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Open Posted By: highheaven1 Date: 21/10/2020 Graduate Research Paper Writing

 Short essays of 150 words

Question I- Eddie Embezzler has worked for Betty Boss for many years as an accountant. During his employment, Eddie has taken thousands of dollars from Betty’s business. As a result, Betty has suffered. Did Eddie violate a criminal law, a civil law, or both? Explain.

Question II - Two (2) high ranking managers of Anrun Corp. know that the company’s revenue is rapidly declining. However, at a recent shareholder meeting, they tell the shareholders to expect record profits in the next quarter. Explain the three Blanchard and Peale questions that these two managers should have asked themselves before the shareholders’ meeting.

Question III - The appellate court decides that the trial court committed reversible error by including evidence found by law enforcement.  Law enforcement discovered this evidence when committing a Fourth Amendment violation, which should have been excluded at trial.  This inadmissible evidence was the lynchpin of the prosecutor’s case, which resulted in a conviction.  Where does the case go from here? Is the Defendant free to go? Does it go back to the trial court? Does it go all the way up to the Supreme Court?

Questions IV - During the course of a divorce proceeding, the judge orders the husband and wife attempt to settle their custody dispute through the mediation process.  During the course of the mediation, the husband tells the mediator that he has secretly been selling marijuana to their children’s friends.  Ultimately, the mediation breaks down and the parties cannot come to a settlement.  During the divorce trial, can the wife introduce the mediator’s testimony as evidence?

Category: Engineering & Sciences Subjects: Engineering Deadline: 12 Hours Budget: $120 - $180 Pages: 2-3 Pages (Short Assignment)

Attachment 1

Chapter 3 The Judicial System

Its Legal, Ethical, and Global Environment

Marianne M. Jennings

Business

11th Ed.

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Trial Courts

Place where case begins

Jury hears cases and decides disputed issues of fact

Single judge presides over case

Appellate Courts

Review actions of trial court

Usually have published opinions for uniformity and consistency

No trials held – panel of judges hears case

Types of Courts

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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How Courts Make Decisions

Process of Judicial Review (Appellate)

Determine whether error was made

Transcript is reviewed

All other evidence is reviewed

Parties submit written briefs to summarize the evidence and issues

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Process of Judicial Review (Appellate)

Oral arguments may be made before panel of judges

Generally three judges, but at U.S. Supreme Court level it is nine

En banc : full bench hears case

Judges vote on whether there is reversible error

Error that might have affected the outcome

How Courts Make Decisions

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Process of Judicial Review (Appellate)

Possible actions of reviewing court

Affirm—no reversible error and decision stands

Reverse—reversible error and decision is reversed

Remand—error that requires further proceedings

Modify—change ruling of lower court

Statutory interpretation

Courts at appellate level can review statutory application

Can determine scope of statute

How Courts Make Decisions

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Consider 3.2

The Porch/Stoop and the Law Student

Is visible drinking on private property covered by a statute that prohibits public drinking?

Consider the implications – how far would the statute go – if you could see through an open window or open door that someone was drinking?

Intent of statute

Exceptions for neighborhood parties

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Process of Judicial Review

Judicial review and case precedent—the doctrine of stare decisis

Courts will follow previous decisions for consistency

Previous decisions are called precedent

How Courts Make Decisions

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Process of Judicial Review

Interpreting precedent

The rule of law in the case is the precedent

Dicta is not the precedent

Dicta is the discussion of the relevant law

Exceptions to stare decisis—when precedent may not be followed

Cases are factually distinguishable

Precedent is from another jurisdiction

Technology changes

Sociological, moral, or economic changes

How Courts Make Decisions

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Plaintiffs

Initiate the lawsuit

Called petitioners in some cases

Defendants

Alleged to have violated some right of the plaintiff

Party named in the suit for recovery

Parties in the Judicial System

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Lawyers

Those who act as advocates for plaintiffs and defendants

Have fiduciary relationship with clients

Represent client and see that procedures are followed

Privilege exists with client

Must keep what client tells them confidential

Exception is advance notice of crime to be committed

Parties in the Judicial System

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Parties in the Judicial System

(This information is beyond what is in the text)

