Part 4a: Advanced Substantive Law Flashcards
The legal assistant’s first task in the discovery process is to _________.
calendar the date when responses to discovery are due
Instead of:
- review the client intake form to determine the veracity of the client’s responses
- interview the client regarding the integrity of the responses and documents submitted
In most jurisdictions, both state and federal, pretrial conferences ____________.
are held between counsel and judge and are sometimes scheduled very early in the progress of the case
Instead of:
- require the presence of the natural parties, their legal representatives, and witnesses of material fact
- are considered a mere formality and most courts do not require the parties or their representatives to attend
In general, the defendant has how many days to object, respond, or request an extension of time to respond to discovery?
30 days
An order requiring a witness to appear in court is known as a __________.
subpoena
An order requiring a witness to turn over certain documents to a specific party or to bring them to a scheduled deposition is known as a _________.
subpoena duces tecum
The term voir dire is associated with __________.
jury selection
In most jurisdictions, discovery documents are _________.
not filed with the court, but are served upon the party to whom they are directed
In the exhibit portion of a trial notebook, all exhibits are listed by _____________.
description and assigned a number in advance of trial
In a trial notebook, the Plaintiff’s outline of liability is __________.
divided into two sections
Formal discovery documents include __________.
subpoena duces tecums
Instead of:
- statement of facts
- defendant’s answers
Before taking a case to trial, courts are increasingly requiring that all parties attend __________.
mediation
Instead of:
- arbitration
- counseling
An appeal of a criminal matter to the United States Supreme Court must be based upon a(n) __________.
challenge of the constitutionality of a statute
Instead of:
- introduction of new evidence or new witnesses
- procedural error during the course of the trial
If a police officer enters a suspect’s home without permission or a search warrant, the evidence obtained during that search will not be admissible in court under the __________.
exclusionary rule
Instead of:
- Miranda rule
- probable cause rule
If a grand jury decides not to indict a defendant, a subsequent grand jury has the power to review and indict __________.
on any charge against the defendant
Instead of:
- on any new charge against the defendant
- only on future criminal charges against the defendant
Prior to the imposition of a sentence in state cases, if the indictment or information is insufficient, the court may __________.
arrest the judgment
Instead of:
- schedule a new trial
- empanel a new jury
Probable cause exists if there is a substantial likelihood that a crime __________.
was possibly committed and the individual could possibly have committed the crime
Instead of:
- might have been committed and the individual might have committed the crime
- was committed and the individual committed the crime
The initial appearance before a judge in a criminal case where the charges against the defendant are read and the defendant’s plea is entered is the __________.
arraignment
Instead of:
- indictment
- summons
If a lawyer feels that evidence was illegally seized, the lawyer will file a __________.
motion to suppress
Instead of:
- motion for directed verdict
- motion in limine
Expungement is the __________.
destruction of the record of a criminal conviction
Instead of:
- surrender of a criminal by one state to another state
- suspension of recording a criminal conviction
Criminal litigation against a suspect begins when the __________.
prosecutor files a complaint
Instead of:
- police provide their evidence
- suspect appears before a grand jury
The domination of a stronger-willed person over a weaker-willed person is known as __________.
undue influence
Instead of:
- consideration
- misrepresentation
Articles of incorporation of a new corporation would typically include the __________.
duration of the corporation
Instead of:
- quorum for voting purposes
- tenure of the members of the board of directors
Reservation of a corporate name is made by filing the appropriate forms with the designated __________.
state official
Instead of:
- Internal Revenue Service Center
- Securities and Exchange Commission
Where American String Company gives assurances to High Flyers International that a contract for merger will be reached and, based on those assurances, High Flyers incurs substantial debt on behalf of American String but no contract is ever consummated, High Flyers may be able to recover its damages under the doctrine of __________.
promissory estoppel
Instead of:
- adequacy of consideration
- parol evidence
Certain contractual agreements must be in writing, as provided by the statute of __________.
