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KSU / Finance / FIN 26074 / What are the 3 branches of the government?

What are the 3 branches of the government?

What are the 3 branches of the government?


School: Kent State University
Department: Finance
Course: Legal Regulatory Environment of Business
Professor: Lois j beier
Term: Fall 2017
Tags: business and Law
Cost: 50
Name: Business Law Exam 1 Study Guide
Description: The exam is over the lectures and outline
Uploaded: 09/05/2017
29 Pages 3 Views 8 Unlocks

 The Legal and Regulatory Environment of Business Introduction  

What are the 3 branches of the government?

 I. Trial Courts v. Appellate Court (pg. 54-55) A.Parties  

1. Plaintiff v. Defendant (pg. 90)  

- Plaintiff (pie sign) the one doing the suing  

- Defendant (delta sign) the one getting sued

-Plaintiff files papers, Defendant receives them

2. Appellate v Appellee (Petitioner v. Respondent)  (pg. 113 table 4)  

-Appellant: filling appeal  

-Appellee: one receiving the appeal

-No jury  

-Client does not have to be present  

(Caution: order of names can change throughout  appeal process)  

B.Judges v. Justices (pg. 50-51)  

C. Procedural Differences  

- “brief”, only opportunity to fight for your case  

-each party files a “brief”, justices read both+ the  transcripts then set date for oral argument.  Don't forget about the age old question of What is the nation-state?

-Justices meet in secret and take vote, majority win appeal D.Transcripts v. Opinions (pg. 35 and 115)  

What is the definition of federalism?

-Transcript: official record of what happens in court -Opinions: official record of what happened at the  appellate courts  

 II. Appellate Opinions  

A.Case Citation

B. Decisions (pg. 115)  

1. Affirm  

- “we agree with the court underneath us”

2. Reverse  

-Found error of law, the decisions should be the  


3. Reverse and Remand  

-Reversible error is found, instead of changing error must send case back down for new trial  

C. Types of Opinions (pg. 115)  

1. Majority Opinion

-Opinion that truly matters, carries the legal weight -DECIDING OPINION  

-Opinion written by Justices who votes with the majority 2. Dissenting Opinion

-Written by one of justices that voted w/ MINORITY  -Believes opinion is important/relevant  

-can have many of these

3. Concurring Opinion  

What are the types of civil remedies?

-Opinion written by one of the justices that voted w/ the majority  

-However, legal reasoning was different despite coming  to same conclusion  

-Justice felt it was important enough to document

D.Dicta (pg. 38)  

-is in the majority opinion  

-no legal relevance  

-it is the “embellishments”, when the justice writing gets  carried away We also discuss several other topics like What is the meaning of The “Triple Bottom Line” Performance?

-side stories, flowers the story


 III. Briefing A Case  


1. Action

-What type of case is it?

2. Facts  

-Brief summary of facts?  

3. Issue  

-what the legal question that the justices are asked to  solve  

4. Ruling  

-who won?  

5. Reasoning  

-why the “winner” won

B.Why to Brief Cases:  

-Easy way to remind you for studying  

-Allow you to be prepared for class

Chapter 1: The Legal System  

 I. Defining the term, “Law” (pg. 29-30)

-need to control behavior in system, societal contract  -Ex: Rule Conduct

A.Doctrine of Separation of Powers (pg. 513)  1. Horizontal- three separate but equal branches of  government  

1. Legislative: set up in the first 3 articles of the  constitution  

Federal= Congress

2. Executive: President at Federal level, Governor at State, Mayor at Local, City=City Council  

3. Judicial: Courts, Power to review other  

branches and determine if they are constitutional  or not.  

-In article 3 of constitution this power is not  

written (some argue it gives them more  


*all contribute with checks and balances*  

2. Vertical- federalism (pg. 513)  

- Two levels of gov. operating at the same time  -Federal: ability to pass laws, only one to pass laws on  treaties/enter into treaties  


3. The Power of Judicial Review (pg. 61-61)  a. Marbury v. Madison (1803 U.S. Supreme  Court Case) (pg. 61-62) We also discuss several other topics like The murder of six million Jews in Nazi Germany is called, the?

- Established that the Judicial Branch has the  

power of Judicial Review despite not given this  power in the constitution (article 3/7).

- Means determining if the actions of the other two branches are constitutional or not.  

- Madison: Jefferson’s secretary of state

-Marbury sued Madison to make Madison deliver  his commissions to him(Madison)

- Chief Justice Marshall had the judicial branch  review these actions because original Act was  illegal.  

