Final
Paralegal 101 with Lincoln at University of San Diego
About this deck
By: Corrine Cruz
Created: 2011-07-14
Size: 250 flashcards
Views: 32
Created: 2011-07-14
Size: 250 flashcards
Views: 32
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What is 75-Day Rule?
Last date to start thinking about sending any last minute discoveries
Law and Motion
Resolution of Pretrial disputes or issues
Tentative Ruling
What the judge intends to rule unless persuaded to the contrary
Priority
Request to go first
Trail/Trailing
Court maintains the matter on the calendar but delays it until later on in the day
Continuance
When the Court selects a new date for the matter
What does it mean to "Submit the Tentative Ruling"?
To Accept it
Notice of Ruling
The Prevailing Party sends a notification to all parties that the judge has ruled
What is the longest type of law and motion?
Summary Judgement/Adjudication
IC
Independent Calendaring - When your case is assigned to one judge for all purposes
Designated Complex
Due to some characteristics of the case, it's assigned to a judge to handle for all purposes; it may take more then 12 months from when the complaint is filed to go to trial
What constitutes as "complex"
If the case has a lot of parties, issues or publicity
In state court where are Law & Motions heard?
Normally in the Law & Motion Department
In Federal Court where are Law & Motions heard?
By the Magistrates except for summary judgments
Summary Judgment
A Motion to resolve the whole case before Trial; the standard is you must show there are no disputes of material facts; is like a bench trial, but you have no live witnesses and you can't cross examine
Motion
Is a request of the court either verbally or written
What is in a Motion?
Notice
Points and Authorities
Declaration
Proposed Order
Meet & Confer
A letter to any party trying to solve any dispute
For what types of Motions do you Meet & Confer?
You only have to Meet and Confer for some motions, but you should always try and do this because it's good practice
Suasponte
When the court orders things on their own motion, even if a party has not asked
What is in a Opposition?
Points and Authorities
Declaration
Proposed Order
What is in a Reply/Answer?
Points and Authorities
How do you get Evidence in front of the court?
By Decloration
Scheduling
Call the court for the date, that is the date that goes on the notice
How much notice do you need to give for a Summary Judgment?
75 Calendar days
Ex Parte
It appear before a judge because there is an emergency or the party needs the judges help very fast
How much notice is given for an Ex Prate?
24 hours Notice is required
Do both parties have to appear for an Ex Prate?
No
Order Shorting Time
When the judge allows you to give less then 16 days for notice of a Motion
How much time do you need to notify the other party for a Temporary Restraining Order?
You do not have to notify the other party
Preponderance of Evidence
In a Civil case the evidence has to show more convincing force
Beyond a Reasonable Doubt
In a Criminal case the evidence has to leave no doubt
How many days must you have for notice to file a Motion?
16 COURT days
How man days do you have to file an Opposition?
9 COURT days
How man days do you have to file a Reply?
5 COURT days
Who file the Motion?
Moving Party
Who files the Opposition?
Opposing Party
Who files a Reply?
Moving Party
P's & A's
Memorandum of Points and Authorities - Legal argument
What is in a P&A?
- Introduction- short precise and compelling manner
- Statement of Facts
- Arguments - Legal authority the application of the law and why the court should rule in our favor
- Conclusion
What is the standard for a Motion for Summary Judgment?
You must show there are not disputes of material fact
Declaration
Support what ever facts you are using to support of P's & A's
Proposed Order
Telling the court exactly what you want
On a Reply to a Motion can the moving party add new evidence?
Nope
Oral Argument
Argument at the hearing before a judge
Arguments Submitted?
Take the arguments right here right now and the judge will make a judgment
Arguments Under Submission?
all arguments and motions is submitted to the court for submission
Granted
When you Win
Denied
When you Lose
Sustained
Applies only to Demurrer and it means granted (win)
Overruled
Applies only to Demurrer means denied (lost)
Summary Adjudication
Settling just one cause of action in the case
What are the different types of Summary Adjudication?
Whole Causes of Action
Issues of Duty
Claims for Damages
Affirmative Defenses
How much time must you have for notice for a Summary Adjudication?
75 calendar days before the hearing
How many days for the hearing must you have to file an Opposition for a Summary Adjudication?
