Mid Term Flashcards
Interrogatories are oral questions, recorded by a court reporter
FALSE
Interrogatories are a method of discussing written questions, to be answered in writing and under oath by another party, not court recorder is involved.
In the U.S. there are many different courts, but just one system
FALSE
In the US, every state and territory - plus the district of Columbia - has its own judicial system. Then there is the national court system. The federal judicial system, although, we have 57 separate judicial systems.
Approximately 50% of all civil cases (lawsuits) settle before trial
FALSE
about 95% are either dismissed or settled before trial
Civil lawsuits are brought to court by the government (state or federal), but criminal cases must be prosecuted by the injured party (victim).
FALSE
Injured/allegedly injured (physically, emotionally, economically,etc.) parties bring civil lawsuits - they are plaintiffs.
Criminal cases are brought by the government (state/federal). The injured people (victims) are not parties (plaintiffs) instead the governemtn is the plaintiff (“prosecution” in a criminal case) The victims are (assuming they are able to testify) merely witnesses in criminal cases
The burden of proof in civil trials is evidence beyond reasonable doubt.
FALSE
The burden of proof in civil cases is typically a “preponderance of evidence” aka the smoking gun. sometimes, courts use another burden of proof in civil cases- “ the clear and convincing evidence” burden of proof, the plaintiff must prove that it is “substantially” more likely, than not that his case is true, that is, the jury (or judge, if there is no jury) must believe that the evidence is strongly convincing
The federal government has 3 branches; executive, legislative and administrative.
FALSE
Executive (presidenct, enforces a law)
Judicial (courts, interpret laws)
Legislative (pass laws, HR & congress)
Every state judicial system includes an immediate appellate court
FALSE
41 states have intermediate appellate courts. The common denominator of the 9 that dont is that they are relatively small populations
A mediator makes decisions, but arbitrators do not
FALSE
Mediator never decides a case, they are hybrid (part messenger, part councilitor).
An arbitrator does decide cases. The majority contractual arbitration is binding
In arbitrations, the arbitrator tries to coax the disputing parties toward a voluntary settlement
FALSE
the arbitrator acts as a mini-judge, they can conduct proceeding much like a trial and then decide the case.
mediators are the ones that try to coax opposing parties into voluntary settlement
Summary judgment is a ruling by the trial court that no trial is necessary b/c essential facts are not in dispute
TRUE
Summary judgement is awarded if the judge decides that
a) there is no genuine issue as to material facts, and
b) when the law is applied to these facts, one party is entitled to a verdict in his/her favor
Generally, in civil litigation, both plaintiff and defendant have a right to demand a jury trial when the lawsuit is for damages (money)
TRUE
Jury trial is available in criminal cases and most civil lawsuits. Major exceptions:
1. certain types of cases (eg divorce) historically based on equity (non-monetary remedies)
2. administrative agency proceedings
Plaintiff or defendant can ask for trial by jury; this right is usually waived if not requested i plaintiff’s complaint or defendants answer
in a civil case, the defendant has the burden of proof, by contrast, in a criminal the prosecution must demonstrate beyond a reasonable doubt that the defendant is guilty
FALSE
Burden of proof falls on the plaintiff.
Proof beyond reasonable doubt is?
legal standard that the prosecution must meet in order to successfully find a criminal defendant guilty of a crime. this standard applies to each element of the crime.
What is meant by the “fourth branch of government”?
administrative agencies are enabling acts where the government (federal, state or local) delegate some of its authority to the agency. they are still bound by constitution protections (ie due process). agencies can proceed more quickly than ordinary judicial processes entail.
A federal court will hear a case only if it concerns a federal issue or if it has diversity jurisdiction
TRUE
Subject Matter Jurisdiction : judicial power to decide the issues in a case
A motion is a formal request to the court
TRUE
a motion is a “request that a court take a specified action in a case”
Motions “can concern numerous matters”
Judges use precedent to create common law (“case law”)
TRUE
Prededent = a court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar legal principals or facts
All judges make common law (case law)
FALSE
Trial court decisions are not binding authority, Thus far, this reason, most attorneys would not catogorize trial court decisions as cae law aka “common law”. Instead most legal professionals (judges, law school professors, attorneys) only include appellate court decisions when discussing a jurisdictions case law.
