Key Terms Flashcards
Novation
A new contract following an assignment that discharges an original party’s obligation
De Novo
Questions of law: i.e. conclusions of law, jury instructions
reviewed de Novo (from beginning to see if there was an error) - no deference given, reversed if reasonable belief that judge misinterpreted law.
Use, Derivative, Transaction Immunity
Use+ Derivative, or transactional alone, is enough to overcome the right against self-incrimination.
Permissive Joinder
when plaintiffs join together as multiple plaintiffs or seek to join multiple defendants
Compulsory Joinder
a party will be forced to join a suit if the party is necessary and indispensable to the case and can be joined
With Prejudice and Without Prejudice
A case dismissed with prejudice is over and done with, once and for all, and can’t be brought back to court. A case dismissed without prejudice means the opposite. It’s not dismissed forever. The person whose case it is can try again.
Interlocutory
judge made an order/decision in the middle of the case but the case is not over yet
Alienable
able to be transffered to new ownership
Taxing Clause
Comparative Negligence
A plaintiff is either barred from recovery if they are more (pure comparative) than 50% responsible for their injury or (partial comparative) their recovery is limited by the amount of responsibility the have.
Contributory Negligence
A plaintiff is barred from recovery if they bear any responsibility for the injury
Interpleader
if a party feels it will be subject to multiple or inconsistent liability, it can file an interpleader claim and let the would-be claimants litigate amongst themselves
Intervention Claim
a party who has an interest in the claim but has not been joined must be permitted to intervene upon timely application
Impleader
a defendant may bring a claim against a person not already a party and must allege that the third party is responsible for some or all of the liability.
Best Evidence Rule
The best evidence rule only applies when a party seeks to prove the contents of the document sought to be admitted as evidence. The best evidence rule provides that the original documents must be provided as evidence, unless the original is lost, destroyed, or otherwise unobtainable.
Bill of Attainder
Bills of attainder allow the government to punish a party for a perceived crime without first going through the trial process. Unconstitutional.
Res Ipsa Loquitor
Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant’s negligent conduct in
the absence of direct evidence of negligence. The plaintiff must prove that: (1) the accident is of a kind which ordinarily does not
occur in the absence of negligence; (2) the harm was caused by an agent or instrumentality within the exclusive control of the
defendant; and (3) the harm was not due to any action on the part of the plaintiff.
Easement Appurtenant
An easement appurtenant benefits a parcel of land
Easement in Gross
An easement in gross benefits a person or entity rather than a piece of land.
Servient Estate
A servient estate is an estate that is burdened by the easement
Daubert test
(1) has the theory been tested? (2) general acceptance in the relevant community; (3) peer review regarding the scientific theory; (4) degree or rate of error; and (5) standards.
UMDA, UPAA
In addition to state law the UPAA governs premarital agreements where states have adopted it.
In addition to state law the UMDA governs marriages and divorces where states have apodted it.
UPC and UTC
In addition to state law, the Uniform Probate Code governs probate law in states that have adopted it.
In addition to state law, the Uniform Trust Code governs trusts in states that have adopted it.
Joint and Mutual Will
A joint will is one document that serves as a will and requires the same formalities as a will however, there are two testators. Disposition under a joint will occur upon the death of one testator. Revocation of one testator does not invalidate the will.
A mutual will is a will where two people will draft separate documents with identical provisions. The formalities of a standard will apply.
