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| Legal compliance is a moral minimum. |
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| Looks at consequences or outcome of an action and the action that produces the greatest good for the greatest number of people is the appropriately ethically act. |
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| 3 Step Application for Outcome Based Ethics |
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Definition
1. Who will be affected?
2. Cost-benefit analysis
3. Choose alternative that produces the greatest good |
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| Human beings have a duty to act in accordance with universal, ethical, and moral based principles without regard to the consequences. |
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| Rules are announced in court decision. Courts of law and courts of equity. American courts |
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| Rules are announced in court decisions. Common law tradition: American law based on early English common law system. Common law system had courts of law and courts of equity. American courts combined these. |
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| Award money or property as compensation for injury or loss. |
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| Legal means to enforce right or redress a wrong. Today the remedy at law normally takes the form of monetary damages (an amount given to a party whose legal interests have been injured). |
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| Award is non-monetary relief; based on performance. Remedies in equity/equitable remedies include: specific performance (ordering a party to perform an agreement as promised), injunction (ordering a party to ease engaging in an activity or to undo some wrong or injury), and rescission (the cancellation of a contractual obligation). |
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| Latin for "to stand on decided cases." The practice of deciding new cases with reference to former decisions, or precedents. Judges are obligated to follow the precedents established within their jurisdictions. |
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| Two characteristics of stare decisis |
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Definition
1. Decisions made by a higher court are binding in lower courts.
2. A court should not overturn its own precedents unless there is a compelling reason to do so. |
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| Why Stare Decisis is important |
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| The doctrine helps the courts to be more efficient because if other courts have carefully analyzed a similar case, their legal reasoning and opinions can serve as guides. Makes the law more stable and predictable. |
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| Spells out the rights and duties that exist between persons and between persons and their governments, as well as the relief available when a person's rights are violated. |
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| Is concerned with wrongs committed against the public as a whole. Criminal acts are defined and prohibited by state, local, or federal government statutes. Criminal defendants are thus prosecuted by public officials, state, not by their victims or other private parties. |
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| Consists of all laws that delineate the methods of enforcing the rights established by substantive law. |
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| Consists of laws that define, describe, regulate, and create legal rights and obligations. |
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| US Constitution prevails over federal statutes over state constitution over state statutes over local ordinances over administrative rules over common law. |
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| One of the oldest and most significant schools of legal thought. Those who believe in natural law hold that there is a universal law applicable to all human beings. This law is discoverable through a reason and is of a higher order than positive (national) law. |
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| A school of legal thought centered on the assumption that there is no law higher than the laws created by the government. Laws must be obeyed, even if they are unjust, to prevent anarchy. |
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| A school of legal thought that stresses the evolutionary nature of law and looks to doctrines that have withstood the passage of times for guidance in shaping present laws. |
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| A school of legal thought that advocates a less abstract and more realistic and pragmatic approach to the law and takes into account customary practices and the circumstances surrounding the particular transaction. Legal realism strongly influenced the growth of the sociological school of jurisprudence, which views law as a tool for promoting social justice. |
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| A court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place within the state. Must demonstrate that court has minimum contacts to justify jurisdiction. |
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| State courts that handle only matters relating to the transfer of a person's assets and obligations after that person's death, including issues relating to the custody and guardianship of children. An example of federal court limited to subject-matter jurisdiction is bankruptcy court. |
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| Example would be probate court |
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| General (unlimited) Jurisdiction |
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| Can decide cases involving a broad array of issues. An example is a state trial court or a federal district court. |
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| Courts of Original Jurisdiction |
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Definition
| Courts in which lawsuits begin, trials take place, and evidence is presented. Courts of first instance. In the federal court system, the district courts are trial courts. |
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| Courts of Appellate Jurisdiction |
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Definition
| Act as reviewing courts, or appellate courts. In general, cases can be brought before appellate courts only on appeal from an order or a judgment of a trial court or other lower court. Original and appellate courts differ by whether or not it is the first time a case is being heard. |
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| Whenever a plaintiff's cause of action is based, at least in part, on the US Constitution, a treaty, or federal |
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| Applies whenever a federal court has jurisdiction over a case that doesn't involve a question of federal law. |
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| Most Common Type of Diversity Jurisdiction 2 Requirements |
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Definition
1. The plaintiff and defendant must be residents of different states, and
2. The dollar amount in controversy must exceed $75,000. |
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| When both federal and state courts have the power to hear a case. |
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| When cases can be tried only in federal courts or only in state courts. Examples: Federal crimes, bankruptcy, and most patent and copyright claims; in suits against the US; and in some areas of admiralty laws. State ex: divorce and adoption |
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| Concerned with the most appropriate location for a trial. |
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| To have standing, a party must have a legally protected and tangible interest at stake in the litigation. |
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| The controversy must be real and substantial, as opposed to hypothetical or academic. |
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Term
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Definition
1. Local trial courts of limited jurisdiction
2. State trial courts of general jurisdiction
3. State courts of appeals/intermediate appellate courts
4. The state's highest court (often called the state supreme court) |
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| Trial ct w/ general jurisdiction |
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| County, district, superior, or circuit |
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| Trial ct w/ limited jurisdiction |
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| Often called special inferior trial courts or minor judiciary courts. Small claims courts only hear civil cases involving claims of less than a certain amount. |
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| Panel of 3 or more judges review the record of the case on appeal. Question of law rather than question of fact. |
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| Deals with what really happened in regard to the dispute being tried |
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| Concerns the application of law. |
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| An order issued by the Supreme Court to a lower court requiring the latter to send it to the record of the case for review. The Court will not issue a writ unless at least four of the nine justices approve of it. (Rule of Four) |
