Basis of Tort Law
Basis of Tort Law
Court systems developed around the common law concept of “due process” which requires adequate notice and a fair and impartial hearing.
For example: All federal trials are governed by the Federal Rules of Civil Procedure and Federal Rules of Evidence.
Generally, the first step in litigation is contacting any attorney to seek qualified legal advice.
Court acquires jurisdiction over subject matter and Plaintiff.
Defendant served with Complaint and Summons.
Court acquires Personal Jurisdiction over Defendant (person or corporation).
Corporate Defendants served via Registered Agent. If the Defendant is out-of state, Court can acquire jurisdiction by “long-arm” statutes.
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.
Defenses in which the defendant essentially claims that even if all of the plaintiff’s allegations are true, the plaintiff cannot win because there is a more powerful law on the defendant’s side that will allow the defendant to win.
Fraud is an example of an affirmative defense that might be asserted in a breach of contract case.
Burden of proof is on the Defendant to show fraud actually took place.
A counterclaim is a lawsuit filed by the Defendant against the Plaintiff, in response to the original complaint. A cross-claim is against a co-Plaintiff or co-Defendant.
Defendant can move the Court to dismiss the Action for various reasons, such as:
Discovery is the process by which parties obtain information from the opposing party prior to trial.
Trial is fundamentally an evidence presentation and authentication procedure. To prevail in a civil trial, Plaintiff must introduce a preponderance of competent evidence with respect to each disputed allegation in order to prove it.
The Defendant will “object” to Plaintiff’s evidence and the judge will rule on each objection. If the judge “overrules” the objection, the evidence is admitted for the jury to consider. If the judge “sustains” the objection, the evidence is not admitted into the trial.
Admissibility of evidence decided by judge. Parties object to admission of evidence and judge decides, as a matter of law, whether evidence may be admitted into the trial.
Party may impeach the testimony or credibility of opposing witness by showing prior inconsistent statements and/or Perjury. Defendant’s Case.
Burden of proof is “beyond a reasonable doubt” and the verdict (for guilty or acquittal) must be unanimous. If not, mistrial/hung jury.
Generally, burden of proof is by “preponderance” of the evidence and a majority of jurors must agree on verdict. If not, then mistrial/ hung jury.
Judgment is the Court’s acceptance and recording of the jury’s verdict.
Once the trial is concluded, a dissatisfied party may: File a Motion for a New Trial.
Case 3.3: LeBlanc v. American Honda Motor Co (1997).
Ask that the judge enter a judgment contrary to the verdict (JNOV) rendered by the jury.
A party may appeal the jury’s verdict or any legal issue, motion or court ruling during the trial.
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.
Appeals court can affirm (agree with) or reverse (disagree with) the lower court’s decision.
Once a judgment becomes final (i.e., subject to no further judicial review) the defendant is legally required to comply with its terms.
Defendants who will not voluntarily comply with a judgment can be compelled to do so by seizure and sale of the Defendant’s assets.
Letter from the Birmingham Jail April 16, 1963.
There are two types of laws: just and unjust laws.
Jurisprudence that holds law is not simply a result of the written law, but a product of the views of judicial decision makers, as well as social, economic, and contextual influences.
American law is based largely on English Common Law which was based largely on traditions, social customs, rules, and cases developed over hundreds of years.
At common law, there were two separate court systems with two different types of remedies:
Today federal and state courts of general jurisdiction have consolidated remedies at law and remedies at equity.
Generally, the same court can fashion a remedy that includes both damages and equitable or injunctive relief.
In cases of “first impression” where there is no precedent, the court may refer to positive law, public policy, and widely held social values in order to craft the best new precedent.
Makes use of syllogism, a type of logical relationship involving a major premise and a minor premise.
Proceeds from point to point, with the final point being the conclusion.
Analysis that compares facts of present case with facts of similar previously-decided cases.
Common law today governs transactions not covered by:
Every type of law will be either: