Week 5 lecture notes (9/30)
Week 5 lecture notes (9/30) FIN - 26074 - 001
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This 6 page Class Notes was uploaded by Olivia Zemanek on Thursday October 1, 2015. The Class Notes belongs to FIN - 26074 - 001 at Kent State University taught by Timothy D Ludick (P) in Summer 2015. Since its upload, it has received 232 views. For similar materials see LEGAL ENVIRONMENT OF BUSINESS in Finance at Kent State University.
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Date Created: 10/01/15
FIN 26074001 THE LEGAL ENVIRONMENT OF BUSINESS Lecture 5 Notes 930 Side note There was a lot of information this week Most cases are resolved before the trial even takes place The Trial 0 A trial by jury must be requested when individual first approaches the court with an issue 0 Criminal cases I If it is a misdemeanor then the defendant has a very limited time to request a jury I If it is a felony the defendant has to waive their right for a jury trial 0 Potential jury members primarily for civil cases are chosen from two lists 0 1 Registered voters list 0 2 Licensed driver list I Process of selecting the jury members 0 Voir dire speak the truth An examination that allows attorneys to find out more about these potential jurors They want to aim for a group of jurors that will be fair A lengthy process I The jurors should have no preconceived perception of who should win or lose I They should have no bias or prejudice to a certain party I They should not have significant knowledge of the case yet I They should not be related or connected to one of the parties 0 Jurors can be removed from perspective list by PEREMPTORY CHALLENGE I This is when a perspective juror gives the lawyer correct answers about being fair and not having a bias BUT for some reason that the lawyer is not obligated to share something didn t seem right about the juror for the case I The perspective juror may have subtly communicated something to the lawyer that they felt might hurt their client I It could be something in the language they used something in particular they said tone of voice posture or other nonverbal communications I Lawyers cannot exclude jurors based on gender or race 0 Example If the case was about a rape they can t say they don t want women on the jury I On the other hand jurors can be excluded if they are somehow related to a group I For example if a women is married to a police officer and the case involves police she may be excluded for that reason 0 After the jury is selected the attorneys give opening statements 0 These opening statements may inform the jury of what they will encounter and the significance of it 0 Attorneys also might admit that their client has done some stupid things but they ask the jury to keep an open mind until they have heard all the evidence I Sometimes that is used so that the jury doesn t jump to conclusions The other party s attorney might jump on those stupid things right away so it kind of serves as a warning and reminder 0 The purpose of the trial is to determine what happened using EVIDENCE O The basic rules of evidence Goal of these rules is to have information that is submitted be reliable credible relevant and fair The judge or magistrate ultimately decide what evidence is submitted to the jury I The best evidence rule Means just that Original documents not copies I Privileged Communications Rule this pertains to witnesses who have confidential information Basically if one of these people are put on the stand and asked questions that would release any confidential information the person is not allowed to say anything and is protected by this rule Relationships this includes 1 AttorneyClient relationship this allows the client to tell the attorney EVERYTHING they need to know and the attorney cannot share info unless disclosed by the client even after the case is closed Created because clients would not tell attorney everything for fear that they might go talk about it This rule does not allow that to happen 2 DoctorPatient relationship A doctor has to know exactly what happened in order to treat the patient Everything the patient says is confidential any statements made by the patient to the doctor is privileged information 3 PriestParishioner could be for any religion Parishioner cleanses themselves by confessing wrongdoings This communication is also confidential and cannot be released 4 HusbandWife this confidentiality is only found in SOME states NOT including Ohio I Leading question rule A leading question is when an attorney suggests an answer by the demeanor of the question This is prohibited Attorney is not able to do that However if they do but the other party s attorney does not bring it to the attention of the courtroom then the info is still received by the jury O The attorneys are kind of like the referees for the courtroom They make objections and they must let the judge know of any violations that the other is making I Hearsay evidence 0 Evidence that a person did not actually receive directly 0 Exception O Statements made by the party themselves Generally it is allowed for a witness to say this party said this 0 Witnesses 0 Brought into the court I sub poenacourt order compelling or sub poena duces tecummedical reportphysical evidence 0 If a witness does not show up I Attorney s job to get the evidence there They are the ones who should have gotten witnesses there using sub poena or sub poena duces tecum Just asking a witness to show up is not