business law, leb 323, 320f

UT-Austin Edinburgh Summer Program 2002UT-Austin Edinburgh Summer Program 2002

Business Law, LEB 323, 320F

Syllabus

• readings

• in-class exercises

• class participation

• Discussion

• powerpoint

• exam

This week:

7/2: Intro to course and trial procedure

7/3am: Common law and statutes/EXERCISE

7/3pm: Constitutional and International law


Business Law, LEB 323, 320F

What is law?

How does the legal system resolve disputes?

Rules statutes, common law, regulations

Is contract valid? Is this pollution illegal? Is this agreement criminal?

Understand how courts analyze these questions.


Circuits in the U.S. Federal Court SystemPuerto Rico is part of Circuit 1

Virgin Islands are part of Circuit 3

Northern Marianna Islands are part of Circuit 9 (along with Alaska and Hawaii.)

D.C. CircuitWashington, D.C.

Federal CircuitWashington, D.C.

6

1

2

3

4

115

7

89

10

District courts within each circuit.

State court systems mirror, or parallel, federal system.


U.S. Supreme Court

State Supreme Court

State intermediate Federal Circuit Court appellate court of Appeals

State Trial Court Federal District Court

(state law matters (federal law matters)


Trials/Litigation

U.S.: right to a jury trial

• Rationale?

• Role of jury?

On balance, is the right to a jury trial a good thing?

PretrialTension between desire to :

• Save time and cost of litigation,

• Preserve business relationship, and

• Protect your rights

Are there ways to avoid the expense and trouble of litigation?


What is “ADR”? In what ways can businesses resolve disputes

(even legal disputes) without resort to litigation?

Alternative Dispute Resolution


NegotiationParties make offers and counter-offers for settlements.May be face-to-face or through lawyers.

MediationNeutral person (mediator) attempts to get parties to reach a voluntary

settlement.Mediation may be ordered by a judge.Mediator does not render a decision.

ArbitrationNeutral person (arbitrator) is involved.Arbitrator does render a binding decision.Arbitration may be mandatory, if chosen in advance as the method for

dispute resolution.

Alternative Dispute Resolution


Alternative Dispute Resolution(less common forms)

Mini-trialParties stage a short trial to a panel of three “judges.”Two of the “judges” are executives of the disputing corporations; the

third is a neutral party.Lawyers present shortened cases; “judges” discuss settlement.

Summary Jury TrialInitiated and supervised by a court.Each side summarizes to a mock jury what witnesses would say if

called before a real jury.Jury deliberates and tries to reach consensus, but may vote

individually if necessary.Allows each side to see how a trial might turn out.


Steps in Beginning Litigation

• Pleadings: Papers that begin a lawsuit

1. Complaint -- Short, plain statement of the allegations and the legal claims.

This is “served” or delivered with a summons.

2a. Answer -- A brief reply to the allegations.2b. Counter-Claim: If the accused party thinks the accusing party has contributed to the problem or has wronged them, they may file a second suit, in reverse of the first.

2c. Affirmative Defenses: reasons why defendant isn’t liable


Reply: Filed by plaintiff, responding to defendant’s counterclaims or affirmative defenses in defendant’s answer

Example: Suit vs. sports bar for injuries sustained during bar-sponsored game of “human darts”

Steps in Beginning Litigation(cont’d)

Steps in Beginning Litigation(cont’d)


Sample PleadingsSample PleadingsCHRIS P. DANIEL, Plaintiff, v. CHUGGIE'S SPORTS BAR and CHRIS P. DANIEL, Plaintiff, v. CHUGGIE'S SPORTS BAR and

TERRY MINETOS, Defendants TERRY MINETOS, Defendants

COMPLAINT

2. The Plaintiff, CHRIS P. DANIEL, is a resident of Clinchfield County, State of Midlands.

3. The Defendant, TERRY MINETOS, is a resident of Clinchfield County, State of Midlands.

4. TERRY MINETOS is the owner and operator of CHUGGIE'S SPORTS BAR which is located at 55 Great Northern Boulevard, in Clinchfield County, State of

Midlands.

ANSWER

2. Paragraphs 1, 2 3 and 4 are admitted.






COMPLAINT (cont’d)

6. Plaintiff brings suit to recover for personal injuries sustained by the Plaintiff as a result of a dangerous condition on the Defendants' property. Specifically the

Plaintiff was injured while participating in a game called "Human Darts" which was created and sponsored by the Defendants.

ANSWER (cont’d)

4. In response to the allegations contained in paragraph number 6, the Defendants admit that the game "Human Darts" was created and sponsored by the

Defendants. The remaining allegations contained in paragraph number 6 are denied.







8. The Defendants advertised a game called "Human Darts" to the Plaintiff and other patrons of CHUGGIE'S SPORTS BAR. The employees of the Defendants

assured the Plaintiff the game was safe and there were no signs or notices posted warning the Plaintiff of any dangers or risks associated with playing the game called

Human Darts.

ANSWER (cont’d)

6. In response to the allegations contained in paragraph number 8, it is admitted that the Defendants advertised a game called "Human Darts". The remaining allegations contained in paragraph number 8 are denied.







9. The game of "Human Darts" is played by two teams consisting of two individuals who put on clothing provided by the Defendants and jump onto a game board marked on the wall of CHUGGIE'S SPORTS BAR, also done by the Defendants. The suits and the wall are made of a velcro-type material which is supposed to cause participants to stick to the wall where they can earn points for their team.

ANSWER (cont’d)

7. In response to the allegation contained in paragraph number 9, the Defendants admit that the description in paragraph 9 is a general explanation of the game of Human Darts.







