Please read and state your opinions on the questions related to this topic at the end. Please explain thoroughly.

FACTS:Morgan and Bud Wiesr are involved in a head-on collision early one morning.As a result of the collision, Morgan's car is destroyed, she suffers a neck injury and her purebred poodle is killed.There is some indication that Bud was under the influence of alcohol when the accident occurred.Morgan is a resident of Oregon, and Bud is a resident of Washington.

The state of Oregon has three state statutes that will be applied to any lawsuit that arises from the collision: 1. In a civil suit the defendant must file a response to the plaintiff's complaint within 30 days of being served with a copy of the complaint.2.A person who negligently causes injury to another person must compensate the injured party for the harm he or she suffered.3. A person who operates a motor vehicle a public road with a blood alcohol concentration of .08 or more is guilty of Driving Under the Influence.

CHAPTER 1:THE NATURE OF LAW

Laws are rules that govern society.They are a system of control over the conduct of people; laws give order and structure to society.There are four sources of law in the U.S:

1.Constitutions (state/federal)

2.Statutes/ Ordinances.

3.Administrative regulations.

4.The Common law/ Case law

CONSTITUTIONS:Constitutions are the primary and supreme source of law for the federal government and the various states governments.They establish the structure of government and establish what powers the government will have.In addition, constitutions place limits on governmental authority.

STATUTES and ORDINANCES:These are what most people commonly think of when they think of laws.They are legislation or bills, which are passed by federal, state or local governments.Once enacted by the governmental body the legislation becomes law.

If the law is passed Congress or a state legislature it is called a statute.Ifa local government, city or county, passes the law, it is called an ordinance.For example: the Union County Commissioners pass a law that requires all dogs to be licensed. This law is referred to as an ordinance.

Federal Statutes are codified, written down, in the United States Code Annotated which is abbreviated U.S.C.A.State statutes are also codified.In Oregon the state statutes can be found in the Oregon Revised States (ORS).

ADMINISTRATIVE REGULATIONS:Regulations passed by administrative agencies (government agencies) have the full force and effect of law.

Example:Dept. of Transportation, Social Security Admin. OSHA, FTC, FDA.The list seems endless.All of these agencies have the authority to develop administrative regulations (sometimes called administrative rules), and as such they are a major source of law in the United States.

THE COMMON LAW/CASE LAW:is a body of judicial decisions that interpret constitutions, statutes/ordinances, and regulations. When you see a commercial for an attorney, the attorney is usually sitting in front of shelves full of books.That is case law/common law.Those books contain judicial decisions or rulings of legal appeals.Statutes, administrative regulations, and constitutions are not specific enough to cover every fact situation that may arise.So when a court must interpret a statute or regulation to resolve a dispute, the court's decision or ruling that often createa common law rule.

Example:The 4th Amendment to the Constitution prohibits unreasonable government searches.But what exactly is an unreasonable search? Let's say you are pulled over for running a stop light.After giving you a ticket, the police officer searches your car and in the trunk finds some kind of controlled substance.Your defense, and only hope of staying out of jail, is that the search was unreasonable.In order to give that term some definition your attorney will look through the case law to hopefully find a case where the court ruled such a search, or one similar to it, was unreasonable.

Doctrine of Stare Decisis:This doctrine gives structure and predictability to the common law.The doctrine requires judges to follow the decisions of past judges.Once a common law rule is established, judges must follow it.These previous decisions are called precedents.

Take the previous example:An appellate court or supreme court in Jones V. Smith has ruled that it is unreasonable for police to search the trunk of a motorist stopped for a traffic violation.That is now a common-law rule.In future , similar cases, the attorney for the defendant will research the case law and argue that according to the precedent established in the earlier case (Jones v. Smith) this search is "unreasonable".The doctrine of stare decisis will then require the judge to rule accordingly.

That is what stare decisis is, a doctrine which requires judges to follow established common law rules.This insures that the law is applied equally to everyone.It also gives a degree of certainty to the law that encourages settlements because the parties know that his particular legal issue has been resolved this way in the past, so the judge will rule this way in the present case.

