Into to Paralegal Studies

Law 100 with Jjjjjj at Mt. San Jacinto College

About this deck

By: Anna Lyons
Created: 2011-04-03
Size: 89 flashcards
Views: 126

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Legal Research

The process of finding the law

Legal Reasoning

The application of legal rules to a client's specific factual situation: also known as legal analysis

Attorney

An agent, one who is authorized to act on behalf of another person or corporation.

Attorney at law

is a person who has been officially licensed to practice law in a state or federal jurisdiction.
A "Lawyer" is an equivalent term for an attorney at law.

Paralegal

A person who assists an attorney and works under the attorney's supervision.

ABA: American Bar Association

A national voluntary organization of lawyers/
www.abanet.org

Freelance Paralegal

A paralegal who works as an independent contractor rather that as an employee of a law firm or corporation

Lay Advocate

Someone operating within the law, representing persons before administrative agencies that permit this practice

Lay Advocate rendered services

Nonlawyers who provide legal serves directly to the public without being under the supervision of an attorney.

Legal Technician

A non-lawyer who provides a legal service directly to the public without being under the supervision of an attorney.

American Association for Paralegal Education

www.aafpe.org
A national organization of paralegal program that promotes high standards for paralegal education.

LLP, Limited Liability Partnership

A professional entity in which the owners share in the organizations' profits, but are not liable for the malpractice of their partners

Law

Rules of conduct promulgated and enforced by the government

Constitutional Law

A body of principles and rules that are either explicitly stated in, or inferred from the constitutions of the U.S. and those of the individuals states

Written Constitution

The U.S. was the first nation to adopt a written constution.

This constitution provides the framework within which all our laws are made.

Separation of Power

The division of governmental power among the legislative, executive, and judicial branches

Federalism

The division of power between the nantional government and the states.

Certain powers are explicityly granted to the federal government, whil all others are reserved to the states and the people.

Bill of Rights

The first ten amendment to the U.S. Constitution

Power of Judicial Review

A court's power to review statutes to decide if they conform to the federal or a state constitution.

When there is a challenge to the constutionality of a law, it is the courts that review and determine whether or not the law is valid.

Administrative Law

Rules and regulations created by administrative agencies

Regulation

A law promulgated by an Administrative agency

Enabling Act

A statute establishing and setting out the powers of an administrative agency

Common Law

Body of law that has evolved from judicial decisions in cases that do not involve constitutional statutory or administrative regulation interpretation

Stare Decisis

The doctrine stating that normally once a court has decided one way on a particular issue, it and other courts in the same jurisdiction will decide the sam way on that issue in future cases given similar facts

Civil Law

Law that deals with harm to an individual

Criminal Law

Law that deals with harm to society as a whole

Legal Ethics: Model rules of Professional Conduct

A set of ethical rules developed in 1980s by the ABA for attorneys to abide by

Confidentiality

The ethical rule prohibiting attorneys and paralegals from disclosing information regarding a client or a client's case

Confidences can only be revealed if:

- the client consent after full disclosure
- it is necessary to prevent a serious crime
- in order for an attorney to collect a fee
- defend him/herself

Attorney-Client Privilege

A rule of evidence that prevents an atty. or a paralegal from being compelled to testify about confidential client information

Conflict of Interest

The ethical rule prohibiting attorneys. and paralegals from working for opposing sides in a case

Ethical Wall of Silence

A system developed to shield an attorney or a paralegal from a case that otherwise would create a conflict of interest

Vicarious Representation

The rule whereby all members of a law firm are treated as though they had represented the former client

Defamation

The publication of false statements that harms a person's reputation
- Oral = slander
-Libel = written
Written/Video publication means someone other than the plaintiff/defendant must see or hear it.

Invasion of Privacy

An intentional tort that covers a variety of situations, including disclosure, intrusion and appropriation and false light

Disclosure

is the publicizing of embarrassing private affairs
(Papparazzi)

Intrusion

is the unjustified intrusion into another's private activities

Appropriation

is defined as the unauthorized exploitative use of one's personality, name, or picture for the defendants benefit

False Light

involves the use of a picture or some other means to infer a connection between the person and an idea or a statement for which the individual is not responsible

Tort

is a private wrong in which a person or property is harmed because of another's failure to carry out a legal duty
(Breach of Contract is not a tort)

Three major categories for Torts

-intentional tort
-negligence
- strict liability
(Not every tort qualifies as a crime, but some acts if done intentionally can lead to both criminal prosecution and civil litigation

Intentional Torts

Occurs whenever someone intends an action that results in harm to a person body reputation, emotional well being, or property. Ex: assault & battery, false imprisionment, defamation

Negligence

results from an unintentional act. Negligence is traditionally defined as the failure to act reasonably under the circumstances

Four elements the courts look for to establish negligence

- defendant must owe a duty to the plaintiff to act reasonably (Owe a duty to act reasonably)
- the defendant must have breached that duty (Breach that duty)
- thereby causing (Causation)
- the plaintiff harm (plaintiff's harm)

Negligence per se

Meaning that simply violating the statute is enough to prove that the defendant was negligent.
(violation of a statute is proof of negligence)

