LESSON ONE

This chapter provides you with a look at the nature, origin and importance of individual rights and how those rights are protected by laws and judicial process. The chapter provides a historical look at the evolution of rights of individuals and how technology requires that laws be revised to provide protection for those rights.

You are also introduced to the various sources of law and their interrelationships. Constitutional law, statutory law, administrative regulation, and case law (along with the principle of stare decisis and the concept of precedent) are explained along with the role and historical significance of common law. The nature and role of the uniform state laws are explained along with a discussion of the distinction between substantive law and procedural law. The distinctions between legal and equitable remedies are also explained.

Chapter One Outline

I. What is the Nature of Law and Legal Rights?

A. Legal rights are part of the law - principles that govern conduct and can be enforced in courts or by administrative agencies

B. Individual rights

1. Freedom of speech

2. Right to due process

3. Duties accompany rights

C. The right of privacy

1. An example of a legal right developed by courts

2. Did not exist before 1890

II. What are the Sources of Law?

A. Constitutional law: federal and state; historical development

B. Statutory law: federal and state

C. Administrative regulations

D. Court decisions or case law: historical development, precedent, stare decisis, common law; how to locate

E. Uniform state laws

1. Written generally

2. Adopted on a state-by-state basis

3. Uniform Commercial Code is an example

III. What are the Classifications of Law?

A. Substantive vs. procedural

B. Law vs. equity

1. Initially remedies were separate

2. Now remedies are provided by the same courts

CHAPTER 2: THE COURT SYSTEM AND DISPUTE RESOLUTION

Chapter 2 Summary

A court is a government-established tribunal created to hear and decide matters brought before it. Courts have specific types or classes of cases assigned to them and over which they have authority; referred to as jurisdiction. The types of jurisdiction include original jurisdiction, which is the authority to conduct the first proceedings in the case. Appellate jurisdiction is the authority to review the proceedings of other courts. Courts can have broad authority over a variety of cases, or general jurisdiction as with a trial court, or can have special or limited jurisdiction as with juvenile or probate courts.

There are federal and state court systems. The federal court system consists of specialty courts such as tax court and bankruptcy courts, a general trial court called federal district court, the U.S. court of appeals, and the U.S. Supreme Court. State court systems have a general trial court, called a county, circuit or superior court, an appellate court, and a state supreme court. While all state courts have similar characteristics, they are often quite different from all other state court systems.

When a dispute is taken to court, it begins with a plaintiff filing a complaint against a defendant. The defendant answers the complaint by denying the allegations or by submitting a counterclaim. The parties may be represented by lawyers who are officers of the court trained to represent others in the presentment of a case.

Following the pleadings in a case, the parties begin discovery whereby they determine the facts of the case through depositions, requests for production and interrogatories.

Based on the evidence obtained during discovery, the parties may move for summary judgment, which is a decision in a case in which the facts are not in dispute.

A trial begins with voir dire, or the process of questioning jurors for bias or arbitrary exclusion through the use of peremptory challenges. The trial proceeds with opening statements and then the presentation of the plaintiff's case. The order for questioning witnesses is direct, cross-, redirect, and recross-examination. A directed verdict can be granted if the plaintiff's proof was insufficient to establish the elements of the case. Following a jury verdict, the losing party can move for a judgment N.O.V. (notwithstanding the verdict) or a new trial. The collection of a judgment is obtained through execution on a writ of execution or garnishment.

Other methods, besides litigation, that can be used to settle disputes are called alternative dispute resolution. The methods of alternative dispute resolution include arbitration, mediation, medarb, reference to third person, association tribunal, summary jury trial, rent-a-judge, minitrial, contract provisions and ombudsmen. These methods vary in formality but are all non-judicial means for dispute resolution.

