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3054-Chapter 3 Flashcards

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1
Q

Trial courts are also known as

A

Courts of original jurisdiction

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2
Q

What powers do trial courts have?

A

They have the power to hear and decide cases when they first enter the legal system.

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3
Q

What powers do appellate courts have?

A

They have the power to review previous judicial decisions to determine whether the trial courts erred in their decisions.

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4
Q

What errors do appellate courts review?

A

They rule on questions of law or the application and interpretation of the law. Only judges decide questions of law.

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5
Q

What does in personam jursidiction mean?

A

Literally jurisdiction over the person

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6
Q

What is in personam jurisdiction?

A

It is a court’s power to render a decision affecting the rights of the specific persons before the court.

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7
Q

How does a court acquire jurisdiction over a plaintiff?

A

When she files with the court

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8
Q

How does the court acquire jurisdiction over the defendant?

A

When the court serves the defendant (present with a copy of the sumons and complaint).

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9
Q

What is a complaint?

A

It specifies the factual and legal basis for the lawsuit and the relief the plaintiff seeks.

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10
Q

What is a summons?

A

It is a court order that notifies the defendant of the lawsuit and explains how and when to respond to the complaint.

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11
Q

What is a long-arm statute?

A

It enables a court to serve defendants outside the state as long as the defendant has sufficient minimum contacts within the state.

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12
Q

Describe an appellate court

A

A higher court usually with more than one judge that reviews the lower court cases. It may request additional oral or written arguments. Verdicts are written.

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13
Q

Describe a trial court

A

A lower court of origination many times with juries. Called a district court in the federal system.

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14
Q

What is in rem jurisdiction?

A

It is the power of a court over the property or status of an out-of-state defendant wen that property or status is within the court’s jurisdictional area.

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15
Q

What is quasi in rem jurisdiction?

A

Aka as attachment jurisdiction, is the court’s power over a defendents property that is not related to the plaintiff’s claim. Many times property as a source of compensation.

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16
Q

What is subject-matter jurisdiction?

A

It is the court’s power to hear certain kinds of cases.

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17
Q

The federal court system has exclusive jurisdiction over what kinds of cases?

A

admiralty, bankruptcy, federal criminal, lawsuits between states, claims against the US, IP cases and cases that specify federal statutes

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18
Q

The state court system has exclusive jurisdiction over what kinds of cases?

A

Everything not within the exclusive right of the federal court system and domestic law

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19
Q

What does concurrent jurisdiction mean?

A

It means that both state and federal have jurisdiction over the case.

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20
Q

What are the two types of concurrent jurisdiction cases?

A

1) federal-question and 2) diversity of citizenship

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21
Q

What makes up a federal-question case?

A

It requires an interpretation of federal statute, the US constitution or federal treaty

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22
Q

What is diversity of citizenship?

A

A case must satisfy 2 conditions 1) plaintiff does not reside in the same state as the defendant and 2) the amount must be in excess of $75,000

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23
Q

May a business reside in more than one state?

A

Yes. The state of incorporation and the state of principal business.

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24
Q

What does the right of removal entitle a participant to?

A

To remove the case to federal court.

