Ch 2. Courts and Alternative Dispute Resolutions Flashcards
Judicial Review
The process of determining if the laws and actions of the other two branches of are constitutional.
-Decided by the judiciary branch because they are entrusted with interpreting the laws.
What requirements must be met before a lawsuit can be brought before a court?
- Jurisdiction
- venue.
- Standing to Sue
Jurisdiction (latin meaning and literal meaning)
Juris (law)
Diction (speak)
The power to speak the law.
In personam Jurisdiction
“personal jurisdiction”
A particular court can exercise personal jurisdiction over any person or business that resides in a certain geographic area.
In rem Jurisdiction
“jurisdiction over the thing”
A court can exercise jurisdiction over property that is located within its boundaries.
Long Arm Statutes
A court can exercise personal jurisdiction over certain out of state defendants based on activities that took place within the state.
Minimum-Contacts
Demonstration that the defendant has sufficient contacts with the state to justify the jurisdiction. (parking ticket, police report, willingly entered the state, etc)
Affidavit
Written statement, made under oath.
Subject-Matter Jurisdiction
Refers to the limitations on the types of cases a court can hear. Certain courts are empowered to hear certain kinds of disputes.
General Jurisdiction
Unlimited jurisdiction; court can decide cases involving a broad array of issues. (state or federal trial court)
Limited Jurisdiction
Limited to the types of cases they can decide. (probable court)
Probate Courts
State courts that handle only matters relating to the transfer of a person’s assets and obligations after the person’s death, including issues relating to the custody and guardian ship of children.
Bankruptcy Courts
Handle only bankruptcy proceedings, which are governed by federal bankruptcy law.
Courts of Original Jurisdiction
Courts in which lawsuits begin, trials take place, and evidence is presented.
Appellate Courts
Courts having appellate jurisdiction act as reviewing courts.
What is the difference between original courts and appellate courts?
Whether or not the court is hearing the case for the first time.
A Federal question arises when?
When a plaintiff’s cause of action is based, at least in part, on the US constitution, treaty, or federal law.
What is Diversity of Citizenship and what are the two requirements for the most common type?
Whenever a federal court has jurisdiction over a case that does not involve a question of federal law.
1. The plaintiff and defendant must be residents of different states
AND
2. The dollar amount in controversy must exceed $75,000
Concurrent Jurisdiction
When both the federal and state courts have the power to hear a case, as is true in suits involving diversity of citizenship. Examples. Most cases involving federal questions and diversity of citizenship.
Exclusive Jurisdiction
When cases can be tried in only federal courts, these cases must start in the federal court
What are some examples of things that Federal courts have exclusive jurisdiction over?
Federal crimes, bankruptcy, most patent and copyright claims, in suits against the us, and in some areas of admiralty law( law governing transportation on ocean waters.
What are some examples of things that State courts have exclusive jurisdiction over?
Divorce and adoption.
What Factors can affect a party’s decision to litigate in a federal vs. a state court?
- Availability of different remedies.
- The distance of the respective courthouses
- The reputation of a particular judge
- Bias in state court (if plaintiff is from oklahoma, but defendant is from texas; Defendant would want federal court due to bias in the Oklahoma Court towards plaintiff.)
Sliding Scale Jurisdiction
standard for determining when the exercise of personal jurisdiction over an out of state internet based defendant is proper.
Three types of internet business contacts used in developing the standard of sliding scale jurisdiction?
- Substantial business conducted over the internet. (with contracts and sales) (jurisdiction is proper).
- Some interactivity through a website. (either one)
- Passive advertising. (jurisdiction is improper)
Venue
Most appropriate location for a trial.
Standing to Sue
Sufficient stake in a matter to justify seeking relief through the court system. AKA a party must have legally protected and tangible interest at stake in the litigation.
Justiciable controversy
A controversy that is real and substantial as opposed to hypothetical or academic.
What are the levels of a state court system?
- Local trial courts of limited jurisdiction
- State trial courts of general jurisdiction,
- State courts of appeals (intermediate appellate courts)
- States highest court often called State supreme court.
