FINAL CRAM SHEET
Civil Litigation
Rules of procedure
1. Federal
2. State
3. Local
¢ complaint
π plaintiff
∆ defendant
T/P third party
Basic complaint: Plaintiff v. Defendant
Counterclaim: Defendant v. Plaintiff
Cross-claim: Defendant v. Defendant
Third Party: Defendant v. Defendant (not named by plaintiff)
Summons:
-formal notice of the suit
-the purpose is procedural due process
-it is procedural, your right to know, right to protect yourself
-summons and complaint must be served together
-server must be over 18 and not a party to the action
-Complaint initiates lawsuit
Affirmative Defense:
-relieves the defendant of liability even if allegations are true
-what do they give you that denials don't? Nothing specific
Examples:
1. Res Judicata - released the case, case already ruled upon
2. Release - plaintiff releases the defendant from responsibility
3. Contributory Negligence - releases defendant if negligence proved on plaintiff
4. Comparative Negligence - in states where this is true, plaintiff get award even if negligent
5. Statute of Limitations - period of time from date that cause occurred to date filed
Always include:
1. Fails to state a cause of action
------(wore leopard shoes that offended someone) Admitted everything was true
2. Fault of Plaintiff
------ Other person's fault
3. Fault of Another
------ Someone else
4. Failure to Mitigate
----did not reduce injury or damage
Counterclaims
1. Compulsory: must bring counterclaim or will never be allowed to do so
2. Permissive: another claim against plaintiff not from the same matter
Third party complaint
-upon a person not party to action who may be liable
-what times would you not bring in another party that caused you injury?
-doesn't know him (guy that fixed brakes for defendant)
-laziness on rep.
-relationship (boss, brother in law)
Dismissals
1. Involuntary: by opposition or court to throw it out
2. Voluntary: you have the right to dismiss your pleadings
3. With prejudice: it can not be raised again
4. Without prejudice: this is defective but you can try again
subpoena duce tecum
-documents requiring party to attend and bring documents with them
Trial
Jury Selection - voir dire, speak the truth, from driver's licenses
-Peremptory challenge - attorney may dismiss jurors with no explanation
-Challenges for cause - dismiss juror for bias
-Jury usually 12, District 6
Opening Statements - before evidence, points they plan to make, defense can defer till after plaintiff shows case
-Why is it called that? Nothing to talk about yet, no evidence
Plaintiff goes first Case in Chief
Direct Examination
-no leading questions, unless hostile, kid, foundation, expert
Cross Examination
-limited to issues in direct
Closing Arguments
-Plaintiff can have 2 closes
Jury Instructions
Jury Deliberations, Verdict, Judgment
CIVIL DISCOVERY
3 purposes:
1. Prepare case thoroughly
2. Clarify
3. Locate, Obtain, Preserve evidence
-The more we find out, the more we can reach settlement
-Federal Rule 26 discovery is broad, but not unlimited (mandatory disclosure)
3 examples where discovery limited
1. Doctor/Patient, spousal immunity, lawyer immunity
2. Work Product - thoughts and mental strategies
3. Experts not being called to witness
4. Annoyance, Embarrassment, Oppression
5 discovery tools
1. Depositions CR30
-non-party or party, oral, under oath, powerful, expensive,
-only tool that is 1. spontaneous 2. against non-party
2. Interrogatories CR33
-party, written, under oath, 30 days, inexpensive, limit 25 questions, discreet subpart
3. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes CR34
-party, rule 34 request for production
4. Physical and Mental Exams CR35
-party, only if it is an issue, must be relevant
5. Request for Admission CR36
-party, written request or deny, streamlines trial, not really discovery meant to admit things so as not to prove them
-Sanctions available for parties that don't cooperate with discovery
--include: disallowed evidence, established facts, pleadings stricken, contempt, costs incurred
CRIMINAL LAW
-felony: loss of civil rights, over a year, in prison
