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FIN 26074001 THE LEGAL ENVIRONMENT OF BUSINESS Lecture 5 Notes (9/30) Side note: There was a lot of information this week!!!
*Most cases are resolved before the trial even takes place*
The Trial
∙ A trial by jury must be requested when individual first approaches the court with an issue. o Criminal cases:
If it is a misdemeanor then the defendant has a very limited time to request a jury.
If it is a felony the defendant has to waive their right for a jury trial.
∙ Potential jury members (primarily for civil cases) are chosen from two lists: o 1. Registered voters list
o 2. Licensed driver list
∙ Process of selecting the jury members
o Voir dire “speak the truth”. An examination that allows attorneys to find out more about these potential jurors. They want to aim for a group of jurors that will be fair. A lengthy process.
The jurors should have no preconceived perception of who should win or lose
They should have no bias or prejudice to a certain party.
They should not have significant knowledge of the case yet.
They should not be related or connected to one of the parties.
o Jurors can be removed from perspective list by PEREMPTORY CHALLENGE. This is when a perspective juror gives the lawyer correct answers about being fair and not having a bias BUT, for some reason (that the lawyer is not obligated to share) something didn’t seem right about the juror for the case. If you want to learn more check out privilege-disadvantage dialectic
The perspective juror may have subtly communicated something to the lawyer that they felt might hurt their client.
∙ It could be something in the language they used, something in
If you want to learn more check out yvette is trying to persuade her sister dakota. yvette wants dakota to let her borrow her favorite dress. yvette tells a heartrending tale about how she doesn’t have a suitable dress, and she’ll feel so lonely if she has to miss the school dance. yvette’s
particular they said, tone of voice, posture or other nonverbal
communications.
Lawyers cannot exclude jurors based on gender or race.
∙ Example: If the case was about a rape, they can’t say they don’t If you want to learn more check out ∙ What is psychosocial health?
want women on the jury.
On the other hand jurors can be excluded if they are somehow related to a group.
∙ For example; if a women is married to a police officer and the case
involves police, she may be excluded for that reason.
∙ After the jury is selected the attorneys give opening statements
o These opening statements may inform the jury of what they will encounter and the significance of it.
o Attorneys also might admit that their client has done some stupid things, but they ask the jury to keep an open mind until they have heard all the evidence. Sometimes that is used so that the jury doesn’t jump to conclusions. The other party’s attorney might jump on those stupid things right away, so it kind of serves as a warning and reminder.
∙ The purpose of the trial is to determine what happened using EVIDENCE. o The basic rules of evidence. (Goal of these rules is to have information that is submitted be reliable, credible, relevant and fair. The judge or magistrate ultimately decide what evidence is submitted to the jury) Don't forget about the age old question of art 111 cal poly
The best evidence rule
∙ Means just that. Original documents, not copies.
Privileged Communications Rule this pertains to witnesses who have confidential information. Basically, if one of these people are put on the stand and asked questions that would release any confidential information, the person is not allowed to say anything, and is protected by this rule. Relationships this includes:
∙ 1. Attorney/Client relationship: this allows the client to tell the
attorney EVERYTHING they need to know, and the attorney If you want to learn more check out abnormal psychology final exam study guide
cannot share info unless disclosed by the client, even after the case
is closed. Created because clients would not tell attorney
everything for fear that they might go talk about it. This rule does
not allow that to happen.
∙ 2. Doctor/Patient relationship: A doctor has to know exactly
what happened in order to treat the patient. Everything the patient
says is confidential, any statements made by the patient to the
doctor is privileged information.
∙ 3. Priest/Parishioner: could be for any religion. Parishioner
cleanses themselves by confessing wrongdoings. This
communication is also confidential and cannot be released.
∙ 4. Husband/Wife: this confidentiality is only found in SOME
states, NOT including Ohio.
Leading question rule
∙ A leading question is when an attorney suggests an answer by
the demeanor of the question.
∙ This is prohibited. Attorney is not able to do that.
∙ However, if they do, but the other party’s attorney does not bring it to the attention of the courtroom, then the info is still received by
the jury.
∙ The attorneys are kind of like the “referees” for the
courtroom. They make objections and they must let the judge If you want to learn more check out fi 321 textbook notes
know of any violations that the other is making.
Hearsay evidence
∙ Evidence that a person did not actually receive directly.
∙ Exception:
o Statements made by the party themselves. Generally it is
allowed for a witness to say “this party said this”.
∙ Witnesses
o Brought into the court
sub poena(court order compelling) or sub poena duces tecum(medical report/physical evidence)
o If a witness does not show up
Attorney’s job to get the evidence there. They are the ones who should have gotten witnesses there using sub poena or sub poena duces tecum. Just asking a witness to show up is not enough.
