Chapter 2 - The Court System And Dispute Resolution

Question 1

Where are business disputes resolves

Answer 1

In court or through alternative dispute resolute

Question 2

A court

Answer 2

A tribunal established by government to hear evidence, decide cases brought before it, and provide remedies when a wrong has been committed

Question 3

Jurisdiction

Answer 3

The power of a court to hear and determine a given class of cases; the power to act over a particular defendant

Question 4

Subject matter jurisdiction

Answer 4

Judicial authority to hear a particular type of case

Question 5

Original jurisdiction

Answer 5

The authority to hear a controversy when it is first brought to court

Question 6

General jurisdiction

Answer 6

The power to hear and decide most controversies including legal rights and duties. (Civil and criminal.)

Question 7

Limited/ special jurisdiction

Answer 7

The authority to hear only particular kinds of cases

Ex:
Juvenile court
Probate court
Tax court
With damages limited to certain \$\$

Question 8

Appellate jurisdiction

Answer 8

The power of a court to hear and decide a given class of cases on appeal from another court or administrative entity

Question 9

Appeal

Answer 9

Taking a case to a reviewing court to determine whether the judgement of the power court was correct.

Parties referred to as appellant and appellee

Generally does not include witnesses or testimony - just a review of original transcript and evidence

Question 10

Reversible decision

Answer 10

An error or defect in court proceedings of so serious a nature that on appeal the appellate court will set aside the proceedings of the lower court

Question 11

Affirm

Answer 11

Action taken by an appellate court that approves the decision of the court below

Question 12

Reverse

Answer 12

When the appellate court sets aside the verdict or judgement of the lower court

Question 13

Remand

Answer 13

When an appellate court sends a case back to trial court for additional hearings or a new rrial

Question 14

Garrison vs target corporation

Answer 14

Syringes in the Target parking lot

Court found target had been negligent with clean up and awarded damages

Appeals court reversed damages and remanded to lower court for reduced amount of damages consistent with circumstances

Question 15

Federal court system

Answer 15

Three levels

Federal district courts
To U.S. courts of appeals
To U.S. supreme court

Question 16

Federal district court

Answer 16

A general trial court of the federal system

Courts of original jurisdiction

Civil and criminal cases

• criminal violations of federal law
• civil suits where US is a party
• between citizens of different states with $75,000+ in damages,
• civil cases under constitutional law, federal law or US treaties

94 districts at least 1 in each state + colonies

Caseload by area

Question 17

Federal speciality courts

Answer 17

Include:
Bankruptcy court
Tax court
U.S. claims court
Court of military appeals
U.S. court of international trade
Indian tribal courts

Appeals often go directly to US court of appeals

Question 18

U.S. court of appeals

Answer 18

Where final decisions in federal district courts are appealed
- 12 judicial circuits (inc one for DC)
+ Federal Circuit

Mostly Panel of three judges

Sometimes en banc

Question 19

En banc

Answer 19

When the full panel of judges on the appellate court hears a case

Question 20

Federal Circuit

Answer 20

Hears certain types of appeals especially speciality cases such as patent appeals

Question 21

U.S. supreme court

Answer 21

Appellate jurisdiction over:

• federal courts of appeals
• state supreme courts when a constitutional issue is involved or a federal court ruling reversed

Created in the Constitution as a court of original jurisdiction

Trial court for cases in which two states are involved or with major diplomatic implications

Question 22

Writ of certiorari

Answer 22

The US supreme Court granting a right of review by the court of a lower court decision

• preliminary review of cases appealed to decide if will be heard at supreme court or allowed to stand as ruled

Question 23

State court systems

Answer 23

Bottom to top
Lesser courts: municipal, justice, small claims
Speciality courts: juvenile, probate, family law
General trial courts
State appellate courts
State supreme courts

Question 24

State general trial courts

Answer 24

Civil and criminal cases that are not in federal district jurisdiction

Aka superior courts, circuit courts, district courts, county courts

Question 25

State specialty courte

Answer 25

State courts with limited jurisdiction Juvenile, family law, probate

Question 26

City, municipal, and justice courts

Answer 26

Handle civil matters in which the claim is below a specified level May also handle misdemeanor offenses

Question 27

Small claims courts

Answer 27

Courts that resolve disputes between parties when those disputes do not exceed a minimal level. No lawyers are permitted - parties represent themselves Informal and inexpensive

Question 28

State appellate courts

Answer 28

Review decisions of lower courts in the state

Question 29

State supreme courts

Answer 29

Usually the highest state court (in NYS highest court is court of appeals) Mainly appellate jurisdiction, but some have original jurisdiction Required to hear certain cases (death penalty sentences) and screening process for others Final unless federal law, treaty or constitution is involved

