Intro to Paralegal Studies
Terms in this set (195)
The burden of proof in a civil case is what compared to a criminal case?
It is lower than in a criminal case.
Katko v. Briney and Marbury v. Madison are examples of what?
A law passed by PA's General Assembly is called what?
Which is NOT created by the U.S. Constitution?
a. the office of President b. the Senate c. the Supreme Court d. the House of Representatives e. the network of federal agencies ANSWER: e. the network of federal agencies
If a judge disagrees with the decision of the majority of the court, she might write what?
A dissenting opinion.
What did Marbury v. Madison establish?
the concept of judicial review of laws for constitutionality
The opinion in Katko v. Briney
has to be followed by any lower courts in the state it was heard.
Res judicata refers to what?
the finality of a civil judgment.
A U.S. Supreme Court Constitutional interpretation could be "overruled" by what?
an amendment to the U.S. Constitution.
The right to provide the final interpretation of language of the U.S. Constitution has been given to whom?
the U.S. Supreme Court.
Case law comes to us in the form of what?
Pennsylvania does not require what regarding Paralegal licensing/certification?
It does not require licensing or certification of paralegals.
Do paralegal certification exams need to be improved by the ABA?
The entire testimony from a trial court proceeding could be found in what document?
A statute starts out as what?
Is it true that: the U.S. Constitution provides that any power not given to the states in the Constitution is reserved to Congress.
Is it true that: Double jeopardy prevents a case from being tried as both criminal and a civil matter?
Is it true that: Both civil and criminal cases settle at a high percentage?
Is it true that: Administrative agencies can exercise executive, judicial, and legislative-type powers?
Is it true that: Most opinions comes from trial courts rather than appellate courts?
Is it true that: Most states, including PA, require paralegals to pass a licensing exam to practice?
An Act or Code is typically a law passed by a legislative body. True or False?
Congress often gets the Supreme Court's opinion on the constitutionality of a law before passing it. True or False?
There are more cases filed in state court systems than the federal court system. T or F?
Pro se representation violates the ethical rules of most states. T or F?
The Common Pleas Court is the trial court in the PA court system. T or F?
Once a section of a statute has been interpreted in court decisions, it can no longer be amended by the legislature. T or F?
Attorneys are permitted to bill clients for paralegal time spent on a file. T or F?
A main function of the executive branch is to enforce the laws. T or F?
What is the common burden of proof in a civil case?
Preponderance of evidence.
What is an award of money in a civil case?
What provides that the U.S. Constitution is the highest law?
The Supremacy Clause.
What are the two major national paralegal associations?
NALA and NFPA.
What is the requirement that lower courts follow higher court decisions from prior cases?
What is a violation of a court order called?
What do the first three Articles of the U.S. Constitution create?
The three branches of government.
What set of Constitutional amendments set forth our fundamental freedoms?
The Bill of Rights.
What is the branch of government charged with enacting new laws?
The Legislative branch.
What is the powerful national association of attorneys which sets standards for the profession called?
ABA. American Bar Association
What is the court in the PA system where the record is developed called?
The Court of Common Pleas.
What are the names of the Appellate court in the federal (U.S.) court system called?
Intermediate: Courts of Appeal.
Highest: U.S. Supreme Court.
What is the requirement that a party be somehow involved in a case to file suit called?
Standing to Sue.
What is the sharing of powers between different governments, such as federal and state?
What is the higher court that hears the appeal of a trial court's decision?
The Appellate court.
What is a burden of proof.
Proof needed in a case that defendant in a criminal case is guilty or not guilty which is called Beyond a Reasonable Doubt. Civil used preponderance of evidence.
What are damages?
Payment, or compensation, awarded by the court in a civil case to a person who has been injured through the wrongful conduct of the other party.
What is to disallow, deny, or reject an action or argument, usually by a higher authority?
What is it called when a higher court changes the outcome of a case reached in a lower court?
What is a written law passed by the legislative body?
What is a document of laws and rights that governs a nation, state, or corporation?
