Chapter 4 & 5 Flashcards
(107 cards)
1
Q
Judicial Review
A
The process by which courts decide on the constitutionality of legislative enactments and actions of the executive branch
(Checks and Balances)
2
Q
Marbury v. Madison
A
Defines judiciary roll
3
Q
Basic Judiciary Requirements
A
- Jurisdiction
- Venue
- Standing
4
Q
Jurisdiction
A
The power to speak the law
5
Q
Jurisdiction over People and Property
A
- In Personam
- In Rem Jurisdiction
- Subject Matter Jurisdiction
6
Q
In Personam Jurisdiction: Residents of the State
A
Individuals who live in the state, business are residents of the state where they are created and where they do most of their business (headquarters, main factory, etc.)
7
Q
In Personam Jurisdiction: Non-Residents of the State
A
LONG-ARM JURISDICTION
- Require the non-residents to have “minimum contacts” with the state
8
Q
Minimum contacts if the DEFENDANT is an individual
A
- Injure someone within the state
- Breech or form a contract within the state
- Come to the state regularly to do business
9
Q
Minimum contacts if the DEFENDANT is a Corporation
A
- Do business within the state
- Advertise/sell products within a state
- Place goods in the “stream of commerce” with the expectation of purchase by residents of the state
10
Q
In Rem and Subject Matter Jurisdiction are ONLY used when…
A
- There is a non-resident defendant
- AND long-arm jurisdiction cannot be proven
11
Q
In Rem Jurisdiction
A
- Used in disputes over property ownership
- Property must be within area in which court sits (court’s territorial jurisdiction)
- Allows party to file an action against a non-resident personally
- Long-arm cannot be established
12
Q
Courts prefer to have jurisdiction over…
A
the people and not the property
13
Q
Subject Matter Jurisdiction
A
- General and limited
- Defined by statue/constitutional provision
- Original v. Appellate
- Federal Jurisdiction
14
Q
Courts of General Jurisdiction
A
broad power, many cases
15
Q
Courts of Limited Jurisdiction
A
limited subjects they can hear
ALL ABOUT EFFICIENCY
16
Q
Examples of courts with limited jurisdiction (State)
A
Probate courts
17
Q
Examples of courts with limited jurisdiction (Federal)
A
Bankruptcy
18
Q
Court’s subject matter can be limited by
A
- The subject of the lawsuit
- The amount of money in controversy
- If criminal, the seriousness of the crime
- Whether it’s a trial or an appeal
19
Q
Original Jurisdiction
A
Hearing a case for the first time
(Usually trial courts, but the SUPREME COURT has original power too)
20
Q
Appellate Jurisdiction
A
hearing a case for review
21
Q
Jurisdiction of the Federal Courts
A
- Federal Questions
- Diversity of Jurisdiction
- Diversity of Citizenship (plaintiff and defendant are from different states)
- Dollar amount in controversy exceeds $75,000
22
Q
Concurrent Jurisdiction
A
More than one court could take jurisdiction
23
Q
Exclusive Jurisdiction
A
Trumps the rule of diversity jurisdiction
24
Q
Federal Exclusive Jurisdiction!!
A
Bankruptcy, patents, copyrights
25
State Exclusive Jurisdiction!!
Divorce and adoption
26
Jurisdiction in Cyberspace
"The sliding scale standard": courts have identified these types of internet business contacts:
1. Substantial business conducted over the Internet
2. Some interactivity through a website
3. Passive advertising
27
Venue
Refers to the geographic location where it is most appropriate for the trial to occur
28
General rule of venue:
The venue is proper where the DEFENDANT resides OR where the cause of action occured
29
Court can still hear cases even if venue is not proper
- Incumbent on the parties to request a change in venue
- Courts only care about subject matter jurisdiction
30
Courts can change venue for:
1. If the interest of justice cannot be served in this venue (impartial jury cannot be picked, etc.)
2. The convince of parties (travel costs, lodging costs, time off, etc.)
31
Standing
The PLAINTIFF must have sufficient "stake in a controversy to seek judicial resolution AND "justifiable controversy"
32
"Stake"
Legally protected and tangible interest
Must have been injured or have been threatened with injury by the action
33
"Justifiable controversy"
A controversy "ripe" for judicial review which is REAL and NON-HYPOTHETICAL
34
Dollar amounts in the Brazos County:
- Local Small Claims Court: less than $20,000
- County Trial Courts: less than $200,000
- State Trial Courts: $200,000.01 to infinity
35
How many circuits are there in the US?
13 for appellate purposes
36
Trial courts at the federal level =
District courts
37
Texas is in the ___ circuit
5th
with Louisiana and mississippi
38
Where is the physical location of the federal appellate court for Texas?
New Orleans
39
Does D.C. have its own circuit?
Yes, it is a district not a state
40
Majority of the states have __ trial courts, but Texas has __
2; 3
41
Majority of the states have __ high court(s), but Texas has __
1; 2 (divided into civil and criminal at the state court of appeals)
42
What is the only way to get to the federal Supreme Court through the state system?
