Term
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Definition
Critical Thinking
Non Sequitur - is a conclusion that does not follow from the facts or premises one sets out.
-The speaker is missing the point or coming to an irrelevant conclusion. |
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Term
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Definition
Critical Thinking)
Appeal to Pity - or compassion - Argument that generates support for a proposition by focusing on a civtim's predicament.
Example - anti smoking advertisements that focus on the physical miseries (such as cancer and emphysema) of cigarette smokers and the impact on their families, especially children. None of those ads point out that many ill smokers knew the harms of tobacco before they started smoking.
- Many Times see Appeals to Pity used against Corporations |
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Definition
(Critical Thinking)
-An analogy essentially argues that since something is liek something else in one or more ways, then it is also like it in another respect. Arguers often use analogies to meke a pint vividly, and therefore analogies have strong appeal.
False Analogies - When analogies are made while the two situations are not sufficiently similar to one another to make the analogy valid. |
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Term
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Definition
(Critical Thinking)
-Example - We should tell the truth because lying is wrong.
Circular Reasoning - the example is circular reasoning and makes no sense, because telling the truth and not lying are the same things. |
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Term
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Definition
(Critical Thinking)
- Argumentum ad Populum - means argument to the people. It is an emotional appeal to popular beliefs, values, or wants.
- * -The fallacy is that merely because many or all people believe something does not mean it is true. |
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Term
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Definition
(Critical Thinking)
- Bandwagon Fallacy - Similar to Argumentum ad Populum.
-A bandwagon argument states that we should or should not do something merely because one or more other people or firms do or do not do it. |
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Term
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Definition
(Critical Thinking)
- Argumentum ad Baculum - agrument to club.
- The arguer uses threats or fear to bolster his position.
- This is a common argument in business and family settings.
-Example:Child:"Why?" Parent: "Because if you do not, then you will spend the rest of the after noon in your room." |
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Term
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Definition
(Critical Thinking)
- Argumentum ad Hominem - "Argument against the Man"
- This tactic attacks the speaker, not his reasoning.
-Example: a republican senator ciritcizes a democratic senator who opposes the use of force to oust a dictator in the middle East by saying, "You cannot trust hime. He never served in the armed forces." - Such an argument attacks the Democratic senator's character, not the valididty of his reasons for not ousting the dictator. |
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Term
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Definition
(Critical Thinking)
- Arguments from authority - rely on the quality of an expert or person in a position of authority, not the quality of the expert's or authority's argument.
-Example: if someone says, "The president says we need to stop drug trafficking in the US, and that is good enough for me." he has argued from authority. He and the president may have good reason to stope drug trafficking, but we cannot know that from his statement.
-Example 2: "Studies show that we humans need to drink ten galsses of water a day." What studies? What were their methodologies? Did the sample sizes permid vailid conclusitons?
- Everyone makes mistakes
- Always question them |
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Term
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Definition
(Critical Thinking)
- False Cause - This fallacy results from observing two events and concluding that there is a causal link between them when there is no such link.
- Often we commit this fallacy because we do not attempt to find all the evidence proving or disproving the causal connection.
-Example: if as a store manager you change the opening hour for your store to 6AM from 8AM, records for the first month of operation under the new hours may show an increase in revenue. While you may be temted to infer that the revenue increase is due to the earlier opening hour, you should not make that conclustion until at the very least you examin store receipts showing the amount of revenue generated between 6 and 8 AM |
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Term
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Definition
(Critical Thinking)
- Gambler's Fallacy - this fallacy results from the mistaken belief that independent prior outcomes affect future outcomes.
- Example : Suppose you flip a coin five times and each time it comes up heads. What is the probability that the next coin flip will be heads? If you did not answer 50%, you committed Gambler's Fallacy. |
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Term
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Definition
(Critical Thinking)
- Reductio ad absurdum - an argument to its logical end, without considering whether it is an inevitable or probable result.
- This is often called slippery slope fallacy.
-Example: If I want to convince someone not to eat fast food, I might argue, "Eating gast good will cause you to put on weight. Putting on weight will make you overweight. Soon you will weigh 400 lbs. and die of heart disease. Therefore, eating fast food leads to death. Don't eat fast food." |
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Term
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Definition
(Critical Thinking)
- Appeals to tradition - infer that because something has been done a certain way in the past, it should be done the same way in the future. |
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Term
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Definition
(Critical Thinking)
- Lure of the new - The opposite of Appeals to Tradition. The idea that we should do or buy something merely because it is "just released" or "improved."