14 Calendar Days
How many days for the hearing must you have to file an Reply for a Summary Adjudication?
5 Calendar Days
When are is the cut off days for motions?
30 Days before trial
How many day before court must you file a Motion?
105 Days: 30 day cut off + 75 Day notice
When a court room is dark....
Judge is on vacation, no one is there
What are some advantages of SJ/SA?
You can win before trial
Narrow down the issues
Narrows discovery
May be a good way to find out what the other side has
What are some disadvantages of SJ/SA?
Very rarely granted
Appeal courts don't like when the a person doesn't get their day in court
You have to give your whole case strategy away
Moving to Amend Pleading
Filing a 1st Amended complaint
Proposed Amended Pleading
Always need to attached to proposed amended pleading
Notice of Lodgments
Advising all parties that you are filing something with the court; lodge the original
Request for a Judicial Notice
You asking the court as part of your motion to take the notice that the facts are widely noted undisputed
Mandatory
Absolute
*Permissive
The court can take judicial notice of the filing court of the state
Table of Authorities
Listing the statues first that are included in the motion and the pages numbered, clause law, list all alphabetically and page numbers
What is Material Fact
A fact that is important to the case
Case Management Conference
When the court evaluates the case to determine whether the trial date should be assigned or the case should to to ADR
OSC
Oder to Show Cause - giving a reason why I shouldn't sanction you
Presiding Judge
Is the judge that supervises all the other judges
Bifurcation
When the court separates issue in the case for purposes of trial
Trifurcated
Three phases if there are punitive damages
Can you bankrupt on punitive damages?
NOPE
Mediation
Parties attempt to settle the case by using a mediator who is trained to settle the case
Mediator
Not an acting judge
Mediation Brief
Document that describes the case from your perspective and states the result you want
Who attends a Mediation?
Mediator, Lawyers, Clients, Claims Adjuster, Paralegals
Claims Adjuster/Professional
someone who works for the insurance company that interacts with the law firm that is defending the insured
When is CMC held?
120 days after complaint is filed
CMC Statements Filed
At least 15 days before the CMC
What is CCP Section 36
Motion for Preference, anyone who is over 70 years old may ask for one
ENEC?
Early Neutral Evaluation Conference - First settlement conference and manage the case, ordered right after the pleadings are done
Rule 16 Conference
Federal Court - Initial discovery conference or Statues Conference (same as CMC)
Rule 26 Conference
A federal court - status conference; parties come before the court list all discovery needed and identify all witness, documents, experts and resorts and then 14 days after the conference you exchange all that stuff
FRCP
Federal Rules of Civil Procedure
CCP
Code of Civil Procedure
CCCP
California Codes of Civil Procedure
CRC
California Rules of Court
ADR
Alternative Dispute Resolution - Mediation or Arbitration
MSC
Mandatory Settlement Conference - Judge orders your case to go in front of another judge to try and settle
VSC
Voluntary Settlement Conference - Same as MSC but it's not ordered
998
If any party offers to settle the case with another party in writing and the other party rejects that offer and the verdict comes in more favorable to the party that made the offer a certain penalty is attached to it.
Good Faith Settlement
The court approves to make sure the settlement is fair and reasonable. Extra Coverage
Equable Indemnity Complaint
Is based on principles of fairness
What is the Standard for Fair and Reasonable
It just has to be in the "ball park"
Collusion/Collude
Agreement to injure someone
Arbitration
is a hearing in front of an arbitrator that decides a dispute between the parties, it can be binding or non-binding
What does "Binding" mean?
The parties have to accept the reward
What does "Non-Binding" Mean?
You don't have to accept and you can ask for a new triall
JAMS
Judicial Administrative Mediation Services
What are three clauses that you may see in a contract?
Express Indemnity Agreement
Additional Insured
Mediation/Arbitration
Adhesive/Adhesion
A contract that is very heavily one sided
Confidential Mediation Brief
Statement of your position and what you want; that you give only to the mediator
Who must be present at a MSC, VSC or Mediation?
