MANGMT 3540: EXAM 1
206 Cards in this Set
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Law
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A body of rules enforced by a government
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Contract
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A legally enforceable promise or set of promises
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The Rule of Law
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The concept that no one is above the law, and that no one can be convicted of breaking the law except as the law provides. From the highest official to the lowliest member of society, all are subject to the same laws
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Breach of Contract
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A failure to fulfill contractual oblligations
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Tort
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A civil wrong other than a breach of contract for which the law provides a remedy
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Negligence
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An unintentional violation of a legal duty to use a standard of care
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Common Law
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A legal system of court-made law where the rules are derived from previously decided cases
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Stare Decisis
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The legal doctrine that requires courts to follow previous decisions called precedents
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Judicial Review
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Doctrine that courts determine the constitutionality of statues
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Cause of Action
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A stated set of facts given rise to a valid lawsuit
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Plaintiff
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The party which files a lawsuit against another party
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Defendant
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The person against whom a lawsuit is filed
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Natural School of Law
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The theory that comes from unchangeable principles evident from nature or inspired by God
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Positivist School
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Governments rules are supreme
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Traditional (Historical) School
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Law which has worked in the past is best suited to shape present law
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Legal Realist School
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There is no uniform way to interpret the law; result oriented, considering the impact on the parties and society; many are semanic relativists
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Natural Law School Problem
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Whose version of self-evident law do you use?
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Positivist School problem
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Government atrocities acceptable?
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Legal Realists/Traditional Problems
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Should the constitution be what the judges say is is, should precedent control, or should the constitution itself control?
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Letter from Birmingham Trial
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. Waiting for their constitution and God given rights
2. moral responsibility to disobey unjust laws
3. all men created equal
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Four Sources of State by Priority
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1. Constitution of the state
2. Statutes adopted by the legislature
3. Administrative Rules
4. Municipal Ordinances
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Case Law (Common Law)
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Court-made law, est. by courts particularly in the areas of contract and tort law. Overruled by a contrary statute ordinance or rule unless the law involved is ruled unconstitutional
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2 Types of Persuasive Authority
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Uniform Codes-statutory schemes compiled by experts to be adopted by state legislatures to help ensure consistency of the law in all the states.
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Administrative Law
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Agencies, independent agencies, and executive agencies
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Agencies
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A unit of the executive branch regulating a certain area
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Independent Agency
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an agency designed to be authority from the direct authority of the president (or governor)
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Executive Agency
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An agency whose head is directly subject to the president
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3 Powers of Many Independent Agencies
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Executive ( prosecute violations), Legislative (make binding rules), Judicial (decide controversies).
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Criminal Law
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involves wrongs against society punished by the state through prosecution
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Civil Law
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involves wrongs against persons or entities enforced by lawsuit to obtain MONEY or other remedies for the victims
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Substantive Law
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defines rights and duties of persons in society
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Procedural Law
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defines the method or process by which violations of rights or duties will be enforced
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Statutory Law
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law adopted by a legislative body
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Case Law
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law created by court decision
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Origins of Common Law Courts
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a uniform set of laws derived from following precedents in England
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Origins of Equity Courts
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created by the king because people whose problems could not be solved by common courts would petition the king
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Common Law Today:
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1. Sue for money damages or return of property
2. Right to a jury trial to determine facts in questions
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Equity Today
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-Sue for a court order compelling an act or a change in status and a court determines the facts in question.
-equity suits are now filed in the same court and are heard by the same judges as common law suits
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Adjudication
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the process of litigation (a lawsuit) resulting in a binding (enforceable) final judgement
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Res Judicata
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"It's been decided" An issue decided in one case between parties is binding upon the parties in another case between the parties. It won't be litigated
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Class Action
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One or more members of a group of injured parties sue on behalf of the group (class)
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Standing
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a person needs a tangible interest in a lawsuit to sue or become a party
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Jurisdiction
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"To speak the law" -the authority of a court to decide a case
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Proper Venue
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the place where a case may validly be decided under the law
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Adversary System
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a trial system where the evidence is presented by party opponents, rather than through questions of a judge
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Evidence
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the testimony of witnesses and the documents and objects admitted to consideration as part of that testimony.