If there is a federal question
43
Alternate Forms of Dispute Resolution (ADR)
Alternate ways of disposing of legal disputes other than the court system
44
Negotiation
Do before filing lawsuit OR after, not a good chance of winning in court
45
Mediation
Parties use a third party to guide them to a mediated settlement
- third party = mediator, can be court-ordered, can be agreed upon, doesn't have to be an attorney
46
Arbitration
Third party (arbitrator) makes a decision of the case (like a judge)
- usually binding
- sometimes contracts, leases, etc.
47
Contingency Fees
If your case is not won, your attorney does not get paid
- 33.3%-40% of remedies
- Attorney take a lot of cases, they focus on the ones that they can win and make money on
48
Hourly Fees
Hourly Rates: ($100-$500/hr)
Patent Rates: ($900-$1,000/hr)
49
Retainers
Lump-sum amount is paid upfront
- $20,000 to $30,000
- Hourly rate is taken out of the retainer until it is used up, then clients are billed hourly or the client is forced to pay another retainer
50
Stages of Litigation
1. Pretrial
2. Trial
3. Post Trial
51
What kind of fees would the defendant's personal attorney charge?
Hourly Fees
52
What kind of fees would the plaintiff's personal attorney charge?
Contingency Fees
53
What type of cases are retainers used in?
Criminal, defense, probate
54
Pretrial Stage: Pleadings stage
The plaintiff files, the documentation that kicks off the lawsuit
55
Federal Documentation starting the Pleadings Stage of the Pretrial Procedures
Complaint
56
What does the plaintiff file to start the Pleading Stage of the Pretrial Procedures?
A complaint/petition containing:
- Statement of facts establishing jurisdiction
- Statement of facts showing plaintiff's claim/cause of action/basis for relief
- Statement of remedy
(file, pay the fee, the clerk creates a summons)
57
Service of Process
"Serving the defendant"
- Defendant gets a copy of complaint/petition and a summons/citation (MUST be done)
- Defendant is served by sheriff, constable, or a process server (third-party private)
(Defendant has a specific amount of time to appear in court: the pleading = the answer)
58
Difference Between Facts and Legal Issues (ex: Car Accident)
Facts: Was the defendant speeding? Were the road conditions bad? Did he ignore a stop sign?
Legal Issue: Statute of Limitations (time you have to file a case)
59
What is the statute of limitations for torts: personal injury, medical malpractice, and car accidents?
2 years
60
If there is disagreement on facts...
Motion for Summary Judgement cannot be filed
61
Defendant Files an Answer (Pleadings Stage)
- If the defendant does not answer within time limit after service, then he defaults and the plaintiff wins
- Denial of Plaintiff's allegations (typical)
- Affirmative Defenses
- Counterclaims
62
Affirmative Defenses
A response to a plaintiff’s claim that does not deny the plaintiff’s facts but attacks the plaintiff’s legal right to bring an action. An example is the running of the statute of limitations.
63
Counterclaims
The defendant claims back against the plaintiff
64
Dismissals and Judgements before Trial
1. Motion to Dismiss
2. Motion for Judgement on Pleadings
3. Motion for Summary Judgement
65
Motion to Dismiss
(Usually difficult to do)
1. Subject matter jurisdiction is not correct
2. Lack of standing
66
Motion for Judgement on the Pleadings
Motion asks the court to decide the issue solely on the pleadings without proceeding to trial
- ONLY if there is no dispute over the facts of the case and the sole issue to be resolved is a question of the law
67
Motion for Summary Judgement
(filed in many cases)
- NO disagreement on facts (must be shown to the judge)
- Judge can use evidence other than pleadings (Discovery, sworn affidavits, certified documents)
- ONLY granted if no genuine question of fact exists and only question is a question of the law
68
The purpose of Discovery
1. Obtain Information
2. Preserve Evidence
3. Helps in Settlement
4. Prevents Surprise
5. Establishes witness' testimony
6.. Narrows issues in dispute for trial
69
Types of Discovery
1. Depositions
2. Interrogatories
3. Requests for Admissions
4. Requests for Documents and other tangible things
5. Requests for Physical and Mental Examinations
70
Depostitions
Call witnesses/parties in to record their statement
1. Preserve testimony for witnesses who will be unavailable at trial
2. Impeachment
3. Help attorneys prepare case
4. Any potential WITNESS can be deposed (sworn testimony)
- Can be expensive
71
Interrogatories
Written QUESTIONS that parties answer under oath (open-ended questions usually)
72
Requests for Admissions
Written REQUESTS for admission statements from parties
- Factually relevant evidence used in the case
- "Admit or deny"
73
Why are requests for admissions not a waste of time and money?
