Introduction to Paralegal Studies: Chapters 1-4 (Quiz #1)

Paralegal

A person qualified by education, training, or work experience who performs delegated substantive legal work for which a lawyer is responsible.

Paralegal work

They gather and analyze facts relevant to legal disputes, perform legal research, draft legal documents, prepare witnesses and evidence for presentation at legal proceedings, and even represent clients in some types of administrative hearings.

Attorney responsibility

Substantive legal work is delegated and the lawyer remains responsible for the legal services provided.

Legal reasoning

The application of legal rules to a client’s specific factual situation (applying law to facts); also known as legal analysis.

Cause of action

A claim that based on the law and the facts is sufficient to support a lawsuit. If the plaintiff does not state a valid cause of action in the complaint, the court will dismiss it.

Stare decisis

The doctrine stating that, normally, once a court has decided one way on a particular issue in the past, it and other courts in the same jurisdiction will decide the same way on that issue in future cases, given a similar set of facts, unless they can be convinced of the need for change.

Precedent

One or more prior court decisions.

Analogous cases/facts

Cases that involve similar facts and rules of law.

Distinguishable cases/facts

Cases that involve dissimilar facts or rules of law.

Protection of individual rights / protecting against governmental overreaching

Function of the Constitution

Organization of government

Function of the Constitution

Three branches / separation of powers

Legislative, executive, and judicial.

What is the function of the legislative branch?

Makes and passes laws.

What is the function of the executive branch?

Carries out and enforces laws.

What is the function of the judicial branch

Interprets laws and evaluates legal disputes.

Checks and balances

A system of government where separate branches have the power to limit and check the actions of other branches to prevent any single group from gaining total control.

How does each branch have ways to limit or check the power of the others?

Under the Constitution, Congress has the power to make laws, but the president has the power to veto them. The executive branch is responsible for administering the law, but it cannot spend money to do so unless Congress provides for the appropriate funding in the budget. And although the president appoints federal judges, those appointments do not become final unless the Senate votes to confirm.

Judicial review

Courts determine whether governmental action is constitutional. The power of courts to check the actions of the legislative and executive branches—and state governments—and declare them unconstitutional and void.

Statutes

Laws enacted by legislatures.

Administrative regulations

Rules promulgated (promoted) by administrative agencies under delegated authority.

Common law

Law created by the courts. The body of law that has evolved from judicial decisions in cases that do not involve constitutional, statutory, or administrative regulation interpretation. (Court-created law and precedent).

Interpreting Laws

Courts figure out what a law means and how it applies to real-life situations.

Executive orders

Directions from the executive concerning administration or enforcement within executive authority.

Equity

A principle that allows judges to take actions such as issuing injunctions and ordering specific performance when the law would otherwise limit their decisions to monetary awards. (Equitable remedies may include injunctions or specific performance).

Injunction

A court order requiring a party to perform a specific act or to cease doing a specific act.

Specific performance

A requirement that a party fulfill his or her contractual obligations.

Executive memorandum

An official policy directive issued by the president for the federal government, or by the governor of a state, which directs government employees as to how they should implement a law.

Civil law

Law that deals with harm to an individual.

Criminal law

Law that deals with harm to society as a whole.

Federalism

Divides authority between national and state governments.

Substantive law

Defines our legal rights and duties.

Procedural law

Comprised of the rules that govern how the legal system operates.

Prima facie case

The party with the initial burden must establish the required elements before the opposing party must respond with defenses.

Burden of proof

Civil: preponderance of the evidence. Criminal: beyond a reasonable doubt.

Preemption

Federal law may displace state law when federal authority controls.

Trial courts

Determine facts and apply law.

Question of fact

Concerns what happened.

Question of law

Concerns interpretation/application of law or legal procedure.

Bench trial

The judge serves as fact finder as well as interpreter of law.

Jury trial

The jury generally determines disputed facts.

Appellate courts

Review claimed legal error; ordinarily do not hear new witnesses or receive new evidence.

Reverse

To overturn the lower court decision.

Remand

To send the case back to the trial court for further proceedings.

Court opinions

Official written explanations by judges or justices explaining their legal reasoning, judgments, and rulings in specific cases.

Federal court structure

Federal District Courts -> U.S. Courts of Appeals -> U.S. Supreme Court

Federal question jurisdiction

May exist when a case arises under federal law or the U.S. Constitution.

Diversity jurisdiction

May permit federal jurisdiction when opposing parties are citizens of different states and statutory requirements are satisfied.

Majority opinion

An opinion in which a majority of the court joins.

Concurring opinion

An opinion that agrees with the majority’s result but disagrees with its reasoning.

Dissenting opinion

An opinion that disagrees with the majority’s decision and its reasoning.