-misdemeanor: 90 days in jail
-mala in se crimes: inherently evil
-mala prohibita: protecting society, revenue raising
-Burden of proof: presumption of innocence, jury, no appeal
-Motive is NOT an element of crime
-All crimes have intent(mental state)
-mens rea: guilty act w/ guilty mind
-actus rea: guilty act w/out guilty mind (the act)
Hate Crimes
-punishing at greater level
-against women, gays
-Matthew Shepard
Insanity
2 tests
1. M'naghten test - inability to tell right from wrong
2. Irresistible impulse (NY rule) - knew it was wrong, could not stop
Obligation to Disclose (from Brady)
Inculpatory(guilty) material - supports guilt of defendant
Exculpatory(innocent) material - supports innocence of defendant
Mens Rea w/ Small Children
-below 8, 8-12 presumed no mens rea can be rebutted, over 12 mens rea
Motion to Exclude (suppress)
-4th Amendment (search warrants and evidence) Mapp v. Ohio
Plea bargaining
-none for dangerous felonies, 90% cases are plea bargains
Miranda Warning
-police must give you prior to custodial investigation, must know your rights
Real Property
Fixtures
3 things to look at: (don't need all 3)
1. Attached/Affixed
2. Intent
3. Adaptation
Trade fixtures: goes with tenant 1. usually useless to new tenant 2. expensive
-must 1. repair 2. promptly
Mortgages:
1. Promissory Note: promise to pay
2. Trust Deed: security for note
-no deficiency judgment and power of sale
Assumption of Mortgage - buyer assumes mortgage of seller(already has mortgage on property) and continue paying on mortgage Due at sale clause
Subsequent Mortgage - much higher interest rate, risk of loan is increased
Purchase Mortgage - seller contract, installment contract, no bank (strict foreclosure)
Balloon Mortgage - adjustable rate, higher interest rate
Amortization - interest paid first
Easement
1. Appurtenant: dominant tenement can use servient tenement, dominant access to highway
2. Easement in Gross: benefits owner of easement, dominant cattle to pasture
Making an Easement
1. In Writing
2. By Implication - by necessity, you pay for easement
3. By Prescriptive right - start using easement 7-15 years
Co-Ownership
1. Tenancy in Common
-undivided, unlimited owners, different % of ownership, sell your %
2. Joint Tenancy w/ Rights of Survivorship
-when one dies, transfers to other automatically
Warranty Deed: seller has title to what he is selling guarantee
Quick Claim Deed: no guarantee, absolves all interest in property if any
Liens
No lien affidavit: seller claims none
Construction liens; up to 90 days after completion
1. Mechanic's landscapers, electricians
2. Materialmen's who supply mechanics
Recording
-public record: warns others of interest in property
-first in time, first in line
Estate Law
Die with Intestacy
-Spouse and Kids, Parents, Siblings, Grandparents, Aunts/Uncles, Escheats to state
Revoke a Will
1. Intentional Destruction
2. Superseding will
3. Interlineation: cross outs, can't add in equal dignities rule
Capacity:
-Competency: extent of property and who heirs
-Over 18
Holographic wills: handwritten by testator, witnessed, no real property
Will needs:
1. In Writing 2. Signed 3. Witnessed by disinterested: receives no benefits
Clauses:
1. Dispositive: to whom and what
2. Residuary: remaining assets
Guardianship Clause: children
Trust Clause: control over money
-inter vivos: in lifetime
-causa mortis: created when you die
-Can not disinherit a spouse
Per Stirpes: direct to children
Per Capita: direct to grandchildren
Probate
Purpose: verify will, inventory of property, satisfy creditors, title transfer
Actual Notice: to known creditors
Constructive Notice: in paper 120 days
Living Will: called Medical Directive
-medical requests
Domestic Law
Statutory Marriage
1. license 2. marriage ceremony (w/ state authority) 3. competent parties
-if valid elsewhere, valid here
Common Law
1. living as married opposite sex 2. holding themselves as married 7 years
Annulment:
void ab intio
8 Kinds: Sham marriage, Bigamy, Underage, Incest, Mental Competency, Intoxicated, Duress, Physical Incompatibility
Dissolution: Specific Grounds, Minimal Grounds
