ADMJ 101 Lecture Notes - Lecture 20: Ratio Decidendi, Judiciary Of Australia, Precedent

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rosebutterfly172

7 Sep 2020

School

GCC

Department

Administration Of Justice

Course

ADMJ 101

Professor

casey

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Document Summary

Common law" refers to the law made by the courts. the body of law that has developed through the recording of the decisions in cases coming before the courts. Case" law (we will use this term in llb101) judge made law judgments (not judgements) The individual matter in dispute before the court, its facts and parties and the decision made by the court is known as a case". What happened to give rise to the dispute before the court. The decision/judgment delivered at the conclusion of the court hearing. Decides the outcome of that case; and. May provide a judicial statement on a legal rule that may become a precedent" for other cases that come before the legal system at a later time. Two principles fundamental to justice are said to be: That like cases should be decided alike; and. That the courts should decide cases according to the law".

Related Questions

Question 1

You are president of ACME Enterprises. Every year you have to pay a federally imposed fee for your business. This statute arises from a statute that was previously passed by the United States Congress. Being very "anti-tax" you decide one year that you are tired of paying the fee and that you want to get the fee eliminated. However, you do believe that the fee is constitutional. Which branch of government could pass a law which could eliminate this fee for you?

Judicial B. Legislative C. Executive D. Municipal

Question 2

Which of the following statements is not true?

Bob, a resident of New Jersey, sues Ed, a resident of Florida, for $100,000 over a real estate deal. Bob must bring his suit in a Florida court. B. The conflict of laws may guide a federal court in deciding which state's laws to apply in a case. C. Federal courts have exclusive jurisdiction over bankruptcy cases. D. You are not required to be represented by an attorney in small claims court

Question 3

You were convicted of the federal crime of possession of cocaine with intent to distribute across interstate lines. Your case was tried in the United States District Court for the Southern District of West Virginia. Now, you wish to appeal your case to get your conviction overturned. To which body should you first appeal your case?

United States Supreme Court B. 4^th Circuit Court of Appeals. C. United States Magistrate Court D WV Supreme Court

Question 4

Venue concerns:

Whether a federal court has jurisdiction B. The most appropriate court for the action to be brought within a particular state or federal jurisdiction C. Whether a state court has jurisdiction. Whether a defendant has properly served with process

Question 5

The decision of a state court can never be appealed to the U.S. Supreme Court.

True or False

Question Six

A rule of law enabling the defendant to win even if all of plaintiffâs allegations are true is a

Counterclaim B. Deposition C. Judgement N.O.V. D. Affirmative Defense

Question 7

Johnson is a creditor of Barnes. Johnson wants to file a petition to have Barnes declared bankrupt. Which of the following statements is true?

Johnson can file his petition in either state or federal court B. Johnson should file his petition in US. District court C. Only a federal bankruptcy can hear a bankruptcy case D. bankruptcy cases can be heard in federal tax court

Question 8

Which of the following is a type of alternative dispute resolution that is binding on the parties?

Mediation B. Non-binding arbitration C. Binding arbitration D. Summary jury trial

Question 9

A writ of certiorari is the most common way to appeal a case to the Supreme Court.

True Or False

Question 10

A written record of the entire trial proceedings including the testimony of all the witnesses and any discussions between the judge and the attorneys is called a:

Treatise B. Citation C. Brief D. Transcript

Question 11

Which of the following Alternative Dispute Resolution processes can result in a decision that, under most circumstances, can't be appealed to another organization?

Binding Arbitration B. Non-binding Arbitration C. Mediation D. Mini-trial E. A & C F. None of the above

Question 12

The decision of a mediator is binding upon the parties.

True or False

Question 13 A new claim stating that plaintiff owes defendant damages because of harm resulting from the incident alleged in the complaint is a(n):

Affirmative defense B. Cross-claim C. Counterclaim D. Dissenting opinion

Question 14

Federal question jurisdiction:

A type of jurisdiction possessed by state trial courts B. Is the most common form of U.S. supreme court jurisdiction C. requires that the amount in controversy be at least $10,000 D. is jurisdiction over questions arising under federal laws, treaties, and in the U.S. constitution

Question 15

The primary way a case can be appealed to the West Virginia Supreme Court is through filing a document referred to as a:

Writ of certiorari B. writ of habeas corpus C. writ of quo warranto D. writ of mamdamus

Question 16

Which of the following is NOT true of the appellate procedure?