That said m when issues being listed as “cuutting edge” , attorneys will cite trial court opinions.
More US law comes from Spain than any other country
FALSE
England
Under the US constitution, power that is not expressly given to the federal government is retained by the states and the people
TRUE
10th amendment to the constitution:
“ powers not delegated to the US by the constitution, nor prohibited by it to the States, are reserved to the States respectively to the people”
Thomas Jefferson co-wrote the Federalist Papers
FALSE
it was Madison, Hamilton & Jay
A statute law is passed by Congress or a state legislature
TRUE
In civil cases, all states require a unaninous verdict
FALSE
For civil cases, nearly 1/3 of states (including California) do not require unanimous juries. In California 9/12 is sufficient for the plaintiff to win
In criminal cases, almost all states require a unanimous verdict
TRUE
all but 2 require unanimous verdicts in criminal cases - each requires 10-2 majority for conviction, except for capital crimes (death penalty crimes): Oregon reuires at least 11 votes and Louisiana requires all 12
In civil cases, the defendant, if found liable, is rarely sentenced to prison
FALSE
The defendant is NEVER sent to prison, this occurs only in criminal cases.
In criminal cases, the trial judge may direct verdict of acquittal or guilty
FALSE
No way - a judge can never direct a guilty verdict. In a civil case they can direct a verdict for either the plaintiff or defendant. In a criminal case they direct a verdict ONLY for the defendant
Mediation is, basically a mini-trial
FALSE
Arbitration, not mediation, is the often referred to as a “mini-trial”
an answer is legalese for “so what?”
FALSE
A “motion to dismiss for failure to state a valid claim” (called a demurror in the California state judicial system) is legalese for “so what?” Even if everything you allege is true, you still have not alleged a valid (leally recognizable) cause of action (reason to sue)
Under the “American rule” the loser must pay the winner’s attorney’s fees unless an exception to the rule applies
FALSE
This is a British rule. under the american rule, the winner must pay their own attorney’s fees, unless an exception applies there are 3:
1) Attorney’s fee provision in the contract
2) Attorney’s fee provision restatute that the plaintiff sued under
3) The trial courts discretion (the trial judge, however, are not supposed to use this power except for extreme situations).
each side (plaintiff & defendant) has the opportunity to address the jury just one time during closing arguements
FALSE
Plaintiff has 2 opportunities (b/c burden of proof). the defendant only has 1 opportunity
There are_____ basic levels of courts in our federal judicial system and moste state judicial systems
3
A___________ is the pleading that initiates litigation. Filed by the plaintiffs, the___________contains the general allegations against the defendant. It is served with the summons.
Complaint, complaint
A ferderal trial court is called a U.S._________Court
District
After graduating from CSUEB you receive a letter from ABC corp. It contains an offer and concludes “ and we will pay you for your service $60,000 for your first year.” you respond by stating “ i am thrilled to receive ABC’s offer - i have dreamed of working for ABC since I was a college freshman! I will gladly accept $70,000 for my first year”
your response will be treated as a rejection or counteroffer……….. The acceptance must be a “mirror image” of the offer, if not, it is a rejection.
Odorizzi , a 5th-grade teacher, was arrested for alleged homosexual activity in a public restroom. Immediately after he was released on bail (at about 10 :00 a.m. on a Saturday), the school district officials came to his home and pressured him to sign a resignation, promising that if he did so, his “crime” would be kept secret. Odorizzi asked to see an attorney but they told him there was no time - either he would sign the resignation letter that the school district had prepared or the district would fire him. Additionally, the officials told him that- pursuant to then California law - they would have to publicly announce the reason for his firing during the next school district meeting. This was true - at the time,under California law, the school didtrict had a legal duty to publicly anouce the reason for firing a teacher. After about an hour, Odorizzi, who was emotionally and physically fatigued, signed the letter of resignation. Several months later, the criminal charges against Odorizzi were dropped and he almost immediately asked for his job back, but the school district refused. He reacted by suing the school district to rescind (cancel ) the resignation
Which is correct?
a. Odorrizi has an excellent chance of winning based on undue influence.
b. Odorizzi has an excellent chance of winning based on duress.
c. Odorrizi has no chance of winning - a deal is a deal.
d. None of the above
a. Odorrizi has an excellent chance of winning based on undue influence.