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25
What is the venue?
The place where the case will be heard based on geography and other jurisdictional factors. Or the legal doctorine relating to the selection of a court with subject-matter and personal jurisdiction that is the most appropriate geographic location for the resolution.
26
How many federal courts of original jurisdiction are there?
There are 94 district courts.
27
What federal cases do not begin in district court?
There are special courts for bankruptcy, claims against the US and IP cases
28
When does the US Supreme Court function as a trial court?
In cases including controversies between states and lawsuits against foreign ambassadors.
29
The second level of the federal court system is made up of
the US circuit courts also known as intermediate courts of appeal.
30
How many US circuit courts are there? Are there any special ones?
There are 12 including on for appeals from government administrative agencies.
31
What is the court of last resort?
In the federal court system it is the US Supreme Court.
32
How many justices are there on the Supreme Court? What is there term?
There are 9 justices appointed for life.
33
What are county courts or courts of common pleas?
They are state courts of general jurisdiction where cases begin and are not subject to a special court.
34
Approximately how many states have intermediate courts of appeal?
Approximately half of the states have courts of appeal or superior courts.
35
What do state courts of appeal do?
They have broad powers and hear appeals from most general and limited jurisdiction courts and some government agencies
36
How do cases flow to the state court of last resort?
For states with a district court it is appealed from the intermediate court. Otherwise the case is appealed directly from trial court to the supreme court.
37
What is standing?
It is the legal right to bring an action in court by demonstrating is or will be harmed. (standing to sue)
38
What are the requirements for standing?
1) the plaintiff must have an injury in fact that is concrete and actual or imminent 2) the injury must be fairly traceable to the challenged action of the defendant 3) must be likely the injury would be redressed by a favorable decision
39
What is the purpose of case-or-controversy?
It ensures that courts do not render advisory opinions by using these 3 criteria: 1) must have an adverse relationship, 2) actual or threatened actions of at least one party must give rise to an actual legal dispute and 3) courts must have the ability to render a decision that will resolve the dispute
40
What does ripe mean?
It means that a judge's decision would be capable of immediately affecting the parties.
41
What are the pretrial steps in civil litigation?
Negotiations, Pleadings, Service of Process, Defendants Response, Motions, Discovery and Conference
42
What is the pleadings stage?
It's when the plantiff's lawyer initiates a lawsuit by filing a complaint with the appropriate court.
43
What information will a filing contain?
It will have the names, the basis for the court's subject-matter jurisdiction, the facts on which the plaintiff bases the claim and relief sought.
44
When does service of process occur?
It is when the court delivers a copy of the complaint and a copy of the summons to the defendant.
45
What is a default judgment?
It is a judgment in favor of the plaintiff due to failure of the defendant to respond to the complaint.
46
How does a defendant answer the complaint?
He may deny, affirm or claim no knowledge of the accuracy of the allegations.
47
What is an affirmative defense?
It is a defense where the defendant admits that the facts are accurate but additional facts justify the defendant's actions and provide a legally sound reason to deny relief to the plaintiff.
48
Must a defendant raise an affirmative defense in his answer?
Yes. Or run the risk of having it denied due to lack of notice.
49
What is a motion to dismiss?
It is a motion asking that the case be dismissed because even if all factual allegations are true the law does not entitle the plaintiff to a favorable judgment.
50
What is a counterclaim?
It is a claim made by the defendant against the plaintiff that is filed along with the defendant's answer.
51
What is a reply?
It is the answer a plaintiff gives in response to the counter claim. If the plaintiff plans to use an affirmative defense it must be raised in the reply.
52
What are the types of discovery?
Interrogetories, depositions, request for documents or things, request for admissions and request for mental/physical exam
53
What is an interrogetory?
It is a set of written questions answered under oath, often accompanied by a request to admit certain facts.
54
What are depositions?
Attorneys examine a witness under oath in the presence of a court reporter for a transcript.
55
What is a request for documents?
It forces the opposing party to produce certain information unless it is privileged or irrelevant.
56
What is the purpose of the pre-trial conference?
It is a last attempt to settle the case. If unsuccessful, then it discusses the details of the trial: length, witnesses, and pretrial stipulations of fact or law.
57
The Seventh Amendment entitles a party to a jury trial if the monetary damages are over
$20
58
What are the six stages of a trial?
Jury selection, opening statements, examination of witnesses, closing arguments, conference on jury instructions and posttrial motions.
59
What are preemptory challenges?
They are challenges that allow challenge a certain number of potential jurors without a reason.
60
What is a mock trial?
It is when mock jurors who are demographically similar to the real jurors hear the arguments and give feedback prior to the real trial.
61
Who are shadow juries?
They are jurors who sit in the trial and give feedback at the end of each day on how the case is going.
62
What subjects can be asked about in direct examination?
What the witness has direct knowledge and not what someone else told them.
63
What is direct examination?
When the plaintiff's lawyer asks questions to a plaintiff's witness.
64
What is cross examination?
When the defendant's lawyer asks questions of the plaintiff's witness or vice versa.
65
What is a directed verdict?
