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93 Cards in this Set

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What the law refers to?
Rules of conduct which society follows.
Where America got its law from?
U.S. adopted England Common Law. Louisiana adopted French Common Law.
Where America developed its own law?
American adopt laws through Congress.

Legislature creates codes and status.

Administrative agencies create codes and regulations.

Cities create ordinances.

Judges create case law.
What is Civil Law?
An individual files action against another individual seeking a remedy of equity or money.
What is Criminal Law?
State or federal government brings action against an individual seeking a remedy of punishment.
History of Civil Law
Court of Law: the remedy given was monetary recovery.

Court of Equity: the remedy given was non-monetary recovery, injunction, and specific performance.

*only one court
Describe the concept of Stare Decisis
Let the decision stand.

Courts follow previous case law but if society changes, the law will change.
Define 133 F.3d 433
133 - volume of the book to find case
F.3d - Federal 3RD editor find the case
433 - page number
What is Plaintiff?
Plaintiff is the individual who files the law suit.
What is Defendant?
The defendant is the party being sued.
Define of CA Judicial System
2 trial courts:
Superior Court- Limited
Superior Court- Unlimited

CA Supreme Court
CA Court of Appeals
CA Superior Court Limited/Unlimited
Describe of Superior Court Limited
Civil up to $25k.

Criminal cases: infractions (fine, traffic ticket, jay walking) and misdemeanors (up to 1 year in jail)

Small claims
How small claims court is unique?
Civil up to $5K.
No attorney representation.
No jury.
Plaintiff waives right to appeal.
Speedy and inexpensive.
Describe of Superior Court Unlimited
Civil over $25K.

Criminal cases: felonies (over 1 year in prison)

*** Specialty departments ***

Family Law - dissolution, child support, paternity, child custody, restraining orders, adoptions, alimony.

Probate - wills, trusts, guardianships, conservatorships.

Juvenile - abused, neglected minors, no jury, not open to the public.

Appeals - hear small claims cases in limited.

Writs - handles matters of equity.

Mental Health - committed acts that are incapacitated (harmed).
Define of CA Supreme Court
Hears appeals from the CA Court of Appeals and hears death penalty.
Define of CA Court of Appeals
Judges review case and lawyer's briefs.
Federal Court System
U.S. Supreme Court
U.S. Courts of Appeals
U.S. District Courts
Identify Federal Court System
1. Federal Crimes
2. Federal Questions
3. Immigration
4. Bankruptcy
5. Patent, Copyright, and Trademark
6. Admiralty/Maritime
7. State v. State
8. Diversity of Citizenship (min. $75K)
9. Admin. Agency - EPA, FCC, FDA
Subject Matter Jurisdiction
Power/ability of a court to hear a case.
Personal Jurisdiction
Courts ability to make a decision that affects a party.

1. Resident of a state
2. Doing business within a state
3. Incorporates within a state
What is Venue?
Location.
What is Standing to Sue?
Plaintiff must show defendant caused them harm.
What are the 2 Alternative Dispute Resolution (ADR)?
Arbitration and Mediation.
What is Arbitration?

What is the reasons?
Independent 3rd party makes a decision about the dispute.

Reasons:
1. Private
2. Less expensive
3. Speedy
What are the 2 types Arbitrations?
Judicial - not binding decision.

Contractual - binding decision.
What is Judicial Arbitration?
Judge orders to arbitration. Not binding decision.

Trial de novo - appeal
What is Contractual arbitration?
Parties agree to arbitrate a dispute.

No right to appeal.
Binding on parties
What is Mediation?
Independant 3rd party helps the parties resolve a dispute.

*No decision is made in mediation.
3 different ways to hire an attorney
1. Contingency Fee - Percentage of recovery and fee contingent upon recovery.
*Personal injury = 25-40%
*Worker's comp = 16-18%

2. Hourly fee - fee charged by the attoney by the hour. $250 is the average.

3. Flat fee - set dollar amount at time of hire representation.
What does the term statute of limitations refer to?

4 different statute of limitations
Time period to file a lawsuit.

In CA:
1. Personal injury - 2 years
2. Properly damage - 3 years
3. Breach oral k - 2 years
4. Breach written k - 4 years
What is Complaint?
First document filed to begin lawsuit.
What is Summons?
Order to appear.
If the defendant receives Complaint and Summon and what the defendant do?
1. Defendant can file an answer
-admit/deny

2. Defendant can file a Demurrer
- Defective complaint = defendant wants judge to dismiss

3. Defendant can do nothing
- Plaintiff can file a default
What does the term Discovery refer to?

6 types of Discovery used in Civil cases
Finding the truth.

1. Interrogatories - written questions that require a written responses under oath.

2. Deposition - oral question/answer period between attorney/witness or party under oath with transcribed by court reporter.

3. Subpoena: order to appear a person or document.

4. Production of Document - order to produce documents requested (medical records, photographs, witness statements).

5. IME (Independant Medical Examination) - defendant's doctor review the plaintiff's injuries.

6. Production of Evidence
Jury Selection Process

Whose speaking the truth?
Voir Dire - to speak the truth

The jurors.
What are 2 ways that a juror being questioned may be excused?
Cause and Preemptory challenge.

