Law Study Guide

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shabazz704
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12685
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Law Study Guide
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2010-04-01 10:06:14
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Guide Ch. 4,6,7 & 14
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  1. Various Methods of resolving disputes through means other than the judicial process;
    Discourage litigation. To reduce court congestion and avoid undue cost and delay to make resolution more accessible and provide options
    Alternative Dispute Resolution



    • communication between parties for persuasive purposes and settlements
      or resolution,



    Negotiation
  2. the use of a neutral third to assist in voluntary resolve
    Mediation


    • alternative to litigation; parties select third party to hear and decide their case. can be binding and nonbinding.







    Arbitration
  3. Alternative Dispute Resolution
      • Med-Arb
      • Private judging
      • Ombudsperson
      • Expert fact finding
      • Early neutral evaluation
      • Mini-trial
      • Summary jury trial
      • Collaborative Law
      • Partnering
  4. alternative to litigation; parties select third party to hear and decide their
    case, can be binding and nonbinding.
    Arbitration
  5. -Generally private
    -Requires passive approval of government, as awards are ultimately enforceable in the courts
    -Voluntary
    -Pre-dispute agreement provides that arbitration
    -will be used to settle disputes arising between the parties.
    -Post -dispute agreement.
    -Involuntary– Some states require use before court trial
    Forms of Abitration
  6. individual who conducts a hearing and acts as finder of both law and fact (as both judge and jury) and
    renders a decision.
    Arbitrator
  7. Attorney’s fee arrangements
    • Hourly Fee, Flat fee (paid in
    • Installments), a contingency fee or a combination of these methods.
  8. When client’s interests are at odds w/another’s because the attorney serves, might
    serve, or is tempted to serve the other.
    Attorney conflict of interest
  9. Selected ethical issues/ethical obligation
    • -Attorney-client privilege
    • -conflict of interest
    • -confidentiality
  10. Other Ethical Issues
    • -Specious Lawsuits
    • -Keeping in Contact w/client
    • -solicitation
    • -Fee splitting
    • -Malpractice
    • -Returning client materials
    • -Opposing counsel is not permitted to communicate w/another attorney's client
  11. Rules of conduct promulgated by lawyer-governing bodies to proscribe standards of professional behavior and regulate lawyer and judicial conduct
    Ethics/Legal Ethics
  12. Rules promulgated by lawyer-governing bodies to proscribe standards of professional behavior and regulate lawyer and
    judicial conduct.
    Ethics/Legal Ethics
  13. Various Methods of resolving disputes through means other than the judicial process; To reduce court congestion and avoid undue cost and
    delay to make resolution more accessible and provide options
    Goals of ADR
  14. someone with specialized training who assists an attorney
    Legal assistant/paralegal
  15. Is a civil cause of action that may be brought by a client against an attorney for negligence or intentional wrongdoing. Negligence arises, in this context, out
    of attorney carelessness or professional misconduct. A wrongful act is not sufficient to. The client must have suffered a loss as a
    consequence of the bad act.
    Legal malpractice
  16. A private , voluntary informal form of dispute resolution in which attorneys for each disputant make a brief
    presentation of his or her best case before official for each side who have authority to settle.
    Mini-trial
  17. A form of negotiation with the addition of a skilled third party expert who assists (facilitates) the parties to negotiate their own resolution
    Mediation
  18. -Not binding unless parties sign an enforceable contract
    -Neutral does not make a decision
    -Private while litigation is public
    -Parties remain in control of decision rather than relinquishing control to government or third party
    -Mediator facilitates agreement instead of imposing a resolution
    -Non-adversarial while litigation in U.S. Is adversarial
    forms of Mediation
  19. communication between parties for persuasive purposes and settlements or resolution, Two-way communication for the purpose of
    persuasion
    Negotiation
  20. - Bargaining process in which parties plan the future, structure a transaction, or fix a problem
    - Voluntary and informal
    - Skill that can be developed and improved
    - Should be used early in litigation process
    Forms of Negotiation
  21. A right and duty one has to withhold communications from legal proceedings because of some special
    relationship (e.g., attorney-client, physician-patient, husband-wife, priest-penitent)
    Privileged communication
  22. To defend oneself
    Pro se
  23. only license attorneys may perform legal services. Technical training, a commitment to public service, and a pledge to follow standards of practice.
    -Education
    -Competency examination
    -Character assessment
    -Fiduciary relationship(A position of trust undertaking to act for the benefit of another) & G.H.F
    Requirements to practice law
  24. Types of attorney discipline
    • -Disbarment
    • -Suspended from practice for a stated period of time
    • -Probation
    • -Reproval (public or private censor)
  25. when a plaintiff with knowledge of the facts of a dangerous condition voluntarily exposes himself or
    herself to the particular risk of injury.
    Assumption of the risk
  26. are procedural devices whereby groups of injured persons who are similarly situated can obtain redress in a single lawsuit,
    rather than filing hundreds or even thousands of separate cases.
    Class actions
  27. amount awarded by a court to make good or replace the actual loss suffered by a plaintiff..
    Compensatory damages
  28. - amount awarded by a court, to the victim of an intentional tort, in addition to compensatory damages;
    designed to punish the tortfeasor and serve as an example to others.
    punitive damages
  29. insignificant amount (such as $1) awarded by a court when the defendant has violated the rights of the plaintiff
    but no monetary loss has been suffered or can be proved.
    nominal damages
  30. Unauthorized taking of the personal property of another and wrongfully exercising rights of ownership.
    Conversion
  31. Defenses to allegations of negligence
    • -Assumption of the risk: Voluntary
    • entry into a risky situation, knowing the risk involved
    • -Comparative negligence: Doctrine enables both the plaintiff’s and

