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Legal Concepts and Doctrines > Review > Flashcards

Review Flashcards

1
Q

Executive Branch

A

Federal level = president
State level = governor

Power to make laws or approve (sign) or disapprove (veto) proposed laws, bills

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2
Q

Legislative Branch

A

Lawmaking body
Congress
Laws are written and passed or denied

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3
Q

Judicial Branch

A

Court system
Laws are interpreted
Legal disputes are decided

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4
Q

Common Law

A

Body of principles and rules of action arising from usages and customs or from judgements of courts that recognize affirm and enforce custom.

Unwritten law in that it has never been enacted into statutory law

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5
Q

Stare decisis

A

Once a court has decided a dispute, the decision was used as a reference or precedent.
Following established precedent
Provides stability and continuity by eliminating inconsistencies from the law

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6
Q

Statues

A

Each law that is enacted by the legislative branch

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7
Q

How do courts decide cases?

A

Applying relevant laws to individual facts of each case.

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8
Q

Administrative agencies

A

Organizations created by law to carry out specific legislative activities

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9
Q

Judicial Review

A

Reviewing certain actions taken by federal and state administrative agencies
Protects personal interest that may be affected by an agency

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10
Q

Litigation

A

The practice of taking a legal action

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11
Q

Jurisdiction

A

Authority or power of a court to hear a certain case

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12
Q

Court of Original Jurisdiction

A

Court of first instance

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13
Q

Appellate Court

A

If cases are not satisfactorily settled they may be appealed to this court
Has no original jurisdiction
Exists only to review judgements made by courts with lesser authority

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14
Q

Doctrine

A

Principle of law established through past decisions and interpretations made by the courts

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15
Q

Jurisprudence

A

Process of distinguishing between what is legislation and what is doctrine

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16
Q

Lex fori

A

Law of the forum

Has to do with specific procedures that the parties to a case are required by the courts to follow

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17
Q

Lex loci

A

Law of the place

Used to determine the rights of the parties to an action

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18
Q

Federal Courts Jurisdiction

A

Federal laws
Raise federal questions
Constitution
When United States is a very plaintiff or defendant
Maritime jurisdiction and admiralty
Between residents of two different states who claim land under grants from different states
Between residents of different states when the dollar amount in damages is greater than $75,000

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19
Q

What federal court is established by the US Constitution?

A

US Supreme Court

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20
Q

District Courts

A

Courts that have original jurisdiction receive most of the cases in federal system
District Courts are considered trial courts at the federal system
Original jurisdiction in certain kinds of cases such as admiralty and maritime law and exclusive jurisdiction over some matters such as patent cases

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21
Q

Circuit Court

A

A decision made by a district court may be appealed to the appropriate circuit court.
These courts serve to relieve the Supreme Court of much of its appellate work

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22
Q

Appeals

A

An appeal may only be taken to determine questions of law not questions of fact.

Appeal may
Uphold lower court decision
Reverse/overturn lower court decision
Send case back to lower court for a new trial

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23
Q

State courts have exclusive jurisdiction over

A

All matters that are not under the jurisdiction of the federal courts

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24
Q

Courts of limited jurisdiction

A

Court only authorized to hear specific and limited types of cases

County courts
Municipal courts
Specialized courts such as probate

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25
Q

What branch of government is responsible for signing a bill into law?

A

Executive branch

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26
Q

Stati decisis means

A

The process of following established precedent

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27
Q

A written law is called

A

A statue

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28
Q

The court system

A

Settles civil controversies among individuals and punishes criminal offenses
Interprets and applies existing law in the process of deciding cases
Reviews certain actions taken by federal and state administrative agencies

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29
Q

A courts power and authority to hear a specific case is referred to as its

A

Jurisdiction

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30
Q

A principle of law established through past court decisions and interpretations is

A

Doctrine

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31
Q

What is the process of distinguishing between lawmaking and doctrine?

A

Jurisprudence

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32
Q

What are the 3 branches of the US Government?

A

Executive, legislative and judicial

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33
Q

What is the difference between the court if original jurisdiction and the appellate court?

