Dispute Resolution: Chapter 3 Flashcards
What are the 3 fundamental areas of law?
alternative dispute resolution, the structure of our court systems, and civil lawsuits
Litigator
a lawyer who handles court cases
Litigation
refers to lawsuits, the process of filing claims in court and ultimately going to trial
Alternative Dispute Resolution
any other formal or informal process used to settle disputes without resorting to a trial(besides litigation_
Negotiation
most mdisputes resolved this way, begins right away and may last a few days or several years
Mediation
a situation in which a neutral person, called a mediator attempts to coax the two disputing parties toward a voluntary settlement.
Arbitration
generally faster and cheaper than litigation; arbitrator allows each side equal time to present its case and, after deliberation, issues binging decision. Ensures that there will be a final result.
Discovery
allows the two sides in a lawsuit to obtain, before trial, documentary and other evidence from the opponent
What two rights do parties in arbitration give up that litigants retain?
Discovery and Class Action
Class Action
a suit in which one injured party represents a large group of people who have suffered similar harm
Mandatory Arbitration
the parties agree in advance to arbitrate any disputes that may arise
State Courts
typically forms a pyramid
Trial Courts
determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions
Where do almost all cases start?
Trial Courts
Is there always one judge and a jury in trial courts?
One judge, not necessarily a jury
What is the only court to hear testimony from witnesses and receive evidence?
Trial Courts
Jurisdiction
refers to a court’s power to hear a case
Small claims court
has jurisdiction only over civil lawsuits involving a maximum of, say, 2500 dollars (varies from state to state)
Municipal court
has jurisdiction over traffic citations and minor criminal matters
Juvenile Court
hears only cases involving minors
Probate Court
is devoted to settling the estates of deceased personals, though in some states it will hear certain other cases as well
Land Court
focuses on disputes about title to land and other real property issues
Domestic Relations Court
resolves marital disputes and child custody issues
General Civil Division
this court may hear virtually any civil lawsuit; most start here
Appellate Courts
three or more judges hear the case - no juries - do not hear witnesses or take evidence, they hear appeals of courses already tried below
Do Appeals courts generally accept facts from trial courts?
Appeals courts generally accept the facts given to them by trial courts and review the trial record to see if the court made errors of law
Appellant
party filing the appeal
Appellee
party opposing the appeal (because it won at trial)
Briefs
written arguments on the case submitted by both sides to a court of appeals
How many justices sit on most Sate Supreme Courts
7
Federal Question Case
a claim based on the United States Constitution, a federal statute, or a federal treaty - federal courts have jurisdiction
Diversity Jurisdiction
Even if no federal law is at issue, fed courts have this when (1) the plaintiff and defendant are citizens of different states AND (2) the amount in dispute exceeds $75K
United States District Court
primary trial court in fed system
How many districts is the nation divided into?
94 and each has a district court
Name some other fed trial courts
Bankrupty Court, Tax Court, and the US Court of International Trade
US Claims Court
hears cases brought against the US, typically on contract disputes
Judges of Fed Trial Courts
nominated by the president, confirmed by the senate
United States Courts of Appeals
intermediate courts of appeals, divided into circuits, 11 of them hearing appeals from district courts
How many justices on the supreme court?
9, 1 is chief justice, other 8 are associate justices
Chief Justice
authority to assign opinions to a given justice
writ of certiorari
asking the court to hear the case
Pleadings
documents that begin a lawsuit
What three things does a pleading consist of?
