1
Q
Definitions of Law
A
- There are many definitions of law, depending on the content and subject matter involved.2. In some areas, the law is a command from the sovereign.3. Law is a method of controlling society and implementing change.4. Law consists of the principles used by courts to decide controversies.
2
Q
Classifications of Legal Subjects
A
- One way to classify laws is by their purpose–substantive versus procedural.2. Public law versus private law is another common way to distinguish between classifications of laws.
3
Q
Court Decisions
A
- Reliance on decided cases as precedents for present controversies is the foundation of our common-law system.2. Common law must be contrasted with the civil-law system, which relies more on statutory law than on court decisions as a primary source of law.
4
Q
Basic Constitutional Principles
A
- Constitutional principles provide the foundation of our legal system.2. One of the most important constitutional principles is the doctrine of judicial review.
5
Q
Legislation
A
- Legislation in the form of statutes, codes, and ordinances provides much of our body of law.2. Courts have a major role to play in interpreting legislation.
6
Q
Uniform State Laws
A
- Uniform state laws such as the Uniform Commercial Code are an attempt to provide uniformity in business transactions throughout the country.
7
Q
Stare Decisis
A
- This means to stand by decisions and not disturb what is settled.2. The goal is certainty and predictability.
8
Q
Problems Inherent in Case Law
A
- The volume of cases makes legal research difficult.2. There are often conflicting precedents that are difficult to apply.3. Precedent must be distinguished from mere dicta.
9
Q
Rejection of Precedent
A
- Case law may be changed if conditions change or its reasoning is no longer sound.2. Precedent is given greater weight in private law than in cases involving public law issues.
10
Q
Conflict of Laws
A
- Conflict of laws principles determine the appropriate statutes and case law to be used in litigation involving more than one jurisdiction.2. A court in one forum may use the substantive law of another to decide a case.
11
Q
Jurisprudence
A
- Jurisprudential schools capture how individuals think about law and its application.
12
Q
Ethical Conduct
A
- Along with legal and economic consequences, ethics influences behavior within the business community.2. Some ethical lapses result in sanctions while others do not.
13
Q
Interrelationship Between Law and Ethics
A
- Ethical standards are frequently enacted into law or used in court decisions.2. Ethical principles usually go beyond the law.
14
Q
Trial Judges
A
- Judges conduct the trial. They decide questions of procedure and instruct the jury on the law applicable to the issues to be decided by the jury.2. Judges supply the law applicable to the facts.3. Judges find the facts if there is no jury.
15
Q
Reviewing Court Judges and Justices
A
- Judges of intermediate reviewing courts and justices of final reviewing courts decide cases on appeal. The questions to be decided are questions of law.2. Reviewing courts require more legal scholarship of the reviewing judges and justices than that typically required of the trial judges.
16
Q
The Jury
A
- The jury function is to decide disputed questions of fact.2. A jury may consist of as few as six persons.3. Less than unanimous verdicts are possible with twelve-person juries.4. Excuses from jury duty are more difficult to obtain today.
17
Q
State Structure
A
- Each state has a trial court of general jurisdiction and inferior courts of limited jurisdiction.2. The small claims court is of growing importance because it provides a means of handling small cases without the need for a lawyer.3. Historically, trial courts were divided into courts of law and courts of equity or chancery.2. The small claims court is of growing importance because it provides a means of handling small cases without the need for a lawyer.3. Historically, trial courts were divided into courts of law and courts of equity or chancery.
18
Q
Federal Structure
A
- The Constitution created the Supreme Court.2. Congress has created thirteen courts of appeals and at least one district court in each state.2. Congress has created thirteen courts of appeals and at least one district court in each state.
19
Q
Federal District Courts
A
- Federal courts have limited jurisdiction. They hear cases based on federal laws (federal question cases) and cases involving diversity of citizenship.2. Diversity of citizenship cases have a jurisdictional minimum of more than $75,000.3. For diversity of citizenship purposes, a corporation is a citizen of two states?the state of incorporation and the state of its principal place of business.
20
Q
The Law in Federal Courts
A
- Each state has a trial court of general jurisdiction and inferior courts of limited jurisdiction.2. The small claims court is of growing importance because it provides a means of handling small cases without the need for a lawyer.3. Historically, trial courts were divided into courts of law and courts of equity or chancery.2. The small claims court is of growing importance because it provides a means of handling small cases without the need for a lawyer.3. Historically, trial courts were divided into courts of law and courts of equity or chancery.2. Federal question cases are decided using federal substantive law.3. A federal court in a diversity of citizenship case uses the substantive law of the state in which it sits to decide such a case.
