judicial review was established by the u.s. supreme court in marbury v. madison (1803) where chief...

Judicial Review was Judicial Review was established by the U.S. established by the U.S. Supreme Court in Supreme Court in Marbury Marbury v. Madisonv. Madison (1803) where (1803) where Chief Justice Marshall wrote:Chief Justice Marshall wrote:“It is emphatically the province

and duty of the judiciary to say what the law is….”

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JurisdictionJurisdiction: “Juris” (law) : “Juris” (law) “diction” (to speak) is the “diction” (to speak) is the power of a court to hear a power of a court to hear a dispute and to “speak the law” dispute and to “speak the law” into a controversy and render into a controversy and render a verdict that is legally binding a verdict that is legally binding on the parties to the dispute. on the parties to the dispute.


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PersonsPersons: power of a court to : power of a court to compel the presence of the compel the presence of the parties (including parties (including corporations) to a dispute to corporations) to a dispute to appear before the court and appear before the court and litigate.litigate.


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In RemIn Rem: power to decide : power to decide issues relating to real or issues relating to real or personal property.personal property.A court generally has in rem jurisdiction over any property situated within its geographical borders.


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Long-ArmLong-Arm Statutes. Statutes.Courts use long-arm statutes for non-resident parties based on “minimum contacts” with state.

Means defendant had some connection with forum state.


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Corporate Contacts: does the Corporate Contacts: does the firm do business or advertise firm do business or advertise within the state?within the state?CASE 2.1 Southern Prestige Industries, Inc. Independence Plating Co. (2010). Did the New Jersey firm have minimum contacts with North Carolina?


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General and Limited General and Limited Jurisdiction.Jurisdiction.Statutory limitation on the types of cases a court can hear (e.g., probate and bankruptcy).

Can also be limited to amount in controversy (amount of monetary damages).


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Original and Appellate Original and Appellate Jurisdiction.Jurisdiction.Courts of original jurisdiction is where the case started (trial).

Courts of appellate jurisdiction have the power to hear an appeal from another court.


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Federal Questions. Federal Questions. Rights or obligations of a party are created or defined by some federal law.

Diversity of Citizenship. Diversity of Citizenship. Parties are not from same state, and amount in controversy must exceed $75,000.


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Exclusive: only one court Exclusive: only one court (state or federal) has the (state or federal) has the power (jurisdiction) to hear power (jurisdiction) to hear the case. the case.

Concurrent: more than one Concurrent: more than one court can hear the case.court can hear the case.


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““Sliding Scale” Standard to Sliding Scale” Standard to determine whether to exercise determine whether to exercise jurisdiction.jurisdiction.

International Jurisdiction Issues.International Jurisdiction Issues.

No Yes

Substantial Business

Interaction

Passive Website

Some Interaction


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Venue is concerned with the Venue is concerned with the most appropriate location for most appropriate location for the trial.the trial.

Generally, proper venue is Generally, proper venue is whether the injury occurred.whether the injury occurred.


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A party must have suffered a A party must have suffered a legal injury and have a legal injury and have a sufficient “stake” in the sufficient “stake” in the controversy.controversy.CASE 2.2 Oregon v. Legal Services Corp. (2009). Was there a “concrete” injury to the state?


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Ct. Criminal Appeals

SupremeCourt

Court ofAppeals

District Court

County Court

Municipal

Court

JusticeCourt

Texas CourtsU.S.

SupremeCourt

Circuit Courts ofAppeals

U.S. DistrictCourt

Federal Courts


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““Courts of record”- have Courts of record”- have court reporters.court reporters.Small Claims Courts are informal, inferior courts with limited amounts in controversy (usually $5,000).

Opening and closing Opening and closing arguments.arguments.

Juries are selected.Juries are selected.© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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Review trial court proceedings Review trial court proceedings to determine whether the trial to determine whether the trial complied with procedural and complied with procedural and substantive rules of law.substantive rules of law.

Generally, appellate courts will Generally, appellate courts will consider questions of law, but consider questions of law, but notnot questions of fact.questions of fact.


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Usually, but not always, Usually, but not always, called a ‘supreme court.’called a ‘supreme court.’Decisions of a state’s highest court on matters of state law are final. The U.S. Supreme Court can overrule a state supreme court when there are federal laws involved.


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Basically a three-tiered Basically a three-tiered system:system:U.S. District Courts (trial courts of general jurisdiction).

U.S. Courts of Appeal. The U.S. Supreme Court.


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U.S. District CourtsU.S. District CourtsCourts of original jurisdiction based on federal statutes.