Council, Client, Carrier, Settlement Authority and a Structured Settlement Broker
Carrier
A representative from the Insurance Company
Telephone Conference
allows someone to be available by phone and not attend
Structured Settlement Broker
Someone who assist in settling caes by selling structured settlements
Structured Settlements
are agreements to pay money out over time
How many days do you have to response to an Offer to Compromise
30 days to Respond
How many days do you have to respond to a CCP 998
30 days, then it expires
OJ
Same as a CCP 998 but in Federal
How many days do you have to respond to an OJ
30 Days
CCP Section 887.6
Motion for Good Faith Settlement and it has to be in the "ball park"
Primary Policy Insurance
A Specific/Original Policy
Excess/Umbrella Policy Insurance
Coverage above a primary Policy
Reinsurer Insurance
Insures insurance company
Continuous Loss
Damages that happen over a series of time
Policy Limits Demand
A request for reward in the amount of the insurance policy limit. A rejection of a policy limits demand by the carrier results in a carrier to pay the excess money
SIR
Self Insured Retention - Amount of money that the insured has to pay before the insured policy pay anything
Deductible
Owed by the insured to the insurance company once the claim is over
Eroding/Self Depleting
Eroding Feeds and cost reduce the policy limits
What is Equitable Remedy?
Injections, Receiverships. etc
Are there Juries for Equitable Remedies?
No jury
What is included in a Pretrial preparation?
Pre Trial Report Budget
CCP170.6 (Peremptory Challenge)
Subpoenas
Trial Standby Letters
Meeting with Witnesses and Experts
Demonstrative Evidence
Jury Fees
Jury Questionare
Mock Trial
Deposition Summaries in Notebook
Exhibit List
Witness List
Motions and Limiting
Trial Brief
State of Brief
Organize the File
Visit the Court Room AV/Elmo
Jury Instructions
Verdict Form - Special General
Vior Dire
Opening, Direct, Cross Closing - Power Point
Trial Notebook
Trial Bag
TRIAL
What is a Pre Trial Report?
All about the case, pros and cons, likely results, percentage of that result is going to happen, best/worst case scenario, what the percentage are
When is a Pre Trial Report done?
Typically 60 before trial
CCP 170.6 (Peremptory Challenge)
Challenge to have the judge removed from the case for any reason, you have one chance and you have to exercises this challenge within 10 days of finding out who your judge is
Peremptory Challenge
To have a jury removed for any cause you have 6 Peremptory Challenges
Challenge for Cause
Request for a Judge or Jury Member to be removed based on a prejudice or conflict; you can do this at any time, unlimited
Notice to Appear
Sent to any party 30 days before trial, requiring to compel that party to produce any individual or things
Subpoenas
Court order by an attorney for anyone to appear or produce
Trial Standby Letter
Letters and subpoenas that go to witness, that requires the witness to not have to appear the first day of trial but promise to be on 24 hour notice standby
Meet with Witness and Experts
Set everything up, call witness to prepare for trial
Demonstrative Evidence
Evidence that is used to show or explain something to the jury: Charts, timelines, scale models..etc), you have to appeal to all senses, touching it, seeing it, hearing it, feeling it
Jury Fees
Have to post jury fees
Post
you have to actually send the money to the court
"Putting you on the Wheel"
As soon as any judge is open you are going to that judge
Jury Questionnaire
A series of question specifically designed to see if a juror a can be fair and impartial
Jury Consultant
Someone who has been trained to help select jurors
Mock-Trial
Practice Trial
Depositions Summaries in Notebook
Depositions Boxed with Names on spine
Exhibit List
Normally it's a chart, contains Exhibit number, Offered by, Description, Legal Ground for Objection, Date offered and Date Admitted
Witness List
Contains all the witness from all parties; master list
Motions and Limiting
Motion to exclue evidence
Trial Brief
Statement of your position that you tive to judge and all parties; this cannot be confidential
Voir Dire
To See, To Speak
Voir Dire the Jury
Ask any questions which is designed to find out if a juror can be fair and impartial
Pool of Jurors
State - Everyone and anyone with a drivers license in the county
Federal - Registered voters
What are the three stages of Jury selection?
Pool
Voir Dire
Panel
How can you dismiss a juror?
