PPT Review

Question 1

Paralegal defined

Answer 1

“Person qualified by education, training, or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency, or other entity and who performs specifically delegated substantively legal work for which a lawyer is responsible.” ABA definition

Question 2

To use title Paralegal

Answer 2

must work under attorney supervision
meet an education requirement
comply with a mandatory continuing legal education (MCLE) obligation

Question 3

Emotional Quotient

Answer 3

people skills
P-problem solving abilities
E – Ethics
O – Open mindedness - flexibility
P – Persuasiveness, communication and listening skills
L— Leadership, accountability
E – Educational interest, life-long learner, continuing education

Question 4

Stare Decisis

Answer 4

Literally “to stand by the decision”
referring back to cases that have come before; precedent notion from British common law
Doctrine that rules the principals of law on which court rested previous decision are authoritative in all future cases in which the facts are substantially the same

Question 5

English Common Law

Answer 5

basis of our law except for Louisiana

Louisiana follows Napoleonic code

Question 6

US Constitution and Amendment provisions

Answer 6

First written laws for our country

Question 7

Bill of Rights

Answer 7

Amendments 1-10 to US Constitution

Question 8

Freedom of Speech

Answer 8

Amendment 1 – right to engage in written, oral, and symbolic speech – burning flag is protected = symbolic speech falls under political speech

Question 9

US Supreme court – three different categories of speech

Answer 9

Impacts whether or not you have protection under First Amendment

Question 10

Fully protected speech

Answer 10

government cannot prohibit or regulate, political speech is example you can criticize the president

Question 11

Limited protected speech

Answer 11

– certain types speech have limited protection, government cannot forbid entirely but can subject it to restrictions to place, time, and manner / can’t yell fire in crowded theater / offensive speech and commercial speech two types in this categories / offensive – speech that offends many members of society – FCC regulate offensive speech on airwaves “many” and “offensive” ambiguity allows to change over time as norms and mores change / commercial speech advertising and business solicitation government can restrict to time, place, and manner – can’t do false advertising can’t say whatever they want, ex city allowed to limit billboards along highway as long as there were other methods of advertising methods available able to limit it based on security reasons and beauty reasons, distraction

Question 12

Unprotected speech

Answer 12

– can be entirely prohibited by government; dangerous speech = incite violence or frenzy; fighting words = likely to provoke hostile or violent response in average person; Speech that incites violence or revolutionary overthrowing of government, can talk about it’s morality / defamatory language / child pornography / obscene speech =

Question 13

Due Process and the 14th Amendment

Answer 13

No person deprived of life, liberty, or property without due process of law
Due process is covered in both 5th and 14th amendments
5th amendment applies to federal government, 14th amendment state and local government
have to follow due process in order to deprive you
substantive due process = all government statutes are clear on face and not overly broad in scope – you have right to know you are violating law

Question 14

Criminal Law Legal System

Answer 14

Deals with trials and legalities involving crimes
Crimes are wrongs against society
Crime wrong against society or one of its members
Murder, assault, robbery
Two parties are People represented by public attorney office and then the defendant

Question 15

Civil Law Legal System

Answer 15

Anything that’s not criminal is civil
If crime not involved then talking about civil action
Covers wrongs by one “person” against another usually not involving criminal wrong doing except where criminal action gave rise to civil action
Businesses, corporate entities are persons

Question 16

Federal system of law

Answer 16

– umbrella, covers entire united states; Federal courts in every district in every state in country, have federal court in LA
Individual State court systems existing independently

Question 17

Torts

Answer 17

– negligence based claims

- behavioral wrong resulting in injury

Question 18

Definition of a Contract

Answer 18

Legally enforceable agreement (Agreement in law with capital A is synonym for contract) between two or among more parties, may be oral or written, can be a promise or a set of promises
Law recognizes these promises as legally enforceable
Proper oral contract is just as valid as written contract
Rules for when it is proper oral

Question 19

Unilateral contract

Answer 19

– promise for an act, pay you $20 to mow lawn

Question 20

Bilateral contract

Answer 20

– two promises, promise to pay such amount for such; promise to pay amount for house if seller fixes house