U.S. Courts of Appeal.U.S. Courts of Appeal.There are 13 Courts of Appeal representing district courts throughout the country.


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www.supremecourt.gov

Highest Court in Highest Court in the Land.the Land.Final arbiter of

U.S. Constitution.

Petition for Court to hear case by Writ of Certiorari.

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American and English court American and English court systems follow the systems follow the adversarial system of justice. adversarial system of justice.

Each client is represented by Each client is represented by an attorney although a client an attorney although a client is allowed to represent is allowed to represent herself (called “herself (called “pro-sepro-se”).”).


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Trials involve “due process” Trials involve “due process” which requires adequate which requires adequate notice and a fair and impartial notice and a fair and impartial hearing.hearing.

For example, all civil trials in For example, all civil trials in federal court are governed by federal court are governed by the Federal Rules of Civil the Federal Rules of Civil Procedure (FRCP).Procedure (FRCP).


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Pretrial.Pretrial. Trial.Trial. Posttrial.Posttrial.


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Generally, the first step in Generally, the first step in litigation is contacting any litigation is contacting any attorney to seek qualified attorney to seek qualified legal advice.legal advice.

Types of Attorneys’ Fees Types of Attorneys’ Fees (hourly vs. contingent fee).(hourly vs. contingent fee).

Settlement Considerations.Settlement Considerations.


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Pleadings.Pleadings. Discovery.Discovery. ConferenceConference Jury Selection.Jury Selection.


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Plaintiff’s Plaintiff’s Complaint. Complaint. Court acquires

jurisdiction over subject matter and Plaintiff.

Facts: What happened.

Prayer: Court relief.


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Service of Service of Process.Process.Plaintiff serves

Defendant with Complaint and Summons.

Default Judgment for Plaintiff if Defendant does not Answer.


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Method of Service. Method of Service. Usually by Sheriff or private process server. Copy of Complaint and Summons personally delivered.

If Defendant cannot be reached, “Notice by Publication” is allowed in local newspaper of record.


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Method of Service (cont’d).Method of Service (cont’d).Corporate Defendants served via Registered Agent. If the Defendant is out-of-state, Court can acquire jurisdiction by “long-arm” statutes.

Waiver of Formal Service of Waiver of Formal Service of Process.Process.


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Defendant’s Response.Defendant’s Response.The Answer is the Defendant’s response to the allegations stated in the Plaintiff’s Complaint.

In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint.


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Defendant’s Answer:Defendant’s Answer:Makes General Denial.May move for Change of Venue.May allege Affirmative Defenses.

May assert Counterclaims against Plaintiff.


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Affirmative Defense.Affirmative Defense.Show plaintiff was driving negligently at the time of the accident.

Comparative Negligence vs. Contributory Negligence.

Burden of proof is on defendant to show plaintiff was negligent.


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CounterclaimCounterclaim is a lawsuit is a lawsuit filed by Carvello against filed by Carvello against Kirby, alleging Kirby injured Kirby, alleging Kirby injured or caused damages to or caused damages to Carvello. Carvello.

Kirby(Plaintiff)

CarvelloCarvello(Defendant)


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Dismissal and Judgments Dismissal and Judgments Before Trial. Before Trial. Many lawsuits never go to trial. Perhaps there is a settlement, or the case was dismissed.

Parties often file “Pre-Trial Motions” asking the Court to do something.


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Dismissal and Judgments Dismissal and Judgments Before Trial (cont’d).Before Trial (cont’d).Motion to Dismiss: Either party (normally defendant) can ask the court to dismiss the case if the pleadings fail to show a legal claim.


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Dismissal and Judgments Dismissal and Judgments Before Trial (cont’d).Before Trial (cont’d).Motion for Judgment on the Pleadings: asks the court to rule on the case, based on the pleadings.


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Dismissal and Judgments Dismissal and Judgments Before Trial (cont’d).Before Trial (cont’d).Motion For Summary Judgment.

Asks a court to grant a judgment for moving party without a trial.

Facts are viewed in the light most favorable to the other party.

Admissible evidence is submitted.


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Discovery is the process by Discovery is the process by which parties obtain which parties obtain information from the information from the opposing party prior to trial.opposing party prior to trial.

Kirby and Carvello will want Kirby and Carvello will want to know about each other to to know about each other to prevent ‘surprises’ at trial. prevent ‘surprises’ at trial.


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Case 2.3 Case 2.3 Blankenship v. Blankenship v. Collier Collier (2010). (2010). What What happens when Plaintiff fails to happens when Plaintiff fails to identify witnesses?identify witnesses?

Discovery Rules.Discovery Rules. Depositions: Depositions: sworn testimony sworn testimony

recorded and transcribed by recorded and transcribed by court official (court reporter).court official (court reporter).


