LGS 200 - Exam 1 Notes
LGS 200 - Exam 1 Notes LGS 200
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This 14 page Bundle was uploaded by Emily Clayton on Thursday February 4, 2016. The Bundle belongs to LGS 200 at University of Alabama - Tuscaloosa taught by Allan M Trippe in Winter 2016. Since its upload, it has received 72 views.
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Date Created: 02/04/16
Sources of the Law Tuesday, January 19, 2016 5:05 PM • US Constitution & State constitution ○ Express right-clearly listed in the constitution (freedom of speech, religion, press, right to bear arms, right to remain silent, warrant) ○ Implied right - given, interpreted, read between the lines. § We have a right to privacy • Statutory law ○ Statute - legislature deal with hundreds of topics (criminal law, contracts, wills, divorce) § US congress, State of Alabama legislature § Available to update/amend/repeal aka flexible • Common Law - based on judges decisions that have accumulated over time ○ "Judge-made law" ○ Uses a precedent, a judge looks back at a similar case to see what the previous judge did 1. Gives the law consistency and predictability 2. Sometimes there isn't a precedent, you have a unique situation, can't find a similar case i. Late 70s: first surrogate mother case: ruled that the parents would receive custody and birth mother would have visitation after birth mother fights to keep child. ii. Second surrogate mother case: frozen embryo divorce… judge declared embryos go to ex wife and father does not pay child support iii. Third surrogate: 20y/o girl is infertile, asks mother to be surrogate… Grandmother is mother and daughter is sister? iv. Law is slower than technology advances 3. It is flexible, you can change the precedent when circumstances require it. ○ Another word for common law: Stare Decisis Due Process • a requirement that in every legal proceeding, the parties are entitled to due process • If you're involved in legal system, you are guaranteed due process • Fairness • Two things required: 1. You are entitled to notice of the legal proceeding against you • a requirement that in every legal proceeding, the parties are entitled to due process • If you're involved in legal system, you are guaranteed due process • Fairness • Two things required: 1. You are entitled to notice of the legal proceeding against you 2. You are entitled to an opportunity to present your side of the story "opportunity to be heard" Minimum Contacts • Home field --forum state , where law suit is filed • In order to be sued in the plaintiffs home state, the defendant must have minimum contacts with the forum state. • Minimum contacts / connection / link • 5 most basic connections 1. Residency - state of residency, North Carolina ○ Domicile is where you live temporarily (Alabama) 2. Own land in the forum state 3. Doing business in the forum state 4. Commit a tort in the forum state 5. Having a motor vehicle wreck in the forum state Civil Lawsuit- Plaintiff and a Defendant • Plaintiff sues defendant • Complaint -Started by a complaint against the defendant ○ Two things to put in every complaint 1. A short statement of facts claiming what the defendant did wrong 2. Plaintiff asks for a remedy or remedies • Summons -second document plaintiff files ○ Two things in it 1. Notifies defendant that he has been sued 2. Informs defendant that he must file an answer within a certain number of days, if he wants a trial i. Each state is different (Alabama: 30 days) 3. Summons in complaint is delivered/served to defendant 4. If defendant fails to answer on time or at all, loses case and results in DEFAULT (forfeit) • NOW NOTICED with due process in summons and complaint Remedies Thursday, February 4, 2016 10:19 PM 1. Monetary • Compensatory • Punitive - idea to punish wrong doer financially, to motivate him to change his behavior • Nominal damages - non-significant or small in amount - Technical breach/violation/wrong with no resulting harm or damages - Law awards victim a token/acknowledgement by giving a small amount of money - Showing they've been wronged but nothing extravagant, if truly injured law would offer compensatory Non-Money (Equitable) Remedies 1. Injunction -a court order to do something or to stop doing something. • If you fail to obey, you are found to be in contempt of court (in violation of court order) • Ultimate punishment is jail • Not a criminal violation, CIVIL • Example: live in nice subdivision, neighbors, zones declare certain uses for land, decide to be pig farmer, neighbor wants person to use land appropriately or in correct area, person chooses not to stop = contempt of court 2. Specific Performance - an injunction in a contract case that orders one party to perform his duties under the contract • Only use in 2 types of contracts - Sale of land • Sam seller decides to sell to Billy Buyer, then sells to someone else for higher price • You can make the seller sell to the buyer, court will order it • Will not make the buyer buy - Sale of unique personal property • Personal property - anything other than land • One of a kind, hard to replace (Mona Lisa) 3. Rescission - cancels a transaction • Will not make the buyer buy - Sale of unique personal property • Personal property - anything other than land • One of a kind, hard to replace (Mona Lisa) 3. Rescission - cancels a transaction 4. Restitution - money is returned or refunded • Example: You want to buy a car from Craig's list, ask "has this car ever been wrecked?" It has