BLaw exam 3
alibi lsb 447
a defense that basically means "I wasn't there"
secret ideas lsb 369
are permitted in civil court cases
warranties lsb 491 b 479 q 200
can't be extended or disclaimed at the option of the warranty holder
mediator lsb 410 b 79-81
can't issue binding decisions 3rd party helps parties settle a case without going to court
crime fraud exception lsb 348 question 14
communications that further a crime or other illegal act are excluded from attorney client privelege
statute of repose b 752 q 107
cuts off a person's right to assert successfully a product liability action
depositions lsb 379 b 68-72
judge not present
judges lsb 357, 368, b 60 q 40
judges will take settlements can be removed by impeachment
exceptions to warrant requirement for lawful search
q 147
hair transplant case q 158
the defendant was a doctor
treason lsb 413 b 449
the only crime that is defined in the constitution
mens rea lsb 418 q 201
the wrongful mental state of the offender
standing b 752
usually means the plaintiff is the proper party to file the suit, with a personal interest in the outcome of the suit (suffering harm from that which he challenges, complains about in court)
lawyer roles
(LSB 342-345). Since Lawyer Larry is not representing Jane, he is not her advocate. As guild members, lawyers have a duty to each other and the profession to uphold the profession. Lawyer Larry is also acting as an officer of the court and living out his duty to society by refusing to lie.
elements of a profession lsb 337 question 17
1- an accepted body of knowledge 2- a system for certifying individuals that have mastered the knowledge 3- a commitment to the public good 4- enforceable code of ethics
res ispa loquitur lsb 425,435 b 484 q167, 185
150 years old used when the event itself could only happen with some type of negligence
strict product liability lsb 379-382,480 b 476 q 168,179,187, 193,194,195, 199
5 rules for plaintiff to estabilish a claim q 179 DEUNCH defective product, engaged in business of making/selling,unreasonably dangerous to the user, no substantial change of product after it left defendants control, causation, harm to plaintiff each party in chain of distribution may be liable
state Supreme Court judge responsibility LSB 353 q 53
Florida judge example have to handle the construction/interpretation of Florida or us constitutions the validity of statutes and any decision affecting a class of statutory officers
NY v NJ q 50
NY was not granted full possession of ellis island
contingency fee would/ would NOT be permitted
Not: A case in which you are accused of driving under the influence LSB 333-334. would: A suit against a coal CEO for disposing of toxic waste in the lake in your backyard A lawsuit in Japan against Toyota for making a car with a faulty steering wheel A lawsuit in Australia against the tour company on whose tour you were attacked by a kangaroo A case in which you are suing Professor Emerson for undue stress due to his difficult exams
7th amendment lsb 376
Seventh Amendment right to request a jury trial, but not to undoubtedly have one. By failing to request it in his pleadings, Greg waived his right to a jury trial. Summoning potential jurors is a process planned well in advance.
