Chapter 2

Question 1

What are criminal laws?

Answer 1

Laws that define certain acts as crimes and provide specific punishments for each crime

Question 2

Civil law typically categorizes into public and private law. Define these.

Answer 2

Public law - refers to areas of the law that affect the public interest and that govern relationships between the government and non government parties.
private law- refers to areas of the law that primarily involve disputes between nongovernmental parties.

Question 3

What is Civil litigation?

Answer 3

a juridical process by which private parties go to court to enforce a legal right or to obtain a remedy for civil wrong.

Question 4

To file a civil lawsuit, a person must have a valid cause of action. Define this/.

Answer 4

its a set of facts that gives a person the right to judicial relief

Question 5

When would a case of action arise? (4)

Answer 5

1. one person has a legal right
2. another person has a legal duty to observe that right.
3. the second person breaches her legal duty
4. the first person suffers a loss or injury as a results of that breach

Question 6

Do all four elements that would of a case of action, have to be present?

Answer 6

yes, in order to create a cause of action. (page 40)

Question 7

Common law jurisdictions provide two general types of civil causes of action. Name them

Answer 7

Breach of contract- failure of a party to perform a contractual obligation
tort- private wrong, other than breach of contract.

Question 8

Define a contract

Answer 8

a legally enforcable agreement between two or more partiesl the agreement consists of a promise or a set of promises.

Question 9

define plantiff

Answer 9

injury party, he who files papers with the court setting out her cause of action agaisnt the other party.

Question 10

define defendant

Answer 10

other party in a court, who is defending agains the accusation of the plantiff.

Question 11

Name the 3 distinct states of filing a civil action.

Answer 11

1. pleading stage
2. discovery stage
3. trial stage

Question 12

What is a pleading?

Answer 12

a formal, written statement that set out the claims and defenses of each of the parties to a lawsuit.

Question 13

what is the purpose of a plea? (what is included/ the end point)

Answer 13

1. define the issues that are in dispute
2. set ou tthe material facts that are involved in the dispute
3. define the judicial relief that the parties seek from the court.

Question 14

what are the two basic types of pleadings? and define them

Answer 14

1. complaint- writen document that sets out the cause of action on which the plantiff bases her claim agasint the defendant.
2. answer- reply to complaint, here a defendant can 1. admit or deny each of the facts, and 2. answer that he has no knowledge of a fact that the plaintif alleged. They can also include defenses and counterclaims in the answer.

Question 15

What is service of process.

Answer 15

the act of delivering or -serving0 the complain to the defendant, and provides the defendant with official notification of the proceeding so as to afford him the opportunity to appear and he heard.

Question 16

What is an affirmative defense?

Answer 16

an allegation of facts that constitute a defense to the plantif’s claim.

Question 17

What is a counter claim

Answer 17

a claim by the defendant against the plantiff that arises out of the same facts on which the plaintiff’s claim is based. This allows all disputes between the parties to be joint together for resolution in one civil proceeding

Question 18

What is a default judgement?

Answer 18

a judgement entered against a defendant who fails to plead0 that is to file an answer within the required time- or fails to defent the lawsuit.

Question 19

What is a dismissal?

Answer 19

a court order of judgement that concludes a lawsuit without trial of the issues involved in the lawsuit.

Question 20

What happens if a party fails to file a required pleading?

Answer 20

the action is ended fairly quickly with a default judgement or dismissal of the action.

Question 21

What is the discovery stage?

Answer 21

a proess in which the parties gather information that is relevant to the lawsuit so they can prepare to present their respective cases at trial.

Question 22

What are the 4 primary functions of the discovery stage?

Answer 22

1. permits parties and witnesses to be questioned
2. allows facts to be reveals,
3. facilitates settlements because parties are able to dertermine the relative stregths of their own cases and the other party’s
4. seeks to prevent a party from hiding information and avoid trial surprise

Question 23

Name some discovery techniques available to the parties

Answer 23

1. interrogatories
2. deposition
3. request to produce documents and thigns

Question 24

What are interrogatories?

Answer 24

written question that one party prepares and that the other party must answer in writing within a specified time.

Question 25

answers to interrogatories are submitted in the form of what? what happens if someone lies?

Answer 25

1. in form of affidavit, written statement under oath

2. false statements, means client committed perjury,

Question 26

what is a deposition?

