Jury Trial Flashcards
Jury Trial - As right/waiver
In fed court any part can demand it affirmatively
- if not: deemed waived and case by “bench trial”
- if granted: receives “docket designation”
DEMAND: SERVED + FILED withi 14 days since service of last pleading
Jury Trial - Judge/Jury duties
- Jury: decides Q of fact: i.e. dx, breach of contract, tort
- Judge:
1) Decides Q of law: i.e. admissibility of E, N claims, equitable actions like specific performance or injunctive relief
2) Discretion to decide on “predominant nature” of case (law or fact) - If both present court allows jury to decide first issue of fact
Jury Trial - Process (Steps)
1) Jury selection
2) Jury Instruction
3) Counsel closing arguments
4) Jury deliberation
5) Verdict
Jury Trial - Jury selection aka “voir dire” - Gral
- Both counsel can interview and select juror
- Pool of juror has to be fair cross-section of community
Jury Trial - Jury selection - Challenges Types (2)
1) Peremptory
2) For cause
Jury Trial - Jury selection - Peremptory Challenge - Gral
- “No reason”
- In civil causes only 3-per side
Jury Trial - Jury selection - Peremptory Challenge - C restrictions
Peremptory challenge not solely based on:
- Race - Gender
Jury Trial - Jury selection - “For cause” Challenge - LIB causes
1) Lack of qualification (18 y/o, convicted felon, not US citizen, inhabiility to communicate in English)
2) Incapacity - unsound of body and mind
3) Bias
Jury Trial - Jury selection - “For cause” Challenge - LIB - Lack of qualification (4)
- >18y/o
- Not US citizen
- Can not communicate in english
- Convicted felon
Jury Trial - Jury selection - “For cause” Challenge - LIB - Bias
- actual or implied
- i.e. juror related /employed by party, answer show clear impartiality
Jury Trial - Jury Instructions - gral
- Formal instructions by judge to jury before deliberation
- Orally or in writing
Jury Trial - Jury Instructions - Content to reflect applicable law and give space to juror to argue own theory (4)
1) Role of judge
2) Burden of proof
3) Required elements for the cause of action and D’s asserted defenses
4) Special instructions for this case
Jury Trial - Jury Instructions -Timing
- After all trial E presented - Counsel allowed to meet w/judge to decide on language
Jury Trial - Jury Instructions - Party objection to content
- On the record and at earliest opportunity
- Object to content or rejection to give instruction
Jury Trial - Counsel Closing Arguments
- Each party addresses jury
- Party w/burden of proof opens and close
- Refer only to E presented on trial
- NO personal opinion or comment on insurance
Jury Trial - Jury Deliberation
- In private
- Consider only E to be presented in trial
- Not conduct own investigation or research
- Not discuss w/anyone outside until verdict
Jury Trial - Verdict - gral
- At least 6 jurors must participate
- Decision has to be unanimous unless party agree otherwise
- Presiding juror reads out loud
- Post verdict parties can poll the jurors
Jury Trial - Verdict - “Special Verdict”
Verdict as answer to specific questions posted by judge
Jury Trial - Verdict - Effect of “hung jury”
- When no unanimous verdict
- Possible mistrial
Jury Trial - Jury Misconduct - Effects
Potentially can “set aside” judgment because of mistrial
- Mistrial is declared for some cases (improper action, clerical error)
- not usually for other cases (improper reasoning or thought process, life experiences, bias/prejudice)
Jury Trial - Jury Misconduct - Grounds (5)
1) Improper actions
2) Improper reasoning or thought process
3) Life experiences
4) Bias/prejudice
5) Clerical error
Jury Trial - Jury Misconduct - Improper actions- Considerations by court
- Court will set aside by motion considering Severity of actions and degree of prejudice to losing party
- i.e.: discuss w/other before verdict, independent research, reach verdict by luck (flip coin)
Jury Trial - Jury Misconduct - Improper reasoning or thought process
- usually not set aside by court
- i.e. fail to follow jury instructions, fail to understand or consider E, give too much/little weight to E, calculation of DX
Jury Trial - Jury Misconduct - Life Experiences
- jurors can share btwen them
- Court will usually not set aside
Jury Trial - Jury Misconduct - Bias or Prejudice
- Usually court will not set aside - notion that voir dire deal with this type of risk