Question 21

Void contract

Answer 21

– unenforceable from its inception, illegal contract, (not really a contract); I’ll pay you $100 to break my husband’s legs – anything for illegal purpose will not be upholded by court; book making sue all the time for this but its illegal

Question 22

Voidable contract

Answer 22

– valid contract with an option to withdraw

Question 23

Quasi contract

Answer 23

– implied by law; warranty of habitability – landlord/tenant contract to rent, tenant finds that place is filled with rats and power doesn’t work, want to get out of agreement, implied contract for habitability – can sue landlord for breach of contract because quasi/ another example – safety glass implied contract that won’t cause injuries

Question 24

Elements Necessary to Create a Contract

Answer 24

Offer – what constitutes an offer?/ can be oral or written/ I’ll give you $10000 for your car.

Acceptance – what constitutes acceptance?/ can be oral or written should be in same form as the offer/ has to be in exactly same parameters of the offer/ change terms then it’s counteroffer

Consideration – some form of exchange; something for something; mutual benefit= money for car; mutual detriment = both lose something – politician paid husband $100,000 to say married to her while she was in office wait to file divorce / has to be reasonable has to make sense – proper consideration

Question 25

Capacity, Intent & Object of the Contract

Answer 25

some include these three as elements necessary to create contract so they’ll have 6 requirements rather than just three listed before

Question 26

Capacity to sign contract

Answer 26

capacity of parties to enter into contract; parties not to be drunk or incapacitated; minor typically lack capacity to enter into contract; any contract with minor is voidable; Competency

Question 27

Intent:

Answer 27

law requires that there must be “meeting of minds” both parties had to intend to enter into the contract; can’t trick people into signing contract makes contract invalid

Question 28

Object of contract:

Answer 28

object has to be lawful and not against public policy – can’t contract to do something illegal

Question 29

Breach of Contract

Answer 29

– one party fails to perform in pursuant to elements of contract/ presuming all elements of contract are present on party fails to perform without legal excuse Legal excuse not to perform example: tricked into signing contract/ can be more legal excuses

Question 30

Cause of action

Answer 30

– legal reason to sue –basis to sue - breach of contract is a cause of action – many other ones – someone does harm to you – negligence – fraud – loads of legitimate bases to sue someone

Question 31

Complaint document

Answer 31

Complaint document begins lawsuit and then served on defendant, in complaint there are elements that you must show every cause of action all have requisite elements that have to be plead (plead cause of action) - need to allege proper elements of cause of action – no guessing, form books/ CA Forms of Pleading and Practice – all requisite elements for every cause of action with sample verbiage

Question 32

Breach of Contract - 4 elements

Answer 32

1. there was a contract – existence of K – on about this date someone promised to do something for someone and get such and such back 2. Plaintiff performance – on or about date, person performed his part of contract 3. Defendant’s breach – on or about date, defendant name breached the Agreement by failing to do such and such 4. Proximate damages – boilerplate paragraph – as a direct result of breach plaintiff been damaged in undetermined sum but estimate

Question 33

Proximate damages

Answer 33

= direct damages; breach directly impacted plaintiff; damages = money Rule that you cannot recover through judgment more than that which you pled for; you can amend your complaint for more; amending complaint can be oral motion during trial

Question 34

Sale of Goods: UCC

Answer 34

Any sale for goods and merchandise fall under Uniform Commercial Code – different set of rules Go into store; order something online

Question 35

Statute of Frauds

Answer 35

Not a statute and nothing to do with fraud | Old English name for list of contracts that have to be in writing

Question 36

Six contracts that have to be in writing

Answer 36

1. To pay debt of another person 2. Contract by an executor of an estate or an administrator to pay debt of deceased person from his or her own pocket 3. Contract for sale of real property or interest in real property 4. Contract in consideration of marriage – prenup has to be in writing; all promises made before marriage orally don’t hold up later if not in writing 5. Contracts that cannot be performed within one year must be in writing 6. All contracts for sale of goods in excess of $500 must be in writing

Question 37

Parol evidence

Answer 37

– spoken word, oral but not part of written contract won’t be upheld if there is evidence in writing (such as a signed contract) the terms of the contract cannot be altered by evidence of oral (parol) agreements purporting to change, explain or contradict the written document.

