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BLAW 203 Ch 3-4

by: Cailin Notetaker

BLAW 203 Ch 3-4 BLAW 203 - 01

Cailin Notetaker
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About this Document

These notes pick up where the previous notes end and start half way through chapter 3 and end at the end of chapter 4. Hope this helps!
Legal Environment of Business
Daniel V. Davidson
Class Notes
business, Law




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This 7 page Class Notes was uploaded by Cailin Notetaker on Tuesday February 2, 2016. The Class Notes belongs to BLAW 203 - 01 at Radford University taught by Daniel V. Davidson in Fall 2015. Since its upload, it has received 23 views. For similar materials see Legal Environment of Business in Business Law at Radford University.


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Date Created: 02/02/16
Chapter 3 – The U.S. Legal System and Court Jurisdiction cont.… Jurisdiction * If a case does not include subject matter jurisdiction, jurisdiction over the defendant, AND venue, then the court will not hear it. *  In Rem Jurisdiction exists when the court has authority over property or “status of the defendant that is located within the control of the court”. - Land, marriage, or a partnership - In Personam Jurisdiction over the defendant always exists in his/her state of residence  Jurisdiction over the defendant is the obligation of the court to come to a judgment that the defendant must be bound to.  Quasi in Rem Jurisdiction is when the court determines the rights of particular persons to specific property. - The court obtains control of the property through on of two methods 1. The property is within the jurisdiction of the court, and the plaintiff wishes to resolve issues of ownership, possession, or use of the property (ex. Foreclosing a mortgage). 2. The dispute does not concern the property, but is personal to the plaintiff. (ex. Breach of contract or commission of a tort) * Attachment: seizure of the defendant’s property * Garnishment: Procedure to obtain possession of the defendant’s property when it is in the custody of another person * Long arm jurisdiction is when a court has jurisdiction over the defendant even if they live in a different state (wherever the situation occurred) ( more common in tort law) - Example: Mary Jane has an accident in Florida but does not get caught and leaves to go back to her home in Virginia. Florida has jurisdiction over her due to the fact that the accident happened in Florida and she was involved. - Example: You’re selling a product in Virginia and you ship something to Orlando. The product is bad and the purchaser sues you. The plaintiff could call for long arm jurisdiction and the court could have jurisdiction over you even if you have never set foot in Florida. * The defendant must have sufficient “minimum contacts” with the state in order for the court to assert long arm jurisdiction * The claim must be based on the minimum contacts * * The assertion of the jurisdiction must be reasonable * Service of Process  The plaintiff must have the defendant properly served with process to inform him or her of the lawsuit. - Actual notice : the defendant is personally served by an officer of the court or can be mailed by a registered mail system. - Constructive service : When actual notice cannot be arranged, notice may be served publically.  In certain cases, more than one court may exercise jurisdiction (concurrent jurisdiction) Venue  “The proper geographical area or distinct where a suit can be bought”  Why would you want a venue change? - To create a larger, better jury pool  Choice of laws is the selection of which jurisdiction’s laws should be applied to a particular incident, that it, what laws should govern the subject before the court. * The more press and media there in within a criminal case, the more likely a request is to have a change of venue * Federal Jurisdiction  Federal questions are questions that pertain to the Constitution, statutes of the United States, regulations of federal administrative agencies, and treaties signed by the U.S.  Diversity of citizenship exists when the plaintiff is a citizen of one state and the defendant is a citizen of another; it also exists when one party is a foreign country and the other is a citizen of a state. - Why is diversity used? Because back in the day people identified themselves through their state first and their country second. It is used to level the playing field between the plaintiff and the defendant.  Plaintiff viewpoint rule is when the courts look to the amount the plaintiff, acting in good faith, claims to be in dispute ($$$).  Complete diversity requires that no plaintiff be a citizen of the same state as any of the defendants. The Federal Court System  What is limited jurisdiction? - A type of jurisdiction that specific courts have. For example: The court of military appeals, the court of international trade, and the tax court.  Most federal judges are nominated by the president, confirmed by the Senate, and are allowed to serve for their entire life from then on during “good behavior”  In case you were unaware, we have thirteen circuits in the U.S.  Courts of appeals do not retry the case. They review the record to determine if the court before (trial court) made any errors in how they handled the law. - The decision of these circuit courts of appeals are final. The Supreme Court  The Supreme Court is more likely to hear a case when one of the following happens: 1. Whenever the highest state court declares a federal law invalid. 