A

Original jurisdiction hears case first

If cases not satisfactory settled can be heard by appellate courts

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34
Q

Federal Court System

A

Supreme Court of the United States
⏫
Specialized US Courts Appeals
Federal Of Appeals From state
Courts. 11 Circuits Courts

                                        ⬆️ Administrative  Agencies            ➡️  US District Courts
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35
Q

Typical State Court System

A 
State Supreme Court
⬆️
State Court of Appeals 
⬆️
District Courts 
⬆️
Municipal   ➖County Courts   ➖Specialized Courts
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36
Q

Public Law

A

Governs the relationship between government and the individual

Includes:
Criminal law
International law
Constitutional law
Administrative law
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37
Q

Private Law

A

Governs the relationship between individuals or between individuals, corporations, partnerships and other legal entities.

Also known as civil law

Business affairs
Transfer of property
Collection of money for persons injured through the fault of others

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38
Q

Criminal Law

A

Most common form of public law is criminal law
Criminal law defines the acts that society considers so harmful to the public welfare that government is responsible for prosecuting and punishing perpetrators.

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39
Q

International law

A

Involves relationships between nations

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40
Q

Constitutional Law

A

Involves problems arising in relation to the U.S. Constitution and state constitutions

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41
Q

Administrative Law

A

Involves rules developed by administrative agencies of the government such as the Federal Trade Commission(FTC), Federal Communications Commission(FCC), & the Food and Drug Administration(FDA)

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42
Q

The law exists on 2 levels

A

Federal and state

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43
Q

Federal Law

A

Includes the entire country

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44
Q

State Law

A

Applies specifically to the state in which the law is enacted

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45
Q

Federal Statutes

A

Written laws that are developed and enacted by the federal legislative body, US Congress in an attempt to focus on the public interest

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46
Q

Sherman Antitrust Act

A

1890
Federal statute that prohibited trade restraints and disallowed the creation of monopolies
Applied to any business that was subject to federal law in any state.
Insurance at the time was not subject to federal law

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47
Q

McCarran-Ferguson Act

A

Provided insurance business with a partial exemption from the Sherman Antitrust Act.
Otherwise sharing certain information-sharing practices of insurers such as sharing loss statistics to determine rates would of been found in violation of federal law

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48
Q

State Statutes

A

Written laws enacted by a state legislature

May be more strict than federal statutes

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49
Q

Regulations

A

Define specific practices that must be carried out to meet the statute’s intent

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50
Q

Administrative Procedure Act (APA)

A

Outlines the procedures that federal administrative agencies must follow when drafting regulations

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51
Q

Model State Administrative Procedure Act (MSAPA)

A

Most states follow these guidelines

Provides a notice of intent to issue a regulation
Provides an opportunity for public comment on the proposed regulation
Publish the final regulation

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52
Q

Department of Insurance

A

State administrative agency that not only develops insurance regulations but also serves in the adjudication of disputes involving insurance.

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53
Q

Uniform laws

A

Laws that are basically the same for every state

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54
Q

Uniform Commercial Code

A

Adopted by all states except Louisiana

Regulates commercial transactions and the sale of goods among states

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55
Q

Legislative Act

A

Group of laws relating to one subject that are written and presented at one time

Workers Compensation Insurance
Operating an automobile

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56
Q

Unfair Claims Settlement Practices

A

Provides protection to the public by setting guidelines for handling claims
Describe prohibited practices
Impose penalties for anyone who engages in any of the listed practices such as fines, license suspension or revocation, jail sentences
Penalties become more severe if violations were willful

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57
Q

Civil Law

A

Covers the rights and duties of members of society with respect to each other
A violation is called a civil offense
Involves legal action taken by one individual or group against another to recover for damages suffered from a private wrong

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58
Q

Contract

A

Voluntary agreement made by 2 or more persons that is enforceable by civil law

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59
Q

Contract Law

A

Law that ensures a contract is legally valid and that legal obligations of the contract are carried out

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60
Q

Tort

A

A civil wrong that arises from the violation of a legal or natural right that is not created by a breach of contract

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61
Q

Tort Law

A

Concerned with compensating an individual for the losses resulting from the conduct of others that is considered to be socially unreasonable
Compensation for damages is given in the form of money

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62
Q

Tortfeasor

A

The party that commits a tort

The wrongdoer

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63
Q

The insurance industry is primarily regulated by

A

Individual state governments

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64
Q

What type of law involves cases are n which the state prosecutes an individual, in the interest of society, for violating a law?