The appellate court hears witnesses and fathers new evidence B. A transcript of the trial must be sent to the appeals court C. The appealing party must show that material errors occurred in the trial D. The appeals court may reverse and remand the decision

Question 17

If P sues D, and D wants to allege that P's own negligence caused her injury, D should allege this in:

The complaint B. The answer C. The reply D. The counterclaim

Question 18

Uncle Jesse wants to sue Cletus Hogg (Uncle Jesse's neighbor) for trespassing on Uncle Jesse's land and for causing $50,000 worth of damage to Uncle Jesse's land. Both Uncle Jesse and Cletus live in Jackson County, West Virginia. Uncle Jesse comes to the law office you work for and your supervising attorney concludes that Uncle Jesse's case can take place in state court in West Virginia. What court should your law firm file the complaint in?

Jackson county superior court B. Jackson county circuit court of appeals C. United states district court in the southern district of WV D. Jackson county circuit court E. 4^th court of appeals

Question 19

Cases heard in the federal courts must involve either a federal question or situations in which there is diversity of citizenship between the parties.

True or False

Question 20

In the American legal system, a judge cannot overturn a jury verdict.

True or False

Question 21

A U.S. Court of Appeals is empowered to:

Hear witnesses and determine facts B. Hear only patent, copyright, and trademark appeals C. Review legal conclusions reached by lower federal courts and administrative agencies D. Make findings of fact

Question 22

A mini-trial is conducted under the supervision of the court.

True or False

Question 23

Eve attempts suicide by locking herself inside the trunk of her car. Someone discovers Eve after several days. She is still alive. Eve sues the manufacturer of her car for a large amount of money because it did not provide for a latch inside the trunk. Which of the following may be the first step that the car manufacturer would want to make in this case?

Make a motion to dismiss the case B. Make a motion for a directed verdict C. Make a motion of judgement n.o.v D. Take the case to small claims court

Question 24

Which of the following is NOT true of trials?

Preponderance of evidence is the standard used in civil trials B. proof beyond a reasonable doubt is the standard used in criminal trials C. The state can make a motion for judgement notwithstanding the verdict when the defendant is acquitted in a criminal trial D. a directed verdict may be granted in a civil case if the plaintiffâs evidence is not sufficient to support her allegations

Question 25

You sued your brother in Kanawha County Circuit Court because he hit you with his car in Charleston, West Virginia and caused you to become partially paralyzed on the left side of your body. This civil law case does not involve any federal issues or law; the case is purely a state law case and it involves about $500,000 in damages. The case was tried in a state court in Charleston and your brother lost. Your brother now wants to appeal his case to try to get the jury verdict overturned. To what organization should your brother first try to appeal his case?

United States Supreme Court B. West Virginia Supreme Court C. Kanawha County Circuit Court D. Kanawha County Family Court E. West Virginia Legislature

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Forensic Accounting by Rufus, Miller and Hanh:

Page: 68: Problem 3-92:

Below I have the article: âExpert Witness Malpractice Actions:Emerging trend or Aberration?â published in The Practical Litigatorin March 2004. Prepare a summary of the article that addresses thefollowing questions:

What is the thesis of the article?

What is meant by a friendly expert?

How do cases summarized in the article illustrate expertnegligence?

Does the Mattco case support the authorâs thesis?

What is the conclusion of this article?

How might the pre-engagement considerations discussed here, helpprevent a friendly expert negligence action?

ARTICLE:

Expert Witness Malpractice Actions: Emerging Trend orAberration?