    • the defendant’s negligence to be computed, and the liability for damages
    • distributed according to relative fault .
    • Apportionment of damages between parties at fault


  32. Elements which must be proven in a negligence case
    (duty, etc)
      • -Duty or obligation recognized by law to conform to a certain degree of care
      • -Breach of the duty
      • -Breach of the duty is the “cause in fact” of the harm
      • -Proximate cause of the injury
      • -Resulting damages


  33. One who enters another’s land with the permission (implied or express) of the owner or occupier, for a matter of business benefiting the owner or occupier- the them, the owner owes a high duty of care for their safety.
    Invitee
  34. uninvited, generally unexpected, and unwanted. Minimal duty is owed –owner/occupier must not set traps or spring guns to thwart or
    hurt tresspassers or intentionally hurt them but warn them of man-made risks (e.g. an attack guard dog.)
    Trespassers
  35. Financial condition of a person who lacks the assets to pay any judgment rendered agains him or her.
    Judgment proof
  36. to reimburse for loss do to injuries or there of, Medical bills, property loss, loss of wages and/or future
    “lost” income that cannot be earned because of the plaintiffs injuries; also to compensate for physical impairment (spinal injury or broken arm) mental
    anguish, and/or pain and suffering.
    Need for damages
  37. failure to act as a reasonable , carfulperson would act under the same similar circumstances, therby causing injury that was
    foreseeable.
    Negligence
  38. Law holding manufacturers and sellers of goods liable to buyers, users, and perhaps by standers for harm caused by defective goods.
    Product liability
  39. Law holding manufacturers and sellers of goods liable to buyers, users, and perhaps by standers for harm
    caused by defective goods.
    Product liability
  40. an action that in natural and continuous sequence, unbroken by an intervening force or cause, produces
    the injury, and w/out which the effect or result would not have occurred, Furthermore the result is not entirely outside the range of expectation or
    probability.
    Proximate cause
  41. a doctrine under which negligence is inferred when a the instrumentality causing the injury was under control of
    the defendant and an injurty occurred that normally would not occur in the absence of negligence by the defendant. This Doctrine is frequently rlied on by
    victims of medical malpractice.
    Res ipsa loquitur
  42. a tort theory available in apecial situations determined by pubic policy where a person is held responsible for harmoccuring to another w/out proof of fault (e.g., inherently
    dangerous activities, wild animals, explosives, sale of defective products).
    Strict liability
  43. Be able to list and briefly define/describe four intentional torts:
    • Slander – Oral defamation; the speaking of false words to a third person tending to cause
    • injury to the reputation of the victim.