Plaintiffs – originate suite Represented

Defendants – party from whom plaintiff seeks recovery By Lawyers

INTERNATIONAL LAWYERS

Avocati

Italy Procuratori

Advocate – High Courts

Quebec/France Notaire – Real Property Transactions

Juridique – Legal Counselor

Japan Bengoshi

Great Britain/ Solicitors – Advice, Documents

Canada Barristers – Higher Courts

Rechtsanwalt – Litigator

Germany Rechtsbeistand - Advice

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Judges

Can control proceedings or outcomes

Can be elected or appointed

Trial or Appellate

Trial Judge presides over trial

Appellate Judge hears appeal from trial court

Parties in the Judicial System

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Name Changes for Parties on Appeal

Appellant or Petitioner: Party appealing the lower court’s decision

Appellee or Respondent: Party who won below and is not appealing

Some states reverse the name of the case on appeal; example: Smith v. Jones − trial court, Jones loses and appeals; Jones v. Smith − appellate court

Parties in the Judicial System

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Jurisdiction is the Authority of a Court to Hear a Case

Types of Jurisdiction

Subject matter jurisdiction is jurisdiction over the subject matter of the case

In personam jurisdiction is jurisdiction over the parties in a case

Jurisdiction

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Federal Court System

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Federal District Court

General trial court of the federal system

Subject matter jurisdiction

When U.S. is a party

Federal question

Diversity of citizenship

Federal Court System

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Federal Court System

Limited Jurisdiction

One issue that arises is what law will be applied to the case

Federal courts apply state law, they do not make up a new system of federal common law

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Federal Court System

Specialized Courts − Courts of Limited Original Jurisdiction

Tax court

Bankruptcy court

Claims Court

Judge Advocate General (military courts)

Courts for other agencies

Court of International Trade

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Structure

There are ninety-four federal districts

Each state is at least one federal district and Puerto Rico and DC are also federal districts (94 federal district courts)

Virgin Islands, Guam, and Northern Mariana islands also have a federal court

Number of districts per state is determined by population and case load

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©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Federal Court System

Federal District Court Opinions

Opinions are reported in the Federal Supplement

Cite: F.Supp. (F.Supp.2d.)

Example: Sansotta v. Town of Nags Head, 97 F. Supp. 3d 713 (E.D.N.C. 2014)

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Federal Court System

Court of Appeals

Formerly known as U.S. Circuit Court of Appeals

Thirteen federal circuits

Generally a panel of three judges reviews appeals from Federal District Court

Opinions found in Federal Reporter

Cite: F., F.2d or F.3d.

Little Sisters of the Poor Home for the Aged, Denver v. Burwell, 794 F.3d 1151 (10th Cir. 2010)

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Federal Court System

Supreme Court

Must decide to review cases

Issues writs of certiorari on those cases they will review-determined by the rule of four

Has original jurisdiction for

Disputes between and/or among states

Charges of espionage or ambassadors and foreign consuls

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Federal Court System

Supreme Court

Nine judges with lifetime appointments

Opinions reported in:

United States Reports—official reports

Citizens United v Federal Election Com’n, 558 U.S. 310 (2010), 130 S.Ct. 876 (2010), 175 L.Ed.2d 753 (2010)

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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State Court Systems

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State Court Systems

General Trial Court

Usually called superior, circuit, district, or county court

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State Court Systems

Lesser Courts

Small claims: Lesser damage claims, no Lawyer

Justice of the Peace courts

Smaller damage claims

Lawyers permitted to appear

Traffic courts: For citations

Probate courts: For wills, guardianships, conservatorships, etc.

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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State Appellate Courts

Courts of Appeal or State Appellate Courts and State Supreme Courts

Opinions reported in regional reporters

Example: Pacific Reporter, P. , P.2d., P.3d

Example: Hoag v. French, 357 P. 3d 153 (Ariz. App. 2015)

Opinions also reported in state reporters

Example: DirectTV v. Imburgia, 170 Cal. Rptr. 3d (Cal. 2014)

Wyman v. Ayer Properties, 11 N.E.2d 1074 (Mass. 2014)

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Regional Reporter State Groupings

Pacific (P. or P.2d)

Alaska

Arizona

(California)