Peremptory Challenges - 6
Challenge for Cause - Unlimited
Visit the Courtroom
See what the courtroom has, see what you need, check all AV equipment, get the clerks phone number, find out which seat is juror number one and how they are numbered
CACI
California Civil Jury Instructions - Stand form jury rules. Must include all series that apply to your case
Stand Form Jury Instructions
CACI
Special Jury Instructions
Non CACI jury instructions from a case or code
Genearl Verdict
Ask one question, Guilty...Yes or NO and who much?
Special Verdict
Ask the jury to answer question as to each element of the case
Opening, Direct, Cross, Closing - Power Point
Lawyer basically puts on a show (must read all summaries to prepare)
Trial Notebook
Normally you will have separate notebooks for everything, Usually only 50 pages that include notes, exhibits and witness list, MIL/Chart, Voir Dire, Opening Notes,
What happens at Trial?
Start with Motions in Limine
Voir dire
Pick Jury
Opening Statement
Plaintiff
Defense
Closing
Jury Instructions
Verdict
Poll the Jury
Ask each juror was there their verdict
How many Jurors for State?
12 with 2 on stand by
How many Juror for Federal?
6 with 2 on stand by
To reach a verdict how many votes must you have?
For State you need 9 out of 12
For Federal it must be unanimous
Verdict Entered
Clerk enters it into the record
Judgment
The courts’ order based on the jury verdict
Recoverable Cost
Cost allowed to the prevailing party that are allowed per code to be made part of a judgment
Code §1033.5
Defines each item that is recoverable
When can you get Expert fees recovered?
Only if you beat the 998 at the reasonable amount of time.
How many days do you have to file Memo of Cost
10 days after Judgment
Tax Cost
Opposing the Prevailing parties Memo of Cost to have cost removed or lowered.
American Rule
Prevailing party is not allowed attorneys fees and cost unless there is a code or contract that allows this
What are two ways to challenge a verdict?
Motion for Judgment Notwithstaing the verdict
Motion for a New Trial
MJNOV
Motion for Judgment Notwithstanding the Verdict - verdict is not supported by the evidence
When must you file a MJNOV?
15 days of Notice of Entry or 180 days is if no notice is given
Motion for a New Trial
Based on an irregularity in the proceedings (judge used the wrong law, jury consulted outside source, something irregular)
When must you file an Appeal
60 days after Notice of Entry of Judgment
Why must you meet an Appeal deadline
If you don't do it on time, the court loses authority of the case
Where do you Appeal to?
The appellate cour in your district in CA
What the 4 possible results for an Appeal?
Revers
Modify
Affirm
Remand
Revers an Appeal?
Literally...if you won, you now lose
Modify an Appeal?
Change the ruling to make it different someway
Affirm and Appeal?
The ruling stands. Accepting Trial Courts Ruling
Remand
Send it back down for a new trial; they can remand with specific instructions
What two things must be meet to grant an appeal?
There has to be an Issue and Abuse of Discretion
Judgment Issue
There is substantial evidence but the judge excluded it
Abuse of Discretion
If the judge excluded certain evidence that is try-able
Cross-Appeal
prevailing party may appeal meaning they don't feel they got all their cost
Prepare the Record
you have to get everything that you are going to send up to the appellate court
Clerks Transcripts
Minute orders
AS
Agreed Statement - each side can stipulate what the appeals are
Provisional Remedies
Causes something to occur, pending the outcome of something else
What are the two types of Previsional Remedies?
Legal and Equitable
Legal Remedies
Entitles to money damages
Equitable Remedies
Asking the court to order someone to do something or not do something; not entitled to a jury, you can see the judge ex-party
Can you have Equitable and Legal Remedies in the same case?
yes
How do you bring a Remedy in front of a judge?
Injunction
What are the 3 phases of Injunctions?
TRO
Preliminary
Permanent
TRO
Temporary Restraining Order - other side does not get prior notice of that. Standard is immediate, irreparable harm
Preliminary
Judge sets a date 2 weeks out and both parties how up and fight if the TRO should remain in effect
Permanent
Trial to turn the preliminary into permeant or remove it
What 4 things can the judge order to solve a Previsional Remedy?
