them.
What are the advantages of ethical entities?
Stronger teamwork, increased productivity, clarity in operations, stronger public image, better adaptability
What are the traits of ethical entities?
Ethical management, addressing unethical behavior, trainings, thorough hiring process
What is the Blanchard and Peale Model for resolving ethical dilemmas?
Ask if the planned course of action is legal, balanced for stakeholders, and how it makes you feel
What is the Wall Street Journal Model for resolving ethical dilemmas?
Consider if the planned course of action is compliant, its contribution, and the long-term consequences
What is the Front of the Newspaper Test for resolving ethical dilemmas?
Imagine how the planned course of action would be condensed into a news headline
What are some examples of rationalizations?
Everybody else does it, that's the way it's always been done, wait until the lawyers tell us it's wrong, the system is unfair, I was just following orders, it's a grey area
Why is contract law important?
Need assurance that there is a legal system to enforce contracts and provide remedies if the other party breaches the agreement
What is the definition of a contract?
A promise or set of promises enforceable by a court, an agreement recognized and enforced by the law
What are the sources of law for contracts?
Common Law (judge-made law) and Uniform Commercial Code (statutory law)
What is the purpose of the Uniform Commercial Code (UCC)?
To create a uniform and level playing field for buying and selling goods in interstate commerce
What does the UCC govern?
Contracts for the sale of goods (tangible movable things)
What is a hybrid contract?
A contract that involves both goods and services
What is the difference between a written and oral contract?
Written contracts are in written form
What is the Statute of Frauds?
Certain contracts must be in written form to be enforced.
What is the difference between an oral and a written contract?
Both are enforceable if valid.
What is a bilateral contract?
Both parties make promises and perform.
What is a unilateral contract?
One party makes a promise and the other party acts in response.
What is an express contract?
Parties overtly manifest their intent to enter into an agreement.
What is an implied in fact contract?
Contract based on the behavior of the parties.
What is an implied in law contract?
Court treats parties without a contract as if they do.
What is a valid contract?
Meets all necessary requirements and allows for contract remedies.
What is a void contract?
Not a contract at all, missing necessary requirements.
What is an executory contract?
One party is still performing.
What is an executed contract?
All parties have completed performance.
What is a voidable contract?
A contract that can be cancelled or enforced by one party.
What is an unenforceable contract?
Meets all requirements but another rule of law makes it unenforceable.
What are the requirements for contract formation?
Agreement, consideration, and capacity.
What is agreement in contract formation?
Meeting of the minds, offer and acceptance.
What is consideration in contract formation?
Bargained for legal value/detriment.
What is capacity in contract formation?
Parties must be sane, sober, and of age.
What is Legality of Purpose?
Contract must be for a lawful legal purpose.
What is Assent?
Parties knowingly agreeing on the same thing.
What is an Offer?
A promise to do or refrain from doing something.
Who is an Offeror?
The one who extends the offer.
Who is an Offeree?
The one to whom the offer is extended.
What is Intent in an offer?
Present intent to enter into a contract.
What are Critical Terms in an offer?
Payment, time frame, subject matter.
Who can accept an offer?
Only an offeree.
What is Acceptance?
The offeree's positive response to the offeror's proposed contract.
What is the Mirror Image Rule?
Acceptance terms must reflect the offer terms.
What is a Counteroffer?
A brand new offer that terminates the original offer.
What is Rejection?
Termination of the original offer.
What is Revocation?
Taking the offer back before valid acceptance.
Note
Flashcard