Trial Courts
Courts in which trials are held and testimony is taken.
Small Claims Court
Inferior trial courts that hear only civil cases involving claims of less than a certain amount.
True or false? Appellate courts usually focus on questions of law, not questions of fact.
True.
Question of Fact
Deals with what really happened in regard to the dispute being tried.
Question of Law
Concerns the application or interpretation of the law.
What are the tiers in the Federal Court System?
- US District Courts (Trial courts of general jurisdiction) and various courts of limited jurisdiction.
- US Courts of appeals (intermediate courts of appeals)
- United States Supreme Court.
US District Courts
US district courts have original jurisdiction in matters involving a federal question and concurrent jurisdiction with state courts when diversity jurisdiction exists.
How many Federal judicial districts are there?
94
How many courts of appeals are there in the federal court system?
13
True or false? The supreme court can review any case decided by any of the federal courts of appeal, and it also has appellate authority over cases involving federal questions that have been decided in the state courts.
true
Writ of certiorari
An order issued by the supreme court to lower court requiring the latter to send it the record of the case for review. Will not issue a writ unless at least four of the nine justices approve it.
What is it called when the court will not issue a writ unless at least four of the nine justices approve it?
Rule of four.
Litigation
The process of resolving a dispute through the court system. (expensive and time consuming)
Why are Alternative Dispute Resolution (adr) becoming so popular?
- Litigation is extremely expensive.
- Some courts, including OK family courts, require mediation or ADR before court.
- To Keep Docket low
- Lower costs for defendant and plaintiff.
Docket
A list of cases to be heard by a court or a log containing brief entries of court proceedings.
What percent of lawsuits today are settled before trial using an ADR?
90%.
Negotiation
Process in which the parties attempt to settle their dispute informally, with or without attorneys to represent them.
Why does negotiation beat litigation?
Because it is easier and less expensive because you do not have to go to court.
What are some characteristics of negotiations?
- less formal
- Settles claim voluntarily
- most courts require a showing of some sort of negotiation
Mediation
A neutral third party acts as a mediator and works with both sides in the dispute to facilitate a resolution.
What is the goal of mediation?
- To make both parties happy
2. To show court that you have attempted to solve issue prior to litigation
What are some characteristics of mediation?
- Parties choose neutral third party to hear dispute
- Mediator doesn’t give award
- Usually not as adversarial in nature
- Usually offers a solution
- Acts as a “go between” the parties and usually meets separately with parties
- Helps facilitate a settlement
- ok family courts require mediation often times for settlement purposes before court
Arbitration
Most formal method of ADR. An arbitrator (neutral third party or a panel of experts) hears a dispute and imposes a resolution on the parties. If the parties agree before hand to be bound then they must accept the decision and cannot appeal, if they do not make an agreement before or the arbitration is offered by the courts then they can appeal
What are some characteristics of arbitration?
- Most formal and popular ADR
- Impartial third party is chosen
- Evidence and testimony is presented to arbitrator
- arbitrator renders an “award”
- If agree in advance to bound, parties are bound and cannot appeal
- If parties do not agree. or it is court ordered, then the party is not bound by agreement.
- Court will not send a case to arbitration if rules and procedures are unfair to one of the parties.
What is the main difference between mediation and arbitration?
Mediation just declares a settlement.
arbitration declares a winner and a loser.
Arbitration clause
Parties include this written agreement in a contract that specifies that any dispute arising under the contract will be resolved through arbitration rather than the court system.
Arbitrability
Whether the matter is one that must be resolved through arbitration.
What are some other types of ADR?
- Early Neutral case evaluation
- Mini-Trial
- Summary Jury Trials
American Arbitration Association
Major Provider of ADR services and handles more than 200,000 claims a year.
Online Dispute Resolution
Settlement of disputes in online forums.
Forum Selection Clause
Clause that states for any reason you wish to sue your employer (etc) that you must go to the court district that is chosen/applies to their location.
Choice of Law clause
Clause that states if you are suing a vendor or employer that you must follow the laws of the state that applies to that party.
