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Business Law Week 2 Notes

by: Emily Green

Business Law Week 2 Notes BL 2413

Marketplace > Mississippi State University > Business Law > BL 2413 > Business Law Week 2 Notes
Emily Green
GPA 3.44

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About this Document

These cover chapters 2 and 3 covered in class
Legal Envt Business
Stephanie Mallette
Class Notes
Legal Environment of business, business law
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This 6 page Class Notes was uploaded by Emily Green on Wednesday January 27, 2016. The Class Notes belongs to BL 2413 at Mississippi State University taught by Stephanie Mallette in Summer 2015. Since its upload, it has received 63 views. For similar materials see Legal Envt Business in Business Law at Mississippi State University.

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Date Created: 01/27/16
Chapter 2 Courts and Alternative Dispute Resolution • Judiciary's Role in American Government ◦ Judicial Review was established by the U.S. Supreme Court in Marbury vs Madison (1803) ‣ "It is emphatically the province and duty of the judiciary to say what the law is..." - Chief Justice Marshall ‣ shortly after the U.S. Constitution • Basic Judicial Requirements ◦ Jurisdiction (to speak the law) ‣ the power of a court to hear a dispute and to speak the law in controversy ‣ there isn't one true jurisdiction ‣ has to be power and authority of the court to hear this ‣ over persons • power of court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate ‣ over property • a court has power to decide issues relating to property, whether the property is real, personal, tangible or intangible • a court generally has in rem jurisdiction over any property situated within its geographical borders ◦ as long as you have a reason you can have power over that property ‣ long arm statutes • allow you to reach out, get a defendant from another state, pull them to your state, and have jurisdiction ◦ they must have some sort of connection in the state you're bringing them to ‣ corporate contacts • courts use same principles as for a natural person • minimum contacts ◦ Subject Matter Jurisdiction ‣ General and Limited Jurisdiction • Statutory limitation on the types of cases a court can hear, usually determined by federal or state statutes (probate, bankruptcy) • concurrent jurisdiction ◦ two courts have jurisdiction at one time • exclusive ◦ only one court has jurisdiction ◦ very little exclusive federal jurisdiction • original jurisdiction ◦ where the case started ◦ litigates the case • appellate jurisdiction ◦ have the power to hear an appeal from another court ‣ Federal Jurisdiction • "Federal Question" cases ◦ rights or obligations of a party are created or defined by some federal law ◦ CANNOT be in Federal Court WITHOUT a Federal Question • Diversity of Citizenship ◦ parties are not from the same state ◦ the amount in controversy is estimated greater than $75,000 ‣ Jurisdiction in Cyberspace • courts use a "sliding scale" standards to determine whether to exercise jurisdiction • it's difficult to explain technology to courts • passive websites don't typically have jurisdiction • substantial business interactions do have jurisdiction on the sliding scale ◦ Venue ‣ concerned with the most appropriate location for the trial ‣ proper venue is where the injury occurred ‣ NOT jurisdiction ◦ Standing to Sue ‣ a party must have suffered a legal injury and have a sufficient "stake" in the controversy • you must have a reason to sue, you can't just be mad or angry • if a case resolves itself before it can go to court, there is no standing • State and Federal Court Systems ◦ Federal ‣ more streamlined ‣ much less litigations ‣ U.S. District Court goes into Circuit Courts of Appeals which goes into U.S. Supreme Court ◦ State ‣ Municipal and Justice Court • go into County Court ◦ County Court and District Court go into Court of Appeals ‣ Court of Appeals goes into Supreme Court and Circuit Criminal Appeals ‣ if you do not like your results in the State Supreme Court, you can file a Federal Question ‣ trial courts • general jurisdiction • "courts of record" (with court reporters) • usually have jurisdiction over both civil and criminal cases ‣ limited jurisdiction courts • small claims courts ◦ informal, inferior courts with limited amounts in controversy (usually about $5,000) ‣ Appellate or Reviewing Courts • review trail courts proceedings to determine whether the trial was according to the procedural and substantive rules of law • usually only hear questions of law, not fact (usually determined by juries) • 13 districts • Mississippi is in the fifth district ‣ U.S. Supreme Court • hears cases in its discretion ◦ must grant a Writ of Certiorari for Court to hear a case ‣ the order, setting a case for hearing ◦ lawyers must file petitions for Writ of Certiorari • Alternative Dispute Resolution ◦ trials are expensive and can take months Chapter 3 Court Procedures • American and English court systems follow the adversarial system of justice • each client is represented by an attorney although a client is allowed to represent herself • Procedural Rules ◦ trails involve "due process" which requires adequate notice and a fair and impartial hearing ◦ all civl trials in federal court are governed by the Federal Rules of Civil Procedure ◦ stages of litigation • consulting an attorney ◦ generally the first step ◦ types of attorneys' fees ‣ hourly fee ‣ contingent fee • the lawyer pays for losing • you pay for winning ‣ flat fee • most criminal defense ◦ settlement considerations ‣ pretrial • Plaintiff's Complaint ◦ court acquires jurisdiction over subject matter and Plaintiff ◦ includes facts ◦ includes a prayer for Court Relief • Pleadings ◦ service of process ‣ Plaintiff serves Defendant with Complaint and Summons ‣ Default Judgment for Plaintiff, if Defendant does not Answer • if someone sends you a lawsuit and you don't answer, they