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CLEMSON / Forest Resource Management / LAW 3220 / How do i enforce this court ordered judgment?

How do i enforce this court ordered judgment?

How do i enforce this court ordered judgment?

Description

School: Clemson University
Department: Forest Resource Management
Course: Legal Environment of Business
Professor: Edward claggett
Term: Fall 2015
Tags: Law
Cost: 25
Name: Law 322 Week 2 Notes
Description: These notes cover Chapters 3 and 4.
Uploaded: 01/12/2016
8 Pages 136 Views 2 Unlocks
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Law 322


How do i enforce this court ordered judgment?



Chapter 3 & 4 Notes

Chapter 3

Basic Trial Procedures

• **On test**Federal Rules of Civil Procedure-govern litigation in the U.S in  civil trials

o Most states have adopted these rules

o They say these are steps (basic trial procedure) of the trial and they  go in this order

???? Pleading Stage

• Consists of a complaint and an answer

• The plaintiff files a complaint with the court, the  

complaint has to include why the court has jurisdiction  

(subject matter and personal jurisdiction) over this  

dispute, a summary of the facts (why are we here), and  


What are the types of discovery?



what remedy the plaintiff is asking, if they win what are  

they asking for  

• The plaintiff makes sure that the complaint and the  

summons gets personally served on the defendant

o If this doesn’t happen, then you don’t have  

personal jurisdiction

• The defendant files an answer (a legal term) to the  Don't forget about the age old question of What is the principle of negative feedback?

complaint. The answer can include a motion to the court  

to dismiss the case for a lack of jurisdiction, an  

allegation that the court needs to dismiss this complaint  

because there’s no law against it, affirmative defense  

saying even if what the plaintiff is saying is true you  

can’t fine me, examples of affirmative defenses: statue  


What are the three types of decision?



Don't forget about the age old question of What is the study of classifying and grouping organisms?

of limitations (a limited amount of time that the  

defendant has to file the complaint), assumption of risk  

(if you are fully informed about damages but you use it  

anyway), contributory negligence (its okay to look at  

the plaintiffs actions, it’s a partial defense), a counter  

claim (a statement by the defendant filing a complaint  

against the plaintiff)

o **On test**Defendant files an answer to the  

complaint, plaintiff files a reply if there is a  Don't forget about the age old question of What is the difference between homology and homoplasy?

counter claim

• Its common for the defendant to admit or deny the  

complaint in the answer

???? Discovery Stage

• Designed to: We also discuss several other topics like How do neurons communicate with each other at the synapse?

o Encourage pretrial settle

o Preserve evidence

• Court strongly enforces discovery in civil trials

• Types of discovery

o Depositions-you being questioned and  

answering under oath, can be used just like  

testimonies of trial

o Written interrogatories –get a list of written  

questions and have time to look things up and  

respond to the questions in writing under oath

o Order for production of documents-businesses  cringe about this, very time consuming and  

expensive, if they hide any documents the court  

will be all over them

o Request for admissions of fact-we need to  

determine the facts now and upfront, the court  Don't forget about the age old question of Can water form hydrogen bonds with ionic substances?

encourages this to get a certain amount of facts  

out of the way

o Order for mental or physical exam-certain  

crimes require a certain state of mind

• Court takes discovery very seriously and has two  weapons **look these up**

• At the end of discovery, either party can make a motion  for summary judgment

o Look, you’ve seen all the facts and you know  

what that law is and you know who should win,  

the judge can render an opinion right then and  

the trial is over

• Each party, to their litigation, bares their own cost in  the U.S, in the U.K, the loser pays the winners legal costs ???? Pretrial stage (optional stage)

• The plaintiff, lawyer, and judge are there

• Used to clarify any open issues, or to clarify the courts  calendar

• Its an ideal situation for the judge to strongly encourage  the parties to settle out of court

???? Trial Stage Don't forget about the age old question of Which government did aristotle prefer?