11. The Plaintiff, while participating in the game of Human Darts on the Defendants' premises, was injured when the Plaintiff jumped onto the wall and did not stick and was thrown to the floor in an unnatural position thereby causing the injuries and damages to the Plaintiff as described herein.

ANSWER (cont’d)

9. The Defendants lack information sufficient to form a belief as to the truth of the allegations contained in paragraph number 11 and therefore, deny these allegations and demand strict proof thereof.







13. The game of Human Darts offered at CHUGGIE'S SPORTS BAR is an unreasonably dangerous and unsafe game . . . The Defendants had, or should have had notice of the defective dangerous and unsafe nature of the game and the Defendants failed to correct the same. The Defendants' failure to correct the condition or warn the Plaintiff constituted negligence and such negligence was the prime and proximate cause of the Plaintiffs injuries.

ANSWER (cont’d)

11. Paragraph number 13 is denied.






Lists a motion to dismiss on the pleadings as an AFFIRMATIVE DEFENSE

14. The Defendants aver that the Plaintiff has failed to state a cause of action upon which relief can be granted. The Defendants deny the Plaintiff is entitled to recover any sum from them as damages.






Also lists other AFFIRMATIVE DEFENSES

15. It is averred that if there was some negligence on the part of the Defendants . . .

16. The Defendants aver that Plaintiff's negligence was equal to or greater than the alleged negligence of the Defendants and the Plaintiff therefore cannot recover.


Discovery Discovery

• Interrogatories -- written questions that the other party must answer, under oath

• Depositions -- interview (under oath) of other party or potential witnesses; done by opposing lawyer

• Production of Evidence -- each side may request to see the other side’s evidence

• Medical or Other Examinations

Discovery allows both sides to uncover evidence, encouraging a settlement without trial or ensuring few surprises during a trial.


Other Steps Before Trial• Pretrial Conference – attempt by judge to

secure settlement or narrow issues for trial

• Summary Judgment -- a ruling by the court that no trial is necessary because there are no essential facts in dispute; may be requested by either side.

• Final Preparation -- if the case is to proceed to trial, both sides make a list of witnesses and rehearse questions with their own witnesses. Preparation is allowed, but telling the witnesses how to answer is not legal or ethical.


Beginning a Trial• Jury Selection: Process called voir dire

1. Questioning -- Each potential juror is questioned, to uncover biases.

If both sides agree, they may waive their right to a jury.

2. Challenges for Cause -- Each side can claim any juror shows significant bias.

3. Peremptory Challenges -- Each lawyer can dismiss a limited number of jurors without stating a reason.

4. Jury Chosen -- 12 jurors and 2 alternates


Procedural Rules for a Trial

• Burden of Proof– The plaintiff must convince the jury that its

version of the case is correct.– In a civil case, the proof needs to be by a

preponderance of evidence (meaning at least slightly more likely to be true).

– In a criminal case, the proof required is higher; it must be beyond a reasonable doubt.

• Rules of Evidence– Lawyers are allowed to ask only questions

that are relevant to the case.


The Plaintiff’s Case

• First, Opening Arguments– This is a brief summary, given by each side, of the

facts they hope to demonstrate.• Plaintiff Calls Witnesses

– Questions to own witnesses is direct examination.– Lawyer only asks questions with helpful answers.

• Defendant Questions Witnesses– Questions to opposing witnesses is cross

examination.– Again, lawyer asks questions with helpful answers.

• Defendant Moves for Directed Verdict– This is asking the judge to decide that the plaintiff has

no case worth proceeding with.


The Defendant’s Case• Opening Arguments

– Defendant’s opening arguments were presented earlier, before the plaintiff presented its case.

• Defendant Calls Witnesses– Questions to own witnesses is direct examination.– Lawyer only asks questions with helpful answers.

• Plaintiff Questions Witnesses– Questions to opposing witnesses is cross

examination.– Again, lawyer asks questions with helpful answers.

• Closing Arguments– Brief summary, by both sides, urging the jury to

believe their side of the case.


Jury InstructionsThe judge instructs the jury to evaluate the case solely on

the facts of the evidence presented.If the case is influenced by a certain legal presumption,

the judge will summarize that for the jury.Deliberation and Verdict

The jury discusses the case for as long as needed (anywhere from less than an hour to several weeks).

Sometimes the jury must be unanimous; other times only a majority (at least 7) or a 10-2 vote is required.

After Both Sides Rest (Finish)After Both Sides Rest (Finish)


Motions after the VerdictThe loser might request a judgment n.o.v., asking the judge

to overturn the verdict on a legal technicality or on a claim that the jury ignored the evidence.

If the judgment n.o.v. is denied, the losing side may request a new trial, on the same claims.

AppealThe recourse for the loser is to file an appeal, a request for a

higher court to examine the facts.The appeals court may affirm the verdict, modify the award,

reverse and remand (send it back to trial) or simply reverse (overturn) the lower court’s verdict.

SettlementAt any point, either side may offer to settle the case, even

between the verdict and the beginning of an appeal.

The Trial is Over… or is it?The Trial is Over… or is it?


Trials/Litigation in U.S.

Trial Terminology:

Plaintiff Defendant

Complaint Answer Reply

• Motion to dismiss

Discovery

Trial

• Summary Judgment

• Motion for directed verdict

Verdict Judgment Appeal

business law, leb 323, 320f

Documents

terry minetos

defendants answerexample

defendants counterclaims

defendants complaint2

defendants property

defendants complaint

resident of clinchfield

state of midlands