Which statement(s) below is/are correct ?
A) All states have the same number of federal judicial districts.
B) Some states do not have intermediate appellate courts.
C) Federal court judges do not have to stand for re-election.
D) All states call their highest court the supreme court.
E) B and c
E) B and c
A court’s power to decide a case:
Jurisdiction
which type of authority is represented in the following scenario:
Your case is in the California Supreme Court. You are using an on-point (very relevant) case decided a year earlier by the California Supreme Court.
Primary and Persuasive
a court can always overule itself
which type of authority is represented in the following scenario:
Your case is in the Arizona Court of Appeals (a state appellate court). You have found a case decided by the Tenth Circuit Court of Appeals (a federal appellate court) that is on-point.
Primary and Persuasive
which type of authority is represented in the following scenario:
You have a case in the California Superior Court (a trial court). You have found an invalid (overruled) case from the California Supreme Court that is on-point.
Non-authority
reversed or overruled cases go into the judicial trash can. they immediately become non-authority
which type of authority is represented in the following scenario:
You are in the Washington Court of Appeals (a state intermediate appellate court). The case you are relying on is from the Supreme Court of Illinois. It is on-point.
Primary and Persuasive
Higher court? yes, however from a different judicial system
Federal judges:
A) Serve for life (with good behavior and assuming they are physically and mentally capable ).
B) Are nominated and appointed by the U.S. House of Representatives – no other branch of the federal government is involved.
C) Can never be impeached.
D) Are elected.
E) Can decide “political questions.”
A) Serve for life (with good behavior and assuming they are physically and mentally capable ).
The U.S. Constitution:
A) Is a relatively short document - even with all of its amendments.
B) Was brought over from England in its entirety.
C) Is a document that sets forth the basic structures and powers of the U.S. national (aka “federal”) government.
D) Bars the states from having their own constitutions.
E) (a) and (c)
E) (a) and (c)
To have a contract, you must have:
a. An offer.
b. An acceptance.
c. Both an offer and an acceptance.
d. An agreement shown only by written words - oral contracts are never enforceable.
c. Both an offer and an acceptance.
no oral contracts are enforcable (unless they fall w/in the statute of fraud). They are hard to prove in court. always get contracts in writing
An offer for a unilateral contract is a:
a. Promise for an act (performance).
b. Promise for refraining from acting (forbearing).
c. Promise for either a promise to perform (act) or forbear (not act).
d. Promise to make a gift.
e A or b
e A or b
An executory contract is:
a. Void if neither party has performed.
b. Voidable.
c. Entered into but not entirely performed.
d. Strictly illegal.
c. Entered into but not entirely performed.
Which statement is correct?
a. In a bilateral contract, each party is a promisor and a promisee.
b. In a unilateral contract, each party is a promisor and a promisee.
c. In both bilateral contracts and unilateral contracts, each party is a promisor and a promisee.
d. none of the above
a. In a bilateral contract, each party is a promisor and a promisee.
Jurisdiction refers to the place (county or judicial district) where the trial is scheduled to occur.
FALSE
this is venue
A contract that is binding on only one of the parties – the other party has the right to either withdraw from the contract or enforce it:
a. Void contract.
b. Revoked contract.
c. Voidable contract.
d. Adhesion contract.
c. Voidable contract.
Janelle said to Lisa, “I’ll give you $1000 for that set of Michelle Wie golf clubs that you said you no longer wanted.” Lisa replied, “I cannot make that deal. The clubs cost me $2,000. Also, they are almost brand new. However, if you pay me $1500, I will sell you the clubs.” Janell answered, “No thanks.” Then Janelle left. Five minutes later, Lisa saw Janelle at the golf course’s coffee shop and said, “Okay, okay. I accept the $1000 offer.” However, Janelle was no longer interested and said there was no deal. Nevertheless, Lisa insists that there is a contract. What is the result?
