Ch. 2 Procedural Law

Question 1

2 kinds of jurisdiction

Answer 1

• personal

- subject matter

Question 2

personal jurisdiction

Answer 2

• “actor forum rei sequitur” = plaintiff should sue the defendant where they reside
• defendant has advantage of being in home state
• courts have personal jurisdiction over plaintiff
• minimum contacts test
• plaintiff decides what state(s) to file lawsuit

Question 3

“actor forum rei sequitur”

Answer 3

plaintiff should sue the defendant where they reside

Question 4

minimum contacts test

Answer 4

• show defendant has some kind of contact with state plaintiff is suing in
• due process clause
• minimum standard for it to be fair to defendant

Question 5

subject matter jurisdiction

Answer 5

• exclusive federal jurisdiction
• exclusive state jurisdiction (marriage, divorce, etc.)
• concurrent (shared) jurisdiction = federal law dispute; state law dispute with diversity of citizenship & over $75,000
• which court(s) a lawsuit can be filed (federal or state)

Question 6

what needs to be present to have precedent?

Answer 6

• personal and subject matter jurisdiction

Question 7

extent of contacts -> jurisdiction consequences

Answer 7

• no contact = no jurisdiction
• casual or isolate contact = no jurisdiction
• single act contact = specific jurisdiction
• continuous but limited contact = specific jurisdiction
• substantial or pervasive contact = general jurisdiction

Question 8

subject matter jurisdiction in federal court (2 ways)

Answer 8

1) federal law can be decided by federal or state court

2) state law issue (diversity of citizenship and minimum of $75,000)

Question 9

2 places where companies are considered citizens

Answer 9

1) where they incorporated

2) location of headquarter

Question 10

important note

Answer 10

state judges will favor in-state plaintiff over out of state defendant
(judges can be biased)

Question 11

can you consent to jurisdiction?

Answer 11

• personal jurisdiction = yes
• personal right of due process clause from US Constitution
• “forum selection” clause in a contract = contract indicated which state plaintiff can be sued in
• agree after the lawsuit
• subject matter jurisdiction = no
• court’s power over lawsuit is set by the Constitution

Question 12

• plaintiff’s goal

Answer 12

• get to trial to have a jury
• jury decides facts at trial
• judge decides law

Question 13

procedures of a lawsuit

Answer 13

• Stage 1: Pleadings*
  1. plaintiff files a complaint
  2. defendant answers the complaint paragraph for paragraph (may file motion to dismiss before or with the answer)
• ** if defendant doesn’t respond or doesn’t respond by the deadline, then plaintiff wins by default judgement
  3. defendant may counter with a defense (or counterclaim if defendant wants money from plaintiff)
• plaintiff must reply
  4. motion for judgement on pleadings (happens after answer is filed but before discovery
• Stage 2: Discovery*
• discovery is done outside of the court
• motion in limine = asking to use or prevent the use of documents in order to better prepare for the trial
• may have trial brief before trial if discovery took a long time to remind the judge of what the case is, what laws are involved, and expected length of the trial

Stage 3: Trial

Stage 4: Appeal

Question 14

motions

Answer 14

1. motion to dismiss = before or with the answer)
   - can use statute of limitations
2. motion for judgement on pleadings = after answer is filed but before discovery
3. motion for summary judgement = before trial
   - settlement is usually advised for plaintiff to go away and case not to be made a big deal
4. directed verdict motions

• **legal test for motions (2 requirements)
• no genuine issue of material fact assuming plaintiff’s facts are true
• moving party is entitled to judgement as a matter of law

Question 15

motion in limine

Answer 15

asking to use or prevent the use of documents in order to better prepare for the trial

Question 16

trial brief

Answer 16

• may have trial brief before trial if discovery took a long time to remind the judge of what the case is, what laws are involved, and expected length of the trial

Question 17

discovery methods

Answer 17

• interrogatories = written questions sent to the opposing party who has to answer under oath; these questions are usually pretty precise
• request for admission = goes out with interrogatories to narrow down the facts
• depositions = ask questions in person under oath; transcript is typed up; usually done in lawyer’s office
• request for inspection of documents and things
• request for production of documents
• mental and/or physical exams (if relevant) = can have plaintiff go to defendant’s doctor or vice versa; doctor’s testimony put into trial deposition (video played in court)