Question 30

Plaintiff

Answer 30

Party who initiates a lawsuit

Question 31

Prosecutor

Answer 31

Party who originates criminal proceedings

Question 32

Defendant

Answer 32

Party against whom civil or criminal proceedings are brought

Question 33

Judge

Answer 33

Primary officer of the court May be elected or appointed

Question 34

Attorney-client privilege

Answer 34

The right of an individual to have discussions with their attorney kept private and confidential Negated if client is committing or plans to commit a crime

Question 35

Jury

Answer 35

A body of citizens sworn by a court to determine by verdict the issues of fact submitted to them

Question 36

Conflict of laws

Answer 36

Principle that determines when a court applies the laws of it's own state or some foreign law What law applies often depends on where a contract was made (issues of formation) or where the contract was to be performed (issues of nonperformance) However parties may specify the laws they are acting under in their contract - if none selected governed by law of state that has most contacts with transaction

Question 37

Law of the forum

Answer 37

Law of the state in which trial occurs Governs court procedural issues

Question 38

Initial steps in a lawsuit

Answer 38

(not every step applies to every case) ``` Commencement of a lawsuit Service of process The defendant's response and pleadings Discovery Motion for summary judgement Designation of expert witnesses ``` Then moves to trial

Question 39

Commencement of a lawsuit

Answer 39

Begins when a complaint is filed

Question 40

Complaint

Answer 40

The initial pleading filed by the plaintiff in a lawsuit Generally includes: description of wrongful conduct and request for damages

Question 41

Service of contract

Answer 41

Notification of the defendant - copy of complaint and notification to appear Responsibility of the plaintiff

Question 42

Process

Answer 42

Paperwork served personally on a defendant in a civil case Process aka writ, notice or summons

Question 43

Defendant's response and pleadings

Answer 43

Defendant is required to answer the complaint Options: motion to dismiss (demurrer), respond and deny allegations, counterclaim

Question 44

Answer

Answer 44

What a defendant must file to admit or deny facts asserted by the plaintiff

Question 45

Motion to dismiss

Answer 45

A pleading that may be filed to attack the other party's pleading as not stating a cauw or action or a defense

Question 46

Demurrer

Answer 46

A pleading to dismiss the other party's pl wrong for not stating a cause or action or a defense

Question 47

Counterclaim

Answer 47

Claim that the defendant may make against the plaintiff

Question 48

Pleadings

Answer 48

Papers filed by the parties in an action in order to set for the facts and frame the issues to be tried

Question 49

Discovery

Answer 49

Procedures for ascertaining facts prior to the time of trial in order to eliminate the element of surprise in litigation Requires each side to name potential witnesses so opposing side can question pre-trial Opportunity to inspect all evidence

Question 50

Deposition

Answer 50

The testimony of a witness taken under oath but outside of the court Both parties permitted to question the witneee

Question 51

Impeach

Answer 51

Using prior inconsistent evidence to challenge the credibility of a witness Happens if witness tells one thing in deposition and another in trial

Question 52

Other forms of discovery

Answer 52

Interrogatories | Request for production of documents

Question 53

Interrogatories

Answer 53

Written questions used a discovery tool that must be answered under oath

Question 54

Request for production of documents

Answer 54

Discovery tool for uncovering paper evidence in a caee

Question 55

Motion for summary judgement

Answer 55

Request that the court decide a case on the basis of law only because there are no material issues or facts (Facts not in dispute)

Question 56

Expert witness

Answer 56

One who has acquired special knowledge in a particular field as through practical experience or study or both whose opinion is admissible as an aid to the trier of fact. Must meet certain rules to avoid junk science

Question 57

Steps of a trial

Answer 57

1. Selecting a jury 2. Opening statements 3. the presentation of evidence First plaintiff's case Then defendant's case 4. Motion for a directed verdict 5. Closing arguments or summation 6. Motion for a mistrial (if applicable) 7. Jury instructions and verdict 8. Motion for new trial or motion for judgenebt

Question 58

Voir dire examination

Answer 58

The preliminary examination of a juror or witness to ascertain fitness to act as such In juries: looking for bias and preformed judgements

Question 59

Peremptory challenge

Answer 59

Challenge that is used to strike a juror for any reason except on discriminatory grounds (6 to 8 per side allowed) Challenge for cause is removal if juror has potential bias

Question 60

Opening statements

Answer 60

Statements by opposing attorneys that tell the jury what their cases will prove

Question 61

Admissibility

Answer 61

The quality of the evidence in a case that allows it to be presented to a jury

Question 62

Order of testimony

Answer 62

1. Direct examination 2. Cross examination 3. Redirect examination 4. Recross examination

Question 63

Direct examination

Answer 63

Examination of a witness by his or her attorney

Question 64

Cross-examination

Answer 64

The examination made of a witness by the attorney for the adverse party

Question 65

Redirect examination

Answer 65

Questioning after cross examination, in which the attorney for the witness testifying mask ask the same witness other questions to overcome effects of the cross-examiniation

