Court Procedure Flashcards
1
Q
4 basic duties of a paralegal
A
- Researching & analyzing law
- Interviewing & investigating
- Convening with clients
- Administrating the legal environment
2
Q
Paralegals may not tell clients they are…
A
Representing them in a legal matter.
3
Q
Despite attorney-client privilege, you may not…
A
Keep secrets from your Clint’s lawyer.
4
Q
One example of the kinds of details case administrators handle for the client and attorney
A
Money in law firm’s special account that is the winnings from a judgment or will money to be dispersed.
5
Q
If you work in the public sector you will be a member of a (1). The public sector has more defined (2) and (3).
A
- Bureaucracy
- Rules/procedures
- Job descriptions/roles
6
Q
The public sector pays less than (1) but more than (2). Government employment is also less (3) and enjoys more (4).
A
- Large firm
- Small firm
- Risky
- Rights
7
Q
5 traits that paralegals need
A
- Ability to reason
- Reliability (to meet deadlines)
- Thoroughness (to find conflicting precedents)
- Trustworthiness (to keep secrets)
- Toughness (lots of setbacks)
8
Q
2 functions for which trustworthiness is necessary
A
- Keeping info discrete that not even family members may know.
- Reporting coworkers who lack integrity.
9
Q
2 benefits of joining a paralegal association
A
- Enhancing knowledge of new areas of law
2. Networking for jobs
10
Q
You will Probably get more out of joining a (1) association than a (2) one.
A
- Local
2. National
11
Q
2 largest national paralegal associations and their respective titles.
A
- National Association of Legal Assistants (Certified Legal Assistant)
- National Federation of Paralegal Associations (Registered Paralegal)
12
Q
Recently, (1) endorsed the move for limited licensure of paralegals when (2) opposed further governmental interference with the legal profession.
A
- NFPA
2. NALA
13
Q
Many state and local organizations offer the same (1) as the national ones at at (2).
A
- Advantages
2. Fraction of the cost
14
Q
State associations are often affiliated with (1) and may be for residents of (2) or (3).
A
- NFPA
- One state
- Larger regions consisting of several states
15
Q
4 advantages of local associations
A
- Local networking
- Local job opportunities
- Speeches by prominent lawyers/paralegals
- Reasonable dues
16
Q
One other association you can join
A
Paralegal division of the ABA
17
Q
5 reasons to join an assn.
A
- Continuing education through seminars
- Quick access to changes in local court practice
- Networking
- Periodicals
- Testing for a title (CLA, RP)
18
Q
2 reasons not to join an assn.
A
- Yearly dues
2. Times required for meetings and required volunteer activities
19
Q
Successfully completing a certificate course without (1) does not allow you to say you are certified.
A
- Taking/passing the CLA/CP exam
20
Q
One component of the NALA test covers major subject areas, like (1) and (2). The other component covers substantive law areas consisting of (3) and (4). You choose from a list of (5).
A
- Legal research
- Ethics
- US Legal System
- Four other specific areas of law
- Nine
21
Q
The CLA/CP exam is similar to the (1) in its length and comprehensiveness. It can also be (3). Many paralegals (2) before taking it.
A
- Bar exam
- Grueling
- Wait until they’ve worked a few years
22
Q
Event in which court advises defendant of the charges and defendant enters a plea
A
Arraignment
23
Q
5 examples of events that may happen between arraignment and actual criminal trial, of whose dates PL will want to make sure attorney knows
A
- Hearings for bond reductions
- Pre-trial motions to suppress evidence from a search warrant/unlawful arrest
- Settlement conferences
- Readiness hearings
- Discovery compliance hearings
24
Q
When matters get continued, you generally run (1) around to other attorneys to get (2) and file these with the (3).
A
- Draft copies
- Signatures
- Court
25
About a month prior to trial, you develop a (1) and prepare (2) the attorney will send out to all witnesses. It is nice to write a (3) to the witnesses as a heads-up.