- You see this common theme in advertising that promotes "New and improved" |
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Term
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Definition
(Critical Thinking)
- Sunk Cost Fallacy - is an attempt to recover invested time, money, and other resources by spending still more time, money, or other sources.
- Good money after bad money (investments putting more into bad investments to try to SAVE) |
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Term
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Definition
(Nature of Law)
- Statute - are laws created by elected representatives in Congress or a state legislature.
- They are stated in an authoritative form in statue books or codes. |
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Term
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Definition
(Nature of Law)
- Common Law - is law made and applied by judges as they decide cases not governed by statues or other types of law.
- Although common law only exists at the state level, both state courts and federal courts become involved in applying it. |
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Term
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Definition
(Nature of Law)
- Precedent - Over time, judges began to follow the decisions of other judges in similar cases. |
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Term
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Definition
(Nature of Law)
- Equity - The body of law called equity historically concerned itself with accomplishing "rough justice" when common law rules would produce unfair results.
- Equity Courts - provide several remedies not available in the common law courts (which generally awarded only money damages or the recovery of property). |
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Term
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Definition
(Nature of Law)
- Injunction - a court order forbidding a party to do some act or commanding him to perform some act.
- Equitable remedie |
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Term
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Definition
(Nature of Law)
- Specific Performances - Contract remedies - (whereby a party is ordered to perform according to the terms of her contract). |
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Term
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Definition
(Nature of Law)
- priority - Because the differently types of law conflict, rules for determining which type takes priority are necessary. |
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Term
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Definition
(Nature of Law)
- Federal Supremacy - the US Constitution, federal laws enacted pursuant to it, and treaties are the supreme law of the land. |
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Term
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Definition
(Nature of Law)
- Criminal Law - is the law under which the government prosecutes someone from committing a crime.
- It creates duties that are owed to the public as a whole. |
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Term
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Definition
(Nature of Law)
- Civil Law - mainly concerns obligations that private parties owe to each other.
- It is the law applied when one private party sues another.
- Government however, may also be a party to a civil case.
- Example: a city may sue or be sued by a construction contractor. |
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Term
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Definition
(Nature of Law)
- Substantive Law - sets the rights and duties of people as they act in society. |
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Term
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Definition
(Nature of Law)
- Procedural Law - controls the behavior of government bodies (mainly courts) as they establish and enforce rules of substantive law. |
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Term
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Definition
(Nature of Law)
- Public Law - concerns the powers of government and the relations between government and private parties
-Examples; constitutional law, administrative law, and criminal law. |
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Term
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Definition
(Nature of Law)
- Private Law - establishes a framework of legal rules that enables parties to set the rights and duties they owe each other.
-examples; rules of contract, property, and agency |
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Term
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Definition
(Nature of Law)
- Jurisprudence - the philosophy of law. Also sometimes used to refer to the collected positive law of some jurisdiction. |
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Term
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Definition
(Nature of Law)
- Legal Positivism - defines law as the command of a recognized political authority.
- Government enforcing law etc. |
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Term
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Definition
(Nature of Law)
Natural Law - takes issue with legal positivism by rejecting the positivists separation of law and morality.
- Natural Law adherents usually contend that some higher law or set of universal moral rules binds all human beings in all times and places. |
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Term
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Definition
(Nature of Law)
- Legal Realism - regard the law in the books as lesss important that the law in action.- The conduct of those who enforce and interpret the positive law.
-American legal realism defines law as the behavior of the public officials (mainly judges) as they deal with matters before the legal system.
- Because the actions of such decision makers - and not the rules in the book - really affect people's lives, the realists say, this behavior is what deserves to be called the law. |
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Term
| Sociological Jurisprudence |
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Definition
(Nature of Law)
- Sociological Jurisprudence - is a general label uniting several different approaches that examine law within its social context.
- Law is a process of social ordering reflecting society's dominant interests and values. |
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Term
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Definition
(Ethics)
- Theories that focus on decisions or actions alone.