However, there are occasions when judges will depart from the doctrine of stare decisis, and change the common law by overturning a previous decision.Cases that overturn legal precedents are rare and are usually a response to changing social conditions.

The most obvious example of a court overturning precedent occurred in the Supreme Court case Plessy v. Ferguson in 1896.The court had ruled that "separate but equal" was constitutional.That segregated facilities (railcars, schools parks, public restrooms) did not deny Blacks of equal protection under the law as required by the14th Amendment. For the next 58 years that court's decision provided the foundation for segregation.In 1954 the Court reexamined the separate but equal principle in Brown and overturned the Plessy Decision.It ruled that "separate but equal" was unconstitutional.It did not follow stare decisis.The Court overturned a earlier common law rule.

The following video further explains the sources of law in the United States.

click to open a new page

CLASSIFICATIONS OF LAW

1.Civil/criminal

2.Substantive/procedural

3.Equitable remedies/remedies at law

Criminal Law/ Civil Law:Criminal law involves the violation of a criminal statute.The illegal conduct is considered to be committed against society as a whole.The government, represented by DA/prosecutor, brings criminal charges against the person who committed a crime.

Example: Bob steals Reverend Smitt's car.Bob is later arrested.The government will bring criminal charges against Bob.It would not matter if Rev. Smitt forgave Bob.It is completely up to the state to decide whether or not to prosecute Bob.Bob's wrongful act is deemed to have been committed against society as a whole.

Civil Law:Is concerned with the legal relationship between individuals.In a civil law suit one individual brings suit against another individual.The suit will resolve the legal issues between the two individuals.

Example:Bob negligently backs his car out of his driveway and drives through Reverend Smitt's fence.In this case Reverend Smitt could forgive Bob, on the other hand, he could also file a civil lawsuit seeking damages for his broken fence.

It is possible for the same wrongful act to give rise to both criminal and civil liability.Let's say that Bob gets angry one evening and burns down Rev.erend Smitt's house.Bob has committed the crime of arson for which he could be criminally prosecuted, and he could also be sued in civil court by a Reverend Smitt for the loss of his house.(This is why O.J. Simpson had two trials.He was acquitted on criminal charges of murder, but was found liable in the civil law suit brought by the families of his ex-wife and her boyfriend for the tort of wrongful death.)

Substantive/Procedural:

Procedural law involves the rules of the legal system.They define how the legal system functions.Anyone who wants to use the legal system must follow the rules (laws) of judicial procedure. Procedural laws provide a mechanism to enforce the legal rights and responsibilities.

How do you initiate a lawsuit?Look up the appropriate procedural law and follow it.Such procedural laws control every aspect of the legal system.Example: "A defendant has 30 days from the date of service to respond to the Plaintiff's complaint"

There are different rules (laws) of procedure for civil case and criminal cases.If you are filing a civil suit, you follow the rules of civil procedure.If it's a criminal matter, you follow criminal procedure.

Substantive Law:Regulate the legal rights and responsibilities of individuals. They set forth what individuals can or cannot do in society.

Example: A law that requires you to file a tax return is a substantive law. "You must wear a seatbelt" is a substantive law that establishes a legal responsibility.A law that entitles you to certain federal hiring preferences because you are a veteran is also a substantive law.

These two types\classification of law can also be distinguished by the fact that, in general, substantive law is considered more important.A judge or hearings officer is more likely to overlook a failure to comply with a procedural law while the violation of a substantive law is considered a more serious matter.

Equity (Equitable Remedies/Remedies at Law):There used to be a distinction between a court of equity and a court of law. In our present day legal system courts of law and courts of equity have merged into one court system but many distinctions still remain between equity and law.

The distinction began in Great Britain centuries ago. Since we inherited or brought with us the British legal system, the distinction is still part of our legal system.Way back in the 1600'sthe King's court could only provide a plaintiff (person bringing a civil lawsuit) with one type of relief.That was money damages.Well, money would not always solve plaintiff's problem.

