NCCP Examination Study Guide

Discovery Requests

Types- interrogatories, production of documents and things and entry upon land, request for admissions, depositions and request for physical and mental examination. Requirements- depositions, subpoenas, validity of documents/opinions.

What crimes are prosecuted in federal court?

Violations of federal statute, bankruptcy, copyright, or patent issues. Cases involving guns or drugs that carry aggravating factors. Diversity of citizenship and maritime law cases.

What documents require special execution?

Wills

What are the requirements for obtaining a divorce?

-6 months residency -Separation for 1 year + 1 day -Intent -No resumption of marital relationship

What must be contained in a divorce complaint?

-Names of parties -Resident of the State of North Carolina for @least six months -Date of Marriage, Date of Separation- Separated for 1 year + 1 day -Name and age of any minor children -Facts -Verification -N.C.G.S. 50-8

How many copies of a document are needed?

3 + original

Trial Notebook

A binder that contains copies of all the documents and information that an attorney will need to have at hand during the trial.

What is the year and a day rule?

A common law rule, that eliminates the defendant's responsibility of homicide if the victim lives for more than one year and one day after the alleged acts that caused the death.

What is a felony? What is a misdemeanor?

A felony is a crime such as murder, rape, or robbery-- that carries the most severe sanctions, such as 1 year in a state or federal prison to life imprisonment or (in some states) the death penalty. However, misdemeanor is a less serious crime, punishable by fine or incarceration for up to one year in jail (not a state or federal penitentiary).

How is filing an action conducted?

A lawsuit is filed with the Clerk of Court's office in the state that has proper jurisdiction and venue/

Client Correspondence- Opinion Letter

A letter from an attorney to a client containing a legal opinion on an issue raised by the client's question or legal claim. The opinion is based on a detailed analysis of the law.

Client Correspondence- Demand Letter

A letter in which one party explains its legal position in a dispute and requests that the recipient take some action (such as paying money owed).

Checklist/Inventory

A list made by the executor or administrator of the estate of a deceased individual.

Calendar

A list of cats that are awaiting trial or other settlement. A trial list or docket.

Are there documents that a paralegal cannot draft?

A paralegal may perform any task which is properly delegated and supervised by an attorney, as long as the attorney is ultimately responsible to the client, maintains a direct relationship with the client, and assumes professional responsibility for the work product.

Are there documents that a paralegal cannot sign?

A paralegal may sign correspondence on a lawyer's or a law firm's letterhead, if it is indicated by a title. If warranted by exigent circumstances, a lawyer may allow a paralegal to sign his or her name to court documents as long as-- it does not violate any law, court order, local rule, or rule of civil procedure, the lawyer has provided the appropriate level of supervision, and the signature clearly discloses that another has signed on the lawyer's behalf.

What is a certified copy?

A photocopy of a document, judgment, or record that is signed and attested to by a public official in whose custody the original has been placed for safekeeping as an accurate and a complete reproduction of the original document.

What is a checklist?

A reminder of a list of items required, things to be done, or points to be considered.

Tickler

A reminder that allows time-sensitive documents to be filed according ti the future date on which each document needs action.

Subpoena

A writ commanding the name person to appear at a specific time and place to give testimony.

Certificate of Service

Authorized declaration that service of processes has been completed duly and in accordance with law; evidence that process server has successfully served a defendant or witness. Or the section of a pleading or motion that certifies that the party filing the document has sent a copy of the document to the opposing party or his attorney.

What is corpus delicti?

Body of the crime; a confession alone is not enough, the state must have evidence to support it (body, murder weapon, etc).

What should be contained in a prenuptial agreement?

Can address equitable distribution, setting aside separate assets, protection of property.

What are the difference between child support and spousal support?

Child support is the necessary financial support that provides for a child's needs. Spousal support is in the form of post separation support or alimony and it is to provide support and maintenance to a former spouse by a lump sum or periodically for a temporary or indefinite term.

