Background/Government Flashcards
1
Q
- God-made law, belief of inherent law that overrides those made by people, per Aristotle
- Man-made, non religious law based on interpretation of a nation’s drift, and general basis for US laws.
A
- Natural law
2. Secular law
2
Q
(1) means past court decisions largely determine the outcome of future cases. It consists of (2) and (3).
A
- Stare decisis
- Statutory law
- Prior court cases
3
Q
2 factors that determine whether precedent case is applicable
A
- Facts and issues of the case are basically the same
2. Precedent case’s court is within the same system as and higher than the current court
4
Q
The paralegal finds the most applicable (1) and (2), integrates that authority into a (3), or (4), and presents to the supervising attorney.
A
- Case law
- Statutes
- Memorandum of law
- Brief
5
Q
Court case in which US Supreme Court overturned Plessy v. Ferguson when new psychological evidence was presented that separate was inherently unequal.
A
Brown v. Board of Education
6
Q
A (1) is one where there is no prior precedent to guide the court. Cases are often resolved on the basis of (2).
A
- Case of first impression
2. Non legal traditions
7
Q
Prior to 1950sish, if a court ruled an injured party even partially responsible, they could not collect damages due to (1). Now, damages are awarded according to (2).
A
- Contributory negligence
2. Comparative negligence
8
Q
Whenever a vacancy comes up on the US Supreme Court, there is a lot of interest in whether (1) would be followed on (2). However, the judge violates (3) by (4) an issue that might be later argued before the judge. Unless there is a good reason to change the law, the judge is (5).
A
- Stare decisis
- Roe v. Wade
- Judicial ethics
- Prejudging
- Sworn to uphold it
9
Q
- Makes the laws
- Enforces the laws
- Interprets the laws
A
- Legislative branch
- Executive branch
- Judicial branch
10
Q
The three branches of gov’t show up in (1) and (2). Dividing power between these two entities is called (3). Both have their own (4) over what happens.
A
- Federal
- State
- Federalism
- Sovereignty
11
Q
2 examples of exclusive federal sovereignty
A
- Mint money
2. Declare war
12
Q
4 examples under state sovereignty
A
- Driver’s licenses
- Car registrations
- Marriages
- Divorces
13
Q
A law written by the legislative branch of a government
A
Statute
14
Q
To enact a statute, a legislature must pass a (1) through both the (2) and (3) and then send it to the (4) to get signed, which is the president at the fed level and the governor at the state level.
A
- Proposed bill
- House
- Senate
- Executive branch
15
Q
In each house, first the bill is referred to a committee that considers its (1). If the bill pertains to the courts, it is likely sent to the (2) of that house. If the (3) or (4) doesn’t like the bill, it can die there. If the bill is changed in either house, (5) will try to iron out the differences.
A
- Particular subject matter
- Judiciary committee
- Committee chair
- Committee
- Conference committees
16
Q
After a bill is signed, it becomes (1). If it is (2) by the chief executive, it does unless the legislature can muster a (3). Usually this means (4) of each house.
A
- Statutory law
- Vetoes
- Supermajority
- Two-thirds
17
Q
A statute can also be called an (1)
A
Act
18
Q
Because the president/governor can’t enforce laws on his own, the (1) has created a multitude of (2) to assist. The term (3) is commonly used to refer to these. Collectively they are called a (4).
A
- Legislature
- Administrative agencies
- Alphabet soup
- Bureaucracy
19
Q
Administrative agencies also have some (1). They exert their control by the process of administrative (2) and the laws they write are called (3). One example is the (4). If somebody has a problem with their taxes, they must (5) before being heard in federal court.
A
- Legislative power
- Rule making
- Administrative regulations
- IRS
- Exhaust all administrative remedies
20
Q
Administrative agencies can act like courts when they engage in (1) known as (2).
A
- Quasi judicial proceedings
2. Adjudicatory hearings
21
Q
The judicial branch (1). It is sometimes said courts actually (2).
A
- Interprets laws
2. Makes laws
22
Q
- One power judicial branch has over legislative
2. One power leg. has over jud.
A
- Can declare laws unconstitutional, rendering them unenforceable
- Can enact a statute that says courts don’t have authority to hear specific types of cases
23
Q
Power and authority of a court to hear a particular type of case
A
Jurisdiction
24
Q
Historically, (1) has tried to narrow the jurisdiction of (2), especially their ability to decide cases dealing with (3). The President can also limit courts by (4.)
A
- Congress
- Federal courts
- Abortion
- Refusing to enforce the court’s orders
25
Cases heard by federal courts must meet one of which 4 qualifications?