Example:Neighbor blows his horn every night at midnight and lets his goat run loose to graze in your prize rose garden.You don't want money damages.You want him to stop blowing his horn and to tie up his goat.Well in Great Britain, at that time, you couldn't go to court get that type of relief.A judge could not force your neighbor to stop blowing his horn or to tie up his goat. The judge could only award money damages. The only way a Plaintiff could get any other relief was to petition the King directly.The King could grant any relief he wanted to.At some point the number of people petitioning the King became so great that he appointed special judges, known as chancellors, to dispense remedies other than money damages.

These chancellors began to hold court and their courts became known as Courts of Equity.So in Great Britian at that time there were Courts of Equity and Courts of law.We brought this system to the U.S. during colonial times but have since merged the two courts.The same court can grant equitable relief and a remedy at law. A plaintiff can sue and seek both types of relief in the same court system.

Distinctions, however, still remain between a lawsuit brought in equity and one brought in law. You need to be familiar with just three of these distinctions

Distinctions between a Remedy at Law and an Equitable remedy:

1.A remedy at law is still money damages. An equitable remedy generally forces someone to do or to refrain from doing something.A common example is a restraining order, a court order compelling your neighbor to stop blowing your horn.

2.Juries can determine/award money damages but only judges can grant an equitable remedy.Example:If the defendant wants a jury trial, he can have one if the plaintiff is seeking money damages.In such a case the jury will determine how much, if any, money the defendant should pay the plaintiff.However, if the plaintiff is seeking an equitable remedy, the judge will hear the case and determine if the plaintiff is entitled to equitable relief.

3.Higher standard of proof required when requesting an equitable remedy.In a lawsuit the standard of proof depends on what type of case it is and what type of remedy the plaintiff is seeking.

The standard of proof refers to how convincing the plaintiffs case, or in a criminal matter the prosecutor's case, must be in order for them to prevail.How thoroughly must they prove their case in order to prevail or, in a criminal case, to convict.

In a civil case there are two standards of proof depending on what type of remedy the plaintiff is seeking.

Civil Case -Remedy at law: If the plaintiff is seeking a remedy at law, money damages, the standard of proof isby a preponderance of the evidence.This mean the plaintiff's case is more believable than the defense's.The evidence establishes that the plaintiff's case, side of the story, is more likely to be true than the defendant's case.

Civil Case -Equitable remedy:If the plaintiff is seeking an equitable remedy, such as an injunction or restraining order, the standard of proof is by clear and convincing evidence.This is a higher burden of proof than by a preponderance of the evidence. It's not enough that the plaintiff's position is more credible than the defendant's; the plaintiff has to establish his caseby clear and convincing evidence.

Criminal Case:In a criminal case the standard of proof isbeyond a reasonable doubt.The prosecutor must prove beyond a reasonable doubt that the defendant committed the crime.Of the three standards of proof this is the highest.Criminal prosecutions and criminal sanctions are so serious that the prosecutor has a higher standard of proof.If the case cannot be proven beyond a reasonable doubt, the accused is set free.

CHAPTER 2:STRUCTURE OF THE COURT SYSTEM

There are 51 separate court systems (1 federal and 50 state) and within each system there are three tiers; trial courts, appellate courts, supreme courts.(The text states 52, but I think it's easier to remember if you don't include the District of Columbia)

TYPICAL STATE COURT SYSTEM:(click here for diagram)

I. TRIAL COURT LEVEL:This is the level where lawsuits, criminal and civil, are initiated. Trial courts perform a fact-finding function.A detailed record of this fact-finding is kept (court record).Trial courts make determinations of law as well as fact.(Judges decide questions of law).States have a trial court in every county.Normally the state trial court is located in the county seat.For example, La Grande is the county seat for Union County, and there is a state trial court located in La Grande.

To more efficiently handle their caseloads, state trial courts are generally divided into two or three separate "courts".In most states the trial court level is divided into small claims court, district court and circuit court.These courts handle both criminal and civil matters depending on the nature of the case.A plaintiff will file (begin) his suit in one of these three types of trial level courts.

