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Fundamentals of Business Law and Ethics > Dispute Resolution: Chapter 3 > Flashcards

Dispute Resolution: Chapter 3 Flashcards

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1
Q

What are the 3 fundamental areas of law?

A

alternative dispute resolution, the structure of our court systems, and civil lawsuits

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2
Q

Litigator

A

a lawyer who handles court cases

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3
Q

Litigation

A

refers to lawsuits, the process of filing claims in court and ultimately going to trial

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4
Q

Alternative Dispute Resolution

A

any other formal or informal process used to settle disputes without resorting to a trial(besides litigation_

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5
Q

Negotiation

A

most mdisputes resolved this way, begins right away and may last a few days or several years

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6
Q

Mediation

A

a situation in which a neutral person, called a mediator attempts to coax the two disputing parties toward a voluntary settlement.

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7
Q

Arbitration

A

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.

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8
Q

Discovery

A

allows the two sides in a lawsuit to obtain, before trial, documentary and other evidence from the opponent

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9
Q

What two rights do parties in arbitration give up that litigants retain?

A

Discovery and Class Action

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10
Q

Class Action

A

a suit in which one injured party represents a large group of people who have suffered similar harm

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11
Q

Mandatory Arbitration

A

the parties agree in advance to arbitrate any disputes that may arise

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12
Q

State Courts

A

typically forms a pyramid

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13
Q

Trial Courts

A

determine the facts of a particular dispute and apply to those facts the law given by earlier appellate court decisions

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14
Q

Where do almost all cases start?

A

Trial Courts

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15
Q

Is there always one judge and a jury in trial courts?

A

One judge, not necessarily a jury

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16
Q

What is the only court to hear testimony from witnesses and receive evidence?

A

Trial Courts

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17
Q

Jurisdiction

A

refers to a court’s power to hear a case

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18
Q

Small claims court

A

has jurisdiction only over civil lawsuits involving a maximum of, say, 2500 dollars (varies from state to state)

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19
Q

Municipal court

A

has jurisdiction over traffic citations and minor criminal matters

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20
Q

Juvenile Court

A

hears only cases involving minors

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21
Q

Probate Court

A

is devoted to settling the estates of deceased personals, though in some states it will hear certain other cases as well

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22
Q

Land Court

A

focuses on disputes about title to land and other real property issues

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23
Q

Domestic Relations Court

A

resolves marital disputes and child custody issues

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24
Q

General Civil Division

A

this court may hear virtually any civil lawsuit; most start here

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25
Q

Appellate Courts

A

three or more judges hear the case - no juries - do not hear witnesses or take evidence, they hear appeals of courses already tried below

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26
Q

Do Appeals courts generally accept facts from trial courts?

A

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

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27
Q

Appellant

A

party filing the appeal

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28
Q

Appellee

A

party opposing the appeal (because it won at trial)

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29
Q

Briefs

A

written arguments on the case submitted by both sides to a court of appeals

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30
Q

How many justices sit on most Sate Supreme Courts

A

7

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31
Q

Federal Question Case

A

a claim based on the United States Constitution, a federal statute, or a federal treaty - federal courts have jurisdiction

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32
Q

Diversity Jurisdiction

A

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

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33
Q

United States District Court

A

primary trial court in fed system

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34
Q

How many districts is the nation divided into?

A

94 and each has a district court

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35
Q

Name some other fed trial courts

A

Bankrupty Court, Tax Court, and the US Court of International Trade

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36
Q

US Claims Court

A

hears cases brought against the US, typically on contract disputes

37
Q

Judges of Fed Trial Courts

A

nominated by the president, confirmed by the senate

38
Q

United States Courts of Appeals

A

intermediate courts of appeals, divided into circuits, 11 of them hearing appeals from district courts

39
Q

How many justices on the supreme court?

A

9, 1 is chief justice, other 8 are associate justices

40
Q

Chief Justice

A

authority to assign opinions to a given justice

41
Q

writ of certiorari

A

asking the court to hear the case

42
Q

Pleadings

A

documents that begin a lawsuit

43
Q

What three things does a pleading consist of?

