Law Exam

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aurora
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872
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Law Exam
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2009-11-10 02:31:52
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  1. Civil Law
    What standards of proof are used?
    • Law that deals with harm to society as a whole.
    • Preponderance of the Evidence- (Commonly Used)- evidence presented must prove that it is more likely than not ht defendant committed the wrongful act.
    • Clear and Convincing- (used occasionally in higher standard)- Evidence presented must be greater than a preponderance but less than beyond a reasonable doubt.
    • Exp, Someone facing involuntary commitment to mental ward.
  2. Criminal Law
    What standard of proof is used?
    • Law that deals with harm to an individual. (legislative branch decides consequences of certain acts deemed criminal)
    • Beyond a Reasonable Doubt- The evidence presented must be so conclusive and complete that there are no reasonable doubts regarding the guilt of the accused.
  3. Names of Parties in Claims?
    • Plaintiff(state in criminal cases)
    • Defendant
  4. Sanctions/Remedies in Criminal and Civil Cases
    • Civil Cases
    • 1)Damages- Monetary Compensation
    • 2)Injunction- Court orders defendant to take specific action or cease acting in a specific way.
    • Criminal Cases
    • 1)Loss of Liberty- probation, jail, death
    • 2)Financial Penalty- If victims want compensation- they usually need to file a civil suit.
  5. Sources of Law
    Criminal
    Civil
    • Criminal- Almost entirely Statutory
    • Civil- Common Law (mostly)
    • *reminder* its not double jeopardy when defendant gets a civil & criminal case brought against them for one offense!*
  6. Criminal Law- Type of Crimes
    How are they categorized?
    • Felony- Serious crime usually carrying a prison sentence of one or more years. (rape, murder, assult)
    • Misdemeanor- Minor crime not amounting to a felony. Less than a a year in jail or a fine. (Disorderly conduct, damage to property)
    • Categorization:
    • a)Crimes against Persons- Homicide, Kidnapping, Rape, & Assault.
    • b)Crimes against Property- Theft, Robbery, Arson, & Trespass.
    • c)Crimes against Public- Health or Decency, Drug Offenses, Bribery, Gambling, or Prostitution
    • d)Crimes against Government- Treason & Official Misconduct
  7. Prima Facie Case
    What must be proved to convict someone in a criminal case?
    • One that establishes elements of the crime, requisite bad intent and behavior. *Must have enough evidence for guilty verdict if the defense presents no contrary evidence*
    • 1)Mens Rea- Bad Intent
    • 2)Actus Reus- Bad Act
  8. Criminal Defenses
    • 1)Justifies the Act- Self Defense
    • 2)Negates Mens Rea- Argues they had no choice (insanity, intoxication)
  9. Civil Law- establishing Prima Facie Case
    • Cause of Action- A claim that based on the law and the facts is sufficent to support a lawsuit. (required for Prima Facie)
    • Plantiff must prove various elements listen in complaint and show they have a valid cause of action.
  10. Civil Defenses
    • Affirmative Defense- Where the defendant offers new evidence to avoid judgment
    • Sovereign Immunity- Prohibition against suing the gov't without the gov't's consent. Limitations on suing gov't officials directly- some have absolute immunity and others have qualified immunity- can be sued but to receive damages must prove the acted in bad faith.
    • *Different defenses available depending on the area of law*
  11. Civil Damages
    • If the court determines plaintiff should recover, the issue of damages arises:
    • A)Compensatory Damages- Money awarded to plantiff in payment for their Actual losses
    • B)Punitive Damages- Money awarded to a plantiff in cases of intentional torts in order to punish the defendant and serve as a warning to others.
    • C)Nominal Damages- Token sum awarded when liability has been found but monetary damages cannot be shown. (injunction can also be issued)
  12. 3 Areas of Civil Law
    • 1)Contracts- An agreement supported by Consideration. To be a contract there must be: An offer, an acceptance of the offer, and consideration- something of value must be exchanged.
    • 2)Property Law- deals with ownership. 2 Categories: A)Real property- land and objects Permanently attatched to land B)Personal Property- All other property
    • 3)Tort Law- Law that deals with harm to a person or a person's property (Private Wrong) - intentional tort, negligence, strict liability.
