LGS 200, Module 1 Chapter 2 Notes
LGS 200, Module 1 Chapter 2 Notes LGS 200
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This 7 page Class Notes was uploaded by okvincent on Friday August 26, 2016. The Class Notes belongs to LGS 200 at University of Alabama - Tuscaloosa taught by Charlye S. Adams in Fall 2016. Since its upload, it has received 6 views. For similar materials see Legal Environment of Buisness in Business at University of Alabama - Tuscaloosa.
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Date Created: 08/26/16
1 LGS 200007 Module 1 Notes Chapter 2 1. Judiciary’s role in American govt a. Judicial review i. Established in Marbury vs. Madison (1803) where Chief Marshall wrote: 1. “It is emphatically the province and duty of the judiciary to say what the law is…” 2. Judiciary interprets laws of the land 3. If you have a state law that contradicts the Constitution we look to the court system (not the congress). b. Basic Judicial Requirements i. Jurisdiction 1. “Juris” (law) 2. “Diction” (to speak) 3. The power of a court to hear a dispute and to “speak the law” and render a verdict that is legally binding on the parties to the dispute 4. Jurisdiction over persons or property a. In Personam(person) b. In rem(property) c. Long arm statutes d. Jurisdiction over subject matter e. In personam jurisdiction: gives court power to compel the presence of the parties to appear before the court and litigate (look at parties). Book DefinitionCourt jurisdiction over the “person” involved in a legal action; personal jurisdiction. i. Plaintiff vs. defendant. 1. A resident of Tuscaloosa County files a law suit against another Tuscaloosa county resident to Tuscaloosa county circuit court. Tuscaloosa country has jurisdiction over that case. 2. Change factsWhat if the defendant is not from Tuscaloosa County? The case can be thrown out because Tuscaloosa doesn’t have jurisdiction over the case anymore. f. In Rem jurisdiction jurisdiction and power of the court to decide issues related to property situated within its geographical borders (look at property). Book DefinitionCourt jurisdiction over a defendant’s property. i. Plaintiff from Ttown vs. defendant from Orange county FL fighting over a boat located in Bay county FL 1. The court in Bay County FL has jurisdiction 2 g. LongArm Statutes: courts use longarm statutes for non resident parties based on “minimum contacts” with state. Book definitionA state statute that permits a state to obtain personal jurisdiction over nonresident defendants. A defendant must have “minimum contacts” with that state for the statute to apply. i. Est by the International Shoe Co. v. State of Washington (1945). ii. The Shoe Company said that because they were from Missouri they shouldn’t have to pay taxes Washington. The Supreme Court had to decide because Shoe Co. said Washington didn’t have jurisdiction over the case. The Shoe Company lost the case and ended up having to pay taxes to Washington. iii. Corporate Contactscorporation advertises or sells products within a state, or places its goods into the “stream of commerce” There are sufficient minimum contacts in that state to be under their jurisdiction and to pay taxes. 5. Jurisdiction over Subject Matter a. Limitation on the types of cases the courts can hear, usually determined by federal or state statutes. b. General (unlimited) and limited jurisdiction courts i. Usually defined by statute or constitution that created the court. ii. Limited JurisdictionDrug court, Traffic court, Probate court, Family Court(divorces, adoption, etc), Municipal Court(traffic tickets, violation of city ordinances, etc), District Courtsmaller cases (Public intoxication, fine less than $10,000), Federal courtBankruptcy/ tax cases. iii. General(unlimited) Jurisdiction courtsDistrict Court(case starts here) on the Federal side(voting, diversity of citizenship, etc), Circuit Court of Appeals, US Supreme Court(case ends). State sidecircuit court(start here), circuit court of appeals, state supreme court(end). c. Original or Appellate Jurisdiction i. Courts of original jurisdiction is where the case started (trial). Usually District Courtswhere evidence is presented and testimonies are made. Other Ex. Federal district trial court, Statecircuit trial court and limited district court. ii. Courts of appellate jurisdiction have the power to hear an appeal from another court (supreme court/state, circuit of appeals). No new evidence, new trial, etc. 6. Jurisdiction of the Federal courts 3 a. Federal Question cases b. Diversity of Citizenship cases c. “Federal Question” cases in which the rights or obligations of a party are created or defined by some federal law, treaty, etc. d. “Diversity” of citizenship cases occur when: i. The lawsuit is between residents of (1)different states, (2) a foreign country and citizens of more than one states, or (3) citizens of a state and citizens or subjects of a foreign country AND ii. The amount in controversy is greater than $75,000. iii. Remember two different states(plaintiff vs. defendant) and amount in controversy is greater than $75,000. Once the case is heard in federal court there is no going back. rd 7. Mala v. Crown Bay Marina, Inc. U.S Court of Appeals, 3 Circuit (2013). 