1. Federal question jurisdiction
2. Disputes between two states or between the US and a foreign government
3. Diversity of citizenship cases
4. Matters involving bankruptcy
26
Controversies involving which 3 things comprise federal question jurisdiction?
1. US government
2. US constitution
3. Federal law
27
Diversity of citizenship disputes are either between (1) or (2) and the amount of damages must (3).
1. Parties from different states
2. A party from the US and someone from a foreign country
3. Exceed the amount set forth in federal statutes
28
The US District Courts compose the (1). There is at least one on every (2).
1. Federal courts of original jurisdiction
| 2. State and territory of the US
29
2 privileges held by federal judges, as required by the constitution
1. Appointee for life
| 2. Pay can't be reduced while in office
30
4 specialized courts in which federal litigation may originate instead of in the district courts
1. US Court of International Trade
2. US Court of Claims
3. US Tax Court
4. US Bankruptcy Court
31
The US Supreme Court, or "(1)", has original jurisdiction in all cases involving (2), (3), and (4), and in all cases where (5).
1. Highest Court in the land
2. Ambassadors
3. Public ministers
4. Consuls
5. A state is a party (eg, one state sues another)
32
Cases can be appealed to the (1), which is comprised of (2) called (3).
1. US Courts of Appeals
2. 13 units of jurisdiction
3. Circuits
33
Circuits 1-11 are numbered and (1); the other two are (2) and (3), both located in the (4). The first appeal from the (5) is heard at this level.
1. Regionally arranged
2. DC Circuit
3. Federal Circuit
4. Nation's capital
5. US District Courts.
34
Appeals from the (1) and (2) are most often heard by the federal Circuit Court. However, the (3) hears appeals from the US Tax Court.
1. US Court of international Trade
2. US Court of Claims
3. Circuit court that has jurisdiction over the party involved in the suit
35
2 terms for an appeal to US Supreme Court
1. Petition for Review
| 2. Petition for Certiorari
36
2 terms for US Supreme Court's agreement to hear a case
1. Writ of certiorari
| 2. Granting cert
37
2 reasons US Supreme Court would hear a case from a state supreme court
1. Case involves a federal question
| 2. State's supreme court refuses to hear the matter
38
2 reasons New Jersey v. New York was heard by the Supreme Court in 1993.
1. Dispute between states
2. Original compact (granting Ellis Island to NY and submerged land to NJ) was ratified by Congress, so it became US law.
39
The Supreme Court provides final review on appeal for all cases emanating from (1). It may also review decisions appealed from each state's (2). However, the Supreme Court only (3).
1. US Court of Appeals
2. Supreme Court
3. Selects 100 out of 8,000 petitioned cases a year
40
2 reasons Supreme Court may take on a case
1. Justices want to rule on a controversial issue
| 2. To reconcile conflicting decisions from among differing jurisdictions on questions of how to interpret federal law
41
9 matters state courts hear
1. Almost all divorce/child custody
2. Probate/inheritance
3. Contract disputes
3. Traffic violations
4. Real estate issues
5. Juvenile matters
6. Personal injury suits
7. Criminal cases
8. Matters of diversity of citizenship, with damages less than jurisdictional threshold
42
States have (1), (2), and (3). However in about half the states, cases are appealed directly to the (4).
1. Courts with original jurisdiction
2. Intermediate appellate courts
3. Courts of last resort
4. Highest court in the state
43
The (1) in state judicial systems have original jurisdiction.
1. Trial courts
44
Lower level state trial courts are called (1). Depending on the state, they may be known as (2), (3), (4) or any other number of different names.
1. Courts of limited jurisdiction
2. County courts
3. District courts
4. Justices of the peaces
45
Lower state trial courts often decide (1) and (2). They have greater (3) than higher-tiered courts and are typically more (4), granting them the nickname (5).
1. Civil cases involving money below a certain dollar amount
2. Misdemeanors
3. Caseloads
4. Informal
5. The people's court
46
Upper-tiered courts are referred to as (1). States will refer to them as (2), (3), (4), or any number of other names.
1. Courts of general jurisdiction
2. Superior courts
3. State courts
4. Circuit courts
47
2 types of cases upper-tier state trial courts may hear
1. Criminal felony prosecutions
| 2. Civil matters involving unlimited amounts of money
48
Appellate courts, both state and federal, generally hear cases (1).
1. From trial courts within their geographical region.
49
What does matter of right mean?
A person has an absolute right to have a higher court review his appeal from a lower court.
50
What is discretionary review?
An appeal type from intermediate courts, necessary because the higher court has discretion as to whether it will hear the case. Opposite of a matter of right.
51
An (1), or losing party, generally can't have a case heard all over again. The appellate court's duty is to decide whether there was an (2), not to decide the (3). However, in a (4), the case will be heard all over again.
