Chris Carr's Lecture Notes for Module 1
Chris Carr's Lecture Notes for Module 1 BUS 207
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This 7 page Class Notes was uploaded by flautist02 Notetaker on Friday April 15, 2016. The Class Notes belongs to BUS 207 at California Polytechnic State University San Luis Obispo taught by Professor Carr in Spring 2016. Since its upload, it has received 26 views. For similar materials see Business Law in Business at California Polytechnic State University San Luis Obispo.
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Date Created: 04/15/16
Bus Law Lecture 1-6-16 For Tests 1. Right scantron 2. 3x5 notecard 3. ID Anatomy of a Civil Business Case Importance o Highly likely to be involved in litigation someday o Enables you to make informed and educated decisions as a business person about legal issues as they relate to your business o Enables you to more effectively “bargain in the shadow of the law” o You can bitch about it See pages 7-14 of UR textbook (study bible) for vocab o Natural Law (it depends) – law should be all commands of a recognized political authority which are not unjust Unjust law is not law and should not be enforced Advantage: protects the underdog Disadvantage: Free-for-all and a lot of disagreement o Legal Positivism (Command/Ruling Class Law/Theory) – command of a recognized political authority Law is law, just or not Advantage: promotes stability and predictability Disadvantage: what if a corrupt authority enacts it? o Legal Realism (realistic) – law should be what public decision-makers (judges) actually do Law in action is more important than law in book Advantage: more “real world” and most practical Disadvantage: even in this school there is disagreement regarding relationship between law and morality and the duty to obey the law Speed limit example The Common Law o Statutory law The Dispute Pyramid See pages 15-176 of UR textbook o Also note the chaptery study/master outline (study bible) at pages 15-19, 109-112 and 147-150 1. Step one – Selection of Legal Counsel a. Options: are they “Trusted Counselor” or “Legal Technician?” i. Telephone book ii. Friends/Family/Colleague Referrals iii. Local Bar Association iv. Internet/Firm Websites v. Martindale-Hubbell Law Directory – polyratings for lawyers (pages 23-31 of UR Textbook) vi. AVVO (super new, VC funded) – online version of Martindale-Hubbell 1. You start off at a 6.8 b. See Pages 23-29 of UR Textbook i. Brobeck, Phleger and Harrison LLP ii. Brobeck Partners (See Page 24 and 28) c. A San Luis Obispo Law Firm (See Page 31 UR Textbook) i. Fitzpatrick and Barbieri David Boies 60 Minutes Video d. Complex corporate litigation e. Doesn’t eat red stuff f. Lost Supreme Court Decision for Al Gore g. Looks like a history teacher h. Has dyslexia i. Speaks without notes j. Hooked up with his professor’s wife…so he left Northwestern and got into Yale k. Has his own firm and can pick his clients l. Not above using cynical legal tactics to win – snake m. Conservative litigators who hates to take risks in the courtroom but loves to shoot craps n. Likes ice cream o. Had 3 wives p. Competitive – hates to lose 2. Step 2 – Preparation, filing and service of the summons and complaint a. Purpose of the complaint (pages 35-36) – to give the defendant notice of the plaintiff’s allegations and it attempts to define and limit the scope of the lawsuit i. Say what pissed you off b. See Page 33 for an example of the complaint 3. Step 3 – Preparation and Filing of the Answer by the Defendant a. See Page 37 b. Important Deadlines Re: The Filing of the Answer i. State Court – 30 days from the date of service of the summons and complaint ii. Federal Court – 20 days from the date of service of the summons and complaint iii. Watch out for the default judgement issue (See page 39-42) iv. Note that the defendant files his/her counter claim/cross-complaint at the same time he/she files their answer c. Excerpt from Insurance Policy i. Conditions of Coverage and Duties of the Insured after a loss 1. Give prompt notice to us or our agent 2. Notify the police in case of loss by theft 3. Protect the property from further damage 4. Step 4 – Preliminary Motions to Dismiss the Case a. Motion to dismiss – the defendant asks for a motion to dismiss i. The demurrer – motion that says everything the plaintiff says is true, however, the law provides no remedy to the plaintiff (ugly man idea) ii. Motion for judgment on the pleadings 1. These motions are safety valves checks in the system to weed out cases that should not be there 5. Step 5 – Discovery a. It is where we are trying to find out facts, docs, and evidence that supports the other side’s claims and defenses b. Purpose: i. This is to pin them down so they can’t change their reasoning ii. Size-up opponent iii. Preserve testimony in case a witness dies c. Tools i. Interrogatories – written questions 1. See Pages 43-48 ii. Request for production of documents (P. 50) 1. Any and all docs, writings, or other written memo reflecting any services you performed for the plaintiff 2. Any and all writings, docs, or other written memos regarding any payment you received for any work you performed for the plaintiff 3. True and correct copies of any and all files you maintained regarding the plaintiff… iii. Request for physical and/or mental examination iv. Deposition – oral questions and answers under oath transcribed by a court reporter 1. Criminal case – pleading the 5 cannot be used against you 2. Civil case – pleading the 5 can look very bad for you v. Subpoena (only for 3 party) – can get stuff from 3 rd party 6. Step 6 – later pretrial motion filed by the Plaintiff or Defendant a. Motion for summary judgment (a “trial by paper”) i. Motion doesn’t pass much at this point b. Another safety valve/check in system 