MLS Test Two Flashcards
two main sources of law
court made and enacted
difference between the govt codifications USC vs USCA
annoted
how do we search for a statute
by common name or citation
if we dont know the citation how do we search for a statute
subject matter index
what do we look at when analyzing a statute
what is the legis trying to accomplish
what is the legis purpose
can you satisfy each element and make a list of elements with clients facts
set forth in const statutes and admin regs that lay down specific requirements
enacted laws
what type of conduct do statutes deal with
future
court will create new common law when
there is no law governing the situation
court decides to overrule a prior decision
court disagrees w/ statute covering a situtaiton
set of books that contain appellate court decisions in chronological order and divided into volumes
case reporters
official case reporters
state or federal statutes
unofficial case reporters
west or private co
new common law is made by court b/c there is no law covering a decision on this issue
case of first impression
court opinion that est new law in that area
landmark decision
what does IRAC stand for
issue, rule, analysis, conclusion
what info is in the court citaiton
name of case, where its located, court decided it, and year
printout of the case prior to being placed into the case reporter hardcover
advance sheet
why is it important for a judge to sometimes write a dissent
keep the majority honest
limit rulings precedential effect
hope that a later court will see wisdom of dissent
steps in legal research
identify your search terms
go to secondary authority first
go to primary authority
update your research
pamphlet inserted into back of book w/ updated info since book was published
pocket part
when do you know when to stop researching
when you keep finding the same references in different sources
goal in conducting research
find primary authority
in writing analysis you should prefer to use a case…
from highest appellate court decided recently facts similar to your case decided by a unanimous court written by a well known and respected judge
attorney client confidence in what kind of code
ethics code
attorney client privilege is what kind of code
rule of evidence
confidential information applies to what type of client
potential, active, prior clients
two types of conflicts with attorneys
personal or bus interest
present/past client
four part test to satisfy attorney-client privilege
the client made a statement
to a paralegal or attorney
while seeking legal advice
no unnecessary persons were present
all firm treated as though they represented prior client
vicarious
what should paralegals do to avoid problems
never meet w/ new client w/o attorney, id their status, not to disclose any info
what constitutes a contract
offer, acceptance, counter offer, consideration
courts dont care if parties made a poor bargain b/c
want people to be free to enter into contracts
people become sue happy in attempt to get out of contract
want security of relying on contract made between people
difference between contract and gift
no consideration with gift
requires that certain contracts must be in writing to be enforced
statute of frauds
tangible object or right to an ownership interest
property
land and items growing on or permanently attached to land
real property
all property that is not real
personal property
goods that can be touched or moved
tangible property
stock certificates, patents and intellectual
intangible property
absolute ownership, free from any condition or restriction
fee simple
right to title of real property that extends for some other indeterminate period of time
freehold
gove a person certain ownership rights for a limited period of time but title remain in the hands of owner
leasehold
current owner retains ownership only as long as certain conditions are met
conditional fee (land K)
gives the life tenant ownership until they die, then reverts back to original owner
life estate
own solely
severalty
ownership by 2 or more people, dont have to be equal shares, upon death persons shares passes by will or intestate
tenancy in common
ownership by 2 or more persons who have equal rights, when one tenant dies, that persons share passes to the other joint tenants
joint tenancy w/ rights of survivorship
applies to married couples only, neither party can transfer property w/o consent and upon death of one the entire property goes to other
tenancy by entireties
a provision in a deed that prohibits specified uses on the property
restrictive covenant, easement
unintentionally parted with an item and cant find it
lost property
unintentionally placed an item somewhere and the forgot where you put it
mislaid property
deliberately placing item somewhere w/ no intention of reclaiming it
abandoned property
temp transfer of personal property to 3rd party
bailment
total or real and personal property owned at death
estate
die with a will
testate
a supplement or addition to a will that modifies the current will
codicil
process of court supervision over distribution of a deceased persons property
probate
steps to distribution of estate
petition and fee
letters of testementary
reporting & inventories
probate a will
codes of attorney ethics
MCPR and MRPC
types of concurrent conflicts
actual conflict (involves adverse parties) potential conflict (conflict may arise in future)
representing someone who is in a position adverse to a prior client
successive
courts are loath to disqualify a firm b/c a conflict of interest due to
client rights to counsel of their choice
attorneys interest in rep a client
financial burden of client of replacing disqual counsel
possible tactical abuse underlying the disqual proceedings
public or private statement that an attorneys conduct violated code of ethics
reprimanded
determination that an attorney may not practice law for a set time frame
suspended
revocation of an attorneys license to practice law
disbarred
unauthorized practice of law for paralegal
misdemeanor charge
4 categories of court opinions
interpreting and applying enacted law
deciding the constituitionality of a law
applying established common law principles
creating new common law principles
binding decision from a higher court in same jursidiction
mandatory or primary authority
nonbinding decision that includes primary authority and secondary authority
persuasive or secondary authority
supports a limited role of the judiciary in changing the law
judicial restraint
supports an active role for the judiciary in changing the law
judicial activism
a narrow interpretation of the statute, used in criminal law
strict constuction
a broader interpretation of the statute, used in remedial civil cases
liberal construction
process of organizing statutes by subject matter
codification
process of using citations to check to see whether there has been any subsequent history or treatment by other court decisions about the case you are using to support/distingush client position
shepardizing
purpose of shepardizing
find parallel citations
find subsequent history
find out what later courts have had to say about case
used to describe a case that is similar to another case
on point
term used to describe two cases that are almost identical with similar facts and legal issues
on all fours