A

Criminal Law

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65
Q

What is the most common public law?

A

Criminal law

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66
Q

What are two types of civil law?

A

Contract

Tort

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67
Q

Negligence

A

The lack of reasonable care that is required to protect others from unreasonable chance of harm

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68
Q

Legal liability

A

Liability imposed by law, as opposed to liability arising from an agreement or contract

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69
Q

Reasonable Care

A

Includes the due care that a reasonable person would provide in order to eliminate the chance of harm to others

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70
Q

Negligence per se

A

An act that is presumed to be negligent as a matter of law, such as an action that violates a statute

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71
Q

Degree of care

A

Extent of the legal duty owed by one person to another

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72
Q

Reasonable person standard

A

Principle of law that states each person must behave like a prudent person, following those ordinary considerations that guide human affairs.

Also known as prudent person standard

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73
Q

Four Elements of Negligence

A

There was a legal duty owed
There was a breach of legal duty owed
The party sustained actual damages as a result of the breach of legal duty owed
The breach of legal duty owed was the proximate cause of the loss

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74
Q

Proximate Cause

A

Action that in a natural and continuous sequence produces a loss

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75
Q

Gross Negligence

A

Total disregard for the safety of others

Reckless, wanton and willful misconduct

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76
Q

Guest Statutes

A

Law that prohibits a passenger Ina car from suing the driver for injuries caused by the driver unless the actions of the driver are willful and in the complete disregard of the safety of others

They do not apply in every state

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77
Q

Survival statutes

A

Allows deceased person’s estate to recover damages from the liable third party for expenses incurred between the time of injury and the time of death

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78
Q

Contributory negligence

A

Common law defense against negligence that states that if an individual contributes to his or her own loss in any way, then someone else cannot be held liable for the loss

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79
Q

Comparative Negligence

A

Legal principle that reduces a plaintiff’s damages to the extent of the plaintiff’s degree of negligence.
Negligence on the part of the plaintiff does not altogether bar recovery

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80
Q

Assumption of risk

A

Known danger exists
Voluntarily expose self to risk

Defense against liability based on the common law principle that a person who has been made aware of a risk and voluntarily exposes himself or herself to the risk assumes the risk of loss and cannot attitude the loss to someone else

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81
Q

Last clear chance

A

Possible defense to a charge of contributory negligence, provides that the party who has the last clear chance to avoid damage or injury to another is liable for any resulting loss, because negligence in failing to take this opportunity is the proximate cause of the loss

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82
Q

Avoidable consequences

A

Mitigation of damages
Denies recovery for any damages that could have been avoided by reasonable conduct on the part of the person who suffered a loss

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83
Q

Intentional torts

A

An action performed by an individual with a deliberate intent to harm another person or another person’s property

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84
Q

Absolute liability

A

Liability imposed for an event that injuries the public but which does not involve negligence or the intent to cause harm
Involves certain activities that could be judged especially hazardous
An individual may be held liable for damages of another even though the individual was not negligent

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85
Q

Vicarious liability

A

An individual might be responsible for the negligent acts of another person

Also known as imputed liability

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86
Q

Agency

A

Employer/employee relationship arises when one person, an agent, acts on behalf of another, a principle

A principle is liable for the acts of the agent because the agent acts on behalf of the principle.