frauds
Instead of:
- novation
- limitations
Owners of a limited liability company are called __________.
members
Instead of:
- shareholders
- directors
An assurance that goods sold are reasonably fit for the ordinary purposes for which such goods are used is called a(n) __________.
implied warranty of merchantability
Instead of:
- limited warranty
- express warranty
An oral contract for goods costing $3,000 may be enforceable if the __________.
buyer makes a partial payment
Instead of:
- buyer denies the existence of the oral contract
- contract is between merchants, but there is no written confirmation
Which of the following is not a general circumstance for a declaration of invalidity or annulment?
Lack of capacity to physically consummate the marriage (known prior to ceremony).
Instead of:
- One or both of the parties lacked legal capacity.
- One or both parties were under duress.
A putative spouse generally has __________________.
the same rights as a legal spouse
Instead of:
- fewer rights than a legal spouse
- more rights than a legal spouse
Depending upon the jurisdiction, the best interests of the children are sufficient reason to seek the appointment of a ______________.
guardian ad litem
Instead of:
- public defender
- pendente lite
Gifts of real estate by a will are known as _________.
devises
Instead of:
- testate
- escheat
Brothers, sisters, aunts, and uncles are examples of _____________.
collateral heirs
Instead of:
- lineal ascendants
- lineal descendants
When the validity of a will is attacked, the proceedings are called a(n) _____________.
will contest
Instead of:
- objection to appointment
- annulment
domiciliary letters
Instead of:
- issuance letters
- letter of administration
Which of the following terms, as defined by the IRS, includes all property in which the decedent had an interest?
gross estate
Instead of:
- net estate
- total estate
Refusal to accept an interest in property that would otherwise pass to a person by gift or upon another’s death is known as a(n) _________________.
disclaimer
Instead of:
- directive
- declaration
The debtor’s income is compared to the median family income reported by the Census Bureau for the most current year available in a process known as the _________________.
mean test
Instead of:
- reaffirmation
- priority average
[Bankruptcy] Only an insolvent municipality not prohibited by state law is permitted to be a debtor under ______________.
Chapter 9
[Bankruptcy] Any person, whether a corporation or natural person, who resides, is domiciled, or owns property in the United States may file a bankruptcy petition under _________.
Chapter 7
[Bankruptcy] An uninsured state membership bank and a railroad can seek relief under _____________.
Chapter 11
[Bankruptcy] Which Chapter is usually sought to harmonize domestic and international bankruptcy proceedings?
Chapter 15
T/F: Congress creates federal agencies?
True
T/F: Implementation is not an administrative agency function?
True
T/F: The Administrative Procedure Act (APA) is tasked to police improper agency behavior, protect public safety, and secure proper entitlements.
True
T/F: The acronym HIPAA stands for Health Insurance Portability and Accountability Act of 1996.
True
Many states have adopted another type of time limitation period for filing products liability cases referred to as a __________.
statute of ultimate repose
In a medical malpractice case, it is necessary to obtain a qualified expert witness who will not be subject to disqualification by a _________.
Daubert challenge
Professional conduct that falls below the standard of care expected of similarly situated professionals is known as ____________.
malpractice
T/F: The absence of an applicable standard of care is not an element of a medical malpractice case.
True
Instead of:
- The standard of care caused the plaintiff’s injury.
- A duty of care was owed by the medical care provider.
In a medical malpractice case, the medical brief _____________.
serves to educate the court as to medical standards and concepts that apply to the case
Instead of:
- is very important to determine whether any of the parties have had prior accidents
- is essential to discover the opinions of opposing expert witnesses
When a seller represents that a product will perform satisfactorily, there is a(n) __________.
expressed warranty
Instead of:
- implied warranty
- warranty of merchantability
T/F - Implied warranties arise by operation of law?
True
Instead of:
- express warranties
- warranty of merchantability
T/F - Strict liability is: not the same as proving negligence.