- Importance: Case that established the power of  Judicial Review.

- All reviews approved by Senate

B.Sources of the Law (pg. 36-39)  

1. Constitutions (pg. 36)  

-Founding Fathers

-Highest Law in the Land  

-State each have their own constitutions  We also discuss several other topics like What is Optimistic about human nature?

-Each States legal actions must comply with the State  and US constitution

2. Statues (pg. 37)  

-U.S Code (federal)  

-State Level: Ohio Rev. Code  


3. Case Law- Common Law

-2 types of legal system (pg. 34-35)  

-Civil System: Japan  

-Common Law System: US  

a. Precedent-Oriented Legal System  

 Definition of Precedent

i. Reasons for following Precedent  

ii. Reasons to Deviate from Precedent

a. Obsolete: the law is outdated, was a  

good law at the time but in current  

times is not relevant  

-Ex: Real estate, education, health  

care, inventions/innovations, air  

rights, socialite changes,  

technology advances  

b. Erroneous Decision: judge at the time  Don't forget about the age old question of What is value appropriation?

made an error  

c. Distinguish facts: if the precedent  

goes against the client you use it  

-If that car was blue in that case,  

doesn’t apply to my case because  

my client’s car was red  

iii. Classifying Legal Systems  

a. Civil system v. Common Law  If you want to learn more check out What is Kinetics?


4. Administrative Law  

-4th Source of Law  

5. Executive Orders

-the law, subject to the order coming out at Federal  Level: president  

6. Treaties  

-Only federal government can enter into a treaty  -Uniformity  

-Article 2 in Const.: President enters into treaty with the advice/consent of senate  

-Treaties on tax issues  

 II. Classifying Laws  

A.Procedural Laws v. Substantive Laws (pg. 38)  -Procedural Law- Rules of the game

-example: after the crime, how much time do you have  to file charges, paper size, how to object, restraining  order  

-If do not follow rules- could lose case  

-Substantive Law- “the guts” of the case  

B.Public Laws v. Private Law  

 III. Classifying Types of Cases  

A.Civil Cases v. Criminal Cases (pg. 35)  

-two types of lawsuits  

1. Plaintiffs  

-Criminal case-public law, prosecutor/public employee  (the state is after you)  

-Result for victim: does not get anything from the state  (file civil case)  

-Examples: medical bills, money, etc.  

b. Civil Case- the person of the private law area, Tort Law  -can have two cases for one crime

-rights against double jeopardy (pg. 199)

2. Purposes  

- Criminal: to punish the wrongdoer  

- Civil: compensate the innocent victim

3. Private Law v. Public Law (pg. 192-194)  4. Procedures  

a. Time Frame  

1. Criminal: right under 5th amendment to a fair  and speedy trial (6 to 12 months)  

2. Civil: 2-3 years  

b. Grand Jury (pg. 193)

-Only in criminal cases  

- Two types of juries: Petit and Grand

1. Petit Jury: the finders of fact, at both  

criminal and civil cases  

- In criminal: determine if the person is  

guilty or not  

- In civil: determine if the innocent is  

liable or not.  

2. Grand Jury: only in criminal cases  

- Protect the accused  

- Grand Jury Hearing:  

- 30 some people

- Meet in secret with the Prosecutor

- Purpose: to let the prosecutor  

present all the inform for the  

defendant, the jury decides if there

is enough evidence to send case to

the trial  

- If enough evident, bind over  


- Not enough evidence, the person  

is set free.

c. Burdens of Proof (pg. 110+111)  

- The Plaintiff has the burdens of proof  

- Discussing credible evidence  

- 3 levels of Burdens of Proof  

i. Beyond A Reasonable Doubt  

- Most difficult to prove

- Used in criminal cases  

- The level of evidence a prosecutor must  

meet for the trial  

- 90-95% credible  

a. In heinous cases, must have a  

unanimous decision (100% of jurors  

believe guilty or not guilty)  

ii. Clear and Convincing Evidence Standard  

- Equitable  

- Used in civil cases

- 65% in favor of majority decision

- Lower than ‘beyond’ but higher than  

‘preponderance’ to maintain

iii. Preponderance of the Evidence Standard

-aka Manifest Weight of the Evidence  


- Easiest to maintain  

- Used in civil cases  

- 51% in favor of majority decision  

a. Which Civil Burden of Proof to Use is  

Dependent of what type of remedy the  

Plaintiff is seeking.  

1) Types of Civil Remedies (pg. 39-41) (pg. 74-81)  a. Remedies at Law (Legal Remedies) v.  