complaint, answer, and sometimes a reply
Complaint
a short, plain statement of the facts they’re alleging and the legal claims they’re making filed by the plaintiff
Answer
tells the court and the plaintiff exactlyy what issues are in dispute, a brief reply to each of the allegations in the complaint from the defendant
Default Judgement
meaning a decision that plaintiff wins without a trial, if the defendant fails to answer in time
Counter-Claim
Sometimes a defendant does more than merely answer a complaint, and files this, meaning a second lawsuit by the defendant against the plaintiff
Reply
response to counter claim, which is simply an answer to a counterclaim, admitting or denying the various allegations
Class Action
a method of litigating a civil lawsuit in which one or more plaintiffs (or occasionally defendants) seek to represent an entire group of people with similar claims against a common opponent
motion
a formal request to the court
motion to dismiss
a request that the court terminate a case without permitting it to go further
Discovery
the critical, pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent’s case
Interrogatories
written questions that the opposing party must answer in writing, under oath
Depositions
provide a chance for one party’s lawyer to question the other party, or a potential witness, under oath
Deponent
person being questioned in a deposition
Production of Documents and Things
a form of discovery in which one party demands that the other furnish original documents or physical things, relating to the suit, for inspection and copying
Physical and Mental Examination
a party may ask the court to order an examination of the other party, if their physical or mental condition is relevant
Requests for Admission
a form of discovery in which one party demands that the opposing party either admit or deny particular factual or legal allegations
Motion for a Protective Order
a request that the court limit the opposing party’s discovery by decreasing the number of depositions
Motion to Compel Answers to Interrogatories
a formal request that the court order the opposing party to supply more complete answers
memorandum
the motion
camera inspection
used by a judge in reaching a discovery ruling; meaning that the judge views the requested documents alone, no lawyers present, and decides whether the other side is entitled to view them
Public Policy
refers to the interest that society has in any dispute
Summary Judgement
a ruling by the court that no trial is necessary because there are no essential facts in dispute
What is the purpose of a trial?
to determine the facts of the case; if no facts, no need for a trial
Cross-examination
during a hearing, for a lawyer to question an opposing witness
Are all cases tried to a jury?
not all; both plaintiff and defendant have a right to demand a jury trial when the lawsuit is one for money damages
adversary system
presumes that by putting a witness on the stand and letting both lawyers “go at” her, the truth will emerge
voir dire
the process of selecting a jury. Attorneys for the parties and the judge may inquire of prospective jurors whether they are biased or incapable of rendering a fair and impartial verdict
challenges for cause
an attorney’s request, during void dire, to excuse a prospective juror because of apparent bias
peremptory challenges
during voir dire, a request by one attorney that a prospective juror be excused for an unstated reason
Opening statement
attorney makes to jury summarizing proof he or she expects to offer
burden of proof
the allocation of which party must prove its case. In a civil case, the plaintiff has the burden of proof to persuade the fact-finder of every element of her case. In a criminal case, the government has the burden of proof
Preponderance of the evidence
the level of proof that a plaintiff must meet to prevail in a civil lawsuit. It means that the plaintiff must offer evidence that, in sum, is slightly more persuasive than the defendant’s evidence
Reasonable Doubt
the level of proof that the government must meet to convict the defendant in a criminal case. The fact-finder must be persuaded to a very high degree of certainty that the defendant did what the government alleges
Direct Examination
during a hearing, for a lawyer to question his own witness
law of evidence
determines what questions a lawyer may ask and how the questions are to be phrased, what answers a witness may give, and what documents may be introduced
Directed verdict
the decision by a court to instruct a jury that it must find in favor of a particular party because, in the judge’s opinion, no reasonable person could disagree on the outcome
When is a directed verdict permissible?
only if the evidence so clearly favors the defendant that reasonable minds could not disagree on it
JNOV: judgement non obstante veredicto
“Judgement notwithstanding the verdict.” A trial judge overturns the verdict of the jury and enters a judgement in favor of the opposing party
Precedent
an earlier case that decided the same legal issue as that presently in dispute, and which therefore will control the outcome of the current case
affirm
a decision by an appellate court to uphold the judgement of a lower court
Modify
an appellate court order changing a lower court ruling
Reverse
the power of an appellate court to overrule a lower court and grant judgement for the party that had lost in the lower court
Remand
the power of an appellate court to return a case to a lower court for additional action
Harmless Error
a ruling made by a trial court which an appeals court determines was legally wrong but not fatal to the decision
What are the two most important pleadings (Documents) that start a lawsuit?
a complaint and an answer
Summary Judgement
a ruling by the court that no trial is necessary because there are no essential facts in dispute
What are the four options of the appeals court?
affirm, upholding the lower court’s decision; modify, changing the verdict but leaving the same party victorious; reverse, transforming the loser into the winner; and/or remand, sending the case back to the lower court
