Table of Contents
Civil Procedure
Criminal Law and Procedure
Contracts
Damages
Family Law
Judicial System
Limitations on Obtaining Relief
Property
Judicial Remedies
Torts
Other Case Briefs
Judicial System
- Jurisdiction
- Subject Matter Jurisdiction: jurisdiction to decide the merits of the case because it has power over the subject matter, including Examples: probate, small claims, juvenile, ... and trial courts for all matters not assigned to a specialized court.
- In personam: jurisdiction over the person's of the plaintif and defendant. Example: Ronald A. Swoboda v. Hero Decks, a Division of Parody Productions, LLC written 2023-02-13 Schubert p. 133
- In rem: jurisdiction over property that is the subject of a suit. Example: In re Clayton Gulledge Schubert p. 457
- Erie Doctrine: a federal court sitting in diversity jurisdiction must apply the substantive law of the state in which it sits. Example: Charles and April Land v. Yamaha Motor Corporation Written 2023-03-01. Schubert p. 145
- Ex Post Facto Law: makes acts criminal, punish more severely, impose greater punishment, or make proof of guilt easier, that were not criminal at the time they were committed.
- Scope of Substantive Due Process Washington et al. v. Harold Glucksberg et al. written 2023-02-27. (Need O'Connor, Stevens, Breyer, Ginsberg) Schubert p. 27
Civil Procedure
- Triggering Event: an injury to the plaintiff or damage to his property.
- Informal Discovery Period: plaintiff contacts an attorney for an exploratory conversation to relate the facts of the event, after which the attorney investigates the claims.
- : additional meetings to determine course of action and, if legal action choosen, the attorney is hired. Start of contractual relationship.
- : attorney contacts defendant, putting them on notice.
- Settlement Conferences: attorney meet to seek a reasonable settlement outside the judicial system.
- Quantum meruit: Joy Salmon v. Virginia Atkinson Schubert p. 156
- Pleadings:
- Complaint plaintiff files a complaint alleging jurisdiction, detailing facts to establish a legal claim to relief from the defendant, and demands such relief.
- Writ of Summons: warning that action must be taken by defendant to forestall a default judgement. Answer required within stated period. Summons aka process. Robert Johnson v. Cintas Corporation & United Healthcare (Need: everything) Schubert p. 162
- Personal Service: Delivered in person to the defendant. Many states permit certified or registered mail, return receipt requested, in place of in person.
- Substituted Service: When personal service not possible. Delivery to a person of "suitable age and discretion" at the defendant's residence. Delivery to designated agent of a company or state official.
- Constructive Service: publication of summons in the legal announcements section of newspapers.
- Answer: defendant makes admissions and/or denials, asserts defenses, and raises counterclaims.
- Affirmative defenses assert facts that bar the plaintiff from recovery.
- Counterclaims: asserted when the defendant has a cause of action against the plaintiff arising out of the same set of events that triggered the complaint.
- Reply: addresses counterclaims asserted by defendant by admitting, denying, or raising defenses against factual allegation raised in the counterclaims.
- Pretrial Motions:
- 12(b) motions to dismiss due to lack of standing, an insufficiency, vagueness, or error in service, lack of jurisdiction,
- Lack of Standing: Dennis Hollingsworth v. Kristin M. Perry written 2023-02-13 Schubert p. 191
- Standing Defined: Lujan v. Defenders of Wildlife (1992) Note: not assigned
- motions for summary judgement when facts are not in dispute or cannot be proven. Supported by affidavits and depositions.
- Mootness: case no longer justiciable because the present case or controversey no longer exists. Jeffrey Lee Chafin v. Lynne Hales Chafin Written 2023-02-19. Schubert p. 195
- Discovery: information sought must not be priviledged, may be relevant, must not be a "work product" of an attorney. methods are: oral depositions, written interrogatories, production of documents, physical and mental examinations, and requests for admissions or denial as to specific facts or genuineness of documents.
- Spoilation: Rajesh Idnani v. Venus Capital Management, Inc. Schubert p. 166
- Pretrial Conference: judge and opposing lawyers.
- Trial
- Jury Selection: attorneys can attempt to disqualify jurors either by challenge for cause (decided by judge) or peremptory challenge (no recourse).
- Opening Statements: plaintiff opens, explains case, legal theory, what is to be proven. Defendant responds with same. subpoenas of persons, and subpoena duces tecum of documents/items issued as required.
- Plaintiff's Case: Witnesses via direct examination, cross-examination, redirect examination. Leading questions allowed on cross-examination.
- Best Evidence: originals, not copies, whenever available.
- Competency: criterion for admissibility. Witness must be sworn to testify truthfully and testify to what they have seen or heard firsthand.
- Hearsay: testimony that proceeds from the repetition of what was said or written outside of court by another person.
- Spontaneous Declarations Exception: repetition by of witness of spontaneous statements by another person uttered simultaneously with the occurrance of an act.
- Relevant Evidence: logically tends to prove or disprove some issue of consequence that is in dispute at the trial or hearing.
- Probative Evidence: relevant evidence that tends to prove or disprove something of importance to the case.
- Material Evidence: relevaent evidence that has signficant probative value.
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- Motion for Nonsuit: in the event that the plaintiff fails to prove allegations.
- Defendant's Case:
- Plaintiff' Rebuttal:
- Defendant's Rejoinder:
- Motion of Directed Verdict: motion at the end of all evidence. Determination by a jury at the direction of the court where 1) there has been a failure of the evidence; 2) an overwhelming weight of the evidence; 3) or the law as applied to the facts permits only one result.
