BUS 160 Exam 2

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tenorsextets
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145140
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BUS 160 Exam 2
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2012-04-05 04:12:39
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business law
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  1. Complaint:
    document that explains what the case is about
  2. Statute of limitations:
    How is it labeled?
    window of time for someone to file a case; case number labels each document for that case
  3. Summons:
    notification to the defendant of the lawsuit
  4. Why do lawsuits take forever to get filed?
    Lawyers are often very busy and there are many things to sort out.
  5. Service of Process:
    1) Purpose:
    2) Documents:
    • 1) Purpose: notice to defendant, opportunity to respond
    • 2) Documents: to be served (summons and complaint)
  6. What happens if the defendant doesn't participate or respond when they are properly served?
    The plaintiff may request and be granted a default judgement and have their requested reward granted.
  7. Defendant's possible responses:
    • -Motion to dismiss/Demurr
    • -Answer: admit or deny allegations, affirmitive defenses, counterclaim
  8. How to serve documents to company:
    • -walk in office and ask to speak to person in charge
    • -send the documents to the receiving agent for a company
    • -call the lawyer representing the company if they're authorized
  9. Appearance:
    when someone is standing in the court in front of the judge
  10. Serving by E-mail:
    • -only if court allows it
    • -not always the best way (security issues)
  11. When the defendant responds:
    • -defendant is presented with document called motion to dismiss: defendant argues that the plaintiff doesn't have an applicable remedy and the case should be dismissed (not always appropriate or required)
    • -if the motion to dismiss is allowed then the case is over
    • -if the motion to dismiss is denied, then the plaintiff files a document called the Answer
  12. Motions:
    a legal argument asking the judge to make a legal ruling (95% in writing)
  13. The Answer:
    • -admissions in denial
    • -affirmitive defenses
    • -counterclaim
    • -cross claim
  14. Admissions in Denial:
    admitting or denying something so the other party doesn't have to do a lot to prove their point
  15. Affirmitive Defenses:
    to preserve your right to defend your rights in trial
  16. Counterclaim:
    • defendant turns around and sues the plaintiff if the defendant suffered some injuries
    • *sometimes dismissed by judges if the lawyer is just firing back
  17. Cross Claim:
    defendant does a counterclaim and then the plaintiff sues someone else not yet involved in the case
  18. Discovery:
    • -most time consuming part of the case
    • -parties are discovering what the other side is all about and all the details
    • -everything is found out under oath
    • -Basic Rule: don't ask a question you don't know the answer to
    • -if someone gives a different answer from what they said under oath before, then a lawyer can use that to convince the jury to believe someone else
  19. Voir Dire:
    jury selection
  20. “For Cause” challenges:
    How many per side? (plaintiff and defendant)
    • juror dismissed based on a legitimate reason that the judge gives
    • *unlimited number per side
  21. Peremptory Challenges:
    How many per side? (plaintiff and defendant)
    • based on a bias YOU claim to have (family member that's a cop, know person on trial, etc.) that the judge agrees with; doesn't require a reason to excuse a juror
    • *6 per side for CIVIL case, 10 per side for CRIMINAL case
  22. When does the jury selection end?
    peremptory challenges are used up or either side is satisfied
  23. Does a jury have to be present at every single trial?
    NO! Only when a jury trial is requested
  24. Jury Trial:
    Amendment 7: trial is done in the presence of a jury ONLY when the amount in dispute is $10,000 or more (IN CALIFORNIA)
  25. Can a jury trial be done in a Federal case?
    it's not common or liked, but can be done
  26. How much do jurors get paid for jury duty?
    $15/day
  27. If there are 12 jurors and the trial goes for 15 days (estimated), how much money is that?
    12 jurors * $15/day = $180 *15 days (estimate) = $2700
  28. Who pays the jurors?
    • The plaintiff side who requests the jury trial.
    • *they MUST post estimated fees in order to have the jury trial
  29. Jury Summons:
    • court order that you appear for jury service (you must go)
    • *if you moved just call them
  30. What if you throw the jury summons in the trash and don't bother with it?
    • The court issues a bench warrant for you (if you are caught breaking any other law then the police can jail you)
    • *most of the time they just issue warnings that you MUST come
  31. What is the questionnaire for on the jury summons?
    to determine if you are fit to serve jury duty (can get you dismissed depending on your answers)
  32. Relevant Evidence:
    evidence that tends to prove or disprove the case
  33. Trial Procedure:
    • 1) opening statements by both parties' lawyers
    • 2) plaintiff side puts their case forward
    • 3) plaintiff side does direct examination of witness
    • 4) defendant lawyer cross examines plaintiff's witness
    • 5) possible redirect or recross examination by plaintiff or defendant side, respectively
    • 6) next witness from plaintiff side, same process as before
    • 7) possibly a direct verdict
    • 8) defendant side puts their case forward
    • 9) defendant witness put on stand
    • 10) same process as plaintiff, but in reverse (cross then direct examination
    • 11) rebuttals
    • 12) closing arguments
    • 13) Judge issues Jury Instructions
    • 14) Verdict
  34. In trial procedure: Opening statements
    statements made at the beginning of the trial by both parties' lawyers that summarize the evidence and what it will show
  35. In trial procedure: Direct examination
    lawyer examines witness on their side
  36. In trial process: What kind of questions does the plaintiff ask during direct examination? Are witnesses prepared ahead of time? What can the lawyer NOT do?