(note: Oregon no longer has a district court.In Oregon that division of the trial court level was merged into the circuit court a number of years ago.Each state has different names, divisions and different subject matter jurisdiction for each court.The following are presented just as an example of a typical state court system.You will need to know these for the exam)

Below is an example of how a typical state courts trial tier will be divided.

oSmall Claims Court:Handles cases where the amount in controversy is less than $5000 (the amount of money the plaintiff is suing the defendant for).No attorneys are allowed in small claims court.The proceedings are very similar to the Peoples Court on TV.There are no juries in small claim court.The procedure is designed to be straightforward and simply so that anyone can bring a legal claim (for less than $5000) without the assistance of an attorney.

oDistrict Court:Handles cases where the amount in controversy is more than $5000 and less than $25,000.District Court also handles misdemeanor criminal suits (minor crimes).

oCircuit Court:Handles cases where the amount in controversy is over $25,000 and felony crimes.Circuit court also handles divorces, adoptions and probate proceedings.

II.APPELLATE COURT LEVEL:A state court of appeals reviews questions of law.Questions of law are interpretations of the law that were made by the trial court judge.The appellate court will not review questions of fact.A determination of fact made by the trial court fact finder (judge or jury) cannot be appealed.At the appellate court level the case is not retried but rather the appellate court reviews the trial court record, considers the legal arguments present in appellate briefs and hears oral arguments by attorneys regarding possible mistakes in the interpretation and application of the law made by the trial court judge.The state court of appeals is usually located in the state capital.

III.SUPREME COURT LEVEL:The state supreme court reviews appellate court decisions following the same procedure of review as the appellate court to determine if the appellate court misinterpreted the law.The state supreme court is located in the state capital.

FEDERAL COURT SYSTEM(click here for diagram)

Three tiered also.Similar to the structure of the state court system, but there are different names for the various levels, names that you should be familiar with.Know that while the federal and state court systems both incorporate district and circuit courts, state court systems use those names for divisions within the state trial court tier while the federal court system uses district court for its trial court tier and circuit court for its appellate court tier.

Trial Court Level:The trial court tier of the federal court system is called U.S. District Court.There are around 90 federal court districts in the U.S.The closest U.S. District Court to La Grande is located in Pendleton.If you were filing a suit based on federal law, you would start at this level.

Appellate Court Level:The appellate court tier within the federal court system is called the U.S. Court of Appeals.There are 13 federal circuits throughout the United States, each of which contains a US court of appeals. Oregon is in the 9th circuit. The 9th Circuit Court of Appeals is located in San Francisco.

Supreme Court Level:The U.S. Supreme Court (only one) is located in Washington, D.C.

This videogives a more detailed description of the federal court system.

click to open a new page

JURISDICTION

Jurisdiction is the authority of a court to hear a case, to rule on a legal dispute.Each of the different courts, for example federal district court or a state court of appeals, has its own jurisdiction.Each court only has the authority to rule on certain types of lawsuits/cases.

For example, a small claims court (in our fictitious state court system) has the authority to rule only in cases where the amount in controversy is less than $5000.Suppose someone files a suit in small claims court alleging $7000 in damages.The court could not hear the case.It would not have jurisdiction.

There are two types of jurisdiction: personal jurisdiction and subject matter jurisdiction

Before a court can hear a case it must have both types of jurisdiction.A court might have subject matter jurisdiction in a particular suit, but if it does not also have personal jurisdiction, it would not have the authority to hear the case.So when you file your lawsuit, make sure you file the casein the right place, the court that has both personal jurisdiction and subject matter jurisdiction.

Personal Jurisdiction(in persona jurisdiction):This is jurisdiction over the person. The court must have jurisdiction over both parties (plaintiff and defendant) to the lawsuit before it can hear the legal dispute between them.If a court has personal jurisdiction over the plaintiff but not over the defendant, it can't hear the case.The plaintiff has to file his suit in some other court, a court that has personal jurisdiction over the defendant.