∙ Direct examinations
o Attorneys asks questions directly to witnesses.
o The witness is either directed to answer the question or not based on rules of evidence
o Trying to prove that the other party is responsible.
∙ Cross examinations
o The defendant’s attorney tries to prove opposite of what was proved in the direct examination.
o “Attack” the plaintiff.
o Tries to make witness look bad/unreliable.
∙ Redirect
o Back to plaintiff attorney who rehabilitates the witness if need be and explains the witness better
∙ Back to a cross examination then done for that witness.
∙ This continues until all the witnesses have gone and all the evidence has been presented. ∙ Plaintiff rests case.
o At this point the defendant can ask for directed verdict by the judge. Judge can rule that the defendant won.
o This usually happens when and if the plaintiff just did not have a good case or weak evidence. It’s like in baseball when the other team has so many runs that it’s just pointless to keep going. If there is no evidence against the defendant, judge will just end it.
o If the defendant rests the case then both parties can ask for directed verdict. If plaintiff rests case then only defendant can ask for directed verdict. (mostly used in criminal cases)
∙ If the court does not grant a directed verdict then trial moves on. Lawyers put together proposed legal instructions.
∙ Judge reads these instructions to the jury and then the jury hears the closing statements by each attorney.
∙ Jury then makes a decision on the basis of the information provided at the trial. This decision is made in private away from the court room, judge, and attorneys. ∙ Once the jury comes to a decision they read it in open court to everyone and then the judge will release them. There are two types of decisions a jury can come to: o A general verdict: the jury agrees that the plaintiff was injured (or won the case) and names the amount of damages that they think the plaintiff should receive. Or no award at all.
o A special verdict: an attorney may request that the jury answer specific questions. Questions that need to be liberated. For example, if it was about a car crash, did the truck go left of center? Or other specific questions they want answered. Was one party more at fault than the other? What percentage were they at fault? The jury will also decide amount of damages here as well.
∙ After the jury is dismissed, does not mean trial is over. The judge can be asked to alter the determination of the jury.
o The changing of the jury verdict
Concept of remitturdefendant asks judge to reduce money damages awarded. Judge agrees with the verdict but not the amount.
Concept of additory plaintiff wins but amount too low. Allows the judge to increase the amount of award. Only in some states! NOT in Ohio.
Motion for a new trial if some fraud by one of the parties or attorneys occurs. Ability for one of them to convince the judge that it was unfair and that the trial needs to be restarted.
∙ The two primary parts of a litigation
o Winning the “easy” part
o Collecting on winnings the difficult part
The loser will have a lot of animosity and be very upset and angry
Many people are uncollectable or have no assets to give.
∙ Once a judgement has been made usually the winning party will have to file a second lawsuit to collect their winnings.
∙ Enforcing a judgement
o Procedures in obtaining the winnings from the losing individual
Garnishment The individual’s employer is joined as a third party. They are ordered to withhold money from the individual’s wages and send into the court. Usually about 25% from each paycheck.
Attachment of bank accounts if the defendant has a bank account the bank is brought in as third party. The bank is ordered to give the money in the individual’s bank account to the courts.
Execution (NO not the death penalty!) Personal property will be ceased by the sheriff and sold and proceeds will go to the court.
Foreclosure against real estate if the individual owns property, foreclosed ∙ Other ways to address a litigation
o Negotiations can take place before during or after, process of persuading someone to do what you want them to do
Styles of negotations
∙ Avoiding
∙ Accomodating
∙ Competing
∙ Collaborating
∙ Compromising (hardest to demonstrate)
Two Methods of negotitating
∙ 1. Positional negotiation parties begin by stating what their
expectations are. They work to try and bargain with one another to
come to an agreement on what they should do.
∙ 2. Principled Negotiation concentration on 7 elements to remove
barreiers created by positional negotiating.
o 1. Communication
o 2. Relationship
o 3. Interests
o 4. Options
o 5. Legitimacy
o 6. Alternatives
o 7. Commitment
o Mediation a mediator involved that facilitates the party to come to a settlement Used because
∙ 1. Parties retain control over when to settle
∙ 2. Costs less. There is no presentation of evidence which reduces
the role of a lawyer.
∙ 3. Reduction of the legal system governing the process
The Process
∙ Mediator’s intro and explanation
∙ Parties’ opening statements
∙ The exchange between parties (negotiation)
∙ Think of possible options or solutions
∙ The agreement which is written and signed
∙ Private sessions which are optional at mediator’s discretion
o Arbitration an expertise on a particular subject is brought in to decide merits of dispute. They are called the arbitrator.