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Interrogatories: Interrogatories: written written questions and answers under questions and answers under oath.oath.

Requests for Admissions: Requests for Admissions: admission is considered a “fact” admission is considered a “fact” for trial.for trial.

Requests for Documents, Requests for Documents, Objects, and Entry Upon Objects, and Entry Upon Land.Land.


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Requests for Examination.Requests for Examination.Carvello and Kirby could request examinations of the cars, medical records.

Electronic Discovery (E-Electronic Discovery (E-Evidence).Evidence).FRCP deals specifically with preservation, retrieval, and production of electronic data.


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After discovery is completed After discovery is completed meet with trial judge.meet with trial judge.

Explore possibility of Explore possibility of settlement, or identify issues settlement, or identify issues that are in dispute for jury to that are in dispute for jury to consider.consider.


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Jury Selection.Jury Selection.Voir Dire.Jurors can be dismissed peremptorily (no reason or for cause (bias).


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Opening Statements. Opening Statements. Rules of Evidence.Rules of Evidence.

Judge decides what evidence is admissible for jury’s consideration.

Evidence must be relevant to the issues (tends to prove or disprove).


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Rules of Evidence: Rules of Evidence: hearsay hearsay evidence is evidence is notnot admissible. admissible.

Examination of Witnesses: Examination of Witnesses: by by direct or cross examination.direct or cross examination.Expert Witnesses. Provide specialized knowledge and opinions that help jurors decide issues.


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Plaintiff’s Motion for Directed Plaintiff’s Motion for Directed Verdict.Verdict.At conclusion of plaintiffs’ case, court looks at evidence in most favorable light to defendant.

Defendant’s Evidence.Defendant’s Evidence.Plaintiff can ‘rebut’ the evidence,

and defense can state ‘rejoinders.’© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website for classroom use.

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Closing Arguments, Jury Closing Arguments, Jury Instructions, and Verdict. Instructions, and Verdict. After both sides present their cases, the attorneys make their closing statements.


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Closing Arguments, Jury Closing Arguments, Jury Instructions, and Verdict. Instructions, and Verdict. Each attorney summarizes the facts and evidence and tells her client’s story in the most compelling way possible.


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Closing Arguments, Jury Closing Arguments, Jury Instructions, and Verdict. Instructions, and Verdict. Jury Instructions: After closing arguments, the judge instructs the jury on the law of the case. Criminal cases--burden of proof is

“beyond a reasonable doubt” and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury.


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Closing Arguments, Jury Closing Arguments, Jury Instructions, and Verdict.Instructions, and Verdict.Verdict: The verdict specifies the jury’s findings and liability. A jury can award money damages in a civil case, or

Jury is dismissed after verdict.


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After jury reaches a verdict, After jury reaches a verdict, either party can make a either party can make a posttrial motion.posttrial motion.Motion for New Trial: after looking at all the evidence, judge will grant the motion IF the jury was in error.


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After jury reaches a verdict, After jury reaches a verdict, either party can make a either party can make a posttrial motion.posttrial motion.Motion for J.N.O.V.: granted only if the jury’s verdict was unreasonable and erroneous.


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A party may appeal the jury’s A party may appeal the jury’s verdict or any legal issue, verdict or any legal issue, motion or court ruling during motion or court ruling during the trial.the trial.Appellants must have legitimate grounds for appeal (usually legal error).


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The party filing the appeal The party filing the appeal (Appellant) files a brief that (Appellant) files a brief that contains a short statement of contains a short statement of the facts, issues, rulings by the the facts, issues, rulings by the trial court, grounds to reverse trial court, grounds to reverse the judgment, applicable law the judgment, applicable law and arguments on Appellant’s and arguments on Appellant’s behalf.behalf.


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Appellate Review: Appellate Review: The appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.

Higher Appellate Courts.Higher Appellate Courts.


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What if the jury awards Kirby What if the jury awards Kirby the full amount of damages of the full amount of damages of $100,000? How will she $100,000? How will she collect it? collect it? What if Carvello was not insured?What if he forgot to make his

insurance payment and the policy lapsed?

What if Carvello wants to appeal?


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Writ of Execution: Writ of Execution: directs directs sheriff to seize defendant’s non-sheriff to seize defendant’s non-exempt property and sell them exempt property and sell them to pay for judgment. to pay for judgment.

Availability of Assets: Availability of Assets: usually usually a plaintiff looks to see if the a plaintiff looks to see if the defendant has sufficient assets defendant has sufficient assets beforebefore the suit is filed. the suit is filed.


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