Chapter 3 The American Legal System The firm and its attorney Lawyers are versed in general legal principles and method They are trained to find the relevant law and to apply it to particular circumstances Corporate Strategy Preventive strategy employ attorneys to review new programs and documents with an eye to avoiding legal problems Enforcive strategy uses legal activity to protect a company against patent infringement and other violations of its rights Creative strategy employs legal counsel to help formulate corporate goals Active strategy brings the manager and the attorney together to explore various ways of achieving those goals through legal loopholes or lobbying for a change in the law All may be used together depending on the circumstance that confront the company Lawyer s roles Counsel the firms managers regarding transaction compliance with regulations and similar matters Counselors and drafters to present legal problems from developing Draft and review legal documents Represent their clients as advocates Duty to present the facts and argue the law in the light most favorable to the client Communicating with lawyers Client should fully disclose the facts and relevant to the questions Understanding the lawyer s role also facilitates communication Client should actively assist the lawyer s search for solution compatible with goals Communicate that expectation The attorney client privilege Law protects confidential communication between the attorney and client from disclosure to third person Reason for the attorney client privilege is to promote compliance with the law Exception overriding public policy eg use lawyer to commit crime Work product doctrine Similar to attorney client privilege Any materials that have been prepared fall under this doctrine are privileged Neither the attorney nor the client can be compelled to disclose these materials In some cases a party to a lawsuit may obtain these material if there is a substantial need and there is no other way to obtain them without undue hardship Professional rules for attorneys Attorneys have certain responsibilities to their clients to the legal system and to their own consciences Often result in ethical dilemmas American Bar Association ABA regulate lawyers conduct approves The Model Rules of Professional Conduct Violation will be disciplined or disbarred Model Rule require lawyer to provide competent representation to a client Must act with reasonable diligence and promptness Must be accomplished while abiding by the client s decision regarding the objectives of the representation and while exercising candor to the tribunal hearing the case Lawyer may not represent clients whose interests conflicts those of other clients unless each affected clients gives informed consent confirmed in writing Lawyer must keep confidential all information related to the representation unless the client consents to its disclosure The court system Jurisdiction Power of a court to hear and decide a case Subject matter of and the parties to the dispute Selecting a court that has power to hear the type of case State courts empowered to hear any type of case Federal courts have limited subject matter jurisdiction May be accomplished by serving the defendant with notice of the suit within the state in which the court is located Notice called a summons The requirement that the process be served on the defendant in the state n which the court is located poses a severe limitation Long arm statute gaining service over an out of state defendant Long arm statute must comply with the Constitution s requirement of due process Requires a defendant to have certain minimum contacts with the state where he suit is filed Venue Jurisdiction must be distinguished from venue Venue is concerned with the geographic locality within the jurisdiction where an action should be tried Forum non conveniens permits a defendant to transfer the case to another geographic location where venue is proper when the location of a trial would result in inconvenience and a hardship The Federal System The federal judicial system derives from the U S Constitution The judicial power of the United States shall be vested in one supreme court and in such inferior court as the congress may from time to time obtain and establish District courts o Basic federal trial court o Also hear appeals from a few federal agencies eg Social security administration o o has subject matter jurisdiction only if a statute gives it jurisdiction o case involve Federal question jurisdiction any claim arising under federal statute a treaty or U S Constitution Diversity of citizenship Case between citizens of different states where the amount in contest exceeds 75 000 o Erie Doctrine federal district court sitting in a diversity case hears and resolves the case according to the law of the state in which it sits It does apply its own procedural rules Court of appeals US Supreme Court Atop of the federal legal system Parties seeking review must request that the court hear the case by filing a petition for certiorari Has absolute discretion to grant or deny certiorari and rarely gives reason Certiorari is granted if any 4 9 supreme court justices are in favor of it Likely to be granted when a constitutional issue of national importance is posed or when an issue has been decided in a conflicting manner by the circuit courts of appeals The State System Consists of courts of general and limited jurisdiction General jurisdiction can hear any type of case unless specifically prohibited by statute organized at the county level name vary from state to state circuit court court of common pleas and superior court Limited jurisdiction can hear only specific types of cases Intermediate court of appeals State supreme court is the highest authority on the law of its state The US Supreme Court has no power to decide issues of state law State supreme court decision interpreting federal statutes treaties and US Constitution subject to US Supreme Court review The Civil Process A real dispute must involve Civil process the sequence of events from the beginning of the suit to the final appeal Consists of 4 stages The Pleading State parties Are the document that tell each party s claims or defenses against the other Class action suits Under certain circumstances a person may bring a suit on behalf of a class of people who have been similarly injured The administration is often very difficult Distribution of the proceeds of