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87
Q

Independent contractors

A

When the employer does not control the details of the job

The negligence of the contractor would not be inputed on the employer

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88
Q

Family purpose doctrine

A

Doctrine under which the owner of an automobile is held liable for damages resulting from the negligence of an automobile operated by members of his or her family

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89
Q

Ownership statute

A

Law that imposes vicarious liability on automobiles owners for the actions of others who drive the owner’s car
applies to anyone who drives the vehicle with the owner’s permission

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90
Q

Bailment

A

Arises when a bailor transfers possession of personal property to a Bailee for a specific purpose with the agreement that the property will be returned to the bailor
Goes into effect when the bailor delivers the property into the possession of the Bailee and ends when the Bailee returns the property

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91
Q

Bailor

A

Person who transfers possession of personal property to a bailee

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92
Q

Bailee

A

Person who takes possession of a bailor’s property for a specific purpose

93
Q

Invitee

A

A person who is invited onto premises for some purpose involving potential financial benefit to the property owner

A property owner is most likely held liable for injury to the invitee

94
Q

Licensees

A

When a visiting party is present on the property of another for his or her own convenience and is not forbidden to be there
Duty owed by property owner is less than that owed for a invitee

95
Q

Attractive Nuisance

A

An artificial structure or condition that is especially attractive to children and capable of resulting in injury to children

A property owner must use ordinary care to protect trespassing children from injury

96
Q

No-fault concept

A

Allows for prompt and direct payments to automobile accident victims regardless of who was at fault for the accident

97
Q

Modified plan

A

Limits right to sue but doesn’t actually eliminate it
Injured person is entitled to recovery of medical expenses and loss wages from his or her own insurance company but can sue in case of serious injuries

98
Q

Add-on plan

A

Does not limit the right to sue

Expands Medical Payments coverage offered under a typical auto policy

99
Q

Voluntary plan

A

Is no created by legislation

Insurers have the option of offering no-fault benefits and insureds have the option of purchasing them

100
Q

Specialized Courts in Federal Court System

A 
Court of Claims
Customs Court
Court of Customs and Patent Appeals
Tax Court
Bankruptcy Court
Court of Military Appeals
101
Q

Courts of Limited Jurisdiction

A

County courts
Municipal courts
Specialized courts such as probate

102
Q

Criminal law

A

Encompasses standard of conduct by defining what acts are harmful to the public welfare
Government is responsible for prosecution violator

103
Q

Affirmative defenses

A

Assumption of risk
Last clear chance
Avoidable consequences- mitigate damages

104
Q

Contract

A

Legal agreement between 2 competent parties that promises a certain performance in exchange for a certain consideration

105
Q

The insured is what party in a contract?

A

1st party

106
Q

The insurance company is what party in a contract?

A

2nd party

107
Q

Contract law

A

Ensures that a contract is legally valid and that the legal obligations of the contract are carried out

108
Q

Privity of Contract

A

The relationship that arises when 2 parties form a contract

109
Q

Breach of contract

A

Failure to perform a contract without legal excuse

110
Q

Elements of a valid contract

A

Competent parties
Legal purpose
Offer and acceptance (agreement)
Consideration

111
Q

Competent party

A

A person who is a minor, insane or under the influence of alcohol or drugs is considered incompetent

112
Q

Legal Purpose

A

A contract that is against public policy or in violation of constitutional or statutory law is not legally enforceable

113
Q

Offer and Acceptance

A

Offer is promise that requires an act or another promise in exchange

Acceptance occurs when the other party agrees to the offer or does what is proposed in the offer

114
Q

Consideration

A

A thing of value exchanged for the performance promised in the contract

115
Q

Indemnity

A

When a loss occurs, an individual should be restored to the approximate financial condition he or she was in before the loss, no more no less.

116
Q

Insurable interest

A

Lawful economic interest in the safety or preservation of the subject of insurance from loss or destruction

117
Q

An insurance policy is what kind of nature?

A

Personal

It does not insure property, it insures the person who owns the property

118
Q

Aleatory

A

An insurance policy is aleatory

It is contingent on an uncertain event, a loss

119
Q

Adhesion

A

One party has greater power over the other party in drafting the contract

The insurance company ultimately draws up and issues the policy

120
Q

Ambiguity

A

Occurs when the insurer does not make the terms and agreements of the policy perfectly clear
Because an insurance policy is a contract of adhesion, the courts usually resolve any ambiguity in policy wording in favor of the insured

121
Q

Unilateral

A

On sided contract
Only the insurance company is legally bound to perform its part of the agreement
If a insured pays a premium and a loss occurs, the insurer is legally bound to pay for loss under terms of the policy
If insured doesn’t pay insurer can cancel policy but cannot take insured to court for breaking contract