Remedies at Equity (Equitable Remedies)  

1. Definitions  

i. Remedies at Law  

-$$$ for damages  

ii. Remedies at Equity  

- Have to convince judge that money will

not solve problem  

- Adjunction: a request for someone to  

stop doing something

- I.E- Business owner sues picketers that

come daily to the business, business  

sues them for $$$, but they continue to  

come back daily- business owner can  

get an adjunction from a judge.  

- Clear and Convincing Evidence  


- No Juries AT ALL  

- The judge is the finder of fact  

- You are allowed to use both remedies  

(money AND stop/start something)  

- You then have the higher burden  

of proof

2. Historical Development  

3. Typical Remedies at Law (Dollar Damages) (pg. 74-76)

*Compensatory Damages  

- You can put a dollar amount on anything  

(finger, life, damages)  

- Amount of money it takes to make the  

plaintiff whole again  

- Putting a monetary price on EVERYTHING  

you lost  

- Out of Pocket lost (project past lost and  

future lost)

- Once it is discovered that the person is  

guilty, the Plaintiff must have proof of  


- I.E- receipts, economic professor,  

expert witnesses to testify (these  

are different than usual witnesses,  

they are paid to be there and to  


- Expert status based on education,

experience, knowledge of the topic,

communication skills  

*Punitive Damages  

- A windfall to the plaintiff  

- In addition to Compensatory Damages

- Can be anywhere between (1-5x)  

compensatory damages

- Not available in all law suits→ normally  

only in Intentional Torts cases

* Nominal Damages  

- Used in situations where it is proven  

defendant is liable, however financial  

damages cannot be proved.  

* Liquidated Damages  

- K, used in contracts

- Liquidated Damages Clause??

a. Drafted in contract, if one of us  

doesn’t do what the other says and

they are sued+liable→ shows judge

how to determine who is  

responsible for what $$  

b. Formula for the judge to use if  

the contract is breached  

c. Fair→ when written each person  

does not know which side they will  

be on if contract is breached

d. Beauty of it: Plaintiff just has to  

prove the person broke the  

contract, no Nominal Damages

e. Limits legal risk  

4. Typical Remedies at Equity (pg. 79-81)  - Only when prove money won’t solve the  problem or hurt.  


- Make them stop that activity  

- Temporary or permanent  

*Specific Performance(K)  

- Contract where someone is not  

performing correctly  

- Unique Property- no money in the  

world can recover it  

- Court to make defendant perform  

what they said they do in contract  

- Examples: antiques, real estate

* Rescission(K)

- Court cancels contract and put the  

parties back into positions they occupied prior to contract

- Depending on how far into contract  

you are determines if you can use this

* Reformation(K)  

- Judge rewrite contract to carry out the  intended purpose of contract

- Have parties perform as intended  

* Accounting  

- Make C account to the court for the  

finance state of the business

- Judge would share with A and B  

- This works when there is a partnership  

* Dissolution  

- Legal determination of a partnership or


* Partition  

- Real Estate  

- All partners must consent to the  


- Court to make the non-willing partner  

to sell their section of the estate  


- Person takes out loan, contract is  

signed for payment plans and interest….

- In a loan, the lenders first level of  

security (if person fails to make  

payment) is to sue for breach in  


- Takes 2-3 years

- Instead if borrower has no money to  

pay you.

- File a foreclosure action and in a  

couple months/weeks (instead of  

years), real estate is transferred to  


- Risk of Collection is minimal  

* Eminent Domain  

- Government takes ownership of private

real estate because the public needs the

private land more than you do.  

- Government offers A LOT of money

- If refused, the government can file  

lawsuit against the person (government  

is plaintiff, citizen is defendant)  

- If government wins, judge forces  

citizen to transfer property to  


- But citizen still get fair market  

value (not as much as initial offer)  

5. Rules of Law v. Legal Maxims  

Prayers for Relief  

- Plaintiffs says what they desire as remedy  

- Seeking compensatory damages  

- Found in the complaint  

6. Judgement v. Award  

IV. Areas of Law-Overview  

A.Torts (pg. 41)  

1. Definition  

- Wrong against person or property  

- Public law  

- Tort feasor-who does the Torts  

- Malpractice errors, product liability, accidents  

2. Three Theories of Tort Liability  

a. Intentional Torts  

- Did it on purpose, was fully aware of what was happening  b. Negligence  

- Most commonly used theory to hold people accountable for Torts  

- Used in malpractice cases  

- Did not do it on purpose, accident/mistakes  

- Person in charge of activity is in trouble

c. Strict Liability  

- If activity that causes harm can be labeled as “ultra hazardous” or “inherently dangerous” then whomever is in  charge of that activity is strictly liable for the harm caused  from that activity  