The federal court system has personal jurisdiction over everyone in the United States.The plaintiff might live in Maine and the defendant might live in Oregon and in such a case, any federal court would have personal jurisdiction over both parties.The only time the issue of personal jurisdiction comes up in federal court is if the defendant resides in another country.

State courts, however, are a different matter.For the most part, a states courts authority is limited to the territorial boundaries of the state. A state court does not normally have the authority to rule on legal disputes that originate outside the state because the court will not have personal jurisdiction over the parties.

Example: Nancy and Ted both live in Florida. A legal dispute arises between them; let's say Nancy claims that Ted owes her $5000, and Ted refuses to pay her.Before she can file suit against Ted, Nancy is transferred to Portland.As soon as she moves to Portland, she files her suit in an Oregon court under Oregon law.The Oregon court would not have personal jurisdiction over Ted.The dispute arose outside the state of Oregon, and Ted has had no contact with the state of Oregon. Does this mean Nancy can't sue Ted?No, she just has to sue him in a court that has personal jurisdiction over Ted, the Florida court system.

Personal jurisdiction can be established three ways:

1.Residency or Service within the state:A state court will have personal jurisdiction over anyone who resides in the state.This makes sense, an Oregon court will have personal jurisdiction over all Oregon residents.In addition, an Oregon court will have jurisdiction over anyone who can be served with a summons while the person is within the territorial boundaries of the state.For example, you are a California resident and come to Oregon to attend a football game.If while you're in the state, you're served with a court summons, in most instances the court will have personal jurisdiction over you.

2.Doing business in the state:A state court will have personal jurisdiction over anyone doing business in the state. Let's say an Arizona businessman sells a product in Oregon.He has never been in Oregon and never intends to go to Oregon.However an Oregon resident is harmed by one of his products.The Oregon resident files suit in an Oregon court.Will the Oregon court have personal jurisdiction over the Arizona businessman?Yes, because he is doing business in the state of Oregon, and will now have to come to Oregon to defend himself in the lawsuit..

3. Long Arm statute:Extends a states personal jurisdiction over any individual who commits a wrongful act within the state. Example:Alaska driver visits a friend in Portland.While in Portland, he negligently runs into your car.Right after the accident, before he can be served with a summons, the driver returns to Alaska.He's not going to come back to Oregon because he knows as soon as he does he'll be served and sued.But it doesn't really matter if he comes back or not because Oregon has a long arm statute.The long arm statute extends state jurisdiction over anyone who commits a wrongful act in the state.He can be served in Alaska and will still need to return to Oregon to defend himself in a lawsuit.

Subject Matter Jurisdictionis delineation or designation on the types of cases/suits that a court can hear/rule on.Can a prosecutor file state felony criminal charges against someone in state district court?No, felony cases are outside of the district court's subject matter jurisdiction.Where should the prosecutor file the felony criminal charges? The state's circuit court.

What if I want to file an adoption for a client?Could I file it in the Oregon Supreme Court?No, the Oregon Supreme Court's subject matter jurisdiction is, with some exceptions, limited to cases appealed from the Oregon Court of Appeals. I've got to file the adoption in the court with the appropriate subject matter jurisdiction, state circuit court.

Federal Court Subject Matter Jurisdiction(two types)

1. Federal Question Jurisdiction:Federal courts always have subject matter jurisdiction in cases involving the application and interpretation of federal law.That's why the federal courts were established.

2. Diversity Jurisdiction:Federal courts may also apply and interpret state law in cases where:

a. The parties to the lawsuit are citizens of different states (diversity of citizenship); and

b. The amount in controversy (the amount the plaintiff is seeking to recover from the defendant) is over $75,000.

