Midterm

Question 1

What is the point of the Apple and Chicken cases?

Answer 1

1. To teach about precedent.
2. To show about the different sides of cases and how to support them.
3. To show how in the common law system, a judge must create law if there is none.

Question 2

What is precedent?

Answer 2

1. an act or instance that may be used an example for similar instances
2. A judicial decision that is binding on other equal or lower courts in the same jurisdiction as to its conclusion on a point of law, and may also be persuasive to courts in other jurisdictions, in subsequent cases involving sufficiently similar facts.

Question 3

What is holding?

Answer 3

Holding is the result of the case coupled with material facts.

Question 4

What are material facts?

Answer 4

These are the main reasons why the court reached its decision.

Question 5

What is a civil case?

Answer 5

In a civil case, two parties are suing for damages (i.e. the apple and chicken cases) because they believe someone has done a legal wrong.

Question 6

What is a criminal case?

Answer 6

In a criminal case, the government is prosecuting someone for breaking the law, and the case is deciding sentencing.

Question 7

What is a Plaintiff?

Answer 7

The person who brings a case against another in court. (In criminal cases, the plaintiff is the government.)

Question 8

What is a Defendant?

Answer 8

This is the person being sued. They are the person being accused of wrongdoing in the court of law.

Question 9

What is an Appellant?

Answer 9

This is the person filing for an appeal.

Question 10

What is an Appellee?

Answer 10

This is the party objecting the appeal.

Question 11

Explain “liable vs. not liable”

Answer 11

This is the verdict in civil cases. Liable means guilty and not liable means not guilty (innocent)

Question 12

What did the SLOCUM case decide?

Answer 12

You could sue for IIED before this case but it had to be in conjunction with other malicious acts. Court decided that a mere vulgarity is not enough to cause a tort of IIED.

“Outrageousness” is conduct, including speech, exceeding all bounds that could be tolerated by society. It is conduct likely to cause sever, not mere, emotional distress to a person of ordinary sensibilities–based on an objective, not subjective, standard–unless the defendant has been put on notice or has special knowledge. Not mere vulgarities or meaningless abusive expressions.

Question 13

What is a failure to state a cause of action (demurrer)?

Answer 13

Even if all of the facts were true, there is not a legal remedy to the issue

Question 14

What did the KORBIN case decide?

Answer 14

1. IIED is dependent to the tortuous act of slander against the mother
2. Set a precedent on an objective standard of a child of ordinary sensibilities

Question 15

How was “outrageousness” defined in MET LIFE?

Answer 15

Conduct that is so extreme that it goes beyond all bounds of decency, that is, atrocious and utterly intolerable in a civilized community.

Question 16

What were the main points of MET LIFE?

Answer 16

1. If the alleged conduct is outrageous, it may be privileged, whether the defendant asserts his or her legal rights in a permissible manner, even if such actions are to cause severe emotional distress to the plaintiff.

Question 17

What is the main points of DOMINQUEZ?

Answer 17

1. The defendant’s actual or apparent authority over the plaintiff, coupled with the plaintiff’s physical and mental condition and there for greater vulnerability to emotional distress, can make conduct more outrageous than it otherwise would have been.

Question 18

What is the main point of LIBERTI?

Answer 18

For the plaintiff’s conduct to be privileged as per MET LIFE, it must be prudent and effective, and done in an appropriate way.

Question 19

What is a Motion for Summary Judgement?

Answer 19

Either the Plaintiff or the Defendant can make this motion. It asks the judge to make a quick decisions without the use of a jury. When the defendant makes the motion the judge will look at the material facts most in favor of the plaintiff and vice versa.

Question 20

What is the purpose of the Bobby Brown problem?

Answer 20

The cases we have studied as precedent tell us the objective standard of outrageous conduct, and mention that children are more vulnerable to outrageous conduct. It also asks whether Johnson’s conduct was privileged. What are the exceptions?

Question 21

What is the Plaintiff’s complaint and what stage of civil procedure does it take place?

Answer 21

1. A statement of the grounds in which subject matter jurisdiction of the court is based
2. A short and plain statement of the claim showing that the pleader is entitled to relief
3. A demand for the relief that the pleader seeks

This takes place during the pleading stage of civil procedure

Question 22

What is the Defendant’s answer and what stage of civil procedure does it take place?

Answer 22

This is an opportunity for the defendant to motion to dismiss the case and cant contest the complaint, which involves denying allegations in the plaintiff’s claim.

Question 23

What is a counterclaim?

Answer 23

When suing, the defendant may sue the plaintiff back

Question 24

What is a crossclaim?