- Example; a deontological theory may find unacceptable that any competent employee loses his job, even if the layoff's effect is to reduce prices to consumers and increase profits.
- FOCUS ON DECISIONS OR ACTIONS |
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Term
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Definition
(Ethics)
- Teleological - Theories that focus on the consequences of a decision.
- Example: theory may justify a manufacturing company laying off 5,000 employees, because the effect is to keep the price of manufactured goods low and to increase profits for the company's shareholders.
- FOCUS ON CONSEQUENCES (GOOD OR BAD) |
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Term
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Definition
(Ethics)
- Rights Theory - encompasses a variety of ethical philosophies holding that certain human rights are fundamental and must be respected by other humans. |
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Term
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Definition
(Ethics)
- Kant -
- Viewed humans as moral actors that are free to make choices. Humans are able to judge the morality of any action by applying his famous Categorical Imperative. |
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Term
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Definition
(Ethics)
- Categorical Imperative -
1- "Act only on that maxim whereby at the same time you can will that it shall become a universal law" --This means that we judge an action by applying it universally.
2- "Always act to treat humanity, whether in yourself or in others, as an end in itself, never merely as a means." -- That is, we may not use or manipulate others to achieve our own happiness. |
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Term
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Definition
(Ethics)
- Justice Theory - requires decision makers to be guided by fairness and impartiality. It holds that businesses should focus on outcomes: are people getting what they deserve?
-Example: IF a business is deciding in which of two communities to build a new manufacturing plant, it should consider which community has the greater need for economic development. |
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Term
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Definition
(Ethics)
-John Rawls-
-Wrote "A Theory of Justice"
-the philosophical underpinning for the bureaucratic welfare state. Rawls reasoned that it was right for governments to redistribute wealth in order to help poor and disadvantaged. He argued for a just distribution of society's resources by which a society's benefits and burdens are allocated fairly amoung its members |
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Term
| Greatest Equal Liberty Principle |
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Definition
(Ethics)
- Greatest Equal Liberty Principle - each person has an equal right to basic rights and liberties.
-John Rawls |
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Term
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Definition
(Ethics)
- Difference Principle - Social inequalities are acceptable only if they cannot be eliminated with out making the worst off class even worse off. |
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Term
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Definition
(Ethics)
- Utilitarianism - requires a decision maker to maximize utility for society as a whole.
- Maximizing utility means achieving the highest level of satisfactions over dissatisfactions.
-A utilitarian will act only if the benefits of the action to society outweigh the societal costs of the action.
***Note that the focus is on society as a whole.This means decision maker may be required to do something that harms her if society as a whole is benefited by her action |
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Term
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Definition
(Ethics)
- Act Utilitarianism - judges each act separately, assessing a single act's benefits and costs to society's members.
- Obviously a person cannot make an act utilitarian. |
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Term
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Definition
(Ethics)
- Rule Utilitarianism - judges actions by a rule that over the long run maximizes benefits over costs.
-Example: you may find that taking a shower every morning before school or work maximizes society's satisfactions, as a rule. Most days, people around you will be benefited by not having to smell noisome odors, and your personal and professional prospects will improve by practicing good hygiene. Therefore, you are likely to be a rule utilitarian and shower each morning, even though some days you may not contact other people. |
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Term
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Definition
(Ethics)
- as an ethical theory requires a decision maker to maximize a business's long-run profits within the limits of the law.
- It is based in the laissez faire theory of capitalism. Economists argue total social welfare is optimized if humans are permitted to work toward their own selfish goals. |
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Term
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Definition
(Ethics)
- Stakeholders Theory - Examines the interests of various stakeholders with regard to a particular business action
- Stakeholders are both internal and external to the firm |
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Term
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Definition
(Legal Reasoning)
- Stare Decisis - like cases should be decided a like. |
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Term
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Definition
(Ethics)
- Distinguish - When an earlier case may seem similar enough to present case to constitute a precedent but the court deciding the present case nevertheless identifies a meaningful difference between the cases, the court distinguishes the earlier decision. |
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Term
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Definition
(Legal Reasoning)
- Precedent - In cases governed by the common law, courts find the appropriate legal rules in prior cases called precedents. |
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Term
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Definition
(Legal Reasoning)
- Statutory Interpretation - because statues are written in one authoritative form, their interpretation might seem easier than case law reasoning. However, this is not so.
