Al Jones

Memorandum

To: Mr. Al Jones

From: Team C Legal Defense

Date: July 13, 2009

Subject: Legal System Identification, Comparison, and Analysis

Introduction

Thank you for providing Team C Legal Defense with the opportunity to assess and analyze your legal situation. A summary of the legal situation is outlined below:

As you indicated, your business is in the process of developing the infrastructure of its newest and largest residential subdivision. The City was contacted, by your company, to install a utility line using an existing utility line that was located on an easement to the subdivision. According to your information, while installing the utility line, the City discovered the easement was not located on the subdivision property but was located on the land next to the subdivision which the owner had not granted permission to use the easement or utility line. Upon finding the error, the City is threatening to close down the subdivision and is threatening to sue you for fraud against a municipality. The owner of the land adjacent to the subdivision is also threatening to sue for damages to his property and for trespassing.

According to the summary, two cases could be filed against the company; both being of a civil matter. A civil case usually begins when a person or organization determines that a problem can't be solved without the intervention of the courts (American Bar Association, 2009). Mr. Jones, we are confident the team will prevail in both cases however, there is missing information that we may need to address in future meetings, such as, how much the City is expected to sue for the allegations against the company and how much the owner of the property is expected to sue for damages of his property which will decide which court system will be used for the civil cases.

Team C Legal Defense will provide you with the correct jurisdiction (federal or state) to handle the legal situation based on the information provided today and could change should the amount being sued be larger than expected, identify the stages and processes for reviewing the situation in civil court, compare the proposed resolution of the civil aspects of the legal situation, and analyze the success of the court proceedings and any alternative means of resolving the civil matter.

State or Federal Court

Team C Legal Defense is confident the legal situation will be handed by the state courts as outlined below however, with the owner being a citizen of Switzerland, the federal court might be the correct jurisdiction for the civil case from the owner of the property.

The case against the City, should they sue, would be handled by the state courts, general jurisdiction trial court. The general jurisdiction trail court hears cases that are not within the jurisdiction of limited-jurisdiction trial courts, such as felony cases, civil cases over a certain dollar amount, and so on (Cheeseman, 2007). However, if the amount of the case is less than $5,000 the case could be handled in the small claims court which would not require our assistance in the court room but we would prepare you for the trial date should that occur.

The case against the owner of the property, should he sue, could be handled by the state court or the federal court depending on the dollar amount of the suit. If the case is handled by the state court, the general jurisdiction trail court would hear the case and if the dollar amount is less than $5,000, small claims court would hear the court; same as the case against the City. The only difference between the two is the owner is not a citizen of the United States; he is a citizen of Switzerland. Depending on the amount of the suit the case could be heard under the jurisdiction of the federal court; diversity of citizenship. Diversity of citizenship cases occur between (a) citizens of different states, (b) a citizen of a state and a citizen or subject of a foreign country, and (c) a citizen of a state and a foreign country where a foreign country is the plaintiff (Cheeseman, 2007). The only way a case can be heard by the federal court under this jurisdiction is if the amount of the suit is $75,000 or more.

As stated above, the amount of each suit is pending and could change where the civil suit from both, the City and the owner would be heard; state court: general jurisdiction trial court or small claims court, or federal court under the diversity of citizenship.

Civil Court Stages and Processes

Without knowing which avenue this dispute will follow, let us explain to you what may occur if this dispute does proceed to litigation. There is a pretrial process that is normally broken down into five different phases: pleadings, discovery, dismissals, pretrial judgments and settlement conferences. The pretrial litigation process mainly is telling the courts (Meaning the judges or an official assembly for the transaction of judicial business [Courts, 2009]) that the disagreement can no longer be resolved without judicial intervention (Pre-Trial Procedures in a Civil Trial, 2008).

A pleading is the paperwork filed with the court to start and respond to a lawsuit. Major pleadings consist of a formal complaint naming the parties, listing the facts, explaining how the landowner was hurt, how much damage was caused, and then the petitioner(s) will be asking for a remedy (resolution) from the courts. We, on your behalf, will respond, or answer to the plaintiff's complaint. If we do not respond for you, the court will find you (the defendant) liable and the plaintiff then only has to prove their damages. If we do respond that the allegations are denied, the case will proceed to court. We may also respond "affirmative defense" stating that the city did not check for permits or a legitimate easement prior to installation of the utility line. We can discuss the options further in person at our next meeting. It is our hope that the city, and the neighbors, do not intervene their lawsuits as the courts may consolidate the cases if they see no cause for undue prejudice against you. This could only mean exposure with bad publicity. Under circumstances of this nature, it may not hurt for us to request a "change of venue". This is where pretrial publicity may prejudice jurors in our area, so in order to have a more impartial jury, courts may allow the case to be tried elsewhere.

