 Judicial Review was established by the U.S. Supreme Court in Marbury v. Madison (1803) where Chief Justice Marshall wrote:  “It is emphatically the province and duty of the judiciary to say what the law is….” © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 2

 Jurisdiction: “Juris” (law) “diction” (to speak) is the power of a court to hear a dispute and to “speak the law” into a controversy and render a verdict that is legally binding on the parties to the dispute. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 3

 Persons: power of a court to compel the presence of the parties (including corporations) to a dispute to appear before the court and litigate. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 4

 In Rem: power to decide issues relating to real or personal property.  A court generally has in rem jurisdiction over any property situated within its geographical borders. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 5

 Long-Arm Statutes.  Courts use long-arm statutes for non-resident parties based on “minimum contacts” with state.  Means defendant had some connection with forum state. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 6

 Corporate Contacts: does the firm do business or advertise within the state?  CASE 2.1 Southern Prestige Industries, Inc. Independence Plating Co. (2010). Did the New Jersey firm have minimum contacts with North Carolina? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 7

 General and Limited Jurisdiction.  Statutory limitation on the types of cases a court can hear (e.g., probate and bankruptcy).  Can also be limited to amount in controversy (amount of monetary damages). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 8

 Original and Appellate Jurisdiction.  Courts of original jurisdiction is where the case started (trial).  Courts of appellate jurisdiction have the power to hear an appeal from another court. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 9

 Federal Questions.  Rights or obligations of a party are created or defined by some federal law.  Diversity of Citizenship.  Parties are not from same state, and amount in controversy must exceed $75,000. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 10

 Exclusive: only one court (state or federal) has the power (jurisdiction) to hear the case.  Concurrent: more than one court can hear the case. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 11

 “Sliding Scale” Standard to determine whether to exercise jurisdiction.  International Jurisdiction Issues. No Yes Substantial Business Interaction Passive Website Some Interaction © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 12

 Venue is concerned with the most appropriate location for the trial.  Generally, proper venue is whether the injury occurred. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 13

 A party must have suffered a legal injury and have a sufficient “stake” in the controversy.  CASE 2.2 Oregon v. Legal Services Corp. (2009). Was there a “concrete” injury to the state? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 14

Ct. Criminal Appeals Supreme Court Court of Appeals District Court County Court Municipal Court Justice Court Texas Courts U.S. Supreme Court Circuit Courts of Appeals U.S. District Court Federal Courts © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 15

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 16

 “Courts of record”- have court reporters.  Small Claims Courts are informal, inferior courts with limited amounts in controversy (usually $5,000).  Opening and closing arguments.  Juries are selected. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 17

 Review trial court proceedings to determine whether the trial complied with procedural and substantive rules of law.  Generally, appellate courts will consider questions of law, but not questions of fact. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 18

 Usually, but not always, called a ‘supreme court.’  Decisions of a state’s highest court on matters of state law are final. The U.S. Supreme Court can overrule a state supreme court when there are federal laws involved. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 19

 Basically a three-tiered system:  U.S. District Courts (trial courts of general jurisdiction).  U.S. Courts of Appeal.   The U.S. Supreme Court.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 20

 U.S. District Courts  Courts of original jurisdiction based on federal statutes.  U.S. Courts of Appeal.  There are 13 Courts of Appeal representing district courts throughout the country.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 21

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 22

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use.  Highest Court in the Land.  Final arbiter of U.S. Constitution.  Petition for Court to hear case by Writ of Certiorari. 23

 American and English court systems follow the adversarial system of justice.  Each client is represented by an attorney although a client is allowed to represent herself (called “pro-se”). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 24

 Trials involve “due process” which requires adequate notice and a fair and impartial hearing.  For example, all civil trials in federal court are governed by the Federal Rules of Civil Procedure (FRCP). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 25

 Pretrial.  Trial.  Posttrial. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 26

Carvello hits Kirby in New York City Antonio Carvello (New Jersey) Jill Kirby (New York) © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 27

© 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 28

 Generally, the first step in litigation is contacting any attorney to seek qualified legal advice.  Types of Attorneys’ Fees (hourly vs. contingent fee).  Settlement Considerations. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 29

 Pleadings.  Discovery.  Conference  Jury Selection. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 30

 Plaintiff’s Complaint.  Court acquires jurisdiction over subject matter and Plaintiff.  Facts: What happened.  Prayer: Court relief. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 31

 Service of Process.  Plaintiff serves Defendant with Complaint and Summons.   Default Judgment for Plaintiff if Defendant does not Answer. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 32

 Method of Service.  Usually by Sheriff or private process server. Copy of Complaint and Summons personally delivered.  If Defendant cannot be reached, “Notice by Publication” is allowed in local newspaper of record. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 33

 Method of Service (cont’d).  Corporate Defendants served via Registered Agent. If the Defendant is out-of-state, Court can acquire jurisdiction by “long- arm” statutes.  Waiver of Formal Service of Process. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 34

 Defendant’s Response.  The Answer is the Defendant’s response to the allegations stated in the Plaintiff’s Complaint.  In the Answer, the Defendant must specifically admit or deny each allegation in the Complaint. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 35