Res ipsa loquitur

Meaning the thing speaks for itself; the doctrine that suggests negligence can be presumed if an event happens that would not ordinarily happen unless someone was negligent

Actual cause

is measured by the "but for" standard
But for the defendant's actions, the plaintiff would not have been injured

Proximate cause

Once "actual cause" is found, as policy matter, the court must also find that the act and the resulting harm were so forseebly related as to the justify as to justify a finding of liability

Commercial paper is catergorized in the following ways:

1. as two or three party instruments

2. as orders or promises to pay

3. as bearer or order paper, and

4. as negotiable or nonegotiable

A Note - Maker - Payee

is a promise to pay money, whereby the maker signs the instrument promising to pay money to the payee

A Draft - Drawer - Drawee

is a three-party instrument in which the drawer orders the drawee, usually a bank, to pay money to the payee

A Check

is a specialized from of a draft in which a bank depositor names a specific payee to whom funds are to be paid from the drawer's account

Negotiable instrument

Commercial paper that can be transferred by indorsement or delivery.

It must meet the requirements of UCC sec. 3-104 to be negotiable

Contract

is simply an agreement oral or written that can be enforce in court

Contract law

sets our the basic elements that must be present for an agreement to be considered legally enforceable

UCC: Uniform Commercial Code

is a series of model statutory provisions drafted by prominent legal scholars

3 key elements for a valid contract

An offer

An acceptance

Something of value must be exchanged (consideration) (the glue that holds together the promise)

Offer

a promise to do something

4 items that consider an offer valid

the parties to the contract

the subject matter of the contract

the nature of the consideration and

the time for performance (time frame or expiration)

Two ways paralegals enhance the legal system

Cost Savings

Time Effective (the paralegal allows the atty. to work on more substancial part of the case)

Four basic tasks performed by paralegals

Communication with clients

Research

Drafting

Case Management

Checks and Balances

The separate branches of government share power and have the ability to limit the actions of the other branches.

Checks and Balances is designed to guard against "a gradual concentration of the several powers in the same department.

Examples of Checks and Balances

1. Congress makes the law, but the President can veto the law.

2. The executive branch is responsible for administering law, but it cannot spend money unless Congress provides for the appropriate funding in the budget.

Preemption

The power of the federal governement to prevent the states from passing conflicting laws, and sometimes even to prohibit states from passing any laws on a particular subject.

Substantive law

Law that creates rights and duties

Procedural law

Law that regulates how the legal system operates

Tort Action

Harm being done to a person's body, reputation, or property

Contract Action

An agreement written or verbal that can be held up in court

Three main categories that fall under Civil Law

Tort Law

Contract Law

Property Law

Statute fo Limitations

Limited time framed, from when something happens and the time it can be brought before a court before it is lost.

Jurisdiction

refers to the ability of a specific court to hear a particular type of case

Trial Courts

Are authorized to hear both criminal and civil cases, hear testimony and take evidence.

Appeals Court

Determine whether lower courts have made and error and have the right to overturn the lower courts decision.

Most appellate courts do not have the authority to hear testimony or take evidence, but instead rule solely on matters of law.

Supreme Court

The highest federal appellate court in the United States. It consists of 9 appointed members. 1 Chief Justice, and 8 Associate Justice.

US District Court

The courts of general jurisdiction trial courts in the federal system.

Civil Litigation

The process of using the courts to settle disputes

Pleadings

The papers that begin a lawsuit.

Generally, the complaint and the answer

Three most used means of conducting discovery

Interrogatories

Deposition

Request for Admissions

Default Judgment

A judgment entered against a party who fails to complete a required step, such as answering the complaint.

Challenge for cause

A method for excusing a prospective juror based on the juror's inability to serve in an unbiased manner. (the juror may know facts about the case or work in the legal field)

Preemptory Challenge

A method for excusing a prospective juror for no reason given

Second restatement of torts

An authoritative secondary source, drafted by legal scholars, which a court may look to for infomation on a tort issue.

Assault and Battery

Are both intentional torts.

Assault: A person fears that bodily or physical harm may occur, but no harm is done.

Battery: Physical harm is done to a person

Four fundamental elements to establish a negligence case

Duty and Care - Defendant must owe a duty to the plaintiff to act reasonably

Breach of Duty - Defendant must have breached that duty

Causation - thereby causing

Breach of Harm - the plaintiff harm`

Contributory negligence

Negligence by the plaintiff that contributed to his or her injury.

Negligence, Strict Liability, Breach of Warranty

Three legal theories used for product defect against a manufacturer

Respondeat Superior

The tort theory that an employer can be sued for the negligent acts of its paralegals and other employees.

Three fundamental elements to a contract

Offer

Acceptance/Agreement

Something of value is negotiated (consideration)

Contra Proferendum

a powerful rule, the courts use to interpret contracts that have ambiguous language

About this deck

By: Anna Lyons
Created: 2011-04-03
Size: 89 flashcards
Views: 126

About StudyBlue

“I have been getting MUCH better grades on all my tests for school. Flash cards, notes, and quizzes are great on here. Thanks!”
Kathy