1. Final witness list
2. Subpoenas
3. Short letter
26
In criminal law, prosecutor and defense have a dirt to (1) as new info becomes available. As a PL, you may be on charge of making sure the attorney (2) and respond's to the other side'a demands.
1. Continuously respond to discovery
| 2. Makes appropriate demands for discovery
27
2 documents you may have to draft that require research and signing off by attorney
1. Pre-trial motions
| 2. Trial briefs
28
About ten days prior to trial, your attorney attends a (1) to declare that the matter is (2). The court then notifies you when a (3) and (4) are available to hear the trial. You may assist with (5).
1. Readiness hearing
2. Ready for trial
3. Judge
4. Courtroom
5. Jury selection
29
If invoked, means that witnesses aren't allowed to hear others' testimonies
Rule of witnesses
30
6 things a PL may assist with during trial
1. Ensure witnesses remain outside courtroom until it's their turn to take the stand
2. Take notes on witness testimony, especially deviations from pre-trial statements
3. Take notes on jury reactions
4. Grab court files from clerk'a office
5. Do quick legal research on a new or unanticipated issue that arises
6. Smooth out mistakes, such as witnesses failing to appear
31
3 things juries may tell you in a post-trial debriefing
1. Which witnesses were believable
2. What evidence persuaded them
3. Which arguments made sense
32
3 post-trial motions either side may bring (though usually defense)
1. Motion for a new trial
2. Motion to set aside the jury verdict
3. Motion to appeal case, if a sentence doesn't comply with the law
33
The party who appeals that decision of the lower court is called the (1) or (2). The party who defends the case on appeal is the (3) or (4).
1. Appellant
2. Petitioner
3. Appellee
4. Respondent
34
The odds favor (1) in an appellate case. If you work for a prosecutor, it's (2) he can appeal an unfavorable decision. If the jury returns a (3), you are stuck, because (4). If the case is a (5), prosecution must decide whether to bring trial again.
1. The side that wins at trial
2. Extremely unlikely
3. Not-guilty verdict
4. Double jeopardy forbids trying a defendant for the same crime more than once
5. Hung jury
35
Generally a defendant has (1) to file a notice of appeal after a sentence. If you fail to (2) within the time frame, your client (3).
1. 30 days
2. File the notice
3. Loses the right to appeal forever
36
In appellate cases, the higher court only decides whether the lower court (1). The court only considers the (2) of the case, which consists of (3), (4), and (5).
1. Made an error of law
2. Record
3. Transcripts of witness testimony
4. Exhibits the judge admitted into evidence
5. Pleadings, briefs or other documents parties have filed with the court
37
3 things PL may do to prepare for appellate trial
1. Help designate portions of the record that are relevant to the appeal
2. Make arrangements with court reporter to transcribe witness testimony
3. If on appellee side, look at parts of record designated by appellant to decide if you should supplement the record
38
After the record is ready and the court of appeals notifies both sides, the court then sets a (1), or (2), for when both parties must submit their briefs to court. The (3) is submitted first, then the (4).
1. Briefing schedule
2. Timeframe
3. Brief of the appellant
4. Brief of the appellee
39
For appellate court, there is no (1), (2), (3) or (4). There is usually (5).
1. Jury
2. Witnesses
3. Testimony
4. Discovery phase
5. More than one judge
40
Often in appellate cases, there are (1) consisting of (2) or more judges. Sometimes the entire court may hear the appeal (3).
1. Panels
2. Three
3. En banc
41
Some states have only (1) levels of courts; some have (2). Not every state calls its highest court the (3).
1. Two
2. Four
3. Supreme court
42
Every party has an absolute right to appeal from (1) to the (2). However to appeal to the next level of appellate court, she must file a (3). After all appeal levels are exhausted, the highest court issues a (4), which terminates review.
1. Trial court
2. First level appellate court
3. Petition for review
4. Mandate
43
3 ways a civil action resembles a criminal procedure
1. Pre-trial, trial, post-trial schedule
2. Court documents are similar
3. Many settle before trial
44
In a civil suit, the attorney and PL (1) the client to determine (2) of the problem. From those and (3) and (4), the staff decide whether the client has grounds to sue the other party, or a (5). If so, a contract called a (6) is executed, which says that the attorney represents the client.