Which is the party being sued and the party that is tried against?
Which is the party who sues in a civil action?
What are the prior decisions of the same court, or a higher court, that a judge has to follow in deciding a similar case, facts, and legal problem, even though there are different parties and it's a different time, or earlier event?
What is the opinion joined by the majority of the court, or Justices. The reasoning behind the majority decision of a supreme court.
What is the opinion that disagrees with the court's deposition of the case?
What is the preponderance of evidence?
Degree of proof require in most civil cases that is the party who has the most convincing evidence has this on its side and has met the burden of proof.
What is the matter already settled in court and cannot be raised again?
What is beyond a reasonable doubt?
When the burden of proof is presented and it's clearly evident that it has proven the case. Jurors vote must be 12-0. Used in criminal cases.
What is checks and balances?
Each of the three branches of government can limit the powers of the others so no one branch becomes too powerful.
What does Affirmed mean in an Opinion?
The Justices in an Appeals Court agree with the decision of the lower court.
What is Common Law?
Case Law. Law found in the decision of the courts rather than in statutes. Law as laid down in the decisions of the courts in similar cases that have previously been decided. Comes from the courts (federal and state).
What is the method of settling disputes by submitting a disagreement to a person or a group of individuals for decision instead of going to court.
What is a county seat called?
The seat of government for a county.
What is a moot case?
Of no actual significance; ceases to exist.
What is a Justice?
Title of a judge especially of an appellate court.
What is to decide, give judgment, award judgment or sentence called?
What is an Administrative Law Judge?
A person, civil servant generally, who conducts hearings held by an administrative agency.
What Association of LA's has the purpose of enhancing the professionalism and interests of those in the profession?
What prohibits second punishment or trial for the same crime, or offense?
What is one of the three main functions of government that enacts the laws?
Who defends the appeal?
Who files the appeal?
What is the body of law that controls the way in which administrative agencies operate?
What are local laws enacted by a city council called?
What is the return of a case by an appellate court to the trial court for further proceedings, for a new trial, or for entry of judgment in accordance with an order of the appellate court called?
What is a court order that commands or prohibits some act or course of conduct?
What is a clerk of court, or chief clerk called? Or a public officer of some jurisdictions?
What is the Supremacy Clause?
Article VI of the Constitution states that, "this Constitution and the laws of the U.S. shall be the supreme law of the land and the judges in every state shall be bound thereby." It holds that the Constitution is the highest form of laws and should be obeyed.
Is it liable or guilty in a civil case concerning the wrongdoer?
What is the final decision by the courts in a case?
What is an act of disrespect to a court and disobedience to an order called?
What is an opinion issued by one or more judges that agrees with the majority opinion rendered by the court.
What is representing oneself called?
Pro se representation.
What is free legal service called? Why is it helpful to have in law firms?
Pro bono. It improves the legal profession's reputation, helps those of low-and-middle incomes, and those who can't afford a lawyer.
What does the attractive nuisance doctrine provide?
That an individual may be liable for injury suffered on his property by a trespassing child.
What is the most commonly filed tort called?
What does Workers' Compensation law typically prohibit?
Prohibits an employee from recovering in tort from her employer for a work-related injury.
If someone sees a person drowning, do they owe them the duty to save them?
There is NO Duty to Rescue one in danger.
Even if defendant acted unreasonably under the circumstances, there can be no finding of negligence unless what?
Unless defendant owed some duty to the plaintiff.
A hotel can probably transfer the tort duty to maintain its parking lot and sidewalk to a snow removal service to eliminate liability for slip and fall claims. True or False?
The U.S. Supreme Court accepts about 50% of all cases appealed there. True or False?
A case will only be heard before the U.S. Supreme Court if every Justice agrees to hear the appeal. T or F?
A plaintiff can sue multiple defendants in one tort complaint. T or F?
Some conduct can lead to both tort liability and criminal guilt. T or F?
It is better to cite a secondary source than a primary source in a court brief. T or F?