Question 38

Distinguish between intentional and negligence torts

Answer 38

– damages Intentional tort can seek punitive damages Negligent tort can seek recompense for damages incurred as result

Question 39

Intentional Torts

Answer 39

Intent to do harm Intent is state of mind – difficult to prove Can sue for costs of harm – person should be made whole, defendant has to make plaintiff whole (pay hospital bill) Can also sue for punitive damages = punish defendant for intentional conduct Many intentional torts are also crimes

Question 40

Negligent Torts

Answer 40

Negligent in behavior

Question 41

Reasonable Person Standard

Answer 41

All negligence founded on concept of reasonable person Is it reasonable? Reasonable person standard – was it reasonable? Was it reasonable in that situation for that person?

Question 42

Comparative Fault (doctrine)

Answer 42

Percentage of fault equals percentage of liability In case where plaintiff partially at fault they won’t recover their percentage of fault (before 1972 had contributory negligence if plaintiff found to contribute at all to own injuries she would be barred entirely from any recovery – Li vs Yellow Cab- case 1972) defendant 60% responsible for accident so 60% responsible for damages

Question 43

Respondeat Superior

Answer 43

Liability flows upward, employer responsible for torts of employee in job, taken during scope of employment; parents responsible for torts of their minor children Police office off duty – individual act; police office sued individually rather than being able to sue city if police officer did tortist act on duty can sue officer, department, and city – liability in that case flows upward

Question 44

Res Ipsa Loquitor

Answer 44

Negligence is presumed where there has been violation of statute Involved in car accident, police come to scene, you’re intoxicated – your negligence is legally presumed

Question 45

Strict Liability

Answer 45

Get out your checkbook doctrine Certain types of negligent actions carry with them strict liability Dog bites number one type of personal injury – in terms of volume If you are walking and dog not on leash and dog bites someone you are strictly liable If your dog is on a leash – different, have to prove you are liable Keeper of a wild animal is strictly liable for any actions of the animal

Question 46

Assumption of the Risk

Answer 46

defense to negligence plaintiff assumed the risk applies quite often

Question 47

Requisite Elements of Negligence

Answer 47

A. the defendant owed plaintiff a duty of care (show the duty not state it) – plaintiff was driver – every driver has duty of care to other drivers on road don’t say duty of care say what it was / duty of care in general we all owe greater duty of due care to children B. defendant breached his or her duty of due care (can say this straight) – by whatever action driving some way C. proximate damages

Question 48

Requisite Elements of Fraud

Answer 48

- civil action and it’s a defense Fraud for basis to sue: can get punitive damages – fraud is intentional A. a representation was made – Bernie Madoff – I guarantee you a 10times rate of return / fraud can be oral doesn’t have to be written Sometimes prove oral if show that person relied on it B. the representation was FALSE – has to have been untrue C. defendant KNEW representation was false D. defendant INTENDED to deceive and defraud plaintiff E. plaintiff RELIED on defendant’s misrepresentations to plaintiff’s detriment F. proximate damages to plaintiff G. punitive damages allowed

Question 49

Actual damages - type of damages

Answer 49

– (AKA compensatory damages, special damages, consequential damages/ special – in personal injury have both general and special damages) – medical bills, car bill, cost of actual things that were damaged, lost wages

Question 50

General damages for pain and suffering

Answer 50

– rules for this, limited by statute, can’t get beyond what is set in statute

Question 51

Punitive damages (AKA exemplary damages, puni’s)

Answer 51

– to make an example of – Typically punitive amount is random number, but first factor use ratio 3 to 1 make puni’s 3 times actual damages, how onerous (bad) was behavior onerousness of conduct will be second factor in determining amount (had they been warned before), third factor financial situation of defendant – what will punish person based on their finances? (ask for actual and punitive damages separately) – only allowed where there is intentional act