- The natural ambiguity of language serves as one reason courts face difficulties when interpreting statutes. The problem become especially difficult when statutory words are applied to situations the legislature did not foresee.
- When these situations exists, legislature expects courts and or administrative agencies to fill in the details on a case-by-case basis. |
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Term
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Definition
(Legal Reasoning)
- Plain Meaning - If the statute's words have a clear, common, accepted meaning, courts often employ the plain meaning rule.
- This approach calls for the court to apply the statue according to the usual meaning of its words, without concerning itself with anything else.
- In the Hyatt case, the court takes plain meaning approach to interpretation of two potentially applicable statues, and then attempts to harmonize those statutes. |
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Term
| Legislative History and Purpose |
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Definition
(Legal Reasoning)
- Legislative History and Purpose - Courts sometimes refuse to follow a statute's plain meaning when its legislative history suggest a different result.
- Almost all courts resort to legislative history when the statute's language is ambiguous.
- A statute's legislative history includes the following sources: reports of investigative committees or law revision commissions that led to the legislation; transcripts or summaries of hearings of legislative committees that originally considered the legislations; reports issued by such committees; records of legislative debates... pg 18 |
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Term
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Definition
(Legal Reasoning)
- General Public Purpose - Occasionally, courts construe statutory language in the light of various general public purposes. These purposes are not the purposes underlying the statue in question; rather, they are widely accepted general notions of public policy.
-Example: the Supreme Court once used the general public policy against racial discrimination in education as an argument for denying tax - exempt status to a private university that discriminated on the basis of race. |
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Term
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Definition
(Legal Reasoning)
- Maxim - are general rules of thumb employed in statutory interpretation.
- There are many maxims, which courts tend to use or ignore at their discretion.
- One example: the ejusdem generis rule, which says that when general words follow words of a specific limited meaning, the general language should be limited to things of the same class as those specifically stated. |
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Term
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Definition
(Legal Reasoning)
- ejusdem generis- rule, which says that when general words follow words of a specific limited meaning, the general language should be limited to things of the same class as those specifically stated.
- Example: |
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Term
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Definition
(Legal Reasoning)
- Standing to sue - Expressing similar ideas is the doctrine of standing to sue, which normally requires the plaintiff have some some direct, tangible, and substantial stake in the outcome of the litigation.
- You have to have reason or interest in the outcome to sue. |
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Term
| Case or Controversy Requirement |
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Definition
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Term
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Definition
Legal Reasoning
- Declaratory Judgment- State and federal declaratory judgment statutes, however, allow parties to determine their rights and duties even though their controversy has not advanced to the point where harm has occurred and legal relief may be necessary.
- This enables them to determine their legal position without taking action that could expose them to liability.
-Example: if Darlene believes that something she plans to do would bot violate Earl's Copyright on a work of authorship but she recognizes that he may take a contrary view. She may seek a declaratory judgment on the question rather than risk Earl's Lawsuit by proceeding to do what she planned. |
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Term
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Definition
Jurisdictiion
- Jurisdiction - something a court must have if its decision in a case is to be binding on the parties.
-The US has 52 Court systems - a federal system plus a system for each stat and the DC |
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Term
| Courts of Limited Jurisdiction |
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Definition
Jurisdiction
-Courts of Limited Jurisdiction- minor criminal cases and civil disputes involving small amounts of money or specialized matters frequently are decided in courts of limited jurisdiction.
-Examples: include traffic courts, probate courts, and small claims courts.
- Usually handle a large amount of cases. |
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Term
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Definition
Jurisdiction
- Trial Courts - they are not governed by the subject matter restrictions or the limits on civil damages or criminal penalties that govern courts of limited jurisdiction.
- Second, Trial courts are courts of record that keep detailed records of hearings, trials, and other proceedings(important if appealed). |
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Term
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Definition
Jurisdiction
- Appellate Courts - State appeals (or appellate) courts generally decide only legal questions.
- Instead of receiving new evidence or otherwise retrying the case, appeals courts review the record of the trial court proceedings.
