Paralegal exam

Flashcards

What is English common law?

A legal system in which laws develop through the courts by case decisions, which is generally uncodified without a centralized compilation of court opinions.

What proposition is established by the doctrine of stare decisis?

The proposition that when an issue has been previously considered by a court and a ruling has been issued, the court will defer to its previous decision, creating predictability and consistency.

Under what three situations does the preemption doctrine hold that state regulation is precluded or invalid?

1) When Congress expressly states its intent to preempt state regulation; 2) When a state law is inconsistent with federal law; and 3) When Congress, by enacting a comprehensive legislative scheme, sufficiently occupies a field leaving no room for state law.

What proportion of Congress is required to override a presidential veto?

A two-thirds vote of both houses.

What are the standard terms of office for U.S. Senators, House members, and the President?

Senators serve six-year terms (with one-third subject to election every two years); House members serve two-year terms; the President serves a four-year term subject to a 10-year limit under the 22nd Amendment.

Which 1803 Supreme Court case established the power of judicial review?

Marbury v. Madison.

What differentiates primary sources of law from secondary sources of law?

Primary sources provide first-hand, original information from bodies or individuals with law-creating authority; secondary sources lack binding authority and are analyses, reviews, or indexes/finding tools such as legal digests.

What are the quasi-legislative and quasi-executive functions of administrative agencies?

The quasi-legislative function involves adopting and issuing regulations through notice and comment; the quasi-executive function involves investigating activities, issuing citations, and issuing advisory opinions.

What amount in controversy is required for a federal court to exercise diversity jurisdiction?

An amount that exceeds $75,000$, in cases between citizens from different states.

In a criminal prosecution, what constitutes proper venue?

The locality where the crime occurred.

What standard constitutes the burden of proof in most civil cases?

Preponderance of the evidence.

Under FRCP 36, what is the consequence if a party fails to respond to a request for admissions within 30 days?

The fact, legal theory, or document is deemed admitted, requiring no further proof.

What is the difference between a summons and a subpoena?

A summons orders the defendant to respond to a complaint and sets the answer deadline; a subpoena is a court order compelling an individual to appear and testify.

Which federal rule lists affirmative defenses, and why is respondeat superior not included among them?

FRCP 8(c) lists affirmative defenses; respondeat superior is not an affirmative defense because it is a doctrine of vicarious liability.

What is the harshest sanction under FRCP 37 for failing to participate in discovery?

Dismissal of the case.

What standard must be met to grant a motion for summary judgment?

The moving party must prove there is no genuine dispute as to any material fact and that they are entitled to judgment as a matter of law.

Which discovery method can be used for both parties and non-party witnesses?

Depositions.

What limit did the Supreme Court place on peremptory challenges in Baston v. Kentucky (1986)?

Peremptory challenges cannot be used to systematically strike prospective jurors from the jury panel on the basis of race.

How does a special verdict differ from a general verdict?

In a special verdict, the jury issues findings as to each issue in dispute as well as indicating the prevailing party and award; a general verdict simply indicates the prevailing party and any award.

What defines an indispensable party in civil litigation?

A party whose participation in litigation is necessary for the court to render a decision that completely resolves the dispute.

What are the three required elements of a valid contract offer?

Definite terms, communication to the offeree, and serious intent.

What is the legal difference between a void contract and a voidable contract?

A void contract is illegitimate and unenforceable from the moment it is created; a voidable contract is valid until disaffirmed or rescinded by a party possessing the right to avoid it.

What is undue influence in contract law?

Excessive persuasion or domination that overcomes another person's free will, causing them to act (or refrain from acting) and resulting in inequity.

What are liquidated damages in contract law?

Damages agreed upon by the parties when they first enter into a contract, specifying the amount paid upon a breach.

What is a novation in contract law?

A complete transfer of all rights, duties, and obligations of a contract to a third party who replaces an original party.

What is the remedy of rescission?

An unwinding or cancellation of a contract.

What happens to shareholders if a court pierces the corporate veil?

The shareholders become personally liable for the debts and actions of the corporation.

How is an S Corporation classified for federal income tax purposes?

It is taxed as a partnership.

Which annual tax return must a tax-exempt nonprofit corporation file with the IRS?

IRS Form 990.

What are the two primary fiduciary duties of corporate directors?

The duty of care and the duty of loyalty.

What does the business judgment rule presume?

That in making business decisions, directors and officers acted on an informed basis, in good faith, and in the honest belief that actions were taken in the best interest of the corporation.

What is the difference between a horizontal merger and a vertical merger?

A horizontal merger combines businesses offering similar or compatible products in the same market to gain market share; a vertical merger combines businesses producing compatible products/services for a specific finished product to gain efficiency.

Under IRS check-the-box regulations, what are the default tax rules for single-member and multi-member LLCs?

A single-member LLC defaults to taxation as a sole proprietorship, while a multi-member LLC defaults to taxation as a partnership.

What mnemonic lists the common law felonies, and what crimes are included?

MR. & MRS. LAMB: Murder, Rape, Manslaughter, Robbery, Sodomy, Larceny, Arson, Mayhem, and Burglary.

What does the fruit of the poisonous tree doctrine prohibit?

The admission of primary evidence obtained through an illegal search as well as any derivative or second-generation evidence obtained from that illegal search.

What does the rule of lenity require in criminal law?

Any ambiguity in a criminal statute must be resolved in favor of the defendant.

Under Article III, Section 3 of the U.S. Constitution, what is required to convict a person of treason?

The testimony of two witnesses or a confession in open court.

What happens to a decedent's property if they die intestate?

The property passes in accordance with the intestate succession statute of the decedent's state of domicile to their closest blood relatives.

What is the filing deadline for IRS Form 706 (Estate and Generation-Skipping Transfer Tax Return)?

Nine months after the date of the decedent's death.

What duty can a trustee NOT perform regarding the administration of a trust?

A trustee may not delegate the performance of trust duties; they must carry out duties personally.

How does a special warranty deed differ from a general warranty deed?

A special warranty deed limits warranties of title to claims arising under the grantor, whereas a general warranty deed covers claims under the grantor and all predecessors.

How does a gross lease differ from a triple net lease?

Under a gross lease, rent is all-inclusive and covers all 'nets' (taxes, insurance, and CAM); under a triple net lease, the tenant pays base rent plus its proportionate share of all three nets.

What are the four essential elements required to claim title by adverse possession?

Possession must be hostile, continuous for the statutory period, open, and exclusive.

What does the eggshell rule establish in tort law?

The unexpected frailty or vulnerability of the injured person is not a valid defense against liability for the seriousness of the injury caused.

What is negligence per se?

A doctrine where an act is legally considered negligent because it violates a statute or regulation and causes harm.

What are the three essential elements required for a premises liability claim?

1) The defendant must possess the premises/land; 2) The plaintiff must be an invitee or licensee; and 3) There must be negligence.

What is an ethical wall in legal practice?

A screening mechanism that prevents lawyers or legal staff with a conflict of interest from accessing client files or participating in matters involving that client.

What is protected under the attorney work-product doctrine?

Confidential materials prepared in anticipation of litigation—such as notes, research, memoranda, reports, and strategic theories—from discovery by opposing counsel.

What document commences an ancillary bankruptcy case involving foreign proceedings in the United States?

A Petition for Recognition of a Foreign Proceeding.

What is the standard bar date for filing a proof of claim in a Chapter 7 bankruptcy case?

70 days after the Petition Date for most creditors.

On which bankruptcy schedule must a debtor list an executory contract or unexpired lease they wish to assume?

Schedule G.