A) Janelle’s offer of $1000 was open, and accepted by Lisa, and, thus, Janelle and Lisa made a contract.
B) Lisa’s counteroffer terminated Janelle’s offer of $1000. So, they made no contract.
C) Lisa’s statement (“I cannot make that deal.”) was a mere negotiating statement that did not terminate Janelle’s offer of $1000. Therefore, they made a contract.
D) Janelle’s offer of $1000. was irrevocable. Therefore, they made a contract.
B) Lisa’s counteroffer terminated Janelle’s offer of $1000. So, they made no contract.
If the offeror dies before the offeree accepts the offer, the offer:
A) May be rejected by the offeree’s surviving spouse.
B) May be accepted by the offeree’s surviving spouse.
C) Is automatically terminated by the offeror’s death.
D) May be accepted by the guardian appointed to represent the offeree’s minor child.
C) Is automatically terminated by the offeror’s death
If the offer does not include a termination date, the offer will remain open:
a. For one year
b. For five years.
c. For a reasonable time.
d. Until someone accepts the offer.
c. For a reasonable time.
reasonable time depends on the subject matter of the contract
Ted witnessed a motor vehicle accident. He was stopped at a red light when a blue truck ran the same light and collided with a bus. Ted’s testimony about the accident would be what kind of evidence?
a. Direct.
b. Circumstantial.
c. Direct and hearsay
d. Dude, I need more information.
a. Direct.
A contract offered by an economically powerful party (the dominant party) to an economically powerless/much less powerful party (the weaker party) on a “take-it-or-leave-it” basis is called a(n):
a. Duress contract.
b. Adhesion contract.
c. Fraudulent contract.
d. Cohesion contract.
b. Adhesion contract
Generally, adhesion contracts are unenforceable
FALSE
the majority of contract we sign are adhesion contracts, majority are of these of enforceable
Generally, unconscionable contracts are enforceable.
FALSE
this refers to the tiny % of adhesion contract that are unenforceable
An apparently voluntary agreement may not be voluntary if:
a. Undue influence is present.
b. Emotional duress is present.
c. Economic duress is present.
d. All of the above
d. All of the above
I genuinely believe that I own a very valuable guitar. I tell this to you and state that I will sell it to you for $1,000. You agree to buy it, and then pay me and take the guitar. A few months later, you find out the guitar is worth only $250. A fraud:
A. Has occurred.
B. Does not appear to have occurred
C. Always can be based on a statement of value or opinion.
D. None of the above.
B. Does not appear to have occurred
Under the universal rule, (adopted by all states) a promise based on moral obligation is not supported by consideration.
FALSE
not all states
One promise may serve as consideration for multiple promises
TRUE
The respective consideration flowing between the parties does not need to be equal
Generally, consideration will result in a benefit to the promisor and imposition of some burden (detriment) to the promisee.
TRUE
Generally, when there is no consideration for a promise, the agreement is:
a. Illegal.
b. Void.
c. Voidable.
d. Very unethical.
B. void
not always (generally) “a void contract is an agreement that has no legal effect as a contract”.
Avoidable contract is a contract in which one of the parties is bound but the other is not bound, the other party has the option to withdraw from the contract or enforce it
In a unilateral contract, the consideration for the promise is:
A) The surrender of a claim against the promisor.
B) The return of the promisor’s property.
C) The promise to do the act called for by the promisor.
D) The doing of the act called for by the promisor.
D) The doing of the act called for by the promisor.
Consideration is:
A) The concern shown by the
B) other party to the contract.
What the promisor demands as the price for his/her promise.
C) A stated minimum number of dollars.
D) The concern shown by both parties for a sustainable, green environment.
B) other party to the contract.
What the promisor demands as the price for his/her promise.
With the exception of the U.S. Supreme Court itself, U.S. Supreme Court decisions are mandatory authority on all courts (both state and federal).