1. Appellant
2. Error of law
3. Facts of the case
4. Trial de novo
52
Local court systems are similar to (1). Depending on the state, they are called (2), (3), (4), (5), or other names.
1. Lower-tiered state courts
2. City courts
3. Municipal courts
4. Town courts
5. Village courts
53
Local courts generally only have jurisdiction over laws of (1), (2), or (3). Locally legislated laws are called (4). They are analogous to (5) at the state and federal level, but only within the boundaries of the local government.
1. Cities
2. Towns
3. Counties
4. Ordinances
5. Statutes
54
Generally, local level criminal cases are (1) or (2). Local governments usually prosecute violations of (3) or (4) and may prosecute local (5).
1. Petty
2. Misdemeanor
3. Zoning ordinances
4. Building codes
5. Traffic violations
55
Local court appellants can appeal to (1).
Courts of general jurisdiction in the state court system
56
The US Constitution guarantees an (1). Parties in civil suits may choose to be heard by a (2) instead. This decision can depend on the (3) or the (4).
1. Absolute right to trial by jury
2. Judge
3. Case
4. Which judge is assigned to hear the case
57
A judge hearing a trial decides (1), such as how to interpret or apply a statute or ordinance. A jury, however, decides (2), such as whether a party acted reasonably.
1. Issues of law
| 2. Questions of fact
58
What is jury nullification, and why does it sometimes happen?
It is the jury's choice to ignore the law that a judge set forth, or acquitting a party it has deemed guilty of violating the law. It happens when a jury feels a law is unjust or is being applied unfairly in the particular case.
59
Jury nullification has been deemed an additional (1). In fact, it helped repeal (2).
1. Check and balance
| 2. Prohibition
60
1. Group of judges
2. Group of attorneys
3. Trial by judge
1. Bench
2. Bar
3. Bench trial
61
Usually an attorney requests a bench trial in cases, like (1), where (2) are straightforward but the (3) is complicated.
1. Complex contract disputes
2. Facts
3. Law
62
A jury trial (1), (2), and (3) than a bench trial.
1. Takes longer
2. Has a greater backlog
3. Costs more
63
Two exceptions to amassed legal fees?
1. Law provides legal fees to winning party (civil rights lawsuits)
2. Contract cases in which contract specifies payment of legal fees by losing party
64
A jury determines (1), such as whether a witness is (2).
1. What's true and what's not (facts of the case)
| 2. Credible
65
In criminal cases, jurors must (1) decide a defendant is guilty (2). In death penalty cases, they must also unanimously decide (3).
1. Unanimously
2. Beyond a reasonable doubt
3. Sentencing recommendation
66
In a civil suit, burden of proof is by a (1), meaning plaintiff's version of events is (2) to be true.
1. Preponderance of evidence
| 2. More likely than not
67
Either (1) or (2) may request a jury and front the (3). Usually this demand must be filed no later than (4) after service of the last pleading.
1. Plaintiff
2. Defendant
3. Required jury fee
4. 10 days
68
1. Governs processes of how laws are applied through courts and other tribunals
2. Consists of actual rules that govern society
1. Procedural law
| 2. Substantive law
69
Three general areas of substantive law?
1. Administrative
2. Criminal
3. Civil
70
Administrative law concerns the operations of (1) within the (2) branch, like (3), (4), or (5).
1. Agencies
2. Executive
3. Social services
4. Workers' comp
5. Unemployment benefits
71
Criminal actions occur when (1) or (2) government files charges on a person alleged to have committed a (3) and injustice against the "(4)" of the "(5)".
1. Federal
2. State
3. Public offense
4. Peace and dignity
5. People of the state
72
Civil law consists of (1) used to compel (2). Unlike criminal cases, plaintiffs and defendants in civil cases are (3).
1. Personal actions
2. Compel payment
3. Private citizens
73
Two major categories of civil law
1. Torts
| 2. Breaches of contract
74
Provisions of (1) laws create (2) to administer those laws.
1. Legislatively passed
| 2. Agencies
75
(1) created (2) cabinet-level departments to assist (3) on carrying out duties. The (4) appoints cabinet heads, who are subject to (5). The agencies undergo constant (6) as (7) change.
1. Congress
2. 15
3. Chief executives
4. President
5. Senate confirmation
6. Reorganization
7. Priorities
76
The (1) oversees minting currency and its sub-agency, the (2).
1. Department of the Treasury
| 2. Internal Revenue Service
77
3 examples of independent (non-cabinet) agencies overseen and regulated by the federal government
1. Federal Trade Commission
2. Social Security Administration
3. Federal Communications Commission
78
3 examples of types of agencies only the federal government (not local or state) can oversee
1. National defense/military (Department of Defense)
2. Minting money (Treasury department)
3. Regulation of nuclear energy
79
2 areas federal and state governments may share administrative authority
1. Environmental regulation
| 2. Labor relations
80
State agencies deal with matters of local concern, such as (1), (2), (3), and (4).