Colorado

Hawaii

Idaho

Kansas

Montana

Nevada

New Mexico

Oklahoma

Oregon

Utah

Washington

Wyoming

Northwestern (N.W. or N.W.2d)

Iowa

Michigan

Minnesota

Nebraska

North Dakota

South Dakota

Wisconsin

Southwestern (S.W. or S.W.2d)

Arkansas

Kentucky

Missouri

Tennessee

Texas

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Regional Reporter State Groupings

Northeastern (N.E. or N.E. 2d)

Illinois

Indiana

Massachusetts

(New York)

Ohio

Atlantic (A. or 2d)

Connecticut

Delaware

District of Columbia

Maine

Maryland

New Hampshire

New Jersey

Pennsylvania

Rhode Island

Vermont

Southeastern (S.E. or S.E.2d)

Georgia

North Carolina

South Carolina

Virginia

West Virginia

Southern (So. or So.2d)

Alabama

Florida

Louisiana

Mississippi

Note: California and New York each has its own reporter system. Source: The national reporter system was developed by West Publishing Company. Reprinted with permission of West Publishing Company.

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Sample Page of a National Reporter Case

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State Court Systems

Venue

Location of court in the system within a jurisdiction

Venue in criminal cases can change from location of crime to another court if press coverage is excessive

Civil venue is often where defendant resides or where the cause of action occurred

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Personal Jurisdiction

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In Personam Jurisdiction

Means for Acquiring Jurisdiction

Property ownership in the state = in rem jurisdiction

Volunteer − parties agree to it

Presence in the state

Residence

Corporations incorporated or doing business in the state

Minimum contacts - constitutional standards of contact with a state (“Long-Arm” Statutes)

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Minimum Contacts and Long-Arm Statutes

Case 3.1 Hard Candy, LLC v. Hard Candy Fitness (2015)

How much of a presence did Hard Candy Fitness have in Florida? What about Florida deals?

What happens if the defendant is not required to come to Florida to defend the suit?

What are the implications if the company is not required to come and defend the lawsuit?

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The International Courts

International Court of Justice (ICJ)

Part of U.N.

Jurisdiction is contentious (parties must agree to submit)

EU Courts

Court of Justice of European Communities

European Court of Human Rights

Inter-American Court of Human Rights

Opinion Found in International Law Reports

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The International Courts

London’s Commercial Court

Site of many international arbitrations

Jurisdiction Issues in International Courts

Similar to in personam jurisdiction

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The International Courts

Conflicts of Law

Court systems vary

Tort recovery more liberal in U.S.

No contingency fees allowed elsewhere

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Attachment 2

Chapter 2 Business Ethics and Social Responsibility

Its Legal, Ethical, and Global Environment

Marianne M. Jennings

Business

11th Ed.

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Examples:

Underinflated football issue in the NFL

Turing increases drug price by 5000%

Uber’s billing policies

Definition: normative standards, generally accepted rules of conduct that govern society

What Is Ethics?

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What Is Ethics?

What is “fair”?

What if something “just doesn’t seem right” or “That’s just not fair”?

Discuss seeing two movies for the price of one

Disclosing your salary cut after the loan application is submitted

Telling the clerk you received too much change

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Normative Standards

Normative Standards

How we behave, on average

How we treat each other

Expectations on contracts beyond legal interpretation

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Normative Standards

Applying Standards of Ethical Reasoning to Business Dilemmas

Ethical standard is established

Individual ethical standards differ

Debate over sources of ethical standards

Evaluate ethical standards and conflicts as new data appear

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Normative Standards

There is no statute on cutting in line, but we do honor that normative standard

We refer to adultery as “cheating” because the normative standard is that such relationships breach the social norm

We refer to “cheating” on exams as well

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©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

Three Layers of Business Ethics

Basic values (honesty)

Notions of fairness (how we treat others)

Issues related to community and the environment

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Ethical Standards: Positive Law

Codified law is followed

However, there can still be issues with fairness, disclosure, etc. even though there is compliance with the law, as with the verdicts in the 2008 financial markets cases

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Ethical Standards: Natural Law and Ethics

Positive law is not the standard because some principles are inviolate

Slavery was wrong even though laws allowed it in the United States

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Ethical Standards: Moral Relativism

