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Legal Chapters 1-6
Test #1 Chapters 1-6
Terms in this set (88)
4 steps of legal analysis
1. Gathering and analyzing the facts.
2. Conducting legal research to identify the appropriate legal rules
3. Applying the legal rules to the facts
4. Reporting the results (usually in writing)
When even a minor change in the facts can change the outcome.
Cause of action
A claim that based on the law and the facts is sufficient to support a lawsuit.
The process of finding the law.
The application of legal rules to a client's specific factual situation; (aka legal analysis)
2 types of legal reasoning
1. Analysis of court opinions
2. Analysis of constitutions, statutes, and administrative regulations
The doctrine stating that normally once a court has decided one way on a particular issue in the past, it and other courts in the same jurisdiction will decide the same way on that issue in future cases given a similar set of facts unless they can be convinced of the need for change.
One or more prior court decisions.
Examples of legal writing include case briefs, law office memoranda, and documents filed with the court.
Summarize specific court decisions; helps analyze court decisions and prepare legal memoranda and appellate briefs.
Law office memorandum
An unbiased analysis of a client's case for use within the law firm; serves as a means of fairly evaluating the likelihood of the client's winning should the case go to court. Often followed by a letter written to the client advising the client as to what action should be taken.
Written to persuade an appeals court of the merits of the client's case.
A lawsuit; a controversy to be settled in a court.
The papers that begin a lawsuit---generally, the complaint and the answer.
The modern pretrial procedure by which one party gains information from the adverse party.
Legally binding agreement that creates an obligation to do or refrain from doing something.
Why does the study of law involve more than simply memorizing rules?
The answer to any legal question depends on the specific facts of the individual case. Even a minor change in the facts may alter the outcome of the case.
Why is stare decisis important?
If two prior court decisions are similar, it is likely that the result in the new court case will be similar to the result reached in the prior court case; the doctrine of stare decisis is what gives our system its stability and predictability; it also gives the courts enough flexibility to allow for change as the needs of our society change.
What does it mean to say that a person does not have a valid cause of action?
The facts are not sufficient enough to support a lawsuit; not every problem is a problem for which the courts will supply a remedy.
Why does law change?
It changes because societal values are always changing as well.
Why is there no one "right" answer to a legal problem?
There is no "right" answer, only better or worse arguments. A judge may be the final arbiter as to what the answer is in a particular case, but even then it is not the "right" answer in any cosmic sense.
"Lawyer" VS "Attorney"
"Lawyer" is referred to as a person who is authorized to practice law; "Attorney" is refereed to a job title.
A person who assists an attorney and, working under the attorney's supervision, does tasks that, absent the paralegal, the attorney would do.
The American Bar Association (ABA)
The largest and most prominent national organization of lawyers; national voluntary organization of lawyers.
2 major national associations of paralegals
1. (NALA) National Association of Legal Assistants
2. (NFPA) National Federation of Paralegal Associations
(ABA) American Bar Association definition of a paralegal
A legal assistant or paralegal is a person, qualified by education, training or work experience who is employed or retained b a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.
(NALA) National Association of Legal Assistants definition of a paralegal
Legal assistants are a distinguishable group of non-lawyers who assist attorneys in the delivery of legal services. Through formal education, training and experience, legal assistants have knowledge and expertise regarding the legal system and substantive and procedural law which qualify them to do work of a legal nature under the supervision of an attorney.
(NFPA) National Federation of Paralegal Associations definition of a paralegal
A paralegal/legal assistant is a person, qualified through education, training or work experience, to perform substantive legal work that requires knowledge of legal concepts and is customarily, but not exclusively performed by a lawyer. This person may be retained or employed by a lawyer, law office governmental agency or other entity, or may be authorized by administrative, statutory, or court authority to perform this work.
A paralegal who works as an independent contractor rather than as an employee of a law firm or corporation.
Someone who contracts to do a specific job.
Someone operating within the law, representing persons before administrative agencies that permit this practice.
A nonlawyer who provides legal services directly to the public without being under the supervision of an attorney; absent a statute allowing this activity, it constitutes the unauthorized practice of the law.
(aka forms practitioners, form preparers, legal information specialists) Someone that offers to prepare standardized legal documents for people who are attempting to handle their legal matters pro se (to handle the case on their own without using a lawyer)
Legal document assistants/legal document preparers
Individuals who prepare legal documents for members of the public who are representing themselves in a legal matter.
Paralegals who work under the supervision of an attorney in a contractual relationship (freelance paralegals); might also refer to as a legal technician.
A law student or a recent law school graduate who has not yet passed the bar and who was hired primarily to do legal research.
Someone who organizes and files legal documents.
American Association for Paralegal Education (AAfPE)
A national organization of paralegal programs that promotes high standards for paralegal education.
2 major national paralegal associations
1. (NFPA) National Federation of Paralegal Associations
2. (NALA) National Association of Legal Assistants
National Federation of Paralegal Associations (NFPA)
A national association of paralegal associations.
National Association of Legal Assistants (NALA)
A national paralegal association.
International Paralegal Management Association (IPMA)
A national association of legal assistant managers.