  13. Litigation
    3 Stages of Litigation
    • A lawsuit;controversy to be settled in court
    • Pretrial, Trial, Appeal
  14. Pretrial
    Pleadings
    Pretrial Motion
    Discovery
    • Pleadings- papers that begin a lawsuit (complaint and answer)
    • Pretrial Motion- Motion brought before the beginning of a trial to either eliminate the necessity for a trial or to limit the information that can be heard at the trial.
    • Discovery- One party gains information from the adverse party
  15. Parties in the Suit
    Standing
    Judgment Proof
    Class Action Lawsuit
    • Standing- ONLY parties with a real stake in the outcome are allowed to participate in the lawsuit. (no advisory opinions)
    • Judgment Proof- when the defendant doesn't have enough money to pay the judgment, then the attorney will sure someone involved who has more money.
    • Class action lawsuit- Lawsuit brought by a representative for a group of people similarly injured.
  16. Selecting the Court
    Determining Jurisdiction
    • 1)Subject-Matter Jurisdiction- power of a court to hear a particular type of case- type of law involved
    • 2)Personal Jurisdiction- power of a court to force a person to appear before it.
    • *minimal contacts- they must have a minimal amount of contact with state for state to have jurisdiction*
  17. Statute of Limitations
    Exhaustion of Administrative Remedies
    • The law sets forth a length of time a person has before they are barred from bringing forth lawsuit
    • the requirement that relief of situation be sought from an administrative agency before proceeding to court (if applies)
  18. Pleadings:
    Complaint
    Summons
    Answer
    Other
    • -documents that each side files with the court that serves to commence a lawsuit.
    • Complaint- initial file plaintiff files to begin lawsuit. Consists of allegations of facts constitute a cause of action. Summon-Notice Pleading- method adopted in which the plaintiff simply informs the defendant of the claim and general basis for it. Proper service Must occur.They are informed they must respond or risk loosing the suit.
    • Answer- Defendant's reply to the complaint. It can contain statement of denial, admission, lack of knowledge. Also can use; Counterclaim, affirmative defense, cross-claim, third party claims also occur.
  19. Pretrial Motions To End Litigation
    Rule 12 Motions 12(b)(6)
    Rule 56 Motion for summary judgment
    • Rule 12(b)(6)- request that the court find the plaintiff has failed to state a valid claim & dismiss the the complaint.- Plaintiff has has stated a claim to the court which the court cannot give relief. No trial. Reasons for use: lack of jurisdiction, improper venue, insufficient process or service of process, failure to state a claim.
    • Rule 56- Request that the court grant judgment in favor of the moving party because there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Similar to above Except, the court also considers matters outside the pleadings. If documents show: a)no genuine issue as to the material fact b)moving party is entitled to a judgment as a matter of law. Then, the court will grant the motion and enter judgment for the moving party.
    • *The decisions made regarding both these issues are appealable. if decision is reversed case goes back to trial*
    • *Purpose of a trial is to get facts. If facts are known, no need for trial.*
    • *These motions can also only apply to one aspect of the case if wanted*
  20. Discovery:
    Interrogatories
    Depositions
    Requests for Admissions
    Requests for documents and physical exams
    • Interrogatories- Written questions sent by one side to the opposing party. Answered under oath. (only sent to parties involved, limit on how many can be sent) Flawed since a lawyer for client can review answers before sending answers back)
    • Depositions- Pretrial oral questioning of a witness under oath. (party or nonparty) Its like a "minitrial", other attorney can object or crossexamine. Mainly used to preserve testimony is witness won't be available for trial or to make sure story won't change.
    • Requests for Admissions- written doocument that lists statements regarding specific facts for the party to admit or deny.
    • Requests for Documents/Physical Exams- These can be obtained through:
    • Subponea Duces Tecum- Court order that person in 3rd party appear at the trial or deposition and bring requested documents.
  21. Alternative Dispute Resolution:
    Arbitration
    Mediation
    Summary Jury Trials
    • Alternatives to full-scale litigation.
    • Matter is delegated to a neutral 3rd party arbitrator who acts as judge. The decision is usually binding that the judge reaches.
    • Neutral 3rd party assists the parties in reaching a mutually agreaable, voluntary compromise. Works best with cases like custody battles or neighbor disputes or with torts when the dispute only rests on amount of the damages.
    • Nonbinding process in which attorneys for both sides present synopses of the cases to a jury who renders an advisory opinion on the basis of these presentations.