- Does not matter if it was intentional or accident  - Examples: dealing with explosions (dynamite, fireworks)  imploding buildings, transporting dangerous materials,  housing wild animal  

B. Contracts (K) (pg. 40)  

1. Definition  

- Agreement between two parties

- Private Law

C. Property (pg. 30-32)  

-Private Law

1. Real Property  

- Land and anything permanently attached to the land -Example: real estate and the buildings, parking lot,  patios, pools, landscaping  

2. Personal Property  

- All the rest of the property, if it is not real. It is personal. a. Tangible: physical existence

- Ex: cars, books, airplanes, clothing, etc.  

b. Intangible: value, but no physical existence  

- Ex: copyrights, trademarks, stocks

c. Fixtures: item of personal property, hybrid  

- Ex: built in appliances, furnace, carpeting  

d. Reasons to Distinguish between Real and Personal  Property  

D. Criminal Law (pg. 192)  

1. Types of Crimes  

a. Felonies  

-sentence: > 1 year  

b. Misdemeanors  

-sentence: < 1 year  

c. Petty Crimes  

- No incarceration but you pay a fine  

- Examples: running a stop sign, traffic ticket, etc.  2. White Collar Crimes (pg. 190-191)  

a. examples of (table 13-A)  

- Insider trading, price fixing

- Forgery  

- I.E everything in the TV Show “White Collar” w/ Matt  Bomer

b. Methods of Prevention  

c. Costs of Doing Business  

d. Laws Controlling  

V. Ethics and Business (pg. 154-185)  

- 1977 Congress passed Foreign Corrupt Practice Act  - After Watergate (Nixon)  

- US corporation doing anything in the world (brides or  kickback) illegal, fined and penalized.  

- US is held to a higher stand of ethics than any other  country.

A. Relationship between Ethics and Law (pg. 161)  B. Codes of Ethics (pg. 173-175)  

- Every employee must read it, sign it and follow the code.  VI. Roles of Lawyers (pg. 153)


1. Law School  

- four-year undergraduate degree in any major from any  accredited university

- 3 years’ full time, summers off  

2.Bar Exam  

- 3-day long testing  

- Pass or Fail  

- Must pass to practice law

- Only good for the state you took exam in

- Some states allow you to purchase licenses for their  state

B. Licensing Reciprocity  

C. Career Opportunities  

D. Officers of the Court  

- An attorney  

- Must be sworn in  

- Must be a counselor, help the court ascertain the truth E. Code of Ethics  

- If broken and mistake is made on client’s mistake, can sue  for malpractice  

- If reported unethical, the client gets no money+no lawsuit  but the actions are put under investigation by peers  - punishment is: disbarring permanently or temp./could lose  license  

F. Privileged Communications  

1. Definitions and Rationale  

2. Three Common Law Privileged Communication  Settings  

a. Doctor/Patient  

b. Clergy/Parishioner  

c. Attorney/Client

*Within Corporation

- Supreme Court recognized that there can be  

attorney/client privilege within the corporation.  

- In 2002, Law was passed that it cannot protect  

corporation from any illegal business such money  laundering, etc.  

- -can never reveal what was discussed even if attorney is  fired.  

-if secretary/ other employees are present cannot speak  either.

-person who is not an extension of attorney can testify what  they heard.  

-Location does not matter.  

-anything communicated verbally or written cannot be used  in court

3. State Statutorily Created Privileged Communication  Settings  

VII. Juries (pg. 51-53)  

A. Constitutional Provisions  

1. Sixth and Seventh Amendments  

-6th: Criminal  

Petit Jury: decides if guilty or not  

-7th: Civil  

Petit Jury: decides if liable or not

B. Grand Jury (pg. 193-194)  


1. Definition  

2. Size of Jury  

-23 people  

-Meet only with Prosecutors  

3. Selection of Jury  

4. Functions  

- Decide if the prosecutor has sufficient evidence to  send the case on to trial  

- Binding the case over for trial  

- Requires majority of the jury to send it on

- “Indictment” it goes to trial

C. Petit Jury (pg. 51)  

1. Size of Jury

- originally 12 people  

- jury can be as small as 6 people  

- If any smaller, person’s right to a jury has been  


2. Selections of Jury  

- Random selection of Ohio’s citizens based on voter  registration and driver’s license  