TRUE
at least for purposes of this course
Often, people choose not to litigate, even if they believe that the other party has breached the contract.
TRUE
Generally (not always), the burden of proof in civil cases:
A) Undeniable evidence
B) Beyond a reasonable doubt
C) Clear and convincing evidence
D) Unimpeachable evidence
E) None of the above
E) None of the above
The party who initiates the lawsuit:
a. Attorney of record
b. Defendant
c. Plaintiff
d. Court clerk
e. Judge
c. Plaintiff
Generally, a promise to perform an existing legal duty is:
a. Not consideration
b. Binding if the promisor promises to do a magnificent job.
c. Binding if the promisor promises to do the best possible job.
d. Need more information to answer, dude.
a. Not consideration
“consideration for the promisor’s promise must be free from obligation already owed to the promisor. If the promisee has induce, the duty previously owed cannot be used as consideration for the promissor’s new promise. The promisee is already committed to perform that duty”
Inadequacy of consideration may be evidence of:
a. Undue influence.
b. Unconscionability.
c. Duress.
d. All of the above.
e. Courts never admit evidence on the adequacy/inadequacy of consideration – either it is consideration, or it is not.
d. All of the above.
courts are not fathers, mothers, aunts, uncles. if we do make lousy contracts, is is our problem
E) is false b/c courts do admit evidence
A court will – almost always – consider the adequacy of consideration when:
a. One party obviously has the better of the deal.
b. One party has more business experience than the other.
c. One party is much more educated than the other party.
d. One party claims that he/she signed the contract only because of duress.
e. One party shows a much lower price nationally advertised on television.
d. One party claims that he/she signed the contract only because of duress.
Which of the following can be consideration for a promise?
a. Promise not to beat a spouse.
b. Promise to tell the truth when testifying at trial.
c. Promise not to sell illegal drugs.
d. Promise not to smoke cigarettes.
d. Promise not to smoke cigarettes.
the rest are pre-existing duty not to commit a crime
Which of the following is not an essential element of promissory estoppel?
A) A contract
B) A promise by the promisor.
C) The promise induces action or forbearance (based on the promise, the promise acts/forbears).
D) Injustice can be avoided only if the court enforces the promise.
E) A reasonable person/organization would expect the promise to induce action or forbearance on the promisee’s part.
A) A contract
the rest are the 4 elements of promissory estoppel
Duress is synonymous with fraud.
FALSE
Which of the following is secondary authority?
A) Statute.
B) Officially published appellate court case.
Treaty.
C) Ordinance.
D) Textbook on a particular legal subject (treatise).
D) Textbook on a particular legal subject (treatise).
the rest are primary examples of primay authority
What case is the most famous example of stare decisis in U.S. history?
a. Jones v. Smith.
b. Palsgraf v. Long Island Railroad Co.
c. Williams v. Walker-Thomas Furniture Company, Inc.
d. Brown v. Board of Education (Topeka, KS).
d. Brown v. Board of Education (Topeka, KS).
What courts have original jurisdiction?
a. Federal district courts.
b. State trial courts.
c. Generally, appellate courts have original jurisdiction.
d. Generally, the U.S. Supreme Court has original jurisdiction.
e. (a) and (b).
e. (a) and (b).
Authority of a court to hear and decide a case for the first time (to make the initial determination of who wins and who loses):
a. Venue
b. Original jurisdiction
c. Start-up jurisdiction
d. Immediate jurisdiction
b. Original jurisdiction
trial courts have original jurisidiction
Legal principle that the government must safeguard the legal rights owed to a person according to the law, including (but not limited to) notice of proceedings and a chance to be heard before the loss of life, liberty, or property:
a. Fair shake
b. Fair deal
c. Rough justice
d. Due justice
e. Due process
e.Due process
short for “due process of law”
The theory behind the creation of the U.S. government, under which each branch of government has the ability to counter the actions of any other branch, so that no single branch can control the entire government.
a. Terms and conditions
b. Law and equity
c. Equality
d. Due process
e. Checks and balances
e. Checks and balances
this is done everyday in washington DC
Federal judges must stand for re-election.