1. Licensing of cars and drivers
2. Professional licensing of lawyers and doctors
3. Alcoholic beverage regulation
4. Voting
81
Local governments deal with things like (1), (2), and (3).
1. Building permits
2. Marriage licenses
3. Crime reports files with local police/sheriff's offuce
82
Paralegal work requires interaction with (1).
1. Administrative agencies
83
Three fears about agencies that led to enactment of the Administrative Procedure Act
1. No legitimacy in Constitution
2. Not elected by the people
3. No limits to power
84
(1) enacted the Administrative Procedure Act in (2). It applies only to (3), though most (4) have adopted their own form.
1. Congress
2. 1946
3. Federal
4. States
85
Under the APA Congress delegated 2 kinds of powers to admin agencies: (1) and (2).
1. Legislative rule-making
| 2. Quasi-judicial adjudicatory hearings
86
Rulemaking is the term for agencies (1).
1. Making laws that govern society
87
Adjudicatory hearings are a lot like (1). (2) appear before the agencies and argue their respective positions, and the agency determines the (3) of parties.
1. Court proceedings
2. Adversarial parties
3. Rights and responsibilities
88
Example of rulemaking: (1) to fill in blanks regarding specific situations among the complex (2).
1. Internal Revenue Service
| 2. Internal Revenue Code
89
2 reasons directors of independent federal agencies have more independence than cabinet agencies, despite being appointed by the president
1. Set terms of office
| 2. Can't be removed at president's whim
90
If agency rulemaking rules do not meet parameters of the (1), the courts have power of (2) and can strike down the rules. Congress can also (3) admin rule and employ (4) to override rules by (5).
1. Legislative branch
2. Judicial review
3. Veto
4. Legislative oversight
5. Legislation
91
Despite relative (1) of agency hearings, adversarial parties (such as Social Security vs. recipient) are granted (2) under the (3).
1. Informality
2. Due process
3. Administrative Procedure Act
92
4 examples of due process rights
1. Right to notice of hearing
2. Right to call witnesses and cross-examine government witnesses
3. Right to counsel or other representation if desired
4. Right to judicial review (appeal)
93
Administrative hearings are one of the few venues where paralegals may (1), because paralegals are (2) than attorneys and (3). Representation by paralegals may not always (4) by agencies, and finding out is important.
1. Represent clients
2. Less expensive
3. APA doesn't make provisions for people who can't afford representation
4. Be allowed
94
If a paralegal represents a client when doing so is not allowed, they may be found guilty of (1), which is a (2) in many states.
1. Unauthorized practice of law
| 2. Crime
95
(1) simply means trying to persuade someone to go along with what you want. In a legal context, it involves trying to influence the person with (2) to rule in favor of your (3). The difference between (4) and (5) advocacy depends on whom you are dealing with.
1. Advocacy
2. Decisions making authority
3. Client
4. Formal
5. Informal
96
5 examples of tactics employed in informal advocacy
1. Ask for specific regulations that allow them to stonewall your request
2. Appeal to equity, justice, common sense
3. Appeal to emotion
4. Flattery
5. Develop a rapport
97
Formal advocacy goes beyond the (1) to a more official setting, like an (2).
1. Agency official behind the desk
| 2. Administrative tribunal
98
Techniques applied to formal advocacy resemble those made by (1). When all administrative remedies are exhausted, the case may be appealed in (2).
1. An attorney when litigating a matter on court
| 2. Civil court
99
1. Nickname for government in state prosecution
| 2. Nickname for government in a federal criminal violation
1. "The people of the state"
| 2. "The United States"
100
Although the victim of a criminal act is very similar to the plaintiff in a civil suit, the true plaintiff in a criminal case is the (1) that presses charges. This is called the (2), (3), or (4). On the other side is the (5) or (6).
1. Government agency
2. Public prosecutor
3. District attorney
4. Attorney general
5. Public defender
6. Private law firm
101
Breaking crimes down into essential elements is called establishing a (1). This usually involves proving the (2), the (3), (4), and (5) the offense.
1. Prima facie
2. Identify of the defendant
3. Time of
4. Nature of
5. Reason for
102
The prosecutor has to (1). The defendant's job is to (2).