Ethics standard is based on the situation you are dealing with

Depending on pressures, you make a decision without regard to positive law or normative law standards

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Ethical Standards: Religion and Ethics

Tenets of faith are ethical standards

Even if the law allows you to disclaim liability for selling goods “as is,” the standards of religion might require them to do more

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Ethical Dilemmas

Categories of Ethical Dilemmas

Taking things that don’t belong to you

Saying things you know are not true

Giving or allowing false impressions

Buying influence or engaging in conflict of interest

Hiding or divulging information

Taking unfair advantage

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Ethical Dilemmas

Categories of Ethical Dilemmas

Committing acts of personal decadence

Perpetrating interpersonal abuse

Permitting organizational abuse

Violating rules

Condoning unethical actions

Balancing Ethical Dilemmas

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Analyzing Ethical Dilemmas

Make sure you have a grasp of all the available facts.

List any information you would like to have but don’t and what assumptions you would have to make, if any, in resolving the dilemma.

Take each person involved in the dilemma and list the concerns they face or might have on what to do about a product and its safety issue.

Develop a list of resolutions for the problem. Apply the various models for reaching this resolution.

Evaluate the resolutions for costs, legalities, and impact. Try to determine how each of the parties will react to and be affected by each of the resolutions you have proposed.

Make a recommendation for the actions that should be taken.

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Blanchard and Peale

Is it legal?

Is it balanced?

How does it make me feel?

The Front-Page-of-the-Newspaper Test

How would the story be reported?

Use an objective and informed reporter’s view

Resolution of Dilemmas

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Resolution of Dilemmas

Laura Nash and Perspective

How would I view the problem if I sat on the other side of the fence?

Am I able to discuss my decision with my family, friends, and those closest to me?

What am I trying to accomplish?

Will I feel as comfortable over the long term as I do today?

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Resolution of Dilemmas

The Wall Street Journal Model

Compliance: Are you violating any laws?

Contribution: What does this action contribute to my customers, shareholders, bondholders, employees, community, and suppliers?

Consequences: How will this action affect me, my company, my family, our employees, and our shareholders?

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Resolution of Dilemmas

Immanuel Kant’s Categorical Imperative

The Golden Rule

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Why We Fail to Reach Good Ethical Decisions

Rationalizations

“Everybody else does it”

“If we don’t do it, someone else will”

“That’s the way it has always been done”

“We’ll wait until the lawyers tell us it’s wrong”

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Rationalizations

“It doesn’t really hurt anyone”

“The system is unfair”

“I was just following orders”

“You think this is bad, you should have seen…”

“It’s a gray area”

Why We Fail to Reach Good Ethical Decisions

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Social Responsibility

Whom Should Shareholders Serve?

Policy question:

Best way to serve

Moral question: interest is if the

Whose interest should corporation is

corporation serve? responsive to:

Inherence Shareholders only Shareholders only

Enlightened Self-Interest Shareholders only Larger society

Invisible Hand Larger society Shareholders only

Social responsibility Larger society Larger society

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Inherence

Serve shareholders

Friedman view

Enlightened Self-Interest

Manager is responsible first to shareholders but serves them best by being responsible to larger society

Business value is enhanced if it is responsive to society needs

Social Responsibility

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Social Responsibility

Invisible Hand

Best for society to guide itself

The Social Responsibility School

Manager should serve larger society

Become involved in all types of political and social issues

Encourage managers to be involved

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Importance of Ethics

Ethics Resource Center Study

Firms with written codes of ethics did substantially better as an investment than the general Dow Jones Composite over a 30-year period

Executives feel ethical behavior strengthens a firm’s competitive edge

Johnson & Johnson recall of Tylenol earned it high respect and higher earnings in spite of cost as well as a type of immunity to scrutiny for decades

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Why Business Ethics?

Costs of Unethical Behavior

BP and the refinery explosion and pipeline rupture and Deepwater Horizon

Nestlé and the infant formula

Beech-Nut and the fake apple juice

GM, the Malibu design, and the litigation

GM and the engine switch case

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Why Business Ethics?

“The Tony Bennett Factor”

The Keys to Long-Term Survival

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Why Business Ethics?