- Closing Arguments:
- Instruction to Jury:
- Jury Verdict:
- Post-trial Motions:
- Additur: additional sum awarded by judge when jury award of damages is grossly insufficient. Defendant can: 1) pay; 2) appeal; 3) refuse and go to trial on damages.
- Judgement Not Withstanding the Verdict (JNOV) granted if the judge decides that no reasonable juror could have find in favor of the other party.
- Remittur: sum deducted by judge when jury award of damages is grossly excessive. Plaintiff can: 1) agree; 2) appeal; 3) refuse and go to trial on damages.
- Tammy Lou Fontenot v. Taser International, Inc. (Need: everything) Schubert p. 178
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Limitations on Obtaining Relief
Judicial Remedies
Criminal Law and Procedure
Family Law
Contracts
Damages
Torts
Property
Police Power:
authority of state legislatures to enact laws regulating and restraining private rights and occupations for the promotion of public health, welfare, safety, and morals. Constrained by the Due Process Clauses of the 5th and 14th Amendmdents to measures tha are reasonble and consistent with rights implied or explicit in the Constitution.
Ownership
- Community Property: used in some states (9). Earnings and property rights acquired with those earnings are consolidated and divided by percentage. Some states exclude rights prior to marriage, inheritances, and gifts
- Joint Tenancy: each tenant has an equal, undivided interest from the same source at the same time. Includes right of survivorship...deceased interest passes to the other tenants...not though the deceased's will. May be frustrated by alienation, or subjection to debt of a cotenant's undivided share, or by compulsory partition.
- Severalty: property owned by one person.
- Tenancy by the Entirety: Only between legally married spouses. Includes right of survivorship. Upon divorce converts to Tenancy in Common. Terminated by death, divorce, or mutual consent, only. Inalienable otherwise.
- Tenancy in Common: similar to Joint Tenancy but no right of survivorship. Deceased's rights pass according to the will.
- In re Clayton Gulledge Schubert p. 457
Nuisance
One's use of property unreasonably infringes upon another's use and enjoyment of their property rights.
- Public Nuisance: a given use of land poses a generalized threat to the public. Redressed by criminal prosecution and injuctive relief.
- Private Nuisance: a tort requiring proof of injury distinct from that suffered by the general public. Redressed by judgement for damages and injuctive relief.
- Hugh K. Evans v. Lochmere Recreation Club, Inc. Schubert p. 469
Real Property or Realty
- Land and things attached permanently to land...immovable. Title document required: Deed.
- Kelo v. City of New London (Need: Kennedy concurrance and Thomas dissent) One Pager, Schubert p. 462
- Skipped Material
- Estates in Land
- Easements
- Licenses
- Convenants
- Adverse Possession
- Schubert p. 470-475
Fixtures
a dishwasher, for example. Personalty at purchase; fixture after installation.
Personal Property or Personalty
Two parties can have distinct property rights in a single object. Example: a camera...the owner has personal property rights while the manufacturer has intellectual property rights in the same object.
- Acquisition of Title:
- Accession: natural increase. Examples: birth of animals; interest in savings account.
- Capture: previously unowned property. Example: fishing on the high seas.
- Confusion: intermixing of fungible goods, such as money or wheat. Each owner receives an equivalent amount of the blended/intermingled property.
- Creation: via physical or mental labor.
- Finding: Favorite v. Miller Written 2023-02-26. Schubert p. 476
- Gift: voluntary transfer of all rights by the donor to another, the donee. Requires donative intent and actual or constructive delivery of the item. Example: delivery of a vehicle (actual), or delivery of the keys (constructive). Matthew Campbell v. Ashley Robinson Schubert 479.
- Inheritance:
- Purchase: sale of goods conveying ownership rights. Contractual relationship governed by the Uniform Commerical Code.
- Acquisition without Title: bailment: agreement, undertaking or relationship created by delivery of personal property by the owner (bailor) to another (bailee) for a specific purpose on condition of return upon fulfillment of the purpose. Examples: lending a lawnmower, renting a vehicle, leaving a vehicle for repair.
- Tangible Personal Property: physical objects that are neither realty nor fixtures.
- Intangible Personal Property: no physical form. Ownership evidenced by legal document: deposit receipts, bank statements, money, stocks, bonds, trademarks, copyrights, patents, as well as duties, rights and obligations arising out of the ownership of physical objects. Right to own, use, sell or dispose of personal property.
- Contingent Property Right: realized upon some future event which causes the right to become fully vested.
Intellectual Property:
- Copyright: grant of rights to reproduce, adapt, publish, sell, perform, display or distribute literary pieces, musical compositions, dramatic works, photographs, graphic works, video and audio recordings, computer software. Requires registrated copyright notice on publicly disseminated copies of the work. Common law copyright abolished in 1978. Eldred v. Ashcroft
- BMG Music v. Cecilia Gonzalez Written 2023-02-20. Schubert p. 454
- Patents: exclusive right to make, use, license, and sell an invention for a period of years.
- Trademark: a registered unique symbol, term, phrase, or design identifies and distinguishes ones products from competitors. Can be lost via "genericazation": escalator, thermos, aspirin.
- In re Boston Beer Company Ltd. Partnership (Needs some rework) Written 2023-02-19. Schubert p. 451
Other Case Briefs
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