(note:both requirements must be met for diversity of citizenship subject matter jurisdiction to exist)

The reason for diversity of citizenship subject matter jurisdiction in federal court is to protect out an of state defendant from any favoritism a local jury may show their fellow state citizens.Example: California driver is involved in an auto accident with a La Grande resident while visiting La Grande.The La Grande resident sues in the Oregon Circuit Court in Union County claiming $1,000,000 in damages. In such a case, the California driver would be at a disadvantage.The jury will be selected from Union county residents who are likely to favor the local plaintiff and who are already certain that Californians have too much money and drive like idiots.To avoid having the case heard and decided by a local jury, the California driver can have the case moved to federal court.Federal court would have personal jurisdiction in the matter because both parties are U.S residents and subject matter jurisdiction because the parties are from different states and the amount in controversy is over $75,000.In such a case, the federal court would apply Oregon state law.

THE JUDICIAL PROCESS

In our country we have an adversarial system.The plaintiff and defendant are considered adversaries/opponents, who usually, with the representation of attorneys, argue their case to a neutral fact finder, judge or jury

Each party tries to convince the fact finder that their version of the facts is the truth and the dispute should be resolved in their favor.The fact finder, the one who decides which party prevails, can either by a judge or a jury.In most cases it will be a jury.

The Constitution guarantees a jury trial in most civil and criminal cases, but that does not mean that you have to have the case determined by a jury.The judge in both a civil matter and a criminal matter has a somewhat passive role.Judges insure that the parties follow appropriate rules of procedure and they rule on questions of law.You can think of the judge as the referee.He insures that both parties follow the proper judicial procedure.

Also, if the parties want it, the judge can be the fact finder.In some cases it is more expedient to have what is called a bench trial, a trial where the judge is the fact finder.

Example:In a suit for dissolution of marriage almost all of the suits are the trials are bench trials.The judge makes the rulings on questions of law and fact.The respondent (defendant) could request a jury but it is quicker and more efficient to have a judge try the case.

When the parties want a jury trial, the judge still rules on questions of law.When an attorney stands up and objects, he is asking the judge to make a ruling on a particular question of law.

Example:The prosecutor starts to introduce a particular piece of evidence.The defense attorney objects to its introduction and gives his reason, maybe it was illegally seized or it's irrelevant to the criminal charges.What evidence will be admitted into the record is a question of law.The judge will make a ruling.Objection sustained, defense wins, and the evidence is not admitted.Objection denied, prosecution wins, evidence admitted.

Only judge's rulings on questions of law are appealable.Parties cannot raise questions of fact on appeal.

CIVIL PROCEDURE

A typical civil suit from beginning to end:Most suits do not go through all of these steps, since over 90% are settled before going to trial.Civil suits are controlled by the rules of civil procedure.

The plaintiff is the party who initiates the lawsuit.The plaintiff begins his suit by drafting and filing a complaint.The complaint must be filed in the appropriate court (personal/subject matter jurisdiction).When they file their complaint there is normally a filing fee.him

The complaint is a legal document drafted according to the rules of procedure.Basically identifies the parties and outlines the plaintiff's cases against the defendant..

After the complaint is filed a judge will issue a summons.A summons is a court order that orders the defendant in the case to respond to the complaint and defend against it.The summons is issued to the plaintiff who has the responsibility to serve the summons and a copy of the complaint on the defendant.

Service or to serve the defendant is the act of handing the summons and complaint to the defendant.Service is done to insure the defendant is aware of the legal action that has been filed against.

Normally, service is done by a process server or the sheriff's office for a small fee.

In most civil suits procedural law requires personal service.Personal service is the act of physically handing the summons and complaint to the defendant.This is the best way to make sure the defendant is notified of the suit.However, in some cases it is extremely difficult or impossible to personally serve the defendant.What if you don't know where the defendant is?You want to divorce your husband but the last you heard from him was three years ago when he ran off with a cocktail waitress.If you had to personally serve him, you'd be in trouble.If you could not locate him, you couldn't get divorced.In such cases the court will allow Substitute Service by mail and publication (both are required).

Mail:Send a registered letter return receipt requested to his last known address.You are thereby notifying him of the lawsuit by mail

Publication:Notify the defendant by publishing the summons and complaint in a newspaper for a designated period of time.