FROM âAMUSEMENT PARKSâ TO âZOOLOGY,â the Technical AdvisoryService for Attorneys (TASA) Web site lists more than 9,500categories of experts. Large accounting firms and other forensicfirms perform litigation support services. And theMartindale-Hubbell directory contains more than 4,000 experts,ser
vices, suppliers, and consultants. In just a few decades, expertwitnesses in litigation have gone from a rarity to the commonplace,for both trial preparation and for actual trial testimony. Often,the expert testimony, especially on damages, is the main event ofthe case. As one court has noted, â[o]ften they play as great arole in
27
Laurie Strauch Weiss is a partner in the law firm of Orrick,Herrington & Sutcliffe LLP in New York, New York. The authorwould like to thank Yishai Boyarin, Orrick Summer Associate 2003,for his assistance with this article.
Laurie Strauch Weiss Expert witnesses have historically enjoyedbroad-ranging immunities. But the picture is changing.
Expert Witness Malpractice Actions: Emerging Trend orAberration?
the organization and shaping and evaluation of their clientâs case,as do the lawyers.â Murphy v. A.A. Mathews, 841 S.W.2d 671, 682(Mo. 1992). The amount of time and money expended in this area issubstantial; and as every litigator knows, an expert can make orbreak a case. But what do you do if that expert performs his or herlitigation services work negligently and it results in a pooroutcome for your client? What liability does the expert face? What,if any, liability does the attorney who selected and retained theexpert face? Yes, it is true that an expert can make or break thecase. This article addresses the âbreakâ side of theequation.
THE EROSION OF THE COMMON LAW DOCTRINE OF WITNESS IMMUNITY â¢Testimonial experts have traditionally been protected from lawsuitsarising out of their work by the doctrine of witness immunity.However, a theory of expert witness liability is emerging andseveral states have ruled that a retained expert witness, theso-called friendly expert witness who testifies voluntarily and whois compensated for his or her services, is no longer shielded fromnegligence in providing pretrial litigation services or trialtestimony. Compare Murphy v. A.A. Mathews, supra, at 680, n.7(limiting holding to pretrial litigation support services ratherthan trial testimony) with Marrogi v. Howard, 805 So.2d 1118, 1131(La. 2002) (holding that there was no immunity for either pretrialwork or trial testimony). These cases do not contemplate an actionin which a party sues an adverse expert witness hired by anopposing party.
The Traditional Rule Experts who participated in judicialproceedings traditionally were rewarded with the broad protectionof an absolute immunity privilege from subsequent liability forcommunications related to the action. Alongstanding doctrine, itaimed at allowing witnesses to be forth
right and candid in their opinions in judicial proceedings withoutthreat of a future defamation suit by an aggrieved party. Theprivilege applied to any communication â(1) made in judicial orquasi-judicial proceedings; (2) by litigants or other participantsauthorized by law; (3) to achieve the objects of the litigation;and (4) that had some connection or logical relation to theaction.â Mattco Forge, Inc. v. Arthur Young & Co., 6 Cal. Rptr.2d 781, 787 (Cal. Ct. App. 1992) (âMattco Iâ). See also Restatement(Second) of Torts Â§588 cmt. a (1977) (â[t]he function of witnessesis of fundamental importance in the administration of justice. Thefinal judgment of the tribunal must be based upon the facts asshown by their testimony, and it is necessary therefore that a fulldisclosure not be hampered by fear of private suits fordefamationâ). The policy of absolute witness immunity is groundedin concerns that without such protection, witnesses might befearful of testifying and conform the content of their testimony toprotect themselves from future suit. Although the doctrineoriginally arose in the context of protecting an expert witnessfrom subsequent defamation claims arising out of the expertâstestimony, some states, either by statute or common law,articulated broad pronouncements of the privilege. The situation ofa negligent âfriendlyâ expert was not addressed. Thus, actions bythe parties who had retained the expert rarely were pursued. Now,however, that rule is beginning to meet resistance from severalcourts, a pattern that will be discussed below. See Eric G. Jensen,When âHired Gunsâ Backfire: The Witness Immunity Doctrine and theNegligent Expert Witness, 62 UMKC L. Rev. 185, 194-95 (1993), for ahelpful discussion of the evolution of witness immunity.
Professional Liability Standards Adiscussion of expert witnessmalpractice requires reference to the general negligence
28 The Practical Litigator March 2004
Expert Malpractice 29
standard to which professionals are held. In California, forexample, â[t]he elements of a cause of action in tort forprofessional negligence are: (1) the duty of the professional touse such skill, prudence, and diligence as other members of hisprofession commonly possess and exercise; (2) a breach of thatduty; (3) a proximate causal connection between the negligentconduct and the resulting injury; and (4) actual loss or damageresulting from the professionalâs negligence.â Mattco Forge, Inc.v. Arthur Young & Co., 60 Cal. Rptr. 2d 780, 788 (Cal. Ct. App.1997) (âMattco IIIâ) (citations omitted); see also Murphy v. A.A.Mathews, supra; LLMD of Michigan, Inc. v. Jackson-Cross Co., 740A.2d 186, 191 (Pa. 1999) (â[t]he judicial process will be enhancedonly by requiring that an expert witness render services to thedegree of care, skill and proficiency commonly exercised by theordinarily skillful, careful and prudent members of theirprofessionâ).