Contracts Required by the Statute of Frauds to be in Writing

Contracts Involving Interests in Land Collateral Contracts Contracts for the Sale of Goods over $500.00 Contracts that cannot be performed w/in a year Prenuptial Agreements

Client Correspondence- Status Letter

Correspondence sent to a client which provides an update on case status.

How does criminal procedure differ from criminal law?

Criminal procedure is the process and criminal law is the statutes that set out the laws and punishment.

Separation Agreement

Define- A contract between two married parties who are living separate and apart and plan to divorce that deals with property, spousal support, and child custody Requirements- living apart for @least 1 year and 1 day. Addresses property, spousal support, and child custody (nonbonding).

Leases

Define- A contract by which one owner of a real property (the landlord) grants to a person (the tenant) an exclusive right to use and possess the property. Types- Estate for Years, Periodic Estate, Estate at Will, and Estate at Sufferance. Requirements- Usually for a specific period of time. The use and possession of the property is in return for some form of payment. Lease agreements for 1yr+ must be in writing.

Partnership Agreements- Limited Liability Companies (LLC)

Define- A hybrid entity which is cross between a corporation and a partnership. It provides the limited liability of a corporation with a pass-through entity for tax purposes, therefore, liability is limited to members capital contributions. Requirements- File Articles of Organization w/ NC Secretary of State.

Default Judgment

Define- A judgment entered by a clerk or court against a defendant who has failed to appear in court to answer or defend against a claim that has been brought against the defendant by another party. Requirements- Defendant fails to answer w/in 30 days of service, requires a total sum, if there is not a sum certain then it has to be calendared before a judge, verified Complaint or an Affidavit of Plaintiff's claims, mailed to Defendant at last address.

Interrogatories

Define- A series of formal written questions addressed to a party for discovery purposes to be answered under oath. Requirements- 50 individual interrogatories in total, answer w/in 30 days, sign verification.

By-Laws

Define- A set of governing rules adopted by a corporation or other association. Requirements- Name & Purpose of the Organization, Membership, Officers, Decision Making, Meetings, Board of Directors.

Request for Production of Documents

Define- A written request for any other party to produce documents or things. Requirements- The request must specifically state either by individual item or by category the items that the requester is seeking and must state a reasonable time, place, and manner of making the insertion/production. The responding party has 30 days to serve written responses to the requests.

Affidavit

Define- A written statement of facts confirmed by the oath or affirmation of the party making it. Requirements- Must be made before a person having authority to administer oaths.

Contracts

Define- An agreement or bargain struck between parties in which each party assumes a legal duty to the other party. Requirements- agreement (offer & acceptance), consideration, contractual capacity, and legality.

Partnership Agreements- Limited Partnerships

Define- Consists of one+ general partners and one+ limited partners. General partners are jointly and severally liable and manage the day to day operations of the partnership. Limited partners are not involved in the management or operations of the partnership, therefore, their liability is limited to the amount in the capital account. Requirements- Certificate of Limited Partnership and Partnership Agreements.

Judgment

Define- Final order of a court of law. Types- Compensatory Damages (money), Specific Performance (injunctive relief- to refrain), Punitive Damages (additional money to punish). Note- A judgment can be set aside if the debtor can show good cause.

Request for Admissions

Define- Requests to the other side to admit certain aspects of the case. Requirements- The other side has 30 days to admit or deny the request, if they fail to answer, then the requests are deemed admitted. Must serve written responses to such a request.

Power of Attorney

Define- The authority to act for another person in legal or financial matters or a legal document giving such authority to someone. Requirements- soundness of mind, witness, recording.

Articles of Incorporation

Define- The document filed with the appropriate state official, usually the Secretary of State, when a business is incorporated. Requirements- Corporate Name, Business Purpose, Registered Agent, Incorporator, # of authorized shares of stock, share per value, preferred shares, directors, officers, legal address of the co.

