FEMBA - MGMT 224 – Class One – Fall 2011
Introduction & Civil Procedure/Litigation
INTRODUCTION TO LAW
I. COURSE OVERVIEW: Look at SYLLABUS and WRITING ASSIGNMENT
II. Let’s do an...INTRODUCTION TO OUR LEGAL SYSTEM:
A. The law -- referred to as study of jurisprudence. Different schools of thought:
1. Natural: Laws based on universal moral principles.
2. Positivist: Law is what it is at a particular point in time.
3. Realist: Depends -- try to be objective (like positivists) but at same time
try each case on its particular facts (so bring in some societal
concerns). American jurisprudence is influenced by this school.
B. Where is the law found: SOURCES OF THE LAW
1. Constitution: What is a constitution?
- Basic principles of a government
- Remember CALIF. and most states have one.
2. Statutes: Who enacts statutes? Legislatures.
-What happens if statute conflicts with provisions of U.S. or State
Constitution (Constitution wins, US wins)
-If LA passes a no-smoking ban in restaurants – also a statute.
3. Precedents or Case Law:
-If there is no law in the books, can courts on their own decide what
laws will be implemented to decide a certain disputes or issue?
-
Name some major issues that courts have decided because
legislatures or the states would not?
-Abortion
Roe v. Wade
-Desegregation of Schools (Brown)
-Right to a free lawyer for poor (Gideon)
-
Anglo-Saxon influence on our system, as compared with Civil Law
System like Europe, South America & Louisiana.
Civil vs. Common Law
4. Administrative Regulations: Who puts these out?
Admin. Agencies created by legis. By whose power and authority are
these promulgated? Legis. enact statutes. (called Enabling Legislation)
5. Treaties: If California passed a law and the U.S. later signed a treaty
on the same issue, which would prevail?
-- Discuss Korean Air Line Case
B. Are these primary sources or secondary sources?
[PRIMARY SOURCES]
Secondary Sources: Basis of legal researches
C. TERMINOLOGY:
1. Opinions: Decisions of judges - if not unanimous, what are 3 kinds?
a. Majority: Controlling opinion by majority of judges
b. Concurring: Agrees with result of the case, but for a different reason.
c. Dissenting: Minority judge that disagrees.
III. BRIEFING A CASE
A. ELEMENTS OF A BRIEF: Follow this format
PARTIES
FACTS
PROCEDURE
ISSUE
DECISION
REASONING
1. PARTIES: Generally you have two parties, what are the two parties in
all lawsuits called? PLAINTIFF, DEFENDANT
2. FACTS OF THE CASE: Just describe the basic important facts of the
case. Don't overdo it...rather too short than too long. I have never
heard of a brief that's too short. Clearly more than one-half of student
briefs are too long, way too long.
3. PROCEDURE: How the case proceeded in the lower court and how it
got to the court that is deciding it now...
4. ISSUE: What's the legal point of the case, which determines its
outcome.
5. DECISION: The appellate court reversed agreeing that erroneous jury
instruction was given and remanded the case back to the lower court
for re-trial with proper instruction.
6. REASONING: Tell me WHY the court decided to rule the way it did.
Often this involves the tenets of legal research.
a. RULE: What law or rule did the court use to arrive at its
conclusion.
b. APPLICATION: How did the court apply the rule to the facts of
the case.
c. CONCLUSION: What was the court’s final holding/decision.
SEE SAMPLE BRIEF AT THE END OF CHAPTER 1
Civil Procedure & Litigation
I.
PREREQUISITES TO FILING A LAWSUIT – The Two “J’s”: Justiceability &
Jurisdiction
A BASIS TO BRING LAWSUIT: Is the case JUSTICIABLE?: A court won't
decide a case unless it is Justiciable, ready to be decided by a court: There are 2 main
conditions:
1. Real Conflict:
2. Parties Must be Directly Affected
1. Real Conflict:
a. Ripeness -- Congressional challenge to President’s line item
veto premature, because he hadn’t used it yet. Wasn’t ripe.
b. Mootness -- Look at Roe v. Wade. She had the baby - too late for
court to fashion a remedy. Almost worked for the State defending the
action.