Legal and Policy Rationales The reasons for not extendingtraditional witness immunity to expert witnesses are generallysuccinct: experts should not be given special protection; if theymake a mistake that causes damage they should be held responsibleas are other professionals. (For a discussion of arguments for andagainst see Randall K. Hanson, Witness Immunity Under Attack:Disarming âHired Guns,â 31 Wake Forest L. Rev. 497, 508-509(1996)). In addition, it has been argued that permittingmalpractice suits against expert witnesses will enhance theintegrity of their testimony and of the judicial system as a whole.See Carol Henderson Garcia, Expert Witness Malpractice: A Solutionto the Problem of the Negligent Expert Witness, 12 Miss. C. L. Rev.39, 71-72 (1991). Conversely there are numerous oft-cited policyreasons for not allowing such suits to proceed:
â¢ Experts should be protected by the general rule of witnessimmunity because the threat of litigation would lead to skilledexperts being unwilling to testify; â¢ The concern that theâone-timeâ university professor would be reluctant to testify as heor she would be unlikely to carry errors and omissions coverage; â¢The idea that the threat of liability would cause experts to changetheir testimony for fear of subsequent litigation; â¢ The argumentthat the adversarial system, specifically the tool ofcross-examination (as well as Dauberthearings) addresses, to someextent, these concerns. Compare Jensen, supra, with Adam J. Myers,III, Misapplication of the Attorney Malpractice Paradigm toLitigation Services: âSuit within a Suitâ Shortcomings CompelWitness Immunity for Experts, 25 Pepp. L. Rev. 1 (1997).
CASE LAW REVIEW â¢ Currently, eight state courts have decided casesinvolving lawsuits against âfriendlyâ expert witnesses. Theoverwhelming majority of courts, albeit a handful overall, thathave addressed the issue of negligent experts and witness immunityhave found professional witness malpractice an actionable claim.These cases all involve âfriendlyâ experts (with the exception ofNew Jersey which allowed a suit against a court appointed expert),rather than adverse party experts. (For a recent case addressingthe adverse party issue in the context of a criminal defendant whosued the prosecutorâs expert witnesses for negligently performingtests, preparing for testimony and testifying, seeDavis v. Wallace,565 S.E.2d 386 (W. Va. 2002).)
Washington State: Witness Immunity Still Controls In Washington,the immunity doctrine still
protects friendly experts from subsequent liability for negligentacts. The case of Bruce v. ByrneStevens & Assocs. EngineersInc., 776 P.2d 666 (Wash. 1989) (en banc) is the most expansivestatement yet of expert witness immunity. In the underlying actionin Bruce, two parties sued an adjacent landowner to recover thecost of stabilizing their land due to a condition the landowner hadallegedly caused. Plaintiffs hired an engineering expert to providean opinion on damages and to testify at trial. Subsequent to thatsuit, the parties discovered that it would cost twice what theengineer had estimated and thereafter brought an action against theexpert witness alleging that he negligently tendered an opinion ondamages in prior litigation. The court below had held that as theengineer was a professional, with a financial motive fortestifying, the traditional doctrine should not provide immunity toa partyâs own expert who was negligent in preparing and providingtestimony. The Washington Supreme Court disagreed and reversedholding that the engineer hired as an expert witness was entitledto immunity in a subsequent suit based on his testimony. The courtextended absolute witness immunity to the expertâs courtroomtestimony, as well as to acts and communications connected with thepreparation of his testimony. The court rejected the plaintiffsâargument that the witness immunity doctrine is narrow and shouldonly apply to defamation cases brought against an expert. The courtalso held that the fact that an expert is compensated for histestimony did not deprive him of witness immunity. Id. at 668.Finally, the court held that witness immunity extended to actionsforming the basis of the expertâs testimony reasoning â[a]nexpertâs courtroom testimony is the last act in a long, complexprocess of evaluation and consultation with the litigant.â Id. at672. The court distinguished the case where the expertâs work wasprepared separate from and prior to the initiation of litigationin
contrast to the case before it where the expert engineer was hiredspecifically for litigation purposes and the work performed formedthe basis of the testimony. The court went on to hold that âtheimmunity of expert witnesses extends not only to their testimony,but also to acts and communications which occur in connection withthe preparation of that testimony.â Id. at 673. The Bruce court didnot find the fact that an expert witness was compensated for histestimony to affect the rationale for witness immunity. The courtset forth two reasons underlying its holding: â¢ First, the courtnoted a concern about a loss of objectivity if the threat ofsubsequent liability existed; â¢ Second, the court considered thepractical problem that the threat of liability would discourageâthe 1-time expertâthe university professorâ from testifying whileencouraging the professional witness who could carry insurance toprotect against liability. Id. at 670. One justice vigorouslydissented arguing that there was no legal authority for theextension of immunity to shield otherwise actionable professionalmalpractice. The dissent argued that â[i]n reality, a distinctionmust be drawn between defamation and acts of professionalmalpractice subsequently published in the courtroom. Despite theprofessed reliance upon the policies underlying immunity, in theend the majority holds that immunity stems merely from taking âpartin judicial proceedings.â A simple analogy demonstrates theinvalidity of this holding: There is no question that an attorneyâsdefamatory statement during a judicial proceeding is shielded fromsubsequent attack under the doctrine of immunity. However, the sameattorney remains liable to his or her own client for any acts ofmalpractice that occur in that very forum. Accordingly, from thisday forward under the majorityâs new rule, professionals,particularly attorneys, are provided with a