- EXCEPTIONALLY set aside w_hen bias concealed during jury selection_ but later expressed
Jury Trial - Jury Misconduct - Clerical Error
- Usually set aside
- Verdict victim of error in recording or reporting
Agency - Elements (Concept)
- Fiduciary relation
- One person (Agent) consent to act on behalf of another (ppal)
- affecting relations with 3rd parties
- Written when SOF
Agency - Creation Methods (6)
1) Express authority
2) Implied authority (Inherent)
3) Apparent authority
4) Estoppel
5) Ratification
6) Necessity
Agency - Business entities rules - Promoter - rules
- In relation to creation of business entity
- Not liable if parties agree that specific performance will be by future entity AND novation is made after formation
Agency - Liabilities to 3rd parties - Contracts - Agent’s liability - Ppal “undisclosed” Rules
- Makes both agent and ppal liable to 3rd party who can recover only from 1 of them
- Ppal can still enforce contract agaisnt 3rd party (unless expressly excluded from)
- EVEN if 3rd party would not have contracted with him UNLESS agent intentionally concealed ppal
- Ppal can use all dfenses available for agent
Agency - Liabilities to 3rd parties - Torts - Ppal’s liability
- Respondeat superior
- When in the scope or course of agency and employment
- If sue by 3rd party - potential impleader to agent
Gral Partnerships - Concept/Elements (3)
- Association of 2 or more persons
- W/ intention to carry or manage as co-owners
- A business for-profit
Gral Partnerships - Capacity
Same rules as for CL +
- infants: can dissafirm but not withdraw capital to detriment of creditor
- corps, LLC and other entitiies can act as partners
- Either spouse can be partner in non-realty psx w/o other’s consent
Gral Partnerships - Formation methods (3)
1) Express - SOF if over 1 year
2) Implied - i.e. share benefits
3) Estoppel: present himself as partner or allow name to be used
Gral Partnerships - Profit/Loss Sharing - Gral rule
Equal for all partners
Gral Partnerships - MGMT - Gral Rule
- All partners and all with = rights to decide on day to day basis
- Voting quorum for more relevant decision
Gral Partnerships - PSX liability to 3rd parties - Gral
- All partners PERSONALLY liable for all psx debts/obligations
- JOINT and SEVERALLY - hence plaintiff can go first against psx assets and then against any partners - and then possible contribution among partners
Gral Partnerships - PSX liability to 3rd parties - Exception for entering partner (assignee of interests on psx)
Liable only to extent to contribution for psx’s pre-admission torts/contractual breaches
UNLESS: - intentional waiver of “liaiblity shield”
- Express assumption of responsibility beyond contribution
Gral Partnerships - Dissociation - Effects on psx
1) If psx-at-will: psx terminates
2) If non-psx at will: psx survives
Gral Partnerships - Dissociation - Purchase of disassociated interest - Conditions and Price
- Possible if no dissolution of psx (no psx at will)
- DX offset against buy-out-price
- Price: = to pro-rate share of psx net-assets unless otherwise agreed
- Parties must agree on final amount
Gral Partnerships - Dissolution Causes (5)
1) Agreed by at least half of remaining partners
2) Termination event set in psx agreement
3) Illegality - event makes business unlawful
4) Judicial determination
5) Dissociation for psx-at-will AND/OR of last partner
Gral Partnerships - Dissolution - Liquidation Distribution Priority - CPU
1st: Creditors (including partners as creditors)
2nd: Partners for capital account contributions
3rd: Undistributed profits to partners - equally unless agreed otherwise
Gral Partnerships - Dissolution - Liquidation Distribution Priority - Rules when insolvency
- Partner assessed for contribution
- If insolvent his share is allocated among other partners who then have contribution right
LP - Effect of failure to file Certificate with secretary of state (2)
1) LP turns into grl psx
AND
2) no cut off point of joint and several liability for limited partners
LP Partner’s liaiblity - Gral
1) Gral partner: jointly and several liability
2) Limited partner: only to amomunt of capital contribution
LP - Partner’s liability - For approved fx
1) RULPA: Ltd partner personally liable if is gral partner OR participates in “control of business”