• 1st- whether or not you ask for a jury trial

o Only entitled to jury trial when they are  

monetary damages

• Voir Dire- lawyers questions the jurors to see if they are  biased towards the case, lawyers have a limited number  of exclusions, unlimited number to exclude for cause • Both lawyers make opening statements  

o Not evidence or testimony, saying here is what  I’m going to prove

• Direct testimony and evidence

• Lawyers get to make a closing statement saying here is  what I proved

• Motion for a directed verdict- its clear a certain client  wins on the spot

• Send the case to the jury if no motion for a directed  verdict

• The judge will summarize the law, who has the burden  of proof and what it is

• Jury reaches a verdict, either lawyer can stand up and  make a motion for the judgment against the verdict • If the judge agrees, he can reverse the verdict

???? Remedies

• Monetary damages

o Compensatory damages-made to compensate  

you for economic loses occurred like cost for  

physical therapy, designed to put them back into  

the same economic position had you not violated  

the law

o Punitive damages-if someone violates the law  

and its not the first time they have done it, the  

judge can asses these damages, designed to get  

your attention and change your conduct

o Nominal damages- we agree you violated the law  but there weren’t any damages

• Equitable relief

o Specific Performance-Court order specially  

ordering the other party to do something like a  

unique piece of property that money cant  

compensate it, won’t happen over services like  

saying someone will paint their house

o Injunction-Asking for a court issue injunction  

asking them not to do something, husband and  

wife are getting divorced, husband puts the  

house on the market, wife can go to court and  

say she owns the house, the court can issue an  

injunction saying he cannot sell the house until  

the divorce preceding’s are finished, asking them  

not to do something until something else occurs

???? Appellate stage

• Get here by filing a written brief to the appellate court  saying this is what was done wrong

o You cannot appeal questions of fact

• Three types of decisions:

o Majority opinion-means 2 of the 3 agree that  

party A wins and he wins for this reason

o Concurring opinion-the 3rd judge says that he  

agrees party A wins but for a different reason

o Dissenting opinion- the 3rd judge says he thinks  the plaintiff wins, doesn’t agree with the other 2  

judges

• Can affirm the lower court, can reverse the lower  court’s decision, can remand (send the case back to the  lower court) they need an issue clarified to us before  making a decision, can modify (usually happens in the  amount of damages awarded)

• Appellate court makes a decision, has the option to send  it to the Supreme Court

• Once it is decided, you cannot be tried again (final  judgment)  

???? Enforcement stage

• How do I enforce this court ordered judgment?

• Does this person own any assets?

o You can ask the court for writ of execution,  

allows the court to have these items sold in an  

auction to get them their money

• Does this person have a job?

o Ask the court for a garnishment order, which  

allows them to get up to 25% of their net pay  

every pay period until they have all their money

???? Alternative Dispute resolution methods

• Way to settle out of court

• 1st- arbitration  

o Two parties agree to use a neutral 3rd party to  

help resolve the issue

o Subject matter expert in the matter of dispute

o Two types-binding and nonbinding

???? If you agree to binding arbitration, the U.S  

court says that it is binding, once the  

decision is made you cant go to court

???? Non-binding- you can still go to court if  

you don’t like the decision

o Quicker, less expensive

o You can pick your set of arbitration rules

• 2nd-mediation

o Used a neutral 3rd party called a mediator

o Subject matter expert, usually resolving labor  

disputes

o Totally voluntary, no binding mediation

• 3rd- negotiation  

o Least formal, less minor disputes

o Two parties get together and talk about issues,  

evaluating strengths and weaknesses in the issue

o If they can agree, it is reduced to a written  

contract, this is a formal contract, can be sued  

after the fact

#4-deals with arbitration, you have to arbitrate before court

Chapter 4  

• U.S Constitutional Law

o Important because it is the highest law in the U.S

o If anything conflicts with it, it can be held invalid

o It created our system of government

o Gives all of us certain rights, the rights will never be taken away  unless the constitution is amended

o Consists of 7 articles

???? 1st article-deals with the make up and powers of Congress

• Congress consists of two branches

• Members of the house of representatives are elected  

over 2 years

o Larger states have more representatives

• Senators get elected every 6 years

• Any bill to raise revenue (taxes) has to start in the  

house of representatives  

• When congress passes a law, they have the send that  

law to the president, if he vetos it then it goes back to  

the house and senate, if they can get 2/3 to vote for it  

then it becomes a law

• Lists the powers of congress

o To levy and collect income taxes

o To regulate interstate commerce

o Power to declare war

o Necessary and proper clause

???? Hard for businesses to challenge this  

control

o Can pass any support legislation

???? 2nd-how you select the president, the powers the executive has • President elected every 4 years