Answer 24

When suing, the defendant may sue a third party that is related to the case

Question 25

What are Rule II Sanctions?

Answer 25

If a judge is convinced that an attorney has brought a lawsuit that is unequivocally frivolous, then the judge may discipline the attorney or the party. This could prevent attorney’s from bringing cases to court out of fear of being fined.

Question 26

What is a deposition and what stage of civil procedure does it take place?

Answer 26

It’s when an attorney asks questions of a witness or related party under oath in an attorney’s office. They give the lawyer a better idea of how strong their case is. Depositions help both sides avoid surprises. They allow each party to be completely prepared for a trial.

Depositions take place during the discovery phase of a trial.

Question 27

What is an interrogatory and what stage of civil procedure does it take place?

Answer 27

These are questions that are sent from one party to another and are responded with a written answer. The downside of these is that they are easy to be coached to answer badly.

Question 28

What are the limits to the scope of discovery?

Answer 28

Relevance - reasonably calculated to lead to admissible evidence
Privilege - There could be some kind of special relationship between the plaintiff and the defendant

Question 29

What is the enforcement of discovery?

Answer 29

If one party doesn’t want to give the other party evidence, then that party can file for a motion to force the evidence to be obtained.

Question 30

What are the qualifications to be on a jury?

Answer 30

U.S. Citizen, 18 years old, no felonies, you can get postponements and you can be excused

Question 31

What is a jury pool(venire)?

Answer 31

these are the people who could be jurors. they are supposed to be representative of the community where the trial takes place.

Question 32

What is a ‘For Cause’ challenge in Jury Selection(voir dire)?

Answer 32

These are unlimited challenges to potential jurors. They are based on how prospective jurors have answered questions. For example they could be to biased, or they dont understand basic legal concepts, or if they dont understand english well enough.

Question 33

What is a ‘Peremptory’ challenge in Jury Selection (voir dire)?

Answer 33

These are limited. The attorney that executes this challenge does not have to explain why they are using it.

Question 34

What is ‘Preponderance of the Evidence’?

Answer 34

showing how someone can be considered liable(guilty) in a civil case

Question 35

What is ‘Jury Nullification’?

Answer 35

If a jury wants to they can acquit someone even if they feel that they are guilty and vice versa and there is nothing that anyone can do to stop it.

Question 36

What is a ‘JNOV’?

Answer 36

Judgement notwithstanding verdict: This is the defense asking the judge to overturn the jury’s verdict.

Question 37

How are federal judges selected?

Answer 37

They are appointed by the president and approved by the senate.

Question 38

How are state judges selected?

Answer 38

Selection varies by state.

1. Appointment - The governor or legislative branch will appoint judges.
2. Merit Selection - Judges are chosen by a legislative committee based on each potential judge’s past performance. Some states hold “retention elections” to determine if the judge should continue to serve.
3. Partisan Elections: Judges selected through partisan elections are voted in by the electorate, and often run as part of a political party’s slate of candidates.
4. Non-Partisan Elections: Potential judges that run for a judicial position in states with non-partisan elections put their names on the ballot, but do not list their party affiliates. Terms for judges in non-partisan elections can range between 6 and 10 years.

Question 39

What is the basic definition of a ‘tort’?

Answer 39

The act in question is a legal injury, where someones body, property, reputation, etc is injured by another party and there is legal remedy (usually in the form of money).

Question 40

What is an intentional tort?

Answer 40

A reasonable person can expect an injury to occur when they perform this action.
Example:
Assault - even if you fake punch or punch and miss, it is still considered assault.
Battery - an unwanted touching

you can have assault without battery and vice versa

Question 41

What is a negligence tort?

Answer 41

You are under a duty to be reasonably careful to not injure someone.

For steps in negligence tort:
Duty - Do you have a duty to protect someone?
Breach - Was that duty breached?
Causation - Were you the direct reason that the duty was breached?

Question 42

What are some defenses to intentional torts?

Answer 42

Consent - boxing, etc

Self-defense - defendant has to have acted in a reasonable manner and the force has to be proportionate to the threat.

Question 43

What are some defenses to negligence torts?

Answer 43

Assumption of the risk

Contributing or comparative negligence

Question 44

What is contributory negligence?

Answer 44

When a jury is calculating damages, how responsible is the plaintiff and how responsible is the defendant? The jury could decide 80% P 20% D for example

Question 45

What is comparative negligence?

Answer 45

Harder for plaintiff to recover damages, if one side has over 50% responsibility, they become liable

Question 46

What is assault?

Answer 46

It is a reasonable attempt to make a battery.

Ex. Throwing a punch but it not landing.

Question 47

What is battery?

Answer 47

It is an unwanted touching.