Answer 26

a proceedure where a person orally testifies under oath, while being questioned by attorneys. A court reportor records answers, and provides copies to each parties.

Question 27

What is a request to produce documents and things?

Answer 27

a request by one party that the other party produce defined documents and items related to the lawsuit.

Question 28

define contempt of court

Answer 28

any act that hinders the court in administrating justice or that lessens the authority and dignity of the court.

Question 29

Define trial

Answer 29

a formal proceeding at which the parties appear in court along with their respective attorneys and present their cases to the court.

Question 30

An action may be tried by a judge alone, or by judge and jury. Do the parties have a choice>

Answer 30

yes, they have the right to request a trial by jury

Question 31

What is an issue of law?

Answer 31

an issue in which the parties disagree on how the law should be applied to a given set of facts

Question 32

wha is an issue of fact?

Answer 32

an issue in which the parties disagree as to the facts involved inthe action.

Question 33

Who is responsible for declining issues of law?

Answer 33

the judge

Question 34

who is responsible for deciding issues of facts?

Answer 34

the trier of fact.

Question 35

who is the trier of fact

Answer 35

the judge in an nonjury trial and the jury in a jury trial.

Question 36

define evidence

Answer 36

the means by which the disputed facts in an action are proved or disproved.

Question 37

Evidence must be what- to be admissible at trial?

Answer 37

relevant and material to the facts at issue. IT must tend to prove or disprove a relevant fact.

Question 38

Define rules of evidence

Answer 38

.non-procedural rules that govern the admissibility of evidence at trials and determine whether the evidence presented is sufficient to prove the issues involved in an action.
its meant to aid the court in ascertaining the truth by winnowing out unreliable evidence.

Question 39

What are the two meanings of the term ‘burden of proof’

Answer 39

1. duty to present evidence to prove a given fact or set of facts.
2. mean the duty to persuade the trier of fact than an allege fact is true

Question 40

does the burden of presenting evidence every shift between the plaintiff and the defendant during trial?

Answer 40

yes, often

Question 41

What is a prima facie case,

Answer 41

evidence that is sufficient to prove the element of a party’s case and that entitles the party to judicial relief, unless the opposing party presents evidence to the contrary.

Question 42

What happens when the plantiff fails to present a prima facie case, and does not meet his initial burden of proof?

Answer 42

the court probably will dismiss the lawsuit.

Question 43

What happens when the plantiff presents a prima facie case?

Answer 43

the burden of producing evidence switches to the defendant, who will lose unless able to present evidence that disproved the prima facie case of the plantiff.

Question 44

what does it mean when they say the degree of proof required in a civil action is a preponderance of the evidence?

Answer 44

it means that the decision as to an issue of facts must be supported by the greater weight of the evidence.
the trier of fact must evaluate the evidence and decide the issue in favour of the party that presented the more convincing evidence concerning the disputed fact.

Question 45

the rules of evidence includes a legal device known as a presumption. What is this?

Answer 45

a rule of law under which a fact is assumed to be true because another fact or set of facts was proven.
- facts that have not been proven

Question 46

A presumption can be either conclusive or rebuttable. What is a conclusive presumption?

Answer 46

a presumption that cannot be refuted.

ie. a child under a specified age is conclusively presumed to be incapable of committing certain crimes

Question 47

A presumption can be either conclusive or rebuttable. What is a rebuttable presumption?

Answer 47

A presumption that can be disproven but that stands until adequate evidence is presented to the contrary.

Question 48

Define conflict of laws

Answer 48

the area of the law that determines which substantive laws apply to each issue in a case when the laws of more than one jurisdiction are involved in the action

Question 49

What is a judgement?

Answer 49

an official decision of a court that resolved a dispute and determines the rights and obligations of the parties to the action.

Question 50

Does a judgment incorporate the verdict of the trier of facts?

Answer 50

typically. but if the judge disagrees, he can set it aside and refuse to incorporate it into the judgment.

Question 51

When is there a right to appeal a judgement?

Answer 51

when it is granted by statute, and if an appellate court grants a party permission to appeal.
they must be filed with in the time limit, and can be based on issues of facts or on issues of law.

Question 52

Are there appeals in civil action?

Answer 52

no, the judgement becomes final and binding on the parties, and the cause of action may not be the subject matter of the subsequent action.

Question 53

What is the term used, for a matter that has been decided?