+
“safe harbor”: ltd not conisder as participant in control when with certain involvement
2) ULPA: very liberal - ltd partner not personally liable even if nominally participates in mgmt and control
LP - Exception to restricted exposure of ltd partners to 3rd party liability
1) Use of name in trade name + lack of knowledge of third party he is not gral partner
2) Hold out himself as gral partner (estoppel)
LP - Gral rule on distribution of loss/profits
Pro rata to capital contribution according to LP certificate
LP - New ltd partner Rules
- Gral rule: Ltd partner can sell/assign interests in LP without dissolution unless agreed otherwise
- New ltd partner might require approval by gral partner if established so by LP agreement
LP - Dissolution - (3)
1) Any partner can demand decree of dissolution
2) Last gral partner dies/withdraws (cure w/appointment in 90 days)
3) ULPA - any last partner withdraws (cure w/appointment in 90 days)
Limited Liability Partnership (LLP) - Gral
- Partners as shareholders
- Not recognized in all states
- Used by persons who practice under professional rules of incorporation
- Is an option for General psx to re-organize
LLP - partners status/liability
- Partners As shareholders
- No liability from LLP’s torts or contracts
- Liability from own torts or tort from directly supervised subordinate.
+
- As gral rule no entity can shield professional from own N or the one commited by subordinates
LLP - Differences with LP (2)
- No distinction btwn gral/limited partner
- Partner’s liability: each one liable for own actions
Corps - Incorporator’s liability - Personal Liability Exception
- Personally liable when UNDISCLOSED ppal (corp)
- UNLESS Corp :
1) accepts benefit,
2) implied/express adoption (take and receive as own contract to which there is no previous relation) ,
3) ratification (confirm/approve/ sanction of previous act done in name of or in behalf of one).
Corp- Organization Meeting required mattters (post filing) (3)
1) Stock subscription
2) Distribution of shares
3) Initial board election - must adopt by-laws + ratify/adopt pre-formation contracts
[not necessarily presential]
Corp - By-laws content (define/specify) (2)
1) Corporate governance rules
2) Number of directors
Corp - Report + payment obligations (3)
1) Initial report filed with secretary of state with info on officers, directors, registered agent+address, description of nature of business
2) Annual report - with info above + total of authorized/issued/outstanding shares
3) License fee payment
Corps - Domestic/Foreign classification (on state of incorporation)
- Domestic: “in-state” incoporation / local law controls corporate governance
- Foreign: out of state incorporation / requires certificate of authority from secretary of state to “transact business” in state
Corp - Factors to determine if company “transacting business” in the state (foreign/domestic)
NEXUS TO STATE - activities must be permanent/substantial/continuous (expansive trend for online activities:
- Enough: fixed permanent facility, active website taking orders
- Not enough: one time sales by mail , passive website, own property, appear as D in court, borrow money
Corp Liability - gral /purpose
- To make effective service to registered agent OR secretary of state if registered agent cannot reasonably located
- Based on “l_awful corporate purpose_” : Gral rule: corp can engage in ANY lawful purpose UNLESS otherwise specified limited purpose in articles
Corp Liability - Specific application (contractual/torts)
1) Contractual: contracts by officer/agent w/authority or later ratified
2) Vicarious tort liability - respondeat superior
Corp - Ultra Vires Doctrine
- Argument that contracts beyond scope of corporate power are illegal (breach of by-laws or articles)
- Defense available for shareholders, corps director/office/agent AND attorney gral
- Cannot be argued against 3rd party w/out knowledge of “illegality”
Corps - BOD election - “Cumulative Voting Rule”
- Exception to 1share/1vote
- Applies when there is more than 1 vacancy in BOD
- Formula: Multiply number of shares owned times the number of vacancies and allocate those votes as pleased in single or mx vacancies) (100 shares and 3 vacancies = 300 votes)
- Is default system in WA / other states require express option
