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COMM LAW 3410 > Quiz 5 Content (Test 1) > Flashcards

Quiz 5 Content (Test 1) Flashcards

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1
Q

appellate jurisdiction

A
  • appellate courts only have appellate court
  • power to review
  • can’t START a case here
  • they don’t see π, Δ, witnesses
  • only review the evidence from lower courts
  • they don’t try the case, only REVIEW case
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2
Q

venue of court

A
  • where is the most proper court in the state?
  • where did the accident happen, where the π lives
  • only choose venue in CIVIL cases
  • criminal cases ALWAYS occur WHERE CRIME OCCURRED
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3
Q

criminal cases

A
  • gov controls every criminal case (all crimes are STATUTORY)
    a body rules that:
  • defines the conduct prohibited by the gov because that conduct threatens public safety/welfare
  • sets punishment to be imposed for the commission of act
  • purpose: PUNISH & DETER
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4
Q

civil victim cases

A
  • body of rules that define PRIVATE rights & REMEDIES
  • governs that disputed between individuals & biz’s
  • purpose: NOT to punish, but to COMPENSATE
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5
Q

civil enforcement cases

A
  • administrative law & hearings
  • admin agencies ability to create & enforce regulation
  • purpose: to carry out their STATUTORY DUTIES under the enabling states that created them
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6
Q

what is the style of cases (order)? criminal v civil v enforcement

A
  • always π vs. Δ
  • but appeals are reverse order
    criminal:
  • *gov v criminal Δ
  • *state v criminal Δ
  • always against the government, the victim is only a witness

civil:
- *civilian v civilian
- *company v company
- no gov, only private matters

enforcement:
- *gov agency v Δ

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7
Q

who has control?: criminal v civil v enforcement

A

criminal:
- the gov, prosecutor (attorney)

civil:
- the victim

enforcement:
- the administrative agency

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8
Q

standards of proof: criminal v civil v enforcement

A

criminal:
- “beyond a reasonable doubt”
- >95% sure
- highest standard we have because imprisonment is no joke
- can’t convict if we have a doubt

civil:
- “by a preponderance of the evidence” or “more probable than not”
- >51% sure
- doesn’t matter as much if there’s a mistake since it’s just about paying $ and not jail time

enforcement:
- >51% sure, same as civil

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9
Q

5thA: criminal v civil v enforcement

A

criminal:
- on/off switch if you want to exercise your right (by not taking the stand)
- but if you take the stand you’re under oath and must answer EVERYTHING
- attorney can NOT point out that Δ didn’t take the stand

civil:
- subpoena, have to take the stand because it’s a court order
- question by question, if question could incriminate you, can say “I plead the 5th,”
- but lawyers CAN say (“did you notice they didn’t answer?”)

enforcement:
- same as civil

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10
Q

criminal remedies

A

1) fine
2) incarceration
3) death penalty
4) criminal forfeiture
5) criminal restitution
6) conditions (ex: good behavior, rehab, church, castration)

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11
Q

civil remedies

A

compensatory damages & punitive/exemplary damages, statutory damages, attorney’s fees, liquidated damages, family support obligations, equitable

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12
Q

money judgements at law

A

a judge recognized legal obligation that a person has to another to pay them a debt (paper IOU)

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13
Q

compensatory damages

A
  • compensation for the injury
  • need to prove your past damages and future (expert opinion)
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14
Q

punitive/exemplary damages

A
  • if Δ acted w/ malice, can bring punitive
  • don’t have to prove
  • can ask for whatever you want
  • U.S. is only country who has it
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15
Q

what are the 3 controversies with punitive damages?

A

1) excessiveness
2) wealthier Δ’s punished more severely
3) who gets the damages?

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16
Q

state law (solutions for punitive damages)

A
  • some states don’t allow punitive damages (MA)
  • some states set a cap on the amount of punitive allowed (VA; oldest & smallest of $350k)
  • some states look at level of fault
    If innocent/negligent → 0 punitive
    If intentional → no cap on punitive
    If reckless → 3x compensatory
17
Q

federal constitutional limit (solutions for punitive damages)

A
  • punitive are between 3x-5x than compensatory but no more
    Gore v BMW:
  • sued BMW because they repainted his car to make it look new, called it fraud
  • jury awarded him $600 in compensatory but $4 mil in punitive
  • 14thA (due process) held that the ratio between compensatory and punitive is unconstitutional (but didn’t say how much was too much)
  • “Gored” = judge brings punitive down
18
Q

federal maritime limit (solutions for punitive damages)

A
  • boat spilled oil in Alaskan ocean
  • $507 mil in compensatory, 5 bil in punitive
  • 1880 maritime law: punitive cases are limited to 1x compensatory
  • court upheld old law court, $5 bil → $507 mil punitive
19
Q

what are the levels of fault?

