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HSP_MGMT 1133: EXAM 1
Sources of Law: |
-constitution
-statutory law
-administrative law
-common law |
Constitution: |
primary source of law in the hierarchy
-3 functions: creates gov system LEJ branches, empowers branches, limits gov system that is has created |
Statutory law |
-second source of law, created through legislative |
Statute: |
-legislation adopted by federal or state legislators |
Ordinance:
Code: |
-when local units of gov adopt law
-if legislation passes under the est. producers becomes part of code of a particular jurisdiction |
Administrative law: |
3rd source of law, adopted by gov agencies |
Case law:
|
-court opinion that interprets one of the first 3 sources by appellate courts |
Common law: |
4th source of law, oldest, comes from court decisions, not based upon interpretation of other sources, based upon: customs, traditions, principles of England and American colonies before rev. |
Levels of law: |
-federal, state, local
-federal prevails over inconsistent state law and state law prevails over inconsistent local law |
Jurisdiction: |
-the power and authority of the court to decide a given case |
Personal jurisdiction: |
-personal authority
-internet activity cases: Blue note accuse of stolen trade mark sued NY fed court |
Subject matter jurisdiction |
-considers whether court has the power to resolve certain issues |
How many court systems? |
51; 50 state and 1 federal |
Judicial selection: how are judges selected? |
-federal selected by president and confirmed by the senate, term for life unless impeached. MO elect trial judges, retire at 70 |
Trial court: |
-1st court to resolve conflict, has original jurisdiction, 1 judge, jury if allowed, 2 or more competing sides, judge or jury makes decision |
Appellate courts: |
-loser of trial has the right to appeal, group of judges no jury, no direct involvement of witnesses, review record of trial and determine any errors and justify a change in results |
Discretionary courts:
|
-pick and choose what cases they want.
-they accept less than 5% |
Federal court system |
-trial court: US district court
-First level appellate court: circuit courts of appeals
-discretionary appellate court: US supreme court |
State court system MO: |
-trial court: circuit
-First level appellate: district courts of appeals
-discretionary appellate court: MO supreme court |
Civil cases: |
-compensation for an injury, initiated by private party, tort or contract law, not need to be unanimous verdict unlike criminal cases |
Tort: |
-violation of a legal duty by one person that causes injury to another person
|
Contract: |
-an agreement b/t 2 or more parties that is enforceable in the court. If 1 fails to abide, other can sue for breach of contract |
Primary sources of law:
|
-have to power to affect legal rights and are available by hard copy in many public libraries |
Secondary sources of law: |
-background resources, do not have the power to affect legal rights (textbooks, legal journals) |
12 step civil case model: |
-incident occurs, plaintiff demand, filing of suit, service of process, defendant's response, pretrial discovery, pretrial motions, jury selection, trial, post trial proceedings, compliance and enforcement, appeal |
Voir Dire: |
to speak the truth |
Discovery: |
-right for someone in a lawsuit to know info of the other in order to prepare trial |
Methods and Devices:
Interrogatories |
-written questions that one side says to the other side to answer |
Document request: |
papers and docs that other side has (insurance, medical bills) |
Depositions: |
a form or oral discovery, attorney get witness in a room and ask questions
|
Medical/Mental exam: |
-ask to have own doctor examine them |
Request to inspect: |
take pictures, inspect property where something occurred |
Types of Remedies: actual:
|
most common P will seek. Include past and future out f pocket expenses |
Punitive: |
-awarded to punish and make an example out of defendant |
Types of witnesses:
-Lay: |
-person who has some personal knowledge about the facts of the case and has been called upon to relate this info in court |
Expert witness: |
-person who is skilled in some art, trade, science, or profession who is engaged by a party to offer opinions on complex subjects beyond the common knowledge of a typical juror |
Writ of execution: |
P located property and compels seizure- property is then sold |
Writ of garnishment: |
-P located a 3rd party who is indebted to D or is holding D's property |
Stages in the appellate process: |
filing of notice of appeal, filing of record on appeal, submission of briefs, oral arguments in the appellate court, conference and decision by the court, written opinion |
Types of appellate court; Majority: |
-most imp. opinion, appellate court will direct its language to the trial court and affirm, reverse, or reverse remand the decision to the court trial |
Reverse "vacate": |
-changing trial courts decision, not going back to court |
Affirm: |
-makes no changes in the results in the lower court |
Reverse and remand: |
-changing lower court and sending back for more proceedings |
Concurring: |
-agrees w/ result but disagrees w/ the reasoning |
Dissenting: |
the judge doesn't agree with anything that happened in court |
ADR: |
-alternative dispute resolution (mediation and arbitration) |
Mediation: |
-allows parties to craft their own solutions to a dispute, unbiased 3rd party assists; could be attorney, cans issue orders or make recommendations |
Arbitration: |
-acts as a judge. decision is called award (corporations) |
Arbitration compared w/ litigation: |
-privacy, informal, cheaper and quicker, specialization of decision maker, more predictable, right of appeal |
Small claims court: |
-limited dollar amt: 3,000; limited jurisdiction amt of judgement; peoples court limited; lawyer rules dont apply; quick trials; easy for students; dont need lawyer |