8. Exclusive vs. Concurrent Jurisdiction a. Federal and state courts have exclusive jurisdiction over certain types of cases. b. Book definition of exclusive jurisdictionJurisdiction that exists when a case can be heard only in a particular court or type of court, such as a federal court or a state court. c. State Courts may have concurrent jurisdiction. d. Exclusive State Jurisdictioncases involving all matters not subject to federal jurisdictionEx. Divorce and adoption cases. e. Concurrent Jurisdictioncases involving federal questions and diversity of citizenship cases. Book definitionJurisdiction that exists when two different courts have the power to hear a case. For example, some cases can be heard in either a federal or a state court. f. Exclusive Federal JurisdictionCases involving federal crimes, federal antitrust law, bankruptcy, patents, copyrights, trademarks, suits against the United States, some areas of admiralty law, and certain other matters in federal statutes. Cannot be heard in state courts. 9. Jurisdiction in Cyberspace a. “Sliding Scale” Standard. When does a court have jurisdiction? b. Three Different types of Contacts i. Substantial business over the internet ii. Some interactivity through a website iii. Passive advertising c. International Jurisdiction issues i. Because the internet is global there are fundamental issues in international transactions. ii. Gucci America, Inc. V. Wang Huoqing, Northern district of California (2011). U.S. District Court exercised 4 jurisdiction over Chinese defendant who advertised and sold goods over the internet. ii. Venue 1. Venue is concerned with the most appropriate location of the trial 2. Generally, proper venue is whether the injury occurred. 3. Ex. Lease with apartments usually include this. 4. Book DefinitionThe geographical district in which an action is tried and from which the jury is selected. iii. Standing to Sue 1. A party must have “standing” to bring a lawsuit. 2. Book DefinitionThe requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. The plaintiff must demonstrate that he or she either has been injured or has been threatened with injury. 3. Elements to prove standing a. Harm b. Causation c. Remedy 4. Ex. A, B, and C have a car accident. B is the only one that suffered injury and damage to car. B is the only one that has standing to sue. If B is a minor, next of kin has standing to sue(parent/guardian). Money would go to trust fund for benefit of child or estate. c. State Court Systems i. Trial Courts 1. Limited Jurisdiction a. Municipal Courts b. District/Small Claims Courts c. Probate Courts d. Drug Courts 2. General Jurisdiction a. Civil b. Criminal 3. Appellate, or Reviewing, Courts a. Make decisions based on questions of law, not fact. b. Can either affirm (uphold) or reverse (overturn) lower court’s opinion. c. No new information/evidence is viewed, just reviews case to see if law was upheld. ii. Highest state courts 1. Each state has at least one Supreme Court. 2. Decisions are final, only when federal issues involved can U.S. Supreme Court overturn. d. Federal Court System i. U.S. District Courts 1. Trial courts in the federal system. 2. Today there are ninetyfour judicial districts. ii. U.S. Court of Appeal 5 1. Thirteen U.S. Circtht Courts of Appeals. 2. Alabama s the 11 circuit iii. United States Supreme Court 1. The two most fundamental ways to have your case heard in a supreme court are: a. State Courts: Appeals of Right b. U.S. Supreme Court: By Writ of Certiorari i. Writ of Certiorariconformation from Supreme court saying they will hear your case. Book DefinitionA writ from a higher court asking the lower court for the record of a case. e. Judicial Procedures: Following a State Court Case i. American courts follow the ‘adversarial’ system of justice. ii. Procedural Rules. iii. Stages of Litigation: pretrial, trial, and posttrial. iv. Consulting with an Attorney 1. Will discuss expectations of the case, probability of success, time and cost estimates, advantages/disadvantages of a particular court. 2. Types of Attorneys’ Fees. a. Fixed rate or not fixed(hourly) rate b. Hourly ratethe attorney WILL bill you for whatever amount of time they spend speaking with you whether it be in person or via email/phone call. Usually charge in six minute increments. c. Contingency fees i. If you win your case you have to pay lawyers a fixed rate plus a percentage of your rewards. ii. If you lose your case you don’t have to pay anything 3. Settlement Considerations. v. PreTrial: The Pleadings. 