BLAW EXAM 1 Flashcards by bailey freeman

Established a Unified Court System (Created a Venue where people could solve their problems without conflict). Result of the Norman Conquest – William the Conqueror

King’s Courts

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Genesis of our constitution

Magna Carta

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A petition to produce the body; Required whoever induced the punishment, had to go in front of an independent court to justify why they did it.

Writ of Habeas Corpus

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Requirement that all courts, upon hearing cases, must write down the facts, issue and decision (Edward I)

Publish Decision

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Established “precedence” rule. Once a judge decided a
case, later on if there was another case with the same facts the judge would be
required to follow the decisions of the previous court.

Doctrine of Stare Decisis

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Petition, determines what you are suing for

Common Law: Writ (and Actions)

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Only things people can sue for in “King’s Court”

1 of 3 Writs and Actions: Money Damages, Recovery of personal property and Recovery of real property (land)

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“Body of Case Law” - “Judge Made Law” - English’s became NC’s giving NC its entire system of laws

Creation of Common Law

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What does society want from law?

Predictability and for it to change as society changes

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How does the common law change with society?

Changed with its values and changes to satisfy societies desires

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How does the common law accomplish predictability?

Becomes predictable under Stare Decisis

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Number of peers presented with evidence they use to decide whether they grant a bill of indictment for the person accused of the crime to be tried.

Grand Jury

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12 people that sit in jury box, listen to evidence and witnesses. Determines guilty or not guilty verdict.

Petit Jury

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Why were Courts of Equity Created?

because the 3 writs didn’t cover these types of cases (no remedy at law court/King’s Court) and King (or his chancellors that sat in) had to hear all these cases

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if one does not act within a reasonable time, equity will not hear your case.

Doctrine of Laches

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Merger of Law and Equity: ______ determines whether equity or law case

Remedy sought

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Legal vs. Equitable remedy; jury difference

Legal remedy = jury trial if requested; Equitable remedy = No jury

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now basis of our negotiable instruments law, partnership law, insurance law, surety and guaranty law, and the Uniform Commercial Code (no longer exists)

The Law Merchant

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administered by the Church – Wills, Marriages (now covers The Law Merchant)

Ecclesiastical Law

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System of law on the continent of Europe

Civil Law (Code Law)

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What state in US has Civil Law as its basis?

Louisiana (b/c settled by the French)

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Monetary Jurisdiction: Up to $5,000. Hears some non-money matters: Summary ejectment - landlord/tenant matters. Also, hear cases involving worthless checks, bail amounts, issuing warrants and if probable cause for search and seizure.

NC Small Claims Court

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Hears cases appealed from Small Claims Courts and matters involving money from $5,000 up to $10,000 as well as family law matters - Jury Trial: only if requested - Appeal is into the Appellate Division (not de novo)

NC District Courts = Civil Courts

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Trials of misdemeanors (minor criminal matters): Traffic cases, Assault, etc. - No jury trial - Appeal is into next highest Trial Court and is heard de novo

NC District Courts = District Criminal Courts

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Holds Juvenile Courts and Preliminary Hearings for persons charged with a felony

NC District Courts = Special District Courts

What court is the Court of General Jurisdiction?

Superior Courts (Civil and Criminal)

Monetary Jurisdiction: Over $10,000 - Must ask for jury - Appeal is into Appellate Division

N.C. Superior Court Civil

Jurisdiction: Appeals from District Court (misdemeanors) as well as all felonies - Jury trial without request - Appeal is into appellate court

N.C. Superior Court Criminal

Judge must be a lawyer – elected by voters in district (must be reelected) – N.C. divided into districts - NO LONGER PEOPLES COURT

NC District Courts

Magistrate is judge - not required to be a lawyer or have any legal training

NC Small Claims Courts

Judge must be lawyers - Elected statewide

N.C. Superior Courts

Jurisdiction over the Person – sheriff delivers to defendant

Service of Summons

Jurisdiction over the Person – Notice put in newspaper and published certain number of times as defined by the court

Service by Publication

Jurisdiction over the Person – a court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place in that state

Long Arm Statues

Power of the Court to hear and determine a particular type of case

Jurisdiction over the subject matter

"in rem"

Jurisdiction over the Person

"in personam"

Location of a trial

Venue

Judge MUST be a lawyer, Elected by voters in district

N.C. District Courts

3 Justice (Judge) Panels, must be lawyers, elected statewide and stand for reelection each term

NC Court of Appeals

7 Justices (Judges), must be lawyers, elected statewide and stand for reelection

NC Supreme Court

1 or more judges in each district, must be lawyers, appointed by president and confirmed by Congress, hold office for life

US District Courts

3 Justice (Judge) Panels, must be lawyers, appointed by president and confirmed by congress, hold office for life

US Courts of Appeal

9 Justices, must be lawyers, nominated by president and confirmed by congress, hold office for life

U.S. Supreme Court

Equitable Remedies: (must be unique)- Can’t use a substitute such as money, must be that specific item (Ex: rare painting) - get what was bargained for

Specific Performance

Equitable Remedies: Lawsuit; Almost always deals with real estate; to get deed to land, divide land between inheritors

Partition

Equitable Remedies: A lawsuit to establish a party's title to “real property” against anyone and everyone, and thus "quiet" any challenges or claims to the title

Quieting Title

Equitable Remedies: Discrepancies with money within a partnership (company)

Accounting

Equitable Remedies: Contract _______ is where the party is completely cancelled and the parties restored to their position before the contract was entered into. It is only available if the non-mistaken party knows or should have known about the unilateral mistake.