Question 52

Specific Performance/Injunctive relief

Answer 52

``` Specific Performance– person to do something that didn’t do, sue for specific act, contractor building in home don’t want money just finish job way agreed to (goes to contract)/ Injunctive Relief (behavior)– order restriction or compulsion on behavior, example temporary restraining order person can’t come near you ```

Question 53

Declaratory Relief

Answer 53

– asking court to make declaration – boundary dispute have court say what legal boundary is between two parcels of land

Question 54

Attorney Fees/Court costs

Answer 54

– where allowed you can ask for them; request for damges

Question 55

Statutes of Limitations

Answer 55

Time frame within which a case must be brought Goes by type of action Have to bring case within certain amount of time

Question 56

contract

Answer 56

any agreement that is enforceable in a court of law

Question 57

acceptance

Answer 57

assent to the terms of an offer

Question 58

counteroffer

Answer 58

response to an offer in which terms of the original offer are changed

Question 59

invitation to negotiate

Answer 59

request to an individual or the public to make an offer

Question 60

express contract

Answer 60

contract in which terms are stated or expressed by the parties

Question 61

implied contract

Answer 61

contract in which terms are not stated or expressed by the parties

Question 62

contract implied in fact

Answer 62

contract that arises from the conduct of the parties rather than from their express statements

Question 63

contract implied in law

Answer 63

contract that is implied by court to prevent unjust enrichment

Question 64

bilateral contract

Answer 64

contract containing two promises, one made by each party

Question 65

majority

Answer 65

full age, adulthood

Question 66

infant

Answer 66

legal name for a minor

Question 67

necessaries

Answer 67

food, clothing, shelter, and medical care that are needed by an infant but not supplied by parent or guardian

Question 68

executed

Answer 68

carried out or performed

Question 69

offeror

Answer 69

one who makes an offer

Question 70

offer

Answer 70

proposal made by an offeror

Question 71

executory

Answer 71

that which is yet to be executed or performed

Question 72

offeree

Answer 72

one to whom an offer is made

Question 73

rejection

Answer 73

refusal by an offeree of an offer made by an offeror

Question 74

revocation

Answer 74

taking back of an offer by an offeror before it has been accepted bya n offeree

Question 75

quasi contract

Answer 75

contract imposed by law to prevent unjust enrichment (also called a contract implied in law)

Question 76

unilateral contract

Answer 76

contract containing one promise in exchange for an act

Question 77

valid

Answer 77

good; having legal effect

Question 78

void

Answer 78

not good; having no legal effect

Question 79

nullity

Answer 79

nothing; as though it had not occurred

Question 80

voidable

Answer 80

capable of being disaffirmed or voided

Question 81

ratify

Answer 81

approve; confirm

Question 82

unenforceable contract

Answer 82

contract that cannot be enforced for some legal reason

Question 83

avoid, disaffirm

Answer 83

get out of a voidable contract

Question 84

quasi

Answer 84

as if; almost as it were

Question 85

negligence

Answer 85

failure to use that amount of care and skill that a reasonably prudent person would have used under the same circumstances and conditions

Question 86

malpractice

Answer 86

professional misconduct; negligence of a professional

Question 87

business invitee

Answer 87

one invited on the premises for a business or commercial purpose

Question 88

ordinary negligence

Answer 88

want of ordinary care

Question 89

gratuitous guest

Answer 89

one invited on the premises for nonbusiness purposes

Question 90

gross negligence

Answer 90

extreme negligence

Question 91

bare licensee

Answer 91

person allowed on another's premises by operation of law, such as a fireman or policeman

Question 92

will, wanton, and reckless conduct

Answer 92

intentional commission of an act that a reasonable person knows would cause injury to another

Question 93

attractive nuissance doctrine

Answer 93

doctrine establishing property owners' duty to use ordinary care toward trespassing children who might reasonabley be attracted to their property

Question 94

res ipsa loquitor

Answer 94

the thing speaks for itself

Question 95

damages

Answer 95

monetary loss suffered by a party as a result of a wrong

Question 96

contributory negligence

Answer 96

negligence on part of plaintiff, which contributed toward the injuries and was a proximate cause of them

Question 97

comparative negligence

Answer 97

proportionate sharing between plaintiff and the defendant of compensation for injuries, based on relative negligence of the two

Question 98

assumption of the risk

Answer 98