A

complaint, answer, and sometimes a reply

44
Q

Complaint

A

a short, plain statement of the facts they’re alleging and the legal claims they’re making filed by the plaintiff

45
Q

Answer

A

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

46
Q

Default Judgement

A

meaning a decision that plaintiff wins without a trial, if the defendant fails to answer in time

47
Q

Counter-Claim

A

Sometimes a defendant does more than merely answer a complaint, and files this, meaning a second lawsuit by the defendant against the plaintiff

48
Q

Reply

A

response to counter claim, which is simply an answer to a counterclaim, admitting or denying the various allegations

49
Q

Class Action

A

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

50
Q

motion

A

a formal request to the court

51
Q

motion to dismiss

A

a request that the court terminate a case without permitting it to go further

52
Q

Discovery

A

the critical, pre-trial opportunity for both parties to learn the strengths and weaknesses of the opponent’s case

53
Q

Interrogatories

A

written questions that the opposing party must answer in writing, under oath

54
Q

Depositions

A

provide a chance for one party’s lawyer to question the other party, or a potential witness, under oath

55
Q

Deponent

A

person being questioned in a deposition

56
Q

Production of Documents and Things

A

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

57
Q

Physical and Mental Examination

A

a party may ask the court to order an examination of the other party, if their physical or mental condition is relevant

58
Q

Requests for Admission

A

a form of discovery in which one party demands that the opposing party either admit or deny particular factual or legal allegations

59
Q

Motion for a Protective Order

A

a request that the court limit the opposing party’s discovery by decreasing the number of depositions

60
Q

Motion to Compel Answers to Interrogatories

A

a formal request that the court order the opposing party to supply more complete answers

61
Q

memorandum

A

the motion

62
Q

camera inspection

A

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

63
Q

Public Policy

A

refers to the interest that society has in any dispute

64
Q

Summary Judgement

A

a ruling by the court that no trial is necessary because there are no essential facts in dispute

65
Q

What is the purpose of a trial?

A

to determine the facts of the case; if no facts, no need for a trial

66
Q

Cross-examination

A

during a hearing, for a lawyer to question an opposing witness

67
Q

Are all cases tried to a jury?

A

not all; both plaintiff and defendant have a right to demand a jury trial when the lawsuit is one for money damages

68
Q

adversary system

A

presumes that by putting a witness on the stand and letting both lawyers “go at” her, the truth will emerge

69
Q

voir dire

A

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

70
Q

challenges for cause

A

an attorney’s request, during void dire, to excuse a prospective juror because of apparent bias

71
Q

peremptory challenges

A

during voir dire, a request by one attorney that a prospective juror be excused for an unstated reason

72
Q

Opening statement

A

attorney makes to jury summarizing proof he or she expects to offer

73
Q

burden of proof

A

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

74
Q

Preponderance of the evidence

A

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

75
Q

Reasonable Doubt

A

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

76
Q

Direct Examination

A

during a hearing, for a lawyer to question his own witness

77
Q

law of evidence

A

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

78
Q

Directed verdict

A

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

79
Q

When is a directed verdict permissible?

A

only if the evidence so clearly favors the defendant that reasonable minds could not disagree on it

80
Q

JNOV: judgement non obstante veredicto

A

“Judgement notwithstanding the verdict.” A trial judge overturns the verdict of the jury and enters a judgement in favor of the opposing party

81
Q

Precedent

A

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

82
Q

affirm

A

a decision by an appellate court to uphold the judgement of a lower court

83
Q

Modify

A

an appellate court order changing a lower court ruling

84
Q

Reverse

A

the power of an appellate court to overrule a lower court and grant judgement for the party that had lost in the lower court

85
Q

Remand

A

the power of an appellate court to return a case to a lower court for additional action

86
Q

Harmless Error

A

a ruling made by a trial court which an appeals court determines was legally wrong but not fatal to the decision

87
Q

What are the two most important pleadings (Documents) that start a lawsuit?

A

a complaint and an answer

88
Q

Summary Judgement

A

a ruling by the court that no trial is necessary because there are no essential facts in dispute

89
Q

What are the four options of the appeals court?

A

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

Fundamentals of Business Law and Ethics (11 decks)

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