2. If the highest state court validates a law that is challenged based on federal law. 3. When a federal court declares a federal statute unconstitutional and the government was a party to the suit. 4. If a federal appellate court call a state statute invalid on the grounds that it violates federal law 5. Whenever a federal three-judge court rules in a civil case involving an equitable solution.  Certiorari means “to be more fully informed”  The Supreme Court is allowed to hear any case under certiorari.  Original jurisdiction, when the Supreme Court exercises it, means they are allowed to serve as a trial court. - “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.” State Courts  States have what is referred to as inferior trial courts. - These can include municipal courts, juvenile courts, domestic relations courts, traffic courts, small claims courts, probate courts, and justice courts presided over by justices of peace. - These courts are not courts of record – meaning they make no record or transcript of the trial.  More significant cases originate in courts of general jurisdiction meaning courts having unlimited or almost unlimited trial jurisdiction in civil and criminal cases. Chapter 4 – Dispute Resolution  Litigation, taking a dispute to court in seeking resolution (SHOULD BE THE LAST RESORT!) - In litigation, you are not making the decisions, your lawyer is. - It’s confrontational - It takes a very long time (could take years)  Alternative dispute resolution includes a bunch of methods of resolving disputes other than traditional litigation. - Trials are costly and adversarial.  Negotiation (when two parties sit down and attempt to talk it out). Not binding, practically no cost  Mediation (when a third person steps in. Works 80% of the time). Should never suggest a solution, should only lead the parties to come to a solution together.  Problem: Not many people care what the other side or what the third person has to say about the situation.  Arbitration (creates a much more formal and rd binding decision). A 3 person who acts more like a judge, decides which party should prevail. Arbitrators are typically experts in the specific topic that you are disputing.  A class action lawsuit is a lawsuit that involves a group of plaintiffs or defendants who are in the same or similar situation.  The federal Class Action Fairness Act makes it easier to bring class action suits in district court under diversity jurisdiction.  Here are the requirements: 1. The total amount in controversy is greater than $5 million 2. The putative class contains at least 100 members 3. There must be minimal diversity  Minimal diversity means that one plaintiff and one defendant must have diverse citizenship  The complaint is the plaintiff’s first pleading (it informs the defendant that he or she is being sued) ((first step of the process)) * Attorneys are licensed at the state level and not the Pro se means county level * appearing in one’s own behalf - Once licensed, the attorney can practice anywhere within the state’s jurisdiction. * Anything you admit while responding to the complaint doesn’t have to be proven in court * - Pleading stage is everything filed before the pre-trial - The plaintiff has the burden of proof in a civil case Filing a Suit  The Court of Common Pleas is what some states call a trial court with general jurisdiction.  Prothonotary is the title used in some states to designate the chief clerk of courts.  Summons is something that demands an action and is a way of notifying the person named that he/she needs to appear in court in order to answer the complaint. (the second step of the process)  Interrogatories are questions that are sent to the defendant and the defendant either has to answer under oath or has to go to a judge to deny.  Default judgment is a judgment in default of the defendant’s appearance (if the defendant does not show then the default judgment would be in the plaintiffs favor)  Default judgments are valid in civil cases only if the court has proper jurisdiction (including jurisdiction over the defendant, and that the defendant has been properly served)  Discovery is a term that applies to a group of specific methods used to find information and to narrow the issues to be decided during the trial.  Interrogatories (are questions that are sent to the defendant and the defendant either has to answer under oath or has to go to a judge to deny.)  Subpoenas asking for submission of documents and things  Medical Exams  Request for Admissions - Discovery often encourages both parties to come to a resolution. (Final stage before going to court) - A deposition is the swearing of witnesses, who will answer questions that will then be recorded and signs the document at the end. - Preserves testimony and makes sure that a witness cannot lie or change his/her story.  When records are electronic, they are called electronically stored information (ESI).  92% of information created is stored electronically The Trial  At trial, the very first step is selecting a jury  The jury is only an advisory opinion, the judge may overrule the verdict through a judgment N.O.V. if What is the burden of proof that the he/she thinks the verdict is in error plaintiff must satisfy in order to (only civil trials NOT criminal) prevail?  Beyond a reasonable doubt is only used Preponderance of the evidence (Res Judicada) in criminal cases (double jeopardy)  Clear and convincing evidence is sometimes used in administrating proceedings.


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