122
Q

Contract of utmost good faith

A

Insurance company relies on the truthfulness and integrity of the applicant when issuing a policy

123
Q

Fraud

A

A deliberate misrepresentation that causes harm

124
Q

For what reasons can a contract be voided

A

Fraud
Misrepresentation
Concealment
Breach of warranty

125
Q

Insurance fraud

A

Insurance fraud may be committed to:
Obtain an insurance policy (contract fraud)
Be charged a lower premium (premium fraud)
Obtain payment on a claim for a loss that never occurred or for a loss that has been padded or exaggerated to receive a higher claim payment (claim fraud)

126
Q

Representations

A

Statements that the applicant believes are true

127
Q

Misrepresentation

A

Written or verbal misstatement of a material fact involved in the contract on which the insurer relies

Differs from fraud in that it involves only one particular fact rather than an all-out effort by one party to deceive and cheat the other

Policy can only be voided if the misrepresentation concerns a material fact

128
Q

Concealment

A

Involves withholding a material fact

129
Q

Warranties

A

Specific agreement between two parties to a contract that becomes a part of the contract

130
Q

Affirmative Warranty

A

States that certain conditions exist when the contract is made

131
Q

Promissory warranty

A

States that a certain condition will continue to be met or that certain things will be done during the policy period

132
Q

Subrogation

A

Substitution of one party in place of another with respect to a legal right or claim

133
Q

Waiver

A

Intentional relinquishment of a known right

134
Q

Express waiver

A

Written or oral statement that specifically relinquishes a right

135
Q

Implied waiver

A

Implied by misleading conduct

136
Q

Estoppel

A

If an insurance professional intentionally or unintentionally creates the impression that a certain fact exists when it does not and an innocent party relies on that impression and is damaged as a result, the insurance company will be estopped or prevented from denying this fact

137
Q

Four elements of fraud

A

Someone who deliberately lies
The intent of the lie is for someone else to rely on that lie
Another person relies on that lie
The other person suffers harm as a result of relying on that lie

138
Q

Claim

A

A demand by an individual or cooperation to recover under an insurance policy for loss arising out of events covered by the policy

139
Q

1st party claims

A

Filed by insured

Recover under insured’s own coverage

140
Q

Third party claim

A

Filed by someone who is not an insured

Make a claim against insured to recover under insured’s policy

141
Q

Unfair claims settlement practices laws

A

Ensue that insurance claims are handled promptly and fairly

142
Q

NAIC Model Unfair Claims Settlement Practices

A

National Association of Insurance Commissioners
An organization made up of individual state insurance commissioners whose purpose is to promote uniformity in regulation by drafting model laws and regulations

The recommendations are non-binding on individual states, but most states use these recommendations as the basis for developing their insurance laws

143
Q

First party bad faith lawsuits

A

Filed by insured

Bad faith handling of a first party claim

144
Q

Third party bad faith lawsuit

A

Filed by insured for the bad faith handling in the defense or settlement of a third-party claim against the insured

145
Q

Comparative bad faith

A

Also known as contributory bad faith or insured bad faith

If an insurer can show that the insured also acted in bad faith in a claim investigation, the insurer may be able to have the bad faith lawsuit dismissed

146
Q

Declaratory judgement

A

The insurer legal staff files an action with a court to determine whether coverage under the policy exist last and what rights of the parties are under the policy

147
Q

Misrepresentation in claims

A

There is no requirement that the insurer rely on the misrepresentation

148
Q

Claim fraud

A

Reliance by the insurer is not necessary for fraud to exist

149
Q

Innocent co-insureds

A

In most cases, innocent co-insureds are not allowed to recover on the theory that they probably knew about the insured’s activities

150
Q

Lex loci delicti

A

States that the law where the loss occurred applies

151
Q

Rule of Significant Contacts

A

A court determines which state has a greater interest in protecting its citizens and applies that state’s law

152
Q

Res ispa loquitur

A

The thing speaks for itself
Creates a presumption of negligence without any exact, obvious or definite proof
Only applied when actual cause of loss is not known

Elements
Negligence usually involved in such a loss
Object that caused loss in defendant’s exclusive control
Injured party did not contribute to loss