True
Instead of:
- the strict determination of failure
- highly regulated and similar from one jurisdiction to another
Which type of liability attempts to ensure that the cost of injuries resulting from defective products that are unreasonably dangerous is borne by the manufacturers or sellers rather than the injured parties?
strict liability
Instead of:
- products and property liability
- ownership liability
Evelyn promises to give Darby $100 if Darby walks across the Brooklyn Bridge. Darby walks across the Brooklyn Bridge. In this situation, what type of contract has been formed?
unilateral contract
Instead of:
- quasi contract
- unenforceable contract
Arrangements that neither bind the parties involved nor have any legal effect are known as _____________.
void agreements
A contract manifested by words is a(n) ________.
express contract
The Uniform Commercial Code was prepared by the American Law Institute in ___________.
1953
T/F - Conditional ownership is not one of the four essential elements of an enforceable contract?
True
Instead of:
- legality of purpose
- mutual assent
[Real Estate] Fee simple or fee simple absolute ownership may be acquired by ______________.
any recognized legal entities such as: individuals, corporations, partnerships, trusts, estates.
[Real Estate] _____ means that upon the death of one of the owners, the property automatically and immediately becomes the property of the surviving owner or owners, without going through probate.
right of survivorship
Instead of:
- right of condition
- right of ownership
[Real Estate] Tenancy in common, conditional fee, and life estates are associated with ______________.
common types of real estate ownership
Instead of:
- general concepts of real estate
- the use of real estate as either residential or commercial property
[Real Estate] In a commercial transaction, the contract will typically give the buyer a specified period of time in which to investigate the property and perform inspections known as ______________________.
due dilligence period
Instead of:
- inspection and report period
- mortgage review period
[Real Estate] A mortgage given by a buyer to a seller in partial payment of the purchase price is known as ______________.
purchase money mortgage
Instead of:
- contract for deed
- installment real estate contract
[Landlord/Tenant] T/F - In the absence of any statutory or contractual requirement, NEITHER the landlord NOR the tenant has any particular obligation to keep the premises in repair.
True
[Landlord/Tenant] A lease for a specific period of time that automatically expires at the end of that specified time period without demand or notice is known as _________________.
estate for years
Instead of:
- periodic tenancy
- tenancy at will
[Landlord/Tenant] Sums of money paid at the beginning of the tenancy to protect the landlord from nonpayment of rent are known as _________.
damage deposits
Instead of:
- commercial deposits
- rental deposits
The landlord-tenant relationship is always created by ________________.
Implied OR expressed contracts
The practice of landlord-tenant law requires an in-depth knowledge of ______________.
real property and contract law
Instead of:
- real estate contracts and taxation law
- real property and legal requirement of estates
[Federal Taxation] An estate or a trust is a separate taxpaying entity, and its gross income, less deductions, is reported on what form?
Form 1041
[Federal Taxation] Duties assigned to goods imported from one country to another are known as ____________.
tariffs
What event spawned the modern period of federal income taxation?
The ratification of the Sixteenth Amendment in 1913.
[Alternative Dispute Resolution] T/F: Parenting plans, property divisions, and the resolution of mutual debts are: required by the courts to be mediated.
True
Instead of:
- handled collaboratively
- issues that cannot be handled by an arbitrator
The specific powers of a selected arbitrator are outlined in a(n) ______________.
arbitration agreement
Instead of:
- Arb/Med agreement
- collaborative agreement
The acronym ADR means _________________.
Alternative Dispute Resolution
[Alternative Dispute Resolution] State and federal courts often require parties to a suit to undergo _____________.
court-ordered mediation
Instead of:
- impasse mediation
- settlement mediation
T/F - Witnesses are not involved in arbitration.
True
[Environmental] T/F - EPRCA (Emergency Planning and Community Right-to-Know Act) provides the public information regarding the use and release of toxic and hazardous chemicals and substances in local communities and to establish a comprehensive emergency planning framework.
