ALP FINal

Question 1

Civil Case Resolution Prior to Trial—Settlement Process

Answer 1

Court will ask which party has wronged the other and how the wrongdoer is to compensate the victim. Settlement often takes place prior to trial frequently on behalf of a lawyer for their client to minimize costs for everyone as litigation is both expensive and time consuming. The purpose of civil court remedies is to dispute resolution and modify behavior to prevent further issues with the law, these remedies include damages, restitution, coercion, and declaration of rights or status.

Question 2

Types of Civil Cases

Answer 2

Contract cases – cases regarding a contract regarding a violation within a pre-existing agreement
Torts – intentful harm
Property Law – cases regarding the loss or gaining of property between two parties
Domestic Relations – legal matters of family like divorce and child custody, support
Estates – usually concerning wills and fraud, as well as estate planning

Question 3

Torts

Answer 3

A tort is a case regarding a plaintiff or victim in which the wrongdoer is aware of the harm they cause, this is different than a contract case in which a violation is brought before the court between two parties that had a prior agreement that was legally binding. Torts are usually caused in cases regarding negligence, assault, or battery.

Question 4

Facts of the Buffalo Creek Disaster and Lawsuit

Answer 4

The Buffalo Creek Disaster occurred when a dam in the area built by the Pittston Coal company broke and flooded the homes and neighborhoods of the people in the town. The flood left many citizens homeless, injured over 1,000 people and killed over 100. 3 impoundment dams were built to contain the stream of water containing runoff from the mining operations, and the first two dams were built downstream from the 3rd, and it was the 3rd dam that broke and caused the flood. 3 commissions placed blame on the ignored safety precautions not undertaken by the Pittston company. When the case was placed before the courts, the verdict did not decide an outcome but issued a resolution for a settlement by a bench trial for $13.5 million in 1974. While the actual settlement did little to aid the community of Buffalo Creek, Senate did respond to the disaster with the creation of the National Dam Inspection Program to prevent dams from not being under effective public control. Even though the company wasn’t placed under complete court responsibility, the case did pierce the corporate veil in which the limited liability afforded to the Pittston Company did not protect them from the threat of their personal assets being used to satisfy the liability resolution. In the beginning of the trial, Pittston didn’t want the case to go to trial due to media exposure negatively affecting business interests and investors. Pittston had plans to open a mine in Maine and if they were found guilty of recklessness or negligence, their business plans would end.

Question 5

Gerald Stern and Arnold & Porter

Answer 5

Gerald Stern took the case after working pro bono with the DC law firm, but took the case due to his knowledge of mining law, and filed suit originally in the West Virginia federal district court via forum shopping for the best judges to decide on coal mining issues. He reasoned with filing in the federal court because he had pierced the corporate veil regarding the relationship between the Buffalo Creek Coal Mining Company and the Pittston Mining Company as they weren’t shareholders in the Mining Company but acted as a partner company. In addition to his, Stern had to weigh the options of filing in the state courts due to the advantages of having a community’s support via a jury. Stern instead felt there could’ve been a conflict of interest among potential jury members who were unconsciously sympathetic to the Buffalo Creek Mining Company. In the suit, Stern hit a number of blocks he had to resolve to bring the case to trial. Due to the case not going to trial, we’ll never know exactly on what terms it would’ve been tried or dismissed. Stern had to prove that Pittston’s claim of it being an ‘act of God’ was false and the company’s actions were not only negligent but also reckless.

Question 6

Discovery

Answer 6

After a suit is filed, there is a period of discovery where both sides turn over a lot of information in civil cases. Oppositions will strategically flood information to stun them and weaken the usability of useful documents, in addition to sending request after request to limit/take away from their preparation time. In the Buffalo Creek case, this was a way the court incentivized settlement.
Solicitation

Question 7

Solicitation

Answer 7

Solicitation – turning soliciting clients, was a big issue in Buffalo Creek because of the concern that the DC law firms were soliciting clients in the WV area when they were meant to be clients of local law firms. You have to be licensed to practice in a state to represent clients, and at the time of the case, they needed to work with local attorneys in WV. Though the case was at the federal level, the attorneys required federal pleasure to take the case. Now there is more legal ability and ethical reasoning under the American Bar Association to represent personal injury clients.