153
Q

Prima facie evidence

A

Evidence is available that is sufficient on its face to prove a given fact

154
Q

Excited utterance

A

Declaration or exclamation made spontaneously or immediately following an event that serves to establish the facts of the event

This is an exception to the hearsay rule

Assumption of risk
Last clear chance
Avoidable consequences- mitigate damages

155
Q

Principle of single recovery

A

Because only a single lump sum judgement is usually allowed in a claim for damages, all damages must be considered, past and future

156
Q

Actual Cash Value

A

ACV=Replacement cost - depreciation

157
Q

Broad evidence rule

A

Requires that when determining actual cash value, all evidence that could be reasonably be used to estimate the value of the property at the time of the loss must be taken into consideration

158
Q

Market Value

A

Amount a willing buyer would pay for the property.

159
Q

Replacement cost

A

Cost to replace a damaged or destroyed item of property without a deduction for depreciation
Usually used for losses to buildings
Sometimes for personal property

160
Q

Reproduction cost

A

Cost to rebuild the building at same location using its original specifications and plans

161
Q

Value to owner standard

A

Requires all relevant facts be taken into consideration and Insured is allowed to testify as to the value of the property

162
Q

Valued policy laws

A

The value of the property listed on the insurance policy is the amount that must be paid if the property is destroyed, regardless of the property’s value at the time of the loss

163
Q

Compensatory Damages

A

Reimburse the injured party only for losses that were actually sustained

164
Q

Special damages

A

Special damages include all direct and specific expenses involved in a particular loss such as medical expenses, lost wages, funeral expenses, and cost to repair or replace damaged property

165
Q

General damages

A

Compensate for such things as pain and suffering, disfigurement and loss of consortium

166
Q

Punitive damages

A

Exemplary damages

Designed to punish if the defendant acted wantonly or willfully in causing the plaintiff’s injuries

167
Q

Nominal damages

A

May be awarded to acknowledge the damage and vindicate a right
Usually a very small amount

168
Q

Collateral source rule

A

Provides that a plaintiff’s award for damages cannot be modified even if plaintiff has other available sources

169
Q

If a court considers bad faith to be a tort instead of a contract violation, the insurance company

A

May be held liable for more than it was originally obligated to pay under the policy

170
Q

Wha can invalidate an insurance claim?

A

Misrepresentation
Fraud
Concealment

171
Q

Who is the 1st party in a claim?

A

Insured

172
Q

Who is the 3rd party in a claim?

A

Plaintiff

173
Q

Who is the 2nd party in a claim?

A

Insurance company

174
Q

Bad faith

A

Violates the insurance contract

175
Q

What is the first step of a lawsuit?

A

The complaint is the first pleading of the lawsuit

176
Q

Pleading

A

Legal papers filed by the parties to a court action that set forth the facts of the case and issues to be considered

177
Q

Complaint

A

Informs the court and the defendant:
Why the plaintiff is suing
What legal recourse he or she expects
Why the plaintiff has legal grounds to sue the defendant (cause of action)
Why the court has jurisdiction over the dispute

178
Q

Summons

A

Documents that notify a defendant of a complaint and requires the defendant to answer the complaint

179
Q

Motion

A

Request

180
Q

Motion to dismiss

A

Motion filed by defendant to a lawsuit to dismiss the case on grounds that the plaintiff does not have legal grounds to sue

181
Q

Demurrer

A

Another term for motion to dismiss

182
Q

Motion for summary judgment

A

Motion filed by the defendant to a lawsuit to dismiss the case on the grounds that there is no legal remedy provided under the defendant’s complaint

183
Q

Discovery

A

Pretrial process where each party in the case finds out as much as possible about the evidence the other party plans to present at trial

184
Q

Depositions

A

Oral examination of witness under oath to obtain information about a legal matter.
Is recorded by a court reporter

185
Q

Interrogatories

A

Written questions that require written answers

186
Q

Motions to produce

A

Requests to produce physical evidence or documents

187
Q

Affidavit

A

Voluntary written statement under oath

188
Q

Affiant

A

Person who makes an affidavit

189
Q

False swearing

A

Making a false statement of a material fact while under oath during a deposition or while making an affidavit