It is a motion for the court to direct a verdict for the defendant because even if all the evidence for the plaintiff is true the plaintiff fails on matter of law.
66
What does the motion for a judgment in accordance with the verdict do?
It finalizes the verdict and makes it legally binding. Until then it is not.
67
What is a motion for a judgment notwithstanding the verdict?
It is like the directed verdict motion only it can't be made until after the trial is over.
68
What are the requirements for a new trial?
Judges grant a motion for a new trial only if they believe the jury's decision was clearly erroneous but they are not sure that the other side should have won.
69
What is a prejudicial error?
It's a mistake so significant that it will likely affect the outcome of the case.
70
How is a case appealed?
Notice of appeal, record of appeal, appellant brief, appellee brief, oral arguments, judicial review, ruling
71
What is in the record of the appeal?
It contains: the pleadings, a trial transcript, copies of the trial exhibits, copies of the judge's rulings on the partie's motions, the attorney's arguments, jury instructions, the jury's verdict, posttrial motions and the judgment order.
72
Why does an appellant file a brief with the appeals court?
It is a written argument that explains why the judgment in the lower court was wrong and why the appeals court should reverse it. The appellee usually files a responding brief.
73
What are the four possible rulings?
1) modifies 2) reverses 3) remands 4) affirms
74
What is affirm?
It accepts the lower court ruling
75
What is modify?
It accepts the decision as correct but the remedy was inappropriate.
76
What does reverse mean?
It means the lower court decision was incorrect.
77
What does remand mean?
It means that appeals court believes that the lower court committed an error but doesn't know how that error affected the outcome of the case so it remands the case to the lower court for a new trial.
78
What is the minimum number of appellate court judges?
3 usually
79
What is a concurring opinion?
An opinion where a judge agrees with the majority decision for different reasons
80
What is a dissenting opinion?
It is an opinion written by some or all of the judges that disagree with the majority decision explaning their reasons.
81
What is a writ of certiorari?
It is an order to the lower court to send the Supreme Court the record of a case.
82
What is the rule of four?
At least four justices must vote to hear a case.
83
What are the four usual reasons for the SC to hear a case?
1) presents a substantial federal question that the court has yet to address 2) multiple circuit courts of appeal have decided the case differently 3) state court of last resort has ruled that a federal law is invalid or has upheld a state law that may violate federal law 4) federal court has ruled that an act of Congress is unConstitutional
84
What are alternate methods of disupte resolution?
ADR methods are: negotiation, mediation, arbitration, summary jury trials, minitrials, newutral case evaluations and private trials.
85
Upsides of ADR
Faster and cheaper, Avoid uncertainty of jury trial, avoid precedent of trial, confidential and less adversarial so preserve relationship.
86
What is mediation?
Disputing parties select neutral party to facilitate a resolution and communication. If it fails nothing said can be used in another resolution method.
87
What are the criticisms of mediation?
Power imbalances are hidden and can be used to draw out the dispute.
88
Benefits of mediation?
Preserve relationships (labor disputes), level of autonomy of parties and represents multiple parties.
89
What is arbitration?
Resolution of a dispute by a neutral third party outside the judicial setting. Arbitrators are ususally chosen from several agencies.
90
How is an arbitration hearing conducted?
It is similar to a trial. The parties may use lawyers or represent themselves. They introduce witnesses and documentation, cross and offer closing arguments. The arbitrator can take a more active part, renders a legally binding opinion. And there is no transcript.
91
What is an arbitrator's award?
It is the arbitrator's opinion. It is legally binding, doesn't have to be based on fact, law or specific reasons and is not bound by precedent.
92
What are the four grounds that can set aside an arbitrator's award?
1) the award is due to corruption, fraud, or other undue means 2) bias or corruption 3) refused to postpone the hearing despite sufficient cause, refused to hear relevant evidence or otherwise misbehaved to prejudice the rights of one of the parties 4) the arbitrator exceeded his/her authority or failed to use that authority to make a mutual final and definite award
93
Advantages of arbitration
efficient, less expensive, control over process, get a subject matter expert, flexibility in decision making
94
Disadvantages of arbitration
more frequent use so becoming more expensive, appeal is so difficult - more chance of injustice, may be giving up too many rights, may become more like litigation with greater use, hide disputes through privacy
95
What is a binding arbitration clause?
It requires that all disputes arising from the contract must be settled through arbitration.
96
What is unconscionable contract provision mean?
It means that the terms are manifestly unfair or oppressive and are dictated by a dominant party
97
What is a summary jury trial?
It is an abbreviated trial that leads to a nonbinding jury verdict. Followed by a settlement conference where the verdict is accepted, rejected or settled on a compromise.
98
What is a minitrial?
It involves a neutral party and business representatives of the disputing parties who have settlement authority. The case is presented like a trial and the neutral party gives an opinion as to what a real verdict might be. Goal is settlement.
99
What is early neutral case evaluation?
A neutral party hears the positions of the two parties and then evaluates the strengths and weaknesses of the case. Goal is settlement.
100
Private trials are
Referee is paid by parties to hear case and offer legally binding judgment in case. May have juries.
101
Upsides of private trials
Faster, cheaper, private

Legal & Ethical (5 decks)

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