2. Parties Affected:
a. Must be Adversaries: Feigned or collusive suits are not allowed.
b. Must have Standing to bring the lawuits.
B. JURISDICTION: See Below
II.
FILING A LAWSUIT – Preliminary Consideration: the Second “J”
(the concept of JURISDICTION)
A. There are 4 potential jurisdictional issues to determine before picking the right
court….
1.
2.
3.
4.
Federal v. State Court Jurisdiction
Personal Jurisdiction
Subject Matter & Original Jurisdiction
Venue
B. FEDERAL COURT JURISIDICTION - Fed Courts have power over what
kinds of cases?
1. Federal Questions and Diversity of Citizenship
2. FEDERAL QUESTIONS:
a. Involves an issue applying laws of U.S. (e.g Const.)
b. The federal question must be a substantial issue in the case
3. DIVERSITY: IF you have residents of different states suing each other.
You must have, however...
a. Opposing parties domiciled in different states
b. AND, amount in controversy of at least $ 75,000.00
c. To determine DOMICILE, look at the INTENT OF THE PARTY
TO PERMANENTLY RESIDE IN STATE.
d. CORPORATION is domiciled in which states?.....
(1) STATE OF INCORPORATION -or(2) PRINCIPAL PLACE OF BUSINESS
4. If you are kicked out of Federal Court – go to state court.
C. Once you determine you are not in federal court, which state do we go to?
Depends on PERSONAL JURISDICTION. Three legal bases…
1. Presence of D.: If the D. is present in the state = jurisdiction, unless the
presence is by force or to be a court witness.
2. Domicile of D.:
3. Consent of D.:
a. Express: Defendant agrees OR jurisdiction clause in contract.
b. Implied Consent: LONG ARM STATUTE: Minimum Contacts with
the state, such as through…
(1) Business: Transaction of any business in state
(2) Injury: Commission of any act causing injury in state
c. INTERNET CASES: If user can order products online, then Jdx.
exists in the buyer’s home state. (See Zippo case)
D. An ALTERNATIVE option to In Personam Jdx.: Property in the State:
E. SUBJECT MATTER JURISDICITON: States will not get involved in certain
disputes even if personal jurisdiction OK.
1. Depends on the subject of the lawsuit. E.g. Could a FLORIDA D.A.
charge me with Criminal Assault and Battery in FLORIDA Court for a
battery I committed in California? NO (Criminal case must be heard
where crime occurred)
--Other examples - - - divorce, probate tax laws, must go to
those courts.
2. Original Jdx.: Book refers to this as part of Subject Matter Jdx. Has to
do with which court you go to based on the amount in controversy in
the lawsuit. In California…
a. Small Claims: 0-7500
b. Superior Court – Ltd. Jurisdiction: $ 0-25,000 , Also
Misdemeanor and Preliminary Hearings-felonies
c. Superior Court – General Jurisdiction: > $ 25,000, family law,
probate, juvenile, Felonies (>1 year)
F. VENUE - Once we have determined which Judicial System (State or Federal),
& we know which Court of Original Jdx. (e.g. Municipal), what is the final
choice we have to make about what court to file our lawsuit??? : VENUE
1. What is VENUE? ---Choice of territorial division or geographic location
court.
2. Federal: Districts: E.g. L.A.-Central, S.D. – Southern
3.
State: California
a. County: LA, Orange, Ventura, etc.
b. District: Superior Court: Central and then Branch Courts
4. Usual Requirements of Venue:
a. Residency: Usually of Deft.
b. Where Claim Arose: Where acct. happened, where contract
was signed, where business was transacted
c. Corporation: Anywhere doing business.
III.