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4 Levels of Courts (Order of Priority)
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1. Supreme Court
2. Court of Appeals
3. Circuit Court of County
4. Courts of Limited Jurisdicion
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Supreme Court
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the highest appellate court (court of last resort) in both the state and federal system-appeals from state supreme courts may be made to the US Supreme court if there is a federal question involved`
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Court of Appeals
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(Circuit court of appeals) The intermediate appellate courts-typically the first court to which an aggrieved party (loser) may appeal
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Circuit Court of County (District Court)
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The trial court of general jurisdiction in which most important cases are filed.
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Courts of Limited Jurisdiction
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Courts whose authority is limed by subject matter or the amount in controversy
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Small Claims Court
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State- $5,000; Associate Division of the Circuit Court $25,000; Probate court-estate of decedents, minors, and incompetent persons.
Federal-bankruptcy, patent; and tax courts
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2 Types of Jurisdiction Required
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Personal- jurisdiction over the defendant.
Subject Matter-over the type of lawsuit
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6 Stages of a Lawsuit
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1. Pleadings
2. Discovery
3. Pre-trial Motions
4. Trial
5. Post-trial Motions
6. Appeal
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Pleadings
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Complaint (MO: petition) and Responsive Motion or Answer
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Complaint
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initiates the lawsuit; attempts to state one or more causes of action (valid claims). Served with a summons (order for appearance) requiring an answer to be filed with the court by a certain date. (ex. in a small claims court) if there is no service of the summons, the lawsuit can't proce…
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Responsive Motion or Answe
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Failure to file can an appropriate response within the time limit can result in a default judgement which means the defendant loses the case without a trial. A counterclaim (cause of action against the plaintiff by the defendant) may be included with answer.
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Discovery
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The process of gathering information from parties or non-parties prior to trial
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4 Types of Discovery
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1. Interrogatories
2. Request for Admissions
3. Request for Production
4. Depositions
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Interrogatories
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written questions sent to a party which must be answered in writing and under oath
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Request for Admissions
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Written statements sent to a party which must be admitted or denied
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Request for Production
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a written request sent to a party requiring the delivery or documents or objects at a specified place and time
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Depositions
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An in-person oral examination (questioning) of a party or a nonparty witness under oath
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Subpoena
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ordering a person to attend court
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Pre-trial Motions
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motions filed in the case prior to the time trial begins
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Movant
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person who files a motion
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2 Significant Pre-Trial Motions
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1. motion to dismiss
2. motion for summary judgement
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Motion to Dismiss
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a motion (request to the court) typically filed by the movant, asking the court to throw out the petition (Ex. failure to state a cause of action; lack of personal or subject matter jurisdiction; lack of standing; res judicata)
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Motion for Summary Judgement
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a motion which may be filed by any party asking for a judgement based upon affidavits and the sworn evidence uncovered during discovery. (no genuine issue of material fact)
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Voire Dire
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(jury selection) "to tell the truth" the potential jurers are questioned under oath about bias or prejudice against or in favor of one of the parties
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Opening Statements
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a statement of the evidence the parties intend to present at trial
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Trial Motions
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filed in court during the trial
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Motion for Mistrial
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requires a court to find there was an event or an error which makes a fair trial or decision impossible
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Motion for Directed Verdict
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requires a court to find that the plaintiff did not present evidence necessary to support a cause of action
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Plaintiff's Case
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1. direct examination
2. cross-examination
3. redirect examination
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Direct-Examination
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questions by the party who calls the witness
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Cross-Examination
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questions by the other party
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Redirect Examination
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new questions to a party's witness to eliminate damage or confusion to the case caused by cross examination
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Defendant's Case
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Direct, cross, and redirect examination (same as plaintiff's)
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Rebuttal for Plaintiff
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calling new witnesses to contradict the evidence produced by the defendant
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Closing Arguments
