LAW, BUSINESS, &

SOCIETY
11th
Edition

McGraw-Hill

2015 by McGraw-Hill Education. This is proprietary material solely for authorized instructor use. Not
authorized for sale or distribution in any manner. This document may not be copied, scanned, duplicated,
forwarded, distributed, or posted on a website, in whole or part.

Learning Objectives

Describe the importance of law to

private enterprise
Compare and contrast the objectives of
law in society
Differentiate the elements of a case
brief
Distinguish between substantive and
procedural law

4-2

Learning Objectives
Differentiate constitutional law, case law,
and statutory law
Compare and contrast civil and criminal
law
Describe the elements of the basic court
system structure
Explain the purposes of subject matter
and personal jurisdiction as requirements
for a courts power to hear a dispute

4-3

Learning Objectives

Describe the typical steps in the civil

trial process
Distinguish trials and appeals
Identify dispute resolution alternatives
to trials

4-4

Objectives of Law

Maintain order
Resolve conflict
Preserve dominant values
Guaranteeing freedom
Achieve and preserve justice with the
help of an honorable, efficient
government

4-5

Constitution
s

Statutes

Regulations

Common
law

4-6

Elements of a Case Brief

Parties
Identify plaintiff and defendant at trial level
Identify appellant and appellee at the

appeals level

Facts
Summarize facts critical to the outcome of

the case

Procedure
Method in which the case reached the court
Identify who won in the lower court(s)
4-7

Elements of a Case Brief

Issue
Note the central question(s) on which the

case turns

Holding
How did the court resolve the issue(s)?
Who won?

Reasoning
Explain the logic that supported the courts

decision
4-8

Case: Case Law

Case
Nichols v. Niesen
746 N.W.2d 220 (Wisc. S. Ct. 2008)
Court of appeals

Issue
Whether a claim for common-law

negligence should be permitted against

social hosts under certain circumstances

4-9

Classifications of Law

Substantive laws
Create, define, and regulate legal rights

and obligations
Example - Civil Rights Act, 1964

Procedural law
Embraces the systems and methods

available to enforce the rights specified in

substantive law

4-10

Classifications of Law

Law and equity

Courts of law and courts of equity
Practiced in England, adopted by the United
States
Actions at law and equity are heard in the

same court today

4-11

Classifications of Law

Public law
Deals with relationship between

government and the citizens

Consists of constitutional, criminal, and
administrative law

Private law
Regulates the legal relationship among

individuals
Contracts, agency, and commercial paper
4-12

Classifications of Law

Civil law
Addresses the legal rights and duties

arising among individuals, organizations,

and governments

Criminal law
Involves wrongs against the general

welfare as formulated in specific criminal

statutes

4-13

Classifications of Law

Crimes
Felonies
Murder, rape, and robbery
Misdemeanors
Petty theft, disorderly conduct, and traffic
offenses
Treason - Special situation in which one:
Levies war against the United States
Gives aid and comfort to its enemies
4-14

Crime

Elements
Wrongful act or omission (actus reus)
Evil intent (mens rea)

Criminal procedure
Misdemeanor cases
Filing of information - Formal expression of
the charges filed by prosecutors
Felony cases
Prosecutors file information or seek
indictment
4-15

Crime
Individual is brought before the court for

arraignment
Person goes to trial if he or she pleads not
guilty
Guilt must be established beyond a
reasonable doubt

Defendant can:
Seek a new trial or appeal errors in the
prosecution if found guilty
Invoke doctrine of double jeopardy if found
innocent
4-16

Figure 4.1 - State and Federal

Court Systems

4-17

Federal Court System

District courts
Congress established at least one district

court for each state and territory

Hear witnesses, and resolve questions of
law and fact

4-18

Federal Court System

Courts of appeals
Hear appeals from district courts within its

circuit
Review decisions and enforce orders of
federal administrative agencies
Hears all patent appeals and all appeals
from the U.S. Court of Federal Claims

4-19

Federal Court System

Supreme Court
Consists of nine justices
Reviews lower court decisions
Parties seeking review must petition for a
writ of certiorari

Criticism
Supreme Court is accused of being friendly

to business interests and free market

values
4-20

Federal Court System

Ideological rulings
Americans believe that Supreme Court

decisions are influenced by political views

Declining respect for Supreme Court
rulings undermine rule of law and threaten
democracy

4-21

Jurisdiction

A court with the necessary power and

authority to hear a dispute
Subject-matter jurisdiction
Personal jurisdiction

4-22

Subject-Matter Jurisdiction

Imposes limits on the classes of cases a

court may hear
Federal question jurisdiction
Plaintiffs claim should be based on the U.S.
Constitution, treaty, or federal statute
Federal and state courts have concurrent

jurisdiction for some federal questions

Diversity jurisdiction
Federal district courts hear cases involving
more than $75,000 where plaintiff and
defendant are citizens of different states
4-23

Personal Jurisdiction

Judicial authority over a person

Ways to establish state court jurisdiction
Resident of the state may be served a

summons
Personally serve a summons for a non resident
when he or she is physically present in a state
Long-arm statutes

State courts can acquire jurisdiction via in

rem action
4-24

Case: Personal Jurisdiction

Case
Arnold Schwarzenegger v. Fred Martin

Motor Company
374 F. 3d 797 (9th Cir. 2004)
Federal district court

Issue
Schwarzenegger brought suit in California
Alleged that the unauthorized use of his
image by Fred Martin infringed his right of
publicity
4-25

Venue

Case hearings will be held by the court

geographically closest to:
The incident or property in question
Where the parties reside

Parties seek a change of venue based

on:
Unfavorable pretrial publicity
Pursuit of a favorable legal climate

4-26

Standing to Sue

A person must show that her or his

interest in the outcome of the
controversy is direct and substantial as
to justify the courts consideration

4-27

Case: Standing to Sue

Case
Mayer v. Bill Belichick
605 F. 3d 223 (3d Cir. 2010); Cert. Den.

