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203 Cards in this Set
- Front
- Back
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Define contract
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A legally binding document
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Six Elements of a Contract
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Competent Parties
Legal Subject Matter Offer Acceptance Consideration Mutual Agreement |
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What are the methods of classification for a contract?
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Means of Formation
Stage of Performance Enforceability |
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What are the seven means of formation for a contract?
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Unilateral
Bilateral Express Implied Implied-in-fact Formal Informal |
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What are the two stages of performance in a contract?
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Executed
Executory |
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What are the three types of enforceability in a contract?
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Valid
Voidable Void |
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What is the Objective Theory of Contracts
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What would a reasonable person have intended
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What is customarily meant by the term implied contract?
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Not actually in the agreement, but understood by the parties as agreed to
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What are the rules of contract interpretation?
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Plain/common meaning rule
Rule of conflicting provisions Rule against ambiguities Rule of severability Parol evidence rule / exception |
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What are the parol evidence exceptions?
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Evidence of subsequent modification
Evidence that the contract is void or voidable Evidence of an ambiguity Evidence as to custom and usage Evidence of a mistake |
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What is the difference between a contract and a gift?
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Gift is not an agreed upon exchange,
A contract has an agreed upon exchange |
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What is an assignment vs. a delegation?
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Assignment transfers rights to a third person
Delegation transfers obligations to a third person |
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What are the three contractual condictions?
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Conditions precedent
Conditions subsequent Concurrent conditions |
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What is conditions precedent?
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Condition must be fulfilled before a parties performance can be required
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What is conditions subsequent?
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Condition that operates to terminate a parties obligation
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What is concurrent conditions?
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Condition requiring the parties to perfrom their obligations at the same time
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What are the legal requirements of and restrictions on covenants not to compete?
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Type of service
Length of time Area of restriction |
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Six types of remedies that might be sought in a contract action
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Specific Performance
Reformation Damages Rescission Restitution Quasi-Contract |
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What are the two types of damages in a contract?
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Compensatory (Nominal, Liquidated)
Punitive |
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What are two types of third party beneficiaries?
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Intended
Incidental |
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What is a waiver?
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Volunteered relinquishment of rights or privileges
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What is an Estoppel?
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Stopped from doing something
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What is mitigation of damages?
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Reasonable care to minimize or avoid injury
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What are contracts to cure?
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Contract for a promised result
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What are three ways in which a government contract differs from a non-governmental contract?
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Enabling Statues
Administrative Law Prescriptive Statues |
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Who does prescriptive statues favor?
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Small business
Organized Labor Veterans Depressed areas |
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Who is the only individual who can legally bind the US to a contract?
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Contracting Officer
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What is a tort?
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Noncontractual civil wrong committed against a person or property
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What is the difference between a tort and a contract?
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Torts are not written down where as a contract is
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What are the three major types of torts?
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Intentional
Negligent Strict Liability |
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What is the difference between an intentional tort and a criminal act?
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A crime is a wrongful act that the state or government has identified as a crime, results in fines, damages, and jail time
Intentional tort is a wrongful act that injures or interferes with another person or property, results in damages |
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What are the four parts of a negligent tort?
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Duty
Negligent breach of duty Injury Causation |
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Types of negligent medical torts
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Failure to consent
Failure to refer Failure to obtain informed consent Abandonment Breach of confidentiality |
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What is Strict Liability?
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A person is legally responsible for their own act or omission of culpability
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What are types of torts against a person?
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Abandonment
Assault Battery Defamation False Imprisonment Invasion of Privacy Mental Distress Outrage |
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What are types of torts against property?
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Conversion
Fraud Interference with contractual relations Trespass |
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What type of tort requires a third party?
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Defamation
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What are two types of defamation?
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Slander - Oral
Libel - Written |
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How do tort liability and risk management interface?
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Agency concerns about potential liability can either lead to innovation and substantially improved facilities and programs
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What is a tort defense?
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A direct attempt to avoid what would otherwise result in liability
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List twelve defenses to tort actions
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Elemental
Good Samaritan Res Judicata Truth Release Satisfaction Charitable Immunity Sovereign Immunity Assumption of the risk Contributory Negligence Comparative Negligence Statute of Limitations |
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What is an elemental defense?