Partnership Agreements- Sole Proprietorship,

Define- The owner is the business and has all the liability. Requirements- If conducting business under a name, other than your own, file a Certificate of Assumed Name @ the Register of Deeds office.

Partnership Agreements- General Partnership

Define- Two+ partners who are jointly and severally liable who own a business and share the management, profits, and losses of the partnership. Requirements- Certificate of Assumed Name and Partnership Agreement; if there is no Partnership Agreement, ownership is equal.

Answer

Define- a defendant's response to a plaintiff's claim. Requirements- admit/deny allegations; raise defenses.

Complaint

Define- a pleading by a plaintiff alleging the wrongdoing by the defendant. Requirements- caption, parties, statement of facts, request for relief, request for jury trial.

Partnership Agreements- For-profit Corporations

Define- an entity separate and apart from its owners or "shareholders", can be any size, can conduct basically and type of business. Liability is limited to shareholders contributions. Requirements- File Articles of Incorporation w/ NC Secretary of State.

Motions

Define- oral or written request made to a court to obtain a ruling or order. Types- Motion to Compel, Motion for Summary Judgment, Motion for Directed Verdict, Motion for Judgment Notwithstanding the Verdict, Motion for a New Trial, Motions in Limine. Requirements- Notice, Affidavit, Memorandum (if applicable), Service.

Partnership Agreements- Non-profit Corporations

Define- trade associations, property owners associations, and charitable endeavors that has by-laws, directors, and officers. There are no shareholders and they may or may not have members. Requirements- File Articles of Incorporation w/ NC Secretary of State.

Summons

Define-Document served upon a defendant to notify that suit has been filed and directing defendant to answer. Requirements- Proper Service under Rule 4 (Sheriff, Certified Mail, or Publication).

How is service of process completed?

Delivery of the paperwork to the person named therein-- N.C.R. Civ. P. 4- A summons is served with a copy of the complaint by the Sheriff, Certified Mail Return Receipt Requested, or publication.

What are the court structures for both federal and state courts?

District- divorce, custody, child support, and civil cases $10,000 or less, misdemeanor criminal cases and infractions. Criminal Trials in District Courts are w/o a jury aka bench trial. Small Claims- magistrate presides over, hearing civil matters involving $5,000 or less, recovery of personal property, or summary ejectment/eviction. Court of Appeals- hears from the trial courts, top appellate court is the NC Supreme Court Federal- trial level, US District Court, followed by the intermediate court, the US Court of Appeals and the US Supreme Court (highest).

How are documents filed?

Documents are filed by an attorney with the Clerk of Court.

What documents require a seal?

Documents that require affirmation such as wills, complaints, answers, etc.

Why do we punish criminals?

Due to the standards that society considers socially acceptable. It removes the threat from society, punishes the one who committed the immoral act, and rehabilitates the one who is punished by preventing future harm due to the fear of punishment.

What invalidates a prenuptial agreement?

Duress, only valid if entered into before marriage.

What types of cases are heard in federal court and what cases are heard in state court?

Federal- US is a party, amount involves more than $75,000, diversity of citizenship, and cases involving violations of the US Constitution or Federal Laws. State- divorce, custody, child support, criminal, infractions, real property issues, estate issues, etc.

What crimes are prosecuted in state court?

Felonies and Misdemeanors.

How are form documents updated and maintained?

Form documents are updated and maintained by the state.

What are the requirements for getting married?

Formalities include ceremony in presence of ordained minister w/ 2 witnesses and the presence of both parties and a marriage license. Other requirements are that there is consent to marry, competency, age (18+, 16-18= written parental consent, 14-16= pregnancy and court approval), cannot marry multiple people at once, cannot marry blood relatives nearer than first cousin, cannot frailly induce the marriage.

What invalidates an execution?

Fraud, Duress, Undue Influence or Mistake, Capacity.