Ethics as a Strategy

Impact on Reputation of Ethical Missteps

Reputation’s Impact on Market Price and Capitalization: Johns-Manville and asbestos

Reputational Capital and Its Importance

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Leadership and Ethics

Leadership and Ethics: Making Choices Before Liability

OPTIONS COST

W

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

Ethics as a Strategy

The Subprime Mortgage Market

Lucrative area

Questions about fairness and disclosure

With collapse of the mortgages, new regulations, economic setbacks, financial downturns in companies that pushed the envelope on subprime loans

Companies that pulled back from subprimes are now doing well

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The Tone at the Top

Sarbanes-Oxley Has Changed Corporate Governance, Reporting, and Operations

Creating an Ethical Culture

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Creating an Ethical Culture

Sarbanes-Oxley and Culture

Code of ethics

Training for employees

Means for anonymous reporting

Following up on employee reports

Reporting up the ladder

Action by the board in monitoring and following up

Self-reporting by company

Enforcement within company

High-ranking officer in charge

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Creating an Ethical Culture

The Ethical Culture

Leadership

By

Example

Company Policies and

Compensation Systems

Reward Ethical and

Moral Behavior

Ethics Codes

Ethics Training: Annual/Scenarios

Investigations/Enforcement/Feedback

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Developing an Ethics Stance

Setting parameters for personal and business behavior

Setting tone of tolerance or intolerance for behavior

Creating an Ethical Culture

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Creating an Ethical Culture

Your Ethics Stance:

The Embezzling Employee

Relativism ▪

▪ Why did she

Did she understand take the money?

embezzlement is

wrong?

How long was

she embezzling?

Absolutism Termination

Pragmatic Idealistic

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Watch for Dangers of Unethical Environment

Intense competition and issues of survival (pressure)

Managers making poor judgments

Avoiding the “either/or conundrum”

Disparity in time devoted to ethics discussion vs. performance discussion

Creating an Ethical Culture

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Creating an Ethical Culture

Being Careful About Pressure and Signals

Competition is so intense that business survival is threatened

Managers make poor judgments

Employees have few or no personal values

Employees respond only to earnings demands

Managers and executives are touting earnings

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International Business

Businesses Must Decide Whether to Operate Under One Uniform Set of Standards

Cultures, Laws, and Standards Vary

Creates issues of bribes, grease payments, and culture-related gifts

Problems of economic development where bribery is common

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Creating an Ethical Culture

A Possible Uniform Standard for Ethical Choices

Categorical Imperative: How would you want to be treated?

Are you comfortable with a world with your standards?

Christian principle: The Golden Rule

And as ye would that men should do to you, do ye also to them likewise. Luke 6:31

Thou shalt love…they neighbor as thyself. Luke 10:27

Confucius: What you do not want done to yourself, do not do to others.

Aristotle: We should behave to our friends as we wish our friends to behave to us.

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Creating an Ethical Culture

A Possible Uniform Standard for Ethical Choices

Judaism: What you hate, do not do to anyone.

Buddhism: Hurt not others with that which pains thyself.

Islam: No one of you is a believer until he loves for his brother what he loves for himself.

Hinduism: Do nothing to thy neighbor which though wouldst not have him do to thee.

Sikhism: Treat others as you would be treated yourself.

Plato: May I do to others as I would that they should no unto me.

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LEASE CORRUPT

Denmark

Finland

Sweden

New Zealand

Norway

Switzerland

Singapore

Canada

Germany

Luxembourg

United Kingdom

Australia

Iceland

Belgium

Austria

United States

Hong Kong

Ireland

Japan

Uruguay

Qatar

MOST CORRUPT

Somalia

Korea (North)

Afghanistan

Sudan

South Sudan

Angola

Libya

Iraq

Guinea Bissau

Venezuela

Haiti

Yemen

Turkmenistan

Syria

Eritrea

Uzbekistan

Zimbabwe

Cambodia

Burundi

Myanmar

Corruption Perceptions Index 2015

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International Business

Interdependence of Trust, Business, and Government

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Investors

Business

Customers

Government

Regulation/Fairness

Fairness assumption

Government

Investors

Customers

Business

Regulation/Fairness

Fairness assumption

Attachment 3

Chapter 1 Introduction to Law

Its Legal, Ethical, and Global Environment

Marianne M. Jennings

Business

11th Ed.