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Lack of elements in the document or case
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What is the good Samaritan defense?
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Not liable for life saving actions
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What is Res Judicata?
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There has already been a final judgment on a similar case
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What is a truth defense?
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Usually in a defamation case, if the statement is true it is not defamation
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What is a release defense?
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Full compensation was not received
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What is a satisfaction defense?
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All compensation was received
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What is sovereign immunity?
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Government cant be sued unless it allows the suit
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What is contributory negligence?
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Plaintiff contributed to their injury, defendant pays nothing
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What is comparative negligence?
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Plaintiffs damage award is reduced due to their negligence
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What are statutes of limitation?
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The time frame that a complaint must be made
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What is charitable immunity?
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Immunity given to charitable organization against civil actions
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What is an assumption of risk defense?
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A defense that the plaintiff knew of the risk and continued with their actions
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What is the American theory of damages?
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An amount of money necessary to make the injured party whole
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What is the difference between compensatory and punitive damages?
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Compensatory awards damages to the injured party
Punitive damages punish the wrong doer |
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What is aggravation in regards to damages?
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How the injury was made worse
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What is the purpose of punitive damages?
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Punish the wrong doer
Send a message to others to not do the same (Insurance companies will not cover punitive damages) |
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What are special damages?
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Economic loss
Objective Not used in contracts |
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What are types of special damages?
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Cost of repairs
Loss of earnings Medical expenses Services in the home |
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What are general damages?
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Non-economic loss
subjective |
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What are types of general damages?
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Pain and suffering
Physical Impairment Loss of Use Visible scarring |
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What are hedonic damages?
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An amount awarded to tort actions to compensate the loss of life's pleasures
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What is the difference between pain and suffering and damages for loss of life's pleasures?
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Pain and suffering can only be awarded if the plaintiff is award of the pain
Loss of life's pleasure does not require cognition |
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What is remittur?
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Decrease in a damage award
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What is an additur?
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An increase in damages paid
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What is the concept of joint and several liability?
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A person may take legal action against one or more of the parties separately or all of them together
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Determine whether the following are either contract or tort damages:
Loss of profit Loss of value Pain and suffering Increased cost Direct economic loss Cost of repairs |
Contract:
Loss of Profit Increased Cost Tort: Cost of repairs Loss of value Direct economic loss Pain and suffering |
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Where in the constitution does it talk about the right to privacy
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No where. it is inferred in the 4th amendment
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Is separation of church and state in the constitution?
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No. the constitution states that there can be no state religion
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What is the US constitution
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The supreme law of the land
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What are the two parts of the U.S constitution
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The main body
the amendments |
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The U.S constitution is a grant of power from
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The states to the federal government.
Powers not granted are reserved by the states |
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The first 10 amendments are known as
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The bill of rights, and only applied to the federal govt prior to 1870
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In 1870, the 14th amendment
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Made the bill of rights applicable to the states
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What are the 3 branches of the government
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Legislative (enacts or makes the law)
Executive (Administers the law) Judicial (Interprets the law-supposedly doesn't make law but it does) |
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What are the district courts
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The trial courts in a federal system (medical malpractice in a federal hospital are tried in the trial court)
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How many appellate courts are there in the federal system
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2 (courts of appeal and the US Supreme Court)
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Courts of appeal are also called
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Circuit courts
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How many circuit courts are there
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13. 12 are geographic
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Special courts in the federal systems could be
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Military courts,tort claims, patents and trademarks
there is a way to get in from the side |
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How many appellate levels are in the military court systems
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3 - 1)Service specific court of Military Criminal Appeals, 2)US Court of Appeal for the Armed Services 3)U.S. or S.Ct
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What is the equivalent of the trial court in the military system
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Courts Martial
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The civilian equivalent of the UCMJ is the
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Limited jurisdiction inferior courts (small claims, traffic courts)
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What level are the circuit courts?
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1st Appellate level
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What level is the US Supreme Court?
