Chapter 2

A. JUDICIAL REVIEW 1. Both federal and state courts exercise the power to determine the constitutionally of an act of the other two branches of government 2. Power of the courts to act as the final authority on the constitutionally of an act by the legislative or executive branch conferred to itself by MARBURY VS. MADISON (1803)

B. BEGINNING A LAWSUIT 1. Before a court can hear a case it must have jurisdiction 2. Specifically over the defendant or thing as well as over the type of case to be heard

C. JURISDICTION 1. In Personam Jurisdiction- Jurisdiction over the person a. The power of the court to making a ruling that is binding on the defendant because the defendant is properly before the court 2. In Rem Jurisdiction- The court has the power to make a ruling that is binding on a defendant because the ruling is regarding property within the court’s boundries in which the defendant has an ownership or possessory interest 3. Subject Matter Jurisdication- The types of cases the court has the power to hear a. Generally established by constitutional authority or by statute b. Limitations on what types of cases courts can hear disputes on c. The ability of a court to hear certain cases

D. ACTS THAT SERVE AS A BASIS FOR COURT IN PERSONAM JURISDICTION 1. A defendant resides in the geographic area where the court is Located (County or State) 2. Transacting business or entering into a contract in the Geographic area where the court is located 3. Tortious act committed in the location of the court’s jurisdication 4. Tortious act outside of geographic area causing harm in the location of the court’s jurisdiction 5. Corporations incorporated in or doing business in area 6. Own property in the area-In Rem 7. Matrimonial domicile 8. Parties can agree in contract to jurisdiction

E. LONG ARM STATUTES 1. A court asserting in personam jurisdication over an out-of-state resident 2. The defendant must have sufficient or minimum contacts with the state/area before a court can assert in personam jurisdiction 3. Is it fair to require an out-of-state resident to answer in a court’s location/area where the defendant is not a resident

SEE ACTS ABOVE THAT SERVE AS A BASIS OF JURISDICTION (D)

F. SUBJECT MATTER JURISDICTION 1. General vs. Limited Jurisdiction a. General- Court can hear cases with a broad array of issues State Trial Courts Federal District Courts b. Limited- Court can only hear certain types of cases depending on the subject of the lawsuit/amount/crime (F/M) c. Courts of Limited Jurisdiction 1. Probate (State) 2. Family Law (State) 3. Small Claims ($) 4. Bankruptcy (Federal)

2. Original vs. Appellate Jurisdiction a. Original- Case is being heard for the first time Lawsuit begins Trial court/Evidence presented b. Appellate- Review court Cases are on appeal from trial courts

3. Exclusive vs. Concurrent Jurisdiction a. Exclusive- When only the State or Federal court has jurisdiction b. Concurrent- When both Federal and State courts have jurisdiction 1. Party has a choice to bring suit in Federal or State court 2. State’s substantive law applied in Federal court 3. Diversity of Citizenship/amount in controversy $75,000

G. FEDERAL AND STATE COURT JURISDICTION 1. Federal Court Jurisdiction a. Jurisdiction limited by the US Constitution b. Federal questions (Federal Statutes, Treaties, Constitution) c. District Courts, Circuit Courts, Supreme Court d. Writ of Certiorari-Rule of 4-order to send case to USSC 2. State Court Jurisdiction a. State Statutes, Civil Disputes, Criminal prosecutions b. Trial Courts/Appellate Courts/Supreme Court

H. LITIGATION—PRE-TRIAL TO POST-TRIAL

1. Pleadings- Summons—Complaint—Answer--Motions a. Summons- Notify defendant of the filing of a lawsuit Service of Process- Personal service Defendant or agent for process Respond or suffer a default judgment b. Complaint- Short statement of facts establishing jurisdiction, statement of the claim, and remedy sought c. Answer- Defendant’s response to the complaint Admitting or denying allegations in complaint Asserting affirmative defenses Counterclaim- claim by defendant d. Pre-Trial Motions- Procedural request for relief (Dismissal) 1. Motion to Dismiss- can be filed by either party to dismiss case but usually by the defendant a. Failure to state a claim in the complaint b. Not properly served c. Court lacks jurisdiction…personal or subject matter 2. Judgment on the Pleadings- from looking at the pleadings it appears that the plaintiff has failed to state a cause of action or defendant has failed to allege facts in defense of the action a. No factual dispute but only a question of law b. Look at pleadings only

3. Motion for Summary Judgment- Grant a judgment in party’s favor without trial a. Facts are not in dispute b. Use affidavits

I. DISCOVERY

1. Before the trial begins the parties can use a variety of fact finding Devices to obtain information regarding the case a. Depositions 1. Sworn testimony by a party or witnesses that is recorded 2. Used to discover information and for impeachment purposes 3. General topics b. Interrogatories 1. Written questions that are answered by written answers 2. Parties ONLY 3. Specific topics c. Request for Documents 1. A party can gain access for inspection d. Request for Admissions 1. Asking a party to admit or deny the truth of a matter relating to the trial and if admitted deemed true for trial purposes

J. COURT HEARINGS AND TRIAL

1. Pretrial Conference/Settlement Conferences a. Clarify issues, set trial date, and attempt to settle case 2. Voir Dire a. Oral questions to ask potential jurors 1. Peremptory 2. For cause 3. Opening Statement a. Facts attorneys expect to prove during the trial b. Not argument c. Brief version of the case from each lawyer-what the evidence will be 4. Examination of Witnesses a. Direct Examination- asking your witness questions b. Cross Examination- asking questions of the other party’s witnesses 5. Motion by Defendant after Plaintiff’s case Presented a. Motion for Directed Verdict 1. Made by Defendant after Plaintiff has put on his case 2. No evidence to support plaintiff’s claim 3. Defendant can make the motion or proceed with his defense

6. Closing Argument a. Summarize facts, argue how facts supports client’s case, shortcomings of other party’s case 7. Standards of Proof a. Preponderence of the Evidence- applied in civil cases 1. Plaintiff shows her claim more likely true than not b. Beyond a Reasonable Doubt- applied in criminal cases 1. A higher standard, not all doubt but reasonable doubt 8. Post Trial Motions a. Motion for New Trial 1. Set aside the verdict and grant a new trial 2. Jury or judge error, new evidence, misconduct by participants b. Motion for Judgment NOV-verdict unreasonable/Judge 13th juror

K. Legal Defenses to a Complaint for Relief 1. Statute of Frauds: Some agreements must be in writing in order to be enforceable. (See Contracts Chapter-Formation) 2. Statute of Limitations: Actions must be filed in a timely fashion.