Question 18

discovery abuses

Answer 18

• document destruction / alteration
• Criminal prosecution of individuals/business organizations for obstruction of justice, and/or
• Court order precluding raising certain claims or defenses, and/or
• Court instructions to the jury concerning the alteration or destruction of documents
• refusal to cooperate with discovery requests
• Court instructions to the jury that it should accept as true arguments made during trial by the party issuing the requests, and/or
• An order by the court shifting the burden of proof during trial
• if a state judge is acting badly, ask the judge to remove themselves (which they won’t do) or ask the state supreme court to remove
• if a federal judge is acting badly, Congress can impeach the judge

Question 19

trial process

Answer 19

1. jury selection = “voir dire” (speak the truth)
2. opening statements = only lawyers talking to tell the story; no arguments = preponderance standard (more likely than not = 51%)
3. plaintiff’s case
   - directed verdict motion #1
4. defendant’s case
   - directed verdict motion #2
5. rebuttal and rejoinder = plaintiff reopens their case and present a 2nd time because something new came to light; can call a new witness, provide new evidence, etc; defendant reponses to rebuttal through rejoinder
6. closing arguments = plaintiff can go first and last; defendant goes once; plaintiff also talks about how much money they want or tell the jury to decide
7. jury instructions = judge gives jury the law; can be given at the beginning and end or just the end
8. jury deliberations = jury talks about case and makes a verdict; jury can ask for transcript of case; judge can bring lawyers back to ask if jury can see evidence/document and transcript
   - gives a glimpse of how the jury will side
   - can still reach a settlement before jury provides the verdict
9. entry of judgement = 1 sentence on paper of verdict
   - 30 days from entry of judgement to appeal unless motions are filed

Question 20

voir dire

Answer 20

speak the truth

Question 21

jury selection

Answer 21

• “voir dire” = speak the truth
• venire = jury pool
• 12 jurors selected for case

2 ways to get rid of jurors

• for cause challenge (both plaintiff and defendant get unlimited challenges)
• peremptory ( only 3 per side)

Question 22

post-trial motions

Answer 22

1. judgement notwithstanding the verdict (JNOV) = reverse the jury’s verdict
2. new trial = redo trial with new jury
   - evidence found in your favor but was not provided in the trial by the other side due to various reasons
   - jury was tainted
3. remitter = reduction in the damages

Question 23

alternative dispute resolution

Answer 23

1. mediation

2. arbitration

Question 24

mediation

Answer 24

• non-binding
• used in conjunction with the court system
• mediators are usually retired judges or someone who has a large experience with cases and are highly respected
• done after discovery
• mediator can tell the truth before going to trial to save expenses, humiliations, etc.
• for example: if defendant’s lawyers are having a hard time telling the defendant that there’s no way they could win, then they bring in a mediator who tells the defendant the same thing that the lawyers have been saying. defendant will usually listen and case is dropped. same goes for the plaintiff

Question 25

arbitration

Answer 25

• legally binding
• no jury trial, instead people go into a room and present the facts and an agreement is reached
• no discovery or appeals
• settled out of court
• contracts will usually contain arbitration clause
• popular with international businesses
• 3 arbitrators: each side chooses 1 and the 2 arbitrators chooses the last arbitrator
• keeps relationships on good terms between businesses
• arbitrators don’t need to be legally trained
• arbitrations done in “secret” to prevent PR scandals

Question 26

attorney fees

Answer 26

• “American rule” = each side pays their own; allowing Americans to sue for anything
• rest of the world = loser pays both sides

exceptions (loser pays both sides):

• malice (jury decides this)
• frivolous (judge decides this)
• statute = certain statutes gives you the right to money or says “plaintiff can have defendant pay for their lawyer’s fees”; judge decides “reasonable” attorney fees

Question 27

jury system

Answer 27

• comprehensive jury system
• civil law systems have now instituted jury system in a limited capacity
• jury was popular so it written into the law
• jury doesn’t have to explain their decisions

Advantages:

• diverse opinions
• sympathetic/empathetic
• safety valve
• democratic because of corrupt systems

Disadvantages:

• not legally trained
• sympathetic/empathetic
• biased
• emotions
• safety valve
• length and a hung jury

Solutions

• interrogatories
• majority rule
• reduce # of jurors