Slides note cards for ACC 473 Flashcards
________burden of proof is on the plaintiff and is a “preponderance of the evidence.”
CIVIL
________ burden of proof is on the state and is beyond a reasonable doubt.
CRIMINAL
_______redresses claims, often by private parties. Seeks remedies (money damages)-not punishment.
CIVIL LAW
___________ create rights and duties.
SUBSTANTIVE LAW
___________ create rules or processes by which these rights and duties are enforced.
PROCEDURAL LAWS
Most important distinction is that _______ replaces or modifies the common law.
STATUTORY LAW
Civil law does not use ________, but rather jurisprudence constante.
STARE DECISIS
__________- a series of similarly decided cases creates precedent.
Jurisprudence constant
_______ - one case to creating binding precedent.
stare decisis
__________uses juries for both civil and criminal cases
common law
____ decided and continue to decide issues of fact, while judges decide issues of law.
juries
______are seldomly used in Civil Law countries.
jurries
Some use three ________in criminal cases. Juries are virtually non-existent in non-criminal (civil) cases.
judge panels
Lawyers have a narrower role in __________
civil law system
______ handles client’s interests, but cannot coach witnesses for trial.
lawyers
Civil Law uses an ________approach
inquisitorial
Judge does most of the questioning of witnesses-probing, not _____.
adversarial
Judges often _______cases.
investigate
_________are not elected and are life-time civil servants.
judges
_____ decide both issues of law and fact.
judges
_______ system uses deductive reasoning.
civil law
From a general principle or rule, a particular problem is_______ and solved.
adressed
Judges cannot make law, only ______ the existing law.
interperet
All general rules (mainly codes) are made by _______ bodies-Parliament, Congress etc.
legislative
Codes are written purposely ______to enable judges to have the flexibility to make rulings.
broad
__________: Legal system used in Louisiana.
the civil law system
______: uses the common law, mainly in its procedural laws such as adversarial trials, juries etc.
louisiana
_______: Legal system used in Louisiana.
the civil law system
______: still important in deciding cases
common law
_________judges are also influenced by legal experts (Restatement of Torts etc.).
common law
______: diffused power away from the judge, the king’s representative.
Juries
______: “peers” of the parties to the suit - “freedmen”-property owners.
juries
______: knew the parties well - opposite of today.
jurrors
Today in the U.S. and England, _________have been merged typically into the court of general jurisdiction of a state.
law and equity
A command in equity cannot be ignored - _______
contempt of court
______: Courts of Law issue legal remedies called “damages”
contrast
______ are dollar amounts to make the injured party whole again.
damages
The __________ issued equitable remedies, generally non-monetary in nature.
courts of chancery
Thus, ________ are commands from the Court of Chancery to do or not to do something.
equitable remedies
Equity Courts began to issue their own remedies, called ________, which are generally non-monetary in nature. Examples are injunctions, temporary restraining orders (TRO’s), specific performance.
equitable remedies
_________ are commands from the court of equity to do or not to do something.
equitable remedies
___________: arose in the 16th Century to reform the Common law.
Courts of Equity or Chancery
_______ - overly rigid and technical
common law
_________ of remedies were particularly important.
choice
_________-issued by king and Chancellor-Keeper of the King’s Conscience”
remedies to create equity
Common law uses a _________approach
adversial
_______ present their arguments - the truth will emerge.
adversiaries
______must represent their client’s interests zealously to get to the truth.
lawyers
_____ is created by judges, but judges are also asked to interpret legislatively created law, such as statutes.
law
___________-made law and statutory interpretation must be analogized or distinguished
both judge
___________ Law system uses inductive reasoning
common`
.
_______ state courts are always bound by their own state supreme court decisions,
lower`
Legislative bodies (e.g. Congress) are not bound by ______.
stare decisis
______helped paved the way for integration and the civil rights movement.
ruling
________ is rigidly bound by its own prior decisions.
no court
A lower federal or state court is always bound by a _________ Court decision.
U.S. supreme
Must ______compelling social, economic or technological reasons to overturn a rule of law.
articulate
_________ (Latin: “stand by the decision“ or “let the decision stand”): Obligation of courts to honor past precedents.
stare decisis
The second change: a new _______.
court system
The ______ - a complex system of procedural safeguards.
second
_____of a powerful centralized government in general (the King).
distrust
________rests in multiple parties, judges, lawyers and juries.
power
________- way of changing social and economic conditions.
dynamic system
The American Legal System is based on the ______.
common law
The U.S. Supreme Court also interprets _______.
federal statutes
There is no _________(final decision is the Supreme Court’s) for interpreting statutes.
judicial review
_______ can amend the statute in order to change or modify the Court’s interpretation of the statute after the Court’s ruling.
congress
_________ limit legislation -rights to the people which governments cannot infringe upon.
bill of rights
_________: Judges will apply a utilitarian approach or balance pain versus pleasure against each other.
balancing the intetrests
Statutes and codes are often written broadly to enable judges creates ______on a case-by-case basis.
flexibility
Each state has its own ______-.
judicial system
The federal government has its own _________.
judicial system
__________ often engage in transactions in many states, creating legal complications
businesses
Within a state, _______can be assumed over persons within the state’s boundaries.
personal jurisdiction
___________: 1. Presence in the state by transacting business in the state; 2. ownership of real property in the state; 3. contracting to insure someone in the state; 4. commission of a tort in the state.
examples of minimum contacts
___________: If you’re a corporation and you ship goods and services out of state, be prepared to be sued in those states you conduct business in especially if it’s on an ongoing basis.
the bottom line
________`is concerned with the most appropriate location for the trial.
venue
Generally, proper venue generally occurs where the _________ in the county.
injury occured
______: power to decide issues relating to property, whether the property is real, personal, tangible, or intangible.
in rem
A court generally has _______ jurisdiction over any property situated within its geographical borders.
in rem
__________ are courts of limited subject matter jurisdiction.
federal courts
There are __ (with territories, 91 just states) federal district courts (they follow state and territorial lines).