The U.S. Supreme Court spends about half of its time on trials and half on appeals. T or F?
An individual appointed to the Supreme Court by the President must be approved by the Senate. T or F?
If the jury finds that a plaintiff assumed the risk of injury, plaintiff cannot recover any damages in a negligence case. T or F?
"509 Pa. 473, 625 A. 2d 357" is an example of what?
A parallel citation.
How are statutes and regulations organized?
By titles covering specific subjects.
What are the elements of negligence?
Duty, Breach of Duty, Causation, and Injury.
Grandma falls asleep and is struck in the eye at a professional baseball game by a foul ball. What legal principle likely applies here?
Assumption of Risk.
What could you use a "pocket part" for?
If it agrees to hear an appeal, the U.S. Supreme Court issues what?
A writ of certiorari.
In PA, a social host serving alcohol to guests may be liable to what?
A good defense to slander may be what?
What was said was true, although it may be harmful.
The current Chief Justice of the U.S. Supreme Court is who?
Justice Roberts. (John G. Roberts)
A civil wrong involving injury to a person or property is called what?
A judicial opinion disagreeing with the majority result is what?
This negligence doctrine can result in an employer's liability for an employee's negligence at work which injures a customer.
Under this law, a bar may be liable for the negligent conduct of a drunken customer.
Dram Shop Laws.
What is the number of U.S. Supreme Court Justices?
What are common types of damages requested in a tort suit?
Medical bills, Pain and Suffering, Loss in Wages.
The tort of placing one in fear of harmful physical contact without acting causing contact is what?
A.2d is what?
PA Appellate court opinions.
U.S. Code is what?
Laws passed by Congress.
Concurring is what?
An opinion agreeing with the court majority.
U.S. Supreme Court Opinions.
Pa. Code is what?
PA agency regulations.
What are the PA statutes in?
et. seq. means what?
What are annotations?
Case summaries following statutory language.
What is "Deep Pocket"?
Employer has more money usually.
What does "take your plaintiff as you find him," mean?
Same injury to 2 plaintiffs; different damages.
What is the attorney fee dependent upon recovery in case called?
What is the test/standard used to determine whether duty has been breached?
"Reasonable Person" Standard.
What are some Intentional Torts?
Assault, Battery, False Imprisonment, and Infliction of Mental/Emotional Distress, Defamation, Invasion of Privacy, and Interference with Contractual Relations.
What doctrine shields people who provide emergency assistance from negligence?
"Good Samaritan" laws.
What is a legally enforceable agreement?
Is Contract law civil or criminal?
"Every contract is an agreement." True or False?
"Every agreement is a contract." True or False?
You probably enter into a contract almost every day. True or False?
What are some common contract examples?
Purchase, policy agreement, club membership, loan, employment.
What are the elements of a contract?
1. Agreement (offer, acceptance) 2. Consideration (value exchange) 3. Capacity (competent parties) 4. Legality (legal purpose)
What is an implied contract? What are examples?
Circumstances rather than words. Examples are a dentist visit, hound shake.
What is an express contract?
Words either written or spoken.
"Contracts must be in writing to be enforceable." True or False?
Doesn't have to be in any formal form. Can be oral.
Proof and credibility
Written letter. *Who's more believable.
Statute of Frauds and examples
Requirement that some contracts have to be in writing ---> signed (validation of the document). Examples are involving real estate, prenuptials, guarantee for debt, contract for 1+ year, goods of $500+
What does the contract element of capacity require?
mental ability to understand the contract.
What are the 3 types of parties who may lack contractual capacity?
Minors, Mental incompetence, and Intoxication/Drug Indused.
What is the difference between a void and voidable contract?
A void contact is null, unenforceable from beginning. A voidable contract can go either way.
A contract involving a party who lacks capacity is voidable by whom?
the party who lacks capacity.
What does "age of majority" mean? What is typically the age for contracting?
The age you are legally capable of doing something. The age is 18.
When might the law consider a minor to be an adult?