FALSE
Proof or disproof of a fact in issue is:
a. Jurisdiction
b. Evidence
c. Both of the above
d. Venue
b. Evidence
Who may waive a privilege?
a. The person being asked to testify.
b. Only the person in legal jeopardy from the information to be disclosed by the testimony.
c. Both A and B
d. The trial judge
e. The jury
b. Only the person in legal jeopardy from the information to be disclosed by the testimony.
an attorney cannot waive the attorney-client privilage and testify. it is not their decision and does not have the power, only the client can waive it.
Direct evidence is evidence which, if believed, doies not resolve the factual issue unless additional reasoning (an inference) is used
FALSE
In a civil lawsuit:
a. The defendant is presumed innocent until proven guilty.
b. The defendant is presumed guilty until proven innocent.
c. Typically, the burden of proof is preponderance of the evidence.
d. The plaintiff must prove her case by evidence beyond a reasonable doubt.
e. B and d.
c. Typically, the burden of proof is preponderance of the evidence.
The terms “guilty” or innocent” are not used, they are reserved for criminal cases. in civil trials they use “liable” and “not liable”
The authors of The Federalist Papers had a very high estimation of human character, especially as respects politicians
FALSE
The elements of a contract include all of the following except:
a. An agreement
b. Two or more parties
c. Consideration
d. An illegal purpose
d. An illegal purpose
The best singer in the world, Barry Manilow, contracts to perform for a week in Las Vegas. After his first performance, Manilow becomes seriously ill and cannot perform for the remainder of the agreement.If the hotel sues Manilow for breach of contract alleging that Manilow breached by not performing, Manilow would respond as follows:
a. No breach - compliance.
b. No breach - excuse.
c. No breach -justification.
d. No breach- terminasted duty.
e. None of the above.
b. No breach - excuse.
The offeree is the party making the offer
FALSE
the offeror is the party who makes the offer.
the offeree is the party who receives the offer
CSUEB contracted with Educational Excellence (EE) , a consulting corporation, for a very detailed study of all aspects of the university’s operations. The contract provided that CSUEB would pay EE a consulting fee and expenses. The contract provided that the CSUEB would pay the consulting fee in four quarterly payments but would pay the expenses monthly. After working on the project for four months ( the project was cexpected to last one year), EE refused to continue because CSUEB had paid neither the first quarterly payment nor its expenses for the past three months.
If CSUEB sues EE for breach of contract alleging that EE had breached by notifying CSUEB that it would not complete the work, EE would respond as follows:
a. No breach - compliance.
b. No breach - excuse
c. No breach - justification
d. No breach - terminated duty.
e. None of the above
c. No breach - justification
Stare Decisis
a legal doctrine in which a decision previously reached by a court is used as authority in all future cases that are based on the same basic circumstances or facts
The 1st amendment to the US constitution protects private employees (non-government sector employees) from being fired for something they said i the work place or outside of it, as on Facebook or Twitter
FALSE
the 1st amendment protects us from government (federal, state, local) if it tries to violate our rights to free speech not private employers.
Lou is charged with robbing the Bank of America branch on MIssion Blvd in Hayward. A bank customer wants to testify that Lou was in the bank about 2 hours before the robbery. This would be direct evidence that Lou robbed the bank
FALSE
If the bank customer wants to testify he saw Lou rob the bank, that would be direct evdience. However, the fact that he saw Lou in the bank 2 hours before the robbery is not enough to convict Lou of robbery, therefore, it is circumstantial (aka indirect evidence) that Lou robbed the bank
Direct evidence
evidence which if believed resolves the matter in issue
Circumstantial evidence
evidence which, even if believed, does not resolve the matter in issue unless additional reasoning is used
Denise is in hot water. the Berkeley police discovered her fingerprints on the handle of kitchen knife found in her ex-boyfriend’s back. She is being charged with his murder - the fingerprints are direct evidence that she murdered him
FALSE
The fingerprints are direct evidence that Denise touched the murder weapon, but are indirect evidence that she killed her ex-boyfriend