3 steps of paralegal educational standards (levels of regulation)
The process by which individuals or organizations have their names placed on an official list kept by some private organization or government agency.
The status of being formally recognized by a nongovernmental organization for having met special criteria,such as fulfilling educational requirements and passing an exam, established by that organization.
3 points of ethics importance to paralegals
1. Cannot give legal advice, sign court documents, or appear in court on behalf of a client.
2. Attorneys and their staff must respect the confidentiality of the client-attorney relationship.
3. Clients expect their attorneys and staff to be loyal to them. If you change employers, you must alert your new employer to any cases with which you were involved while working for your former firm (conflict of interest)
The status of having received a certificate documenting that the person has successfully completed an educational program.
The process by which governmental agencies establish standards (or adopt those of other groups) and then prohibit those who have not met these standards from working in that occupational field.
Job roles who do not work under the supervision of an attorney
Legal technicians, lay advocates, legal scriveners, and form preparers.
4 tasks paralegals perform
1. Communications with clients
4. Case Management
What are the requirements for being an attorney?
Attain a bachelor's degree, graduate legal education, passing a state bar exam, passing a morals/character check, and must be licensed.
What are the requirements for being a paralegal?
When did formal paralegal education begin?
Late 1960s and 1970s
What role does the ABA play in paralegal education?
Over the past 30 years, it has taken a leadership role in recognizing the need for and helping establish the paralegal profession.
What are the major differences between certification and licensure?
Certificated is used to identify someone who has successfully completed a formal paralegal program offered by an accredited educational institution. Licensing is described as someone who has successfully completed NALA's certification requirements.
Who has the right to use the title Certified Legal Assistant?
Someone who has successfully completed NALA's certification requirements.
Rules of conduct promulgated and enforced by the government.
The study of law and legal philosophy.
A legal philosophy whose proponents think there are ideal laws that can be discovered through careful thought and humanity's innate sense of right and wrong.
(alternative to the natural law theory)
A legal theory whose proponents believe that the validity of a law is determined by the process through which it was made rather than by the degree to which it reflects natural law principles.
A legal theory that views the law as a complete and autonomous system of logically consistent principles within which judges find the correct result by simply making logically deductions.
(alternative to legal formalism theory)
A legal philosophy whose proponents think that judges decide cases based on factors other than logic and preexisting rules, such as economic and sociological factors.
2 theories of jurisprudence
1. Natural law vs. Legal positivism
2. Legal formalism vs. Legal realism
An approach to constitutional interpretation that narrowly interprets the text of the Constitution in a manner that is consistent with that most people understood those words to mean at the time that they were written.
An approach to constitutional interpretation in which judges seek to determine the underlying purpose that the drafters had in mind at the time they wrote the law and the modern-day option that best advances that purpose.
Types of private practice arrangements
1. Traditional partnership
2. Professional corporation
3. Limited liability partnership
4. Sole proprietorship
5. Office-sharing arrangements
A business run by two or more persons as co-owners.
Young attorneys being trained and evaluated.
Professional corporation (PC)
A professional entity in which the stockholders share in the organization's profits but have their liabilities limited to the amount of their investment.
Limited liability partnership (LLP)
A professional entity in which the owners share in the organization's profits but are not liable for the malpractice of their partners.
One lawyers owns all the assets of the business and receives all the profits (or absorbs the losses).
Two or more attorneys share office space, a telephone system, and a receptionist; another variation occurs when one attorney gives another attorney (usually a young attorney trying to start his or her own practice) office space, library use, and sometimes secretarial help in return for help on some cases.
Law office personnel
1. Law clerks, investigators, and librarians
2. Clerical support
3. Managers and administrators
Former law enforcement officers who locate and interview witnesses, take photographs of accident scenes, and gather documentary evidence.
Legal department of a business
This office has responsibility for advising corporate officials on how to minimize legal risks and how to respond to legal difficulties.
Legal departments in governmental agencies
They advise agency officials on the requirements of the law, keep them informed regarding proposed legislation and regulations that might affect the agency, and manage any litigation involving the agency as a party.
Provide low-cost legal services on routine matters by stressing low overhead and high volume.
Legal services offices
Serve those who would otherwise be unable to afford legal assistance; affiliated with the federal governments Legal Services Corporation.
Sources of law
1. Constitutional law
2. Statutory law
3. Administrative Law
4. Judicial interpretation and the Common law
A body of principles and rules that are either explicitly stated in, or inferred from, the constitutions of the United States and those of the individual states.
Separation of powers
The division of governmental power among the legislative, executive, and judicial branches.
Checks and balances
Division among governmental branches so that each branch acts as a check on the power of the other two, thereby maintaining a balance of power among the three branches.
A system of government in which the authority to govern is split between a single, nationwide central government and several regional governments that control specific geographical areas.
Bill of Rights
The first 10 amendments to the U.S. Constitution; these 10 amendments include protections for freedom of speech and press, freedom of religion, a privilege against self-incrimination, the right to an attorney and a trial by jury, and protections against unreasonable searches and seizures.
Functions of the Constitution
1. Separation of powers
2. Bill of Rights
Power of judicial review
A court's power to review statutes to decide if they conform to the federal or state constitution.
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