get exactly what they want- default judgment (the judge rules that the Plaintiff automatically wins) ◦ method of service ‣ usually by sheriff or private process server • a copy of the complaint and summons personally delivered ‣ if defendant cannot be reached, "Notice by Publication" is allowed in local newspaper of record ‣ corporate defendants served via Registered Agent • if the defendant is out-of-state, court can acquire jurisdiction by "long-arm" statutes ◦ waiver of service ‣ if the defendant is already aware, their lawyer can waive service of process ◦ defendant's response ‣ CHECK POWERPOINT ‣ makes General Denial ‣ may move for Change of Venue ‣ may allege Affirmative Defenses ‣ may assert Counterclaims against Plaintiff ‣ affirmative defense • burden is on defendant to introduce proof ‣ counterclaims • defendant sues plaintiff, the plaintiff must answer • dismissals and pre-trial judgments ◦ many lawsuits never go to trial ◦ perhaps there is a settlement ◦ perhaps the case was dismissed ‣ very few civil cases actually go to trial ‣ motion to dismiss • either party can ask the court to dismiss the case if the pleadings fail to show a legal claim ‣ motion for judgment on the pleadings, where the court decides ‣ motion for summary judgment, where there is no genuine issue of material fact • asks a court to grant a judgment for moving party without a trial • facts are viewed in the light most favorable to the other party • admissible evidence is submitted: affidavits, documents, contracts, emails • discovery ◦ process by which parties obtain information from the opposing party prior to trial ◦ depositions ‣ sworn testimony recorded and transcribed by court official (court reporter) ‣ only go badly for people trying to lie or manipulate the truth • hedging • "I participated in the armed robbery but I was just the lookout" ‣ watch the movie "A Few Good Men" ◦ interrogatories ‣ written questions and answers under oath ‣ "please list all witnesses that could talk about this case and what you think they would say" ◦ requests for admissions ‣ admission is considered a "fact" for trail ‣ "please admit that on Sunday April 12th 2013, the temperature in Starkville was 75 degrees" ◦ requests for documents, objects, and entry upon land ‣ medical bills, transactions, etc ◦ requests for examination • pretrial conference ◦ after discovery is completed meeting with the trial judge ◦ explore possibility of settlement or identify issues that are in dispute for jury to consider • jury trial ◦ right to jury trial is guaranteed by Seventh Amendment to U.S. constitution ◦ selection ‣ judges can choose if they want jurors by driver's licenses or registered voters ‣ voir dire • attorneys can ask venirs (jurors) questions to see if they will be biased • defense and prosecution may have different opinions on what their venirs should be familiar with, have opinions of, etc. ‣ jurors can be dismissed peremptorily (no reason or bias) • 12 strikes for life or death cases, 6 strikes for other cases ◦ you can dismiss this many jurors ‣ trial • opening statements • rules of evidence ◦ the judge decides what evidence is admissible for jury's consideration ◦ evidence must be relevant to the issues (tends to prove or disprove) ‣ if it is a sex case, the attorney can't introduce the sexual history ‣ to prove rape in the past, an attorney would have to prove that the girl was of good character and morals • examination of witnesses ◦ expert witnesses provide specialized knowledge and opinions to assist the jurors in deciding the issues ‣ one attorney may have a witness come in to say that a doctor is negligent, the other attorney may have a witness to come say the opposite, and then the jury must pick which witness they believe • motion for directed verdict ◦ at the conclution of the plaintiff's case ◦ the court looks at evidence in favorable light (without bias) to the defendant • defendant's evidence ◦ the plaintiff can 'rebut' the evidence and the defense can state 'rejoinders' ◦ (the plaintiff can say that the defendant's evidence is false and defense can argue that it is true evidence that can be used) • closing arguments, jury instructions, and verdict ◦ after both sides are presented, the attorneys make closing statements ‣ they each summarize the facts and evidence of why they should win their case in a compelling way for the jury to "pick their side" ◦ jury instructions ‣ criminal cases • the burden of proof is "beyond reasonable doubt" and the verdict must be unanimous • if not, it could be claimed as a mistrial/hung jury ‣ civil cases • generaly burden of proof is by "preponderance" of the evidence and a majority of jurors must agree on verdict • if not, it could be claimed as a mistrial/hung jury ◦ verdict ‣ this reflects the jury's findings and liability • for example, if the defendant is found guilty, the jury will say so ‣ jury can award money damages in a civil case, or prison in criminal case • they decide the outcome of the defendant ‣ dismissal after this verdict ‣ post trial • after the jury reaches a verdict, either party can make a post trial motion ◦ motion for New Trial: they judge will grant this motion only if they jury was in error (if they obviously didn't consider the facts and made a bad verdict) ◦ motion for J.N.O.V. ‣ the judge can overrule the jury's decision and reverse or change their verdict • the judge uses his/her own verdict in place of the jury's ‣ granted only if the jury's verdict was unreasonable and erroneous ◦ the appeal ‣ the appellant files a brief that contains a short statement of the facts, issues, rulings by the trial court, grounds to reverse the judgment, applicable law and arguments on Appellant's behalf ‣ appellate review • appeals court can affirm (agree with) or reverse (disagree with) the lower court's decision ◦ the supreme court can substitute their opinion with the ruling of the lower court (the court that saw the case before them)


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