1. Extensively interview
2. Underlying facts and circumstances of the problem
3. Witness interviews
4. Legal research
5. Cause of action
6. Retainer agreement
45
After the attorney and client establish a relationship, the attorney or PL writes a (1) to the defendant, spelling out the (2), a (3), and a (4). If def does not respond, the parties (5).
1. Demand letter
2. Damages sustained
3. Deadline for response
4. Request for restitution money
5. Prepare for trial
46
Determines which type of court has the authority to hear a case
Jurisdiction
47
3 types of jurisdiction civil courts can exercise over parties
1. In personam (over person)
2. In rem (over property)
3. Quasi in rem (combines both)
48
In personam jurisdiction gives the court the authority to (1) and to (2).
1. Determine rights or duties of parties
| 2. Bind parties personally to a settlement or other court remedy
49
A court has in personam jurisdiction if it meets one of which 3 qualifications?
1. Defendant resides in county of court's jurisdiction
2. Defendant is present in the county of court's jurisdiction
3. Defendant consents to a specific jurisdiction along with plaintiff
50
Under in personam jurisdiction, the plaintiff must serve the defendant with (1) notice of the impending action. This can be done by (2) or when (3). Generally the notice can't take on a form other than (4) and can't be made by (5).
1. Proper and timely
2. Serving the defendant while he is present in the county
3. The defendant can be contacted to consent to jurisdiction
4. Personal service
5. Publication
51
Two types and examples of in personam actions
1. Local (foreclosure of a mortgage within property's county)
2. Transitory (injuries from a defective product)
52
(1) of parties for in personam jurisdiction is much more broadly determined than in the past. (2) consider, for example, (3) and (4) to have consented to jurisdiction of that state's trial court.
1. Mutual consent
2. Long-arm statutes
3. Corporations who do business in a state
4. Motorists who drive across a state
53
All in rem jurisdictions are (1). Notice can be made by (2), most commonly by (3) in the locality's (4).
1. Local
2. Publication
3. Legal notice
4. Locality's officially designated newspaper
54
Quasi in rem jurisdiction is (1). A court may have jurisdiction over a (2) for having (3) within its confines, even if it is (4), as long as that property can satisfy a (5).
1. Exercised rarely
2. Party
3. Property
4. Not involved in the dispute
5. Judgment
55
Federal courts try to (1) access to their process from typical (2). To originate in a US District Court, a case must meet one of the following requirements: (3), (4), and (5).
1. Severely restrict
2. State claims
3. The US is a party to the case.
4. The matter arises under the US Constitution or a US statute (eg, civil rights issue)
5. Case involves diversity of citizenship (different states or US citizen and foreign national) and damages exceed $75,000.
56
Generally the venue (1) of a trial is chosen for the convenience of the (2), in interest of a (3) and a (4). Where venue rules allow a choice of venue, it is usually up to the (5).
1. Location
2. Defendant
3. Impartial jury
4. Fair trial
5. Plaintiff
57
4 bases for determining venue of a civil trial, after determining jurisdiction
1. Residence of one of the parties
2. Defendant's place of Doug business (for suing a corporation)
3. Site of subject matter (location of property)
4. Site of the cause of action
58
(1) may request a change of venue, but it will usually be the defendant. Reasons for change of venue include (2), (3), and (4).
1. Either party
2. Avoid bias from wide publicity
3. Convenience of witnesses
4. Judge has a conflict of interest (Motion to recuse)
59
If initial attempts to negotiate a civil case are unsuccessful, plaintiff serves defendant with a (1), or, in some states, a (2). This states the (3) and (4).
1. Summons and complaint
2. Citation and petition
3. Facts of the plaintiff's action
4. Relief sought
60
8 filings a defendant may make to begin his defense in a civil suit
1. Answer
2. Counterclaim
3. Cross claim
4. Motion to quash service of summons
5. Motion to strike
6. Motion for a more definite statement
7. Motion to dismiss
8. Reply
61
Usually in response to a complaint a defendant files an (1), which either (2) each allegation. It may also include (3) that may mitigate liabilities. It may also contain (4), (5), or both.