1. Provide proof that events happen as it alleges
| 2. Cast doubt on any or all aspects of prosecution's case
103
1. Defendant has no obligation to prove innocence
2. Found not guilty of a charge
3. Attempt to defeat criminal liability
1. Presumption of innocence
2. Acquitted
3. Affirmative defenses
104
Four types of affirmative defenses
1. Self-defense
2. Diminished capacity
3. Entrapment
4. Duress
105
Defendant did not have the ability to actually form intent to it the crime
Diminished capacity
106
Often used in drug prosecutions; defendant was lured by law enforcement into committing the crime
Entrapment
107
Defendant had to commit crime to prevent a greater harm from occurring (stealing to avoid starving)
Duress
108
2 classes of crimes
Felonies and misdemeanors
109
7 examples of felonies
1. Rape
2. Murder
3. Robbery
4. Felony assault
5. Burglary
6. Kidnapping
7. Arson
110
Crimes against (1) are more serious than crimes against (2).
1. Persons
| 2. Property
111
Homicide: (1) is intentional or knowing killing of another person. Planned ahead of time, it is (2). (3) or (4), depending on state, results from recklessness or negligence but is not intentional. (5) states that if defendants commit certain felonies and kill someone in the process, the defendant is guilty of felony murder.
1. Murder
2. Premeditated murder
3. Manslaughter
4. Negligent homicide
5. Felony murder rule
112
(1) is sexual intercourse against the victim's will. If it is sexual contact rather than intercourse, the crime is (2). Similar charges include (3), (4), and (5).
1. Rape
2. Indecent liberties
3. Child molestation
4. Child rape
5. Stalking
113
(1), or (2), occurs when someone attacks another with intent to inflict severe bodily harm, usually by strong enough means to cause death or permanent injury.
1. Felony assault
| 2. Aggravated assault
114
(1) occurs when a defendant uses force either to steal or maintain control over property. Considered a crime against (2) because (3).
1. Robbery
2. Person
3. It is a harrowing experience for the victim
115
(1) involves entering a building with intent to commit a crime. If this intent cannot be proven, it is (2), usually a misdemeanor.
1. Burglary
| 2. Criminal trespass
116
(1) involves taking a victim somewhere against their will. More serious is (2). Similar crimes include (3), where victim is unwillingly held in a location, and (4), where defendant forces the victim to do something.
1. Kidnapping
2. Harm is inflicted or a weapon is used
3. False imprisonment
4. Coercion
117
(1) is when a defendant knowingly/intentionally sets fire to a building or car. The following scenarios make it more serious: (2), (3), (4), (5). If the fire doesn't involve a building or car, it might be (6)
1. Arson
2. Person is in building
3. Fire set to dwelling instead of any building
4. Someone dies in the fire
5. Fire is set to collect insurance money
6. Reckless burning
118
5 examples of less serious felonies against property that become more serious because of the type of property involved.
1. Auto theft
2. Gun theft
3. Forgery
4. Identity theft
5. Theft of value exceeding a threshold set by state (often $250)
119
Three property crimes that become felonies when exceeding value threshold
1. Writing bad checks
2. Possessing stolen property
3. Criminal mischief (vandalism)
120
6 examples of felonies that are touted by some as "victimless crimes" but by others as crimes against the social order or the perpetrator.
1. Bribery
2. Perjury
3. Drug offenses
4. Gambling
5. Money laundering
6. Prostitution
121
Some states may allow first-time offenders convicted of low-level felonies to do (1) or (2). More likely felonies being at least (3) or (4).
1. Little or no jail time
2. Serve a suspended sentence with probation
3. Some jail time
4. Lengthy prison sentences
122
Misdemeanor defendants receive (1) in (2) rather than in (3).
1. . Lesser sentences
2. County jails
3. State prison sentences
123
3 examples of crimes against persons that are misdemeanors, despite higher premium generally of crimes against persons
1. Assault where little or no injury could or did result
2. Harassment in the form of verbal threats
3. Violation of a court's restraining orders
124
3 crimes if property that are misdemeanor if under state threshold
1. Shoplifting
2. Bad check writing
3. Criminal mischief
125
4 traffic offenses that can carry misdemeanor charge
1. Driving under influence of alcohol or drugs
2. Reckless driving
3. Driving on suspended license
4. Lacking vehicle registration
126
The great bulk of cases in our trial courts today are (1) and traditionally involve an (1), (2), or (3) seeking relief from another of those listed.
1. Civil
2. Individual
3. Business
4. Governmental agency
127
Civil cases are based on (1) and (2).
1. Tort law (ex delicto)
| 2. Contract law (ex contractu)
128
4 examples of civil cases
1. Product liability actions
2. Personal injury suits
3. Probate actions (proving of a will)
4. Domestic relations
129
Plaintiffs in civil suits, or (1), can sue defendants, or (2) either by suing for a (3), which usually means monetary damages, or by suing for (4).