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(summation) the opportunity of the parties' attorneys to summarize their case and all the inferences of the evidence and to make a logical or emotional arguments to the jury
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6 Phases of a Trial
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1. voire dire
2. opening statements
3. plaintiff's case
4. defendant's case
5. rebuttal
6. closing arguments
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Post-trial motions
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motions filed after trial seeking to change the result
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2 Post-trial motions
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1. motion for new trial
2. motion for judgement
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Motion for new trial
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a request that the court throw out the decision and grant the movant a new trial
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Motion for Judgement NOV
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(notwithstanding the Verdict) a request that the court throw out the judgement because based upon the evidence the jury's decision was legally invalid in that the plaintiff failed to produce evidence necessary to support the verdict
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Appeal
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a request by an aggrieved party (loser) to an appellate court to change a trial court's decision
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5 phases of an appeal
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1. notice of appeal, timely filed, initiates appeal
2. trial record filed
3. parties brief issues: appellant's brief followed by respondent's (appellee's) brief
4. Oral argument
5. decision
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possible decision
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affirm, reverse, remand
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affirm
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let the decision stand
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reverse
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throw out the decision or enter an opposite decision (changed)
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remand
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send the case back to the trial court
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tort
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a civil wrong other than a breach of contract for which the law provides a remedy
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tortfeaser
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person committing a tort
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joint tortfeasor
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two or more people who join together in committing a tort
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joint and several liability
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allows victim to collect total damages from one or from all joint tortfeasors
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intent
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purpose to do the act is all that is required-do not have to intend harm or results. Reckless disregard of potential harm is usually enough
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nonfeasance
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failure to act (ex. failure to rescue someone in danger) generally no liability for nonfeasance without a contractual or employment duty
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Assault Defined
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an intentional act causing immediate expectation of injury or offensive contact to another person
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3 Elements required to prove an assualt
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1. Required intent for both assault and battery
2. Act
3. Result
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Required intent for both assault and battery
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to cause expectation of harm or to cause injury or physical contact offensive to reasonable person
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Act
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Words alone are not enough. Must be some outward movement creating immediate of immediate injury of danger
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Result
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reasonable expectation of immediate injury or offensive contact
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Battery
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an intentional act causing another person injury or offensive contact (that is extensive)
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3 Elements Required to Prove Battery
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1. Intent
2. Act
3. Result
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Intent
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same as for assault. Intend to harm or intend to scare. Transferred intent is sufficient.
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Act
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Words alone are not enough. Must be some outward movement creating immediate expectation of danger.
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Result
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injury or physical contact offensive to a reasonable person (ex. harmless contact offensive only to a paranoid person is not battery)
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4 Defenses to Assault & Battery
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1. consent
2. self-defense
3. defense to others
4. defense to property
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Consent
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when the victim agrees to the physical contact
a) surgery vs scalpal
b) contact sports
c) voluntary first fights
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Self-defense
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the privilege to use the amount of force reasonably necessary to repel real or apparent danger
a) apparent danger
b) retaliation is not self-defense
c) deathly force is only allowed when there is a threat of death of serious bodily harm
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Defense of others
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the privilege to use the amount of force reasonably necessary to repel real or apparent danger to others
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Defense of property
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the privilege to use the amount of force reasonably necessary to repel real or apparent danger to property
a) deadly force may never be used to protect property alone
b) castle is an exception because of threat to persons
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The Castle Doctrine
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a)The ability to use deadly force to protect one's house/property when you are there and someone tries to enter without permission. (MO: enter & remain)
b) this has been expanded by statute in many states, in MO now includes the ability to use deadly force to protect oneself in occupied …
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False Imprisonment
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the intentional detention of another within boundaries for an length of time with that person's knowledge and without consent.