21
Q
Federal Reviewing Courts
A
- Courts of appeals decisions are usually final.2. Most cases in the Supreme Court are there as the result of granting a petition for a writ of certiorari.
22
Q
Basic Distinction
A
- Historically, courts of law handled cases involving claims for money damages.2. Courts of equity or chancery were created where the remedy at law (money damages) was inadequate–for example, suits seeking an injunction or dissolution of a business.
23
Q
Equitable Procedures
A
- There is usually no right to a trial by jury.2. Sometimes a special appointee, known as a master in chancery, assists with the fact-finding.3. The decision is called a decree.4. A person may be jailed for violating a decree.5. Courts of equity use maxims instead of rules of law to decide cases.6. Use of maxims allows courts to achieve justice.
24
Q
Parties
A
- The names used to describe the parties in litigation vary depending on the type of lawsuit and the stage of the litigation.2. Cases on appeal are usually titled in the name of the appellant versus the appellee (respondent).
25
Standing to Sue
1. A plaintiff must have standing to sue.2. Standing requires that the plaintiff have an actual stake in the controversy such that all issues will be adequately raised.3. One person often brings suit on behalf of a class.
26
Jurisdiction
1. To render a binding decision, a court must have jurisdiction over the subject matter of the litigation and over the parties.2. Jurisdiction over the defendant is usually obtained by the service of a summons. In some cases, jurisdiction may be obtained by publishing a notice in the newspaper.
27
Long-Arm Statutes
1. A summons may be served beyond the borders of the state if the state has a long-arm statute. This service is not a denial of due process if the defendant has sufficient contact with the state issuing the summons such that requiring him or her to defend the lawsuit does not offend our traditional notions of fair play and substantial justice.2. A plaintiff may file a lawsuit in a state without minimum contact since the plaintiff is voluntarily submitting to the jurisdiction of the court.
28
Venue
1. Jurisdiction is the power to hear a case. The term venue is used to describe the appropriate court among all those with jurisdiction to hear the case.
29
Pleadings
1. The term pleadings is used to describe papers filed with the court by the parties to create the issues for trial.2. The plaintiff makes allegations in a complaint, and the defendant answers the complaint by admitting or denying each allegation of the complaint.3. The answer may contain counterclaims of the defendant, and in some states the plaintiff must file a reply to all new matters raised in the answer.
30
Discovery Procedures
1. During the pleading stage and thereafter, the law has several techniques that the parties use to discover facts known by the other.2. These techniques include the taking of depositions, the furnishing of copies of documents and photographs, serving interrogatories, and completing compulsory physicalexaminations.3. The purpose of discovery is to encourage settlement and to take the surprise element out of litigation.4. At the close of discovery, the parties and the judge meet at a pretrial conference to finish narrowing the issues for trial and to settle the case, if possible.
31
Decisions Prior to Trial
1. If during the pleading stage it appears that there is no material fact in dispute, then there is no need for a trial.2. The court will decide the questions of law raised by the pleadings and other documents on file.3. This decision may be a judgment on the pleadings, or it may be a summary judgment.
32
Proof
1. In selecting the jury, each party is entitled to challenge any potential juror for cause.2. In addition, each party is given a specified number of peremptory challenges to reject potential jurors without giving a reason.3. The parties attempt to prove their factual contentions by introducing evidence in open court. Evidence is presented through questioning of witnesses, with the opposing party being given the right of cross-examination.
33
Burdens of Proof
1. The term burden of proof is used to describe the party that is required to come forward with evidence on a certain point. It is also used to describe the party with the burden of persuasion.2. The law imposes three levels in satisfying the burden of persuasion. In criminal cases, the burden is beyond a reasonable doubt. In most civil cases, the burden is by a preponderance of greater weight of the evidence. In some special situations, there is a burden between these other two that is known as the clear and convincing proof standard.
34
Motions During Trial
1. At the close of the plaintiff 's case, a defendant will ordinarily make a motion for a directed verdict.2. The court will grant this motion and order the jury to return a verdict for the defendant if the evidence considered in the light most favorable to the plaintiff will not support a verdict for the plaintiff.3. The motion will be denied if there is any evidence to support each allegation of the complaint.4. In cases tried without a jury, either party may move for a finding in his or her favor if the result is not in doubt.
