exam 2 study flashcards

ajp chapter 8-trials, chapter 2-thinking like a lawyer, chapter 3-the legal profession, chapter 6-civil law

courts of assize

periodic courts, resolve disputes over land and inheritances.

cause of action

the set of facts being use to justify suit to obtain money, property, or the enforcement of a right against another.

bench trial

a trial heard before a judge without a jury.

hung jury

also known as a deadlocked jury, when a sufficient number of jurors cannot agree on the verdict, results in a mistrial.

mistrial

a trial that is not successfully completed but, instead, is terminated before a verdict is returned.

punitive damages

damages awarded to deter the defendant (or others) from behaving in the same manner in the future rather than to compensate the plaintiff.

compensatory damages

damages awarded to a plaintiff to replace what he or she lost.

jury pool

also known as the venire, the set of prospective jurors.

voir dire

the preliminary stage of the trial, during which prospective jurors are questioned to determine their suitability to serve as jurors on the particular case.

challenge for cause

-if the attorney believes that a juror is biased and represents a threat to the impartiality of the jury, the attorney may request that the juror be dismissed for cause.

-unlimited number, but the judge determines as to whether a prospective juror will actually be dismissed

peremptory challenge

can be exercised for no stated reason, even if it is just the “gut feeling” of the attorney

-limited by statute and varies from state to state

scientific jury selection

the application of behavioral and social scientific principles to the selection of jurors most sympathetic to a particular side in a court case

-test relationships between juror characteristics and attitudes about a case

telephone survey

administered to a representative sample of the individuals in the community from which a jury is likely to be drawn, and includes three general types of questions.

1. background questions (age, gender, occupation, etc)

2. beliefs and attitudes that may be associated with a favorable or unfavorable verdict.

3. reading a brief description of the case (or a related hypothetical case) and then asking the potential juror to vote as if she was an actual juror in the case.

mock juries

a form of focus group in which a group of individuals are hired and told about key elements of the case.

-attorneys use these juries to test their presentation style and refine trial strategies before the trial begins.

shadow jury

a surrogate jury that sits in the actual courtroom and is exposed to the real trial.

-provide trial teams with a daily assessment of their performance, helping them make strategic course corrections mid-trial rather than waiting for a final verdict.

post-trial juror interviews

not to aid the attorneys in the immediate case, but, instead, are intended to help guide and inform juror selection in future cases.

opening statement

provides the trial attorney with the opportunity to explain the evidence to the judge or jury and to describe the issues that will be presented during the trial.

-not merely descriptive, rather the objective is to persuade.

direct examination

the questioning of a witness during a trial that is conducted by the side for which that person is acting as a witness.

leading questions

questions framed in such a way as to suggest the answer, because it is the witness that must testify, not the attorney.

hostile witness

a witness who is antagonistic to the position of the party calling the witness (openly bias, unfriendly)

cross-examination

the interrogation of a witness that is called by the opposing party.

supportive cross

cross-examination in which the attorney is questioning the witness to support the cross-examiner’s case. (bolster the cross-examiner’s theory of the case and to assist in the development of favorable aspects of the case not developed in the direct examination.)

discrediting cross

destructive cross, cross-examination in which the attorney is questioning the witness to discredit that or another witness. it is intended to undercut the persuasive value of the opponent’s evidence.

closing argument

a final opportunity for the trial attorney to explain the evidence, the law applicable to the evidence, and the reasons why the jury or judge should find in favor of his client.

jury instructions

when the judge provides guidance to the jury as to the relevant laws that jurors should follow when deciding the case.

foreperson

presides over discussions and votes of the jurors, and often delivers the verdict.

verdict-driven deliberations

narrowly focused on the final outcome, entail frequent polling of the jurors, and are characterized as rife with pressure to conform to the majority.

evidence-driven deliberations

deliberations that focus on the review of the facts of the case, the evidence presented, and the judicial instructions.