1. Answer
2. Admits or denies
3. Affirmative defense
4. Cross claim
5. Counterclaim
62
Requests relief or damages suffered at hands of plaintiff. Plaintiff responds similarly to a complaint.
Counterclaim
63
4 motions that may be files by defendant in a civil case, instead of an answer
1. Motion to quash service of summons
2. Motion to strike
3. Motion for a more definite statement
4. Motion to dismiss
64
Questions whether defendant has been properly served with process
Motion to quash service of summons
65
Asks the court to eliminate allegations from a complaint that defendant deems irrelevant, prejudicial, or otherwise improper
Motion to strike
66
Requires plaintiff to be more specific about facts or damages. Similar to a motion for a bill of particulars.
Motion for a more definite statement
67
A (1) requests complaint be dismissed because it does not state a prima facie case (has not provided sufficient facts). In some states this is called a (2). Generally defendant asks for a dismissal (3) so plaintiff can't refile in the same court. If the complaint is dismissed (4), the plaintiff need only amend the error and refile.
1. Motion to dismiss
2. Demurrer
3. With prejudice
4. Without prejudice
68
After filing and service of the last pleading in a civil suit, either party may request (1) in an effort to (2), (3), and (4). A (5) is required to impel non-parties to undergo a deposition.
1. Discovery
2. Ascertain the facts necessary to prepare for trial
3. Prevent surprises at trial
4. Ideally, settle the action
5. Court order
69
Oral discovery consists of (1). Written discovery consists of (2), (3), (4) and (5).
1. Depositions
2. Interrogatories
3. Request for admissions
4. Production of documents
5. Request for mental or psychological exams
70
Written discovery, which is prepared by (1), is often collected because it is (2) and can be (3). Sometimes one party may (4) another to clarify written responses.
1. Paralegals
2. Inexpensive
3. Easily stored
4. Deposition
71
A deposition is an (1) statement that a party to or witness of an action gives (2). It can be more accurate because it is (3). To be effective, a notice must be served upon the deponent accompanied by a (4) and a (5).
1. Out-of-court
2. Under oath
3. Spontaneous
4. Subpoena
5. Check for mileage and witness fees
72
Attorneys frequently take depositions of witnesses who (1) or (2). The testimony assists in determining the nature of (3) if suboenaed in the trial. It isn't (4) unless made so by (5), and it usually remains sealed in an envelope in the file until trial.
1. Can't appear in court
2. Reside out of state
3. Evidence they would testify to
4. Public record
5. Court order
73
Depositions often serve as (1) for witnesses residing out of state. Long-distance witnesses can give depositions to an official or attorney in their own jurisdiction to be forwarded to the action venue through issuance of an (2), commonly called (3). Depositions can also be used to (4) of witnesses present at trial.
1. Trial testimonies
2. Out-of-state commission
3. Letters rogatory
4. Attack credibility
74
Written discovery questions issued by either side that must be answers under oath
Interrogatories
75
1. Requests adverse parties to produce documents for inspection
2. Requires adverse party to admit or deny genuineness of statements and documents
3. May be filed if adverse party does not respond to discovery
1. Request for production of documents
2. Request for admissions
3. Motion to compel
76
After discovery, many courts set the case for a (1) or (2). This usually consists of (3) and (4) seeking to agree on undisputed facts and issues called (5).
1. Pre-trial hearing
2. Pre-trial conference
3. Attorneys
4. A judge
5. Stipulations
77
2 examples of stipulations
1. Time and location of accident
| 2. Use of pictures, maps or sketches at trial
78
2 goals of pre-trial procedure
1. Shorten trial time without infringing on rights of either party
2. Settle
79
After the court assigns a date for trial, attorneys and paralegals prepare (1). In a process called (2), they select a jury. (3) are exclusions attorneys can make for no reason when selecting jurors.
