Chapter 3 The Judicial SystemIts Legal, Ethical, and Globa.docx

Chapter 3
The Judicial System
Its Legal, Ethical, and
Global Environment
Marianne M. Jennings
Business
11th Ed.
©2017 Cengage Learning®. May not be scanned, copied or
duplicated or posted to a publicly accessible website, 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 or school-approved learning management
system for classroom use.
0
3-1
Trial Courts
Place where case begins
Jury hears cases and decides disputed issues of fact
Single judge presides over case
Appellate Courts
Review actions of trial court
Usually have published opinions for uniformity and consistency
No trials held – panel of judges hears case
Types of Courts

1
3-2
How Courts Make Decisions
Process of Judicial Review (Appellate)
Determine whether error was made
Transcript is reviewed
All other evidence is reviewed
Parties submit written briefs to summarize the evidence and
issues
2
3-3
Oral arguments may be made before panel of judges
Generally three judges, but at U.S. Supreme Court level it is
nine
En banc : full bench hears case
Judges vote on whether there is reversible error

Error that might have affected the outcome
3
3-4
Possible actions of reviewing court
Affirm—no reversible error and decision stands
Reverse—reversible error and decision is reversed
Remand—error that requires further proceedings
Modify—change ruling of lower court
Statutory interpretation
Courts at appellate level can review statutory application
Can determine scope of statute
4

3-5
Consider 3.2
The Porch/Stoop and the Law Student
Is visible drinking on private property covered by a statute that
prohibits public drinking?
Consider the implications – how far would the statute go – if
you could see through an open window or open door that
someone was drinking?
Intent of statute
Exceptions for neighborhood parties
3-6
Process of Judicial Review
Judicial review and case precedent—the doctrine of stare
decisis
Courts will follow previous decisions for consistency
Previous decisions are called precedent

6
3-7
Process of Judicial Review
Interpreting precedent
The rule of law in the case is the precedent
Dicta is not the precedent
Dicta is the discussion of the relevant law
Exceptions to stare decisis—when precedent may not be
followed
Cases are factually distinguishable
Precedent is from another jurisdiction
Technology changes
Sociological, moral, or economic changes
7
3-8
Plaintiffs
Initiate the lawsuit
Called petitioners in some cases
Defendants
Alleged to have violated some right of the plaintiff
Party named in the suit for recovery
Parties in the Judicial System

8
3-9
Lawyers
Those who act as advocates for plaintiffs and defendants
Have fiduciary relationship with clients
Represent client and see that procedures are followed
Privilege exists with client
Must keep what client tells them confidential
Exception is advance notice of crime to be committed
9
3-10
(This information is beyond what is in the text)

Plaintiffs – originate suite Represented
Defendants – party from whom plaintiff seeks recovery
By Lawyers
INTERNATIONAL LAWYERS
Avocati
Italy Procuratori
Advocate – High Courts
Quebec/France Notaire – Real Property Transactions
Juridique – Legal Counselor
Japan Bengoshi
Great Britain/ Solicitors – Advice, Documents
Canada Barristers – Higher Courts
Rechtsanwalt – Litigator
Germany Rechtsbeistand - Advice

3-11
Judges
Can control proceedings or outcomes
Can be elected or appointed
Trial or Appellate
Trial Judge presides over trial
Appellate Judge hears appeal from trial court
11
3-12
Name Changes for Parties on Appeal
Appellant or Petitioner: Party appealing the lower court’s
decision
Appellee or Respondent: Party who won below and is not
appealing
Some states reverse the name of the case on appeal; example:
Smith v. Jones − trial court, Jones loses and appeals; Jones v.
Smith − appellate court

12
3-13
Jurisdiction is the Authority of a Court to Hear a Case
Types of Jurisdiction
Subject matter jurisdiction is jurisdiction over the subject
matter of the case
In personam jurisdiction is jurisdiction over the parties in a case
Jurisdiction
13
3-14
Federal Court System

14
3-15
Federal District Court
General trial court of the federal system
Subject matter jurisdiction
When U.S. is a party
Federal question
Diversity of citizenship
15
3-16
Limited Jurisdiction
One issue that arises is what law will be applied to the case
Federal courts apply state law, they do not make up a new

system of federal common law
16
3-17
Specialized Courts − Courts of Limited Original Jurisdiction
Tax court
Bankruptcy court
Claims Court
Judge Advocate General (military courts)
Courts for other agencies
Court of International Trade
17
Structure
There are ninety-four federal districts