but the seller lies. If you knew it was wrecked you wouldn't have bought it. This is FRAUD. You take it to get fixed, find out it was wrecked, get a lawyer, ask for restitution and rescission. Want money back. 5. Reformation - corrects a mistake in a transaction Criminal & Civil Cases Thursday, January 28, 2016 5:04 PM Criminal Case • District Attorney (DA)- lawyer who represents the state in a prosecuting case • "Innocent until proven guilty" • Burden of Proof- one side is required to prove something by presenting evidence ○ Burden means obligation ○ ALWAYS PROSECUTION ○ Convince jury of guilt beyond reasonabledoubt ○ Prosecution doesn’t have to prove guilt beyond ALL doubt ○ 95% as opposed to 100% • Defense lawyers create doubt • Verdict either guilty or not guilty ○ No verdict of "innocent" • A criminal defendant cannot be made to testify against him--5th amendment ○ Choice to testify • Jury ○ Not selected, survive process of elimination ○ Defense attorney and prosecution strike 12 of 36, left with 12 • Burden of proof much harder than civil Civil Case • Two parties ○ Plaintiff § Has burden of proof □ Prove his case with a preponderance of the evidence ○ Defendant § Doesn’t mean you've been accused of doing something illal\ • Preponderance - greater/majority weight of evidence (>51%) • Verdict either liable or not liable (responsible/not) ○ Has to pay/does not have to pay • Defendant CAN be made to testify against himself in a civil case with one exception: Types of Evidence We Use to Prove our Burden 1. Direct Evidence • Verdict either liable or not liable (responsible/not) ○ Has to pay/does not have to pay • Defendant CAN be made to testify against himself in a civil case with one exception: Types of Evidence We Use to Prove our Burden 1. Direct Evidence a. Example: eye witness b. Documents 2. Circumstantial Evidence (suggests/infers conclusion) Credibility of A Witness • Believability • Jury watches and listen as witnesses testify ○ Make decisions based on credibility • Assume jury/judge find witness NOT credible, allowed to do one of 3 things 1. Believe NONE of what witness said 2. Believe ALL of what witness said 3. Believe some of what witness said Tort - civil wrong • One act can result in two trials ○ Civil and criminal • Tried once for crime, once for tort ○ NOT DOUBLE JEOPARDY OJ Simpson • Charged with allegedly two murders • Went through 2 trials ○ Double murder trial (Criminal) Tort of wrongful death (Civil) ○ • First case: Criminal ○ Not guilty ○ Did not testify in this case • Second trial: Civil ○ Found Liable ○ If they did the civil case first, he would not have said anything: 5th amendment ○ Jury awarded the dead families $33 million in compensatory and punitive damages § Hit OJ financially… § He's paid virtually nothing of that § Everything he owns is excluded. ○ Forced to testify • Two totally different verdicts • Burden of proof in criminal case: beyond reasonable doubt ○ Robert Kardashian "Dream Team Lawyers" ○ John Cochran, etc. § Everything he owns is excluded. ○ Forced to testify • Two totally different verdicts • Burden of proof in criminal case: beyond reasonable doubt ○ Robert Kardashian "Dream Team Lawyers" ○ John Cochran, etc. ○ Kendall's middle name is Nicole • Bloody glove didn't fit = acquit ○ "if it don't fit, you must acquit" • All circumstantial evidence • Mark Fuhrman -racist Jurisdiction Thursday, February 4, 2016 10:16 PM Definition: power or authority of the court • Two types of Jurisdiction: 1. Personal - power of the court over the physical body and the property of the plaintiff and the defendant. How to get this? i. Personal jurisdiction over the plaintiff is obtained when Plaintiff consents to personal jurisdiction when he files complaint ii. Personal jurisdiction over the defendant is obtained by personal service of the summons in complaint on him. Three ways to personally serve: 1) Sherriff to defendants house, place of business, served to hands (not physical, automatically happens when defendant touches or takes envelope) 2) Certified mail 3) Special process server appointed by the court 4) If the defendant avoids service, the plaintiff can serve him by regular mail § The defendant consents to personal jurisdiction when he files an answer to the complaint □ Even when there's no 2. Subject matter -the power of the court to hear and decide a particular type of case i. You have to file your case in the right court ii. Car wreck case filed in traffic violation court … filed wrong Probate Court • Will needing to be enforced • Adoption • Guardianships District Court • Civil and criminal cases • Civil ○ Evictions ○ Al civil matters up to $10k in amount • No jury trials Circuit Court • Appeals from district • Any and all civil matters in excess of $10k ○ Evictions ○ Al civil matters up to $10k in amount • No jury trials Circuit Court • Appeals from district • Any and all civil matters in excess of $10k • Divorce • Jury trials regardless of dollar amount • Once you leave circuit court, the trial is over • Criminal and civil • If you don't like the verdict, you go to appellate Question of Law • Always decided by the judge • Not all evidence is admissible • Example: Questions of Fact • Decided by jury if it’s a jury trial • If it's a non-jury case, the judge decides Appellate Court • Like the further view in sports (confirmed or reversed) • After verdict goes through appellate courts and the supreme court, the written opinion is either affirmed or reversed • That legal opinion becomes the legal