1. Trial notebooks
2. Voir dire
3. Peremptory challenges
80
After juries are selected, attorneys make (1), with the (2) going first. Next parties (3), which consists of (4) and witnesses testimony. Witnesses are questioned by (5), then (6), then (7). Then come (8).
1. Opening statements
2. Plaintiff
3. Introduce evidence
4. Exhibits of information
5. Direct examination
6. Cross examination
7. Redirect
8. Closing arguments
81
He plaintiff (1) in closing arguments, and may request to (2) as well, during which he may only (3). This is fair because the plaintiff (4).
1. Goes first
2. Speak last
3. Rebut points raised by the defense
4. Has the burden of proof
82
After closing arguments, the judge (1). Instructions are usually (2).
1. Instructs the jury on the law of the case
| 2. Agreed to ahead of time by both parties
83
The two means of collecting monetary damages post-trial from an uncooperative defendant are (1) and (2).
1. Garnishment of wages
| 2. Attachment of assets
84
A party wishing to appeal a decision must (1) within a prescribed time, and must (2) within the (3) and (4). The appellant then files an (5) with the appellate court; the appellee files a (6); and the appellant may respond to new issues raised by the appellee by filing a (7).
1. File a motion
2. File a notice
3. Trial court
4. Appellate court
5. Opening brief
6. Respondent's brief
7. Reply brief
85
The laws that actually regulate public behavior and govern intellectual property and negligence. The laws that are tried in court.
Substantive laws
86
The rules of civil procedure and evidence, which regulate how a case is presented. Occurs at all levels of government.
Procedural law
87
Paralegals deal mostly with (1), but these are usually based on the (2), or (3).
1. State civil procedural laws
2. Federal Rules of Civil Procedure
3. FRCP
88
Rule 3 of FRCP states that (1). Most people, in contrast, (2). Attorneys may use he court system if (3) or (4).
1. A civil action is initiated by filing a complaint with the court
2. Resolve civil matters without going to court
3. They think the judicial system is necessary to settle a case
4. The case runs the risk of exceeding the statute of limitations (time limit on lawsuit)
89
Federal and state statutes provide (1) within which actions can be filed with the court, which usually begin (2). So attorneys sometimes file complaints before (3) or (4).
1. Maximum periods of time
2. When an injury occurs
3. Thoroughly examining the matter
4. Serving the defendant
90
4 considerations in deciding when to file a civil complaints
1. Availability of evidence and witnesses
2. Level of preparedness
3. Schedules of attorneys, paralegals, plaintiff
4. Statute of limitations
91
Rule 4 of the FRCP deals with (1), which paralegals often do.
1. Service of process (serving a summons and complaint)
92
Why is proper service of process important?
A served party who does not appear in court defaults and loses the case without a defense, so it is important a plaintiff not be able to incorrectly claim a summons was served.
93
The usual method of serving process is (1). Rule 4 specifies (2) and (3). The latter basically stipulates someone who is (4) and (5). Some states also allow (6), where process may be served by mail or publication in a periodical.
1. Personal service
2. Who is authorized to accept service
3. Requirements for who is allowed to serve process
4. 18 or older
5. Not a party to the case
6. Substituted mail
94
Rule 4 also outlines methods for (1), proving the summons was served within time limits, usually (2) from filing the complaint. This can generally be done by (3) or (4).
1. Proof of service
2. 120 days
3. Sworn affidavit of the process server
4. Signed receipt from person who was served
95
Rule 6 tells how to (1). A deadline includes the (2), and if this falls on a Saturday, Sunday or legal holiday, the last day is (3). For time limits over (4), you include weekends and holidays; otherwise you don't.
1. Compute time limitations set by federal rules or statutes
2. The last day
3. The day immediately after
4. 11 days
96
Each state has its own rules regarding elements of (1).
1. Legal documents
97
(1) of the FCRP deals with proper drafting of a complaint. A claim must contain the following 3 elements: (2), (3), and (4).
