PPT Review Flashcards
Paralegal defined
“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
To use title Paralegal
must work under attorney supervision
meet an education requirement
comply with a mandatory continuing legal education (MCLE) obligation
Emotional Quotient
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
Stare Decisis
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
English Common Law
basis of our law except for Louisiana
Louisiana follows Napoleonic code
US Constitution and Amendment provisions
First written laws for our country
Bill of Rights
Amendments 1-10 to US Constitution
Freedom of Speech
Amendment 1 – right to engage in written, oral, and symbolic speech – burning flag is protected = symbolic speech falls under political speech
US Supreme court – three different categories of speech
Impacts whether or not you have protection under First Amendment
Fully protected speech
government cannot prohibit or regulate, political speech is example you can criticize the president
Limited protected speech
– 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
Unprotected speech
– 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 =
Due Process and the 14th Amendment
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
Criminal Law Legal System
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
Civil Law Legal System
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
Federal system of law
– 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
Torts
– negligence based claims
- behavioral wrong resulting in injury
Definition of a Contract
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
Unilateral contract
– promise for an act, pay you $20 to mow lawn
Bilateral contract
– two promises, promise to pay such amount for such; promise to pay amount for house if seller fixes house
Void contract
– 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
Voidable contract
– valid contract with an option to withdraw
Quasi contract
– 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
Elements Necessary to Create a Contract
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
Capacity, Intent & Object of the Contract
some include these three as elements necessary to create contract so they’ll have 6 requirements rather than just three listed before
Capacity to sign contract
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
Intent:
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
Object of contract:
object has to be lawful and not against public policy – can’t contract to do something illegal
Breach of Contract
– 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
Cause of action
– 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
Complaint document
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
Breach of Contract - 4 elements
- there was a contract – existence of K – on about this date someone promised to do something for someone and get such and such back
- Plaintiff performance – on or about date, person performed his part of contract
- Defendant’s breach – on or about date, defendant name breached the Agreement by failing to do such and such
- Proximate damages – boilerplate paragraph – as a direct result of breach plaintiff been damaged in undetermined sum but estimate
Proximate damages
= 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
Sale of Goods: UCC
Any sale for goods and merchandise fall under Uniform Commercial Code – different set of rules
Go into store; order something online
Statute of Frauds
Not a statute and nothing to do with fraud
Old English name for list of contracts that have to be in writing
Six contracts that have to be in writing
- To pay debt of another person
- Contract by an executor of an estate or an administrator to pay debt of deceased person from his or her own pocket
- Contract for sale of real property or interest in real property
- 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
- Contracts that cannot be performed within one year must be in writing
- All contracts for sale of goods in excess of $500 must be in writing
Parol evidence
– 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.
Distinguish between intentional and negligence torts
– damages
Intentional tort can seek punitive damages
Negligent tort can seek recompense for damages incurred as result
Intentional Torts
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
Negligent Torts
Negligent in behavior
Reasonable Person Standard
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?
Comparative Fault (doctrine)
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
Respondeat Superior
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
Res Ipsa Loquitor
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
Strict Liability
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
Assumption of the Risk
defense to negligence
plaintiff assumed the risk
applies quite often
Requisite Elements of Negligence
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
Requisite Elements of Fraud
- 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
Actual damages - type of damages
– (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
General damages for pain and suffering
– rules for this, limited by statute, can’t get beyond what is set in statute
Punitive damages (AKA exemplary damages, puni’s)
– 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
Specific Performance/Injunctive relief
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
Declaratory Relief
– asking court to make declaration – boundary dispute have court say what legal boundary is between two parcels of land
Attorney Fees/Court costs
– where allowed you can ask for them; request for damges
Statutes of Limitations
Time frame within which a case must be brought
Goes by type of action
Have to bring case within certain amount of time
contract
any agreement that is enforceable in a court of law
acceptance
assent to the terms of an offer
counteroffer
response to an offer in which terms of the original offer are changed
invitation to negotiate
request to an individual or the public to make an offer
express contract
contract in which terms are stated or expressed by the parties
implied contract
contract in which terms are not stated or expressed by the parties
contract implied in fact
contract that arises from the conduct of the parties rather than from their express statements
contract implied in law
contract that is implied by court to prevent unjust enrichment
bilateral contract
contract containing two promises, one made by each party
majority
full age, adulthood
infant
legal name for a minor
necessaries
food, clothing, shelter, and medical care that are needed by an infant but not supplied by parent or guardian
executed
carried out or performed
offeror
one who makes an offer
offer
proposal made by an offeror
executory
that which is yet to be executed or performed
offeree
one to whom an offer is made