precedent in common law Federal Court System Tuesday, January 26, 2016 5:42 PM • State court system in every state, and a federal court system at the same time as 50 state court systems • It is possible that state and federal court can have subject matter jurisdiction over same case at same time US District Court • Three types of cases 1. All lawsuits which the US government is the plaintiff or defendant 2. All lawsuits involving FEDERAL statutes 3. Diversity of citizenship a. Plaintiff and defendant are from different states and the lawsuit involve >$75k Example: • Plaintiff from TN • Defendant from AL • Lawsuit involves $100k • Plaintiff gets to choose which court to file in with one exception: the defendant can transfer it from state to federal, if plaintiff chooses state • Venue -tells you which county you file the law suit in ○ File the lawsuit in the county where the defendant lives ○ Or file lawsuit in the county where the subject matter of the lawsuit took place Discovery • Plaintiff and defendant find out most of the evidence held by their opponent • Does two things: 1. Makes the trial more efficient 2. Encourages settlements • Three ways to do discovery: 1. Interrogatory - written questions answered under oath (penalty of perjury) 2. Deposition - ask questions face to face while witness under oath 3. Production of documents a. Credit card receipts b. Cell phone records c. Tax returns 3. Production of documents a. Credit card receipts b. Cell phone records c. Tax returns Tort Thursday, February 4, 2016 5:06 PM • Intentional • Negligence • Strict Liability Intentional Tort • Meant to do it/chose to do it • Motive is irrelevant • Assault ○ Fear of immediate bodily injury (mental tort) ○ If you have committed the tort, you have also committed the crime ○ Can exist independently of each other (assault and battery) • Battery The physical contact with another persons body without his/her consent ○ ○ Does not have to be contact with your body, as long as it is attached to you. 1. Intentional Infliction of Emotional Distress • Conduct that is so outrageous that it produces emotional or mental distress • "shocks the conscious" 2. Invasion of Privacy • Intrusion into your private life • Public disclosure of private facts or information • Using some ones name or likeness for profit 3. Defense • A legal excuse for your actions • Self-defense § Protecting yourself by using physical force § Rules of self-defense are the same whether it's a tort or a crime - you are allowed to use physical force to defend yourself from immediate physical harm § Not allowed to use self -defense to defend property § Only allowed to respond with reasonable physical force § You can't start the fight then claim self defense § Self defense is gender neutral § Fighting words do not justify self defense (verbal abuse) § Not allowed to use self -defense to defend property § Only allowed to respond with reasonable physical force § You can't start the fight then claim self defense § Self defense is gender neutral § Fighting words do not justify self defense (verbal abuse) 4. False Imprisonment • The wrongful detention of someone's physical movement without their consent 5. Defamation • Untrue statement about someone that is communicated to a third party § Verbal (slander) § Written (libel) • Defense of Truth § If what you say is true, it is likely to be the tort of invasion of privacy • The defamation must damage the victims reputation 6. Conversion • The wrongful interference with the use of someone's personal property § Example: stealing some's car 7. Trespass • The unlawful and uninvited entry onto or across someone's real property § Example: walk through your land § Build a structure on your land § Divert water from your land to a neighbor's land (even if not on neighbor's land) Negligent Tort • Not intentional, but careless • Texting & driving, ran red light and crashed into someone else's car 4 Elements of the Negligence Tort 1. Duty of Care • Rule: every person has a legal duty(obligation) of care 2. Breach of Duty of Care • Violation • You are not careful in your every day activities 3. Causation • The defendant's actions directly cause or result in harm to someone else • We test for causation as a question of fact □ Decided by jury (in jury trial) □ Decided by judge (in non -jury trial) • Sometimes difficult to prove causation • The plaintiff has to show that what the defendant did, directly harmed someone else 4. Injury to a Third Party Defenses in a Negligence Case (Legal Excuses) □ Decided by judge (in non -jury trial) • Sometimes difficult to prove causation • The plaintiff has to show that what the defendant did, directly harmed someone else 4. Injury to a Third Party Defenses in a Negligence Case (Legal Excuses) 1. Contributory Negligence • The plaintiff is negligent along with the defendant and helps to cause his own injury • Result (if proven): the defendant is not liable • Alabama follows this rule (old/minority rule - considered unfair) □ If you can measure it, 98% causation (defendant), 2% plaintiff so plaintiff gets $0. • The minority rule v. the majority rule ??? 2. Assumption of Risk • The plaintiff recognized and understood the risk before he acted, but he chose to act anyway which helped to cause his own injury • Result: verdict for defendant is NOT liable, plaintiff gets $0 in compensatory damages • Example: electrical guy moving machine the wrong way and nearly dying. He contributed to his risk
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