Answer 53

Res Judicata.

Question 54

jury trials are available in some public (criminal) cases in civil law jurisdictions. What is the typical legal process for private disputes?

Answer 54

they are hear by a judge or panel of judges.

Question 55

In a civil law jurisdiction, who guides the evidence-gathering process?

Answer 55

Judge, they also question all witnesses, and evaluates the admissibility and weight of all evidence presented. They render the verdit at the final hearing of the metter.

Question 56

What is the purpose of tort law individually developed by each sate in the US,?

Answer 56

the body of tort law, creates rights and imposes corresponding duties on individual and apportions responsibility when a breach of legal duty results in loss to another person.

Question 57

define an obligation.

Answer 57

a duty that one person owes to another, and it may arise from number of sources.

Question 58

What are the two sources of non-contractual civil liabilities?

Answer 58

1. delicts,

2. quasi-delicts

Question 59

Who is the main party a law of torts focused on?

Answer 59

compensating the victims of torts rather than on pushing the wrongdoers

Question 60

What is an intentional torts?

Answer 60

a private wrong committed by a person who intended to do something that the law declares as wrong.

1. assualt, battery, fraudulent misrepresentation
2. traspassing, conversion

Question 61

What is assault?

Answer 61

the intentional creation of a reasonable fear in the mind of the victim of imminent bodily harm.

Question 62

What is battery?

Answer 62

an intentional harmful or offensive physical contact with another person.

Question 63

Whats the difference between an assault and battery?

Answer 63

ASSAULT consists of a threat to harm another, where battery occurs when a person touches strikes or otherwise physically harms another person.

Question 64

When does a tort of defamation occur?

Answer 64

when a person makes false statements that injure the good name or reputation of another person.

Question 65

What are the two forms of defamation?

Answer 65

1. slander, (oral statements)

2. liberl, (written statemtns)

Question 66

To succeed in civil action for defamation, a plaintiff must do what?

Answer 66

1. prove that the defendant made a false statement about the plantiff
2. the defendant communicated the statement to a third party, and
3. the statement injured the plaintiffs reputation

Question 67

What is fraudulent misrepresentation?

Answer 67

occurs when a person knowingly or willfully makes a false statement with the intent that another person will rely on the statement and will be harmed as the result of that reliance.

Question 68

How does a plaintiff prove that the defendant made a misrepresentation?

Answer 68

1. knowledge of its falsity
2. without belief in its truth
3. reckless or careless disregard for whether it is true.

Question 69

What is the act of inducing a breach of contract?

Answer 69

the intentional tort that occurs when a person who is not a party to a contract persuades a contracting party to breach a contractual obligation.

Question 70

What is trespass to land?

Answer 70

the unauthorized physical invasion of another’s land.

Question 71

What is conversion? (in terms of tort)

Answer 71

The unauthorized exercise of dominion and control over another person’s property.
ie. theft, embezzelment, and damage to anyones property

Question 72

What is negligence?

Answer 72

is a private wrong committed by a person who failed to exercise the legally required degree of case in

1. doing something that is otherwise legally permissible
2. omitting to do something that is otherwise legally required.

Question 73

To prevail a civil action based on negligence, a plaintiff generally has the burden of proving what four elements of a cause of action?

Answer 73

1. defendant had a legal duty to the plaintiff to act in accordance with a prescribe standard of care
2. the defendant breached his legal duty
3. the plaintiff suffered a loss
4. the defendants conduct was the cause of the paintiff’s loss.

Question 74

What is contributory negligence?

Answer 74

is a plantiff’s own negligence that contributes to his loss. This law states a plaintiff who was responsible to any extent of his loss is denied ant recovery from the defendant. To reduce harshness, most states have modified this law by adapting a system of comparative negligence.

Question 75

Define comparative negligence

Answer 75

Allows a plaintiff who was contributorily negligent to recover from the defendant, but the amount that recovery is reduced is proportioned to the plaintiff’s fault.

Question 76

Define assumption of the risk

Answer 76

an affirmative defence that totally bars a plaintiff’s claims when the plaintiff understood the nature of the risk presented by the defendant’s conduct and voluntarily incurred that risk.

Question 77

Do most states follow the assumpton of risk rule?

Answer 77

no, most have abolished this common law defence, by merging the rule into a system of comparative negligence.

Question 78

What is strict liability?