  22. Right to a Jury Trial
    Used commonly in criminal cases. But can be used in civil cases but the state defines the extent of this right. Jury is used to resolve factual questions raised in the case. in cases with damage awards jury must decide how much.
  23. Jury Selection
    Voir Dire
    Challenges a Attorneys can raise to prevent people from serving on jury
    • Voir Dire- An examination of a prospective juror to see if they are fit to serve as a juror. (Marks beginning of case)
    • Challenges that can be raised:
    • 1)Challenge for Cause- method for excusing a prospective juror based on the juror's inability to serve in an unbiased manner. Requires judges agreement. (no limit to the challenges raised/granted)
    • 2)Preemptory Challenges- method for excusing a prospective juror; no reason need be given. (limited times this can be used)
  24. Opening statement
    Presentation of Evidence:
    Direct examination
    Cross Examine
    Directed Verdict
    Closing Arguments
    • Attorneys make opening statements where they outline evidence they hope to present. Plaintiff goes first, defense can go after or when plaintiff has finished presentation of evidence.
    • Direct examination- Questioning of your own witness. You cannot ask:
    • Leading Question- One that suggests the answer.
    • Cross examination- questioning of opposing witness. Clarifies any misleading statements or half truths. MAY ASK LEADING QUESTIONS.
    • ~This is followed by redirect examination, then followed with a opportunity for recross-examination for defendants.
    • *Lawyers MUST object at appropriate times for sake of an appeal*
    • Directed Verdict- a motion moved by the defense after plaintiff is done presenting evidence. - A verdict ordered by trial judge if the plaintiff fails to present a prima facie case or if defendant fails to present a necessary defense.
    • Closing Arguments-Attorney review/interpret their evidence in favorable light as last attempt at persuading jury.
  25. Jury
    Post Trial Motions:
    1.Judgment Notwithstanding the Verdict
    2.Motion for a New Trial
    • Jury deliberates and declares a verdict, mistrial, and may decide on the damages owed.
    • Losing party has a limited amount of time to file post trial motions.
    • 1. request of judge to reverse jury's decision on the basis that the evidence was legally insufficient to support verdict. If granted, case is over, moving party won.
    • 2. request for a new trial due to a procedural error tainting the outcome. Exp, evidence admitted that shouldn't have
  26. The Appeal
    Appellate Brief
    Scope of Review
    Clearly Erroneous
    Independent Review
    If error is found:
    Harmless
    Reversible
    Trial court decision is:
    affirmed, reversed, remanded
    • An attorney's written argument presented to appeals court. states how law should be applied to the case facts of the client.
    • They deal Only with legal issues. RARELY, will they review a trial's findings of fact. They disregard court's findings of fact unless they are found to be..
    • Clearly Erroneous-standard used by appellate courts regarding fact reviews-convinced the trial court made a mistake.
    • Independent Review- standard used when legal aspect dominate
    • Harmless- Not sufficient to warrant reversing decision
    • Reversible- sufficient to warrant reversing decisions.
    • *Further appeals are only discretionary from here, not a right*
  27. Tort
    Restatement of the Law of Torts, Second
    3 Categories?
    • can occur when someone hurts you, slanders you, damages your property. "Private Wrong"
    • A secondary source, written by legal scholars summarizing existing common law and suggesting what the law should be.
    • Intentional, Negligence, Strict Liability
  28. Intentional Torts
    Assault
    Battery
    Proving Assault
    Proving Battery
    Defenses for Assault and Battery
    • Whenever someone Intends to do an action that results in harm to a person
    • When someone reasonably fears that they are about to suffer harm.
    • Intentional harmful or offensive physical contact
    • Must show for Assault: A) Intentional Act B)create Reasonable Apprehension of C)an Immediate harmful or physical contact
    • Must show for Battery: A)Intentional Act B)that Creates A Harmful or Offensive Physical Contact
    • *Court is interest in Intent not motives*
    • Defenses: consent, self defense, defense of others or property.
    • *Plaintiff must have used necessary force to stop battery*
  29. Intentional Tort:
    False Imprisonment
    Proving False Imprisonment
    Defamation- Slander and Libel
    Proving Defamation
    Defamation Per Se
    Defamation of Public Figures
    • occurs whenever a person, through force or threat of, unlawfully detains another person against their will. (susually with store employees and shop lifters)
    • A)intentional act B)caused confinement or restraint C)Through force or threat of force
    • *must of had no way of escape*
    • Remarks to harm a person's reputation
    • slander-spoken
    • libel-literary
    • A)Publication B)of False Statements C)that cause Harm to Reputation (loss of job etc)
    • Defamation Per Se- statements found so harmful that they are automatically viewed as damaging. (requires no proof)
    • Defamation of public figure requires 4th element of proof- Actual Malice- Reckless Disregard.