1. Plaintiff’s Complaint (you have to say if you want a jury trial or a bench trialwhere the judge decides). 2. Service of Process. a. Method of Service: can be personal or publishing in the newspaper. b. Waiver of Formal/Service. 3. Defendant’s answer a. This is to admit or deny all of the allegations made against them. b. They have 30 days to file an answer. c. If no answer is filed within 30 days, the plaintiff automatically wins the case. vi. PreTrial: Dismissals and Judgements before Trial. 1. Motion: procedural legal request ruled on by judge. Book DefinitionA procedural request or application presented by an attorney to the court on behalf of a client. 2. PreTrial Motions a. Motion to Dismissthe plaintiff’s claim is not backed up by the law. Book DefinitionA pleading in which a defendant asserts 6 that the plaintiff’s claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed. b. Motion for Judgement on the Pleadings i. Not fighting over the factswhen you apply the law, the law favors me, and therefore I should automatically win the case ii. Book DefinitionA motion by either party to a lawsuit at the close of the pleadings requesting the court to decide the issue solely on the pleadings without proceeding to trial. The motion will be granted only if no facts are in dispute iii. Cannot use evidence. Only pleadings and other documents from the court. c. Motion for Summary Judgement i. Not fighting over the factswhen you apply the law, the law favors me, and therefore I should automatically win the case. ii. Book DefinitionA motion requesting the court to enter a judgment without proceeding to trial. The motion can be based on evidence outside the pleadings and will be granted only if no facts are in dispute iii. Can use evidence vii. PreTrial: Motion to Dismiss 1. If the court grants a motion to dismiss, generally the lawsuit is over 2. Espresso Disposition Corp. 1 V. Santan Sales and Marketing Group, Inc. (2013). viii. Discovery 1. Depositions and Interrogatories(written questionsmax of 40) a. DespositionsThe testimony of a party to a lawsuit or a witness taken under oath before a trial. b. InterrogatoriesA series of written questions for which written answers are prepared and then signed under oath by a party to a lawsuit, usually with the assistance of the party’s attorney. Max of 40 questions. 2. Request for Documents(Ex. Hospital malpractice cases) 3. Requests for Admission 4. Electronic Discovery a. Ediscovery procedures b. Advantages and Disadvantages ix. PreTrial Conference 1. Informal discussion between the judge and opposing counsel a. Explore the possibility of a settlement, or b. Identify the real issues in dispute, and plan the course of the trial. x. Jury Selection 1. Trials can be with or without a jury (bench trial) 7 2. Voir Dire (“to see, to speak”) the process in which the attorneys question prospective jurors to determine whether they are biased or have any connection with a party to the action or with a prospective witness. 3. Either attorney can ‘challenge’ a juror and ask they not be sworn in as juror 4. In Alabama there is a 12 panel jury with 2 alternates. xi. At the Trial 1. Opening arguments(summary of what is going to be proved) 2. Plaintiff’s Case in Chief a. Direct(plaintiff questions their own witness to establish character/credibility), cross(defendant questions witness based on what was asked during the direct examination to try to discredit witness), redirect, recross examination of the Plaintiff’s witnesses. b. For direct examination the witness already knows the questions they are going to be asked. 3. Defense Motion for a Directed Verdict 4. Defense Case in Chief a. Direct, cross, redirect and recross examination of the Plaintiff’s witnesses. 5. At the Trial a. Closing Arguments and Awards. 6. Posttrial Motions a. Deliberation by jury b. Motion for New Trial(jurors were biased) c. Motion for J.N.O.V(Jury got it wrong) 7. The Appeal a. Filing the Appealparties file briefs pointing out (or opposing) reversible error that require reversal of the trial court’s verdict. b. Appellate Reviewcourts do not consider new evidence. Only consider briefs and evidence presented at trial. c. Appeal to a Higher Courtwrit of certiorari 8. Enforcing the Judgement a. Writ of Executiondirects sheriff to seize defendant’s non exempt property (or belongings they can live without) and sell them to pay for judgement. b. Availability of Assets: usually a plaintiff looks to see if the defendant has sufficient assets before the suit is filed.
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