-high levels of participation among jurors, wide-ranging final outcomes

sequester

when the judge orders the jury to spend the night in a hotel and be kept from all contact with other people, as well as from newspapers and news reports.

preponderance of evidence

whichever party has just enough (or more) evidence to make it more likely than not that what the party is seeking to demonstrate is true, is the party that should win.

-civil cases

beyond a reasonable doubt

the burden is on the prosecution; the jury or judge must be convinced that the defendant committed the crime.

-criminal cases

jury nullification

when a jury returns a verdict of not guilty, despite believing that the defendant is guilty on the basis of the evidence.

chaos hypothesis

the myth that juries receiving the nullification instruction will be more likely to use their power of nullification than juries that do not receive the instruction, guided not by law but their emotions and personal bias,

apprenticeship model

typically requires an undergraduate education, followed by a substantial period of time spent reading the standard legal treatises and commentaries as an apprentice to a practicing attorney.

proprietary law schools

law schools not affiliated with a university

-offer a structured and systematic approach to legal education, and offer students a more significant practice component than university-based law schools.

-assume that skills training will take place in practice.

lecture method

where the instructor stands before the class and presents information for the students to learn.

-little exchange between the instructor and students.

text-and-recitation

where students read assigned treatises and in the classroom students are called on to recite what they had learned.

christopher columbus langdell

the first dean of law at harvard, he elevated law to a postgraduate level of study and increased the length of study to 3 years.

casebook method

to read the actual judicial opinions, rather than study abstract summaries of legal rules. replaced textbooks with appellate cases arranged to illustrate the meaning and development of principles of law.

socratic method

involves a teacher asking a series of questions, ideally to a single student, in an attempt to lead the student down a chain of reasoning either forward, to its conclusions, or backward, to its assumptions.

law school admission test (LSAT)

a half-day, timed test, administered four times a year. requires no prior knowledge of law or any other substantive topic.

-it is intended to measure reading and verbal reasoning skills.

black letter law

well-settled legal rules that are not subject to dispute interpretation

the active participants

overconfident geeks who compete with each other to take up the most airtime.

the back benchers

cool dudes who opt out of law school’s competitive culture and never prepare for class.

the terrified middle group

people who spend most of their time wondering what is going on and why the professor doesn’t tell them about what the law is.

law reviews

scholarly journals that contain articles on the law.

multistate bar exam (MBE)

a standardized 200-question test covering constitutional law, contracts, criminal law, evidence, real property, and torts.

bar associations

the professional membership organizations for attorneys

legal specialization

concentrating and becoming expert in a particular area of law.

legal prestige

law work with a good reputation and that is held in high esteem.

private practice

law work as a business.

legal ethics

the standards, rules, and codes of conduct that members of the legal profession are expected to follow and support.

business law

also known as commercial law, law work that applies to persons and businesses engaged in commerce, merchandising, trade, and sales.

public interest

law work that furthers interests shared by the entire public or significant segments of it such as discrimination, environmental protection, child welfare, and domestic violence.

prosecutors

government lawyers who institute legal proceedings against defendants in criminal court, the military, government agencies, legislative committees, law enforcement, and social services.

law clerks

legal assistants who work for state and federal judges for 1 or 2 years, conducting research, making recommendations regarding cases, and drafting judicial opinions.

public defenders

attorneys who represent individuals accused of crimes.

legal aid

government-funded legal services for those who otherwise cannot afford it.

cooperative marketplace

competitive marketplace

litigation lawyers

attorneys who work mainly with lawsuits with the goal of taking cases to court and winning.

motions

a request to a court to obtain an order or ruling directing that some act be done in favor of the applicant .

criminal litigator

works on state or federal prosecution cases (or defends a client accused of a crime)

civil litigator

may specialize in one specific area or work in many areas, including personal injury, landlord-tenant, or contract breaches. generally represent either plaintiffs or defendants.

-specialize in either trial or appellate advocacy

transactional lawyers

never see the inside of a courtroom. they spend the majority of their time researching, drafting, negotiating, and advising.