Private proceeding, no public record
Substitute for litigation
The parties will authorize an arbitrator to make a decision and resolve the dispute.
FIN 26074001 THE LEGAL ENVIRONMENT OF BUSINESS Lecture 5 Notes (9/30) Side note: There was a lot of information this week!!!
*Most cases are resolved before the trial even takes place*
The Trial
∙ A trial by jury must be requested when individual first approaches the court with an issue. o Criminal cases:
If it is a misdemeanor then the defendant has a very limited time to request a jury.
If it is a felony the defendant has to waive their right for a jury trial.
∙ Potential jury members (primarily for civil cases) are chosen from two lists: o 1. Registered voters list
o 2. Licensed driver list
∙ Process of selecting the jury members
o Voir dire “speak the truth”. An examination that allows attorneys to find out more about these potential jurors. They want to aim for a group of jurors that will be fair. A lengthy process.
The jurors should have no preconceived perception of who should win or lose
They should have no bias or prejudice to a certain party.
They should not have significant knowledge of the case yet.
They should not be related or connected to one of the parties.
o Jurors can be removed from perspective list by PEREMPTORY CHALLENGE. This is when a perspective juror gives the lawyer correct answers about being fair and not having a bias BUT, for some reason (that the lawyer is not obligated to share) something didn’t seem right about the juror for the case.
The perspective juror may have subtly communicated something to the lawyer that they felt might hurt their client.
∙ It could be something in the language they used, something in
particular they said, tone of voice, posture or other nonverbal
communications.
Lawyers cannot exclude jurors based on gender or race.
∙ Example: If the case was about a rape, they can’t say they don’t
want women on the jury.
On the other hand jurors can be excluded if they are somehow related to a group.
∙ For example; if a women is married to a police officer and the case
involves police, she may be excluded for that reason.
∙ After the jury is selected the attorneys give opening statements
o These opening statements may inform the jury of what they will encounter and the significance of it.
o Attorneys also might admit that their client has done some stupid things, but they ask the jury to keep an open mind until they have heard all the evidence. Sometimes that is used so that the jury doesn’t jump to conclusions. The other party’s attorney might jump on those stupid things right away, so it kind of serves as a warning and reminder.
∙ The purpose of the trial is to determine what happened using EVIDENCE. o The basic rules of evidence. (Goal of these rules is to have information that is submitted be reliable, credible, relevant and fair. The judge or magistrate ultimately decide what evidence is submitted to the jury)
The best evidence rule
∙ Means just that. Original documents, not copies.
Privileged Communications Rule this pertains to witnesses who have confidential information. Basically, if one of these people are put on the stand and asked questions that would release any confidential information, the person is not allowed to say anything, and is protected by this rule. Relationships this includes:
∙ 1. Attorney/Client relationship: this allows the client to tell the
attorney EVERYTHING they need to know, and the attorney
cannot share info unless disclosed by the client, even after the case
is closed. Created because clients would not tell attorney
everything for fear that they might go talk about it. This rule does
not allow that to happen.
∙ 2. Doctor/Patient relationship: A doctor has to know exactly
what happened in order to treat the patient. Everything the patient
says is confidential, any statements made by the patient to the
doctor is privileged information.
∙ 3. Priest/Parishioner: could be for any religion. Parishioner
cleanses themselves by confessing wrongdoings. This
communication is also confidential and cannot be released.
∙ 4. Husband/Wife: this confidentiality is only found in SOME
states, NOT including Ohio.
Leading question rule
∙ A leading question is when an attorney suggests an answer by
the demeanor of the question.
∙ This is prohibited. Attorney is not able to do that.
∙ However, if they do, but the other party’s attorney does not bring it to the attention of the courtroom, then the info is still received by
the jury.
∙ The attorneys are kind of like the “referees” for the
courtroom. They make objections and they must let the judge
know of any violations that the other is making.
Hearsay evidence
∙ Evidence that a person did not actually receive directly.
∙ Exception:
o Statements made by the party themselves. Generally it is
allowed for a witness to say “this party said this”.
∙ Witnesses
o Brought into the court
sub poena(court order compelling) or sub poena duces tecum(medical report/physical evidence)
o If a witness does not show up
Attorney’s job to get the evidence there. They are the ones who should have gotten witnesses there using sub poena or sub poena duces tecum. Just asking a witness to show up is not enough.
∙ Direct examinations
o Attorneys asks questions directly to witnesses.
o The witness is either directed to answer the question or not based on rules of evidence
o Trying to prove that the other party is responsible.