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| A process in which the parties attempt to settle their dispute informally, with or without attorneys to represent them. |
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| A neutral third party acts as a mediator and works with both sides in the dispute to facilitate a resolution |
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| An arbitrator hears a dispute and imposes a resolution on the parties. This is different from other ADR in that the arbitrator makes a decision. Usually the decision is legally binding. |
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| Frequently included by parties in a contract. Specifies that any dispute arising under the contract will be resolved through arbitration rather than through the court system. |
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| Early Neutral Case Evaluation |
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Definition
| The parties elect a neutral third party (generally an expert in the subject matter of the dispute) to evaluate their respective positions. |
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Definition
| Each party's attorney briefly argues the party's case before the other and a panel of representatives from each side who have the authority to settle the dispute. The adviser renders an opinion as to how the court would likely decide the issue. |
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| The parties present their arguments and evidence and the jury renders a verdict. The verdict is not binding, but it does act as a guide. |
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| American Arbitration Association |
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| Major provider of ADR services, founded in 1926 |
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| Online dispute resolution (ODR) |
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Definition
| Many times have to do with domain names |
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Term
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Definition
| The complaint and the answer taken together. They inform each party of the other's claims and specify the issues involved in the case. |
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| Contains a statement alleging (1) the facts showing that the court has subject-matter and personal jurisdiction, (2) the facts establishing the plaintiff's basis for relief, and (3) the remedy the plaintiff is seeking. |
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| Formally notifying the defendant of a lawsuit. |
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| A notice requiring the defendant to appear and court and answer the complaint to the defendant. |
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| Awarded the damages alleged in plaintiff's complaint because the other party failed to respond to the allegations. |
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| The defendant either admits or denies each of the allegations in the plaintiff's complaint and may also set forth defenses to those allegations. |
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| Defendant can admit to the truth of the plaintiff's complaint but raise new facts to show that he or she should not be held liable for damages. |
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| Defendant could deny the allegations and set forth their own claim. |
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| A procedural request submitted to the court by an attorney on behalf of his or her client. |
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Definition
| Motion to dismiss, motion for judgment on the pleadings, and the motion for summary judgment. |
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| Motion normally filed by the defendant in which the defendant asks the court to dismiss the case for a specified reason, such as improper service, lack of personal jurisdiction, or the plaintiff's failure to state a claim for which relief can be granted. |
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| A motion filed by the defendant in which the defendant asks the court to strike (delete) certain paragraphs from the complaint. Motions to strike help to clarify the underlying issue that forms the basis for the complaint by removing paragraphs that are redundant or irrelevant to the action. |
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Term
| Motion to Make More Definite and Certain |
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Definition
| A motion filed by the defendant to compel the plaintiff to clarify the basis of the plaintiff's cause of action. The motion is filed when the defendant believes that the complaint is too vague or ambiguous for the defendant to respond to it in a meaningful way. |
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Term
| Motion for Judgment on the Pleadings |
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Definition
| A motion that may be filed by either party in which the party asks the ourt to enter a judgment in his or her favor based on information contained in the pleadings. A judgment on the pleadings will be made only if there are no facts in dispute and the only question is how the law applies to a set of undisputed facts. |
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| Motion to Compel Discovery |
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Definition
| A motion that may be filed by either party in which the party asks the court to compel the other party to comply with a discovery request. If a party refuses to allow the opponent to inspect and copy certain documents, for example, the party requesting the documents may make a motion to compel production of those documents. |
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| Motion for Summary Judgment |
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Definition
| A motion that may be filed by either party in which the party asks the court to enter judgment in his or her favor without a trial. Unlike a motion for judgment on the pleadings, a motion for summary judgment can be supported by evidence outside the pleadings, such as witnesses' affidavits, answers to interrogatories, and other evidence obtained prior to or during discovery. |
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| Sworn statements by parties or witnesses |
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| The process of obtaining information from the opposing party or from witnesses prior to the trial |
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| A sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official. |
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| Written questions for which written answers are prepared and then signed under oath. Directed to a party to the lawsuit, not to a witness, and the party usually has thirty days to prepare answers. |
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| Consists of all computer generated or electronically recorded information, such as e-mail, voice mail, spreadsheets, work processing documents, and other data. |
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| Hearing. Usually, the conference consists of an informal discussion between the judge and the opposing attorneys after discovery has taken place. The purpose is to explore the possibility of a settlement w/o trial, and if not, to identify the matters that are in dispute and to plan the course of the trial. |
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Term
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Definition
1. Opening Statements
2. Examination of Witnesses
3. Closing Arguments, Jury Instructions, and Verdict |
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| Pleadings, Pretrial Motions, Discovery, Pretrial Conference, Jury Selection |
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| A series of rules that have been created by the courts to ensure that any evidence presented during a trial is fair and reliable. |
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| Statements made by attorneys setting forth the facts that they expect to prove during the trial. |
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| Evidence that tends to prove or disprove a fact in question or to establish the degree of probability of a fact or action. |
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| Testimony someone gives in court about a statement made by someone else who is not under oath at the time of the statement. Generally not admissible as evidence. |
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| Direct Examination of Witnesses |
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Definition
| Attorney questions the witness |
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| Plaintiff has the burden of proving that the allegations are true. |
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| Other attorney questions the witness |
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| Someone who, by virtue of education, training, skill or experience, has scientific, technical, or other specialized knowledge in a particular area beyond that of an average person. |
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| Motion for a Judgment as a Matter of Law |
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Definition
| (AKA Motion for a Directed Verdict in state courts). At the conclusion of the plaintiff's case, the defendant's attorney has the opportunity to ask the judge to direct a verdit for the defendant on the ground that the plaintiff has presented no evidence to support her or his claim. |
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