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2 Elements Required for Proof
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1. Intentional detention of another
a) intentional detention
b) ex. words alone are enough to create boundaries. A threat alone can be false imprisonment but not an assault
2. With that person's knowledge and without consent
a) falling asleep at a bar
b) recovering for the sense of b…
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Shopkeeper's Privilege
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A merchant with reasonable cause to suspect vandalizing/shoplifting may detain a suspect in a reasonable monitor for a reasonable length of time. (30mins-Hour) to contact police/complete investigation
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Intentional Infliction of Emotional Distress
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an intentional act of extreme or outrageous nature causing severe emotional distress
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3 Elements of Proof
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1. Intentional act-purpose or recklessness
2. Of extreme or outrageous nature-Funeral home example--> bones found later
3. causing severe emotional distress: medically significant and medically diagnosable emotional distress
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Defamation
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a publication of a defamatory,false statement of fact
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Publication
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statement to a third party (a person other that the subject of the statement)
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4 Elements of Proof
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1. Publication
2. Defamatory
3. False Statement of Fact
4. Through the fault of the defendant
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Publication
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statement to a third party (a person other than the subject of the statement)
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Oral Statement
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slander
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Written Statement
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libel
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Defamatory
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injuries the reputation
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False Statement of Fact
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not opinion or prediction (plaintiff has to prove its false)
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Through the Fault of the Defendant
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If plaintiff is a public figure-- must be intentional falsehood or reckless disregard for truth-- "actual malice"
Intentional-- know the statement is false
Reckless-- no basis to believe the statement is true
Not a public figure then negligence
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Defenses
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1.) Absolute privilege-statements made during govt. hearings are not proper cause for a defamation lawsuit
2.) Conditional privilege-statement made as a matter of the defendant's business interest are not actionable unless made with actual malice
3.) truth- statement by defendant must b…
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Invasion of Privacy: 4 types
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Intrusion upon solitude (private surveillance)
public disclosure of private facts (the info can be true but private in D's particular sphere of life)
false-light publicity (the tort of gossip, gets you noneconomic damages)
appropriation of likeness or name for commercial advantage
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Fraudulent Misrepresentation
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Intentional misrepresentation of material fact, reasonably relied on by plaintiff, resulting in damages
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Fraudulent Misrepresentation: 4 Elements of Proof
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1. Misrepresentation of material fact
material: according to the deal
fact: not opinion or prediction
2. Intent to deceive
knowledge of falsity of statement or reckless disregard for the truth
3. Reasonable reliance by the victim
4. Causation of damages
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Property Torts
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Trespass to Land-intentional entry onto the land of another without permission
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Trespass to Chattels
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Intentional damaging or deprivation of another's personal property (ex. sledgehammer)
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Conversion
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Intentional retention or severe damaging of another's personal property. Every one is also a trespass to chattel
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Nuisance
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The unjustified interference with the use or enjoyment of another's real estate. (ex. blocking a common stairwell to your apartment)
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Intentional Interference with a Contract
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a) the defendant knew the plaintiff had a contract with a third party (ex. customer)
b) the defendant intentionally induced the third party to break the contract (usually to get the business for himself)
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Intentional Interference with a Business Relationship
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a) the defendant knew of the existing business relationship between the plaintiff and a third party
b) the defendant used predatory practices to obtain the business for herself
(ex. CPA office on the 3rd floor, random guy directs their business to him)
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Business Implication for intentional torts: 4 Examples
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The employer is often liable for actual and punitive damages if the employee commits the tort as part of the job
a bouncer and battery
a repo agent and conversion
a store manager and false imprisonment
negligent hiring and intentional torts
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Negligence
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An unintentional violation of a legal duty to use a standard of care
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Negligence: 4 required elements of proof
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(duty, breach, causation, damages)
1. an unintentional act
2. a legal duty to use a standard of care
3. a violation of that standard
4. causation of damages
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Unintentional Act
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(nonfeasable) where there is a duty to act. If the act is intentional, look at the intentional torts and see if all the elements of proof are present for one or more torts
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Legal Duty to use a standard of Care
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can vary with the actor and activity:
actor-higher standard for professionals; lower standard for children
activities-higher standard for more dangerous activity
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A violation of that standard
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was the defendant negligent?