Each state is at least one federal district and Puerto Rico and
DC are also federal districts (94 federal district courts)
Virgin Islands, Guam, and Northern Mariana islands also have a
federal court
Number of districts per state is determined by population and
case load
3-18
3-19
Federal District Court Opinions
Opinions are reported in the Federal Supplement
Cite: F.Supp. (F.Supp.2d.)
Example: Sansotta v. Town of Nags Head, 97 F. Supp. 3d 713
(E.D.N.C. 2014)
19
3-20

Court of Appeals
Formerly known as U.S. Circuit Court of Appeals
Thirteen federal circuits
Generally a panel of three judges reviews appeals from Federal
District Court
Opinions found in Federal Reporter
Cite: F., F.2d or F.3d.
Little Sisters of the Poor Home for the Aged, Denver v.
Burwell, 794 F.3d 1151 (10th Cir. 2010)
20
3-21
Supreme Court
Must decide to review cases
Issues writs of certiorari on those cases they will review-
determined by the rule of four
Has original jurisdiction for
Disputes between and/or among states
Charges of espionage or ambassadors and foreign consuls

21
3-22
Supreme Court
Nine judges with lifetime appointments
Opinions reported in:
United States Reports—official reports
Citizens United v Federal Election Com’n, 558 U.S. 310 (2010),
130 S.Ct. 876 (2010), 175 L.Ed.2d 753 (2010)
22
3-23
State Court Systems

23
3-24
State Court Systems
General Trial Court
Usually called superior, circuit, district, or county court
24
3-25
State Court Systems
Lesser Courts
Small claims: Lesser damage claims, no Lawyer
Justice of the Peace courts
Smaller damage claims
Lawyers permitted to appear
Traffic courts: For citations
Probate courts: For wills, guardianships, conservatorships, etc.

25
State Appellate Courts
Courts of Appeal or State Appellate Courts and State Supreme
Courts
Opinions reported in regional reporters
Example: Pacific Reporter, P. , P.2d., P.3d
Example: Hoag v. French, 357 P. 3d 153 (Ariz. App. 2015)
Opinions also reported in state reporters
Example: DirectTV v. Imburgia, 170 Cal. Rptr. 3d (Cal. 2014)
Wyman v. Ayer Properties, 11 N.E.2d 1074 (Mass. 2014)
3-26
3-27
Regional Reporter State Groupings
Pacific (P. or P.2d)
Alaska
Arizona
(California)
Colorado

Hawaii
Idaho
Kansas
Montana
Nevada
New Mexico
Oklahoma
Oregon
Utah
Washington
Wyoming
Northwestern (N.W. or N.W.2d)
Iowa
Michigan
Minnesota
Nebraska
North Dakota
South Dakota
Wisconsin
Southwestern (S.W. or S.W.2d)
Arkansas
Kentucky
Missouri
Tennessee
Texas
3-28

Regional Reporter State Groupings
Northeastern (N.E. or N.E. 2d)
Illinois
Indiana
Massachusetts
(New York)
Ohio
Atlantic (A. or 2d)
Connecticut
Delaware
District of Columbia
Maine
Maryland
New Hampshire
New Jersey
Pennsylvania
Rhode Island
Vermont
Southeastern (S.E. or S.E.2d)
Georgia
North Carolina
South Carolina
Virginia
West Virginia
Southern (So. or So.2d)
Alabama
Florida
Louisiana
Mississippi
Note: California and New York each has its own reporter
system. Source: The national reporter system was developed
by West Publishing Company. Reprinted with permission of

West Publishing Company.
3-29
Sample Page of a National Reporter Case
3-30
State Court Systems
Venue
Location of court in the system within a jurisdiction
Venue in criminal cases can change from location of crime to
another court if press coverage is excessive
Civil venue is often where defendant resides or where the cause
of action occurred

30
3-31
Personal Jurisdiction
3-32
In Personam Jurisdiction
Means for Acquiring Jurisdiction
Property ownership in the state = in rem jurisdiction
Volunteer − parties agree to it
Presence in the state
Residence
Corporations incorporated or doing business in the state
Minimum contacts - constitutional standards of contact with a
state (“Long-Arm” Statutes)

32
Minimum Contacts and Long-Arm Statutes
Case 3.1 Hard Candy, LLC v. Hard Candy Fitness (2015)
How much of a presence did Hard Candy Fitness have in
Florida? What about Florida deals?
What happens if the defendant is not required to come to
Florida to defend the suit?
What are the implications if the company is not required to
come and defend the lawsuit?
3-33
3-34
The International Courts
International Court of Justice (ICJ)
Part of U.N.
Jurisdiction is contentious (parties must agree to submit)
EU Courts
Court of Justice of European Communities
European Court of Human Rights
Inter-American Court of Human Rights
Opinion Found in International Law Reports