1. Cause - shown a prejudice or bias.
***no limit***

2. Peremptory challenge - juror is excused for no reason at all.
***limit***
Which of those 2 are limited in a number of jurors being excused?
Cause - no limit

Preemptory challenge - limit determine by judge
What are the civil and criminal cases must agree to vote?
Civil cases - 9 of 12 must agree

Criminal cases - 12 of 12 must agree
When the trial begins who gives the opening statements first?
1. Plaintiff -
Diagrams the case to be presented
Defendant can reserve the right

2. Plaintiff calls witnesses -> direct examination
3. Defendant -> cross examination
4. Plaintiff -> re-direct
5. Defendant -> re-cross
6. Plaintiff rests
7. Defendant's withness
8. Defendant rests
9. Closing -> plaintiff, defendant, plaintiff

10. Jury Instructions -> given by the judge - given at the end to allow jurors to listen to all evidence
What does J.N.O.V. stand for?
Judgment notwithstanding the verdict

Judge throws out the jury's verdict and replaces it with their own.
What is Constitution Law?
Helps us understand who has the authority to act.

United States government is a government of federalism.
Federalism
Division of power between state and federal gov't.
What is Commerce Clause?

What are the 3 examples of Commerce Clause in the book?
Gives Congress the right to regulate commerce.

**Heart of Alanta Motel v. US: hotel won't let African Americans stay there.

**Wicker v. Filfurn: man used crops to feed his own family did have an impact on interstate commerce because he didnt go out and buy goods.

**US v. Lopez: congress did overstep it's bounds, regulation of guns near schools...does not have an impact on interstate commerce.
What is Supremacy Clause?
A conflict between state and federal law.

Federal law will take precedence.
What is the first amendment protects 3 areas?
Speech, Religion and Assembly.
What areas are we not free to speak?
Fighting words: Not free to use words that will insight a riot. Individuals may be sued for damages as the result of their words.

Defamation: false statement that harm the reputation of another.

Obscenity: It's not protected. Judge uses community standards.
What 2 clauses come into the first amendment to protect an individual's right and religion?
Free exercise clause - allows people to practice a religion that they believe.

Anti- establishment clause - prohibits gov't to enforce citizens towards a certain religion.
What is the 4th amendment?

What is called to search someone's home?

What are the 3 areas for search warrant?
Freedom from illegal search and seizure.

A search warrant.

1. Place to be searched
2. Things to be seized
3. Probable Case
Name 3 exceptions to search warrant requirements.
Automobile - police always have right to search for weapons with wingspan entire passenger area.

Emergency situtation

Consent - voluntarily given
What is the 5th Amendment and what is that called?
Protects persons from having to testify against themselves.

Self incrimination - person charged for a crime does not have to give testimony.

Due Process - Right to be heard before life, liberty and property. 5th and 14th amendments.
What is a tort?

What are the 3 different areas?
It's a civil wrong.

1. Intentional
2. Unintentional
3. Strict Liability
What are the 4 names of Intentional Torts --> Person?
1. Assault - Intent, apprehension/fear of an immediate battery.

2. Battery - Intent, harmful or offensive contact.

3. False Imprisonment - Intent, plaintiff confined without resonable means of escape. Physical or mental confinement.

4. International Infliction of Emotional Distress - Intent, extreme and outrageous conduct in physical signs of emotional distress.
What are the 2 types of defamations?

What is the difference?
Slander and Libel.

Libel - anything put into a permanent form.

Slander - spoken/verbal and economic harm.

Unless Slander Per Se:
1. Crime
2. Disease
3. Profession/trade
4. Chastity
What is Negligence?

Name the elements necessary to prove negligence.
Someones actions fall below the standard of care.

1. Defendant -> Duty
2. Defendant -> Breach of Duty
3. Defendant -> Cause
4. Plaintiff -> Injuries/Damage
What are the 3 names and defintions of Defenses to Negligence?
Assumption of the risk - one voluntarily takes on a known risk.

Comparative negligence - both parties are at fault. Recovery is reduced according to the % of fault.

Contributory negligence - both parties are at fault, neither party can recover.
What is Good Samaritan Rule?
If someone gives aid to another - no liability will result to the rescuer.
What is Spam in Cyber Torts?

What is the tort that is being committed?
It's junk email.

Trespass to personal property.
What are the facts of the case and the rule of law for Palsgraf v. Long Island Railorad Co.?
Facts: A passenger gets on a moving train carrying a box and was helped by 2 employees of the station. 1 on the train pulling him on and the other 1 pushing him onto the moving train, and he dropped the box which caused a great explosion and it caused vibration through the railroad causing him to be injured due to a scale falling down on the head and it was caused by the vibration because it exploded.

