Intro to Law I Flashcards
what takes precedence over case law?
constitutional provisions
what does it mean to be a common law country?
rules for law come from the written decision of judges who hear and decide litigation
what are precedents?
decisions of judges in previous litigation
what is jurisdiction based on?
1) geographic location
2) subject matter
what is the structure within a jurisdiction?
hierarchal, organized in a vertical structure
what are the courts of original jurisdiction?
court in which litigation begins
what is inferior jurisdiction?
power to hear only limited types of cases
where does litigation begin?
in trial courts
what is civil litigation?
litigation between private parties (plaintiff and defendant)
what happens in trial court if the case goes to trial?
1) the case is not ended on a pre-trial motion
2) the parties do not voluntarily settle their suit
what is the next step up in the hierarchy from trial courts?
appellate court
why would a case goto appellate court?
when the party has lost at trial level either by a motion or by decision after the trial. They may ask for review by a higher court
what is the party that appeals called?
appellant
what is the other party that isn’t appealing?
appellee
what does appellate court determine?
whether the lower court committed any errors significant enough to require that the decision be reversed or modified or new trial granted
what are 2 level of appellate courts that most states provide?
1) intermediate court of appeals
2) State’s Supreme Court (highest court of appeals)
where does the intermediate court of appeals hear appeals from?
generally the trial courts
where does the State’s Supreme Court hear appeals from?
intermediate court of appeals
what is the State’s Supreme Court sometimes referred to as?
the court of last resort
after the State’s Supreme Court are there anymore appeals?
NO
how many judges are required in appellate court?
3 or more and should be heard by an odd number of judges
how is the case decided in appellate court?
by voting
who writes the decision in appellate court?
usually one judge from the majority
what is a dissenting opinion?
when a judge disagrees with the majority and writes own opinion
what is a concurring opinion?
a judge who has voted with the majority as to the outcome of the case may write a separate opinion to express his or her differing views about certain aspects of the case
what is per curiam?
when an opinion does not bear the name of the author (decision by the court)
what may a per curiam be used for?
a shorter opinion on an issue about which there is general unanimity
does appellate court involve another trial before the panel of appellate judges?
no
what are some differences in appellate court than trial court?
1) parties don’t submit evidence or examine witnesses
2) no jury
3) party’s lawyers argue to the appellate judges
are state trial courts published?
most are not but verdicts are recorded in the court files
are appellate cases published?
many are, in volumes called case reporters
what are federal courts empowered by?
federal statutes and the constitution to hear certain types of cases and are limited to those cases
what are the jurisdictions of federal court?
1) federal statutory
2) administrative agency matters
3) diversity jurisdiction
what do diversity jurisdictions involve?
1) citizens of different states
2) matters of state law that a party chooses to litigate in federal court
what must you apply in diversity jurisdictions?
the law of the state
what are intermediate appellate courts in the federal system called?
United States Court of Appeals
how many circuits are the United States divided into for appellate court purposes?
13 and 11 are identified by a number
what is the highest court in the federal system?
the Supreme Court
where does the Supreme Court hear from?
1) the United States Courts of Appeals
2) federal district courts
3) highest courts of the states system
if a defendant answers a complaint what do they respond to?
each of the allegations in the complaint
if a defendant decides not to answer a complaint what may they do?
decide to enter a motion to dismiss
in some states what is a motion to dismiss called?
a demurrer
what will the defendant most likely accompany a motion with?
a memorandum
what is a memorandum that a defendant accompanies a motion with?
advocacy document to persuade it to grant the motion
if a defendant argues successfully with a motion to dismiss what happens?
court will grant the motion and dismiss the plaintiff’s lawsuit
if the plaintiff’s lawsuit is dismissed by the court what may they do?
may appeal to a higher court
if the defendant loses the motion to dismiss what happens?
must file an answer to the complaint and litigation continues
what is discovery?
often use procedures formalized in the jurisdiction’s rules of civil procedure
what does a deposition and when does it occur?
it occurs first and it is an attorney’s oral examination under the oath of the opposing party and of witness who are under oath
what happens 2nd in the litigation process?
submit interrogatories
what is an interrogatory?
written question to the other party
what is an affidavit?
written documents of the facts that the person (affiant) swears under oath.
what happens after parties gathers enough evidence?
summary judgements
what is a summary judgement?
motion asking the judges to decide the case without trilby considering facts offered through depositions, interrogatories, affidavits and documents.
what will the parties submit for the summary judgement?
a memora or law in support or opposing the summary judgement
what are appellate briefs?
attorney produces written documents for the court explaining the facts and the law as the party analyzes them
what is stare decisis?
in this country, it means that the court should follow the common law procedures and that a court must follow only those precedents that are binding authority
what is binding authority?
constrain for a judge to decide a pending case according to the rules laid down by earlier decisions or to repudiate the decisions
what is case of first impression?
when the issue has never been litigated in the jurisdiction of the dispute
reasons for overruling a case
1) earlier decision has become outdated because of changed conditions
2) existing rule has produced undesirable results
3) prior decision is based on what is now know as poor reasoning
4) new rule perspective (applicable in future cases only)
where do rules come from?
1) contract rules
2) private documents (contracts, deeds, leases)
if the court says “an offer must manifest definite terms” what does that mean?
the court is defining an offer, keeping in long line of litigation
what is dicta analogous to?
persuasive authority
which precedents are the most important?
ones that are binding authority
what should be the first source in which you research a legal problem?
enacted law
what type of structure does enacted law follow?
a vertical hierarchy
what is the top of the hierarchy in enacted law?
the Constitution
what is second in the hierarchy of enacted law?
1) federal executive order and administrative regulations
2) state constitutions (highest within state does not conflict with federal law)
3) state statutes
4) state administrative regulations
4) municipal enactments
what are the 3 components that every rule has?
1) set of elements (test)
2) a result that occurs when all the elements are present (test is satisfied)
3) a casual term that determines whether the result is mandatory, prohibitory, discretionary or declaratory
what does a mandatory rule require?
someone to act and is expressed with words like “shall” or “must”
what does a prohibitory rule do?
forbids someone to act and is expressed by “shall not” “may not” “must not”
what does a discretionary rule do?
gives someone the power or authority to do something and uses words like “may” or “has authority to”
what does a declaratory rule do?
declares that something is true
3 step method of figuring out what a rule means
1) break down the rule into parts (don’t care about words only structure)
2) look at each of those small parts separately
3) put the rule back together
what are rules inner logic?
1) what events or circumstances set the rule into operation? (elements)
2) when all the elements are present, what happens? (casual term)
3) even if all elements are presents can anything prevent the result? (an exception, if the rule has any)