biblical apocrypha's story lsb 393-394 q 88
Susana, the elders and the prophet Daniel's clever use of sequestration daniels proof that the two elders were lying about the guys wife was circumstantial but convincing
US law school trying v other countries LSB 328 Questions: 5
US has longer/more law training which is why our lawyers usually start at an older age then other countries
countries with and without judicial review lsb 367 b 29 q 38
US, Israel, Germany, Canada south aria have it UK doe not
subpoena lsb 373 q 57
a court order for a person to appear in court if disobeyed the person could be held in contempt of court and sent to jail
actus reus Lsb 406, 419 b 448,450,454 q 137,144, 201
a criminal law concept meaning wrongful act describes a guilty or wrongful deed of offender
attractive nuisance lsb 453, q 153, 192
a dangerous condition, even on private property that may constitute a nuisance because it attracts trespassers (kids) unaware of dangers ex: unsecured construction Sites, swimming pools, trampolines, trees, edibles
act of god lsb 441 q 154
a defense to negligence when purely natural forces are the proximate cause of injury that could not have been prevented by any amount of foresight reasonably to be expected of a defendant
demurrer lsb 376 b 62 q 60, 61 105
a motion to dismiss defendant is admitting the facts but stating there is no legal case based on the allegations based solely on the pleadings and usually involve a problem with the venue or jurisdiction or allegations that the case contains no legal wrong so case should be dismissed
certiorari lsb 366
a petition of certiorari will be granted only for compelling reasons and is not a matter of right 4 or more judges most vote in favor of it to be granted
discovery process lsb 379 b 68-72
a set of pretrial procedures parties/lawyer are responsible to conduct the discovery before the actual trial of the case
Miranda rights q 138 lsb 359 b 77, 448
a statement made by the defendant in custody is admissible only if the defendant was informed prior to police interrogation of his/her constitutional right bc interrogation is inherently coercive
defenses for negligence lsb 426 q 165
act of god, superseding causation or assumption of risk(unique to negligence cases)
lawyer role of counselor lsb 342
advise clients and practice preventative elaw
When are you considered a lawyer in the US lsb 327 question 22
after law school (3yr post bachelors) and passing of bar exams must have good character
retainer lsb 331 question 28
assure a client that if work is needed the firm or lawyer will be available
J.N.O.V. lsb 386 b 76 q 100
basically a legal holding finding no factual basis for what the jury did, enters a judgement for the other side judgement non obstante veredicto latin for "not withstanding the verdict" the judge overturns the jury's verdict the party that loses at trial must reach a very high burden to have a judge grant a JNOV more easily challenged on appeal
demand letter lsb 370 q 72
considered fruitless, rarely work
maryland v virginia q 49
constitution requires Supreme Court to hear cases between states
US rules of trial practice lsb 352
control the civil trial practices in all of the us district courts
children cases lsb 428 q 157,181,182,186
court looks at kids on subjective basis more on capacity of right v wrong garret v daily parents are not automatically liable only if they are negligent in supervising or dangerous instrumentality their kids q 172
4 types of discovery lsb 381
depositions, interrogatories, requests for admissions, requests for production of documents
appeals courts LSB351,403 b 77 q32
determine issues of law usually affirms lower courts ruling bc most appeals fail
order of conducting a trial lsb 398-402 b 73
direct examination, cross examination, re-direct, re-cross
2 most costly areas of litigation
discovery and the trial itself
respondeat superior lsb 434 b 307 q 159
employer is vicariously liable for the negligence of an employee acting within the scope of employment
plea-bargaining lsb 413,418, b 452
encouraged in criminal cases as prosecutors have some discretion in reducing sentences in return for cooperation from defendants also permitted in civil cases
land ownership q 173 lsb 453
extends to the air above and below
trial courts LSB351 q 32
focus on factual analysis
negligence lsb 428 q 168,171
general standard for adults is objective 4 elements necessary to prove it: duty of care, breach of that duty, harm and causation most common tort committed q166
circuit court lsb 352- footnote 32 q 56
have original jurisdiction in all proceedings relating to the settlement of estates
Gamemanship theory lsb 336 question 18
hire the best lawyer and whoever fights the best you may win even though your case is not that good
Swidler v US LSB 346 Questions:4
holds that attorney client privilege continues even after clients death
chain of events q 175 lsb 429
if not foreseeable not your fault
default judgement 377 q 107
if the defend fails to file an answer within the time required the judge may issue a default judgement in favor of the plaintiff
entrapment lsb 450-451 b 473 q 116
if the person does not have a predisposition to commit a crime it is entrapment will fail if there was predisposition to commit the crime
criminal case lsb 402 b 452 q 120
in assault case must have proof beyond a reasonable doubt predominately based on statutes, involve statutory interpretation
civil case lsb 402 b 452 q 120
in assault case must prove preponderance of evidence-more likely than not
duty of care (to rescue) lsb 426 q 118, 174
in common law jurisdictions there in no duty to help another who is in peril no matter how easily aid might have been furnished only exceptions are duties based on a contract or to family members and those in custodial relationships with the victim if you put someone in danger you have to help them
strict liability lsb 425 479 b 484 q 164, 196
in tort means liability without fault exception to negligence requirement
intentional torts q 169,170, 180 lsb 420-21, 444,452 b 472
intended wrong
attorney client privilege LSB 345 B 13 question 8, 14, 20
keeps confidential matters discussed by clients with their attorneys. extends to agents of either the client or the lawyer(another attorney in the firm). it can be written or oral but must occur under the existence of legal counsel being sought most protected of all priveleges only applies to higher ups of an org when representing an org covers initial consultations a client seeks from a potential attorney.