    Defamation - false statement injuring the reputation of the victim

    • Assault – The tort of creating apprehension in the mind of the victim that he or she is about to
    • be touched in a harmful or an offensive way. There is no requirement that the
    • actor have the present ability to inflict actual harm.

    • Battery – Any harmful or offensive touching of another human being w/out excuse or consent.
    • Usually (but not necessarily) battery involves violent infliction of injury.
  44. (AMD) Instructions prepared in advance of a life threatening condition as to what care should be given or not given in the event
    of incapacitation.
    Advanced Medical Directive
  45. – A document authorizing another person to make healthcare (and sometimes other) decisions for a person even after
    he/she has become incapacitated.
    Durable Power of Attorney

  46. -Comply with the decedant’s special instructions for funeral and burial




    - Locate

    witnesses to the will



    - Notify

    heirs (i.e., persons who would get the estate if there were no will) and

    beneficiaries named in the will, preferably meeting w/them, if convenient.
    (these services are provided by the lawyer )













    Duties of an executor
  47. The process of arranging a person’s property and estate, taking into account the laws of wills, taxes,
    insurance, property, and trusts so as to gain maximum benefit of all laws while carrying out the person’s wishes for use of the property during his or her
    lifetime and disposition of the property upon his or her death.
    Estate planning
  48. A person name by testator to dispose of her or his estate after death as directed in the will and in compliance with law.
    Executor
  49. A person appointed by a court to supervise disposition of the estate of a decedent who dies w/out leaving a valid will.
    Administrator
  50. Undue Influence are grounds to contest a will or is the there is proof that the decendant was in a weakened state.
    Grounds for Contesting a will
  51. Persons designated by law to receive the estate of a decedent who leaves no will.
    Heirs
  52. a tax imposed by most states on the privilege of receiving property from a decedent.
    Inheritance tax
  53. The status of a person who has died w/out leaving a valid will.
    Intestate
  54. a document , usually authorized by state statute, that directs any attending physician to comply with the
    wishes of the drafter regarding the use of life support systems in the treatment of a terminal illness.
    Living will
  55. – is the court prceeding when wills are proved to be valid or invalid and where estates of decedents are
    administered and ultimately properly distributed. Serves several useful purposes, creditors can also can also submit claims for payment
    from the decedent’s estate.
    Probate
  56. Revocation can be partial or complete, and is should follow certain specified formalities. A testator can
    revoke a will by a physical act such as intentionally burning, tearing canceling, obliterating or destroying it.
    Revocability of a will
  57. Be able to list the usual requirements for a valid will :
    • - Must be written, typed or printed and signed by testator
    • - There must be a witnessed present or a notary public.
    • -testator must be of sound mind and legal age.
  58. an offense against the public resulting from violation of a criminal statute.
    Crime
  59. The guilty stat of mind necessary for a person to be held responsible for a particular crime.
    Criminal intent
  60. Two elements must exist simultaneously before a person can be convicted of a crime:
    - Specified state of mind or intent on the part of the person
    - Performance of a prohibited act
    - beyond the reasonable doubt
    Criminal guilt
  61. Civil presentpreponderance of evidence are usually compensatory or punitive damages notresulting in jail time.
    . civil liability
  62. The Body of the Crime; The two essential elements of every crime: evidence that (a) harm has occurred, (b)most probably because of a criminal act.
    Corpus delicti
  63. Criminal punishment in which the duration of sentence in jail is totally disproportionate to the offense, or the
    prisoner is subjected to inhuman roture or merciless abuse, or the method of
    the punishment is unacceptable to society or the punishment is arbitrary. Cruel
    and unusual punishment is prohibited by the eighth amendment to the U.S. Constition.
    Cruel and unusual punishment
  64. Defense to criminal conduct - An attempt to defeat the criminal prosecution
    • -Intoxication: Extreme levels of intoxication may make it impossible to form the criminal intent required in a particular crime
    • -Duress: Any threat of, or actual, physical harm that deprives a person of the freedom of will to choose and decide
    • -Justifiable Use of Force
    • -Self-defense is the right to protect oneself, or members on one’s immediate family, from the criminal conduct of others
    • -The use of force is justified to defend one's self, house, and property and to prevent a crime
    • -A person can only use the amount of force necessary under the circumstances
    • -A reasonable belief that death or serious bodily harm will otherwise result
    • -Attacker is using unlawful force. (In contrast, an example of lawful force is that exerted by a police officer)
    • -Victim did not begin or cause the attack
    • -Entrapment - Occurs if a police officer