What are the theories of punishment?

Incapacitation- can't commit a crime if you are in jail Deterrence- putting this person in jail will keep others from commuting the same bad acts Retribution- the defendant must be made to paid society for their bad acts Rehabilitation- by providing education and treatment this defendant will not commit another crime

What tasks are commonly performed by a paralegal?

Interviewing clients/witnesses Opening the client file, recording/tickling all deadlines Gathering evidence Organizing all documents into a settlement brochure Drafting a complaint and answer Completing a summons, subpoena, and a cover sheet Filing a complaint at the proper courthouse Effecting service of process on all proper parties Monitoring a matter to ensure deadlines are met Preparing default judgments Drafting interrogatories, requests for production of documents, and other discovery requests Assisting with depositions Reviewing, organizing, and summarizing discovery documents Organizing/Preparing Trail Notebook Assisting with other trial preparations- organizing exhibits; issuing subpoenas; travel arrangements, deliver documents; arrange for special equipment; investigate all potential jurors; assist with voir dire; coordinate attendance of clients and witnesses; prepare clients/witness for testifying; handle all documents and exhibits; take notes/observe; maintain contact with office/court personnel/witnesses; and reviewing case and presentations for opening/closing statements.

Finding Tools

Locates primary authorities and cases. Digest (North Carolina Digest or South Eastern Digest) Citators Indexes

Order

Mandate command, or direction authoritatively given; mandate of a court.

Primary Authorities

Mandatory/Binding Authorities Constitutions Cases Statutes Administrative Regulations Executive Orders Treaties

What is mens rea? Actus reus? Do all crimes require this?

Mens rea is a wrongful mental state or intent, crime does not require this, but it is a requirement for criminal liability. Actus reus is a guilty (prohibited act), all crime requires this element.

What are counting rules?

N.C. R. Civ. P. 6-- Count the last day, unless it is a Saturday, Sunday or a legal holiday when the courthouse is closed, in this event, the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday.

What government agencies require documents and document filings?

NC Secretary of State

What are some common statues of limitation? (negligence, wrongful death, breach of contract, etc.)

Negligence (medical malpractice, personal injury, product liability)- Three years for everything except libel and slander = 1 year. Wrongful Death = 2 years Breach of Contract = 3, 4, 10 (writing only) years Assault and Battery = 3 years

Are thoughts crimes?

No, bad act only.

Secondary Authorities

Not the laws themselves, but are persuasive writings. Legal Encyclopedias (CJS or Am Jur) Law Review Articles Legal Dictionaries (Black's Law Dictionary) Restatements Periodicals Treatises Textbooks Annotations Formbooks Law from another state/jurisdiction Practice Guides Attorney General Opinions

Where would domestic actions need to be filed?

One party must be a resident of the state of NC for the past six months and then in the county in which one person resides, unless it is a domestic violence action.

Settlement Package/Demand

Part of the personal injury claim process that lays out the facts of the accident, the liability, the injuries you sustained, the medical records, future treatment and makes a monetary demand

What are the types of civil litigation cases?

Personal Injury/Tort Breach of Contract Divorce/Family Law Property Disputes Landlord/Tenant Disputes

What are the various pleadings and documents involved in every case? (complaint, answer, motion, interrogatories, requests, orders, etc.)

Pleadings- Complaint & Summons, Answers & Motions to Dismiss Orders- Entry of Default Judgment, Order Designating Exempt Property, Execution Discovery- Interrogatories, Requests for Production of Documents, Request for Admission, Depositions. Motions- Motions for Summary Judgment, Motion for Directed Verdict, Motion for Judgment Notwithstanding the Verdict, Motion for a New Trial, Motion to Compel

Who receives a copy of a documents once it is prepared? Filed? Recorded?

Prepared- Client Filed- Firm, Client, Opposing Party Recorded- Register of Deeds, Firm, Client

How can a form document help in drafting assignments?