During the discovery of the pretrial legal process, each party is trying to consolidate facts about the case and accumulate any witnesses prior to going to trial. The goal is to have a well planned and organized effort to promote a positive settlement for your case. During the discovery timeframe, depositions (oral testimony from given parties and witnesses) will be given; however, note that normal practice by the courts is to videotape this question/answer meeting. The deponents (person giving the deposition and answering the questions) will be placed under oath. You should expect written questions known as interrogatories that we will help you answer, in the specified time period; again, the answers will be signed by you under oath.

Both sides of the lawsuit normally request the other party's documentation that refers to the case; this is known as production of documents. Finally, Mr. Jones, the plaintiff(s) could request a physical and/or mental examination. This case has nothing to do with alleged physical injuries, so we do not necessarily see this happening.

At this point of the pretrial motions, the judge will either find the presented facts to be true and award the lawsuit in favor of the plaintiff, or he may find an actual dispute and the motion will then be denied and the case will go to trial. A jury trial will occur unless both parties would agree to waive this right; however, as your legal counsel, we do not believe that is the best option for your legal support.

If we do go to trial, the trial phases are as follows:

1. Jury selection - individuals are selected from a process called "voir dire". Voir dire is the examination of potential jurors through a questioning process by judges and attorneys (Voir Dire, 2007).
2. Opening statements - attorneys speak to the jury in giving them a summary of the argument, the legal issues and the facts. The information presented during this time is not submissible evidence.
3. Burden of Proof (Known as the plaintiff's case) - the attorney for the plaintiff(s) will present their testimony to the court. The defendant's attorney may question the witnesses (known as cross-examination) only on subjects that were brought up during direct examination. After the defendant's attorney finishes questioning, the plaintiff's attorney may ask questions called a redirect examination.
4. The defendant's case - this happens only after the plaintiff concludes their case. This would be where we would have to rebut what was stated in the plaintiff's presentation, prove our affirmative defense that the city did not check for easements or permits prior to beginning installation, and provide our supporting evidence. Any witnesses we may present may be cross examined similar to the plaintiff's participation that we explained earlier. When we conclude, if the plaintiff's legal representative would like to call additional witnesses to rebut our case, they may do so at this time. This is known as the rejoinder (Cheeseman, 2007).
5. Closing arguments - when both the defendant and plaintiff have presented all of their evidence, each party's attorney presents a closing argument in an attempt to convince the jurors to render a verdict in favor of their client. Upon completion of the closing arguments, the judge reads instructions to the jury explaining how they will judge the case.
6. Jury deliberation - the jury deliberates, discusses and decides the case in a separate jury room.
7. Entry of judgment - the jury returns a verdict and the judge will give judgment. There are cases where the judge finds bias or misconduct and he will overturn the verdict. This is known as j.n.o.v., or judgment notwithstanding the verdict. If the judge awards a reduced amount of awarded monies, this is called remittitur, and the trial court usually writes a written memorandum explaining the reasons for the judgment.

If the case ends with a decision that we do not win the judgment, we may appeal the trial court's decision. We should not dwell on this subject; however, it is always important to plan ahead.

Civil vs. Criminal

Even if this trial went to criminal court, the outcome of the case would not present any form of jail sentencing for minor infractions. Most likely it would stay in a civil court and if you were to lose the case, the most you would have to pay, is up to the amount of damages that the plaintiff(s) note(s) on the statement of damages. This does not mean that the judge will award the plaintiff the full amount. As noted above, the judge could call a remittitur on the courts written memorandum; and, if further evidence is presented down the road, the case could be reopened.

In criminal resolutions, if a misdemeanor or felony has been proven, then the resolution would be monetary, jail time and in hard felony cases, there could be penalty by death. But, of course, that is not the case here. Finally, once a person has been tried for a crime, they cannot be re-tried for the same crime.