Chapter 2 Outline

I. What are the Court Systems and Names of the Various Courts?

A. Types of courts

1. Subject matter jurisdiction: Courts have authority based on type of case

2. Original jurisdiction: Trial courts; where case is heard initially

3. General jurisdiction: Authority of broad subject matter in cases

4. Limited or special jurisdiction: Narrow scope of subject matter; e.g., probate, domestic relations, juvenile courts

5. Appellate jurisdiction: Court that reviews the work of other courts

a. Reversible error: Mistake in lower court with the potential to affect the outcome

b. Court can affirm, reverse, or remand

B. Federal court system

1. Federal district court

a. Trial court

b. General jurisdiction

i. U.S. is a party

ii. Cases between citizens of different states ($75,000 or more)

iii. Cases arising under U.S. Constitution or statute

c. Each state has at least one federal district

2. Specialty courts

a. Limited jurisdiction

b. Bankruptcy, tax, Indian tribal court

3. U.S. Court of Appeals (See Figure 2-2 in text)

a. Twelve geographic circuits (districts grouped together) plus one additional circuit

b. One court of appeals per circuit

c. Three-judge panel reviews cases

4. U.S. Supreme Court

a. Appellate jurisdiction

i. U.S. Courts of Appeals

ii. State supreme courts where constitutional issue

b. Review is granted pursuant to writ of certiorari process

c. Trial court for ambassadors, public ministers, consuls and state vs. state

C. State court systems  (See Figure 2-3 in text)

1. General trial courts: civil and criminal jurisdiction

2. Specialty courts: probate, family

3. City or municipal courts

4. Small claims courts

5. State appellate courts

6. State supreme courts

II. How Does a Case Go Through a Court? Court Procedure

A. Participants in the court system

1. Plaintiff: Initiates proceeding (criminal case: prosecutor)

2. Defendant: Party against whom proceedings are brought

3. Judge: Presides over proceedings

4. Jury: Citizens sworn to reach a verdict

B. Which law applies? Conflicts

1. Law of state in which court is located governs procedural questions

2. Law of state in which contract was made governs

3. Choice of law provisions in contracts govern

C. Initial steps in a lawsuit

1. Complaint: States cause of action; Commencement of lawsuit

2. Service of process: Notifies defendant

3. Answer: Response of defendant

a. Motion to dismiss: Demurrer

b. Deny

c. Counterclaim

4. Complaint, answer, counterclaim: Referred to as pleadings

5. Discovery: Process of learning the evidence that exists prior to trial

a. Deposition: Sworn testimony not in court room; can be used to impeach differing recollection or testimony at trial

b. Interrogatories: Questions answered under oath

c. Requests for production of documents: Obtaining paper evidence

6. Motion for summary judgment: Asks for decision when facts are not in dispute

7. Designation of expert witnesses

D. The trial

1. Jury selection

a. Voir dire examination

b. Challenge for cause: bias, conflict -- UNLIMITED IN NUMBER

c. Peremptory or arbitrary challenge: Lawyer need not give reason -- LIMITED IN NUMBER

2. Opening statements

3. Plaintiff's case: Presentation of evidence - witnesses are examined by direct, cross-, re-direct, and recross-examination

4. Motion for directed verdict granted if plaintiff did not establish case

5. Defendant's case

6. Summation

7. Motion for mistrial

8. Jury instructions

9. Jury verdict or mistrial if deadlocked

10. Motion for new trial or judgment N.O.V. (judgment non obstante verdicto)

11. Recovery

a. Costs

b. Attorney fees

c. Execution of judgment and suit

d. Writ of execution or writ of garnishment

III. What are the Alternatives to Litigation for Dispute Resolution?  (See Figure 2-4 in text)

A. Arbitration

1. Means of avoiding expensive legal costs

2. Federal Arbitration Act and Uniform Arbitration Act govern

3. Arbitration can be mandatory or elective

4. Scope of arbitration: as broad as possible

5. Finality of arbitration

a. Usually provided for by the parties

b. If non-binding, any litigation begins anew for a trial de novo

B. Mediation

1. No authority to make a decision

2. Third party is a go-between to facilitate communication

C. Med Arb: Party has authority to hear case and suggest resolution to each side

D. Reference to third person: Case is given to outsider(s) - ordinarily, parties agree that the decision is final

E. Association tribunals

1. These groups have a board or committee to settle disputes

2. The National Association of Home Builders requires arbitration

F. Summary jury trial: a dry run or mock trial to see how the case is perceived

G. Rent-a-judge: An experienced judge is hired to hear the case.

H. Minitrial: heart of dispute is heard; parties agree to limit issues of dispute

I. Judicial Triage: Courts experiencing heavy caseloads must now examine cases from a timeliness perspective.

J. Contract provisions

K. Disposition of complaints and ombudsmen

1. A statute may create a government official for the purpose of examining complaints

2. Trend is toward other forms of dispute resolution