35
Jury Instructions
1. After the parties have introduced all their evidence, the court instructs the jury on the law applicable to the case.2. Jury instructions tell the jury that if it finds certain facts, then it should reach a certain result.
36
Verdicts and Judgments
1. The decision of a jury is known as a verdict.2. The final decision of the court, based on the verdict, is known as a judgment.
37
Post-Trial Motions
1. The losing party before the trial judge ordinarily files a post-trial motion. In this post trial motion, the losing party seeks either a new trial or a judgment in its favor notwithstanding the verdict.2. It is from the ruling on this post-trial motion that the losing party appeals.
38
Appeals
1. Appeals are costly and time-consuming. The party must obtain a transcript of the proceedings before the trial court and excerpt therefrom the matters to be raised on appeal. A brief must be prepared containing the points to be considered by the reviewingcourt and a party?s legal authorities in support of the appeal.2. The issues before the reviewing court are essentially questions of law, and great deference is given the findings of fact at the trial level.
39
Reasons to Settle
1. Most disputes in our society are settled without resort to litigation.2. There are both personal and economic incentives to settle business-related disputes.3. A major function of lawyers is to negotiate a settlement of controversies.
40
Mediation
1. Mediation is a process by which a third party assists in reaching a compromise of a dispute.2. The National Mediation and Conciliation Service is available to mediate labor disputes.
41
Advantages
1. Arbitration is the submission to a person or persons other than a court for a final binding decision of a controversy.2. Arbitration is less expensive than litigation. It generally takes far less time and allows the parties to remain more amicable than does litigation.
42
Common-Law Arbitration
1. Such proceedings were based on an agreement of the parties that was revocable until the award.2. Agreements to arbitrate future disputes were not enforceable.
43
Types of Arbitration Systems
1. Most states have comprehensive arbitration statutes that encourage arbitration.2. Agreements that comply with the statute are enforced by courts.
44
Arbitration Statutes
1. Most statutes require a written agreement to arbitrate.2. Submission is usually required within six months of the dispute.
45
Submission
3. Submission may result from an agreement to arbitrate all disputes that may arise in the future or from an agreement to arbitrate a particular dispute.
46
The Award
1. The decision in an arbitration is known as an award. Awards may be judicially enforced.2. If an award is within the power of the submission, a court will not change it because of errors of fact or errors of law.
47
Procedures in Arbitration Hearings
1. The parties are given notice of the time and place of the hearing.2. The proceedings are less formal than a trial, and the arbitrators need not follow strict rules of evidence.
48
Judicial Procedures in Arbitration
1. Litigation is often necessary to enforce an award, which is treated as if it were a judgment of a court.2. An agreement to arbitrate may also be ordered enforced by courts.3. There are a few grounds for challenging an award in court.
49
Reasons to Settle
1. Most disputes in our society are settled without resort to litigation.2. There are both personal and economic incentives to settle business-related disputes.3. A major function of lawyers is to negotiate a settlement of controversies.
50
Mediation
1. Mediation is a process by which a third party assists in reaching a compromise of a dispute.2. The National Mediation and Conciliation Service is available to mediate labor disputes.
51
Advantages
1. Arbitration is the submission to a person or persons other than a court for a final binding decision of a controversy.2. Arbitration is less expensive than litigation. It generally takes far less time and allows the parties to remain more amicable than does litigation.
52
Common-Law Arbitration
1. Such proceedings were based on an agreement of the parties that was revocable until the award.2. Agreements to arbitrate future disputes were not enforceable.
53
Types of Arbitration Systems
1. Most states have comprehensive arbitration statutes that encourage arbitration.2. Agreements that comply with the statute are enforced by courts.
54
Arbitration Statutes
1. Most statutes require a written agreement to arbitrate.2. Submission is usually required within six months of the dispute.
55
Submission
1. The term submission is used to describe the action of referring an issue to arbitration.2. The submission governs the duties and powers of the arbitrators.3. Submission may result from an agreement to arbitrate all disputes that may arise in the future or from an agreement to arbitrate a particular dispute.
56
The Award
1. The decision in an arbitration is known as an award. Awards may be judicially enforced.2. If an award is within the power of the submission, a court will not change it because of errors of fact or errors of law.