Question 8

Contingency Fees

Answer 8

Contingency Fees are payments made on the back end of a case for pro bono work and are frequently a percentage of the case’s damages. In Gerald Stern’s case, they took 1/3 of the damages resulting from the resolution because if they had only taken ¼, they would’ve undercut the local lawyers who missed out on representing the Buffalo Creek clients in the case.

Question 9

The Corporate Veil

Answer 9

Typically, in civil law, individual shareholders aren’t responsible for liability concerns for companies for which they hold shares or stocks. (ex. Lawsuits against things in the stock market you aren’t liable in them) Pittston was claiming it was a shareholder in the Buffalo Mining Company but wasn’t, and because it claimed they were, but wasn’t the Judge should go against the norm and decide the even if Pittston isn’t the only shareholder in the Buffalo Mining Company, they should be held responsible. When they found out that Pittston wasn’t a holder, the judge was likely to pierce the corporate veil if the court went to trial. The case was resolved because the case said they required diversity jurisdiction in the case.

Question 10

Davis (1899) WV Supreme Court

Answer 10

In Buffalo Creek, they ask what damages Pittston might owe the victims of the disaster based on their psychic impairments. The federal district courts for WV applied WV state law where it exists, and if there isn’t a state law, they use federal law. The rule in WV is common in the US there were no damage awards for psychic or mental suffering if it occurred absent of any physical harm due to it being a nebulas concept due to the social stigma of mental issues. In Davis, the telegraph comes to a gentleman late and the man is late for his mother’s funeral and sues the telegraph company for mental distress. The court ruled that physical injury has to accompany and mental suffering.

Question 11

Monteleone (1945) WV Supreme Court

Answer 11

Monteleone in 1945 lays out a separate test for psychic impairment where a cable car hits a windshield, but PTSD is involved as we understand it today, but they say you can sue for damages when the impairment is accompanied by physical harm, or if you develop a physical injury after the accident, you can get damages. If the harm came to you as part of a wanton or reckless action, you don’t have to have physical harm to get mental suffering damages due to the right of a person to have mental tranquility. This was utilized by Stern to gain damages in the suit for those who weren’t at the disaster but suffered mentally because of the event. Because the case doesn’t go to trial, the monetary damage potential allows them to stay in federal courts.

Question 12

Decisions at Civil Trials

Answer 12

A case at the civil level usually determines monetary damages, and thus requires liability of a defendant to a plaintiff’s claims to determined responsibility for alleged damages. There is a standard of proof via a preponderance of evidence standard which say that the defendant is more likely than not responsible. This is different than criminal cases in which proof beyond a reasonable doubt is the standard for conviction.

Question 13

Mediation

Answer 13

A simplified version of a trial where the arbiter is the decision maker and both sides agree wot the arbiter’s decision as binding, includes no discovery and simplified rules of evidence

Question 14

Goals of Criminal Justice System

Answer 14

Retribution, general deterrence, rehabilitation, and incapacitation
Process is Arrest Initial Appearance within 24 hours Charging Decision  preliminary hearing or Grand Jury, usually states will offer information hearings  arraignment for non guilty pleas Discovery Pretrial motions  then non-trial disposition for plea agreements or dismissals or trial  Trial has jury selection, opening statements, prosecutor and defense cases with evidence, deliberation and verdict

Question 15

Problems in Criminal Justice Policy (Unfair)

Answer 15

Criminal law from unfair and biased, and criminal justice policy is ladened with the politics of fear; crime is treated as distinct policy trouble differently in the media and politicians than policy like how the media covers crime (if it bleeds it leads) perpetuated greatly by the war on crime political uproar in the 1980s and 90s. Biased – the author’s argument regarding bias in the legal system both conscious and unconscious. Unconscious bias is most likely to occur and do the most harm where there is more discretion by judges and juries both regarding racial, socioeconomic, and gender bias. The unconscious bias is so pervasive in the legal system, when combined with Unfair, it is present at every step of the legal process from suspects to juries and prosecutors. Even those that try to be unbiased and often obtain education to be unbiased like judges at the state and federal level, we cannot get rid of bias even at the individual level. You have to confront and consciously review one’s personal bias in scenarios. There also issues with the sentencing of the criminal justice system including the prescribing of minimum prison terms for certain crimes regardless of individual circumstances in all 50 states like specific drug offenses that lead to prison overcrowding in addition to pretrial detention occurring from bond postings.