2011 U.S. LEXIS 2027

Federal district court

Issue
Mayer sued Patriots and their coach, Bill

Belichick for videotaping New York Jets

sideline signals, in violation of NFL rules
4-28

Class Actions

Multiple plaintiffs join together to

represent themselves and others
similarly situated
File a single lawsuit alleging similar harm

arising from the same

Enhances judicial efficiency

4-29

Figure 4.2 - Stages of a

Lawsuit

4-30

Pleadings

Documents by which each party sets

his or her initial case before the court
Complaint - Pleading filed by plaintiff
Summons is issued, directing the

defendant to appear in court

Options available to defendant

Failure to respond results in a default

judgment in favor of the plaintiff

Demurrer or motion to dismiss can be filed
4-31

Pleadings

Answer - Pleading filed by the

defendant
Concedes the validity of the plaintiffs

position
Affirmative defense - Statute of frauds that
bars the plaintiffs claim

Includes a counterclaim or cross-claim

Reply - Response from the plaintiff

4-32

Motions

Parties can clarify a pleading or strike a

portion deemed unnecessary
Motion for a judgment on the pleadings
Parties ask the judge to reach a decision

based on the information in the pleadings

Motion for summary judgment

Party that filed the motion claims that no

facts are in dispute

4-33

Discovery

Information-gathering stage
Clarifies trial issues, promotes pretrial

settlements, and prevents surprises at the trial

Consists of:
Depositions
Physical and mental examinations
Interrogatories
Requests for access to documents and

property
Admissions
4-34

Pretrial Conference

Designed to plan the course of the trial

in the interests of efficiency and justice
Participants seek to define the issues
and settle the dispute in advance

4-35

Judge and Jury

Case tried before a judge

Judge hears the case and decides all

questions of law and fact

Case tried before a jury

Body resolves questions of fact
Judge resolves questions of law

Jurors are selected from a jury pool

Voir dire - Questioning process
Determines if any individual in the panel is
prejudiced about the case
4-36

Case: Jury

Case
Minichiello v. Supper Club
296 A.D.2d 350 (S. Ct. N.Y., App. Div., 1st

Dept. 2002)
Trial court

Issue
Plaintiff presented inappropriate matters to

the jury which made the trial court err and

resulted in a meaningless judgment
4-37

Trial

Begins with statements by the attorneys

Exhibits - Evidence presented by the plaintiff
Direct examination - Plaintiffs attorney

secures testimony from his or her witnesses

Cross-examination - Defense attorney
questions the witness

Parties may offer rebuttal evidence, and

move for a directed verdict
Verdict of the jury is rendered, and judgment

is entered by the court

4-38

Case: Expert Testimony

Case
Nickles v. Schild
617 N.W.2d 659 (S. D. S. Ct. 2000)
Trial court

Issue
Larry Nickles, the guardian of Mark Nickles,

appeals the trial courts admission of

expert testimony

4-39

Post-Trial Motions and

Appeals

Post-trial motions
Parties may move for a new trial
Losing party may seek a judgment

notwithstanding the verdict

Appeals
Decision may be appealed to a higher court
The appeals court decides based on the

trial record, materials filed, and oral

arguments
4-40

Criticism

Excessive, unproductive litigation

Attorneys pursue lawsuits for big dollars and

not for seeking justice

People need fewer lawsuits, fewer rules,

and greater personal responsibility
Majority believe that lawsuit abuse is a

problem

Corporate perspective
The legal system facilitates and stabilizes

commercial practice

Source of expense and frustration

4-41

Litigation as a Last Resort

Americans expect lawyers and courts to:

Settle disputes
Preserve freedom and justice
Correct problems

Laws and lawyers are central to

economic efficiency
Fewer trials
Number of civil trials has decreased by more

than 50 percent in the recent years

4-42

Reform: Judicial Efficiency

Small businesses are buying legal

insurance or prepaid legal services
Cities have adopted new adjudication
approaches
Example - Business courts that only hear

commercial claims

Small claims courts - Resolve minor

disputes
4-43

Alternative Dispute
Resolution (ADR)

Any form of negotiation and settlement

which is an alternative to litigation
Mediation
Parties devise own solution, with a neutral

third party as a facilitator

Arbitration
Neutral third party is given the power to

determine a binding resolution of the

dispute

4-44

Alternative Dispute
Resolution (ADR)

Private trials
Third party makes necessary arrangements,

hiring a retired judge and jurors

Proceedings are conducted similar to a
courtroom

Mini-trials
Presided by a neutral third party
Each organization presents its version of

the case to a panel of senior executives

Voluntary and nonbinding

4-45

ADR Assessed

Frequently required dispute-resolution

mechanism for employee complaints
Low cost and quick resolution
Less formal and less adversarial
Parties have more control over the
proceedings
Limitation - Arbitration is less
functional for consumers
4-46

Case: Arbitration

Case
Lhotka v. Geographic Expeditions
181 Cal. App. 4th 816 (2010)
Trial court

Issue
GeoEx appeals from an order denying its

motion to compel arbitration of a wrongful

death action brought by the survivors of
Mount Kilimanjaro hiking expedition
4-47