3. Function at Trial  

-determine the facts

4. Criticisms of the Jury System  

- Do not pay anything to be on jury

- Government employees must be paid by their job  - Cannot be fired for not showing up to work while on  jury duty

- Cannot ask questions  

- Too distracting/disruptive  

- Jury can write down questions and submit them  to the judge then judge can ask  

VIII. Judges and Justices (pg. 50-51)  

A. Power of Judicial Review

-Justices: appellate court level  

-At least 3  

1. Definition  

2. Source  

3. Recent Applications  

4. Two Philosophies on How Justices Exercise this  Extreme Power  

a. Judicial Restraint (pg. 62-64)  

- Try to interpret the law with the historical significance of the constitution - Determines if problem is constitutional. 

b. Judicial Activism (pg. 64-65)  

- More liberal approach 

­ More likely to overturn precedents 

­ Use Constitutional Relativity (means interprets constitution in today’s 


­ They incorporate in their opinion how the wrong can be correct, provide  a solution. 

B. Immunity of Judges and Justices  

1. Absolute Immunity  

- Immunity: cannot be held personally liable for professional actions 

- Even if actions are unconst. 

- However, government the judge/justices can be sued for your actions 

- Purpose:

-incentive for people to take judge/justices positions.  

­incentive for people to act quickly in court/on the bench 

2. Qualified or Limited Immunity  

- Other government employees 

- Cannot be personally liable for professional actions UNLESS those actions  WERE unconstitutional. 

- If actions are wrong but constitutional­ not liable. 

C. Interpreting Legislation  

a. Rules of Construction  

b. Legislative History  

IX. The Court System  

A. Statute of Limitation (pg. 102)  

- tells plaintiff from the time you were wrong how long you have to file  the lawsuit

- Once complaint is filed, statute of limitations ends

-Starts when accident happens OR could reasonably be ascertained to  occur (it happened earlier and you just found out about it) - Heinous crimes: no statute of limitations

- Mainly minor crimes

- private/civil law: depends on substance of issue


Real estate: 21 years

Breach of contract: 7 years

Tort Case: based on negligence theory, only 1 or 2 years

B. Jurisdiction  

1. Definition: the power of a specific court to hear a case.

- If you file in a case that does not have jurisdiction, your case  will be dismissed  

- “Office ladies” do not tell you if you are in the right court.  - If you file in a court that doesn't have the power to hear your  case, they will dismiss your lawsuit

- Court doesn’t tell you that you filed in the wrong court so  it's almost impossible to re-file while still being in the  

statute of limitations

2. 3 Types (correct court must meet all 3 types)  a. Subject Matter Jurisdiction (pg. 54)  

- what is the topic? Subject of lawsuit?  

- Certain courts can only hear certain topics-- LIMITED I. Class Action Suits

- Lots of plaintiffs from different states-- court DOES  

get jurisdiction over them

b. In Personam Jurisdiction  

- Must have jurisdiction over all Plaintiff(s) and  


- Plaintiff: willingly, not hard to get jurisdiction

- Court always gets jurisdiction of the plaintiff

- Defendant: forced to come into court and before a case  can go to trial, you must get service of process

- Service of Process

- 5th amendment: “all have due process”--  

defendant cannot be denied life, liberty, and  


- Fundamental fairness

- Must get notice of charges against you and  

opportunity to be heard

- Deliver a copy of complaints and summons to  


- Summons: “show up at this court room at this

time so you can say your side of the story”

- If you can’t serve all defendants, cannot go to


i. long-arm statutes  

- Allow Service of Process to be made on people outside of  the state if those nonresident defendants have minimum  contact within that state

- No intention to come back to state, just passing through,  etc.

- If you have minimum contact within state of accident, you can be sued in your own ‘home’ state

a. World-Wide Volkswagen Corp v.  


-100 S. Ct. 559 (1980)  

- Situation: What constitutes minimum contact?

- New York car dealership (no branches, mom and  

pop shop, 1 location). Plaintiff bought car in New  

York, drove out of state and ended up in Oklahoma.  

Defect in car caused an accident. Plaintiff claims car  

is defected-- They sued Volkswagen, New York  

Dealership and everyone in chain of distribution IN  

OKLAHOMA COURT. Volkswagen had  

employees/factories/offices in Oklahoma but New  

York dealership claimed case should be dropped to  

them because they had no minimum contact in state  

of Oklahoma. Plaintiff said they did have minimum  

contact because they knew the car would travel and  

go into other states. Is that minimum contact? Can  

Oklahoma get jurisdiction over New York dealership:  

NO. deemed to have no minimum contact (no  

advertisements, employees, offices, etc.)

c. In Rem Jurisdiction (pg. 93-94)  

- Any property that has to be disputed in lawsuit

- Must have jurisdiction  

- Personal/Mobile property=big one 

- example: Will that moved around

- As plaintiff, do research. Might be one case that exclusively listens to 

one subject. 