34
3-35
London’s Commercial Court
Site of many international arbitrations
Jurisdiction Issues in International Courts
Similar to in personam jurisdiction
35
3-36
Conflicts of Law
Court systems vary
Tort recovery more liberal in U.S.
No contingency fees allowed elsewhere

36
Chapter 4
Managing Disputes: ADR and Litigation Strategies
Its Legal, Ethical, and
Global Environment
Marianne M. Jennings
Business
11th Ed.
0
4-1
Types of ADR
Arbitration − Oldest Form of ADR
Parties submit grievances and evidence to a third party expert in

an informal setting
American Arbitration Association provides many arbitrators and
rules
1
4-2
Types of ADR
Arbitration Advantages
Less formality
Handled privately
Expert handles the cases
Speed was once an advantage, but tends to move as slowly as
court cases now
2
Types of ADR

Arbitration Disadvantages
Arbitrator may not have legal training and may not understand
the significance of legal points
Rules of evidence do not apply
Expense and complexity has increased
Cost has increased
4-3
Federal Arbitration Act
Passed to stop judicial interference with arbitration
Courts now rarely interfere with arbitration clauses in consumer
contracts
4-4
Federal Arbitration Act
Courts now rarely interfere with arbitration decisions
CFPB has proposed eliminating arbitration requirement for
consumer credit contract
4-5

4-6
Types of ADR
Case 4.1 College Park Pentecostal Holiness Church v. General
Steel Corp. (2012)
What was the basis for setting aside the arbitration clause?
How binding is arbitration?
Could the decision have been affected by the fact that there was
a church involved?
6
4-7
Types of ADR
Arbitration Procedures
Parties agree to submit to arbitration
American Arbitration Association (AAA) can handle the
proceedings for a fee
Demand for arbitration is filed
Arbitrator is selected

7
4-8
Types of ADR
Mediation
Parties use a go-between to negotiate and communicate
Used in international transactions
Mediator can offer suggestions for resolution
Not binding
MedArb
Recent creation in which arbitrator first attempt to mediate
settlement
If unsuccessfully the case goes to arbitration
8
4-9

Types of ADR
Minitrial
Small-scale trial where parties present case to a judge with
experience in the field or to a neutral advisor
Advisor or judge makes decision
Can motivate parties to resolve differences even if the results
are not binding
9
4-10
Types of ADR
Rent-a-Judge
Trial held in commercial as opposed to a public court
Pay fees for courtroom and judge
Example: “The People’s Court” TV show
Summary Jury Trials
Gives parties an idea about jury’s perceptions
Used after discovery is complete

10
4-11
Types of ADR
Early Neutral Evaluation
Consultant or volunteer gives parties an assessment of the
position
Generally used prior to discovery
Saves expenses if parties settle following the evaluation
Peer Review
Review of Management’s action against employee by a group of
peer – employees
Reduces litigation cost
11
4-12
International ADR
International Chamber of Commerce
A private organization that handles 250 arbitration cases each
year
Has used arbitration since 1922

12
4-13
International ADR
Centre for Settlement of Investment Disputes (ICSID)
An international arbitral for investors
Investment contracts can provide for arbitration by ICSID
Parties Free to Choose Which Courts Will Hear Their Disputes
Party autonomy
U.S. courts are a popular choice
13
4-14
Litigation vs. ADRTechnical discovery rulesOpen lines of
communicationJudicial constraints of precedentParties can
agree to virtually anythingRemedies limitedCreative
remediesDocket backlogParties set time linePublic
proceedingPrivateControl by lawyersControl by parties

14
4-15
Litigation vs. ADRExpensiveLess expensive (some
changes here)Strict procedures and timingFlexibleJudge and
juries unknownParties selectJudicial enforcementEnforcement
by good faith
15
4-16
The Trial Process

4-17
When You Are in Litigation…
People Begin Civil Lawsuits
System does not do it for them
Based on a claim of right
Lawsuits are efforts of individuals to enforce their rights
17
4-18
Step 1 − Filing a Complaint or Petition
Complaint is general statement of claim
Must describe actions that led to claim of violation
Must establish jurisdiction and venue of court in which it is
filed
Class actions are often filed against businesses

