Quiz 1 (CH. 3 & 9) Flashcards
What is civil dispute resolution?
typically involves a defendant facing off against a plaintiff before either a judge or a judge and jury
What does civil dispute resolution have to do deal with?
Deals with private disputes and not criminal
What are the main aspects that occur in the trial court level?
Plantiff files lawsuit against the defendant
- defendant must either file and ANSWER or MOTION TO DISMISS
- enter discovery (interrogatory, deposition)
- Motion for summary judgement
- IF motion is denied–> jury must review information and make a judgment
What are the symbols of defendant and plantiff?
Defendant = triangle
Plantiff= pie math symbol
What is discovery?
period of time where parties discover each other evidence (can ask questions of other side)
What is an interrogatory?
identify witnesses-
- who are asked questions that will be answered in writing
What is a deposition?
can take a private deposition where they swear to tell the truth and are asked questions of witnesses
What is the end of discovery? How do most end?
all evidence and information is known to all parties
- Most cases determined during or after discovery
What is a motion for summary judgment?
Follows discovery
- considered a motion to dismiss based on the evidence and judge decides whether the case goes to trial or not
When the jury are brought in on a trial, what happens?
judge identifies and explains the applicable rules of law and they must apply the rules to the facts of the case in order to reach a decision
If the plantiff or defendant lose their case in trial court, what they can do and where does the case go?
They can appeal it and it will go to the Intermediate Appellate Court
What occurs in the Intermediate appellate court?
-get transcripts and therefore have no ability to determine credibility
- solely address the questions of law
What happens if the case is appealed past the intermediate appellate court?
Goes to the highest court of appeal
What occurs in the highest court of appeal? What is petition for centarori?
there is a petition for certification- a request that the Supreme Court order a lower court to send up the record of the case for review.
What are the three courts in which the judicial system is organized?
1) Trial court
2) Intermediate appellate court
3) Highest appellate court
What is jurisdiction?
power to hear and decide a case
What are the ways in which a state court can have jurisdiction over a case?
1) Subject matter jurisdiction
AND (both together)
2) Personal jurisdiction or IN Rem Jur.
OR
3) General jurisdiction
What is subject matter jurisdiction?
the type of court
- the power to address a subject in the certain type of court
- have to file in proper court for case to not be dismissed
What are the types of subject matter courts?
property, traffic, small claims, probate, family
What are the ways in which a court has personal jurisdiction?
1) Defendant voluntarily subjects themselves to jurisdiction
a) forum selection clause
b) doesn’t object to personal j.
c) Participates
2) Defendant is resident in state of lawsuit (where it was filed)
3) If defendant is served with the process in the state of filling
4) specific jurisdiction (sued in state where you had action)
What is general jurisdiction?
defendant has sufficient minimum contacts within the state
What is process?
the complaint and summons
What is In rem jurisdiction?
jurisdiction based on location of real estate in a state
What are the two ways in which a federal court can have jurisdiction over a case?
1) Subject matter jurisdiction
OR
2) Personal jurisdiction
What are the two types of federal subject matter jurisdiction needed to have jurisdiction?
Either exclusive or concurrent
What is exclusive (subject matter jur.)? Examples?
case can only be heard in a federal court
1) Federal tax
2) Federal intellectual property
3) Bankruptcy
What is concurrent (federal)?
the federal court and state court both have the power to hear the case
What are the two types of qualifications for a concurrent federal case?
federal question jurisdiction
- diversity jurisdiction
What is federal question jurisdiction?
suing for violation of federal law
What is diversity jurisdiction?
citizens/residents of one state or country sue that of another state or country
AND
amount must be greater than $75k
What is civil procedure?
rules of procedure that dictate what happens in a civil lawsuit (federal or state)
What is a complaint?
motion to sue made by plantiff
- lists out cause of action and jurisdiction and facts of what they want to prove
What is an answer? When is it done?
defendant responds to each of allegations in complaint and answers either admit, deny, or without knolwedge
- usually done following motion to dismiss
What is ADR?
Alternative Dispute Resolution
What is the other thing besides ADR?
litigation
What are the three examples of ADR?
1) Settlement
2) Mediation
3) Arbitration
What is a settlement? Importance?
Attorney’s agree to settle on a case
- sign NDA
- doesn’t involve court
What is mediation?