1. Complainants
2. Respondents
3. Legal remedy
4. Equitable relief
130
Suits of equity generally aren't (1) and instead call on the courts for an (2) or (3).
1. Tried by jury
2. Injunction
3. Specific performance
131
An injunction is a request to the (1) to order that certain wrongful conduct be (2) or (3) right away. One example is an environmental group wishing to prevent (4). Another example is a (5).
1. Court
2. Prevented
3. Discontinued
4. Development of forests and wetlands
5. Restraining order
132
Restraining orders are often seen in divorces where one party wants to prevent (1) or (2).
1. Spending marital assets before division of property
| 2. Slipping town with the child of the marriage prior to custody hearing
133
A plaintiff seeking (1) requests the court to compel certain action, such as (2) pursuant to a contract.
1. Specific performance
| 2. Transfer of property
134
The majority of civil cases seek (1). These breach-of-contract and tort actions find their place in (2), or (3). In this justice system the plaintiff must prove (4) caused by the defendant, or (5).
1. Monetary damages
2. Anglo-Saxon common law
3. Judge-made law
4. Actual damages
5. Tortfeasor
135
Tort laws govern (1), and many torts would be (2) if the government prosecuted the perps. The civil arena allows plaintiffs to be (3) for these wrongs. To meet criteria for tort matters, plaintiffs must establish a (4), or "(5)", case.
1. Wrongs done to people and their property
2. Criminal acts
3. Compensated
4. Prima facie
5. First face
136
6 general areas of torts
1. Intentional
2. Quasi-intentional
3. Negligent
4. Strict
5. Product liability
6. Nuisance
137
2 categories of intentional torts
1. Intentional harm to a person
| 2. Intentional harm to property
138
4 torts of intentional harm to a person
1. Assault
2. Battery
3. False Imprisonment
4. Intentional infliction of emotional distress
139
Occurs whenever tortfeasor places plaintiff in imminent fear for his well-being, with of without actual physical harm
Assault
140
The wrongful touching of another person. Often occurs alongside assault.
Battery
141
If a tortfeasor unreasonably detains a plaintiff against his will for an undue time, he can sue for (1). Examples include people (2), (3), (4).
1. False imprisonment
2. Held hostage
3. Detained by police without just cause
4. Injured (emotionally or physically) while detained
142
Actions that force a plaintiff to experience a particularly gruesome event, such as their loved ones suffering injury or death and the hands of another.
Intentional infliction of emotions distress
143
3 intentional property torts
1. Trespass to land
2. Trespass to chattels
3. Conversion
144
Action that covers property owners' exclusive rights to their own property, such as farm animals and cars. (As opposed to the land on which they sit)
Trespass to chattels
145
Concerns stolen or wrongly possessed property. Civil echo to crime of theft.
Conversion
146
A plaintiff seeking removal of a trespassing defendant may bring an action of (1). A plaintiff wanting to recover converted property may bring an action of (2).
1. Ejectment
| 2. Replevin
147
Unintentional torts are tested by a standard of (1). They are the (2) and (3) torts in our civil law system.
1. Negligence
2. Most common
3. Most varied
148
Four elements to prove in a negligent tort case
1. Defendant owed a duty of care to the plaintiff (to refrain from hurting them)
2. The defendant breached that duty
3. The defendant's breach of duty was the proximate cause of the plaintiff's injury
4. The plaintiff suffered damages
149
Duty of care is often based on a "(1)" standard, in determining how the plaintiff acted and how he should have acted.
Reasonable person
150
In order to prove breach of duty, the attorney can prove that either the instrument that caused the injury was within (1) of the tortfeasor--(2), "the thing speaks for itself--or the actor violated a (3) or (4) covering the situation--(5).
1. Exclusive control or possession
2. Res ipsa loquitur
3. Statute
4. Ordinance
5. Neglicence per se
151
3 things that must be shown to prove proximate cause
1. If defendant hadn't breached his duty, the plaintiff would not have suffered
2. Injury was foreseeable
3. There were no intervening causes of the injury
152
4 examples of damages a plaintiff can show evidence for in a negligence tort
1. Special damages (receipt expenses)
2. General damages (non receipt items, like pain and suffering)
3. Punitive damages (to punish defendant)
4. Consequential damages (arising as a result of wrongdoing)
153
Plaintiff has duty to take reasonable steps to (1) damages.
1. Mitigate
154
3 defenses to negligent torts
1. Contributory or comparative negligence
2. Joint or several liability
3. Vicarious liability
155
The modem trend is to move away from a strict standard of (1) toward a standard of (2). Judge or jury examines each party's negligence and (3) damage award by (4) of negligence caused by the plaintiff.