3. Concurrent Jurisdiction v. Exclusive Jurisdiction  - Exclusive: One court has the jurisdiction to hear case,  plaintiff doesn’t have a choice

- Concurrent: Plaintiff has choice where to file case, multiple  courts can hear case

- Plaintiff can “shop around” where to take case too

4. General Jurisdiction v. Limited Jurisdiction C. Federal Court System (pg. 56-61, fig 3.2 on page 56)  - 50 state court systems

- 1 federal court system

- Case starts in….

- Trail court systems (where plaintiff files complaint)

- Evidence presented, witnesses called

- One judge

- Facts of case established

- Might have a jury

- Court transcript made here

1. Appellate Court  

a. US Supreme Court  

- highest court in the federal/United States 

- start first Monday in October 

- hear 90­100 cases per year 

- 9 justices (need 5/9 to vote in your favor) 

I. Motion for Wire of Centiorari (pg. 59)  

- If you want to get your case heard 

- If motion is granted, they send the thing to the court underneath 

them etc

- deined ­ you done, stuck with decision from court of appeals 

b. U.S Circuit Court of Appeals (3) (pg. 58) (fig. 3.3)  - First level of appeal in federal system 

- 3 justices (  voting in your favor)  ⅔

- Asking if any errors of law were committed 

- No evidence is presented, no witnesses, etc in appellate court 

- Plaintiff: Appellant/Appellee 

- Defendant: Petitioner/Respondent 

- Brief­ only chance to argue your case to the justices 

- Site prior cases 

2. Trail Courts  

-where the case begins  

-evidence presented, witnesses called, jury present, one judge  -Facts of case are established  

-Court Transcript: official record of what happened there  

a. U.S District Court (pg. 57)  

-Broad Subject Matter discussion  

* Bankruptcy Court


* Tax Court  


* Court of Claims  


b. Subject Matter Jurisdiction  

D. State Court System (pg. 54-55)  

1. Appellate courts (pg. 55)

a. Ohio Supreme Court  

i. Motion for Writ of Certiorari

b. U.S Circuit Court of Appeals  

2. Trial Courts

a. U.S District Court  

*Bankruptcy Court  

* Tax Court  

* Court of Claims  

b. Subject Matter Jurisdiction  

C.State Court System-Ohio Courts  

1. Appellate Courts  

a. Ohio Supreme Court

i. Motion for Writ of Certiorari

b. Ohio Court of Appeals  

2. Trial Courts  

* Country court of common pleas

- 88 counties in Ohio  

­ Broad subject matter  

­ Primary court  

* Traffic court  

* Probate Court  

* Domestic Relations Court  

* Municipal Court  

* Small Claims Court  

-All 50 states have this  

-You can represent yourself  

- You get the winning  

* Juvenile Court  

- Can Hear all types of subject  

- Can only listen to cases from people 17 and under  

--E transferring a case//N

X. Alternative Dispute Resolution Processes (pg. 120-148) - done by contract, privately  

A. Conciliation (pg. 122-127)

- Two parties hire independent 3rd party(conciliator)  - Role: talk with both parties to find a mutual time/place for them to meet

- Meet w/ both parties and start communication  

- Keeps them talking, leveled, on track  

- negotiation  

- no interest in outcome  

B. Mediation (pg. 146-148)  

- parties represent themselves, no attorney, informal

- when conciliation does not work  

- disinterested 3rd party, no personal stake.  

- Role: listens to both parties’ side of stories

- Comes up w/ suggested solution  

- Trouble: suggestion of mediator is not legally binding  - Success in roommate, divorces, car accident and labor negotiations(unions) disputes  

C. Arbitration (pg. 129-145)  

- two parties both mutually agree to hire an impartial  3rd party.  

- Difference between B and C: legally binding

- listens to both sides, discusses, comes up with  


- Solution= award  

- Solution(award) is legally binding, if one party does  not comply, take to court.  

- judge forces party to comply  

- informal, represent selves  

- can appeal award out to courts, unless can prove art is extremely biased- only happening ⅓ of the time.  