Rule: In order to be a foreseeable plaintiff, the plaintiff must be in the zone of danger.
What are the 5 areas law imposes strict liability?
1. Fire
2. Dog owners
3. Trepassing livestock
4. Hazardous Activity
5. Wild Animals
What are the 3 areas of product liability under warranties?
1. Express warranty - affirmation of fact as to the description or quality of a product. (Ex: someone goes to a store and buys a can of paint and it says guarantee five years not to peel, and it only last two years.)

2.Implied warranty of merchandtability - all products sold under the UCC and foreseeable misuse. (Ex: someone goes to McDonalds and orders a Big Mac and gets ill.)

3. Implied warranty fit for a particular purpose - buyer relies on the seller's expertise and knowledge when purchasing the items.
What are the facts of the case and the rule of law for Greenman v. Yuba Power Products, Inc.?
Facts: Greenman’s wife purchased a Shopsmith for her husband and its defective and a piece of wood hits him in the eye. He sued under breach of warranty and negligence.

Rule: The court in this case actually allows strict liability for cause of action for consumers if injured by a defective product.
Name the 3 most common defects under strict liabilities cause of action
1. Design - all products found to be defective.

2. Warning - inadequate

3. Manufacturing defect

Defendant can be manfacturer, distributor and seller.

Plaintiff can be purchaser, user, or bystander.
What are the facts of the case and the rule of law for Martin v. Abbott Laboratories?
Fact: DES drug prescribed to many women. Women to whom they were pregnant and children born with birth defects. Some developed cancer.

Rule: Market Share Liability. All manufactures held liable according to their share of market.
What are the 5 Defenses to Product Liability action?
1. Assumption of the Risk - plaintiff voluntarily assumes the risk.

2. Commonly known dangers (ex. knifes)

3. Product misuse

4. Comparative negligence - both parties at fault

5. Status of Limitations - 2 yrs. from injury. Breach of warranty under UCC is 4 years.
What is Trademark?

How long is trademark good for?
Symbol, sign or logo that ID's the manfacturer of product.

Duration is unlimited.
What is trademark infringement?
In order to seek equity, one must come to court with clean hands - no wrongdoing.
What is Service Mark?

How long is service mark good for?
Symbol, sign or logo that ID's a provider of service.

Duration is unlimited.
What is Trade Dress?

How long is trade dress good for?
Overall appearance of a product or business.

Duration is unlimited.
What is the rule of law for Coca-Cola v. Koke case?
Rule: In order to seek equity one must come to court with clean hands - no wrongdoing.
What is Patent?

How long is Patent good for?
Registered invention with the federal gov't - new idea.

Patent lasts for 20 years then it becomes public domain.
What is Copyright?

How long is Copyright good for?
Artistic or literary expression created by an author.

Lasts for the life of the author plus 70 years.
What is "fair use doctrine" under copyright?
It's for educational purposes.

It must not be the entire expression created by an author but a portion.
In order to prove most crimes 2 elements are required.

What are they?
Corpus delicti - body of the crime.

1. Actus Rea - illegal act.
2. Mens Rea - (wrongful) mental state.
What are the 3 classifications of crimes?
1. Infraction
2. Misdemeanor
3. Felony
What is infraction?
Punishable by fine.
What is misdemeanor?
Punishable up to one year in jail.
What is felony?
Punishable over one year in prison.
What is robbery?
Unlawful taking of personal property from another by force or fear.
What is burglary?
Common Law:
Breaking and entering the dwelling house of another at night-time with intent to commit a felony therein.

Modern Law:
Breaking and entering the structure with intent to commit a crime.
What is arson?
Common Law:
Unlawful burning of another's dwelling.

Modern Law:
Unlawful malicious burning.
What is larceny?
Unlawful taking of personal property from another. It's by trick.
What is theft?
Unlawful taking of personal property.
What is forgery?
Making an alteration on a document with intent to commit fraud.
What is embezzlement?
Wrongful conversion of personal property.
Terms of 3 I's of defense to criminal law?
Infancy:
0-6 -> absolute presumption of incompetence.

7-12 -> presumption of incompetence maybe refuted by the state.

13-18 -> presumption of competence maybe refuted by the minor.

Insanity:
M'Naghten Rule/Test -> inability to know right from wrong.

Model Penal Code (MPC) -> must show a person is suffering from a disease of the mind that makes it incapable of showing the wrongful of their acts.

Intoxication:
Only if involuntary.
What is entrapment?
Gov't induces the defendant to commit the crime.

Defendant was not predisposed to commit the crime.
What is statute of limitations?
All crimes have a statute of limitions with the exception of one: MURDER.
What is the rule of law for Miranda v. Arizona?
Rule: Must always be given while in custody before interrogation.
What 2 entities may bring formal criminal charges against an individual?
District attorney - information.

Grand jury - indictment.
What is cyber stalking?
Use of computer to annoy, harass or threaten an individual.
What is cyber theft?
Use of computer to take information or property unlawfully.
What is cyber terrorism?
Use of computer to set a virus or bomb on computer system.
What is hacking?
breaking into a secured system of another.