Emancipated minor- living on their own. Some states believe if graduated, they are considered an adult. Married under 18.
Can a minor enter in a contract with an adult?
Can the adult hold the minor to the contract?
Can the minor hold the adult to the contract?
A contract entered into by a minor is unenforceable. True or False?
False. It's voidable but not unenforceable.
What choice does the minor get to make about the contract?
If void- Disaffirm it. If enforceable- Ratify.
How can an adult protect himself when contracting with a minor?
A party lacking capacity gets out of a contract by what?
When is the incapacitated party (minority) permitted to disaffirm?
During incapacity plus a reasonable amount of time beyond it.
A party lacking capacity can honor a contract by what?
When is the incapacitated party permitted to ratify?
Only after an incapacity is gone. Works for majority, sober, of mental competence.
Do most states prohibit a minor from disaffirming a contract if he misrepresented his age to the adult?
Most states say no. The minor is protected.
What is a contract to keep another offer open or to buy time to consider the other offer called?
Element of Consideration
means a special thing. Exchange of value between parties.
What are the values typically exchanged in most contracts?
money, property, services.
Contract to give up a claim or a right.
money for a promise not to pursue additional claim. "forbearance of suit"
What is the highest Appellate Court in PA?
PA Supreme Court.
What is the Intermediate Appellate Court in PA?
What is the Intermediate Appellate Court in US?
Courts of Appeal (Circuit Courts)
What is the PA Trial Court?
Court of Common Pleas
What is the US Trial Court?
What is the PA Small Claims Court?
In a civil case, how many jurors does it need to find liability?
How many jurors in a criminal case, and how many does it need to find guilty?
12 jurors. 12-0 vote. unanimous
What is it called, in a criminal case, when defendant does not testify?
Taking the Fifth.
Statute of Limitation
Sets time limits of filing suit.
How does a statute come about?
The legislative introduces and votes on a bill which passes to the Executive who signs it then its a statute, or law and the judicial interprets the law. If executive "vetoes" it, it goes back to legislative who can "override" it and it will become a law.
issued by courts, addresses issues of law not facts.
facts of a case determined and applies law.
regulatory law. Creates the gov't, sets forth the powers of gov't and limits those powers, sets forth individual rights, gives gov't structure. Every state has one.
legislative or party cannot get a judicial interpretation of a statute before it is passed or a dispute about it rides.
comes from administrative agencies. Federal- IRS. PA- Revenue. Courts interpret.
comes from Legislature. Congress interpret. Legislative is comprehensive when writing a law. Judicial is narrow focus.
How are Supreme Court Justices appointed?
The President nominates someone for a vacancy on the Court and the Senate votes to confirm the nominee, which requires a simple majority.
How is the Chief Justice appointed?
By the President and confirmed by the Senate.
How long do Supreme Justices serve?
Justices "shall hold their Offices during good Behaviour," in the Constitution which means that the Justices hold office as long as they choose.
How can a Justice be removed from Office?
Goal of pre-trial discovery
To help each side find out as much information as possible so that each can fairly evaluate the case and prepare for trial.
What is a careless conduct causing injury?
Most common incident leading to Negligence
What are the 3 tort categories
Negligence, Intentional, Strict Liability
What is the most common tort and what is it?
Negligence and it is Medical Malpractice, car accidents, any malpractice and slip and fall cases. Insurance involved.
What is the second most common tort and what is it?
Strict Liability and it is Product Defects. Insurance involved.
The least filed tort is what, and defined?
Intentional and it is Assault/Batter, Slander/Defamation, Invasion of Privacy.
What hurts more, libel or slander?
Libel because it is written and always there. Slander is spoken and will disappear after the words come out.
Common defenses to Negligence
the defendant introduces evidence that he or she did not owe a duty to the plaintiff; exercised reasonable care; did not cause the plaintiff's damages; cannot hold another liable if the victim has implicitly or explicitly consented to engage in a risky activity;Comparative or contributory negligence;