7. Step 7 – Pretrial Conference/Hearing a. Usually entails a mandatory (court-ordered) settlement conference with/between parties b. Judge gives his two-sense on what to do 8. Trial a. Stages: i. Choice of a jury trial or bench trial ii. Jury selection = voire dire 1. Peremptory challenges – gets to excuse someone for any reason (each lawyer gets 6) iii. Opening statement of the plaintiffs attorney iv. Opening statement of the defendant’s attorney v. Presentation of the plaintiff’s case vi. Presentation of the defendant’s case vii. Rebuttal witnesses viii. Closing argument for the plaintiff ix. Closing argument for the defendant 1. Motion for directed verdict – asks for the judge to direct a verdict for the defense (20% success) x. Closing argument in response for the plaintiff xi. Judge’s instruction to the jury (only in jury trials) xii. Deliberations by the jury, or, if a judge/bench trial then by judge 1. 9/12 in a civil case 2. Criminal – unanimous xiii. Announcement of verdict Preponderance of the evidence (civil case) – evidence on one side has more convincing force than that opposed to it Beyond a reasonable doubt (criminal case) – you are absolutely sure the defense is guilty 9. Trial and Post Trial Motions (after the verdict is rendered) a. Motion for judgment notwithstanding the verdict (JNOV) – states that the jury is wrong and the judge gives the other verdict b. Motion for a new trial – either party can make, but usually made by loser i. Last safety valves/check 10. Step 10 – Appeal – options available to an appellate court: affirm in whole or in part, reverse in whole or in part, remand back to the court, etc a. Appellate court called 9 circuit in sf 11. Step 11 – Enforcing the Judgment/Collection a. Writ of execution – allows sheriff to seize and sell property owned by the defendant b. Garnishment – allows sheriff to seize property, money or wages due and owing to the defendant but in the hands of a third party, and then give it to the plaintiff Why is it important for you to learn about our state and federal court systems and the judges that make up those systems? Will help you better understand what is happening, why, and make good/wise decisions about your case It will help you better and more effectively “bargain in the shadow of the law” See page 109-112 of UR textbook Calfornia Courts and Judges – Pages 125-133 How does one become a federal judge? Nominated by President Must be confirmed by 2/3 of the Senate If you make through, then you are appointed for life Civil Jury Trial – (the 6-9-12 rule) civil jury = 12, plaintiff must get 9 of them to agree/vote with them, and attorneys each get 6 peremptory challenges to disqualify a person from the jury for any reason State Court System Small claims court -> municipal court -> superior trial courts -> Intermediate Appellate Court (2 nd district appeal court in Ventura) -> Supreme Court Municipal courts – up to $25,000 Superior trial courts – can hear ANY dollar amount, but usually $25,000 1. Civil division 2. Criminal division 3. Probate dvision 4. Juvenile division 5. Domestic relations division o Slower, more expensive o More formal Small Claims Court Video - $10,000 for individuals and $5,000 for corp o Individuals argue for themselves o Same burdens of proof as a higher court State Court Jurisdiction Subject matter jurisdiction to hear the case and Either o In personam (personal) jurisdiction over the parties of the case Based on where you live Long Arm Statutes California’s Long Arm Statute A court may exercise personal jurisdiction over any non- California resident who in person or through an agent: 1. Transacts any business within the state/contracts anywhere to supply goods/services in the state 2. Commits a tortuous act within the state 3. Commits a tortuous act outside the state causing injury to person/property within the State of California if he Regularly does/solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used/consumed/services rendered in California or Expects/should reasonably expect the act to have consequences in California and derives substantial revenue from interstate/international commerce 4. Owns, uses, or possesses any real property situated within the state Federal Court System Specialty Courts -> Federal Districts Courts -> Federal Courts of Appeal -> US Supreme Court Federal Court Jurisdiction o Subject matter jurisdiction to hear the case based on 1 of two things Diversity jurisdiction – where the suit is between citizens of a different state and the amount of controversy exceeds $75,000 Federal question jurisdiction – where the case “arises under” federal law such as under the US Constitution, a federal treaty, a federal statute, etc o and, like a state court, the federal court must have in personam (personal) jurisdiction over the parties in the case The Supreme Court Justice Scalia o Orginalism – determining the Constitution like our fore- fathers o Does not believe in The Living Constitution (one that adapts) Active judges believe this theory o People really hate him o Suspected of handing the election to Bush Ginsberg – a good friend of Scalias o Believes that the Constitution strives for a better America o You have to separate people and their ideas when you work with a multi-panel ADR (Arbitration, Mediation, Summary Jury Trial, Rent-a-judge, Minitrial) Questions to Ask when Selecting an ADR o How concerned are you about keeping costs low? o How quickly do you want to resolve the dispute? o Do you want to keep the dispute private? o Do you want to protect the relationship between the disputing parties? o Are you concerned about vindication or justice? o Do you want to set a precedent with the resolution of your dispute ADR video – look at notes Page 149-150 Purported – arguable
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