Question 66

Recross-examination

Answer 66

An examination by the other side's attorney that follows the redirect examination

Question 67

Directed verdict

Answer 67

A direction by the trial judge to the jury to return a verdict in favor of a specified party to the action Means a party has not presented enough evidence to show that there is some right to recovery under the law

Question 68

Motion for a directed verdict

Answer 68

Asks the court to grant a verdict because even if all evidence presented were true there is either no basis for recovery or no defense to recovery

Question 69

Summation

Answer 69

Aka closing argument The attorney address that follows all the evidence presented in court and sums up a case and recommends a particular verdict be returned by the jury

Question 70

Mistrial

Answer 70

A court's declaration that because of an error or misconduct the case must be retried or dismissed. (Requires a new jury)

Question 71

Jury instructions

Answer 71

Summary of the appropriate law to apply given to jurors by the judge before deliberation begins

Question 72

Judgement n.o.v

Answer 72

Judgement non obstante verdicto (notwithstanding the verdict) A judgement entered after the verdict upon the motion of the losing party on the ground that the verdict is so wrong that a judgement should be entered the opposite of the verdict.

Question 73

Post-trial procedures

Answer 73

Recovery of costs/attorney fees (generally prevailing party is awarded costs) not including attorney fees unless specified in statute or contract Execution of judgment

Question 74

Execution

Answer 74

The carrying out of a judgement of a court, generally directing that property owned by the defendant be sold and the proceeds first be used to pay the execution or judgement creditor (Writ of execution)

Question 75

Garnishment

Answer 75

When debtor is employee appropriate authority may garnish wages on a regular basis till judgement is paid

Question 76

Alternative dispute resolution

Answer 76

ADR Non-judicial methods for solving disputes Eg: arbitration, mediation

Question 77

Arbitration

Answer 77

The settlement of disputed questions, whether by law or fact, by one or more arbitrators

Question 78

Arbitrators

Answer 78

Disinterested person's selected by the parties to the dispute Trained experts familiar with industry practices in question

Question 79

Uniform Arbitration Act

Answer 79

Basis for arbitration law in 49 states Parties to a contract may agree in advance that all disputes will be submitted to arbitration Arbitrators may be specified

Question 80

Federal arbitration act

Answer 80

Contracts relating to interstate transactions

Question 81

Mandatory arbitration

Answer 81

Certain types of disputes may be required to be submitted to arbitration Varies by state States often narrow enforceability

Question 82

Finality of arbitrators

Answer 82

Generally binding per contract clause unless clear proof of fraud, misapplication of law or significant procedural error

Question 83

Mediation

Answer 83

The settlement of a dispute through the use of a neutral messenger who carries each side if the dispute issues and offers in the case. Mediator has no authority

Question 84

MedArb

Answer 84

Arbitrator is empowered to so act as mediator

Question 85

Expert panel

Answer 85

Submission of a case to a panel of experts Popular in the construction industry

Question 86

Reference to a third person

Answer 86

A settlement that allows a no part to resolve the dispute

Question 87

Association tribunal

Answer 87

A court created by a trade association or group for the resolution of disputes among it's members Use may be required by the association Does not negate potential for a lawsuit

Question 88

Summary jury trial

Answer 88

A mock or dry-run trial for parties to get a deep for how their cases will play to a jury No evidence presented, and decision has no binding effect

Question 89

Rent-a-judge

Answer 89

Dispute resolution through private courts with judges paid to be referees for the cases Determination is binding unless reversed on appeal

Question 90

Minitrial

Answer 90

When only part of a case is disputed, parties may take only disputed areas to be submitted to a jury trial (Trial held on portions of the case or certain issues in the case)

Question 91

Contracts provisions

Answer 91

May stipulate ways of settling future disputes May include use of waiting periods

Question 92

Court of appeals of the state of new york

Answer 92

- new York's highest court - chief judge + 6 associate - 14-year term (Mandatory retirement age 70) - appointment by governor based on names submitted by Commission of Judicial Nomination and confirmed by state senate - no jurisdictional limit but generally rules on issues of law instead of individual disputes - usually the second layer of appellate review - novel legal issues of statewide significance or an issue of conflict in intermediate appellate courts

Question 93

Riley v. California

Answer 93

A warrantless cell phone search violates the fourth amendment right to privacy (even if seizes with an impounded car)

Question 94

Rule of four

Answer 94

If at least four supreme court justices want to take a case then they take it

Question 95

levels of NY state court system

Answer 95

Original jurisdiction: Supreme Court then Supreme Court appellate Division then NYS Court of Appeals is apex court