Midterm Study Guide - Chapters 1 - 7

Question 1

California Business & Professions Code 6450, et seq.

Answer 1

Code of ethics standards by which paralegals are bound

Question 2

Professional Rules of Conduct

Answer 2

Code of ethics by which attorneys are bound

Question 3

Three essential events of Litigation

Answer 3

1. The pleading - defines the scope of dispute
2. The trial - the judge and jury decide the facts
3. The appeal - the appellate court determines if the facts were properly determined and the law properly applied at the trial

Question 4

Types of Fee Agreements

Answer 4

1. Hourly - billed for each portion of hour worked
2. Fixed - client is charged flat rate for project
3. Contingent - client is charged a percentage of recovery
4. Combination - client may be charged some work hourly and some on contingency

Question 5

Limited v. Unlimited Jurisdiction

Answer 5

1. Limited Jurisdiction - civil cases valued at $25,000 or less appealed to superior court appellate department
2. Unlimited Jurisdiction - civil cases valued at more than $25,000
   (writs, injunctions, criminal cases)

Question 6

Diversity of Citizenship

Answer 6

A basis for federal jurisdiction over parties from different states

Question 7

Capacity

Answer 7

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

Question 8

Subject Matter Jurisdiction

Answer 8

Jurisdiction over the type of case or claim

Question 9

Personal Jurisdiction - In Personam

Answer 9

Jurisdiction over the person

Question 10

Personal Jurisdiction - In Rem

Answer 10

Power over the “res” or thing

Question 11

Personal Jurisdiction - Quasi In Rem

Answer 11

Jurisdiction over property relating to the dispute, to enforce personal obligations

Question 12

Fees - What are they?

Answer 12

Money paid to the attorney to compensate for his/her time and that of their employees

Question 13

Costs - What are they?

Answer 13

Out of pocket expenses of the litigation (court filing fees, jury fees, postage, copying costs, expert witness fees and deposition expenses)

Question 14

Joinder

Answer 14

Incorporating more than one opposing party or cause in the same action

Question 15

Concurrent Jurisdiction

Answer 15

Proper jurisdiction in more than one court, such as federal and state court

Question 16

Plaintiff

Answer 16

An individual or entity who initiates a lawsuit to obtain relief

Question 17

Defendant

Answer 17

An individual or entity from whom relief is sought in a lawsuit

Question 18

Cross-Complainant

Answer 18

One who asserts a cross-complaint or cross-complaints

Question 19

Cross-Defendant

Answer 19

Party who is named as a defendant in a state or federal cross-complaint

Question 20

Counter-defendant

Answer 20

Plaintiff in a federal case in a counterclaim

Question 21

Conflict of Interest

Answer 21

Occurs when counsel has duties to two or more clients with opposing interests

Question 22

Four ethical considerations to address before taking a case

Answer 22

1. 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)
2. The attorney will not be a prospective witness in the case (RPC rule 5-210)
3. The case is in the attorney’s area of competence (RPC rule 3-110)

Question 23

Sources of Procedural requirements for litigation

Answer 23

1. Code of Civil Procedure (CCP) - governs litigation practice in the state courts
2. Business & Professions Code (B&PC) & Rules of Professional Conduct - limits the conduct of counsel and representation of clients
3. California Rules of Court - also effect litigation practice

Question 24

Pleadings

Answer 24

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)

Question 25

State Court Pleadings

Answer 25

• Complaints;
• Demurrers;
• Answers; &
• Cross-complaints

Question 26

Federal Court Pleading

Answer 26

• Complaints
• Cross-complaints
• Counter Claims
• Third Party Claims
• Answers

Question 27

Rule of Professional Code 1-320

Answer 27

Financial Arrangements with Non-Lawyers

Question 28

Fees - When can they be recovered?

Answer 28

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)

Question 29

Costs - When can they be recovered?

Answer 29

The prevailing party is entitled to recover a reasonable amount of costs necessarily incurred in the litigation (CCP section 1032)

Question 30

Federal Rules of Civil Procedure

Answer 30

Federal Rules of Civil Procedure (FRCP) govern civil procedure (I.e., civil lawsuits) in United States district (federal) courts.

Question 31

Motion to Dismiss (Rule 12(b)(6))

Answer 31

Failure to state a claim upon which relief can be granted

Question 32

Title VI of the California Constitution

Answer 32

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

Question 33

Rule of Professional Conduct 2-200

Answer 33

Financial Arrangements Among Lawyers

Question 34

Code of Civil Procedure

Answer 34

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.

Question 35

Grounds for Federal Jurisdiction

Answer 35

There are specialized federal courts with jurisdiction over bankruptcy, trademark, and patent disputes, which can be appealed to a higher federal court.

Question 36

Federal District Courts

Answer 36

Have original jurisdiction over admiralty and maritime matters, criminal matters involving federal statutes, and other special actions

Question 37

Structure of State Court

Answer 37

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

Question 38

Structure of Federal Court

Answer 38

1) Federal District courts
2) FEDERAL DISTRICT COURTS OF APPEAL
3) U.S. SUPREME COURT

Question 39

Permissive Joinder

Answer 39

A party may be joined if:

1. The right to relief arises out of the same general events
2. The right asserted is joint/several, and/or
3. There is one or more common questions of fact or law

Question 40

Compulsory Joinder

Answer 40

A party must be joined in the case if:

1. Relief cannot be obtained without him, &
2. Lack of joinder threatens future litigation

Question 41

Parties

Answer 41

• 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)

Question 42

International Shoe Co. v. Washington State

Answer 42

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)

Question 43

Title III of the US Constitution

Answer 43

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.