Rescission

Equitable Remedies: Contract _________ is where the written agreement is changed to reflect the parties’ original understanding. It is granted only if one party was not aware that the writing does not conform to the actual agreement.

Reformation

Equitable Remedies: Equitable decision; Money borrowed from bank, sign promissory note to repay. Secured by deed of trust – property owner transfers ownership to trustee to hold until it is payed off. If stop making pmts, amount b/t what has been paid and value is forclosed.

Mortgage Foreclosure

Equitable Remedies: Court order requiring someone to do something or refrain from doing something

Injunction

Laws passed by general assembly’s (Gen Assembly of NC)

Statutes

Laws passed by local governments: counties, cities

Ordinances

Tools used in Discovery

Interrogatories, Depositions, Motion to produce or examine, Examination of property, and Motion to admit Guinness of document

1st thing in a civil lawsuit?

Complaint (Part of pleadings process) - Sets out Plaintiff's Complaint (warrant or indictment in criminal matter)

When determining the make-up of jury, type of challenge used in Capital Cases, unlimited number allowed but judge decides.

Challenges for Cause

Burden of Proof - Criminal Case

Beyond a reasonable doubt

Burden of Proof - Civil Case

By the greater weight of the evidence

If granted, US courts of appeal case can be reviewed by the US Supreme Court

Writ of Certiorari

Jurisdiction: Plaintiff and Defendant of residents of different States, and dollar amount requested must be more than $75,000 (can be alternative to State’s Long Arm Statue Jurisdiction)

Diversity of Citizenship

In N.C. District Court Cases or by Agreement of the Parties - if not accepted by parties it goes on to trial (symbolic judge conducts a mini-trial)

Arbitration

In all Superior Court Cases in NC - attempts to get parties to agree on mutually agreeable settlement. If no agreement, matter goes to trial. Paid by parties, not by state

Mediation

Person charged with a felony gets this - defendant can waive (state can't) - No finding of guilt - defendant not required to present evidence and cases can end at this point but not usually

Preliminary hearing

(CASE HEARD) from the beginning – as though no decision has been made

De Novo

evidence produced by Plaintiff from which a jury may (if believed) determined that all elements of case have been proved

Crime of Facia

Request of a party for the court to do something - may be made in writing or orally in open court

Motions

o At end of Plaintiff or State presentation of their evidence by witnesses and documents, Defendant usually make this, which if granted will terminate the case in favor of the Defendant

Motion for a directed verdict

Oral examination of other party or witness, Under oath and recorded, Extremely useful, Questions must be answered by witness and not by his or her attorney, Useful at trial

Deposition

Written questions by one party to another, Must be answered in writing under oath and given to the requesting party (attorney) within a stated period of time, # of ?'s must be "reasonable"

Interrogatory

On appeal, party, against whom a verdict is returned

Appellate

On appeal, party who was successful at trial

Appalee

process of selecting the jury

Voir Dire

When determining the make-up of jury, get a limited number but generally judge does not have to approve

Preemptory Challenges

a court can exercise personal jurisdiction over certain out-of-state defendants based on activities that took place in that state (someone from out of state harms someone from this state, the long-arm statues allows them to be summonsed to the state in which it happened)

Long arm statute

Once a matter is finally decided by the highest court of a jurisdiction, the same parties may not relitigate the same issues

Res Judicata

- Enforceable rules governing relationships among individuals and between individuals and their society that establish rights, duties, and privileges that are consistent with the values and beliefs of their society or its ruling group.

"The Law"

- To provide stability, predictability, and continuity so that people can know how to order their affairs and go about their business with confidence.

Function of the Law

genesis of our constitution

Magna Carta

Maxims of Equity

He who comes to equity must come with clean hands. He who seeks equity must do equity. Equity will not suffer a wrong without equity – basis of equity

Supreme Law in the U.S.

The Constitutions

What is the order of events during "Pleadings?"

Complaint - Summons - Answer - Counterclaim - Reply

Attorneys argue to jury as to why they should return a verdict favorable to their client

Summation

Judge instructs Jury on the Law that applies to the case – legal implications in finding facts in different ways.

Instructions by Court

The U.S. Constitutional Clause that has the greatest impact on business

Commerce Clause

When State law directly conflicts with Federal law, it is rendered invalid under this clause of the US Constitution

Supremacy Clause