Question 16

Brown V. Plata 2011

Answer 16

The Prison Law Office in Berkeley, Calif., filed a class-action lawsuit in April 2001 on behalf of Marciano Plata and several other prisoners, alleging that California prisons were in violation of the Eighth Amendment to the Constitution, which bans “cruel and unusual punishment.” Following a lengthy trial, a special panel of three federal judges determined that serious overcrowding in California’s 33 prisons was the “primary cause” for violations of the Eighth Amendment. The court ordered the release of enough prisoners so the inmate population would come within 137.5 percent of the prisons’ total design capacity. That amounts to between 38,000 and 46,000 inmates being released.

Question 17

Defense Attorneys/Types of Public Defenders

Answer 17

Indignant clients – public defenders via the 6th Amendment and people cannot pay for their own defense and if you qualify, the state has to provide you an attorney. In some states, the courts may assign from a pool individual cases as they arise day to day. There are public defenders employed by the state and not paid case by case but represent clients with a set of cases on a salary. Where there are more criminal cases, there are more state-employed public defenders. In more rural cases, where there are fewer public defenders, members of the bar in the locale will be assigned cases to represent clients, though they may be at different levels of expertise, and often have heavy caseloads, more than those in private capacities paid individually for their services.

Question 18

Prosecutorial Discretion

Answer 18

Prosecutors always determine case or trial ability: or whether or not a trial can go forward with the evidence. There are sometimes when a defendant doesn’t want the case to go to court, but if the defendant is there evidence, they will dismiss the case. But it is not the ability of the victim to determine if a case can go to court fully, the prosecutors are defending the state in civil cases to uphold the social order, so they are tasked with a duty to right the wrong that has been done by the situation by the law. That being said, in some cases with civil and criminal cases, if there isn’t proof beyond a reasonable doubt that someone committed a crime like murder, there may be more cause that wrongful death was committed at the civil level.
Private prosecutors have evidential criteria to pursue a case (is there enough evidence)

Question 19

Charge Bargains (Vertical & Horizontal)

Answer 19

Horizontal and Vertical Reduction in Charge Bargain – agreeing to a plea bargain can result in a reduction of a charge bargain. If one criminal act results in 3 separate charges, a judge can offer to reduce the possible sentence and drop a charge, it the defendant pleads guilty. Horizontal charges include pleading guilty to dropping a charge. A vertical bargain occurs in a case regarding a charge of assault in the state courts, if charged with aggravated assault, a reduction can say from prosecutor to defense attorney, if they plead guilty, they face simply assault at a lower penalty, this includes dropping charges from felonies to misdemeanors.

Question 20

Prosecutor’s Sentence Bargains

Answer 20

A prosecutor might agree to make no sentence recommendation or allow the defendant to go before a lenient judge. The judge isn’t obligated to accept the prosecutor’s recommendation

Question 21

Sentencing Criteria

Answer 21

The severity of the offense and the defendant’s criminal records are used first, then potential factors include race, economic status, employment, and family circumstance.

Question 22

Criminal Justice vs. Other types of policymaking

Answer 22

Americans have a skewed idea of crime rates and the cause of crime, but the states on cancer don’t treat the same way in the healthcare system. We overestimate how bad crime is nationwide, though violent crime is on a downward kick, but we have politicians that advertise that the streets aren’t safe, which can be steamrolled into immigration issues.

Question 23

Voir Dire

Answer 23

The process of determining eligibility of a potential jury member; voter registration lists are used the most to find jurors, which means usually juries are skewed to older citizens.

Question 24

Grand Jury

Answer 24

Grand jury is similar to an information proceeding used in hearings before trial if there is 51% chance of a crime being committed.
o Group of citizens who determine whether there is sufficient evidence for a person accused of a crime to be brought to trial
o If evidence is sufficient, they hand down indictment to send on to a trial for prosecution

Question 25

System Information Proceedings

Answer 25

Akin to a grand jury hearing, in a criminal case before a case going to trial there has to be a determination that there is enough cause through the 5th Amendment to keep going with the trial. To prevent malicious prosecution, a trial has to go before a grand jury to get an indictment, but states don’t have to provide grand juries, though federal courts do. This is why any trials we hear in the press have gone through the indictment process before. A refusal or a no bill is issued if there isn’t cause to proceed in a trial to persecute the defendant in a criminal case. There is a hearing before a judge usually a pre-trial, where the prosecutor presents the evidence that the crime occurred and they have to prove that it’s more likely than not that a crime was committed, at which point then the trial proceeds and an indictment is issued.