94
__________courts are courts of original subject matter jurisdiction-where cases originate and where trials, both criminal and civil, are heard.
federal district courts
There are _ federal circuit courts of appeals.
13
Since Federal Courts are courts of limited subject matter jurisdiction, a plaintiff would have to comply with one of the two following requirements to gain entry into the federal court system:
________
diversity of citizenship
of federal question
If there is no diversity or federal question, plaintiff would have to go to a state court of __________
general subject matter jurisdiciton
In the federal system there are also specialized courts that have Exclusive subject matter jurisdiction over certain kinds of cases:
such as………….
Bankruptcy courts Patent, copyright and trademark cases Federal tax cases Some admiralty cases. Federal antitrust cases.
Appeals to the U.S. _________Must generally have a Writ of Certiorari accepted.
supreme court
It is a _______of which at least 4 justices must agree is a case that should be heard. (Called the Rule of 4).
discretionary writ
All states have a ___ of general subject matter jurisdiction.
court
State systems also have ______ of limited and exclusive subject matter jurisdiction. Examples include probate court, small claims courts, juvenile courts etc. (See page 38 in 12th ed.).
inferior courts
Most states, except the smallest in population, also have ______ courts of appeals.
intermediarie
Cases that go through a state system that could have otherwise have gone in the federal system (U.S. Constitutional issues, federal questions), can be_______ to the U.S. Supreme Court if a Writ of Certiorari is granted again by the Supreme Court.
appealed
In states with no _________ court, the appeal is by right to that state’s supreme court. No Writ of Certiorari is needed.
intermediate appeas
When a plaintiff goes to state court of general subject matter jurisdiction when he could’ve gone first to federal court, the defendant may remove the case to the local federal district court. Called __________
removal jurisdiction
_________ is designed to protect defendants from perceived bias in a local state court, sometimes called the “Hometown Effect”.
removal jurisdiciton
________ jurisdiction occurs when a case can be heard in either a federal or state court.
concurrent
Which court the______chooses depends on many factors-speed, reputation of the courts, perception of the judges etc.
plantiff
Successful negotiation involves thorough _______, from a position of strength.
preparation
What are some advantages of mediation?
few rules, customize process, parties control results (win-win).
What are some disadvantages of mediation?
mediator fees, no sanctions or deadlines.
_________ are not involved in arbitration unless an arbitration clause in a contract needs enforcement.
courts
If ___________ disputant must show that there was wrong-doing (bribe etc.) or it violates the general public policy of American law. (Labor arbitration allows dangerous drug user from being discharged).
challenged in court
_________ and Choice-of-Law clauses in contracts govern the transaction.
forum selesction
_________ are generally incorporated into international contracts.
arbitration clasues
What two issues should be considered when filling a lawsuit?
- Actual case or controversy (case must be justiciable)
2. standing
Generally, the ____________ in litigation is contacting an attorney to seek qualified legal advice.
first step
Corporate Defendants served via Registered Agent for Service of Process. If the Defendant is out-of-state, Court can acquire jurisdiction by ______
long arm statue
_______ admits or denies the allegations set forth in the Complaint.
defendant
A defendant can also make _______, which must be responded to by the plaintiff (who now becomes a defendant too) with a REPLY, also a kind of pleading.
counterclaims
There are other possible responses to a Complaint other than with an _______.
answer
__________: to evaluate the strengths and weakness of other side.
purposes of discovery
______________: List of questions between parties.
Interrogatories
___________: Documents-birth certificates, bills of sale, deeds etc.
Requests for Production
__________:Court reporter, under oath, transcribes whole proceedings.
depositions
__________: physical or mental exams, to inspect or enter property.
request for examination
__________: Plaintiff makes opening statement.
state of trial
______________is to inform the jury and the court, in a general way, the nature of the action and the basic facts intended to be proved.
purpose of opening statement
_______makes opening statement or reserves it for later, after plaintiff presents his case.
defendent
__________: Defendant normally does this after plaintiff’s case, or plaintiff after defendant is done.
motion for a directed verdict
Two important concepts for understanding the Bill of Rights: “_________” and _________
state action; selective incorporation
___________to the First Amendment Bill of Rights freedom of speech and expression: 1. Lewd & Obscene; 2. Profane 3. Libel and Slander; 4. Insulting, fighting and dangerous words (Example “Yelling fire in a crowded theater”).
four exceptions
What are the speech or expressions not protected?
lewd and obscene
profane
defamation
insulting, fighting, and dangerous words
what are the speech or expressions protected less?
commercial speech, eg. music
What are the speech or expressions most protected?
political speech