    • -short Wh- questions (who, what, where, when, why, how)
    • -witnesses are prepared by lawyer before they are brought to court
    • -lawyers can't lead their witnesses
  37. In trial process: what kind of questions does the defendant ask in the cross examination?
    short yes/no questions to try to make their point
  38. In trial process: Direct Verdict
    defendant lawyer(s) go(es) to the judge saying the plaintiff hasn't done enough to prove their point and have them award a win to the defendant (not often granted)
  39. In trial process: Rebuttals
    plaintiff puts a witness on stand to counter the defendant.
  40. In trial process: Closing Arguments
    lawyers from each side summarize the case for the jury and explain what the evidence and witness information mean. Plaintiff, then defendant, then plaintiff rebuttal closing argument.
  41. Jury Instructions:
    How much of of a vote is needed to agree on
    • directions to the judge for deliberation of thecase. These instructions include whether someone is credible, how you do something, what the law is, how the law applies, how the jury goes about deciding on a verdict, how much the plaintiff should be awarded if they win, etc.
    • *must be unanimous jury for criminal, must be at least 9-3
  42. Verdict:
    Jury's decision in the case
  43. In trial process: does the judge do a verdict?
    NO, he only rules according to the jury, unless they made a huge mistake
  44. Post Trial options:
    motions in JNOV and motion for new trial filed by loser
  45. Motions in JNOV:
    judgement notwithstanding the verdict (loser goes to judge and says the jury was wrong, and asks them to vacate the verdict and award them the win) Chances of happening are slim to none.
  46. Motion for new trial:
    losers asks for a new trial after discovering new evidence that wasn't available at the time of the first trial. (very slim chances for being granted) When granted, the whole process starts all over again with a new jury (not including discovery stage).
  47. Constitutional Law:
    goes to the extent of where Congress limits our rights and the government limits and shows us our rights
  48. Checks and Balances:
    each branch can check up on each other branch to make sure each branch doesn't get too powerful and abuse their power
  49. Who does the President check on?
    • Congress - he can veto or sign a law
    • Courts - he appoints the judges to all parts of the federal bench with the Senate's approval
  50. Who does Congress check on?
    The President - if they don't like a veto, they can override the veto by a 2/3 vote in the House of Representatives and a 2/3 vote in the Senate
  51. Who does the Courts check on?
    Congress - courts can decide constitutionality of a law AND the constitutionality of the President's action(s) (Nixon's Watergate scandal)
  52. Shared Sovereignty:
    the power of government is shared in responsibility and each part does different things
  53. •Constitution specifically says what Congress is supposed to do
    • •vagueness allows states to interpret as they like
    • •things like borders, immigration, copyright, declaring war, and coin and money are federal issues
    • •for states: fire codes, building codes, parking codes, professionally licensing, zoning, sales tax, divorce, adoption,
    • driving and vehicle registration
  54. Commerce Power:
    Congress and the states
    • -to what extent can Congress regulate commerce among the states: virtually unlimited
    • -to what extent can the states regulate commerce: in their state
  55. State Police Powers: Laws relating to –
    • •public order
    • •health
    • •safety
    • •morals
    • •general welfare
  56. Commerce Clause-Federal Powers:
    What is a Substantial Effect?
    • Congress may regulate business activities that SUBSTANTIALLY AFFECT interstate commerce (the country as a whole).
    • •substantial effect: if it has to do with business reaching to another state (ex: buying supplies and ingredients in another state)
  57. Commerce:
    manufacture, sale, distribution, or transfer of goods or services
  58. Interstate commerce:
    commerce through multiple states
  59. Intrastate commerce:
    commerce within one state
  60. “Dormant” Commerce Clause-State Powers:
    What if state law sustantially interferes with interstate commerce?
    • -Balance state interest (purpose of law) and effect on commerce
    • *If state law SUBSTANTIALLY INTERFERES with interstate commerce, it is unconstitutional (invalid).
  61. Political Speech:
    speech that doesn't related to sale of goods and services, everything else
  62. Political Speech - Protected Speech
    government restrictions are limited on political speech
  63. Political Speech - Unprotected Speech:
    • government can restrict you in the saying
    • and doing of certain things, the laws and restrictions are valid and aren't protected under the first amendment
  64. Peaceful expression of ideas:
    not doing crazy harmful things to protest or express idea
  65. Symbolic speech:
    anything besides speaking (flag burning, wearing clothing)
  66. Commercial Speech:
    speech that relates to the sale of goods and services
  67. Commercial Speech - Protected Speech:
    • government restrictions are limited in commercial
    • speech
  68. Commercial Speech - Unprotected Speech:
    laws that restrict advertizing (misleading, fraudulent, deceptive)
  69. Defamation Laws:
    you can't say harmful or false things about people that would hurt their reputation; if you do you can get sued for damages to reputation
  70. “Fighting words” laws:
    you can't encourage people to break the law or do an act of violence
  71. Obscenity laws:
    has a high standard; if something is obscene it's not protected
  72. What is the 3S test for obscenity?
    • Is the material sexy to someone?
    • Is the material make society, on some level, sick?
    • Is the material does it lack any serious artistic value to anyone at all?

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