plaintiff assumes consequences of injury; employee agrees that dangers of injury shall be at his or her own risk

Question 99

statutes of limitation

Answer 99

statutes that determine the time limits for bringing legal actions in court

Question 100

fact finder

Answer 100

jury in jury trial or the judge in a nonjury trial

Question 101

reasonable care

Answer 101

degree of care that reasonable person would have used under circumstances then known

Question 102

absolute or strict liability

Answer 102

liability for an act that causes harm without regard to fault or negligence

Question 103

last clear chance doctrine or humanitarian doctrine

Answer 103

doctrine under which a defendant who had last clear chance to have avoided injuring plaintiff is liable even though plaintiff had also been contributory negligent

Question 104

defamation

Answer 104

wrongful act of damaging another's character or reputation by use of false statements

Question 105

libel

Answer 105

defamation that is communicated by writing or other means that is directed towards the sense of sight

Question 106

slander

Answer 106

defamation that is communicated by spoken word

Question 107

per se

Answer 107

in and of itself; taken alone

Question 108

malicious prosecution

Answer 108

prosecution begun in malice without probable cause

Question 109

trespass

Answer 109

intentional and unauthorized entry on the land of another

Question 110

conversion

Answer 110

wrongful exercise of dominion and control over the personal property in another's possession

Question 111

tortious

Answer 111

wrongful; implying or involving tort

Question 112

intentional torts; willful torts

Answer 112

torts that are committed intentionally

Question 113

battery

Answer 113

intentional contact with another person without that person's permission and without justification

Question 114

assault

Answer 114

intentional creation of reasonable apprehension of an imminent battery

Question 115

false arrest; false imprisonment

Answer 115

intentional confinement of a person without legal justification

Question 116

fraud; deceit

Answer 116

misrepresentation of a material, existing fact, knowingly made, that causes someone reasonably relying on it to suffer damages

Question 117

misrepresentation

Answer 117

false or deceptive statement or act

Question 118

damages

Answer 118

monetary loss suffered by party as a result of a wrong

Question 119

actionable

Answer 119

furnishing legal ground for a lawsuit

Question 120

trespass bonis asportatis

Answer 120

trespass for goods carried away

Question 121

emotional distress

Answer 121

emotional suffering caused by infliction of extreme and ourtrageous intentional conduct by another

Question 122

scienter

Answer 122

knowingly

Question 123

unintentional torts

Answer 123

torts that are committed accidentally

Question 124

complaint; declaration

Answer 124

formal document containing a short and plain statement of the claim indicating that the plaintiff is entitled to relief and containing a demand for the relief sought

Question 125

pleadings

Answer 125

written statements of claims and defenses used by parties in the lawsuit

Question 126

summons

Answer 126

formal notice to the defendant that lawsuit has begun and that the defendant must file an answer within the number of days set by state law or lose the case by default

Question 127

attachment

Answer 127

act of taking a person's property and bringing it into custody of law so that it may be applied toward defendant's debt if plaintiff wins case

Question 128

affiant; deponent

Answer 128

person who signs an affidavit

Question 129

ex parte

Answer 129

on one side only

Question 130

writ of attachment

Answer 130

written order to sheriff commanding sheriff to attach real or personal property of defendants

Question 131

lien; encumbrance

Answer 131

claim that one has against property of another

Question 132

trustee process; garnishment

Answer 132

procedure for attaching defendants property that is in hands of a third person

Question 133

trustee

Answer 133

person who holds legal title to property in trust for another

Question 134

cause of action

Answer 134

ground on which a suit is maintained

Question 135

verification

Answer 135

written statement under oath confirming the correctness, truth, or authenticity of a pleading

Question 136

affidavit

Answer 136

written statement sworn to under oath before a notary public as being true to affiant's own knowledge, information, and belief

Question 137

process

Answer 137

means of compelling the defendant in an action to appear in court

Question 138

service of process

Answer 138

delivering of summonses or other legal documents to people who are required to receive them

Question 139

process server

Answer 139

person who carries out service of process

Question 140

personal service

Answer 140

delivering a copy of summons and complaint to defendant personally

Question 141