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2nd or highest Appellate level
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What court is above the courts of appeal (Circuit court)
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US Supreme court
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What court is below the courts of appeal
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District court or trial court
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In the military system, what court is below the US Supreme Court
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The U.S Court of Appeals for the Armed Services
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What court is below the US Court of Appeals for the Armed Services
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Court of Military Criminal Appeals for each branch of the military
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What court is below the Court of Criminal Military Appeals
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Courts-Martial for each branch of the military
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What is the order of the federal court systems
From highest to lowest |
1) US Supreme Court
2) Federal court of Appeals (circuit court) 3) Federal Trial Courts (District court) |
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What is the order of the military court system
Highest to lowest |
1)U.S Supreme Court
2) US Court of Appeals for Armed Services 3) Court of Military Criminal 4) Appeals for each branch of the military 5) Courts martial for each branch of the military UCMJ for each branch of the military |
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What is the court order in a typical state system
From highest to lowest |
1) State Supreme Court
2) First level appellate court 3) General jurisdiction trial court 4) Limited jurisdiction inferior court |
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What is a precedent
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A case that has already been decided. A lawyer cites it to support their argument
It stands either for or against a point. -Applied horizontally |
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Stare Decisis
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Let the Decision stand.
if the 1st circuit court rules on the court of the law, the court of law is binding only on the district courts under that particular circuit (1st circuit) -Applied Vertically |
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Stare Decisis states that the circuit court will uphold its rule unless
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1)The circumstances have changed
2)The earlier decision was wrong in the first place |
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Are there district courts under the circuit court
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Yes
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How many district courts are there?
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94
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If the district court disagrees with the opinion of the circuit court, what will happen
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There will be an appeal to the circuit court.
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What is a law
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A system of rules that defines socially acceptable behavior and sets punishments for violations
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What are the types of law (SCCCAPPPS)
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Statutory
Common Civil Criminal Administrative Public Private Procedural Substanstantive |
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Statutory law
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Enacted by legislation, laws written by a legislative body
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All laws that end with "ACT" are
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Statutory laws
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What kind of law is UCMJ
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Statutory Law
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What kind of law is a Statute of limitation?
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Statutory law
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Common Law
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Is also called a Judge Made law
Any case with "VS" or "v" is a common/case law |
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Criminal law
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Deals with crimes and punishments (General criminal law and military law)
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Civil Law
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Tort laws, Contract laws, Domestic Relations and Probate laws
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Criminal and Civil law both share
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Environmental law
Tax law Conflict of laws Juvenile law |
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Administrative Law
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Are rule and regulations issued by govt agencies.
Are pursuant to grant by statutory law/authority |
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OSHA, FDA, DoD, and military regulations and the Common Rule are what type of law
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Administrative
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What is the common rule and what type of law is it
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Code of Federal regulatory rules that cover human subject research (research that involves living people)
Under the HHS Administrative law |
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Schloendorff v Society of the City of New York Hospital is what kind of law
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Common/Judge-made law.
It was decided in 1914 by Judge Cardozo. Judge quoted that "Every human being of adult age and sound mind has the inherent right to decide what to do with his or her own body" |
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What kind of law is Feres v. United States
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Common law (judge made law)
Feres Doctrine: service member who are injured related to their service cannot sue the government for remedies |
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Canterbury V Spence
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Common Law
Informed Consent |
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Roe V. Wade
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Common Law
Abortion-when you can have it |
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Public law
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Law that is concerned with the relationship of citizens to government (eg Tax Law)
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Private Laws
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Law that is concerned with the relationship between individuals.
people to people (eg car sales) |
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Procedural
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Lawyers use as a guide (how to do).
(eg how many days to file a motion) |
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Procedural law is also known as
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Adjective law. Provide means of enforcing and protecting rights granted by substantive law
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Substantive law
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known as the guts of the law.
It may be public or private law It also creates and defines rights and duties |
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Are criminal and civil laws mutually exclusive?
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Yes
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What are the 3 most common types of law
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Statutory
Common Administrative |
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A law ending in Act is what type of law
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Statutory law
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What is the Uniform Anatomical Gift Act
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The right to make a gift, while you are alive, of a body part when you die (eg organ donor)
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Is military law criminal or administrative?