- sometimes can have panel of 3- need ⅔ to agree - Person does not have to be legal, you can pick  

anyone. List of suggested people  

- as long as both parties agree in contract: anyone can  be picked

- used often in consumer contracts: investing w/ broker, apartment lease  

- used often in business contracts  

D. Advantages of ADR (pg. 129-130) (M pg. 148)  - Quicker, no time delay  

- Cost effective

- save money on attorney, court times  

- Private  

- Better resolution  

- can have “experts” deciding on solution  

- Rules of Court do not apply (positive and negative)  -informal

-some evidence comes in that would have  

been excluded at a trial  

E. Disadvantages of ADR

XI. Litigation of Civil Lawsuit  

A. Stages of Civil Litigation  

1. Pleadings Stage- Notice Pleadings  

a. Complaint  

-Plaintiff starts the ball rolling by filling the  


i. Allegations  

b. Answer  

i. Demurrer Motion  

c. Counterclaim  

d. Reply  

e. Third-Party Practice  

i. cross-claims  

ii. Third-Party Defendant  

f. Motion for Summary Judgement  

2. Discovery Stage (pg. 99-101)  

a. Purpose

- stage before trial, gives P and D time to research both sides of 

the case 

- Allows both sides to know all the facts of case, so both sides are  prepared

- Levels the playing field; based on merit not surprise

b. Tools for Discovery  

- Where business people get involved  

- Can use any/as many of these tools as you want  - If discovery is requested, must respond.

- Can get expensive  

- can ask any questions (get a lot of info quickly,  

face to face)

- Everything is relevant  

- someone asking for a lot of info can force other  

side to do same

- sometimes show your hand  

- Helps realize strength of your case  

I. Deposition (pg. 100)

- Where both side’s attorney’s question  

someone under oath  

- Swears them in, asks questions, note taker  


- Can ask any questions they desire

- preserves testimony (if person is  


- CAN be used to impeach witness (will not  

rely on what they say)  

-Used when witness answers question in

court diff than in D (or I).  

- Bring out record of it, ask them if  

remember how they responded  

- Then read from record and compare  

both answer, IMPEACH (does not involve

jail time)  

- Cannot believe a word they say now,  

lied or cannot remember  

II. Interrogatory (pg. 99)  

- Very similar to desp.  

- Sworn Statements under oath

- Done in writing, not person  

- Sent set of questions to other attorney, attorney  

gets sworn answers.

- Cheaper(advantage)

- Do not know how person felt/ looked when  


- CANNOT use to preserve a testimony  

- Used to impeach witnesses  

III. Request for Physical Examination (pg.  


- If personal injury case, you can ask other  

person to get examined by doctor of your  


IV. Request for Production of Documents (pg. 100)  

-anything you want you can request  

- helps show how personal case is building  

V. Request for Admission

- Try to get other side to agree to certain facts before


c.Out of Court Settlements

- Where the P and D enter into contract where the  P gives up right to sue

- Gives up case for a certain amount of money

- Plaintiff offers to settle case for $$$, Defendant  

can agree (stopped, no trial)

- Defendant cannot accept and then go to trial  

- If worried you will not be able to collect do this  - Not relevant in this was denied then went to trial d.Pre-Trial Hearing(Conference)  


- Where both sides attorneys meet with judges in  

chambers (no clients present)  

- what happens depends on the judge

- Ex: interest in settlements, tries to get you to  

settle that day

- Sets ground rules for the trial  

3. Trial Stage

a. Jury Selection(Petit) (pg. 105)  

- if either side demands jury, there will be a jury

- function to determine the facts  

I. Venire  

- People get asked by mail 

- Group of potential people that could be on jury 

- get questioned under oath

- looking for impartial people

- some get dismissed (unlimited amount of people)

II. Voir Dire Examination (pg. 105)  

- Attorneys and Judge question potentials under oath

- Challenge: For Cause (unlimited #)

- when you want to dismiss someone, have to get 


- judge decides 

- Ex: in similar case, knows one of the D or P 

­Challenge 2: Peremptory (limited #) (pg. 106) 

­ No reason must be given when asked for them to be


­ Each Attorney has limited number

b. Opening Statements (pg. 109)  

- remarks, arguments  

­Attorneys for both sides address jury and judge

­” Set the stage”

i. Plaintiff’s Attorney (goes 1st)  

- bears burden of proof 

- gets 1st and last word of trial

ii. Defendant’s Attorney(2nd)

c. Presentation of Evidence  

iii. Plaintiff’s Entire Case is Presented(1st)  