Crime in all states

190
Q

In a jury trial, the jury decides

A

Question of fact

191
Q

In a jury trial, the judge determines

A

Questions of law

192
Q

In a trial by judge, the judge determines

A

Both questions of fact and questions of law

193
Q

Absolute privilege

A

Legal principle that prevents a person from suing for defamation based on statements made in certain situations.
Court proceedings are subject to absolute privilege

194
Q

Burden of proof

A

Requirement that a plaintiff prove his or her claim against a defendant

195
Q

Preponderance of the evidence

A

Requirement in civil proceedings

Requires that plaintiff evidence has greater credibility than the defendant

196
Q

Reasonable doubt

A

Burden of proof in criminal cases

197
Q

Direct evidence

A

Introduced to prove a specific fact and verifies that fact unless the other party introduces evidence to the contrary

198
Q

Circumstantial evidence

A

Evidence that proves another fact through inference

199
Q

Documentary evidence

A

Various types of documents and papers used as evidence such as police reports, letters and records

200
Q

Testimonial evidence

A

Explanation or description by a witness of what he or she knows as fact

201
Q

Physical evidence

A

Demonstrative evidence

Evidence of a physical nature such as a damaged car part or skid marks at an accident

202
Q

Admissibility of evidence

A

Material: evidence must tend to prove or disprove a matter at issue in the case
Relevant: must relate to the claim, not to some unrelated matter or event
Competent: the person who provides the information must be fit or qualified to do so

203
Q

Judicial notice

A

Acceptance by a judge of the truth of a certain fact without requiring evidence to support it

204
Q

Adverse witness

A

Witness whose testimony does not support a particular party’s case

205
Q

Friendly witness

A

Witness whose testimony supports a particular party’s case

206
Q

Expert witness

A

A person who has specialized knowledge, education , training or experience in a certain area, not possessed by the average person

207
Q

Hostile witness

A

A witness who is openly biased against one of the parties

208
Q

Dismissal with prejudice

A

Dismissal of cased based on its merit or lack of merit.

Further legal action is prohibited

209
Q

Dismissal without prejudice

A

Dismissal of a case that is not based on its merits

Further legal action on case is permitted

210
Q

Additur

A

Occurs when a judge increases the jury’s damage award

211
Q

Remittitur

A

Occurs when a judge decreases the jury’s damage award

212
Q

Directed verdict

A

The judge tells the jury what decision it must make

213
Q

Bifurcated trials

A

Trial that is divided into two parts

Questions of fact are decided separately from damages

214
Q

Verdict

A

Finding of fact

215
Q

Reformation

A

The contract will be changed to reflect the true intent of the parties when they made the contact.
Is common if a mistake was made when an oral agreement was put into writing

216
Q

Rescission

A

The contract is thrown out or cancelled as if it never existed.
Can be used in cases of fraud

217
Q

Specific performance

A

The party who breached the contract is required to perform the actions promised under the contract

218
Q

Injunction

A

The party who breached the contract is prevented from performing the actions promised under the contract elsewhere during the term of the contract

219
Q

Appeals

A

An appeal may only be filed if one of the parties believes the lower court interpreted or applied law incorrectly

220
Q

Brief

A

Written statement that presents legal arguments on particular legal issues

221
Q

A defendant’s response to a plaintiff complaint is

A

An answer

222
Q

A motion to dismiss is based on the defendant’s belief that

A

The plaintiff does not have legal grounds to sue

223
Q

What is the first pleading in a lawsuit?

A

Complaint

224
Q

Three primary discovery methods

A

Depositions
Interrogatories
Motions to produce

225
Q

Who has burden of proof in a trial?

A

Plaintiff

226
Q

Three types of direct evidence

A

Documentary
Physical (demonstrative)
Testimonial(oral)

227
Q

What are the 3 requirements for evidence to be admissible in court?

A

What are the 3 requirements for evidence to be admissible in court?

Material
Relevant
Competent

228
Q

What are possible remedies that a judge or jury can use besides awarding damages

A

Reformation
Rescission
Specific performance
Injunction

Legal Concepts and Doctrines (1 decks)

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