  30. Intentional Tort:
    Invasion of Privacy
    Defense for Invasion of Privacy
    Intentional Infliction of Emotional Distress
    Proving Intentional infliction of Emotional Distress
    Harm to a Person's Property:
    Trespass to land OR
    Personal Property
    Conversion
    Defenses to Property Torts
    • Disclosure, Intrusion, Appropriation, False Light
    • "News-worthinesS"
    • "Tort of Outrage"-new tort that allows plaintiffs to recover for emotional distress even when absent of another injury.
    • A)Intentional Act B)That's extreme and outrageous C)Causes D)Severe Emotional Distress
    • Trespass to land occurs when: A)Someone Enters or makes something Remain B) On the Land of another C)Without Permission
    • Trespass to personal land occurs when someone harms/interferes with the owner's exclusive possession of property but has no intention of keeping property Exp, letting dog loose.
    • Conversion-taking of someone else's property with the intent of permanently depriving the owner.(civil side to theft)
  31. Negligence
    Elements of negligence:
    Duty
    Breach
    Res Ipsa Loquitur
    Cause
    • Failure to act as a reasonably and be careless with no conscious intent to injure anyone
    • A)must Owe Duty to plaintiff to act reasonably. B)defendant must have Breached duty C)Causing D)Harm
    • "how a reasonable person would act". Your duty to others depends on your relationship to the person.
    • *issues of duty usually revolve around whether the plaintiff was someone who the defendant could foresee would be harmed by his actions*
    • to determining if someone breached their duty they must decide if this is what a reasonable person would've done in that situation.
    • Res Ipsa Loquitur- "The thing speaks for itself"- doctrine that suggests negligence can be presumed if an event happens that wouldn't ordinarily happen unless someone was negligent.
  32. Negligence:
    Cause
    "But For" standard
    Proximate Cause
    Intervening Cause
    Defenses to Negligence:
    Contributory Negligence
    Last Clear Chance
    Assumption of Risk
    Comparative Negligence
    Reckless behavior
    • Common test where it's necessary to establish that if the defendant hadn't acted in that matter, the plaintiff wouldn't have been injured. Sometimes there are more than one cause of injury, it must be determined what played a substantial factor
    • Once actual cause is found, the court must also find that the act and resulting harm were so foreseeably related as to justify a finding of liability. Defendant will not be held responsible for Every consequence of every action.
    • After defendant has acted negligently sometimes another factor intervenes that Contributes to plaintiff's injury
    • Contributory negligence- Negligence by the plaintiff that contributed to their injury. Bars them from receiving recovery sometimes
    • Last Clear Chance- Despite plaintiffs contributory negligence, defendant should still be liable if the defendant was the last one in a position to avoid the accident. Exp, worker at store never stops out of control kid from running down wet aisle.
    • Assumption of Risk- voluntarily and knowingly subjecting oneself to danger
    • Comparative negligence-method for measuring negligence relative to the plaintiff and defendant. Measured in percentages.
    • Reckless behavior-disregarding a substantial & unjustifiable risk that harm will result. Willful, and Wanton as well. Requires conscious choice of a course of action with knowledge that it will create a serious danger to others. Indifferent.
  33. Strict Liability
    Ultrahazardous Activity
    Six Factors
    Products Liability
    New Torts
    • Liability without having to prove fault.
    • Activities that have an inherent risk of injury and therefore may result in strict liability (demolishing buildings)
    • Restatement of Torts list the 6 factors that courts review in determining if defendant should be held strictly liable when engaging in these activities: 1.exist a high degree of harm to the person/land 2. likelihood of harm is great 3.inability to eliminate the risk completely 4. activity is not a matter of common usage 5.inappropriateness of activity in that place 6.value to the community is outweighed by its risk
    • Theory holding manufacturers and sellers liable for defective products when the defects make the products unreasonably dangerous.
  34. Look at Notes for new Torts
    This test will be easy. Don't worry! =]

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