Answer 78

liability without regard for whether the defendant was at fault. ITs applied only in very restricted situations, such as when a defendant engages in hazordous acitvities.

Question 79

How are remidies categorized in common law jurisdictions?

Answer 79

Legal or equitable.

Question 80

define legal remidies

Answer 80

primarily involved the payment of money damages to injured parties.

Question 81

Define equitable remedies.

Answer 81

remedies developed by the equity courts. They are not bound by rigid procedures and are based on moral rights and concepts of justic.e

Question 82

what is the basic legal remedy for most civil wrongs?

Answer 82

damages, which consist of monetary compensation that may be recovered by a plaintiff who suffered a loss or injury as a result of a defendants wrongful conduct.

Question 83

Civil damages awards generally provide a plaintiff with compensatory damages. What is this?

Answer 83

damages intended to compensate an injured party for the amount of monetary lossess that resulted from the defendant’s wrongful conduct.
- sometimes referred to as actual damages.

Question 84

When is a loss foreseeable? in terms of defendant liability in his action.

Answer 84

when it would ordinarily be expected to result from the wrongful actions of the defendant knew of specific facts that would make the loss likely.

Question 85

In an action from breach of contract, compensatory damages, are generally measured as the benefit of the bargain, meaning what?

Answer 85

the damage award is that amount that will put the plaintiff int he finanical position he would have been in, if the contract had been preformed.

Question 86

What are punitive damages?

Answer 86

are awarded in addition to compensatory damages when a defendant’s wrongful conduct was malicious or willful

Question 87

What is nominal damages?

Answer 87

award to plantiff when he was wronged by he did not suffer a loss as a result of the wrong, cannot prove the amount of the loss with reasonable certainty, or the loss was trivial. the plaintiff is not entitled to compensatory damages. but if the defendant was wrongful, the plantiff might get a small sum.

Question 88

Can a plaintiff recover damages for a loss that she could have avoided or lessened by reasonable efforts?

Answer 88

no, they always have the duty to make a reasonable effort to mitigate the amount of damages that result from the defendant’s wrong.

Question 89

Name 3 kinds of damages examples that are sometimes awarded in civil lawsuits.

Answer 89

1. liquidated damages
2. prospective damages
3. statutory damages

Question 90

Name 2 kinds of damages that are not generally awarded in civil actions in the US

Answer 90

remote damages

speculative damages

Question 91

What 3 principles must be met to grant equitable relief to a plantiff in a civil action?

Answer 91

1. must have no adequate remedy at law
2. must come into court with clean hands - its used to apply justice, not aid a party.
3. must not be guilty of laches.

Question 92

define the term guilty of laches

Answer 92

when he unreasonably delayed in pursuing a claim for relief and the defendant was harmed in some way as a result of the undue delay.

Question 93

What are 3 addition equitable principales, created by courts to fashion remedies and make decisions based on what is fair to the parties.

Answer 93

1, reformation- where a written contract is rewritten to express the original agreement of the contracting parties.

2. Resicion- contract is cancelled and the parties returned to the positions they would have been in, had the contract not been made.
3. specific performance- requires a party who has breached a contract to carry out the contract according to its terms.

Question 94

Define declaratory judgement

Answer 94

a judicial statement that declares or denies the partie’s legal rights but does not include specific relief or any means to enforce those rights.

Question 95

What is an injunction?

Answer 95

a court oder that prohibits a party from committing a specific act.

Question 96

Define resitution

Answer 96

sometimes its a legal remedy, and other times an equitable remedy under which a party is ordered to return property to its owner or to the person entitled to it.

Question 97

What is an alternative dispute resolution method?

Answer 97

any nonjudicial method of resolving civil disputes.

Question 98

What are the two most common forms of dispute resolution in the united states?

Answer 98

1. medication,- uses mediator to negotiate between parties, and create a mutually agreeable resolution. if they dont agree parties typically have the right to arbitration or civil litigation,
2. arbitration- arbitrator evaluates the facts and renders a decision that is binding on the parties.

Question 99

Are there appeal options for arbitrated decisions?

Answer 99

yes, only if the arbitration was conducted improperly.

Question 100

What is conciliation? (in terms of alternative dispute resolutions in other countries)

Answer 100

method that is similar to medication in that the parties are encouraged to come to a mutually acceptable agreementl a third party facilitates the negotionations and helps them resolve the dispute themselves.