• Members of the electoral college that technically elect  

the President

• You can’t be a candidate for president unless you are a  

natural born citizen

• President is the commander and chief

• President has the power to enter treaties

• President has to from time to time give congress the  state of the union address

???? 3rd-the judicial system, created the supreme court

• All criminal tries you have a right to a jury unless its an  impeachment trial

???? 4th-deals with the role of the states and the federal system • Full faith and credit  

o States support acts and laws of other states

• If you are citizen of one state you are a citizen of other  states, you shouldn’t be treated differently

???? 5th-how you amend the constitution

• 2/3 of both the house and senate (congress) proposes  an amendment to the constitution and then it goes to  

the state for ratification and then ¾ of the states have to  vote to ratify it

???? 6th-makes it clear the U.S constitution is the supreme law in the  united states  

???? 7th-method for ratifying the constitution  

o Bill of Rights (in the constitution) first 10 amendments ???? 1st- freedom of religion, press, and speech

???? 2nd- a well regulated militia being necessary to the security of  state, the right of the people to keep and bear arms shall not be  infringed (gun control)

???? 3rd- no soldier can be quartered in your house without your  consent  

???? 4th-nobody should be subjected to an unusual search or seizure • Must have a warrant by the judge to use evidence in  trial

• In highly regulated areas to protect the public, you don’t  need a warrant

• 5th- you can’t be compelled to testify against yourself in  a criminal trial, does not apply to businesses (no 5th 

amendment protection), states have laws (eminent  

domain laws-taking private property for public use) to  

take some of your property for public use and if they do  that they have to give you compensation (market value) o Can only claim this if it is for yourself, personal  

information

• 6th- in all criminal prosecutions you have the right to a  trial

• 7th- in every common law trial, where the amount of  dispute exceeds $20, you are entitled to a jury if you  

want one, and you cannot appeal questions of fact

• 8th- no excessive bail or fines shall be imposed, no cruel  

or unusual punishment  

• 9th- what we have given you are the rights we think are  

important, there are other rights

• 10th- if we haven’t given exclusive power to the federal  

government then states have power to play  

• 11th-the laws of the United States do not control if there  

is a dispute on foreigners  

• 12th- deals with the electoral college

• ***13th-abolished involuntary servitude  

o Congress continued to pass legislations to go  

along with this

• 14th- deals with due process and equal protection

o Due process- says follow the rules and follow the  

process

o Equal protection- treat people equally

• 15th, 19th, 24th, 26th –all dealing with voting rights

o 15th-no person shall be denied the right to vote  

because of race, religion, etc.

o 19th-no person shall be denied the right to vote  

based on sex (gave women the right to vote)

o 24th-no person shall be denied the right to vote  

for failure to pay a poll tax

o 26th- any resident or citizen 18 years or older has  

the right to vote

• 16th- congress has the power to levy and collect taxes on  

income

• 17th- clarifies the senate, each state has 2 senators

• 18th- prohibition amendment, the only amendment ever  

repealed  

• 20th- administrative, when the terms of president begin  

and end

• 21st- refined 18th amendment, sales of intoxicating  

liquors is now legal

• 22nd- no person can serve more than 2 terms as  

President

• 23rd- district of Columbia can vote for President

• 25th- if president gets sick, VP takes over

• 27th- you can vote yourself a raise, but it doesn’t become  

effective until someone else is elected to that office

???? States cannot enact any law that impedes interstate commerce • Questions at the end of Chapter 4

o #8- No he did not need a warrant because he was in a highly regulated  area that could harm the public

o #9- if it’s business records or businesses at all then there is no 5th amendment protection

o #11- Due process

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