A

Fault levels: intentional → reckless → negligent → innocence

20
Q

statutory damages

A

Copyright act: if you violate someone’s copyright, you’ll be fined $30k-$150k per violation

21
Q

attorney’s fees

A
  • American rule = each party pays their own fees
    exceptions to rule (where you don’t pay your own):
  • Statutory
  • Contracts
  • Contingency fee (money that a lawyer receives as a fee only if the case is won)
22
Q

liquidated damages

A
  • specified in contract
  • already agreed to before it happens
23
Q

equitable remedies

A
  • INJUNCTION = court order to do/refrain from doing something
  • SPECIFIC PERFORMANCE = for K’s, only for unique goods/property, never used for personal services
  • PROMISSORY ESTOPPEL = one person makes a promise that does not amount to a valid K, but another party relies on that promise to their detriment and the promissor was aware of this reliance, stops people from going back on promise
  • DECLARATORY DECREE = legal ruling, asks judge where the boundary line is (ex: wills, property lines)
24
Q

civil enforcement remedies

A
  • civil penalty (monetary obligation, arbitrary amount)
  • equitable remedies
25
Q

how do the strengths of enforcement remedies compare?

A

power of enforcement is much STRONGER for CRIMINAL/ENFORCEMENT than civil victim cases

26
Q

civil victim PREtrial procedure

A

1) pleadings
2) jurisdiction/venue challenge
3) motion to dismiss
4) discovery
5) discovery challenges
6) motion for summary judgment
7) motion in limine

27
Q

complaint (step 1: pleadings)

A
  • filed by π, must be filed within the statute of limitations (time limit)
  • has to be served on the Δ personally (hand it to them) because there’s a time limit for when Δ has to respond (21 days)
  • summons = informs Δ has 21 days to respond to answer, comes with complaint… if they don’t answer, they will be in default & π will win default judgment
    includes:
  • jurisdiction
  • π alleged facts
  • cause of actions (suing for…)
  • what remedy is being sought
  • don’t have to lay out entire case, just outline
28
Q

answer (step 2: pleadings)

A
  • any challenges to jurisdiction must be made with the answer (if you don’t challenge jurisdiction & you file answer, it’s too late)
  • request for jury
  • counterclaim: Δ turns on π and sues them (part of the same lawsuit), π has to answer (reply in 21 days)
29
Q

motion to dismiss

A
  • every Δ will try this, regardless of their chances at success
  • document asking the court to do something (rule a certain way) on a legal issue
  • JUDGE decides issue of LAW
  • JURY decides issue of FACTS
  • court can either…
    1) sustain motion
    2) deny motion
    3) can make a count by count decision
30
Q

discovery

A
  • most important part of the case
  • between the lawyers (not jury)
  • where the $ comes from
  • exchange of evidence b/w π & Δ
  • prevents trial by ambush, encourages settlement
  • cases can spend years on this part
  • helps you better understand the case
  • uses discovery tools: interrogatories, depositions, request for admissions, request for documents, subpoenas
31
Q

interrogatories (discovery tool)

A
  • written questions that each party asks each other & must be answered under oath
  • party may object question
32
Q

depositions (discovery tool)

A
  • live testimony before trial with both parties * all witnesses under oath
  • used to challenge honesty & prepare evidence
33
Q

request for admissions (discovery tool)

A
  • parties only, don’t ask witnesses
  • admit or deny you did it
  • become stipulated facts if it’s admitted
  • if denied, has to be proven
  • purpose: to limit the issues that will go before the jury
34
Q

request for documents (discovery tool)

A
  • parties only, don’t ask witnesses
  • finding evidence
35
Q

subpoenas (discovery tool)

A

can use these to access said documents

36
Q

discovery challenges

A
  • motion to quash subpoenas
  • motion to compel discovery
  • motion for sanctions for spoliation of evidence
  • electronic discovery
37
Q

discovery challenges

A
  • motion to quash subpoenas
  • motion to compel discovery
  • motion for sanctions for spoliation of evidence (electronic discovery)
38
Q

letter of litigations

A
  • sent right after the complaint
  • says you can’t erase evidence regarding the case
  • can tell jury if you delete evidence

COMM LAW 3410 (14 decks)

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