constructive service

Answer 141

type of service in which the summons and complaint are left at defendant's last and usual place of abode

Question 142

Doe defendants

Answer 142

references to defendants whose names are unknown

Question 143

writ

Answer 143

written order of a court, returnable to the same, commanding the performance or nonperformance of an act

Question 144

substituted service

Answer 144

type of service in which the summons and complaint are delivered to the defendant's agent or mailed or published in a newspaper

Question 145

demurrer

Answer 145

pleading used by defendant to attack plaintiff's complaint by raising a point of law, such as failure of complaint to state a cause of action

Question 146

allegation

Answer 146

statement or claim that party making it expects to prove

Question 147

affirmative defense; confession and avoidance

Answer 147

defense that admits plaintiff's allegations but introduces another factor that avoids liability

Question 148

counterclaim

Answer 148

claim that defendant has against plaintiff

Question 149

reply

Answer 149

plaintiff's answer to defendant's counterclaim

Question 150

cross claim

Answer 150

claim brought by one defendant against another defendant in the same suit

Question 151

motion to dismiss

Answer 151

motion made by defendant asking court to dismiss the case

Question 152

motion for more definite statement

Answer 152

motion by a party, when a pleading is vague, asking court to order other party to make more definite statement

Question 153

motion to strike

Answer 153

motion asking court to order other party to remove from a pleading any insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter

Question 154

motion for judgement on the pleadings

Answer 154

motion by either party for judgment in that party's favor based solely on information contained in the pleadings

Question 155

answer

Answer 155

main pleading filed by defendant in a lawsuit in response to plaintiff's complaint

Question 156

default judgement

Answer 156

judgement entered on failure of a party to appear or plead at the proper time

Question 157

sustain

Answer 157

to support

Question 158

overrule

Answer 158

to annul, make void, or refuse to sustain

Question 159

nonsuit

Answer 159

termination of an action that did not adjudicate issues on the merits

Question 160

misnomer

Answer 160

mistake in name

Question 161

cross complaint

Answer 161

pleading used in California by defendant to file claim against another defendant, a third party, or plaintiff in same action

Question 162

party to a suit

Answer 162

person or organization participating or having a direct interest in legal proceeding

Question 163

discovery

Answer 163

methods that allow each party to obtain information from other party and from witnesses about case before going to court

Question 164

interrogatories

Answer 164

form of discovery in civil action in which parties are given a series of written questions to be answered under oath

Question 165

deposition

Answer 165

testimony of witness, given under oath but not in open court, and later reduced in writing

Question 166

subpoena

Answer 166

an order commanding person to appear and testify in a legal action

Question 167

subpoena duces tecum

Answer 167

an order commanding person to appear and bring certain papers or other materials that are pertinent to legal action

Question 168

notary public

Answer 168

person authorized to administer oaths, attest to and certify documents, take acknowledgments, and perform other official acts

Question 169

perjury

Answer 169

giving of false testimony under oath

Question 170

deponent

Answer 170

one who gives testimony under oath

Question 171

deposition on oral examination

Answer 171

deposition in which lawyers orally examine and cross-examine a witness

Question 172

stipulation

Answer 172

agreement between the parties to an action regulating any matter relative to the proceedings

Question 173

impeach

Answer 173

call into question

Question 174

cross questions

Answer 174

questions asked by deponent in response to questions asked at a deposition

Question 175

redirect questions

Answer 175

further questions asked by an examiner at deposition in response to cross questions

Question 176

recross questions

Answer 176

further questions asked by deponent in response to redirect questions

Question 177

deposition on written questions

Answer 177

deposition in which lawyers examine and cross-examine a witness who has received in advance written questions to be answered

Question 178

bill of particulars

Answer 178

written statement of particulars of complaint showing details of amount owed

Question 179

verbatim

Answer 179

word for word

Question 180

stipulate

Answer 180

agree

Question 181

motion for order compelling discovery

Answer 181

motion asking the court to order other party to produce certain writings, photographs, or other requested items