1. Contributive
2. Comparative
3. Decreases
4. Percentage
156
If two or more people act in concert to produce harm, they are responsible in (1), even if the deeds causing the harm were (2). If a plaintiff sues a defendant for an accident on a poorly designed road, the local government, or "(3)", may be the only one able to satisfy damages awarded against (4).
1. Joint and several liability
2. Different
3. Deep pockets
4. Multiple defendants
157
(1) relates to liability one person has for another's actions. This includes relationships of (2), (3), and (4), and is a case of (5), or "let the master respond."
1. Vicarious liability
2. Employer/employee
3. Parent/child
4. Owner/user
5. Respondeat superior
158
Actions that are a miix of negligent and intentional torts
Quasi-intentional torts
159
4 quasi-intentional torts
1. Defamation
2. Invasion of privacy
3. Intentional misrepresentation
4. Wrongful institution of legal proceedings
160
Consists of making false statements about another
Defamation
161
For defamation, the plaintiff must prove that either through (1) or (2), untrue comments were conveyed to a (3) that (4).
1. Written or broadcast means (libel)
2. Injurious spoken comments (slander)
3. Third party
4. Damages another's reputation
162
3 defenses to defamation claims
1. Comments were true
2. Aimed at a public figure
3. Made non-maliciously/in jest (talk show)
163
3 ways invasion of privacy can occur
1. Name/picture used for commercial advantage without consent
2. Someone unreasonably pried into another's affairs
3. Someone unreasonably and publicly discloses another person's private affairs
164
1. Usual damages in invasion of privacy actions
| 2. Main defense
1. Emotional distress
| 2. Plaintiff consented to disclosure
165
Intentional misrepresentation torts allege that the defendant has (1) or (2) the plaintiff.
1. Committed fraud against
| 2. Deceived
166
To establish a prima facie case of intentional misrepresentation, which 4 things must be proven?
1. Defendant falsely represented himself
2. Defendant knew representation was false
3. Defendant intended plaintiff to act based on reliance on defendant'a representation
4. Damage resulted from this reliance
167
(1), or (2), covers the wrongful prosecution of a defendant in criminal cases or the wrongful suing of a defendant on civil action.
1. Wrongful institution of legal proceedings
| 2. Malicious prosecution
168
4 necessities for a prima facie case on wrongful institution of legal proceedings
1. Criminal proceeding was brought against plaintiff that was decided in favor of the plaintiff
2. There existed lack of probable cause for proceedings
3. Purpose of bringing criminal proceedings was one other than to serve justice
4. Plaintiff suffered damages
169
There are (1) for strict liability cases, in which the defendant has an (2) to make sure the plaintiff is safe. These cases aren't about (3) but (4). Examples include (5) and (6).
1. No defenses
2. Absolute duty
3. Who's responsible
4. What the damages are
5. Vicious animals
6. Ultra-hazardous activities
170
Product liability, closely related to (1), is brought against (2) and (3) of (4) or (5) products.
1. Strict liability
2. Manufacturers
3. Sellers
4. Defective
5. Potentially harmful
171
Many product liability cases are brought in the form of a (1), because the product affects (2) in a (3). In these cases a (4) represent the (5).
1. Class action law suit
2. Many people
3. Similar way
4. Few harmed individuals or one individual
5. Entire group in the action
172
Action brought against a defendant who interferes with plaintiff's reasonable use and enjoyment of property
Nuisance
173
1. Action brought against a neighbor whose excessively loud stereo causes pet hamster to die
2. Action brought against a company that dumps pollutant into a stream and kills livestock
1. Private nuisance
| 2. Public nuisance
174
2 remedies sought in nuisance cases
1. Money damages
| 2. Injunctive relief (to prevent causation of further damage)
175
A contract is an agreement between (1) to (2) some act in exchange for (3). (4) is the material aspect of the contract. A contract may be simply defined as (5), meaning "something for something."
1. Competent parties
2. Do or abstain from doing
3. Something of value
4. Consideration
5. Quid pro quo
176
4 elements of a valid contract
1. Offer
2. Acceptance of offer
3. Mutual manifestation of agreement
4. Consideration
177
An offer (1) a contract. A valid offer requires that the offering party intend that her proposal be (2) and (3).
1. Initiates
2. Legally binding
3. Complete
178
Three elements of a valid acceptance of an offer
1. Intent on the part of the acceptor to be bound by the terms of the offer
2. Unconditional demonstration of the above
3. Mutual agreement of the parties
179
To manifest assent, both parties must have an actual (1) and (2) that they're (3) by the terms of their agreement. Voiced (4) can call this into question.
1. Belief
2. Intent
3. Mutually bound
4. Doubt
180
If one party simply gives another the offered item, it is a (1) rather than a contract. Consideration may consist of (1), (2), or (3).
