Exam 4 Flashcards
Chattel Property
Category or property associated with movable goods.
Fixtures
Goods that have become so related to particular real property than an interest in them arises under real property law
Trademarks
A word, phrase, design, or combination that identifies your goods or services, distinguishes them from the goods or services of others, and indicates the source of your goods and services.
Patents
Technical inventions, such as chemical compositions like pharmaceutical drugs, mechanical processes like complex machinery, or machine designs that are new, unique, and usable in some type of industry.
Copyright
Artistic, literary, or intellectually created works, such as novels, music, movies, software code, photographs, and paintings that are original and exist in a tangible medium, such as paper, canvas, film, or digital format.
Concept of right of survivorship
Each tenant possesses an undivided interest in the whole estate. When one tenant dies, the tenants interest disappears and the others tenants’ shares increase proportionally and obtain the rights to the entire estate.
Attributes of tenancy by the entireties
Only applicable to husbands and wives; neither spouse can individually terminate it; alone they can not sell or lease an interest in such property without consent of the other.
Key distinction between joint tenancy & tenancy in common
Joint tenants must receive their property interest simultaneously and from the same source and must have an equal share with equal right to possess the entire property. On the other hand, tenants in common can receive their interest at different times and sources and don’t have to possess equal shares.
Attributes of a life estate
Lasts until the death of the owner or another specified individual.
Distinction between a warranty deed & quitclaim deed
Warranty deed makes a promise. Quitclaim deed makes no promise.
Constitutional requirements for government’s exercise of eminent domain
Fifth Amendment: Property must be put to public use & the owner is entitled to “just compensation” for his loss.
Nature of an FED action
Forcible eviction and detainer: action to evict a tenant.
Sources of law governing civil procedure in Alaska
Rules of court: General & Local
Statutes
Case Law
Key distinctions between an action at law & an action in equity
At law: Claim for damages
In equity: Claim for non-monetary remedy
Personal jurisdiction vs subject matter jurisdiction
Personal jurisdiction: Authority over parties & may be created by parties’ consent.
Subject matter jurisdiction: Authority to hear type of proceeding & cannot be created by court or parties’ consent.
In rem jurisdiction vs in personam jurisdiction
In rem: against a thing
Personal: Authority over parties.
Concept of venue
Proper geographical court in which to file an action (where defendant resides or where cause of action arose)
Function of a summons
To notify a defendant that a lawsuit has been filed against them and they must file an answer within a specified number of days.
Nature of a class action
A suit brought by a “class” representative on behalf of all.
Alaska prerequisites for class action
Class is so numerous that joinder of all members is impracticable; questions of law or fact common to the class; claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representatives will fairly and adequately protect the interests of the class.
Scope of discovery under Civil Rule 26
Relevant & not privileged; need not be admissible at trial.
Attributes of work product
Privileged material prepared in anticipation of litigation.
Relationship between work product doctrine & discovery
If work product is requested, the party requesting must show a substantial need for preparation in their case and they’re unable without undue hardship to obtain the substantial equivalent of the materials by other means.
Concept of alternative dispute resolution (ADR)
Any method of resolving disputes without litigation.
Advantages of alternative dispute resolution
Rapidity, confidentiality & flexibility. Reduces burden on courts, saves public and litigant funds, greater litigant satisfaction.
Approximate percentage of civil cases resolved without trial in state courts in recent years
99% (1% concluded at trial in state courts)
Public policy in Alaska regarding alternative dispute resolution
There is a strong public policy in favor of the settlement of disputes. They facilitate communication and compromise; encourage litigants to voluntarily resolve their disputes; and simplify, shorten and settle litigation without taking up valuable court resources.
Essential distinction between binding & nonbinding ADR
Binding: Agreed to give up their right to go to court and are bound by some method of ADR.
Nonbinding: Retain rights to litigate dispute.
Attributes of negotiation
Parties discuss contested issues in attempt to resolve dispute & can take place before suit is filed and before or after trial.
Attributes of mediation
Third party to evaluate case and bring parties together. Often used in family law, labor law, and personal injury litigation.
Law governing arbitration in Alaska
AS 09.43.010
Uniform Arbitration Act
Function of a discovery referee or special master
Hired by parties or appointed by court to decide disputed pretrial matters.
Plea bargains & issue of disparate power
Allows threats to become a deciding factor in plea bargains.
Rules of evidence vs evidence rules commentary
Rules of evidence are the laws and commentary simplifies an explanation of the rules.
Four basic types of evidence
Witness testimony
Exhibits
Stipulated facts
Judicial notice (fact or law)
Attributes of stipulated facts
Facts on which parties agree; must be offered and admitted into evidence.
Attributes of judicial notice
Not subject to reasonable dispute in that it is either generally known within this state or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Categories of judicial notice
Fact and law
Lay witnesses & personal knowledge
Lay witnesses give testimony about an event based on his or her personal knowledge.
Definition of relevant evidence
Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Function of Evidence Rule 403
Evidence may be excluded if its probative value is outweighed by the danger or unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Types privileges recognized under the Alaska Rules of Evidence
Refuse to be a witness, refuse to disclose any matter, refuse to produce any object or writing, prevent another from being a witness or disclosing any matter or producing any object or writing.
Four common methods of impeaching a witness
Personal bias
Prior inconsistent statements
Prior convictions
Character for untruthfulness
Definition of hearsay
Out of court statement offered in evidence to prove the truth of the matter asserted.
Five parts to a trial identified in jury instruction 1.03
Opening statements
Presentation of the evidence by both parties
Closing arguments
Instruct the jury about the law they must apply to reach their decision
Jury deliberations
Sources of law governing conduct of state court trials in Alaska
AK Civil Rule 46 (Conduct of Trials)
Criminal Rule 27 (Proceedings upon trial - management of juries)
Sources of law governing federal trials in Alaska
Chapter 121
Function of a motion in limine
A motion, heard in advance of jury selection, which asks the court to instruct the defendant (or plaintiff), its counsel and witnesses not to mention certain facts unless and until permission of the court is first obtained outside the presence and hearing of the jury.
Essential elements of a trial brief
No more than 25 pages and must include:
Listing by docket number of the operative complaint and each substantive pre-trial order
Description of each claim that is at issue for the trail, together with a summary, by claim, of the anticipated evidence
Discussion of relevant legal authority
Summary of anticipated evidentiary issues
Source of jury venire in Alaska
Adults who apply for PFD
Function of voir dire
Potential jurors are question by either the judge or lawyer to determine their suitability for service.
Voir dire challenges for cause vs. peremptory challenges
For cause: denial due to juror not be fair and impartial.
Peremptory: denial without reason.
Verdict requirements in criminal vs. civil cases
Criminal: Unanimous
Civil: 5/6
Function of an in-court clerk
Administers the oath to prospective jurors & witnesses; responsible for physical exhibits introduced into evidence; responsible for other administrative aspects of a trial.
Policy issues associated with felon jury disqualification
Racially discriminatory
Function of a Batson challenge & contemporary issues of a representative jury
To point out discriminatory practices; doesn’t allow for a jury of one’s peers
Concept of implicit bias and associated policy issues
Automatic and unintentional bias.
May act as a barrier to objective and unprejudiced justice.
