Exam 1 Review

Topics: Jury, First Amendment to the United States Constitution, Appeal Pages: 6 (1447 words) Published: February 7, 2013
1. Equal Protection Clause
a. A clause which provides that a state cannot “deny to any person within its jurisdiction the equal protection of the laws”
b. Prohibits state, local, and federal governments from enacting laws that classify and treat “similarly situated” persons differently
c. Standards of Review

2. Types of Alternative Dispute Resolution (ADR)
a. Negotiation
i. A procedure whereby the parties to a dispute engage in discussions and bargaining to try to reach a voluntary settlement of their dispute ii. A settlement agreement is drafted that contains the terms of the agreement b. Arbitration

i. A form of ADR in which the parties choose an impartial third party to hear and decide the dispute
ii. Federal Arbitration Act: A federal statute that provides for the enforcement of most arbitration agreements
iii. Binding arbitration – Parties agree in advance to be bound by the arbitrator’s decision and remedy
iv. Nonbinding arbitration – The decision and award of the arbitrator can be appealed to the courts
c. Mediation
i. A form of alternative dispute resolution in which the parties use a mediator to propose a settlement of their dispute
ii. If the parties agree to a settlement, a settlement agreement is drafted that expresses their agreement
iii. If an agreement is not reached, the parties may proceed to a judicial resolution of their case

d. Minitrial
i. A voluntary private proceeding in which lawyers for each side present a shortened version of their case to the representatives of both sides ii. Fact-finding
iii. The parties to a dispute employ a neutral third party to act as a fact-finder to investigate the dispute
e. Judicial Referee
i. The court appoints a judicial referee to conduct a private trial and render a judgment
ii. Referees have most of the same powers as trial judges
iii. Referees’ decisions stand as judgments of the court
3. Litigation Process
a. Pretrial Litigation Process
i. Pleadings
1. The paperwork that is filed with the court to initiate and respond to a lawsuit
2. Plaintiff: The party who files a complaint
3. Summons: A court order that directs the defendant to appear in court and answer the complaint

ii. Discovery
1. A legal process during which both parties engage in various activities to discover facts of the case from the other party and from witnesses prior to trial
2. Major forms of discovery
3. Depositions
4. Interrogatories
5. Production of documents
6. Physical and mental examinations

iii. Pretrial Motion
1. A motion a party can make to try to dispose of all or part of a lawsuit prior to trial
2. Motion for judgment on the pleadings: A motion that alleges that if all the facts presented in the pleadings are taken as true
3. The party making the motion would win the lawsuit when the proper law is applied to these asserted facts
iv. Settlement Conference
1. A hearing before a trial in order to facilitate the settlement of a case 2. If there is no settlement
3. The pretrial hearing is used to identify major issues
b. Trial Process
i. Jury Selection
1. Voir dire: The process whereby the judge and attorneys ask prospective jurors questions to determine whether they would be biased in their decisions
2. After selection, the jury is impaneled to hear the case
3. Alternative jurors are usually also selected
4. A jury can be sequestered in important cases
ii. Opening Statements
1. An attorney from each party
a. Summarizes the main factual and legal issues of the case
b. Describes why the client’s position is valid
2. The plaintiff’s case
a. Plaintiff bears the burden of proof
b. Direct examination – plaintiff’s attorney examines the witness c. Cross-examination – defendant’s attorney can question the witness
i. Re-direct examination
iii. The Defendant’s Case
1. The defendant’s case must
a. Rebut the plaintiff’s evidence
b. Prove any affirmative defenses asserted by the defendant
c. Prove any allegations contained in the...
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