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Definition of Law

Aristotle

Law is reason unaffected by desire

Holmes

Law embodies the story of a nation’s development through many centuries

Blackstone

That rule of action which is prescribed by some superior and which the inferior is bound to obey

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Definition of Law

Black’s Law Dictionary

A body of rules of action or conduct prescribed by the controlling authority, and having legal binding force

Rules Enacted By a Government Authority That Govern Individuals and Relationships in Society

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Classifications of Law

Public Law

Enacted by some authorized government body. Example: federal securities laws

Private Law

Enacted by private individuals

Example: the terms of a lease agreement

Example: employment agreement

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Classifications of Law

Criminal versus Civil Laws

Criminal laws are wrongs against society

Civil laws are wrongs against individuals

Substantive versus Procedural Laws

Substantive: Gives rights and responsibilities

Procedural: Means or procedures for enforcing substantive rights

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Classifications of Law

Common Law

Began in England in 1066 and continues today

Non-statutory law

Exists in court decisions

Following case precedent, or stare decisis, “let the decision stand”

Statutory Law

Passed by governmental body

Also known as Codified Law

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Classifications of Law

Law versus Equity

In common law England, remedies were separated into legal and equitable remedies

Legal = money

Equitable = injunctions, specific performance

Remedies were separated so that courts of chancery could give remedies when courts of law could not

Today all courts are authorized to award legal or equitable remedies

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Purposes of Law

Keeping Order

Influencing Conduct

Honoring Expectations

Promoting Equality

Law as the Great Compromiser

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Characteristics of Law

Flexibility

Examples: the Internet has required the courts to revisit when a contract acceptance occurs

Consistency

Example: allows businesses to rely on law for planning

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Pervasiveness

Example: laws covering formation, operation and dissolution of corporations do not unduly interfere with management flexibility

Characteristics of Law

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Case

Case 1.1 Yates v. U.S. (2015)

Statutory interpretation: Does a statute that prohibits destruction of documents and tangible objects cover fish?

Consider 1.2 U.S. v. Katakis (2015)

Statutory interpretation: Is it obstruction if you have a program on your computer that clears out your e-mail?

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Theory of Law: Jurisprudence

Incorporation of Theories or Values Into Definition of Law

Natural Law: Inviolate principles, regardless of laws – human rights

Holmes: “The life of the law … has been experience”

The Social Contract: Law reflects the desires of society for interaction

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Sources of Law

1-12

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Constitutional Law

Exists at federal and state level

Establishes government structure

Establishes individual rights

Sources of Law

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Statutory Law at the Federal Level

Enactments of Congress

United States Code. Citation = (e.g., 15 U.S.C. § 77)

Executive orders

Presidential orders

Administrative agency regulations

Code of Federal Regulations. Cite or citation = C.F.R. (e.g., 12 C.F.R. § 226)

Sources of Law

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State Laws

Enactments of state legislatures

State Codes

Cite = Nevada Revised Statutes – N.R.S.

State administrative agency regulations

Local Laws

Ordinances

County or city statutes

Sources of Law

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Private Laws

Contracts

Leases

Employer regulations

Court Decisions

Language in statute unclear

Court provides interpretation or clarification of law

Sources of Law

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Sources

Custom (Country-by-Country)

Treaties

Bilateral − between two nations

Multilateral − among three or more nations

Geneva Convention − prisoners of war

Vienna Convention − diplomatic relations

Warsaw Convention − air travel

International Law

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Private Law or Party Autonomy

International Organizations (U.N.)

Act of State Doctrine

Expropriation

Confiscation or nationalization: taking of private property by a government

International Law

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Trade Laws and Policies

Tariffs

Treaties, e.g., GATT, NAFTA

Uniform International Laws

Contracts for the International Sale of Goods (CISG)

Similar to Article 2 of the Uniform Commercial Code (UCC)

International Law

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The European Union (EU)

Group of countries in continental Europe

Aiming for barrier-free trade; uniform laws; ease in transaction negotiations and execution

Uniformity in currency, job safety, immigration, customs, licensing, and taxation

International Law

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Attachment 4

Chapter 4 Managing Disputes: ADR and Litigation Strategies

Its Legal, Ethical, and Global Environment

Marianne M. Jennings

Business

11th Ed.