law schools question 27
large number of law schools nowadays justify their existence because their existence promotes the utility of studying the law
corporate responsibility act lsb 349 b 434 Questions: 3
law passed yo require that a corporation's lawyer must alert a senior officer when there is corporate misconduct occurring aka SOX act
criminal statutes lsb 413 q115, 131
many statutes that are criminal in nature also provide civil remedies
the good faith exception lsb 25 b 32 q143
may protect evidence collected illegally by police from being excluded from a case
hourly fees lsb 331
most common method of compensating attorneys
character witnesses lsb 396
most commonly used during the sentencing stage of a criminal case
ninth and second circuit court lsb 360
most liberal courts san från and nY
RICO lsb 421 b 470 q 121
must have a pattern of racketeering (at least 2 acts w/in a 10 year period)
hale v Illinois case lsb 339
not allowed to practice law because found to be leader of white supremacist racist group
substantive due process q 63
not an argument that can easily be used successfully particularly concerning claims that tend to focus on economics or business property issues (relics of history) nowadays used in civil liberties cases/matters of privacy
US v Arvizu LSB 465, B 448, 451 q134
officer is allowed to search a care when given probably cause for illegal activity such as an empty beer bottle
summons lsb 373 b 61
officially notifies a defendant that a lawsuit is pending and that a response to the complaint must be filed within a certain number of days
contributory negligence lsb 446 b 473 q 178
on the plaintiffs part will bar him from recovering for any damages he has suffered from an incident partly caused by the defendant and partly by the plaintiff
evaluation of eyewitnesses by judge lsb 396 q 42
powers of observation, consistency, motivation and verisimilitude used but not evaluation clarity
tort cases lsb 413 q 127, 131
predominately based on common law involves use of cases can't be crimes
4th amendment q 143, 145, 151 lsb 25, b 32
probable cause for arrest is defined as a reasonable belief that the suspect has committed or is about to commit a crime
exclusionary rule lsb 28-29 b 76 q 148
prohibits the intro of evidence offered as proof of guilt in a criminal trial that was illegally obtained in violation of the 4th amendment
characteristics of criminal law q 139 lsb 415-418 b 447, 461
prosecutors, punishment by the state, plea-bargains, jail time can't be torts (almost every criminal wrong has a civil counterpart)
5th amendment lsb 465 q 136,141 lsb 26
protects testimonial privilege but not physical traits no compulsory self incrimination, no double jeopardy, due process must be provided before taking life liberty or property, eminent domain compensation for taking private property requiring someone to appear in a lineup doesn't violate the 5th tortious interference doesn't count q 184
procedural due process lsb 387 b 33 q 104, 111
provides American citizens with the right to process, the right to be heard by a competent snd unbiased tribunal, and the right to an outcome
to serve process lsb 374-375
q 97, 98,99 to deliver to the defendent a copy of the complaint and the summons which indicates the time period for the defendant to respond best way to make sure it happens is to have it served by a private process server a defendent can't avoid the services of process by refusing to accept the delivery of the papers
contingency fees lsb 332,334 question 15, 19, 24
rare even in america, lawyer only rewardered for the effort brought to the client not applicable in family law or criminal law charge clients contingency fee only on that portion of the ultimate monetary recovery which in some cases is the amount the defendant offered the plaintiff before the lawyer got involved only charged if case is won helps lower and middle class clients bring suit
Macphearson v Buick q 202 lsb 482
ratified the concept that privity of contract is not a prereq for a party to be able to sue for negligence
rules of hearsay labs 390-392 q 59, 67, 101
rule is relatively recent addition to the law and is increasingly complex due to its many exceptions often not invoked in administrative proceedings , small claims courts and other non court proceeding in regular courts it is vital /pivotal part of trial process the witness can't talk about facts which they did not observe themselves unless it falls under an exception of hearsay