Alimony (now called Maintenance)
2 forms: Rehabilitative and Permanent
Custody:
Physical and Legal, Usually joint
-Grandparents can not petition to get visitation
"Best interest of the child test"
Full disclosure for divorce: to avoid Fraud and cause voidable contracts
-document finalizes marriage; interlocutory, after 90 day cooling period
Contracts
-legally binding agreement
3 Parts: Offer, Acceptance, Consideration(quid pro quo)
Unilateral: personal contracts: usually unilateral
Bilateral: business contracts: agree to perform
Executed Contract: both parties have already performed
Executory Contract: one party have performed and the other has yet to perform
Express Contracts: parties lay out what they want and why the want it (most oral)
Implied Contracts: must look at conduct to figure out what they want (ordering food)
Valid Contracts: fully enforceable by the parties, properly formed with O, A, C
Void Contracts: totally unenforceable (never), destructive to society
-2 Types:
1. Illegal
2. Violate public policy (paying someone to vote)(money to divorce, inherit)
Voidable Contracts: means one of the parties can opt out of the contract, sometimes enforceable
-Minor, Fraud, Duress, Drunk, Insane, Undue Influence, Bilateral Mistake
Quasi Contracts: not contracts, enforced as one
1. unjust enrichment- allow mistake to occur, knowledge
2. promissory estoppel- create the detrimental reliance, responsible
"meeting of the minds"
"Master of the Offer"- set the circumstances
Objective theory of contracts: how reasonable person perceives offer, is there intent?
Kinds of Offers:
Requirement, Output, Services Needed, Cost Plus, Market Price
Terminate Offer:
1. Reject
2. Revocation
-Can not revoke: Options (money given), Detrimental Reliance, Firm Offer
3. Counteroffer
-original offer lapses
4. Expiration of Time
5. Death
6. Insanity
7. Illegal after acceptance
8. Terms
9. Bankruptcy
10. Acceptance
Acceptance: silence is not acceptance, any manifestation except with Terms
-Mailbox Rule: acceptance of offer upon dispatch, rejection upon receipt
Not Voidable: Necessaries, Release contracts, Student Loans, Life Insurance
Rebutting a Contract:
1. Alcohol, Insanity, Minor
-Minors can disaffirm
2. Bilateral Mistake
3. Fraud: 7 types (material misrep, false, scienter, intent, reliance, reasonable, damanges)
4. Undue Influences: fools
5. Misrepresentation
6. Duress/Coercion
Consideration: legal value, not economic
-Peppercorn Theory: as long as you get something
-Past consideration is no consideration
Usury: illegal rate
Statute of Frauds: act for the prevention of frauds and perjuries
Must be in writing: (MY LEGS)
Why? Most likely to end up in court
1. Marriage: where marriage is the consideration
2. Year: must not be performable in a year by its terms
3. Land: buying and selling must be in writing
4. Executor of an Estate
5. Goods over $500
6. Surety-ship: signing off on a car loan
Anticipatory Breach (Repudiation not Breach):
-when one party in advance says they are not going to perform
1. Express: tell you they are not going to perform
2. Implied: haven't said they are going to not perform but it is assumed they won't
Remedy:1. Treat the contract as breached and hire someone else, sue for damages
2. Do nothing and see if the person shows up and performs
Third Party Beneficiaries
1. Is the third party beneficiary intended or incidental?
Incidentals: zero rights (did not mean to get)
Intended: enforcement rights (meant to get)
2. Assuming intended is the third party beneficiary a creditor or a donee?
Debt issue: they are a creditor, can sue either party
If not, Donee: No consideration, it's a gift, can not sue on gift, can sue performer
On the Google Paralegal Group, Jeff W. has posted some exam questions as a download.
http://uwparalegal.googlegroups.com/web/Final+Review.doc?hl=en&gda=7SFR1EMAAACbEQH9Qd1M9dr3IisgL-4I8yWkrbQMLCApzUjeSH-SkL0tOdddf1a8xdn8S_rnmqoytiJ-HdGYYcPi_09pl8N7FWLveOaWjzbYnpnkpmxcWg
I also put them onto the Taped Lectures Page for download.
http://www.soulee.net/Paralegal/Final+Review.doc
Good Luck Everyone!