∙ Cross examinations
o The defendant’s attorney tries to prove opposite of what was proved in the direct examination.
o “Attack” the plaintiff.
o Tries to make witness look bad/unreliable.
∙ Redirect
o Back to plaintiff attorney who rehabilitates the witness if need be and explains the witness better
∙ Back to a cross examination then done for that witness.
∙ This continues until all the witnesses have gone and all the evidence has been presented. ∙ Plaintiff rests case.
o At this point the defendant can ask for directed verdict by the judge. Judge can rule that the defendant won.
o This usually happens when and if the plaintiff just did not have a good case or weak evidence. It’s like in baseball when the other team has so many runs that it’s just pointless to keep going. If there is no evidence against the defendant, judge will just end it.
o If the defendant rests the case then both parties can ask for directed verdict. If plaintiff rests case then only defendant can ask for directed verdict. (mostly used in criminal cases)
∙ If the court does not grant a directed verdict then trial moves on. Lawyers put together proposed legal instructions.
∙ Judge reads these instructions to the jury and then the jury hears the closing statements by each attorney.
∙ Jury then makes a decision on the basis of the information provided at the trial. This decision is made in private away from the court room, judge, and attorneys. ∙ Once the jury comes to a decision they read it in open court to everyone and then the judge will release them. There are two types of decisions a jury can come to: o A general verdict: the jury agrees that the plaintiff was injured (or won the case) and names the amount of damages that they think the plaintiff should receive. Or no award at all.
o A special verdict: an attorney may request that the jury answer specific questions. Questions that need to be liberated. For example, if it was about a car crash, did the truck go left of center? Or other specific questions they want answered. Was one party more at fault than the other? What percentage were they at fault? The jury will also decide amount of damages here as well.
∙ After the jury is dismissed, does not mean trial is over. The judge can be asked to alter the determination of the jury.
o The changing of the jury verdict
Concept of remitturdefendant asks judge to reduce money damages awarded. Judge agrees with the verdict but not the amount.
Concept of additory plaintiff wins but amount too low. Allows the judge to increase the amount of award. Only in some states! NOT in Ohio.
Motion for a new trial if some fraud by one of the parties or attorneys occurs. Ability for one of them to convince the judge that it was unfair and that the trial needs to be restarted.
∙ The two primary parts of a litigation
o Winning the “easy” part
o Collecting on winnings the difficult part
The loser will have a lot of animosity and be very upset and angry
Many people are uncollectable or have no assets to give.
∙ Once a judgement has been made usually the winning party will have to file a second lawsuit to collect their winnings.
∙ Enforcing a judgement
o Procedures in obtaining the winnings from the losing individual
Garnishment The individual’s employer is joined as a third party. They are ordered to withhold money from the individual’s wages and send into the court. Usually about 25% from each paycheck.
Attachment of bank accounts if the defendant has a bank account the bank is brought in as third party. The bank is ordered to give the money in the individual’s bank account to the courts.
Execution (NO not the death penalty!) Personal property will be ceased by the sheriff and sold and proceeds will go to the court.
Foreclosure against real estate if the individual owns property, foreclosed ∙ Other ways to address a litigation
o Negotiations can take place before during or after, process of persuading someone to do what you want them to do
Styles of negotations
∙ Avoiding
∙ Accomodating
∙ Competing
∙ Collaborating
∙ Compromising (hardest to demonstrate)
Two Methods of negotitating
∙ 1. Positional negotiation parties begin by stating what their
expectations are. They work to try and bargain with one another to
come to an agreement on what they should do.
∙ 2. Principled Negotiation concentration on 7 elements to remove
barreiers created by positional negotiating.
o 1. Communication
o 2. Relationship
o 3. Interests
o 4. Options
o 5. Legitimacy
o 6. Alternatives
o 7. Commitment
o Mediation a mediator involved that facilitates the party to come to a settlement Used because
∙ 1. Parties retain control over when to settle
∙ 2. Costs less. There is no presentation of evidence which reduces
the role of a lawyer.
∙ 3. Reduction of the legal system governing the process
The Process
∙ Mediator’s intro and explanation
∙ Parties’ opening statements
∙ The exchange between parties (negotiation)
∙ Think of possible options or solutions
∙ The agreement which is written and signed
∙ Private sessions which are optional at mediator’s discretion
o Arbitration an expertise on a particular subject is brought in to decide merits of dispute. They are called the arbitrator.
Private proceeding, no public record
Substitute for litigation
The parties will authorize an arbitrator to make a decision and resolve the dispute.