a fact question for a judge or jury to decide
negligence per se: the act of the defendant violates a safety standard, the jury only decides if there is a violation of the statute-automatically presumed to be negligent
plumber not checking for gas leak, hous…
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Causation of Damages
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CAUSE IN FACT-the negligence of defendant was an essential factor in the chain of events AND PROXIMATE CAUSE-the harm caused plaintiff must be of a type reasonably foreseeable to someone in the defendants position-not too remote in the chain of events (no superseding cause)
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Defenses to Negligence
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Comparative negligence
contributory negligence
assumption of risk
immunities
employer liability
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Comparative Negligence
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the recovery of the plaintiff is reduced by the plaintiff's percentage of fault in causing the damages
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Contributory negligence
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the recovery of the plaintiff is bared (prevented) by any negligence of the plaintiff in causing damages
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Assumption of Risk
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the recovery of the plaintiff is barred if the plaintiff voluntarily encounters a known risk. Compare to defense of consent in a battery case
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Immunities
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Sovereign Immunity-can only sue the government if it gives you permission
Official Immunity-cannot recover from government officials if the act complained of involves a matter of policy (discretion) and there was no malice by the official
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Employer Liability
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the employer is liable for the torts of employee in scope and course of employment
wrongful repossession (conversion by a repo agent)
excessive force (battery) by a bouncer
false imprisonment of a shoplifter
negligence by a truck driver
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Strict Liability
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liability without fault & no need to prove an intentional or negligent act
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Ultra Hazardous Activity
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an activity so abnormally dangerous that the actor is the guarantor of the safety
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Products Liability
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strict liability & tort
1. the defendant marketed the product
2. the product was unreasonably dangerous (defective) when it was sold
the plaintiff suffered physical injury as a result of the defect
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Constitutional Protections
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Protection against unreasonable search and seizure (goods & persons) require probably cause
4th amendment
warrant-less search is presumed invalid; exceptions
valid consent
search incident to a valid arrest
exigent (emergency) circumstances
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Procedural Protecions
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Constitutional protections & Procedural protections
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Right to Remain Silent
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5th amendment right not to be compelled to testify against yourself in a criminal trial
So zealously protected that even a comment by the prosecutor on a defendant's failure to testify will typically result in a mistrial
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Protection against Double Jeopardy
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5th amendment-a criminal defendant may not be tried twice for the same offense
Loopholes: hung jury/mistrial=can try again
can be charged by state/federal for similar offense
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Right to Counsel
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6th amendment right to have an attorney represent you if you are a criminal defendant
Begins with arrest & continues through appeal
Now includes the right to have the government pay for an attorney if the defendant cannot afford one
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Right to Notice of Charges
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6th amendment right to be informed of the exact criminal charge against you
importance- preparing a defense
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Right to Confront Witnesses
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6th amendment right to have witnesses testify in front of you and to cross examine the witness (assessing bias and verifying truthfulness)
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Right to Speedy trial by jury
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6th amendment right to be tried quickly and to have a jury decide guilt or innocence
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Procedural Protections
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1. Miranda Rights
2. Exclusionary Rule
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Miranda Rights
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A suspect must be informed of his constitutional rights before he can validly waive them
applies to any custodial interrogation
evidence discovered during illegal questioning, such as a confession, will be inadmissible under the exclusionary law
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Exclusionary Rule
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Evidence illegally obtained by police is inadmissible in a criminal law
resulting discoveries are also inadmissible: fruit of the poisonous tree doctrine
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Stages of Criminal Proceedings
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1. Arrest
2. Charges filed by indictment or information
3. Arraignment and plea
4. disclosure
5. trial
6. post-trial protections
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Arrest
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Deprivation of freedom of movement by a police officer. Arrest is legal if
Valid arrest warrant exists
Officers have probably cause to believe the suspect committed a crime
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Charges filed by Indictment or Information
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Indictment - a criminal charge filed by a grand jury
Information - a criminal charge filed by a prosecutor (requires confirmation from a judge after preliminary hearing & a prosecutor acting alone cannot file a felony charge)
Prosecutorial Discretion - the prosecutor decides when to pre…
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Arraignment and Plea
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1. Arraignment- formal reading of charges