The chances of the defendant actually receiving the letter or seeing the ad are pretty remote but that doesn't matter.If a judge allows you to serve the defendant by mail or publication, all the plaintiff has to do is comply and defendant is deemed to have constructive notice of the suit.

OK, the plaintiff has filed his complaint and the defendant has been served, what next?The defendant has a certain period of time to respond to the plaintiff's complaint.The period of time the defendant has to respond is set forth in the summons, the order to appear (appear/respond, same thing).Usually the defendant has 30 days from the date he is served.

If the defendant does not respond to the plaintiff's complaint:If the response period passes and the defendant does not respond the plaintiff may obtain a default judgment.The plaintiff files a motion for default judgment with the court, the judge checks to make sure the defendant was served and has not responded, and then grants the plaintiff a default judgment.A default judgment awards the plaintiff whatever relief he asked for in his complaint.Plaintiff wins because defendant did not respond.

How does a defendant respond?He files one of the following with the court:

1. Motion to dismiss -a motion requesting that the judge dismiss the lawsuit for some reason, such aslack of personal jurisdiction over the defendant.

2. Answer - a filing that responds to the allegations in the plaintiff's complaint.In the answer the defendant will either admit an allegation in the complaint is true or deny that the allegation is true. In doing so the answer will identify which facts in the complaint are disputed and therefore must be proven by the plaintiff.

In addition to admitting or denying the allegations in the complaint, the answer can also include an affirmative defense and or a counterclaim.An affirmative defense is a defense that will relieve the defendant of liability.For example, self-defense is an affirmative defense.If the complaint alleges that the defendant hit the plaintiff and caused the plaintiff to suffer a physical injury.The answer could admit to the allegation but assert that the defendant was repelling an attack by the plaintiff when he struck the plaintiff.If the defendant was defending himself he will not be found responsible for the plaintiff's injury.

A counterclaim can also be included in an answer.A counterclaim is an allegation by the defendant that he has been harmed by the plaintiff and is entitled to some compensation from the plaintiff.For example, in a traffic accident the plaintiff's complaint might allege that the defendant was driving negligently and thus caused the accident.In her answer the defendant could deny that allegation and counterclaim that the plaintiff was actually the one driving negligently, and as a result of the plaintiff's negligent driving the defendant's car was damaged.If the defendant can prove her counterclaim, the plaintiff would be liable (responsible) for the damage to the defendant's car.

After the pleadings, complaint and answer have been filed the next step is discovery.Use your text to read about discovery and the remainder of the steps in a civil suit.

PART I.

1. Identify each of the above state statutes as either procedural or substantive law?

Both the State of Oregon, represented by the District Attorney, and Morgan file lawsuits against Bud.

2. What type of liability might Bud have incurred; civil, criminal or both? Explain your answer.

Morgan civil suit against Bud requests $85,000 in damages.

3. What court should Morgan file her lawsuit in? Explain your answer.

4. Can Bud have Morgan's lawsuit moved into federal court? Explain your answer.

5. Assuming that Driving Under the Influence is a misdemeanor, what court should the Oregon District Attorney file criminal charges in?

In addition to the money damages, Morgan has also requested a court order that requires Bud to attend weekly Alcoholics Anonymous meeting for six months.

6. What type/types of civil remedy (relief) is Morgan seeking? Explain your answer.

7. Who will determine the amount of damages Morgan will receive: Judge or Jury?

8. Who will determine if the court order she requested will be issued; Judge or Jury?

9. Briefly explain the process Morgan will have to go through to initiate her suit.

10. What will the standard of proof be in Morgan's suit?

11. What is the standard of proof in the District Attorney's case?

(There is a second page to this assignment.)

At trial Morgan prevails and is awarded $78,000. Nine weeks later, Sue comes forward and says that she saw the accident. Sue says that it looked to her as if Bud was parked along the road and that Morgan crossed the centerline and ran into him. Bud appeals the civil court verdict.

12. In what court should Bud file his appeal?

13. Will the appellate court consider the Sue's testimony? Explain your answer.