Terms/definitions

Question 1

Holding

Answer 1

This is a statement of law that is the court’s answer to the issue.
If you have written the issue statement(s) correctly, the holding is often
the positive or negative statement of the issue statement.

Question 2

Reasoning

Answer 2

This is the court’s analysis of the issues and the heart of the
case brief. Reasoning is the way in which the court applied the rules/
legal principles to the particular facts in the case to reach its decision.
This includes syllogistic application of rules as well as policy arguments
the court used to justify its holding (why the decision was socially
desirable).

Question 3

Judgment

Answer 3

This is the court’s final decision as to the rights of the parties,
the court’s response to a party’s request for relief. Generally, the
appellate court will either affirm, reverse, or reverse with instructions. The
judgment is usually found at the end of the opinion.

Question 4

Issue

Answer 4

Substantive issue: A substantive statement of the issue consists of
two parts –
i. the point of law in dispute
ii. the key facts of the case relating to that point of law in
dispute (legally relevant facts)

Question 5

Procedural History (PH)

Answer 5

This is the disposition of the case in the lower
court(s) that explains how the case got to the court whose opinion you are
reading. Include the following:
a. The decision(s) of the lower court(s).
NOTE: If the case was decided by a trial court and reviewed
by an intermediate appellate court before reaching the
court whose decision you are now reading, be sure to
note what each court decided.
b. The damages awarded, if relevant.
c. Who appealed and why.

Question 6

“mesne assignments”

Answer 6

An intermediate transfer of rights or property from one
person to another

Question 7

Inducement

Answer 7

a thing that persuades or influences someone to do something.

Question 8

Consideration

Answer 8

something of legal
value given in exchange for a
promise
* Consideration is a necessary
element for the existence of a
contract.
* Contracts unsupported by
consideration are generally not
enforceable.

Question 9

Two elements of consideration

Answer 9

Something of legal value must be given; and
There must be a bargained-for exchange

Question 10

Test for legal value

Answer 10

A contract is considered supported by legal value if:
The promisee suffers a legal detriment; or
The promisor receives a legal benefit.

Most commonly involves tangible payment (e.g., money, property) or performance of an act (providing services) ( In Hamer v. Sidway?)

Question 11

Test for Bargained-for Exchange

Question 12

Remand

Answer 12

legal term that refers to a situation where a higher court sends a case back to a lower court for further action

Question 13

vacate

Answer 13

a court order or judgment has been cancelled or rendered void

Question 14

Black letter law

Answer 14

well-established legal rules that are no longer subject to reasonable dispute

Question 15

Assumpsit

Answer 15

A legal action available to a plaintiff who claims a contract has been breached.

Question 16

inducement

Answer 16

a thing that persuades or influences someone to do something. (incentive)

Question 17

How do courts determine the adequacy of consideration?

Answer 17

Courts are not generally concerned with the economic adequacy of the consideration but instead with whether it is present. As Judge Richard A. Posner puts it, “To ask whether there is consideration is simply to inquire whether the situation is one of exchange and a bargain has been struck.

Question 18

nominal or “sham” consideration

Question 19

claimant

Answer 19

a person making a claim, especially in a lawsuit or for a government-sponsored benefit.

Question 20

due diligence (DD)

Answer 20

do the research

Question 21

Freedom of contract

Answer 21

the ability of parties to bargain and create the terms of their agreement as they desire without outside interference from the government.

Question 22

Dicta

Answer 22

If “dicta” applied this would be a different case.

Question 23

Burden of proof

Answer 23

The person who brings the lawsuit has the “burden of proof”, a party’s obligation to prove a charge, allegation, or defense

Question 24

Duress

Answer 24

threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment.
-coercion
-pressure

Question 25

Formalistic doctrines

Answer 25

Formalists believe that by applying a consistent set of legal rules to a given case, sound legal decisions will be the outcome of logical deduction.

Question 26

Promissory Estoppel and Reliance (aka detrimental reliance)

Answer 26

Section 90 of the Restatement of the Law of Contracts (1932) states that: “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” This doctrine has been described as that of “promissory estoppel,” as distinguished from that of equitable estoppel or estoppel in pais.***

Question 27

Promissory estoppel

Answer 27

An equitable doctrine that prevents the withdrawal of a promise by a promisor if it will adversely affect a promisee who has adjusted his or her position in justifiable reliance on the promise. [Emphasis added].

Question 28

What is a Contract?

Answer 28

A legally binding agreement.

Question 29

What are the elements of a contract?

Answer 29

1. Promise
2. Consideration
3. Mutual assent

Question 30

“Expectation damages”

Question 31

Expectation measure damage rule

Question 33

Presumption of evidence

Answer 33

a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption.

Question 34

Legal realism

Answer 34

a legal theory predicated on the notion that all law derives from prevailing social interests and public policy, as opposed to purely formalistic legal considerations

Question 35

Estoppel

Question 36

jury summation

Answer 36

In a legal trial, summation refers to the final, closing argument articulated by a litigant to a judge or jury concerning the merits of their side of a case.
(summary for the jury of the whole case)

Question 37

Mitigation

Answer 37

The duty to mitigate refers to a party’s obligation to make reasonable efforts to limit the harm they suffer from another party’s actions. Parties have a duty to mitigate in both torts and breaches of contracts. Failure to discharge this duty to mitigate precludes the recovery of damages that could have been avoided through reasonable efforts.
[reducing the harm/suffering of your client through reasonable efforts, a form of due diligence]

Question 38

Thwarted

Answer 38

prevent (someone) from accomplishing something. (foilied my plans! Obstructed)

Question 39

Remanded

Answer 39

To remand something is to send it back. Remand implies a return. The usual contexts in which this word are encountered are reversal of an appellate decision

Question 40

Decree

Answer 40

A decree is an order handed down by a judge that resolves the issues in a court case

Question 41

Prayer of the bill

Answer 41

the specific request for judgment, relief and/or damages at the conclusion of a complaint or petition