The Judicial System and Litigation in Legal Environment and Business | BLS 211, Study notes of Business and Labour Law

Download The Judicial System and Litigation in Legal Environment and Business | BLS 211 and more Study notes Business and Labour Law in PDF only on Docsity! Chapters 3 - The Judicial System - - Litigation - - Alternate Dispute Resolution - Judicial Review • Style: Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803). • Facts: Marbury was appointed as a “midnight judge,” but Secretary of State Madison refused to give him his commission. Judiciary Act of 1789 said Supreme Court would have original jurisdiction. Article III of Constitution says, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction…” • Issue: Does the Supreme Court have the power of judicial review to declare an act of Congress unconstitutional? • Held: Yes. • Rationale: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.” Judicial System & Litigation • Personal Jurisdiction – Plaintiff or Petitioner – Defendant or Respondent • Person – – Personal service by process server – Long arm statute » minimum contacts » “traditional notions of fair play and substantial justice are not offended” – Acceptance of service – Service by publication Judicial System & Litigation – Obtaining Personal Jurisdiction Over a Business • Personal service on an agent • Long arm statute – minimum contacts – Agent for service of process – Solicitation of customers – Purposeful availment – Internet “sliding scale” • Personal jurisdiction can be waived Judicial System & Litigation • Subject matter jurisdiction – General subject matter jurisdiction – Limited jurisdiction; • Probate • Domestic relations • Small claims • Municipal courts Judicial System & Litigation • Alabama Court System Supreme Court Court of Civil Appeals Court of Criminal Appeals Circuit Court (of each County) District Court (Small Claims Court) Probate Court Municipal Court Judicial System & Litigation • Jurisdiction over property – In rem – Quasi in rem – Service by publication Judicial System & Litigation • Venue – Plaintiff – Defendant • Individuals – Usually the place where the defendant lives. • Businesses – Usually, where the business has its principal place of business. – In state court, venue for a ‘foreign corporation,’ is any county where it does business by agent. – Forum non conveniens – Change of venue Judicial System & Litigation • Style: Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). • Facts: Erie Railroad was a New York corporation which operated a railroad in Pennsylvania. Tompkins, a Pa. citizen was injured while trespassing on the railroad’s right of way in Pa. In Pa., no recovery for trespassers, so Tompkins sued in New York. The District Court awarded Tompkins $30,000 based upon the federal general common law, as per Swift v. Tyson. • Issue: Are cases in federal court to be decided based upon the federal general common law? • Held: No. • Rationale: There is no federal general common law. Swift v. Tyson is overruled. In diversity cases, federal courts are to apply the law of the forum state. Here, New York’s law of conflicts would apply Pa. law. So, the case is remanded for new trial based upon Pa. law. A sample civil court case in a state court would involve the following: The Pleadings Pretrial Motions Discovery Pretrial Conference Trial Post trial Motions The Appeal Following a State Court Case Judicial System & Litigation • Pleading – Complaint filed by plaintiff (Petition filed by petitioner) – Summons filed by plaintiff – Answer filed by defendant (Response filed by respondent) • Affirmative defenses – Contributory Negligence – Fraud – Res judicata – Failure of consideration – Statute of limitations – Counterclaim – Claims by defendant back against the plaintiff – Cross claim – Claims by one defendant against another defendant – Third party claims – Claims by one defendant against someone who is not already a party to the litigation – Reply to counterclaim – Answer to cross claim – Answer to third party complaint – Default judgment Judicial System & Litigation • Trial • Jury selection – voir dire – venire – challenge for cause – preemptory challenge – Batson challenge • Opening Statements • Plaintiff’s case – Presentation of evidence through witnesses • Evidence must be relevant. • Evidence must not be based upon hearsay. • Evidence must not contain privileged communications. • Documents are admitted by agreement, or through witnesses. – Direct and cross examination – Burden of proof • preponderance of the evidence • clear and convincing evidence • beyond a reasonable doubt – Criminal cases only. • Defendant’s case – similar to plaintiff’s case. Judicial System & Litigation • Motion for judgment as a matter of law • Closing arguments • Jury Instructions • Verdict • Judgment • Post Trial Motions to the trial court. – Motion for judgment as a matter of law – Motion for new trial • Appeal – One appeal by right – Further review by writ of certiorari only – Appeals in criminal cases • Double jeopardy • Enforcement of judgment Judicial System & Litigation • Attorney’s fees – Hourly – Contingent fee – By the job – Should the loser have to pay the prevailing party’s attorney’s fees? – Court costs • Judiciary – Alabama judges elected – Madison County selection committee – Municipal judges named by Mayor, approved by City Council – Federal judges appointed for life • Less politics? • Finding an attorney