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Criminal
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On the criminal side, what are you looking for
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Restriction on liberty
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What is the greatest restiction on liberty
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Death penalty
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What is the least type of restriction on liberty
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Restraining order
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On the civil side, what are you looking to get
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Damages (money)
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What is the burden of proof in a criminal law
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Beyond a reasonable doubt
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What is the burden of proof in a civil case
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Preponderance of evidence,
(any tiny amount more than the other side) |
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If there is beyond a reasonable doubt on one side and a preponderance of evidence on the other side, where is the clear and convincing evidence?
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Fits somewhere in between
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Who is harmed in a criminal case
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Society
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Who is harmed in a civil case
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Individual
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Who decides to proceed with prosecuting a case in a rape case
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District attorney or prosecutor
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What is self help, and in what type of law is it applicable
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The decision to pursue is the individual's right.
It is only applicable in the Civil Law not criminal |
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Is trial by jury guaranteed in a civil case?
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No. it is limited but guaranteed in a criminal case
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What are the 2 two types of criminal law
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General criminal law
Military law |
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Is tort law a criminal law or civil law
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Civil law
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What are the two main types of civil law
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Tort law
Contract law |
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What are the other types of civil law? (along with tort and contract)
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Domestic Relations
Probate Law |
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What is conflict of laws?
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Deals with questions arising out of jurisdictions (what law should be applied? which court has jurisdiction? or how laws of different jurisdictions shall be reconciled?
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What is a contract
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A legally binding agreement
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What is a tort
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A non-contractual, civil wrong committed against a person or a person's property for which a court may award a remedy in damages (money)
*a person may also be a corporation |
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Describe the components of an Anatomy of a civil lawsuit in order
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Ist step: Complaint-Plaintiff's pleading through the court
2nd: Answer- Defendant's response to the plaintiff's allegation 3rd: Discovery- The fact finding stage in lawsuit 4th:Trial: The assessment of the allegations and arguments by a judge or jury 5th: Appeal: Complaint to higher court, which alleges an error committed |
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Is the military a separate society or like any other organization in all respect)?
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Separate society
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In the discovery phase of the anatomy of a civil lawsuit, when can you expect a motion to produce documents or for physical/mental exam
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Medical Malpractice case
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In the discovery phase, you will also see
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- Request for admissions,
- Interrogations thru lawyer to written questions - Depositions (Oral question in presence of a court reporter) |
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In the trial phase, you will see
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- pre-trial motions
- opening statements - Presentation of Evidence - Closing statements - Verdict (by jury) or Judgement (by judge alone) - Post trial motions (summary judgements) |
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In the appeal phase you can expect to see
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Filing of appellate briefs
Appellate argument Judgment |
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What is a deposition and when is it taken during a lawsuit
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Deposition is a discovery tool, whereby one's oral testimony is taken under oath in presence of a court reporter recording responses to examination and cross-examination by the parties' attorneys
Depositions are taken during discovery |
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Is a gift a legally binding agreement
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No. because it lacks consideration
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When does presentation of evidence occur
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In the trial phase
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What should a health care administrator do if asked to provide medical records during the motion to produce documents
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Never give the medical record, give a certified copy
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What is being argued at the appellate level
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Law only, not the facts of the case
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What part of a civil lawsuit is sometimes called a paper drill
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The appeal
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What is the citation for the U.S. Courts of Appeal
|
F
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What are the two citations for the Supreme Court
|
U.S or S.Ct
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What is the citation for U.S. District Courts
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F. Supp
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What is the citation for U.S Courts of Appeal for Armed Services
|
M.J
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Explain this citation
649 So. 3d 636 |
Volume 649, Southern Region, 3rd series, page 636
State, Appellate case |
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Explain 272 F. Supp 409
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Volume 272, Federal District Court, page 409
Federal, trial case |
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Explain 499 U.S. 169
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Volume 499, U.S. Supreme Court, page 169
Federal, Appellant |
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Which is the more recent citation
1 F. 3rd or 1 F 2d |
1 F 3rd
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What does Ann mean in a citation
|
Annotated (made a change)
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What does CFR stand for
|
Code of Federal Regulations
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What does USC stand for
|
U.S. Code
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Are all federal court cases published?
|
Yes, except for in the Military Justice reporter, where you find only appellate decisions
|
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In most states, which cases are published
|
Only Appellate court and State Supreme Court cases.