enough 0 Direct examinations O Attorneys asks questions directly to Witnesses O The witness is either directed to answer the question or not based on rules of evidence 0 Trying to prove that the other party is responsible 0 Cross examinations O The defendant s attorney tries to prove opposite of what was proved in the direct examination 0 Attack the plaintiff O Tries to make witness look badunreliable 0 Redirect 0 Back to plaintiff attorney who rehabilitates the witness if need be and explains the Witness better 0 Back to a cross examination then done for that witness 0 This continues until all the witnesses have gone and all the evidence has been presented 0 Plaintiff rests case 0 At this point the defendant can ask for directed verdict by the judge Judge can rule that the defendant won 0 This usually happens when and if the plaintiff just did not have a good case or weak evidence It s like in baseball when the other team has so many runs that it s just pointless to keep going If there is no evidence against the defendant judge will just end it 0 If the defendant rests the case then both parties can ask for directed verdict If plaintiff rests case then only defendant can ask for directed verdict mostly used in criminal cases 0 If the court does not grant a directed verdict then trial moves on Lawyers put together proposed legal instructions 0 Judge reads these instructions to the jury and then the jury hears the closing statements by each attorney 0 Jury then makes a decision on the basis of the information provided at the trial This decision is made in private away from the court room judge and attorneys 0 Once the jury comes to a decision they read it in open court to everyone and then the judge will release them There are two types of decisions a jury can come to O A general verdict the jury agrees that the plaintiff was injured or won the case and names the amount of damages that they think the plaintiff should receive Or no award at all 0 A special verdict an attorney may request that the jury answer specific questions Questions that need to be liberated For example if it was about a car crash did the truck go left of center Or other specific questions they want answered Was one party more at fault than the other What percentage were they at fault The jury will also decide amount of damages here as well 0 After the jury is dismissed does not mean trial is over The judge can be asked to alter the determination of the jury 0 The changing of the jury verdict l Concept of remitturdefendant asks judge to reduce money damages awarded Judge agrees with the verdict but not the amount I Concept of additory plaintiff wins but amount too low Allows the judge to increase the amount of award Only in some states NOT in Ohio I Motion for a new trial if some fraud by one of the parties or attorneys occurs Ability for one of them to convince the judge that it was unfair and that the trial needs to be restarted O The two primary parts of a litigation 0 Winning the easy part 0 Collecting on winnings the difficult part I The loser will have a lot of animosity and be very upset and angry I Many people are uncollectable or have no assets to give 0 Once a judgement has been made usually the winning party will have to file a second lawsuit to collect their winnings O Enforcing a judgement 0 Procedures in obtaining the winnings from the losing individual 39 Garnishment The individual s employer is joined as a third party They are ordered to withhold money from the individual s wages and send into the court Usually about 25 from each paycheck l Attachment of bank accounts if the defendant has a bank account the bank is brought in as third party The bank is ordered to give the money in the individual s bank account to the courts I Execution NO not the death penalty Personal property will be ceased by the sheriff and sold and proceeds will go to the court I Foreclosure against real estate if the individual owns property foreclosed 0 Other ways to address a litigation 0 Negotiations can take place before during or after process of persuading someone to do what you want them to do I Styles of negotations Avoiding Accomodating Competing Collaborating Compromising hardest to demonstrate I Two Methods of negotitating 1 Positional negotiation parties begin by stating what their expectations are They work to try and bargain with one another to come to an agreement on what they should do 2 Principled Negotiation concentration on 7 elements to remove barreiers created by positional negotiating O 1 Communication 2 Relationship 3 Interests 4 Options 5 Legitimacy 6 Alternatives 0 7 Commitment 00000 O Mediation a mediator involved that facilitates the party to come to a settlement I Used because 1 Parties retain control over when to settle 2 Costs less There is no presentation of evidence which reduces the role of a lawyer 3 Reduction of the legal system governing the process I The Process Mediator s intro and explanation Parties opening statements The exchange between parties negotiation Think of possible options or solutions The agreement which is written and signed Private sessions which are optional at mediator s discretion 0 Arbitration an expertise on a particular subject is brought in to decide merits of dispute They are called the arbitrator I Private proceeding no public record I Substitute for litigation I The parties Will authorize an arbitrator to make a decision and resolve the dispute
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