57
Procedures in Arbitration Hearings
1. The parties are given notice of the time and place of the hearing.2. The proceedings are less formal than a trial, and the arbitrators need not follow strict rules of evidence.
58
Judicial Procedures in Arbitration
1. Litigation is often necessary to enforce an award, which is treated as if it were a judgment of a court.2. An agreement to arbitrate may also be ordered enforced by courts.3. There are a few grounds for challenging an award in court.
59
Terminology
1. Criminal conduct is either wrongful per se (malum per se) or declared wrongful by a governing body (malum prohibition).2. A criminal proceeding is called a prosecution.3. A grand jury may declare that there is sufficient evidence to warrant a trial by indicting a defendant with a true bill. Otherwise, the grand jury returns a no true bill, and no trial4. Some crimes (such as larceny, robbery, and burglary) have specific meaning associated with their names. Other crimes, known as lesser included defenses, are part of another crime.5. The standard of proof that a prosecutor must meet for a criminal conviction is called proof beyond a reasonable doubt.2. A criminal proceeding is called a prosecution.3. A grand jury may declare that there is sufficient evidence to warrant a trial by indicting a defendant with a true bill. Otherwise, the grand jury returns a no true bill, and no trial4. Some crimes (such as larceny, robbery, and burglary) have specific meaning associated with their names. Other crimes, known as lesser included defenses, are part of another crime.5. The standard of proof that a prosecutor must meet for a criminal conviction is called proof beyond a reasonable doubt.
60
Classifications of Crimes
1. Crimes typically are classified as treason, felonies, and misdemeanors.2. Some minor crimes are called petty offenses or public torts.Administrative Crimes 1. Legislative bodies allow regulatory agencies to adopt rules, a violation of which may be punished as a crime.2. Generally, agencies will not conduct trials. Exceptions for hearings do exist when the wrongful activity involves minor penalties being invoked.
61
White-Collar Crimes
1. White-collar crimes are the result of guile, deceit, or wrongful conduct, such as price fixing or insider trading.2. The trend is toward harsher punishment for such crimes.
62
Damage Suits
1. Many statutes today authorize suits for triple damages by the victims of white-collar crime.2. RICO cases are brought against many business specialists who have used the telephone or the mails to defraud others.
63
Act and Intent
1. A crime is a combination of act and intent.2. Some crimes require a specific intent, while others require only a general intent.3. In a few instances, conduct is criminal without intent, and doing the act is all that is required.
64
Capacity
1. Certain ages determine whether a person has the mental capacity to commit a crime.2. The criminal law has special rules and procedures for handling crimes committed by juveniles. These cases are handled in special courts to rehabilitate and deter further criminal conduct by those under age.
65
Corporate Liability
1. Corporations may be held criminally liable for the acts of their directors, officers, and important managerial agents.2. In addition to vicarious liability, corporations may be punished for strict liability crimes.
66
Defenses to Criminal Prosecutions
1. There are various defenses that may be used by one accused of crime to avoid liability.2. Some of these defenses, such as insanity, are under challenge and are in the process of change.
67
Fourth Amendment
1. The Fourth Amendment protects those accused of crime from having evidence illegally obtained.2. If evidence is illegally obtained, the exclusionary rule prevents its use at trial.3. Evidence may be illegally obtained, even though a search warrant is used, if the warrant was improperly issued.4. In recent years the courts have narrowed the meaning of the Fourth Amendment. For example, evidence obtained by electronic surveillance is not an illegal search and seizure.5. There is a good-faith exception to the exclusionary rule.
68
Fifth Amendment
1. The Fifth Amendment requires indictment by a grand jury for capital offenses and infamous crimes.2. The Fifth Amendment provision on double jeopardy protects against a person's being tried twice for the same offense.3. The Fifth Amendment protection against compulsory self-incrimination is personal to the accused. It does not prevent others from testifying or documents in the hands of others from being used as evidence.
69
Sixth Amendment
1. The Sixth Amendment provides a criminal defendant with the right to a speedy and public jury trial.2. The Sixth Amendment also guarantees a criminal defendant the right to a competent attorney.
70
Eighth Amendment
1. The Eighth Amendment prohibits excessive bail and cruel and unusual punishment.2. The death penalty may be imposed if subject to stringent safeguards by the courts.