- Accept the trial court's findings of fact. |
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Term
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Definition
Jurisdiction
- venue - Even if a court has jurisdiction, applicable venue requirements must also be satisfied in order for the case to proceed in that court |
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Term
| Subject Matter Jurisdiction |
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Definition
jurisdiction
- Subject Matter Jurisdiciton - is a court's power to decide the type of dispute involved in the case.
- Criminal courts, for example, cannot hear civil matters. Similarly, a $500,000 claim for breach of contract cannot be pursued in a small claims court. |
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Term
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Definition
Jurisdiction
- In Personam Jurisdiction - Even a court with subject matter jurisdiction cannot decide a civil case unless it also has either in personam jurisdiction or in rem jurisdiction.
- Is based on the residence, location, or activities of the defendant.
- A court (state) has in personam jurisdiction over defendants who are citizens or resident of the state (even if situated out of state), who are within the state's borders when process is served on them (even if nonresidents), or who consent to the court's authoridy. |
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Term
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Definition
Jurisdictrion
Jurisdiction
- In Personam Jurisdiction - Even a court with subject matter jurisdiction cannot decide a civil case unless it also has either in personam jurisdiction or in rem jurisdiction.
- Is based on the residence, location, or activities of the defendant.
- A court (state) has in personam jurisdiction over defendants who are citizens or resident of the state (even if situated out of state), who are within the state's borders when process is served on them (even if nonresidents), or who consent to the court's authoridy. |
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Term
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Definition
Jurisdiction
- Forum Selection Clause - Contracts sometimes contain a clause reciting that disputes between the parties regarding matters connected with the contract must be litigated in the courts of a particular state. |
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Term
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Definition
Jurisdiction
- Exclusive Jurisdiction - The federal district courts have exclusive jurisdiction over some matters. |
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Term
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Definition
Jurisdiction
- Concurrent Jurisdiction - Often federal district courts have concurrent jurisdiction with state courts - meaning that both state and federal courts have jurisdiction over the case.
- Example: a plaintiff might assert state court in personam jurisdiction over an out of state defendant or might sue in a Federal district court under that court's diversity jurisdiction. |
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Term
| Federal Question Jurisdiction |
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Definition
Jurisdiction
- Federal Question Jurisdiction - exists when the caswe arises under the Constitution, laws, or treaties of the United States.
- The "arises under" requirement normally is met when a right created by federal law is a basic part of the plaintiff's case.
* There is no amount-in-controversy requirement for federal question jurisdiction |
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Term
| Amount in Controversy Requirement |
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Definition
Jurisdiction
- Amount in Controversy Requirement - Diversity Jurisdiction also exists in certain cases between citizens of a state and citizens or governments of foreign nations. if the amount in controversy exceeds $75,000 |
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Term
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Definition
Jurisdiction
- Removal - Where concurrent jurisdiction exists and the plaintiff opts for a state court, the defendant has the option to remove the case to an appropriate federal district court, assuming the defendant acts promptly. |
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Term
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Definition
Jurisdiction
- Original Jurisdiction - In certain situations, the US supreme court has original jurisdiction, which means that if acts as a trial court. The Supreme Court has original and exclusive jurisdiction over all controversies between two or more states. |
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Term
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Definition
Litigation
- Adversary System - in any civil case, the system is at work.
- Through their attorneys the litigants take contrary positions before a judge and possibly a jury. |
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Term
| Preponderance of the Evidence |
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Definition
litigation
- Preponderance of the Evidence - This standard of proof requires the plaintiff to show that the greater weight of the evidence - by credibility, not quantity - supports the existence of each element.
- The plaintiff must convince the fact-finder that the existence of each factual element is more probable than its non existence. |
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Term
| Beyond a Reasonable Doubt |
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Definition
Litigation
- Beyond Reasonable Doubt - |
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Term
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Definition
litigation
- summons - notifies the defendant that he, she , or it is being sued |
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Term
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Definition
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Term
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Definition
ligigation
- pleadings - are the documents the parties file with the court when they first state their respective claims and defenses.
- They include the complaint, the answer, and some jurisdictions, the reply. |
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Term
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Definition
litigation
- complaint - states the plaintiff's claim in separate, numbered paragraphs.