Trial court cases are not published |
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Explain 71 Se 79
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Volume 71, Southeastern Reporter, page 79
state, appellate court |
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Explain 10 USCA 980
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Title 10, U.S. Code Annotated, section 980
Federal, Statute |
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Explain 56 F 74
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Volume 56, Federal Court of Appeals, page 74
Federal, Appellate case |
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46 CFR 1388
|
Title 46, Code of federal regulation, part 1388
Federal, Statute |
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Ross V. Cigna
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Case law/common law/judge-made law
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14 M.J. 337
|
Volume 14, Military Justice( Federal Reporter), page 337
Federal, Appellate Case |
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16 S.Ct 954
|
Volume 16, U.S. Supreme Court, page 954
Federal, Appellate |
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Fl. Stat. Ann
|
Florida State Code Annotated
State, Statute |
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What are two examples of special courts in the federal systems
|
US Court of Appeals for Armed Services and U.S Court of Patents
|
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What is the difference between an Act and a Bill
|
Act is a law and a bill is a proposal
|
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You will find only appellate decisions in a
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State and regional reporter
|
|
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In a Military Justice reporter, you will find
|
Appellate decisions and not decisions of a court martial
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What are the two elements of an intentional tort?
|
Substance of a particular tort
The likelihood of some harm |
|
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What is the medical standard of care?
|
The degree of care which must be observed by an average, competent practitioner acting in the same or similar circumstance
|
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Explain the rule for how the standard of care is applied.
|
Locality Rule
National Rule Specialty |
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List the four elements of corporate negligent.
|
Duty
Negligent breach of duty Injury Causation |
|
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Is standard of a care a minimum level, maximum level, or something in between?
|
Minimum
|
|
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What is the medical standard of care?
|
The degree of care which must be observed by an average, competent physician acting in the same or similar circumstance
|
|
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What is the difference between "reasonable" and "prudent"?
|
Reasonable - Judicious consideration of alternatives
Prudent - Careful |
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What is the difference between personal and corporate negligence?
|
The person who is responsible
|
|
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What is the doctrine of respondent superior (aka vicarious liability)
|
Means "let the master answer"
Makes the employer liable |
|
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What is meant by ostensible (aka apparent agency)?
|
Walk, talks, and acts like an agent, the law treats them as part of your team
|
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What is meant by expert testimony?
|
Testimony about a scientific, technical, or professional issue given by a person qualified to testify because of familiarity with the subject or special training in the field.
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When is expert testimony needed and not needed?
|
Needed in situations beyond the knowledge of the average laymen.
Not needed in situations involving: Infection Slight Scarring |
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What does Res Ipsa loquittur mean?
|
The thing speaks for itself
|
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What are the three conditions for the application of the doctrine of res ipsa loquittur?
|
Event would not ordinarily occur absent negligence
Apparent / presumptive cause was within exclusive control of the defendant No negligence on the part of the plaintiff |
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What are four different medical situations where res ipsa loquittur may be properly applied?
|
Wrong limb
Wrong patient Explosion or fire Foreign body left in patient |
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State the two primary purposes of the Federal Tort Claims Act
|
Partially abrogates the doctrine of sovereign immunity with regards to torts
Protects governmental agents and employees from liability |
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What are the limitations of the Federal Tort Claims Act?
|
In-scope negligent torts
In the United States Trial by judge alone Trial in US District Court No limit on damages No punitive damages Does not apply to intentional torts |
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What is the difference between the Federal Tort Claims Act, Military Claims Act and the Foreign Claims Act?
|
FTCA only applies in the US
MCA applies overseas, but is administrative only (no courts used) FCA applies overseas for damages or injury to foreign inhabitants due to non-combatant activities |
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|
How is the statute of limitation applied with regards to the FTCA and the Military Claims Act?
|
2 years
|
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Explain the Feres Doctrine
|
Government is not liable under the FTCA for injuries to service members when those injuries arise out of incident to service.
|
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State a way of stopping the statute of limitation from continuing to run.
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Tolling
Or file a claim |