1. Gift
2. Item of value (money)
3. Legal detriment (forbearance)
4. Legal benefit (monetary loan)
181
Three major types of contract litigation
1. Breach of contract
2. Bad faith
3. Breach of fiduciary duty
182
Results when one party fails to fulfill contract's written or oral agreements
Breach of contract
183
Entering into a contract with no intention of fulfilling its terms. Usually compelled to pay amount lost due to this. (Insurance)
Bad faith
184
Failure to act in the best interest of a party when there exists an obligation to do so. (Stockbrokers, bankers, investors)
Breach of fiduciary duty
185
Paralegals working at a prosecuting attorney's office make sure their supervisors (1) against criminal defendants.
1. Filing the proper criminal charges
186
The prosecuting attorney begins the case by (1). He may even assist law enforcement in (2). Police offers may arrest based on (3), which is reasonable belief based on facts, that a crime has been committed.
1. Reviewing police reports of suspected criminal activity
2. Obtaining a search warrant
3. Provable cause
187
2 things a prosecutor must decide, independent of law enforcement authorities
1. Probable cause exists to charge the defendant
2. A reasonable likelihood exists that there's enough evidence to convince a jury that there's enough evidence to convict the defendant
188
2 types of charging documents
1. Indictments handed down by grand juries
| 2. Complaints (information) charged by prosecutor
189
In many felony cases, a prosecutor presents evidence to a grand jury in an attempt to gain an (1), which charges the defendant. If the gj believes there is enough evidence (probable cause), it returns an (2), or (3). If there isn't enough evidence, the gj returns (4). The result implies probable cause but does not imply that (5).
1. Indictment
2. Indictment
3. True bill
4. No bill
5. Prosecution has met burden of proving its case beyond reasonable doubt
190
In many states, a prosecutor can file criminal charges against a defendant by filing a document called a (1), or an (2). The complaint must state (3) or the defendant can have it dismissed. If this happens, the prosecutor has the option to (4). In some cases, the prosecution must preset facts to a judge who determines whether there is probable cause to charge; this is called a (5).
1. Complaint
2. Information
3. Each element of the crimes charged
4. Refile the complaint
5. Preliminary hearing
191
A paralegal working for a firm that represents criminal defendants should (1) and (2) as soon as feasible to determine whether there are any (3) in the document and whether the client should (4).
1. Review charging documents
2. Confer with a supervising attorney
3. Fatal defects
4. Raise any defenses to the charges
192
Everything a paralegal does before trial may end up in the (1).
1. Notebook to assist the attorney at trial
193
6 duties a paralegal may have pre-trial
1. Collecting police reports and other data
2. Collecting an organizing evidence
3. Interviewing witnesses and preparing them for trial
4. Preparing discovery documents
5. Assisting with pre-trial motions and briefs
6. Maintaining a schedule of deadlines
194
4.steps a paralegal should take in gathering police reports
1. Compare notes of detective with notes of prosecutor
2. Stay up to date on prosecutor's notes as the detective does follow-up investigations
3. Request reports that do not normally show up in the detective's investigative case file
4. Create a log of all photos, property and evidence
195
4 examples of reports not ordinarily in the detective's file that the PL should track down
1. Report showing whether breath testing machine was calibrated properly (drunk driving cases)
2. Autopsy report from medical examiner
3. Copy of 911 tape from emergency call center
4. Crime lab reports (DNA, fingerprint, ballistics, fiber analysis, handwriting analysis)
196
5 pre-trial duties of a PL in contacting the people surrounding the case
1. Contact crime victims and witnesses (from pros. and defense)
2. In homicide cases, arrange to meet with family of deceased.
3. Line up professional counseling for victim, if needed
4. If on defense, visit jail to talk to client
5. Remind defendant of attorney'a advice not to discuss the case with anyone
197
4 duties of PL pre-trial in obtaining tangible evidence
1. Help victim determine restitution if defendant gets convicted
2. Help victim gather receipts and paperwork for losses like property damage, lost wages, and identity theft losses
3. Ask victim to sign release of medical records in case medical personnel need to be subpoenaed
4. Obtain rap sheets on defendant, victim and all witnesses for impeachment (Impugning of their credibility)
198
Based on (1), the prosecution may offer a plea bargain, which is an attempt to (2), usually by (3) or by (4). In exchange for a (5) or (6) from the defendant.
1. Evidence and witnesses
2. Settle the case
3. Reducing or dismissing some charges
4. Reducing the severity of punishment
5. Guilty plea
6. No contest
198
With a no contest plea, the defendant neither (1) nor (2) guilt. T means that, though the defendant (3), he concedes that (4).
1. Admits to
2. Denies
3. Professes innocence
4. A jury might find him guilty