    • or other government agent suggests to a person to commit a crime and

    • somehow induces or encourages the person to commit it

    • -Statute of Limitations - Witnesses die or

    • disappear, people forget, and evidence is destroyed


  65. The court made rule that precludes the use in criminal court proceedings of any evidence improperly obtained by the prsecution.
    Exclusionary rule
  66. Any crime for which the motivation was persecution of a victim because of race, religion sexual orientation, or political beliefs.
    Hate crimes
  67. Any minor crime (e.g., parking violation) that is not punishable by incarceration, but only by fine. Accordingly, trial by jury is
    not required or permitted.
    Infraction
  68. a defense to a crime based on some mental disease or defect. Leaving a person incapable of determining right from
    wrong.
    Insanity defense
  69. The highest degree of criminal culpability, characterized by a cold and malignant heart and a mental
    predetermination to do the wrongful act without legal justification or excuse.
    Malice/malice aforethought
  70. release of a convicted criminal from all punishment for this or her crime through an act of the governor of the state or president
    Pardon
  71. Release from a prison on specified condition involving good behavior.
    Parole
  72. a binding agreement in which an accused agrees to plead guilty (or nolo contendere) if the court agrees to a specified punishment
    in advance.
    Plea bargain
  73. An examination in aopen court by a judge to determine whether sufficient evidence exists to hold the accused for trial.
    Preliminary hearing
  74. A statute that protects victims from courtroom questioning about prior sexual experiences with persons other
    than the defendant.
    Rape shield statutes
  75. a violation of a rule promulgated by an administrative agency.
    Regulatory offense
  76. A repeat criminal offender (three strikes, your out rule) no less than 25 years in prison.
    Recidivist laws
  77. if you or immediate family or household are in genuine and reasonable fear of
    imminent danger of great bodily injury or possibly death, you may use Deadly
    resistance. NOT so if the perpetrator retreats in any point.
    Right to self-defense
  78. Miranda warnings (1)of the right to rmain sielent,(2)
    that anything said can and will be used against himor her ina court of law, (3)
    THAT He or she is entitled to the presence and aid of a lawyer during
    questioning, and (4) that is he or she cannot afford to hire counsel, one will
    be provided free of charge. Privilege against self-incrimination right to remain silent during
    trial if what is said could possibly indicate guilt.
    Rights of the accused
  79. illegal search or seizure
    Searching without a warrant
  80. Proof that an accused had a particular purpose in mind when engaging in illegal conduct
    Specific intent
  81. (a) harm has occurred/Performance of a prohibited act
    (b) most probably because of a criminal act. Specified state of mind or intent on the part of
    the person
    Two elements required for most crimes
  82. crimes against a person
    • -Manslaughter - Voluntary manslaughter: an
    • intentional killing of a person without malice aforethought Involuntary manslaughter: accidental
    • killing
    • -Extortion - Obtaining something of value from a person by force, intimidation, or undue or illegal power
    • -Assault - Threat of violence upon another person and
    • - Battery - Unlawful application of force to another human being without excuse or consent
    • -Robbery -Stealing property from another person in his or her immediate presence through the use of force or fear
    • n Armed
    • n Car jacking
  83. describe two crimes against property
    • - Arson: Intentional and malicious burning of
    • a building or other property for unlawful purposes
    • -Burglary: Unlawfully entering premises, and structures, and vehicles with intent to commit larceny (theft) or any other felony
    • -Home invasion burglary: Burglary of occupied residence using violent means to take occupants property

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