FOUR POTENTIAL STAGES OF LITIGATION…
Pleadings
Pre-Trial
Trial
Appeal
III. PLEADINGS: What are pleadings? (Formal written statements of parties)
A. Let's List them -- What are the pleadings that are filed in a lawsuit:
P
D
D
P
D or P
1. Complaint (and Summons)
2. Answer
3. Cross-Claims:
a. Federal: Counterclaim
b. State: Cross Complaint
4. Answer or Reply:
5. Amendments to Pleadings:
B. SUMMONS & COMPLAINT:
1. What is the difference between Summons & Complaint
---S= Notice of Suit ---C=Content of Suit (Causes)
2. SUMMONS: Most provide 20 or 30 days to respond
3. Statute of Limitations: Time period in which to file (e.g. 1 year)
4. Complaint: Contains three things:
a. Caption: ID Parties, Court, etc.
b. Causes of Action
c. Remedy or Prayer:
1. Equity Something else
2. Law: Money
5. Service of the Summons/Complaint: Must be given to Defendant
a. Personal:
b. Substituted
c. Publication
d. What about registered mail: NO GOOD for in-state resident
C. ANSWER: Contains
a. Admissions - denials
b. Affirmative Defenses - legal excuses to complaint
D. CROSS CLAIMS: Deft. counterclaims or cross-complaints:
1. Compulsory: If related – must file with Answer or give up rights forever.
2. Permissive: If unrelated – option file now or in a later lawsuit.
E. AMENDMENTS: Making a change in your pleading.
IV. PRE-TRIAL PROCEEDINGS:
A. Purpose of Pre-Trial Proceedings:
1. Discovery of Relevant Facts
2. Narrowing Issues
3. Promote Settlement
B. DISCOVERY: What is it? What are the types of Discovery?
1. Interrogatories
2. Requests for Admissions
3. Depositions 2 purposes...
a. ---Learn testimony of party/wit. for trial
b. ---Credibility
4. Production of Documents --
C. PRE-TRIAL HEARINGS:
1. Arbitration & Mediation
2. Motions:
a. Sometimes used to Narrow Issues without trial:
(1) Demurrer: Filed to challenge Complaint, BEFORE the Answer. Judge
will not consider outside evidence.
(2) Motion for Judgment on the Pleadings: Filed AFTER the Answer to
challenge the other side’s pleading. Judge will not consider outside
evidence.
(3) SUMMARY JUDGEMENT Like a mini trial on paper. To overcome,
only requires a showing that dispute exists. Anything can be attached
to Motion for court to consider: witness statements, documents,
pictures, interrogatories, deposition testimony, etc.
---- Will be granted if “no triable issues of fact or law” exist..
V. TRIAL:
A. Jury or Non-Jury: IF EITHER SIDES REQUESTS !!
1. Criminal = almost always
----Nevertheless
JURY = FACTS JUDGE = LAW
1. VOIR DIRE:
2. CHALLENGES:
a. For Cause
b. Peremptory
B. Opening Statements
C. Presentation of Evidence: Witnesses & Documentary evidence.
1. Plantiff's Case in chief
2. Defendant's case in chief
3. Rebuttal
4. Rejoinder
D. SUMMATION (Closing Argument)
E. Jury Instructions
F. Jury Deliberation
G. Verdict
H . Motions:
WHAT ARE SOME OF THE TRIAL MOTIONS
1. Directed Verdict (After either party rests, usually by Plff) If nothing for
jury to decide. Law and facts mandate the moving party win.
2. Judgment NOV NON OBSTANTE VERIDICTO - Notwithstanding the
verdict. Comes AFTER jury verdict, if verdict not based on fact or law.
VI. JUDGMENT AND APPEAL:
A. Courts: Appellate or Supreme Court
B. What will Appellate Court Do:
1. Affirm
2. Reverse & Remand
3. Modify
4. They do not hear evidence. Decide issues of law unless verdict not
supported by any of the evidence.
C. Doctrine of RES JUDICATA (like Double Jeopardy in criminal cases) - Losing
party may not refile the same action. 2nd action barred by Res Judicata (the thing has
been decided).
VII. CASES FROM TEXTBOOK & READER:
A. Bombliss – p. 31
B. Internet Solutions – p. 34
C. Zippo – Course Reader