18
4-19
Step 2 − Service of Process
Complaint or petition and summons served on defendant
Summons explains to defendant his/her rights
Where to defend
How long to defend
The effect of not defending the suit
Delivered by an officer of the court or by licensed private
process servers
In exceptional circumstances, service is accomplished by
publication
19
4-20
Step 3 − The Answer
Content of answer
Defendant can admit allegations in complaint are true
Defendant can deny allegations in complaint
Defendant can counterclaim − effect is the defendant is also

suing plaintiff for damages
20
4-21
Step 3 − The Answer
Failure to file an answer within the statutory time period is a
default
Time limits for filing answers are typically twenty to thirty days
Like a forfeit in sports − plaintiff wins because the defendant
fails to show up
21
4-22
Step 4 − Ending a Suit Through Motions

Motion for judgment on the pleadings
Even if everything the plaintiff said in the complaint were true,
there is no cause for action
If court grants motion, the case is over at the trial court level
(appeal is possible)
22
4-23
Step 5 − Pre Trial Motions
Motion for summary judgment
Appropriate in cases where there are no factual issues
Used to resolve questions of law when the parties agree on the
facts
23

4-24
Step 6 − Discovery
Forms of discovery to supplement evidence released
Requests for admissions − request from one party to another for
the admission of facts so that proof requested at trial is limited
Interrogatories − written questions submitted to opposition
Depositions − statements of parties or witnesses taken under
oath in an informal setting
Request for mental or physical examination or for inspection
24
4-25
Step 6 − Discovery
Requests for production: documents, physical evidence
Only relevant, non-privileged information is discoverable
No:
Work product
Attorney/client privilege
Husband/wife privilege

25
4-26
Case 4.2 Pulte Home Corp. v. Simerly (2013)
Discuss what evidence was at issue.
Explain what happened with the evidence and who did it.
What should managers learn from this case and what should
they do when lawyers are obtaining documents.
26
4-27
Step 7 − The Trial
Jury trial
Required in cases where damages over $20 are claimed (unless
waived)
Absolute right to jury trial is only in criminal cases
Jurors selected from voting or drivers’ license lists
Voir dire

Used to narrow jurors for panel
Ask questions about their knowledge of the case, level of
education, background, etc.
27
4-28
Voir dire
Can be challenged for cause − incapable of making an impartial
decision when they know parties, when they were involved with
the case
Peremptory challenge − limited number of challenges used by
attorneys to remove potential jurors with whom they are
uncomfortable
However, may not be based on race or sex

28
4-29
Plaintiff’s case
Presents witnesses − direct examination
Defendant can cross-examine plaintiffs’ witnesses
Opening Statement
Gives summary of the case and witnesses and how they fit
together to prove necessary elements
29
4-30
Post-plaintiff’s case motion − motion for a directed verdict
Plaintiff must prove all elements − called a prima facie case
Failure to prove all elements entitles defendant to a directed
verdict
Made with jury excused

30
4-31
Defendant’s case
Presents witnesses − direct examination
Plaintiff can cross-examine defendant’s witnesses
Types of evidence
Witnesses’ testimony
Documents
Photographs
Tangible items
Hearsay − can be admissible to establish facts other than the
truth of the matter asserted
31
4-32
Closing arguments

Each side summarizes case presented
Jury instructions
Judge explains law to jurors
Law is written in form for jurors to apply
Lawyers have input on instructions
32
4-33
Jury deliberations
Some states do not require unanimous verdicts in civil cases -
only a majority
If the jury can’t reach a verdict, a hung jury results in a mistrial
33

4-34
Jury verdict
Decisions of the jury
One side can request to have the jury polled − occasionally any
pressure exerted will come out then
Post-trial motions
Motion for a judgment NOV (non obstante veredicto) − motion
for a judgment
Notwithstanding the verdict; effect is a trial court judge
reversing the jury verdict − rarely done
Motion for a new trial − judge orders case retried
34
4-35
Steps in Civil Litigation

4-36
Steps in Civil Litigation (cont’d)
4-37
International Litigation
Which Laws Apply?
Foreign citizens may not come to U.S. to benefit from our
traditionally liberal recovery rules and higher verdicts if there
are adequate remedies in their own country
37

Chapter 3 The Judicial SystemIts Legal, Ethical, and Globa.docx

Chapter 3 The Judicial SystemIts Legal, Ethical, and Globa.docx

Recommended

Recommended

More Related Content

Similar to Chapter 3 The Judicial SystemIts Legal, Ethical, and Globa.docx

Similar to Chapter 3 The Judicial SystemIts Legal, Ethical, and Globa.docx (20)

More from walterl4

More from walterl4 (20)

Recently uploaded

Recently uploaded (20)

Chapter 3 The Judicial SystemIts Legal, Ethical, and Globa.docx