- ordered by court
- independent 3rd party helps come to a settlement
- can take place at any time during a case
What is arbitration?
private agreement made previously by parties to have a neutral party come and make a decision based on the provided evidence
- legally binding and no appeal available
What are arbitration clauses?
within contracts, where one cannot sue if the clause is signed and therefore is governed by the FAA (Federal arbitration act)
What kind of jurisdiction is the federal arbitration act applying to typically?
applies to federal question jurisdiction
Why is the FAA important?
Important because one cannot sue no matter the circumstances or even if the state law negates it (FAA law supercedes state law
What are the primary advantages of arbitration?
- Private
- Less adversarial
- Expertise (pick someone that is an expert)
- Easier to enforce internationally
What are the four elements a contract?
1) Agreement
2) Consideration
3) Capacity
4) Legality
What does legality refer to?
whether or not something (whether it be a transaction, document, object, person, or a person’s actions) is in accordance with the law
What is an agreement?
mutual acceptance and offer between two parties
What does consideration refer to?
what the offerer asked for in exchange for a promise
- both parties must ask for something
What does capacity refer to? What are the 3 ways?
even though agreement made, one of the individuals lacks capacity to make the deal b/c either:
- under 18
- mentally incapacitated
- intoxication
Why are the 4 elements of a contract important?
because all 4 must come together for a contract to be considered valid
What are the types/classifications of contracts?
A.) Bilateral and Unilateral
B.) Contracts based on enforceability
C.) Expressed contract vs implied contract
D) Executory vs Executed
What is a bilateral contract?
promise for a promise
- both parties made legal promise enforceable by law
What is an example of bilateral contract?
“you work for me for one year and you will get 100k per year “
- didn’t start working yet, promise of payment
What is a unilateral contract?
promise for an act
- only way for a contract to be true is that an act must be done first
What is an example of a unilateral contract?
a reward to find and return a puppy
- Must go and find/return before contact can be completed (promise for act)
What are the classifications of contracts based on enforceability?
1) Valid contract
2) Unenforceable contract
3) Voidable contract
4) Void contract
What is a valid contract?
has all elements of “k”
and no defense to enforceability
What is a unenforceable contract?
has all elements of contract but is unenforceable for another reason
What is a voidable contract?
contract that is otherwise enforceable, but one or both have the right to cancel it
What is a void contract?
void agreement, if it is void, then it is completely unenforceable
- could include statute of limitations
What is an expressed contract?
stated, agreed in words
- created by parties’ words
- can be written or verbal
What is an implied contract?
created by the party’s actions (implied or assumed based on pattern or precedence)
What is interesting about implied and expressed contracts?
a contract can go from an expressed to implied
What is an executory contract?
not fully performed
- contract not yet fully performed
What is an executed contract?
fully performed contract
What are the two forms of Alternative Theories of recovery?
1) Quasi contract
2) Promissory Estoppel
What are alternative theories of recovery?
alternative to a breach of contract
What is a quasi contract’s goal?
prevents unjust enrichment
What are the elements/properties of Quasi contract?
1) Elements
- Plantiff provides benefit to defendant
(AND)
- Defendant knowingly accepts benefit
(AND)
- unfair for defendant not to pay
2) Defendant pays reasonable value
What is the goal of promissory estoppel?
protects reasonable reliance
What are the elements/properties of promissory estoppel?
1) Elements
a) Defendant makes a promise
AND
b) Defendant should expect plantiff to act in reliance
(AND)
C) Plantiff does act in reasonable reliance
(AND)
D) Plantiff suffered detriment
2) Defendant pays reliance damages
What are the sources of contractual law?
1) Common Law (real estate/services)
2) Article 2 of Universal Commercial Code (contracts for goods)
3) Hybrid contract
- Predominate factor test (selling a house with furniture)
Rules of law from practice example: Written out
A valid contract requires an agreement (offer and acceptance) between two or more parties, which the court will enforce in the event of a breach.
In order for there to be a valid offer, the offeror must exhibit objective intent to enter into a binding contract, the material terms of the proposed contract must be definite and reasonably certain (e.g, what the offeror is willing to do and what they want the offeree to do in return), and the offer must be communicated to the offeree. It must be more than preliminary negotiations (“Can we make a deal here?”), sales talk (“This car is a great deal”), invitations for offers (“I would expect to receive at least $500”), or requests for more information (“Does this car come with a CD player?”).