True
[Environmental] T/F - TSCA (Toxic Substances Control Act) was passed by Congress in 1976 to regulate the manufacture and use of chemical substances.
True
[Environmental] The ESA (Endangered Species Act) established two primary protected classes known as ________________.
threatened and endangered
Instead of:
- critical and static
- territorial and aquatic
[Environmental] A private party that may be liable for contamination is known as a ___________.
potentially responsible party
Instead of:
- compensatory party
- remedial party
[Environmental] Entities that create hazardous waste are known as ________________.
generators
Instead of:
- contributors
- contaminators
[Water Law] The term ________ emphasizes the purpose for which the water is used and the amount of water reasonably required to supply the designated use?
beneficial use
[Water Law] If the land lies within the watershed of the stream, a riparian landowner is entitled to put stream water to reasonable use on the landowner’s riparian land under the ______________.
reasonable use doctrine
[Water Law] Which doctrine is most commonly applied in the eastern United States?
riparian rights doctrine
Instead of:
- natural flow doctrine
- prior appropriation doctrine
[Water Law] Two major doctrines or approaches to water rights are the _______________.
doctrine of riparian rights and the doctrine of prior appropriation
[Water Law] Water rights are considered _____________.
real property rights in all states
Instead of:
- unregulated state laws
- environmental law in some states
[Oil and Gas] T/F: {Net revenue interest} is a conventional manner of expressing the amount of revenue from the sale of production to which the working interest owner is entitled after deduction of all royalties, overriding royalties, production payment interests, and net profits interest that burden the leasehold estate?
True
Instead of:
- carried interest
- joint operating agreement
An agreement to convey interests in leases or make a cash payment to the owner of an adjoining lease as an incentive to drill an exploratory well is known as ____________.
dry-hole agreement
Instead of:
- bottom-hole agreement
- drilled-hole agreement
What is the abbreviation conventionally used to designate a well that was drilled, completed as a producer, and subsequently plugged and abandoned?
P&A (Plug & Abandon)
[Oil and Gas] Footage contracts, day-work contracts, and turn-key contracts are associated with ____________.
drilling contracts
Instead of:
- division orders
- letter agreements
[Oil and Gas] Percentage depletion is only available to ___________.
independent producers and royalty owners
Instead of:
- property owners and purchasers
- royalty owners only
[Fed Labor] Which of the following established detailed federal laws governing strikes, picketing, boycotts, lockouts, and similar actions?
Norris-LaGuardia Act
[Fed Labor] ______ states that unless the contract specifies otherwise, an employee must attempt to use the grievance-arbitration procedure of the union contract in pressing grievances before resorting to the courts.
Taft-Hartley Act of 1947
[Fed Labor] ______ generally prevents an outside union from filing a petition during the life of a contract between an employer and another union?
contract bar doctrine
Instead of:
- collective bargaining agreement
- NLRB restrictive covenant
[Fed Labor] An alleged violation of the negotiated contract by either an employee, the union, or the employer is known as a(n) _____________.
grievance
Instead of:
- complaint
- negation
[Fed Labor] An organization of employees whose stated purpose is to further the interests of workers with respect to higher wages, improved working conditions, better hours, or other terms of employment through collective action is known as a(n) _____________.
labor union
Instead of:
- labor relations committee
- labor collective
[IP] T/F: ____ patents are the most common type of patents.
utility patents
Instead of:
- design patents
- plant patents
[IP] Nonlawyers who are registered to practice before the PTO are generally referred to as _____________.
patent agents
Plant patents are issued for a term of ___________.
20 years from their effective filing date
A patent is a _________.
federal grant to an inventor
Instead of:
- written description of an invention
- disclosure of the invention to the PTO
A group of examiners that review patent applications in a related technical area are know as a(n) __________.
art group
In most states, workers’ compensation coverage is ____________.
compulsory and available to all industries
T/F - {Protecting employers from undue economic stress and hardship until able to restore the business} is NOT a goal of workers’ compensation acts.