Receivership
Writ of Attachment
Writ of Mandamus
Writ of Prohibition
Receivership
Appoint someone to run the business pending the dissolution of the business
Writ of Attachment
Grant "ownership" until trial
Writ of Mandamus
Order of the court to do something
Writ of Prohibition
Order of the court stopping you from doing something
CGL
Comercial General Liability - 3rd party; typical insurance policy that protect individual and businesses from lawsuits
When should you tender
No matter what the issue is you should always tender the claim
3rd Party Coverage
Someone else is making a claim against you
1st Party Coverage
When you make a claim against your own insurance policy
WRAP or OCIP
Policy that covers all trades in a construction project
What are the 6 Parts to a CGL
Declarations
Schedule
Insuring Agreement
Definitions
Exclusions
Endorsements
Declarations
Declares who is insured for how much and for what period of time
Schedule
Itemizes all the forms that make the policy
Insuring Agreement
Statement of what's insured
Definitions
What each word of the policy means
Exclusions
What is not insured
Endorsements
Changes to the policy
Manuscript Policy
Makes their own policy script
*ISO Policy
Insurance selects forms of what will be covered
Burning Limits Policy
Policy Limit decreases by the amount of attorneys fees and cost
Aggregate Limit
How many policy limits can be paid in any given policy period
Liability Coverage
Covers damages you caused to other people's property
Warranty Coverage
Covers damage you case to your own property
Ethics
Code of conduct that requires a professional to act in way defined by what is right or wrong and the obligation to act with integrity
Integrity
Acting with honesty, yes or no, right or wrong there is no grey area
When did the Paralegal Profession Start?
1970's
ABA
American Bar Association - National non-profit organization that established the profession
What are some Paralegal Associations
ABA, NALA, NFPA - voluntary guidelines
What is the Mandatory Guideline for Paralegals
B&PC - California Business and Professionals Code
B&PC
California Business and Professions Code - Laws that paralegals have to follow
§6450
Code Section that is the Paralegal LAW - defines the job, the certification, continuing learning education and what penalties if you do not comply
Et seq
And following
Section §6450
Someone who holds themselves as a paralegal who is qualified by education, training or work experience and who performs substantial legal work under the direction and supervision of an active member of the State Bar of California
Professional
Someone through experience, training and education and subject to an ethical standard of conduct; provides a service; usually a government license or certification
CLE
Continued Learning Education
What do CLE's consist of
4 hours of ethics
4 hours of any specialized law
ABA
American Bar Association
NALA
National Association of Legal Assistance, Inc.
NFPA
National Federation of Paralegal Association, Inc.
How many guidelines does the ABA have and what are they called
10 Cannons
How many guidelines does NFPA have and what are they called
Model Code of Ethics and Professional Responsibility - 8
How many guidelines does NALA have and what are they called?
Code of Ethics and Legal Responsibility - 9
Name some voluntary guidelines
Do not perform duties of a lawyer
Always identify yourself as a paralegal
Must maintain confidentially
Disclose any conflicts of interest
Maintain competence
Always be professional
Honesty
How can you become a paralegal?
Certificate approved by the ABA
Degree from a Post secondary school that requires at least 24 semesters or more equivalent to law environment classes
4 year degree or advance degree in any subject and one year of law related experience under the supervision of a lawyer, with a declaration of qualification from the attorney
High School Degree or GED with 3 years legal experience before December 31, 2003
What can paralegals not do?
Provide Legal Advice
Represent a client in court
Cannot select, explain, draft or recommend any legal document other then to the attorney you are working for
Act as a runner or a capper – soliciting business going to an accident scene or hospital emergency room
Can’t contract or be employed unless under an attorney
You can’t provide financial services
Can’t establish the fee to charge the client
About this deck
By: Corrine Cruz
Created: 2011-07-14
Size: 250 flashcards
Views: 32
Created: 2011-07-14
Size: 250 flashcards
Views: 32
About StudyBlue
STUDYBLUE makes things that make you better at school.
Things like online flashcards with photos and audio.
Things like personalized quizzes and friendly reminders about when (and what) to study next.
Think of it as a digital backpack™: access to all of your study materials online and on your phone.
STUDYBLUE exists to make studying efficient and effective for every student, for free. Join us.
“I have been getting MUCH better grades on all my tests for school. Flash cards, notes, and quizzes are great on here. Thanks!”
Kathy
Kathy