Sequestration lsb 392-394 q 70
separating people to find the truth
summary judgement lsb 385 b 66 q 76
should be sought when there is no dispute over the material facts and the law as applied to these facts entities one party to a verdict most important pretrial motion that either a plaintiff or defendent may file can be entered into from the start of the case until shortly before the trial
In Great Britain/ most of canada the two types of lawyers are LSB 329 Questions: 1,6
solicitors non trial lawyers of office attorneys (only lower court if any)- prep legal docs give advice barristers are trial lawyers defend clients in court
legal ethics question 13
some defense attorneys prefer that their clients not confide to them their guilt bc once they know it is harder for the attorney to defend the client
circumstantial evidence lsb 401-402
sometimes valuable but often talked about as if it has very little value
expert witness lsb 396 q 65
testimony used to reflect what facts mean not what the facts are
remand lsb 404 q 110
the case is sent back to the trial court for further action usually accompanied by the appellant courts direction and or judicial opinion on the issue of damages (liability verdict is upheld but a new trial is ordered)
Sullivan Ballou's letter (supplemental 2 q 91)
the letter wasn't an exception to hearsay because even though the chance of him dying were great and he felt he was going to die his death wasn't imminent ( the fact that he did die means nothing to this case)
Palsgraf v long lsb 431 q 189
the most famous proximate cause case court denied her claim of negligence bc her injuries were not foreseeable and that therefore the employees actions were not proximate cause of her injuries
arbitrator lsb 410 q 58
the only 3rd party that can issue binding decisions less costly, time consuming, keeps the subject more private
Supreme Court lsb 360
the only court specified by the US constitution and only federal court required by constitution
difference between torts and crimes q 152 lsb 415,424
they can not be each other but the underlying actions may overlap
perjury lsb 395 q 135
those who had maintained their innocence during their trials that they were innocent also face possible perjury prosecutions after belatedly acknowledging their guilt
duress lsb 451 b 473 q 119, 122
threat of harm must be imminent
conversion lsb 453 b 270 q190
tort unjustified control over another personal property
infancy defense b 450 q126
tries to show that mens Rea was not present
In certain situations judges legislators and lawyers are immune from defamation lawsuits T/F LSB 461 B 475 Questions: 2
true they have "privilege" or protection for core judicial/legislative functions such as statements made by lawyers and judges in the courtroom
tort damages lsb 415 q188
try to restore the plaintiff to the same position as before the tort had occurred
federal court of appeals lsb 376 q 54
usually a panel of 3 judges a case involving an appeal from a decision of the court of federal claims would be heard by the court of appeals for the federal circuit
state judge lsb 357 q 43
usually has a mandatory retirement age over 40 states have judicial elections so can lose seat by vote may step down bc age or health, or just resign or leave for new govt position but very rarely impeached and convicted
cross examination lsb 400, 402 b 73 q 103
usually limited to the areas covered in direct examination (as well as impeaching the witness' veracity) leading questions are allowed
attempt of crime lsb 450 q 124
usually only necessary to intend a criminal act, don't have to intend actual harm one is responsible for the foreseeable consequences of a wrongful act
Anthony kennedy lsb 364
usually supreme court justice swing vote most likely to be 5th vote
shotgun approach lsb 440 q 156
when a lawyer asserts many claims or defenses and hopes that at least one will stick requires numerous claims/defenses
counterclaim lsb 378 b 64
when defendent files a counterclaim they do not have to undertake any additional service of process requirements
victimless crime lsb 451 b 473
when society id the victim of a crime but no one individual can be ascribed the ability to sue successfully in tort law
wrongful thoughts lsb 419 b 454 q 150
without acts are commonplace but not criminal
trespass lsb 453 b 266 q 190
wrongful encroachment on or other offenses against real of personal property