- The complaint must also include the remedy to the request. |
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Term
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Definition
litigation
- Answer - Unless the defendant makes a successful motion to dismiss he must file an answer to the plaintiff's complaint within a designated time after service of the complaint. |
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Term
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Definition
litigation
- reply - in some jurisdictions the plaintiff is allowed or required to respond to an affirmative defense or a counterclaim by making a reply. The reply is the plaintiff's point by point response to the allegation in the answer or counterclaim. |
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Term
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Definition
litigation
- affirmative defense - an answer may also include an affirmative defense to the claim asserted in the complaint. A successful affirmative defense enables the defendant to win the case even if all the allegations in the complaint are true and by themselves would have entitled the plaintiff to recover.
-Example: suppose that the plaintiff bases her lawsuit on a contract that she alleges the defendant has breached. The defendant's answer may admit or deny the existence of the contract or the assertion that the defendant breached it. In addition, the answer may make assertions that, if proven, would provide the defendant an affirmative defense on the basis of fraud committed by the plaintiff during the contract negotiation phase. |
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Term
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Definition
litigation
- Counterclaim - is a new claim by the defendant arising from the matters stated in the complaint.
- Unlike an affirmative defense. it is not merely an attack on the plaintiff's claim, but is the defendant's attempt to obtain legal relief. In additon to using fraud as an affirmative defense to a plaintiff's contract claim.
- Example; a defendant might counterclaim for damages cause by that fraud. |
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Term
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Definition
litigation
- motion to dismiss - sometimes it is evident from the complaint or the pleadings that the plaintiff does not have a valid claim. In such a situation, it would be a wasteful for the litgation to proceed further. The procedural device for ending the case at this early stage is commonly called motion to dismiss. |
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Term
| Motion for judgment on the Pleadings |
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Definition
Litigation
- motion for judgment on the pleadings - normally occurs after the pleadings have been completed. A successful motion to dismiss means that the defendant wins the case. If the motion fails, the case proceeds. |
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Term
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Definition
litigation
- demurrer - The most important type of motion to dismiss however is the motion to dismiss for failure to state a claim upon which relief can be granted, called the demurrer.
- basically says "sowhat?" to the factual allegations in the complaint.
You did nothing wrong. |
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Term
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Definition
litigation
- discovery - when a civil case begins, litigants do not always possess all of the facts they need to prove their claims or establish their defenses. To help litigants obtain the facts and to narrow and clarify the issues for trial. the state and federal court systems permit each party to civil case to exercise discovery rights.
- The discovery phase of a lawsuit normally begins when the pleadings have been completed. Each party is entitled to request infromtaion from the other party by utilizing the forms of disvocery descrived in this section. |
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Term
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Definition
litigation
- deposition - is one of the most frequently employed forms of discovery.
- In a deposition, one party's attorney conducts an oral examination of the other party or of likely witnesses (usually one identified with the other party).
-The questions asked by the examining attorney and the answers given by the deponent - the person being examined - are taken down by a court reporter. Under oath. just as testifying in trial. sometimes video taped. |
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Term
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Definition
litigation
- Interrogatories - and requests for admissions are among other comonly utilized forms of discovery.
- are written questions directed by the plaintff to the defendant, or vice versa. The litigant on whome interrogatores are served must porovide written answers. under oath. |
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Term
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Definition
litigation
- requests for admissions - are one party's written demand that the other party admit or deny, in writing, certain statements of supposed fact or of the application of law to fact. within x time. |
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Term
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Definition
litigation
- physical examination -
Court ordered discovery |
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Term
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Definition
litigation
- summary judgment- is a device for disposing of relatively clear cases without a trial. |
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Term
| Genuine Issue of Material Fact |
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Definition
litigation
- Genuine Issue of Material Fact - |
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Term
| Voir Dire and Peremptory Challenge |
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Definition
litigation
- voir dire - If the right to a jury trial exists and either party demands one, the jury finds the facts. The judge however, continues to determine legal questions.
- During a pretial jury screening prcesss known as voir dier, baised potential jurors may be removed for cause.
- In addition, the attorney for each party is allowed a limited number of preemptory challenges, which allow him to remove potential jurors without having to show bias or other cause. |
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Term
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Definition
litigation
- verdict - The jury then deliberates. makes the necessary determination of the facts, applies the applicable legal rules to the facts and arrives at a verdict on which the courts judgment will be based.