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4â28. Multiple Choice Questions
Select the best answer for each of the following questions and explain the reasons for your
choice.
a. If a CPA performs an audit recklessly, the CPA will be liable to third parties who were
unknown and not foreseeable to the CPA for:
(1) Strict liability for all damages incurred.
(2) Gross negligence.

(3) Either ordinary or gross negligence.
(4) Breach of contract.
b. Which of the following approaches to auditorsâ liability is least desirable from the CPAâs
perspective?
(1) The Ultramares approach.
(2) The Rosenblum approach.
(3) The Restatement of Torts approach.
(4) The Foreseen User approach.
c. In cases of breach of contract, plaintiffs generally have to prove all of the following,
except:
(1) The CPAs had a duty.
(2) The CPAs made a false statement.
(3) The client incurred losses related to the CPAsâ performance.
(4) The CPAs breached their duty.
d. If the CPAs provided negligent tax advice to a public company, the client would bring suit
under:
(1) The Securities Act of 1933.
(2) The Securities Exchange Act of 1934.
(3) The federal income tax law.
(4) Common law.
e. Which of the following cases reaffi rmed the principles in the Ultramares case?
(1) Credit Alliance Corp. v. Arthur Andersen & Co.
(2) Rosenblum v. Adler.
(3) Ernst & Ernst v. Hochfelder.
(4) Escott v. BarChris Construction Corporation.
f. Under common law, the CPAs who were negligent may mitigate some damages to a client
by proving:
(1) Contributory negligence.
(2) The CPAsâ fee was not material.
(3) The CPAs were not competent to accept the engagement.
(4) The CPAsâ negligence was caused by the fact that they had too much work.
g. Under the Securities and Exchange Act of 1934, auditors and other defendants are faced
with:
(1) Joint liability.
(2) Joint and several liability.
(3) Proportionate liability.
(4) Limited liability.
h. A CPA issued an unqualifi ed opinion on the fi nancial statements of a company that
sold common stock in a public offering subject to the Securities Act of 1933. Based on
a misstatement in the fi nancial statements, the CPA is being sued by an investor who
purchased shares of this public offering. Which of the following represents a viable
defense?
(1) The investor has not proved fraud or negligence by the CPA.
(2) The investor did not actually rely upon the false statement.
(3) The CPA detected the false statement after the audit date.
(4) The false statement is immaterial in the overall context of the fi nancial statements.
i. Which of the following elements is most frequently necessary to hold a CPA liable to a
client?
(1) Acted with scienter or guilty knowledge.
(2) Was not independent of the client.
(3) Failed to exercise due care.
(4) Did not use an engagement letter.

j. Which statement best expresses the factors that purchasers of securities registered under
the Securities Act of 1933 need to prove to recover losses from the auditors?
(1) The purchasers of securities must prove ordinary negligence by the auditors and reliance
on the audited fi nancial statements.
(2) The purchasers of securities must prove that the fi nancial statements were misleading
and that they relied on them to purchase the securities.
(3) The purchasers of securities must prove that the fi nancial statements were misleading;
then, the burden of proof is shifted to the auditors to show that the audit was
performed with âdue diligence.â
(4) The purchasers of securities must prove that the fi nancial statements were misleading
and the auditors were negligent.
k. The most signifi cant result of the Continental Vending case was that it:
(1) Created a more general awareness of the possibility of auditor criminal prosecution.
(2) Extended the auditorâs responsibility to all information included in registration
statements.
(3) Defi ned the CPAâs responsibilities for unaudited fi nancial statements.
(4) Established a precedent for auditors being held liable to third parties under common
law for ordinary negligence.
l. The 1136 Tenantsâ case was important because of its emphasis upon the legal liability of
the CPA when associated with:
(1) A review of annual statements.
(2) Unaudited fi nancial statements.
(3) An audit resulting in a disclaimer of opinion.
(4) Letters for underwriters.

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ADMJ 101 Lecture Notes - Lecture 20: Ratio Decidendi, Judiciary Of Australia, Precedent

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