71
Damages
1. The theory of damages in tort liability is that the victim will be paid a sum of money that will put a person in as good a position as the person would have been in had the tort not occurred.2. Compensatory damages include out-of-pocket losses plus pain and suffering, decreased life expectancy, and loss of life or limb.3. Punitive damages are awarded in some cases to punish the wrongdoer and to deter wrongful conduct.
72
Persons Liable
1. Employers have liability for the torts of their employees if the employee is acting within the scope of employment.2. If two or more persons commit a tort, they are jointly and severally liable.3. A child may have tort liability after reaching a certain age.4. Parents are generally not liable for the torts of their children unless the child is an agent or servant, or there is a special statute imposing liability.
73
Interference with Personal Freedom
1. These torts include assault, battery, and false imprisonment.2. The tort of inflicting mental distress is of growing importance. It is based on 'outrageous' or ?reckless? conduct.
74
Interference with Property Rights
1. Trespass may occur as to both real and personal property. A trespass may be innocent or willful.2. When a conversion of personal property occurs, the wrongdoer has liability for the value of the goods.3. A nuisance is the unreasonable use of one's property that causes injury to another. A nuisance may be enjoined or may result in dollar damages to the victim.
75
INTERFERENCE WITH ECONOMIC RELATIONS
1. Interference with commercial or economic relations includes four business torts: disparagement, interference with contractual relations, interference with prospective advantage, and wrongful appropriation of business interests.2. Disparagement is a false communication about a product or business.3. Interference with contractual relations usually takes the form of inducing a breach of contract.4. Interference with prospective or potential advantage is considered a tort, to protect the expectancies of future contractual relations, including the prospect of obtaining employment, employees, or customers.5. It is a tort to interfere with another?s copyright, patent, trademark, or goodwill.
76
WRONGFUL COMMUNICATIONS
1. Defamation consists of the twin torts of libel and slander. Libel is generally written; slander is oral. Tort liability for defamation exists to protect a person?s name and reputation.2. The right of privacy is the right to be let alone. It involves wrongful intrusion into one?s private life in such a manner as to outrage or to cause mental suffering, shame, or humiliation to a person of ordinary sensibilities.
77
Duty
1. The five basic elements of negligence are (1) a duty owed by one person to another and (2) a breach of that duty (3) that was the actual cause and (4) that was the proximate cause of (5) an injury.2. The duty owed by one person to another varies depending on the relationship of the parties.
78
Due Care
1. Negligence is the failure to exercise due care. Due care is reasonable conduct under the circumstances.2. The doctrine of res ipsa loquitur creates a presumption of negligence. Reasonable-Person Test 1. The standard for judging whether or not a duty has been breached is to judge theconduct against the standards of the reasonable person.
79
Degrees of Negligence
1. The greater the risk, the higher the duty owed to others.2. A common carrier is an insurer of goods and owes passengers the highest degree of care.3. Slight negligence is the failure to use great care.4. Ordinary negligence is the failure to use ordinary care.5. Gross negligence is the failure to use slight care.
80
Malpractice
1. Malpractice by professional persons is the failure to exercise that degree of care and caution that the profession calls for. It is the failure to meet the standards of the profession.
81
Special Doctrines that Show Negligence
1. The doctrine of res ipsa loquitur creates a presumption of negligence.2. Negligence per se occurs where a person violates a law or ordinance and damage results.
82
Actual Cause
1. Actual cause means that there is a connection between the breach of duty and injury.
83
Proximate Cause
1. Proximate cause is based on the foreseeability of the injury as a result of unreasonable behavior.
84
Defenses to Negligence
1. Plaintiff 's contribution may be a total bar or simply used to proportionately reduce any damage award.2. Assumption of the risk occurs where plaintiff voluntarily assumes a known risk of harm.
85
Theory
1. In strict liability cases, the focus of attention is on the product.2. A manufacturer selling a defective product in a defective condition that is unreasonably dangerous to the user or his or her property is liable for physical injuries caused by the defect.3. The theory may apply to leases as well as sales.
86
Recent Trends in Product Liability
1. The Restatement (Third) does not impose upon the plaintiff the requirement to show that a manufacturing defect was unreasonably dangerous.
87
Defenses
1. Contributory negligence is not a defense to a suit based on the theory of strict tort liability.2. Comparative fault is often used to reduce verdicts in strict products liability cases.3. Courts normally reject state-of-the-art defenses.