True
Instead of:
- providing benefits to injured workers without regard to fault.
- providing immunity to employers from lawsuits for injuries covered under the workers’ compensation act.
The compensation of workers’ compensation benefits is based upon a formula _______________.
that differs from state to state
Instead of:
- developed by federal administrative agencies
- determined by the court of appeals
T/F - {The injured’s length of employment, marital status, and job reviews by upper management} is not a factor in determining compensation benefits.
True
Instead of:
- The percentage of medical impairment determined by the medical experts.
- The life expectancy of the injured person.
The first workers’ compensation laws were not adopted by every state until __________.
1963
Which of the following gives a seaman injured in the course of employment the right to maintain an action at law or in admiralty for damages against the employer?
Jones Act
The ancient maritime remedy given to a seaman who becomes ill or injured while in the service of a ship is known as ___________________.
maintenance and cure
Breach of warranty of seaworthiness gives rise to a _________________.
cause of action for damages and the seaman’s right to recovery
Instead of:
- remedy for illness or injury while in the service of a ship or port
- seaman’s suit for maintenance and cure
__________ is used to describe every version of watercraft or contrivance used as a means of transport on water.
vessel
Instead of:
- ship
- missive
Any individual engaged in any capacity onboard a vessel is defined as a _____________.
seaman
Instead of:
- admiral
- sailor
[Admiralty & Maritime] While the United States Constitution grants jurisdiction of admiralty cases to federal courts, it does not say what _____________.
substantive law is to be applied
Instead of:
- actions for damages constitute warranty of seaworthiness
- specific statute resolves a question of damages under the Jones Act
Important to the test of admiralty jurisdiction are the terms ___________.
vessel, navigable waters, and seaman
T/F - {Admiralty} is a jurisdictional term that refers to a court having jurisdiction over maritime causes of action.
True
Instead of:
- maritime law
- seaman’s cause of action
[Antitrust] ______ Act prohibits discriminatory pricing and related practices.
Robinson-Patman Act
Instead of:
- Sherman Act
- Federal Trade Commission Act
[Antitrust] T/F - Section 8 of the Clayton Act makes interlocking directories in competing corporations unlawful?
True
[Antitrust] The Clayton Act is also known as the ____________.
Hart-Scott Rodino Act
The power to control prices and exclude competition in a relevant antitrust market is known as _____________.
monopoly power
_____ Act is the most widely used antitrust statute?
Sherman Act
Spouses of U.S. permanent residence aliens are considered _____________.
second preference family-based immigrants
What are the two basic divisions of family-based immigration?
immediate relatives and preference category relatives
Aliens admitted for a specific purpose and period of time are referred to as ______________.
nonimmigrants
The statute governing entry and status for noncitizens of the United States is the _______________.
Immigration and Nationality Act
Instead of:
- Alien Terrorist Removal Procedures
- Adjustment of Status Doctrine
The Immigration and Nationality Act consists of how many subchapters?
five subchapters
[Civil rights and Employment Discrimination] In a disparate treatment case, the claimant has the burden of establishing that the employer intentionally discriminated against the claimant through _______________.
preponderance of the evidence
[Civil rights and Employment Discrimination] If a charge of discrimination has not been resolved within 180 days of its filing, the claimant may ____________.
request a notice of right-to-sue letter
Instead of:
- request a default judgment against the agency
- increase the amount of claim based upon disparate treatment or impact
[Civil rights and Employment Discrimination] To constitute a covered employer under Title VII, an employer must ______________.
employ 15 or more employees for each working day for 20 or more calendar weeks
Instead of:
- be an established corporation engaged in an industry not affecting commerce
- not be considered a legal entity and must be engaged in industry affecting commerce
What is recognized as one of the most significant of the federal civil rights laws?
Title VII of the Civil Rights Act of 1964