Question 26

Petit (Trial) Jury

Answer 26

Petit juries are gathered for individual cases the whole way through the process and rule on guilt.
o Fact finder when party to a case requests a jury—more often criminal than civil
o Criminal case—usually meet to make decision whether accused person is guilty or not
o In some states juries also determine sentencing

Question 27

Juries in the criminal law system

Answer 27

Juries could be giving damages as part of the verdict, but the judge usually reduces the damage amount. A jury handles guilt, but the judge orders the sentence, except in cases with the death penalty. With states, they can decide to give juries the choice to give sentences as well, but usually, it is with the judge.
5th Amendment rights to a jury of your peers are applied to states through the 14th Amendment via the Supreme Court. In a criminal case, if a defendant requests a jury trial it is granted.

Question 28

Juries in the civil law system

Answer 28

In the 7th Amendment in civil cases in the federal court, if a defendant requests a jury for a suit regarding more than $20 it is granted. In the states, it is up to the state to determine a jury.

Question 29

Differences between trial and appellate courts

Answer 29

• Settlements?
  o Appellate cases much less likely to be settled—why?
• Influence of a single judge
  o Appellate courts typically sit in panels of three
• Attorney Experience
  o Repeat Players—States? Solicitor General’s Office?

Question 30

Differences between mid-level and high-level appellate courts

Answer 30

Appellate – there are mid-tier and high level heard after the case is decided at the lower courts due to fixing errors in procedure or application of the law, and at the high level, they interpret the law and reapply it to the case with the chance of reversing, expanding, upholding, or dismissing cases (at the supreme court level (affirm, reverse, modify, and vacate)
* Lower Level Appeals Courts—correct errors in application of the law at the trial
* Secondary Appellate Courts—goal is usually to clarify the law
Original jurisdiction comes as a trial in the first instance is a court of first resort, usually in general district level courts, either state or federal level; in Virginia, it could be a circuit court

Question 31

Actions & Opinions issued in the appellate courts

Answer 31

A higher court can vacate the motion of a case due to the time that has passed in between hearings due to the law being changed since the decision. They rule not that there is fault in the court’s proceedings or verdict, but that the decision no longer stands as precedent.
* Majority Opinion—court decision and controlling legal precedent
* Dissenting Opinion—explains differences with majority
* Concurring Opinion—agreement with outcome, but additional or different reasoning
* Per Curiam Opinion—majority’s unsigned opinion
* DIG—Dismiss as Improvidently Granted—dismiss after case granted and typically oral arguments heard—if discretionary
High court discretionary jurisdiction

Question 32

Supreme Court Process—cert and merit stages

Answer 32

Diversity jurisdiction is a federal jurisdiction – the way a case ends up in federal courts is if the government is a party, federal law is an issue in the case and the third is diversity in which there are two parties from different states and the value in dispute is more than $75,000. All other cases will be heard at the state courts; one reason to be in the federal courts is that the money possible to be obtained in the case might be greater at the federal level than at the state level.

Question 33

Cue Theory

Answer 33

Justices Denying Cue Theory – Cure theory regards the attempt to explain why the Supreme Court takes the cases it does when it has the discretion to do so. It’s developed by political scientists, though judges don’t talk about law that way so they don’t think about it. Judges don’t necessarily deny them, but judges look at/review individual cases and political scientists are thinking big picture. There are legal cues like conflict at the circuit courts regarding an issue in a case, but have resolved the issue differently than the case, and they are more likely to take it. If the government is a party to a case, it has national import/significance. There are political cues like how many amicus briefs were filed to support or oppose the cert petition to ask the Supreme Court to hear the case. The more amicus briefs there are, the more likely they are to take the case. If the case involves an issue pertinent to their ideals, they will take it. During the Rehnquist court, federalism was a pertinent issue, so federalism cases had a better shot of being heard as an example. If an attorney is a repeat player before the Supreme Court, their cases will be more likely to be granted certiorari, also if the solicitor general files an amicus brief, which is a political cue. Rule 10 of the Supreme Court sets the guidelines to review petitions by clerks in the court’s office, but there is a list of non-listed cues like repeat players that propose cues.

Question 34

Models of Supreme Justice Deliberation

Answer 34

Legal Model – judges make deicsions based on stare decisis/precedent
Attitudinal Model – judges make decisions based on personal policy preferences
Strategic Actor Model – judges maximize utility, weighing and assessing their actions against other justices to increase the chance of their preferences being adopted