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Business law > Chapter 2 - The Court System And Dispute Resolution > Flashcards

Chapter 2 - The Court System And Dispute Resolution Flashcards

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1
Q

Where are business disputes resolves

A

In court or through alternative dispute resolute

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2
Q

A court

A

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

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3
Q

Jurisdiction

A

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

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4
Q

Subject matter jurisdiction

A

Judicial authority to hear a particular type of case

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5
Q

Original jurisdiction

A

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

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6
Q

General jurisdiction

A

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

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7
Q

Limited/ special jurisdiction

A

The authority to hear only particular kinds of cases

Ex:
Juvenile court
Probate court
Tax court
With damages limited to certain \$\$
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8
Q

Appellate jurisdiction

A

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

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9
Q

Appeal

A

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

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10
Q

Reversible decision

A

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

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11
Q

Affirm

A

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

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12
Q

Reverse

A

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

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13
Q

Remand

A

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

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14
Q

Garrison vs target corporation

A

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

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15
Q

Federal court system

A

Three levels

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

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16
Q

Federal district court

A

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

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17
Q

Federal speciality courts

A 
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

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18
Q

U.S. court of appeals

A

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

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19
Q

En banc

A

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

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20
Q

Federal Circuit

A

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

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21
Q

U.S. supreme court

A

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

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22
Q

Writ of certiorari

A

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
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23
Q

State court systems

A

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

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24
Q

State general trial courts

A

Civil and criminal cases that are not in federal district jurisdiction

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

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25
Q

State specialty courte

A

State courts with limited jurisdiction

Juvenile, family law, probate

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26
Q

City, municipal, and justice courts

A

Handle civil matters in which the claim is below a specified level

May also handle misdemeanor offenses

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27
Q

Small claims courts

A

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

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28
Q

State appellate courts

A

Review decisions of lower courts in the state

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29
Q

State supreme courts

A

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

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30
Q

Plaintiff

A

Party who initiates a lawsuit

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31
Q

Prosecutor

A

Party who originates criminal proceedings

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32
Q

Defendant

A

Party against whom civil or criminal proceedings are brought

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33
Q

Judge

A

Primary officer of the court

May be elected or appointed

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34
Q

Attorney-client privilege

A

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

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35
Q

Jury

A

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

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36
Q

Conflict of laws

A

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

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37
Q

Law of the forum

A

Law of the state in which trial occurs

Governs court procedural issues

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38
Q

Initial steps in a lawsuit

A

(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

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39
Q

Commencement of a lawsuit

A

Begins when a complaint is filed

40
Q

Complaint

A

The initial pleading filed by the plaintiff in a lawsuit

Generally includes: description of wrongful conduct and request for damages

41
Q

Service of contract

A

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

Responsibility of the plaintiff

42
Q

Process

A

Paperwork served personally on a defendant in a civil case

Process aka writ, notice or summons

43
Q

Defendant’s response and pleadings

A

Defendant is required to answer the complaint

Options: motion to dismiss (demurrer), respond and deny allegations, counterclaim

44
Q

Answer

A

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

45
Q

Motion to dismiss

A

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

46
Q

Demurrer

A

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

47
Q

Counterclaim

A

Claim that the defendant may make against the plaintiff

48
Q

Pleadings

A

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

49
Q

Discovery

A

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

50
Q

Deposition

A

The testimony of a witness taken under oath but outside of the court

Both parties permitted to question the witneee

51
Q

Impeach

A

Using prior inconsistent evidence to challenge the credibility of a witness

Happens if witness tells one thing in deposition and another in trial

52
Q

Other forms of discovery

A

Interrogatories

Request for production of documents

53
Q

Interrogatories

A

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

54
Q

Request for production of documents

A

Discovery tool for uncovering paper evidence in a caee

55
Q

Motion for summary judgement

A

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)

56
Q

Expert witness

A

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

57
Q

Steps of a trial

A
  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
58
Q

Voir dire examination

A

The preliminary examination of a juror or witness to ascertain fitness to act as such

In juries: looking for bias and preformed judgements

59
Q

Peremptory challenge

A

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

60
Q

Opening statements

A

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

61
Q

Admissibility

A

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

62
Q

Order of testimony

A
  1. Direct examination
  2. Cross examination
  3. Redirect examination
  4. Recross examination
63
Q

Direct examination

A

Examination of a witness by his or her attorney

64
Q

Cross-examination

A

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

65
Q

Redirect examination

A

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

66
Q

Recross-examination

A

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

67
Q

Directed verdict

A

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

68
Q

Motion for a directed verdict

A

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

69
Q

Summation

A

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

70
Q

Mistrial

A

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

71
Q

Jury instructions

A

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

72
Q

Judgement n.o.v

A

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.

73
Q

Post-trial procedures

A

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

Execution of judgment

74
Q

Execution

A

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)

75
Q

Garnishment

A

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

76
Q

Alternative dispute resolution

A

ADR

Non-judicial methods for solving disputes

Eg: arbitration, mediation

77
Q

Arbitration

A

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

78
Q

Arbitrators

A

Disinterested person’s selected by the parties to the dispute

Trained experts familiar with industry practices in question

79
Q

Uniform Arbitration Act

A

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

80
Q

Federal arbitration act

A

Contracts relating to interstate transactions

81
Q

Mandatory arbitration

A

Certain types of disputes may be required to be submitted to arbitration

Varies by state

States often narrow enforceability

82
Q

Finality of arbitrators

A

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

83
Q

Mediation

A

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

84
Q

MedArb

A

Arbitrator is empowered to so act as mediator

85
Q

Expert panel

A

Submission of a case to a panel of experts

Popular in the construction industry

86
Q

Reference to a third person

A

A settlement that allows a no part to resolve the dispute

87
Q

Association tribunal

A

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

88
Q

Summary jury trial

A

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

89
Q

Rent-a-judge

A

Dispute resolution through private courts with judges paid to be referees for the cases

Determination is binding unless reversed on appeal

90
Q

Minitrial

A

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)

91
Q

Contracts provisions

A

May stipulate ways of settling future disputes

May include use of waiting periods

92
Q

Court of appeals of the state of new york

A
  • 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
93
Q

Riley v. California

A

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

94
Q

Rule of four

A

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

95
Q

levels of NY state court system

A

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

Business law (15 decks)

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