- The verdict form used the vast majority of the time is the general verdict, which requires only that the jury declare which party wins and if the plaintiff wins. the money damages awarded. |
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Term
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Definition
litigation
- direct verdict - Although the general verdict gives the jury considerable power, the American legal system also has devices for limiting that power.
- One device is the directed verdict, takes the case away from the jury and provides a judgment to one party before the jury gets a chance to decide the case. The option for a directed verdict may be made by either party;it usually occurs after the other (non moving) party has presented her evidence. |
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Term
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Definition
litigation
- Judgment notwithstanding the verdict - On occasion, one party wins a judgement even after the jury has reached a verdict against that party. The device for doing so is the JNOV.
- Some justisdictions provide that a motion for JNOV cannot be made unless the moving party previously moved for a directed verdict. In any event, the standard used to decide the motion for JNOV usually is the same standard used to decide the motion a directed verdict. |
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Term
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Definition
litigation
- motion for a new trial - In a wide range of situations that vary among jurisdictions, the losing party can successfully move for a new trial. Acceptable reasons for granting a new trial include legal errors by the judge during the trial, jury or attorney misconduct, the discovery of new evidence, or an award of excessive damages to the plaintiff. Most motions for a new trial are unsuccessful however. |
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litigation
- appeal - A final judgment generally prevents the parties from relitigating the same claim. One or more parties still may appeal the trial court's decision, however. Normally, appellate courts consider only alleged errors of law made by the trial court. The matters ordinarily considered "legal" and thus appealable include the trial judge's decision on motions to dismiss, for summary judgement, for directed verdict, or judgment notwith standing the verdict JNOV, and for a new trial.
- Appellate courts may affirm the trial courts decision, reverse it, or affirm parts of the decision and reverse other parts. One of three things ordinarily result from an appeals court;s disposition of an appeal:
1)the plaintiff wins the case
2)the defendant wins the case
3) the case is remanded (returned) to trial court for further proceedings if the trial court's decision is reversed in whole or in part. |
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litigation
-remand- after a trial has reached a verdict and then goes to appeals or appellate courts, if neither the plaintiff or the defendant win, the case then goes back to the trial court for further proceedings, called remanded. |
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Appeals court affirms the trial court's decision.
the decision stands. |
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appeals court
opposite of affirm
case is going back to trial court. |
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| When the defendant fails to pay as required after losing a civil case, the winning plaintiff must enforce the judgement. Ordinarily the plaintiff will obtain a writ of execution enabling the sheriff to seze designated property of the defendant and sell it at a judicial sale to help satisfy the judgment. |
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| A judgment winner may also use a procedure known as garnishment to seize property, money, wages that belong to the defendant but are in the hands of a third party such as a bang or employer. Legal limitis exist however. |
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| One special type of mulitiparty case. the classaction allows one or more persons to sue on behalf of themselves and all others who have suffered similar harm from substantially the same wrong. |
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Alternative Dispute Resolution
Quicker resolution of disputes
Lower costs in time, moeny and aggravation for the parties
Lessening of the strain on an overloaded court system
use of decision makers with specialized experties
potential for compromise decisions that promote and feflect consensus between the parties |
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ADR
The settlement of a civil lawsuit is not everyone's idea of an alternative dispute resolution mechanism. It is an important means however of avoiding protracted litiation - one that often is a sensibble compromise for the parties. Most cases settle at some stage in the proceedings descrived previously. The usual settlement agreement is a contract whereby the defendant agrees to pay the plaintiff a sum of money, in exchange for the plaintiff's promise to realease the defendant from liability for the plaintiff's claims. |
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ADR
is the submission of a dispute to a neutral nonjudicial third party (an arbitrator) who issues a binding decision resolving the dispute. Arbitration usually results from the parties agreement, agreement normaill is made before the dispute arises (clause to use arbitration in a contract) ect. |
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ADR
In mediation, a neutral third party called a mediator helps the parties reach a cooperative resolution of their dispute by facilitating communication between them, clarifying their areas of agreement and disagreement, helping them to see each other's viewpoints, and suggesting settlement options
- Mediators unlike arbitrators, cannot make decisions that bind the parties, Instead a successful mediation process results in a mediation agreement. Such agreements normally are enforced undedr regular contrat law principles. |
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