References

How Courts Work. (2009). American Bar Association. Retrieved July 8, 2009, from

http://www.abanet.org/publiced/courts/cases.html

Cheeseman, H. R. (2007). Court Systems and Jurisdiction, The Legal Environment of

Business and Online Commerce: Business Ethics, E-Commerce, Regulatory, and

International Issues. (5th ed.). Upper Saddle River, NJ: Prentice Hall/Pearson

Education, Inc. pp. 16-30.

Cheeseman, H. R. (2007). Phases of a Trial, The Legal Environment of Business and

Online Commerce: Business Ethics, E-Commerce, Regulatory, and International

Issues. (5th ed.). Upper Saddle River, NJ: Prentice Hall/Pearson Education, Inc.

pp. 40.

Courts. (2009). Merriam-Webster OnLine Dictionary. Retrieved on July 10, 2009, from

http://www.merriam-webster.com/dictionary/courts

Pre-Trial Procedures in a Civil Trial. (2008). Lawfirms.com: Research Legal Topics and

Connect with Local Layers. Retrieved on July 10, 2009, from

http://www.lawfirms.com/resources/lawsuits-and-disputes/litigation/pretrial-

procedures-a-civil-trial.htm

Voir Dire. (2007). Legal-Explanations.com. Retrieved on July 10, 2009, from

http://www.legal-explanations.com/definitions/voir-dire.htm

Introduction

Switzerland is located in the middle of Western Europe. Its neighbor countries are Germany, Austria, Liechtenstein, Italy and France. The land of Switzerland encompasses an area of 41,290 sq kms and it is commanded by various mountain ranges like Alps in the South and Jura in its Northwest part. It has a strong historical background as it replaced its loose confederation system with a structured federal state, after the last civil war of 1847.

In this new well built federation system, the self-sufficiency of the "Metropolises" and "Housing development" was significantly sustained. Still, many parts of Switzerland's present Swiss Federal Constitution, keep up a correspondence to its first contemporary adaptation of 1848. The succeeding history of this city had led to a nation, in which small communities of diverging sizes, financial potencies and cultural backgrounds exist together with mutual respect. In the recent years, Switzerland has transformed its economic patterns mainly into conventionality with the European Union, which helps it in enhancing its international aggressiveness (Swiss Confederation, 2008).

Current Political and Administrative Systems

The Federal Constitution of Switzerland defines it as a confederation of the masses of 23 autonomous Cantons, in which three Cantons are dissevered into half-cantons. All these autonomous Cantons make Switzerland, a federative, parliamentary and inherent nation. The Constitution of Switzerland explains its various powers which are as follows:

Legislative

Executive

Judiciary

Legislative body of Switzerland is the Federal Parliament and it consists of two assemblies that have equal rights

National Council: It works with 200 representatives.

Council of States: It works with 46 representatives, in which 2 representatives are from each of the Cantons.

The government and the ultimate executive body of Switzerland is the Federal Council. Every year, the Federal Parliament chooses 1 of the 7 Federal Councilors to be the President of the Confederation. The Federal Court is the uppermost judicial power and it functions as the supreme civil law court, which evaluates discourtesies against the state. The Confederation has only partial powers. All the Cantons and the municipalities exert a high level of sovereignty.

All the Cantons are self-directed and they have their own establishments, parliaments, governments and courts. The municipalities of Switzerland also enjoy a certain amount of independence with their own constitutions and communal enactments, despite being under the oversight of their relevant Cantons. After gaining this knowledge of constitution, there are two legal problems that may come up to Mr. Al Jones and they also describe his legal situation:

· Mr. Al Jones can receive a threat from the municipality to close his business and to take legal action against him for fraud that he committed with the easement city utility line on the subdivision that did not belong to him.

· Mr. Al Jones can receive a threat by the neighbor to go to the court against Mr. Jones for trespassing and the harms he caused to him (Swiss Confederation, 2008).

//Above is the discussion of the location related to the problem and current political and Administrative Systems. Moving to the next direction explanation about the different forms of alternatives, to resolve the situation is to be thrown light upon//

Solution-1

The project in which Mr. Al Jones is trapped includes several large residential subdivisions within the city. Mr. Al Jones's business was to develop the infrastructure for his most recent and principal subdivision but the municipality revealed an easement against him intended for a city utility line on the subdivision that did not belong to him. The proprietor of the land also discovered an error, where the utility easement is situated. Due to this error, the municipality is threatening Mr. Al Jones to close down the subdivision and his business and take a legal action for the fraud made adjacent to a municipality.