1. Rule 8
2. Why particular court has jurisdiction over the case
3. Why plaintiff is entitled to relief and what relief is requested
4. "Demand" that court enter a judgment granting relief requested
98
Rule 8 also says that a defendant may (1), and may (2) the claims. The rules also list the kinds of (3) available the the defendant and state that (4).
1. Say he doesn't know anything about the matter
2. Admit to or deny
3. Affirmative defenses
4. Any allegation not specifically denied will be considered admitted
99
(1) emphasizes professional responsibility in submitting pleadings and motions. Each document must contain an (2). In submitting each document, the attorney verifies the pleading or motion isn't being used for (3), such as harassment of the defendant or to delay litigation, but that they are genuinely arguing the law in (4). This rule also contains (5) for violating this good faith.
1. Rule 11
2. Attorney's signature
3. Improper purpose
4. Good faith
5. Sanctions
100
(1) deals with defenses and objections made by parties subject to a complaint. A defendant or cross-claimed plaintiff in a federal case has (2) to respond, but the US government has (3).
1. Rule 12
2. 20 days
3. 60 days
101
(1) covers general rules about the discovery process. Both parties must initially disclose important info, like (2) and (3). This allows both sides to (4). Initial disclosure must be completed within (5) of the pre-trial conference.
1. Rule 26
2. Names/contact info of individuals likely to provide relevant testimony
3. Documents, data compilations, tangible things expected to be used in the case
4. Investigate witnesses and evidence
5. 14 days
102
Rule 26 also mandates expert names and testimony details be revealed (1) before trial. Disclosure of expert witnesses includes (2), (3), and (4).
1. 90 days
2. Expert's qualifications
3. Trials expert has testified in during the last four years
4. Amount of money expert is being paid to testify
103
After initial disclosure, parties may (1) additional info about evidence. The court may turn over evidence that (2) as long as it may lead to (3). Limitations on discovery are based on (4) and (5).
1. Formally request
2. Admissible in court
3. Admissible evidence
4. Relevancy of info sought
5. Burden to party providing the info
104
Rules (1) and (2) deal with depositions, which are official court proceedings that fall under jurisdiction of (3), despite that he is not present. Depos are usually limited to a (4) but may be extended. After a deposition the lawyer or paralegal will go over the transcript with the (5) to check for errors. Changes appear in an (6).
1. 27
2. 30
3. The judge assigned to the case
4. 7 hour day of questioning
5. Deponent
6. Appendix to the deposition transcript
105
6 things a paralegal may do in deposition process
1. Gather background info on deponents
2. Draft questions to ask during depo
3. Prepare own side's witnesses for deposition
4. Arrange the court reporter
5. Summarize transcript for supervising attorney
6. Follow up on info gained from depo
106
(1) covers written discovery mechanism called interrogatories. Interrogatories may be addressed only to a (2), not a (3), and must be answered (4). Federal rules limit each party to (5), though some states allow more.
1. Rule 33
2. Party
3. Witness
4. Under oath
5. 25 interrogatories
107
(1) governs the scope and time limits for requests for admissions, which requires the other party to (2) so that (3) can be determined. If a defendant denies a fact in a request for admission, he must do so by (4). If he does not respond within (5), he is considered to have admitted to the statement.
1. Rule 36
2. Admit to or deny alleged facts
3. Disputed facts
4. Addressing the facts cited
5. 30 days
108
(1) provides penalties for parties that don't adhere to the rules of discovery.
1. Rule 37
109
Likely penalties under rule 37 for:
1. Failing to make an initial discovery, answer a written interrogatory, make an admission or participate in a deposition
2. Participating in a depo or interrogatory but with evasive/incomplete answers
3. Failing to admit to a fact later proved to be true
4. Failing to disclose a witness or evidence
1. Requirement by court for full disclosure plus legal fees for extra work
2. Treated as nondisclosure
3. Party owes for cost opposition paid to gather evidence of proof
4. Witness/evidence excluded from trial
110
(1) concerns time limits and procedures for motions called (2), which request a judge to decide a case in the client's favor before the trial commences. If a judge looks at the opposing side's case in the (3) and still thinks they can't win, the motion will be granted.