©2017 Cengage Learning®. May not be scanned, copied or duplicated or posted to a publicly accessible website, in whole or in part, except for use as permitted in a license distributed with a certain product or service or otherwise on a password-protected website or school-approved learning management system for classroom use.

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Types of ADR

Arbitration − Oldest Form of ADR

Parties submit grievances and evidence to a third party expert in an informal setting

American Arbitration Association provides many arbitrators and rules

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Types of ADR

Arbitration Advantages

Less formality

Handled privately

Expert handles the cases

Speed was once an advantage, but tends to move as slowly as court cases now

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Types of ADR

Arbitration Disadvantages

Arbitrator may not have legal training and may not understand the significance of legal points

Rules of evidence do not apply

Expense and complexity has increased

Cost has increased

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Federal Arbitration Act

Passed to stop judicial interference with arbitration

Courts now rarely interfere with arbitration clauses in consumer contracts

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Federal Arbitration Act

Courts now rarely interfere with arbitration decisions

CFPB has proposed eliminating arbitration requirement for consumer credit contract

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Types of ADR

Case 4.1 College Park Pentecostal Holiness Church v. General Steel Corp. (2012)

What was the basis for setting aside the arbitration clause?

How binding is arbitration?

Could the decision have been affected by the fact that there was a church involved?

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Types of ADR

Arbitration Procedures

Parties agree to submit to arbitration

American Arbitration Association (AAA) can handle the proceedings for a fee

Demand for arbitration is filed

Arbitrator is selected

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Types of ADR

Mediation

Parties use a go-between to negotiate and communicate

Used in international transactions

Mediator can offer suggestions for resolution

Not binding

MedArb

Recent creation in which arbitrator first attempt to mediate settlement

If unsuccessfully the case goes to arbitration

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Types of ADR

Minitrial

Small-scale trial where parties present case to a judge with experience in the field or to a neutral advisor

Advisor or judge makes decision

Can motivate parties to resolve differences even if the results are not binding

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Types of ADR

Rent-a-Judge

Trial held in commercial as opposed to a public court

Pay fees for courtroom and judge

Example: “The People’s Court” TV show

Summary Jury Trials

Gives parties an idea about jury’s perceptions

Used after discovery is complete

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Types of ADR

Early Neutral Evaluation

Consultant or volunteer gives parties an assessment of the position

Generally used prior to discovery

Saves expenses if parties settle following the evaluation

Peer Review

Review of Management’s action against employee by a group of peer – employees

Reduces litigation cost

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International ADR

International Chamber of Commerce

A private organization that handles 250 arbitration cases each year

Has used arbitration since 1922

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International ADR

Centre for Settlement of Investment Disputes (ICSID)

An international arbitral for investors

Investment contracts can provide for arbitration by ICSID

Parties Free to Choose Which Courts Will Hear Their Disputes

Party autonomy

U.S. courts are a popular choice

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Litigation vs. ADR

Technical discovery rules Open lines of communication
Judicial constraints of precedent Parties can agree to virtually anything
Remedies limited Creative remedies
Docket backlog Parties set time line
Public proceeding Private
Control by lawyers Control by parties

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Litigation vs. ADR

Expensive Less expensive (some changes here)
Strict procedures and timing Flexible
Judge and juries unknown Parties select
Judicial enforcement Enforcement by good faith

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The Trial Process

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When You Are in Litigation…

People Begin Civil Lawsuits

System does not do it for them

Based on a claim of right

Lawsuits are efforts of individuals to enforce their rights

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Step 1 − Filing a Complaint or Petition

Complaint is general statement of claim

Must describe actions that led to claim of violation

Must establish jurisdiction and venue of court in which it is filed

Class actions are often filed against businesses

When You Are in Litigation…

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Step 2 − Service of Process

Complaint or petition and summons served on defendant

Summons explains to defendant his/her rights

Where to defend

How long to defend

The effect of not defending the suit

Delivered by an officer of the court or by licensed private process servers

In exceptional circumstances, service is accomplished by publication

When You Are in Litigation…

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Step 3 − The Answer

Content of answer

Defendant can admit allegations in complaint are true

Defendant can deny allegations in complaint

Defendant can counterclaim − effect is the defendant is also suing plaintiff for damages