As this is an issue which is mainly between a local municipality and a local inhabitant of the city, so the proper forum which can suit this issue is the local trial court of Switzerland. If Mr. Al Jones is not satisfied with the decision made by the local Trail court, then he can apply in the State Appeals Court and subsequently in the uppermost state appeals court (Steudler, 2003).

Solution-2

The court that can have jurisdiction over the situation of Mr. Al Jones is the local Trial Court. In Switzerland, the individual courts of every Canton are known as the trial courts of the country's federal court system. It works within some set limits, which are decided by the government and the constitution of Switzerland. These local trial courts have the authority to hear all kinds of federal cases, which include both the civil as well as the criminal affairs. As the case of Mr. Al Jones includes both the civil and criminal aspects, it will be handled firstly, by the local trial court.

Solution-3

This situation of Mr. Al Jones can be resolved in the civil court through various stages and processes because a federal civil case features a legal dispute among two or more parties. Mr. Al Jones can commence a civil proceeding in the federal court by filing a complaint. This complaint will describe Mr. Jones's situation and how he had committed this mistake and hence, the court can resolve this situation. The court can give various options to Mr. Al Jones, which can be:

The court can give him an order to compensate the damages, he had made to the city utility and the owner of that utility.

The court can order him to close his business operations, which are harming others.

To prepare a case for trial, the litigants- Mr. Al Jones and City Municipality may carry out a "discovery." In this discovery, both the litigants will provide information to each other about the issue of easement for a city utility in the form of identity of various witnesses and copies of any records related to the current issue. The objective of this discovery by trial court is to prepare for assessment which can be necessitated by the different parties involved in the case.

Authentication is a manner of discovery. In an authentication, an observer is involved to answer the underneath oath questions about the current issue in the presence of a court correspondent. The court correspondent is a person who is specially trained by the court to trace all demonstration and create a word to word account, which is called a copy. In trial, all the observers of the issue are testified under the supervision of a judge. With the help of the rules of evidence, the judge can decide the kind of information that can be presented in the courtroom. A court correspondent holds a record of the trial procedures. At the end of the proceedings, each side of the case will give a closing argument and the judge will elucidate the law that is pertinent to the business of land developer and the various determinations, the panel needs to make (Steudler, 2003).

Solution-4

The legal proceedings of a criminal case differ from a civil case in numerous important conducts. At the beginning of a federal criminal case, the principal performers are the Switzerland attorney and the majestic adjudicators. This legal representative represents the country in most of the court proceedings, together with all the criminal hearings. The majestic adjudicator analyzes the various evidences demonstrated by the representatives and decides whether there is enough verification which is required by a defendant to place trial.

In criminal cases, after a person is detained, a pretrial services or probation officer of the court can instantaneously interview the suspect and can carry an analysis of the suspect's surroundings.

The information which is received by the pretrial services or audition office will be used to assist a judge in deciding whether to release the suspect in the community before trial, and whether to enforce the conditions of liberate. The criminal court may assign either a federal public advocate or a private legal representative, who has assorted to accept such appointments from the court. In either type of appointment, the legal representative will be paid by the court from the funds appropriated by the government of the city.

The suspect can enter into a plea to the charges brought by the legal representative at a hearing known as the legal document. If a suspect is declared guilty in return to the government proceedings, he can be dropped for certain charges or he can be recommended to an indulgent sentence. This agreement is known as a plea bargain. If the suspect appears to be guilty, then the judge of a criminal court may enforce a sentence against him.

Solution-5

The probable success of a court proceeding and any alternative means of resolving the civil matter including the role of dispute resolution can be followed with these steps:

Trial court judges can encourage Mr. Al Jones and the city municipality to reach to an agreement with mutual concern, which can avoid various expenses and the time consumed in a trial.

Trial court can support the use of intermediation, adjudication, and other forms of dispute resolution alternatives.

With all these alternatives, the litigants can decide to make up their minds for a civil lawsuit with a concurrence known as the "settlement." If the issue is not settled with dispute resolution, the court can plan a trial (Federal Supreme Court of