1. Rule 56
2. Summary judgment
3. Favorable light
111
Different states have different (1) and (2), but fundamentals, like (3) and (4), are similar to federal cases.
1. Different document formats
2. Different time limits for responses
3. Filing complaints
4. Discovery
112
When only a judge hears a case, evidence rules are (1) because the judge is thought to be (2). When a jury hears a case, the judge must decide whether the (3) is greater than its (4). Juries are thought to (5) some evidence.
1. More relaxed
2. Capable of giving evidence the weight t deserves
3. Illumination it provides
4. Possible prejudicial effect
5. Overreact to or misuderstand
113
(1) of the Federal Rules of Evidence states that the purpose of the rules is to promote fairness and gives general procedural standards for (2). The court must conduct (3) and (4) away from the jury to prevent prejudice. The general provisions also address the (5) and the (6).
1. Article I
2. Admitting evidence
3. Rulings for admissibility of evidence
4. Hearings for admissibility of confessions
5. Partial admission of evidence
6. Admission of evidence based on the condition of certain facts being provided later
114
The first consideration for any evidence is (1), which is the focus of (2). (3) of a fact passes the test, but evidence that just (4) may not be.
1. Relevancy
2. Article IV
3. Direct evidence
4. Provides context
115
To decide relevancy of evidence, a judge asks which two questions
1. Does the evidence help to prove or disprove a disputed fact?
2. Is the fact in dispute material (integral) to the case?
116
Attempts to establish affirmative relief against a codefendant
Cross claim
117
Under the FRE, the only way that relevant evidence may be excluded is if its (1) is offset by the danger that the evidence may (2) the jury, (3), or cause an (4).
1. importance to the case
2. unfairly prejudice or mislead
3. confuse the issues
4. cause an excessive delay in the proceedings
118
(1) deals with privileged communications, relationships in which communications may not be revealed in court testimony unless (2). It's up to the (3) to determine which relationships are privileged. Attorney-client privilege does not apply when the client reveals plans to (4) or (5).
1. Article V
2. both members agree to disclosure
3. states
4. commit a crime
5. cause harm to others
119
Five types of relationships that are privileged in most cases
1. Attorney/Client
2. Doctor/Patient
3. Husband/Wife
4. Psychotherapist/Patient
5. Clergy/Penitent
120
(1) says that most people are competent to testify unless they meet certain provisions. Though the judge and jury are free to weight value of testimony based on judgment of witnesses' fitness, the FRE says that a witness may be disqualified if he (2). Only an (3) may review the case and testify without personal knowledge. The (4) and (5) can't be called as witnesses.
1. Article VI
2. lacks personal knowledge of the event at trial
3. expert
4. judge
5. jury
121
Under Article VI, requiring an (1) does not affect competency of a witness. Children and mentally challenged witnesses may be subjected to (2) to determine whether they (3), (4) and (5).
1. interpreter
2. question-and-answer sessions away from the jury
3. understand the need to tell the truth
4. can distinguish fantasy from fact
5. can communicate with the judge and jury in a meaningful way
122
(1) addresses opinion testimony. Non-expert witnesses are called (2) and may only give opinions that are (3). They may (4) but not (5) facts.
1. Article VII
2. lay witnesses
3. rationally based on their own knowledge and helpful to the jury's understanding of their testimony
4. recite
5. interpret
123
Under Article VII, aren't limited by the rule requiring (1) or the rule against (2). A judge finding an expert (3) or (4), however, may strike the expert's testimony from the record.
1. firsthand knowledge
2. opinions
3. unreasonable
4. beyond the scope of his expertise
124
(1) states that the persons who may testify to a statement or event are those who actually made the statement or witnessed the event. Testimony to a statement made by someone else, other than a party in the case, is called (2). This is because a person re-telling a story may (3) or (4), and the other side can't (5) the one who made the statement.
1. Article VIII
2. hearsay
3. embellish
4. presume
5. cross-examine
125
There are many exceptions to Article VIII; one example is testimony regarding comments overheard in an excited state after the relevant event, called (1).
