Law 322 Week 2 Notes
Law 322 Week 2 Notes LAW 3220
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This 8 page Class Notes was uploaded by Stephanie Notetaker on Tuesday January 12, 2016. The Class Notes belongs to LAW 3220 at Clemson University taught by Edward R. Claggett in Fall 2015. Since its upload, it has received 48 views. For similar materials see Legal Environment of Business in Law and Legal Studies at Clemson University.
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Date Created: 01/12/16
Law 322 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 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 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 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 counter claim • Its common for the defendant to admit or deny the complaint in the answer ▯ Discovery Stage • Designed to: 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 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 • 1 -‐ 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 3 judge says that he agrees party A wins but for a different reason rd o Dissenting opinion-‐ the 3 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 st • 1 -‐ arbitration o Two parties agree to use a neutral 3 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 • 2 -‐mediation rd o Used a neutral 3 party called a mediator o Subject matter expert, usually resolving labor disputes o Totally voluntary, no binding mediation rd • 3 -‐ 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 ▯ 1 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 ▯ 2 -‐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 ▯ 3 -‐the judicial system, created the supreme court • All criminal tries you have a right to a jury unless its an impeachment trial ▯ 4 -‐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 th ▯ 5 -‐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 ▯ 6 -‐makes it clear the U.S constitution is the supreme law in the united states ▯ 7 -‐method for ratifying the constitution o Bill of Rights (in the constitution) first 10 amendments ▯ 1 -‐ freedom of religion, press, and speech ▯ 2 -‐ 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) ▯ 3 -‐ no soldier can be quartered in your house without your consent th ▯ 4 -‐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 • 5 -‐ you can’t be compelled to testify against yourself in a criminal trial, does not apply to businesses (no 5 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 • 6 -‐ in all criminal prosecutions you have the right to a trial th • 7 -‐ 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 • 8 -‐ no excessive bail or fines shall be imposed, no cruel or unusual punishment th • 9 -‐ what we have given you are the rights we think are important, there are other rights • 10 -‐ if we haven’t given exclusive power to the federal government then states have power to play • 11 -‐the laws of the United States do not control if there is a dispute on foreigners th • 12 -‐ deals with the electoral college • ***13 -‐abolished involuntary servitude o Congress continued to pass legislations to go along with this • 14 -‐ deals with due process and equal protection o Due process-‐ says follow the rules and follow the process o Equal protection-‐ treat people equally • 15 , 19 , 24 , 26 –all dealing with voting rights th o 15 -‐no person shall be denied the right to vote because of race, religion, etc. o 19 -‐no person shall be denied the right to vote based on sex (gave women the right to vote) o 24 -‐no person shall be denied the right to vote for failure to pay a poll tax o 26 -‐ any resident or citizen 18 years or older has the right to vote • 16 -‐ congress has the power to levy and collect taxes on income • 17 -‐ clarifies the senate, each state has 2 senators • 18 -‐ prohibition amendment, the only amendment ever repealed • 20 -‐ administrative, when the terms of president begin and end st th • 21 -‐ refined 18 amendment, sales of intoxicating liquors is now legal • 22 -‐ no person can serve more than 2 terms as President • 23 -‐ district of Columbia can vote for President • 25 -‐ if president gets sick, VP takes over th • 27 -‐ 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 5 th amendment protection o #11-‐ Due process
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