Fill This Form To Receive Instant Help

Help in Homework
trustpilot ratings
google ratings


Homework answers / question archive / CHAPTER 4 What exactly is the litigation process [what happens in a lawsuit]? Lawyers must decide whether or not a particular state or federal court has jurisdiction over a dispute

CHAPTER 4 What exactly is the litigation process [what happens in a lawsuit]? Lawyers must decide whether or not a particular state or federal court has jurisdiction over a dispute

Law

CHAPTER 4

What exactly is the litigation process [what happens in a lawsuit]?

Lawyers must decide whether or not a particular state or federal court has jurisdiction over a dispute. What district or county court or Federal court is the correct place to file? Is the plaintiff the right person to sue? Do they have 'standing'?

Cases usually begin with the filing of a Complaint and then the service of a Summons notifying the Defendant that they have a limited period of time to respond to the the court and the Plaintiff. A Defendant will typically file an Answer and may also seek dismissal of the lawsuit on procedural or other grounds. Trials typically occur after a period of many months during which time the parties seek and exchange information including statements of witnesses and relevant documents or other evidence. If a case cannot be resolved the court will schedule a trial. At the trial pre-trial orders and rules of evidence strictly control what may be said by a witness or entered into evidence to be considered by a judge or a jury.

ALTERNATE DISPUTE RESOLUTION

Litigation is both time consuming and expensive. Is there a better way? There are a number of options for parties who seek to augment or avoid litigation altogether. The catch? The parties must agree. Alternative dispute resolution in order to be binding upon the parties must agree to substitute an alternative process foregoing their right to a trial before a judge or a jury. If most people were able to compromise and agree they probably would have already resolved their differences. Sometimes a judge will encourage the parties to seek alternatives. I had a case where the parties resolved their case through professional private mediation after a trial but before the court issued a decision!

 

  • Post to Discussion Board one (1) webliography assignment from Chapters 3 and 4. Select your own questions from the "Review Questions and Problems" at the end of each chapter.
  • Post to Discussion Board one (1) answer to a "Business Discussion" question listed at the end of Chapters 3 and 4..

 

 

Case Briefing and Legal Study Tips

To gain the most from this textbook, you should learn how to study written material effectively. You can achieve effective study through use of the SQ3R method, a method widely taught by study-skills psychologists for learning textual material.

SQ3R stands for survey, question, read, recite, and review. As a study method, it has dramatically improved the grade-point averages of most students who have practiced it. It is based upon the concept that active study of written material improves memory and comprehension of information far better than passive reading. Unfortunately, many students have not recognized the difference between active study and mere passive reading.

Students often read a textbook chapter exactly as they would read a novel or a magazine article. They begin with the first sentence of the chapter and read straight through the material, pausing only to under- line occasionally. This way of reading may be suitable for a novel, but it is quite inappropriate for a textbook. Psychologists insist that an active study method must begin with a survey of the material to be read. If you plan to spend two hours studying a 30-page chapter, take three to five minutes in the beginning and survey the chapter. First, read the bold-type section headings (each chapter of this book is divided into numbered sections). Second, read a sentence or two from the text of each section. The purpose of this survey is to famil- iarize you with the topics covered in the chapter. Fight the tendency to stop your surveying process in order to comprehend all of the concepts you are surveying. Comprehension is not the goal of surveying.

Following the survey of all the sections, go back to the beginning of the chapter: Ask yourself a question before reading each section. Ask it aloud, if possible, but silently if circumstances demand. The important thing is actually to “talk to yourself.” Normally, each section heading can easily be turned into a question. If the section heading reads Stare Decisis, ask yourself the question, “What does stare decisis mean?”

Only after asking a question are you finally ready to read a chapter section. In reading keep your ques- tion in mind. By so doing you will be reading for a purpose: To discover the answer to your question.

Upon finishing each section, stop and recite the answer to your question. As an example, at the end of the section on stare decisis say to yourself, “Stare

decisis refers to the legal tradition that a judge in a given case will follow the precedent established in similar cases decided by courts in the jurisdiction.” According to psychologists, to recite this way greatly aids memory. Recitation also lets you know whether or not you have understood the material just read.

The last step of the SQ3R method is review. When devoting two hours to the study of a chapter, take the final 15 minutes of the time to review the material. Review the questions taken from the headings of each chapter section and recite the answers to them, reread- ing material if necessary to answer accurately.

A CASE BRIEFING SYSTEM

Although the SQ3R method may be used effectively to study any subject, the case briefing system is uniquely designed to aid in the study of court decisions. In study- ing law, students frequently write up case briefs of each decision they read. Whether you are required to write up every decision is up to your individual instructor. However, the case briefing system provides an excel- lent framework for comprehending complicated judi- cial reasoning processes, and you should brief cases whether required to do so or not.