When You Are in Litigation…

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Step 3 − The Answer

Failure to file an answer within the statutory time period is a default

Time limits for filing answers are typically twenty to thirty days

Like a forfeit in sports − plaintiff wins because the defendant fails to show up

When You Are in Litigation…

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Step 4 − Ending a Suit Through Motions

Motion for judgment on the pleadings

Even if everything the plaintiff said in the complaint were true, there is no cause for action

If court grants motion, the case is over at the trial court level (appeal is possible)

When You Are in Litigation…

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Step 5 − Pre Trial Motions

Motion for summary judgment

Appropriate in cases where there are no factual issues

Used to resolve questions of law when the parties agree on the facts

When You Are in Litigation…

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Step 6 − Discovery

Forms of discovery to supplement evidence released

Requests for admissions − request from one party to another for the admission of facts so that proof requested at trial is limited

Interrogatories − written questions submitted to opposition

Depositions − statements of parties or witnesses taken under oath in an informal setting

Request for mental or physical examination or for inspection

When You Are in Litigation…

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Step 6 − Discovery

Requests for production: documents, physical evidence

Only relevant, non-privileged information is discoverable

No:

Work product

Attorney/client privilege

Husband/wife privilege

When You Are in Litigation…

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Case 4.2 Pulte Home Corp. v. Simerly (2013)

Discuss what evidence was at issue.

Explain what happened with the evidence and who did it.

What should managers learn from this case and what should they do when lawyers are obtaining documents.

When You Are in Litigation…

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Step 7 − The Trial

Jury trial

Required in cases where damages over $20 are claimed (unless waived)

Absolute right to jury trial is only in criminal cases

Jurors selected from voting or drivers’ license lists

Voir dire

Used to narrow jurors for panel

Ask questions about their knowledge of the case, level of education, background, etc.

When You Are in Litigation…

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Step 7 − The Trial

Voir dire

Can be challenged for cause − incapable of making an impartial decision when they know parties, when they were involved with the case

Peremptory challenge − limited number of challenges used by attorneys to remove potential jurors with whom they are uncomfortable

However, may not be based on race or sex

When You Are in Litigation…

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Step 7 − The Trial

Plaintiff’s case

Presents witnesses − direct examination

Defendant can cross-examine plaintiffs’ witnesses

Opening Statement

Gives summary of the case and witnesses and how they fit together to prove necessary elements

When You Are in Litigation…

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Step 7 − The Trial

Post-plaintiff’s case motion − motion for a directed verdict

Plaintiff must prove all elements − called a prima facie case

Failure to prove all elements entitles defendant to a directed verdict

Made with jury excused

When You Are in Litigation…

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Step 7 − The Trial

Defendant’s case

Presents witnesses − direct examination

Plaintiff can cross-examine defendant’s witnesses

Types of evidence

Witnesses’ testimony

Documents

Photographs

Tangible items

Hearsay − can be admissible to establish facts other than the truth of the matter asserted

When You Are in Litigation…

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Step 7 − The Trial

Closing arguments

Each side summarizes case presented

Jury instructions

Judge explains law to jurors

Law is written in form for jurors to apply

Lawyers have input on instructions

When You Are in Litigation…

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Step 7 − The Trial

Jury deliberations

Some states do not require unanimous verdicts in civil cases - only a majority

If the jury can’t reach a verdict, a hung jury results in a mistrial

When You Are in Litigation…

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Step 7 − The Trial

Jury verdict

Decisions of the jury

One side can request to have the jury polled − occasionally any pressure exerted will come out then

Post-trial motions

Motion for a judgment NOV (non obstante veredicto) − motion for a judgment

Notwithstanding the verdict; effect is a trial court judge reversing the jury verdict − rarely done

Motion for a new trial − judge orders case retried

When You Are in Litigation…

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Steps in Civil Litigation

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Steps in Civil Litigation (cont’d)

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International Litigation

Which Laws Apply?

Foreign citizens may not come to U.S. to benefit from our traditionally liberal recovery rules and higher verdicts if there are adequate remedies in their own country

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