Provides an outline of information to be included in the assignment.

Deeds

Requirements- Written, Legal Capacity, Identifies Grantor/Grantee. Includes clear legal description of the property, words of conveyance, signed by grantor and delivered to grantee.

Trust

Requirements- intention, subject matter, object.

Wills

Requirements- testamentary intent; legal capacity; free of fraud, duress, undue influence, or mistake; and execution (two witnesses + notary = self proving).

What are the common rules and the numbers from the North Carolina Rules of Civil Procedure? (Service of Process, Rule 4, etc.)

Rule 4- Deals w/ summons and service-- served w/in 60 days of issuance by Sheriff, Publication, or Certified Mail Return Receipt Requested Rule 12(b)- Motion to dismiss for lack of 1) jurisdiction over subject matter 2) personal jurisdiction 3) improper venue 4) insufficiency of process 5)insufficiency of service of process 6) failure to state a claim 7) failure to include a party Rule 56- Motion for Summary Judgment when there is no dispute of the facts, but questions of law remain.

What defenses can be argued? When can the following defenses be argued? Entrapment, Duress, Consent, Insanity, Alibi, and Necessity

Self Defense- Necessary to protect myself, property, or others. Entrapment- State actor caused me to commit the crime. Duress- I had to commit this crime or they were going to hurt or kill me. Insanity- Requires mens rea. Necessity- If I do not have it, I die. Unconsciousness/Automatism- sleep walking Negating Defenses- voluntary intoxicatingly and diminished capscity

What needs to be in client correspondence?

Status of the case, proceeding legal actions, attorney's opinion.

Release

Terminates liability

What are the effects of a divorce?

Terminates the bond of marriage.

Where are documents filed?

The Clerk of Court

Where are documents recorded?

The Register of Deeds

Verification

The declaration under oath or upon penalty of perjury that a statement or pleading is true, located at the end of a document

What are recording fees?

The fee charged for registering or recording an real estate purchase or sale.

What is the venue?

The geographical area in which a court with proper jurisdiction can hear the matter/

What is subject matter jurisdiction?

The power of a court to adjudicate a particular type of matter and provide the remedy demanded. State Courts- domestic, juvenile, real estate, will, worker's compensation, crimes and traffic matters. Federal Courts- bankruptcy, admiralty, maritime, prize cases; and all suits brought against the US, its agencies or officers; patent, copyright, trademark, and unfair competition suits; actions involving civil rights; actions affecting ambassadors, public ministers, and consuls; and federal crimes.

Waiver

The voluntary surrender of a known right; conduct supporting an interference that a particular right has been relinquished.

Custody Agreement

Addresses legal and physical custody of a minor child using the best interests of the child legal standard. Legal Custody allows the parent(s) to authorize decisions regarding the child such as school, medical, and the overall welfare of the child; it can be sole or joint. Physical Custody is where the child spends their time; it can be shared/joint (less than 123 overnights for visiting parent) or primary/secondary (each parent has 123 overnights).

Where are form documents located?

Administrative Office of the Courts/NC Court System.

Three Branches of Government

All branches create law Legislative Branch (Congress)-federal law-USC Executive Branch (President)-executive orders Judicial Branch (Courts)-case law

What are the difference between an absolute divorce and a divorce from bed and board?

An absolute divorce terminates the bonds of marriage. A divorce from bed and board is a "legal" separation that requires fault and is the only way to force a separation.

Retainer

An advance payment made by a client to a law firm to cover part of the legal fees and/or costs that will need to be incurred on that client's behalf.

What is criminal law?

The branch of law that governs and defines those actions that are crimes and that subjects persons convicted of crimes to punishment imposed by the government (a fine or jail time).

What is personal jurisdiction?

The constitutional requirement that a defendant have certain minimum contacts with the forum in which the court sits so that said court may exercise power over the defendant.

What are filing fees?

The court costs to file a document.