To avoid getting lost in a maze of judicial ter- minology, you should ask yourself a standard set of questions about each case decision and read to dis- cover the answers to these questions. These standard questions lie at the heart of the case briefing system. They are as follows:

1. Who is the plaintiff and who is the defendant? 2. What are the facts of the case? (Who did what to

whom? What is the behavior complained of?) 3. Did the plaintiff or the defendant win in the lower court(s), and which party is appealing? (All decisions in this textbook come from appellate

courts.) 4. What was the legal issue or issues appealed? 5. Does the plaintiff or the defendant win on the

appeal? 6. What rules of law and reasoning does the appel-

late court use in deciding the issue?

Here is an illustration of a written case brief. It is a brief of the first case in the textbook, which you can find in Chapter 3 Case 3.1. Before looking at the brief, you should now read that case. An important part of law requires you to learn new vocabulary. To under- stand the case you read, you need to know several new

711

page764image34633984

712 Appendix I

terms. You can find the terms in the glossary of this textbook, but to make it easier, we will define several new terms for you:

appellant The losing party at the district court level. appellee The prevailing party in the district court who is responding to the appellant. appeal To ask a higher court to decide whether an inferior court (e.g., trial court) made a legal mis- take in its decision; also to ask a higher court to review (decide) the case.

dissent To disagree with both the result and the legal reasoning of the majority opinion. opinion The court’s decision in a case. petitioner The losing party in the court of appeals who asks (i.e., “petitions”) the Supreme Court to decide whether the lower court made a mistake. respondent The prevailing party in the court of appeals who is responding to the petitioner. reversed What an appeals court says when it dis- agrees with the court beneath it. If it agrees with the lower court, it says “affirmed.”

CASE BRIEF

National Federation of Independent Business v. Sebel- ius, 567 U.S. __, 132 S. Ct. 2566 (2012) How do i read this citation?

· “National Federation of Independent Business” refers to the petitioner.

· “v” means versus or against.

· “Sebelius” refers to the respondent.

· 567 is the volume number of the official U.S.

Supreme Court Reporter, and __ refers to the page number where the case begins (once it is assigned a page number). The date, 2012, is the year when the case was decided.

Facts Twenty-six states, several individuals, and the National Federation of Independent Business (plaintiffs) brought this action against the federal Health and Human Services, Treasury, and Labor departments and their Secretaries (defendants), in fed- eral district court, challenging the constitutionality of two aspects of the Affordable Care Act: the individual mandate and the expansion to Medicaid.

Procedural History This case was brought in the U.S. District Court for the Northern District of Florida. The District Court granted summary judgment to the defendants on the claim that the

Affordable Care Act’s expansion of Medicaid was unconstitutional. Because the court concluded that the individual mandate provision exceeded congressional authority and was not severable, it declared the entire Affordable Care Act invalid.

On appeal to the Eleventh Circuit, the circuit judges agreed that the individual mandate was uncon- stitutional, affirmed as to the constitutionality of the Medicaid expansion, but reversed the determination about severability.

The case was then appealed to the U.S. Supreme Court.

Issues Appealed The key issues on appeal were:

1. Whether the individual mandate, imposing a min- imum essential coverage requirement, is within Congress’s power under the Commerce Clause of the U.S. Constitution.

2. Whether the provision giving the federal govern- ment the authority to penalize states that chose not to participate in the expansion of the Medic- aid program exceeded Congress’s power under the Spending Clause.

Who Wins and Why?

1. Although the Supreme Court found that the indi- vidual mandate exceeded Congress’s power under the Commerce Clause, it was upheld as a “tax” pursuant to Congress’s taxing powers.

2. The statutory provision giving the federal govern- ment the authority to penalize states that chose not to participate in the expansion of Medicaid exceeded Congress’s authority under the Spending Clause.

What Does This Mean? Overall, this case was seen as a victory for the proponents of the Affordable Care Act. The individual mandate requir- ing nonexempt individuals to purchase and maintain minimum essential health care coverage was upheld. Although the Supreme Court found that the statutory provision giving the federal government the authority to penalize states that chose not to participate in the expansion of the Medicaid program exceeded Con- gress’s authority, it also held that this penalization provision was severable. As such, only the provision is unenforceable. In all other respects, the Afford- able Care Act was left intact. Although the law and its implementation continue to face challenges, health care exchanges opened in the fall of 2013 to facilitate the purchase of health insurance in every state.

Purchase A New Answer

Custom new solution created by our subject matter experts

GET A QUOTE