Midterm Study Guide - Chapters 1 - 7 Flashcards
California Business & Professions Code 6450, et seq.
Code of ethics standards by which paralegals are bound
Professional Rules of Conduct
Code of ethics by which attorneys are bound
Three essential events of Litigation
- The pleading - defines the scope of dispute
- The trial - the judge and jury decide the facts
- The appeal - the appellate court determines if the facts were properly determined and the law properly applied at the trial
Types of Fee Agreements
- Hourly - billed for each portion of hour worked
- Fixed - client is charged flat rate for project
- Contingent - client is charged a percentage of recovery
- Combination - client may be charged some work hourly and some on contingency
Limited v. Unlimited Jurisdiction
- Limited Jurisdiction - civil cases valued at $25,000 or less appealed to superior court appellate department
- Unlimited Jurisdiction - civil cases valued at more than $25,000
(writs, injunctions, criminal cases)
Diversity of Citizenship
A basis for federal jurisdiction over parties from different states
Capacity
The ability to sue or defend in California courts
- All natural persons have capacity except minors and incompetents
- Unnatural persons (entities) must be properly formed and qualified
- Lack of capacity precludes maintaining suit or defense
Subject Matter Jurisdiction
Jurisdiction over the type of case or claim
Personal Jurisdiction - In Personam
Jurisdiction over the person
Personal Jurisdiction - In Rem
Power over the “res” or thing
Personal Jurisdiction - Quasi In Rem
Jurisdiction over property relating to the dispute, to enforce personal obligations
Fees - What are they?
Money paid to the attorney to compensate for his/her time and that of their employees
Costs - What are they?
Out of pocket expenses of the litigation (court filing fees, jury fees, postage, copying costs, expert witness fees and deposition expenses)
Joinder
Incorporating more than one opposing party or cause in the same action
Concurrent Jurisdiction
Proper jurisdiction in more than one court, such as federal and state court
Plaintiff
An individual or entity who initiates a lawsuit to obtain relief
Defendant
An individual or entity from whom relief is sought in a lawsuit
Cross-Complainant
One who asserts a cross-complaint or cross-complaints
Cross-Defendant
Party who is named as a defendant in a state or federal cross-complaint
Counter-defendant
Plaintiff in a federal case in a counterclaim
Conflict of Interest
Occurs when counsel has duties to two or more clients with opposing interests
Four ethical considerations to address before taking a case
- Is the case meritorious (B&PC 6068(c) & RPC rule 3-200)
2, The case does not present a conflict of interest (RPC rules 3-300, 3-310) - The attorney will not be a prospective witness in the case (RPC rule 5-210)
- The case is in the attorney’s area of competence (RPC rule 3-110)
Sources of Procedural requirements for litigation
- Code of Civil Procedure (CCP) - governs litigation practice in the state courts
- Business & Professions Code (B&PC) & Rules of Professional Conduct - limits the conduct of counsel and representation of clients
- California Rules of Court - also effect litigation practice
Pleadings
Define the legal issues in the case, state the facts in dispute, and request the court to grant some type of relief. (Give notice that there is a controversy between the parties)
State Court Pleadings
- Complaints;
- Demurrers;
- Answers; &
- Cross-complaints
Federal Court Pleading
- Complaints
- Cross-complaints
- Counter Claims
- Third Party Claims
- Answers
Rule of Professional Code 1-320
Financial Arrangements with Non-Lawyers
Fees - When can they be recovered?
An award of attorney fees may be awarded if:
1) there is a contract between the parties that so specifies (CC section 1717(a));
2) such recovery is authorized by a specific statute (CCP section 1036);
3) the litigation has been undertaken for the benefit of the public (CCP section 1021.5)
Costs - When can they be recovered?
The prevailing party is entitled to recover a reasonable amount of costs necessarily incurred in the litigation (CCP section 1032)
Federal Rules of Civil Procedure
Federal Rules of Civil Procedure (FRCP) govern civil procedure (I.e., civil lawsuits) in United States district (federal) courts.
Motion to Dismiss (Rule 12(b)(6))
Failure to state a claim upon which relief can be granted
Title VI of the California Constitution
JUDICIAL - The judicial power of this state is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record
Rule of Professional Conduct 2-200
Financial Arrangements Among Lawyers
Code of Civil Procedure
California Law consists of 29 codes covering various subject areas, reflecting laws currently in effect. All California codes have been updated to include 2012 Statutes.
Grounds for Federal Jurisdiction
There are specialized federal courts with jurisdiction over bankruptcy, trademark, and patent disputes, which can be appealed to a higher federal court.
Federal District Courts
Have original jurisdiction over admiralty and maritime matters, criminal matters involving federal statutes, and other special actions
Structure of State Court
1) Superior Courts - Trial Court Hearing
2) Superior Court - Appellate Department
3) Courts of Appeal
4) Supreme Court of California
5) U.S. SUPREME COURT
Structure of Federal Court
1) Federal District courts
2) FEDERAL DISTRICT COURTS OF APPEAL
3) U.S. SUPREME COURT
Permissive Joinder
A party may be joined if:
- The right to relief arises out of the same general events
- The right asserted is joint/several, and/or
- There is one or more common questions of fact or law
Compulsory Joinder
A party must be joined in the case if:
- Relief cannot be obtained without him, &
- Lack of joinder threatens future litigation
Parties
- Plaintiff must be the real party in interest
- All parties must have capacity
- Some parties must be joined in a single action or any right to recover from them is lost (compulsory joinder) otherwise a separate action can be brought against them (Permissive joinder)
International Shoe Co. v. Washington State
Suit brought by Washington State to recover unpaid contributions to the unemployment compensation fund. Supreme Court of WA held that the state had jurisdiction to hear the case and International Shoe Co. appealed the decision. Court exerted personal jurisdiction over International Shoe Co. consistent with the Due Process Clause. Affirmed (judgment for the plaintiff)
Title III of the US Constitution
Article three of the constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.