 Defendant’s Answer:  Makes General Denial.  May move for Change of Venue.  May allege Affirmative Defenses.  May assert Counterclaims against Plaintiff.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 36

 Affirmative Defense.  Show plaintiff was driving negligently at the time of the accident.  Comparative Negligence vs. Contributory Negligence.  Burden of proof is on defendant to show plaintiff was negligent. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 37

 Counterclaim is a lawsuit filed by Carvello against Kirby, alleging Kirby injured or caused damages to Carvello. Kirby (Plaintiff) Carvello Carvello (Defendant) © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 38

 Dismissal and Judgments Before Trial.  Many lawsuits never go to trial. Perhaps there is a settlement, or the case was dismissed.  Parties often file “Pre-Trial Motions” asking the Court to do something.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 39

 Dismissal and Judgments Before Trial (cont’d).  Motion to Dismiss: Either party (normally defendant) can ask the court to dismiss the case if the pleadings fail to show a legal claim.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 40

 Dismissal and Judgments Before Trial (cont’d).  Motion for Judgment on the Pleadings: asks the court to rule on the case, based on the pleadings. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 41

 Dismissal and Judgments Before Trial (cont’d).  Motion For Summary Judgment.  Asks a court to grant a judgment for moving party without a trial.  Facts are viewed in the light most favorable to the other party.  Admissible evidence is submitted. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 42

 Discovery is the process by which parties obtain information from the opposing party prior to trial.  Kirby and Carvello will want to know about each other to prevent ‘surprises’ at trial.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 43

 Case 2.3 Blankenship v. Collier (2010). What happens when Plaintiff fails to identify witnesses?  Discovery Rules.  Depositions: sworn testimony recorded and transcribed by court official (court reporter). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 44

 Interrogatories: written questions and answers under oath.  Requests for Admissions: admission is considered a “fact” for trial.  Requests for Documents, Objects, and Entry Upon Land. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 45

 Requests for Examination.  Carvello and Kirby could request examinations of the cars, medical records.  Electronic Discovery (E- Evidence).  FRCP deals specifically with preservation, retrieval, and production of electronic data. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 46

 After discovery is completed meet with trial judge.  Explore possibility of settlement, or identify issues that are in dispute for jury to consider. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 47

 Jury Selection.  Voir Dire.  Jurors can be dismissed peremptorily (no reason or for cause (bias). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 48

 Opening Statements.  Rules of Evidence.  Judge decides what evidence is admissible for jury’s consideration.  Evidence must be relevant to the issues (tends to prove or disprove). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 49

 Rules of Evidence: hearsay evidence is not admissible.  Examination of Witnesses: by direct or cross examination.  Expert Witnesses. Provide specialized knowledge and opinions that help jurors decide issues. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 50

 Plaintiff’s Motion for Directed Verdict.  At conclusion of plaintiffs’ case, court looks at evidence in most favorable light to defendant.  Defendant’s Evidence.  Plaintiff can ‘rebut’ the evidence, and defense can state ‘rejoinders.’ © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 51

 Closing Arguments, Jury Instructions, and Verdict.  After both sides present their cases, the attorneys make their closing statements.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 52

 Closing Arguments, Jury Instructions, and Verdict.  Each attorney summarizes the facts and evidence and tells her client’s story in the most compelling way possible. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 53

 Closing Arguments, Jury Instructions, and Verdict.  Jury Instructions: After closing arguments, the judge instructs the jury on the law of the case.  Criminal cases--burden of proof is “beyond a reasonable doubt” and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 54

 Closing Arguments, Jury Instructions, and Verdict.  Verdict: The verdict specifies the jury’s findings and liability. A jury can award money damages in a civil case, or  Jury is dismissed after verdict. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 55

 After jury reaches a verdict, either party can make a posttrial motion.  Motion for New Trial: after looking at all the evidence, judge will grant the motion IF the jury was in error.  © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 56

 After jury reaches a verdict, either party can make a posttrial motion.  Motion for J.N.O.V.: granted only if the jury’s verdict was unreasonable and erroneous. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 57

 A party may appeal the jury’s verdict or any legal issue, motion or court ruling during the trial.  Appellants must have legitimate grounds for appeal (usually legal error). © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 58

 The party filing the appeal (Appellant) files a brief that contains a short statement of the facts, issues, rulings by the trial court, grounds to reverse the judgment, applicable law and arguments on Appellant’s behalf. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 59

 Appellate Review:  The appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.  Higher Appellate Courts. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 60

 What if the jury awards Kirby the full amount of damages of $100,000? How will she collect it?  What if Carvello was not insured?  What if he forgot to make his insurance payment and the policy lapsed?  What if Carvello wants to appeal? © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 61

 Writ of Execution: directs sheriff to seize defendant’s non- exempt property and sell them to pay for judgment.  Availability of Assets: usually a plaintiff looks to see if the defendant has sufficient assets before the suit is filed. © 2012 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, 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 for classroom use. 62