2. Plea bargaining-agreement by the defendant to plead guilty in exchange for a lesser charger or a fixed punishment.
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Disclosure
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the process of gathering info prior to the trial in a criminal case
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Trial
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Many of the constitutional rights of the defendant are focused (ex. double jeopardy, right to counsel, right to confront witnesses)
the defendant must be proven guilty beyond a reasonable doubt and must be unanimously found guilty by the jury (typical civil burden of proof is by preponde…
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Post-Trial Protections
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1. Appeal-includes right to counsel
2. Habeas Corpus-right to challenge basis for incarceration
(something about the procedure was unconstitutional)
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Substantive Criminal Law
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1. 2 Elements of a Crime
Actus Reus
Mens Rea
2. 4 Classifications (by punishment)
Capital Offenses
Felonies
Misdemeanors
Infrations
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Actus Reus
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the unlawful act
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Mens Rea
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the required criminal intent (ex. larceny-the wrongful taking of another (actus reus) with the intent to permanently deprive the owner of its (mens rea))
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Capital Offenses
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punishable by death
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Felonies
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punishable by up to life in prison (various classes of felonies)
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Misdemeanors
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punishable by up to one year in the county jail
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Infractions
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punishable by fines only
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Crimes Related to Business
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Forgery, Robbery, Burglary, Larceny, Embezzlement, Arson, Money Laundering, Bribery,
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Forgery
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The fraudulent making or altering a document to change its legal effect (ex. checks)
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Robbery
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Stealing from someone's person by force or threat of force. Every robbery is also a larceny
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Burglary
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Breaking and entering a building with the intent to commit a crime inside
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Larceny
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A wrongful taking of another's property with the intent to permanently deprive the owner of it
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Embezzlement
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Misappropriating property entrusted to your possession for personal purposes. Intent to return the property is not a defense. (ex. cashier)
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Arson
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Burning a building of another or burning a building to defraud insurance
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Money Laundering
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Using a legitimate business to disguise the source of illegal profits (Ex. Al Capone selling weed as part of delivering business)
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Bribery
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Offering money or property to obtain an illegitimate political or commercial advantage
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Defenses to Crimes
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Mistake, Consent, Entrapment, Duress, Intoxication, Minority, Justifiable Use of Force
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Mistake
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a mistake of law is not a defense, a mistake of fact is a defense only if it negates a required criminal intent (ex. driving the wrong jeep to dinner)
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Consent
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a defense any offenses which logically require a lack of consent for criminality. (ex. rape and stealing) is not a defense to murder or to offenses involving serious bodily injury.
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Entrapment
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The defendant's criminal activity is induced by actions of police rather than the defendant's predisposition to commit a crime
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Duress
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A wrongful threat of immediate danger coerces the crime where the danger of the threat is greater than the danger of the crime (ex. kidnapped, threatened to kill & rob the bank)
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Intoxication
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Generally is not a defense to a crime. Can be a defense is it negates a required specific mental state.
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Minority
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Under age 14 there is a presumption of an inability to form criminal intent. Concept being reconsidered especially for violent crimes.
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Justifiable Use of Force
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(same as Assault & Battery)
1. consent
2. self-defense
3. defense of others
4. defense of property
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Personal Jurisdiction
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jurisdiction over the defendant. A state or federal court has personal jurisdiction over
residents of the state where the court sits
persons or entities with contacts with state where the court sits (place where incident occurred)
long arm jurisdiction -over a defendant who has entered…
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Subject Matter Jurisdiction
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over the type of lawsuit
Federal courts-federal question jurisdiction & diversity of citizenship (different states over $75,000)
State courts-jurisdiction over all cases where there is not exclusive federal jurisdiction. Any state court with personal jurisdiction over the defendant may …
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Exclusive Jurisdiction
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either a federal or state court is the only court which may hear a case (not both)
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Concurrent Jurisdiction
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Both federal and state courts have jurisdiction over the type of case. The plaintiff chooses to file in one or the other. If filed in state court, the defendant can seek removal to federal court.
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Alternative Dispute Resolution: 5 Methods
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1. Arbitration
2. Negotiation
3. Mediation
4. Summary Jury Trial
5. Mini Trial
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Arbitration
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a BINDING process in which an arbitrator hears evidence and enters an enforceable decision. Generally this is much less costly than a trial and eliminates appeals.
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Negotiation
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an attempt by disputing parties to resolve their dispute informally, with or without attorneys present.
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Mediation
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a NONBINDING process in which a mediator aids parties in negotiating a dispute. Often judges get involved in mediation through required settlement conferences before the trial judge or another judge
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Summary Jury Trial
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A shortened trial before an unofficial jury which makes a NONBINDING, advisory decision, often ordered by a judge in complex cases to help the parties settle the case.
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Mini Trial
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Shortened trial before an unofficial judge, who makes a NONBINDING decision (recommendation)
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MANGMT 3540: EXAM 1