1. excited utterance exception
126
Articles (1) and (2) deal with tangible evidence. Documents or tangible objects used at trial have to be (3) so that the court knows the objects are really what they're purported to be. You should only present (4) of documents so there is no (5).
1. IX
2. X
3. authenticated
4. originals
5. controversy over legitimacy
127
4 things that may be used in determining authenticity of tangible evidence
1. handwriting experts
2. serial numbers
3. fingerprints
4. eyewitness testimony
128
Legal authority consists of any (1). There are two main categories: (2) and (3). It is further subdivided into (4) and (5).
1. recorded source of material that states the law
2. primary
3. secondary
4. mandatory
5. persuasive
129
Legal authority forms the foundation of (1). (2) holds together all court decisions. As long as (3) are sufficiently similar to the present case, and as long as the court that rendered the decision is (4), the present court is bound to arrive at the same decision. The one exception is when the court finds that the (5).
1. Legal research
2. stare decisis
3. facts and issues of a precedent court
4. in the same system and higher
5. reason for the rule or past precedent no longer exists
130
A (1) is one in which the court has no prior precedent to guide its decision making, so its decision is often resolved on the basis of (2).
1. case of first impression
| 2. lonlegal traditions
131
Four examples of primary authority
1. cases
2. statutes
3. constitutional provisions
4. administrative regulations
132
Secondary sources are (1) or (2).
1. presentations of legal definitions
| 2. opinions on how the law ought to be interpreted
133
Primary authority is the (1) source and type of law. It consists of the (2) and is either (3) or (4).
1. most important
2. actual written law
3. judge-made
4. enacted
134
(1), or (2), is handed down by judicial written court decisions, or (3), which explain how a court has ruled and why. Written opinions almost exclusively regard (4) because (5) opinions aren't usually reported in law books.
1. judge-made law
2. common law
3. opinions
4. state and federal appellate court decisions
5. trial court decisions
135
(1), or (2), is the rules and statutes created by legislatures. The (3) is the highest form. (4) and (5) supersede state laws in the same areas.
1. enacted law
2. civil law
3. US Constitution
4. federal statutes
5. regulations of federal administrative agencies
136
1. laws created by Congress/state legislatures that jurisdictional citizens must follow
2. laws created by local legislative bodies, such as city council or board of county commissioners
3. laws written by administrative agencies to govern conduct of agencies themselves and the general public
1. statutes
2. ordinance
3. regulations
137
6 examples of secondary authority
1. legal dictionaries
2. legal encyclopedias
3. annotated reporters
4. law reviews
5. treatises
6. formbooks
138
A precedent case is thought to be (1) or (2), when it involves an identical issue of law and the same many similar facts as the case currently considered.
1. on-point
| 2. on all fours
139
(1) is anything a court must use in reaching its decisions. This must be (2), (3) and (4).
1. mandatory authority
2. primary authority
3. on-point
4. from a higher court in the same jurisdiction
140
3 standards that decide mandatory authority for enacted laws
1. used in the same geographical area over which they have jurisdiction
2. apply to the facts of the case
3. don't violate another law that supersedes them
141
State enacted law is usually only mandatory in the (1). (2), like the US Constitution, can sometimes be mandatory authority in (3). And US Supreme Court decisions are mandatory authority in (4) and (5).
1. the state that enacted the law
2. Federal enacted law
3. state courts
4. federal courts
5. state courts
142
A court is required to follow a case opinion in the following instances: (1) and (2). When the opinion does not meet one of these tests, it is either (3) or (4). The standard of (5) can vary among courts and is a basis for appeal.
1. when the case precedent is sufficiently similar in fact to the case at hand
2. when the case precedent comes from a court in the same jurisdiction that's higher than current court
3. persuasive authority
4. nonauthority
5. on-point
143
(1) or (2) in law books is additional language in a court's opinion that's irrelevant to the decision, and it should not be quoted as (3).
1. dicta
2. obiter dicta
3. mandatory authority
144
(1) is legal authority,
1. persuasive authority
| 2.