- Presents all evidence until met Burden of Proof  

- Exhibits, call witnesses, experts, videos, maps, jury out to location

- Every witness called has potential of being questioned on  4 levels

- Examination of Witness

-Objection Process

a. Presentation of Evidence

- Every witness called has potential of being  

questioned on 4 levels  


1. Examination of Witness  

* Direct Examination(1st)  

- No leading questions (type of question that  

results in a 1-word answer)  

- Plaintiff attorney questions their witness  

* Cross Examination(2nd)  

- Defendant’s attorney gets to question them  

- Leading questions are allowed

- Want them frustrated, shaken up, loose their  


* Redirect Examination(3rd)  

- Plaintiff attorney questions again to redirect  

* Recross Examination(4th)  

- Defendant’s attorney questions again to  


2. Expert Witnesses  

3. Objection Practice

- As attorney must think fast, on your feet, to object  

- listen very closely  

- object! (on what grounds)  

- once objects, judge decided

- Yes: evidence is gone  

- No: Evidence stays  

-Record taker records ALL

a. Grounds for Objectives  

- privileged communication information

- illegal search and seizure  

- Question is irrelevant in case

*Hearsay Evidence  

- idea: we want the person testifying to  

have first-hand knowledge of what they  

are talking about  

- more they hear, less accurate

- more times(story) repeated, less  

reliable information(story) is  

*Irrelevant Evidence  

* Best Evidence Rule  

* Privileged Communications  

* Improperly Seized Evidence in

Violation of Fourth  

Amendment Rights  

ii. Motion for Directed Verdict (pg. 109)  

- Rule in favor of defendant because the Plaintiff  

hasn’t met burden of proof

- vote YES on motion: case is removed, never  


-vote NO on motion: defendant gets to defend  

their case and share story

iii. Defendant’s Entire Case is Presented  

d. Attorneys Submit Suggested Jury Instructions to  the Judge  

- Both attorneys are given opportunity to prepare  instructions to give the judge to share with the jury  - Advantage: Error of Law could be judge didn’t instruct  the jury correctly  

e. Closing Statements (pg. 109)  

i. Plaintiff’s Attorney

-1st and Last

- Burden of Proof

- Addresses jury and judge

- Summarizes why their client should win, the  


ii. Defendant’s Attorney  

- address jury and judge on client’s behalf

iii. Plaintiff’s Attorney  

- Gets one last shot to summarize why their client  should win

f. Judge Instructs the Jury as to the Law  

- Jury: determine facts

- Judge: apply law to facts

- Define the burden of proof

- Instructs jury to what the law is in this case

- like a rubric for the jury

- Must always give instructions or would be similar to  “shot in the dark”

g. Jury Deliberates (pg.112)  

- Answers if the facts are “true” or “false”, apply to law  and come out with verdict  

- Can rule in favor or either client, judge does not have  to agree

h. Jury’s Verdict (pg. 112)

- Judge does not have to agree with their decision. i. Judgements  

- Remedy is stated  

- not who won

4. Post-Trial Stage (pg.112)  

a. Motion for a New Trial  

- Case goes to another court with another judge/jury  because there has been a huge mistake  

- Time for judge to take back mistake before  

overturning a verdict  

- Not common  

- Can go all the way up to the appeal process

b. Motion for Judgments N.O.V (notwithstanding the  verdict)

- Judge agrees with jury’s verdict but there is not  

enough evidence to support finding (theatrical attorney, emotional case), plaintiff/defendant wants judge to  change verdict to go against jury  

- If judge does not change their verdict,  

plaintiff/defendant will appeal

c. Collecting on Judgements (pg. 116)  

- make sure suing is worth the effort and cost  

- If he is a dead-beat, will you ever be able to collect?? i. Garnish Wages  

- File order with court to contact defendant’s job  

and have them take parts of paychecks to winner

ii. Foreclose on Real Property  

- Foreclose on their property, sell it, use money to  pay off debt from lawsuit

iii. Attach Personal Property  

- sell their personal property to pay off debt from  


d. Appeal (pg. 113-116)  

- everyone has right to appeal 1 level up, time  


-looking for errors of law

-both sides write their sides  

i. Procedure  

-oral argument

-justices vote on winner (majority wins)

-justices given job of writing “case opinion”  

-(precedent) (official transcript)

5. Doctrine of Res Judicata (pg. 117)  

-means the case is settled  

-After all levels of appeal have been exhausted, it is done  (according to doctrine)

-Finality for the defendant  

a. Cummins v. Dresher, 218 N.E. @d 688 (N.Y.  1966)

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