-provide day-to-day advice to their clients, such as writing contracts or handling a real estate closing.

personal law

law work concerning the legal and financial interests of individuals and families

-wills, divorce, criminal defense, etc.

public interest law

represents various organizations that use the courts (as well as other branches of government) to obtain public policies that they favor.

practitioners

attorneys who have their own private law practice

urban lawyers

the bigger the city, the more likely lawyers are to be specialists and to hand the case off to other specialists as the case moves through the stages of litigation

small town lawyers

handle their cases from start to finish

pro bono

public interest law work done voluntarily by attorneys either for free or for a reduced fee.

partners

attorneys who jointly own the firm and direct its legal operations.

associates

attorneys who are employed by the firm with the prospect of becoming partners at some future point, depending on their performance.

lockstep model

associates received a fixed salary with increases and bonuses based on length of service.

single-tier partnership track

associates who demonstrate themselves to be skilled attorneys capable of generating sustained revenue over a period of years become partners and share in the profits of the firm accordingly, usually under some version of a lockstep mode.

two-tier partnership track

tracks in which some associates advance to become equity partners while others become non-equity partners.

equity partners

acquire ownership stakes in the firm and share in its profits.

non-equity partners

may acquire limited voting rights but are compensated with a fixed salary.

rainmakers

big-name lawyers bringing in big-money clients

boutique law firms

very small, single-speciality practices.

-all of the attorneys focus on one particular area of the law.

prosecutors

attorneys who represent the government and try cases on behalf of the government (behalf of the people represented by the government)

grand juries

legal bodies consisting of citizens with the authority to conduct official investigations into possible criminal conduct.

community prosecution

relies on the prosecution of crime identified by the police as well as taking actions intended to address problems before they result in crime, typically in a well-defined geographic area with a focus on public safety and quality-of-life issues.

public defenders

attorneys who are salaried government employees but are responsible for representing indigent criminal defendants

u.s. attorney general

chief law enforcement office of the federal government and serves as an advisor to the president, heads of executive departments, and other federal agencies on legal matters.

solicitor general

supervises and conducts litigation on behalf of the United States in the U.S. Supreme Court

-has broad discretion to determine which cases to appeal to the court and the arguments to be made on behalf of the government before the Court.

billable-hour system

clients are charged for the total hours each lawyer spends on their case, with the hourly rate for each lawyer dependent on his or her experience and expertise.

contingency fee

a model of compensation for legal services where lawyers represent clients for no charge and pay all the legal costs associated with the case.

-clients agree to pay the attorney a fee (30-40% of the monetary award), contingent on the attorney winning the case.

gate-keeping function

it is up to the lawyer to take the case and she may not if the payout will be too low or the case too difficult.

legal insurance

similar to limited medical insurance, it is most often obtained through a company or labor union programs where individuals pay a monthly fee and can obtain legal advice when necessary.

legal clinics

provide free or low-cost consultations and/or classes that individuals can attend to learn about their legal rights and options

interest on lawyer trust accounts (IOLTA)

bank accounts where lawyers keep clients’ money, the interest is distributed to legal aid programs.

ABA’s model rules of professional conduct

covers issues such as client-lawyer relationships, the lawyer as a counselor, the lawyer as an advocate, transactions with persons other than clients, law firms and associations, public service, communications involving legal services, and maintaining the integrity of the profession.

incapacitating sanctions

punishments that serve to protect the public by preventing the offending lawyer from violating professional standards.

disbarment

the termination of an attorney’s status as an attorney

suspension

the temporary removal of an attorney from practice for a specified period of time.

public reprimand

a punishment that typically entails publication of the errant attorney’s name and misconduct.

private admonition

punishment usually involved the appearance of the violator before a court or disciplinary body where the admonition is delivered.

rehabilitative sanctions

punishments based on the notion that human behavior (including attorney behavior) can be reformed, given appropriate opportunities for reflection.

probation

where an attorney is subject to monitoring or limited in some way