Even though most people deny everything, if you do not respond within 30 days, everything that is asked against you is automatically "admitted"
74
Pretrial Conference
1. Attorneys meet with judge before trial to agree on manner in which trial will be conducted
2. Limit issues
3. Establish ground rules
75
Right to Trial By Jury in a civil case
You do not have a right to a jury in a civil case
- If you do not request or pay the fee for a jury in a civil trial you will default to a bench trial
76
Right to Jury Trial (federal)
7th Amendment guarantees right to a jury trial in federal court if the amount of controversy exceeds $20
- 12 jurors in the district court in Texas (usually 100-200 people summoned)
- Party must request a jury
77
Jury Selection (Voir Dire)
1. Challenge for Cause
2. Peremptory Challenge
78
Challenge for Cause
"Unselecting" the jury as we find people who are not well suited
UNLIMITED
79
Peremptory Challenge
Numbers based on whether there are 6 or 12 jurors
Do not have to state a cause, but you cannot use them on RACE or GENDER
LIMITED
80
Rules of Evidence: Relevancy
Tends to prove or disprove a fact in question
(Based on PROBABILITY)
1. Not all relevant evidence is admissible
2. Even if evidence is relevant, the probative value of it must outweigh the prejudicial affect it might have
3. Even if evidence is relevant, it cannot be cumulative
4. Even if relevant, evidence cannot tend to confuse or mislead the jury
81
Probative Value
"proof value"
82
What does it mean by evidence, even if relevant, cannot be cumulative?
You cannot keep saying the same thing over and over again
(The jury tends to believe what they hear most)
83
Hearsay
Any testimony given in court about a statement made by someone else out of court
"He said she said" or gossip
- Generally not admissible in court
84
Why should we keep Hearsay out of court?
It hasn't been proven
How do you question the judgement if the person repeating it didn't originally say it?
YOU LOSE THE ABILITY TO CROSS EXAMIN THE WITNESS
85
In Texas ___ exceptions exist to the hearsay rule.
24
86
What is Dying Declaration?
An exception to the hearsay rule in Texas
- If the witness hears the victim with his last dying breath say who killed him, that has credibility and the jury gets to hear this
87
What are the steps of a trial?
1. Opening Statements
2. Examination of Witnesses
3. Party with the burden of proof (plaintiff) rests
4. Motion for directed verdict
5. Opposing party (defendant) presents its case
6. Defendant rests
7. Either party can move for directed verdict
8. Rebuttal
9. Rejoinder
10. Closing Arguments
11. Court Charge
12. Verdict
88
Opening Statement
The ROAD MAP to what the trial is about
89
Examinations of Witnesses
1. Direct examination
2. Cross examination
3. Redirect examination
4. Recross examination
90
What are the purposes of objections?
Used to prevent errors (if you lose the list of objections "errors" are sued during appeals)
91
Court Charge
- Instructions to jury on law
- Questions for jury to answer on liability and damages
92
Vedict
Announced in court after decision made by judge or jury (deliberations)
- If jury trial, jurors are then discharged
(sometimes the judge does not accept the verdict)
93
Motion for a New Trial
1. Newly-discovered evidence
2. Jury obviously misapplied the law
3. Jury obviously misunderstood evidence
4. Misconduct by participants
5. Legal error by judge
94
Where do you file a notice of appeal?
In the trial court
95
Motion for JNOV (Judgement Not Withstanding the Verdict)
- If filed motion for directed verdict, can now reurge motion and judge can grant
- Even if view all evidence most favorably to party, a reasonable jury should not have found for a party
96
Filing an Appeal: Notice of Appeal
- Filed by losing party in trial court
- Must be filed within time period prescribed in rules
97
Filing an Appeal: Record
Transcript of testimony, including exhibits
Pleadings, motions, charge, judgement
98
Filing an Appeal: Brief
- Filed by each party in appellate court
- Appellant's brief explains how trial court erred
- Appellee's brief explains how trial court was right
99
Appellate Review
1. Oral Argument
2. Appellate court does not hear evidence; bases its decision on record, briefs, and oral arguments
3. Appellate court issues a decision and has the following options on its decision (Affirm, Reverse, Modify)
100
Appellate Review: Affirm
Agree with what the trial court did
101
Appellate Review: Reverse
There were errors in trial court
(Reverse and Remand, and Reverse and Render)
102
Reverse and Remand
Sending it back to the trial court, something about the case has to be redone
103
Reverse and Render
The loser at trial has become the winner at the court of appeals
104
Modify
Reduce the damages (cannot be increased)
105
Appeal to Higher Court
- No automatic right of appeal to a state or US Supreme Court
- Losing party may only appeal to the US Supreme Court from state supreme court if a federal question was involved; otherwise, state supreme court decision is final
106
Enforcing the Judgements
1. Court Assistance in Collection - Writ of Execution
2. Availability of Assets
107
Writ of Execution
A court's order, after a judgement has been entered against the debtor, directing the sheriff to seize (levy) and sell any of the debtor's nonexempt real or personal property. The proceeds of the sale are used to pay off the judgement, accrued interest, and costs of the sale. Any surplus is paid to the debtor.
