Paralegal Certification Prep flashcards

Latin for 'the thing speaks for itself.' A doctrine of law that allows an inference of negligence to be drawn from the occurrence of the accident itself, in the absence of direct evidence of negligence.

• Accident would not ordinarily occur without negligence.
• Instrumentality causing injury was under defendant's exclusive control.
• Plaintiff did not contribute to the injury.

Memory trick: Res Ipsa: The event itself reveals the fault.

Liability without fault, meaning a party can be held responsible for damages even if they did not act negligently or with intent to harm. Often applies to abnormally dangerous activities or defective products.

• No need to prove fault (negligence or intent).
• Applies to abnormally dangerous activities (e.g., blasting, wild animals).
• Also applies to defective products in product liability cases.

Memory trick: Strictly No Negligence Intent.

An ownership interest in real property that lasts for the lifetime of a specific person (the 'life tenant'), after which the interest reverts to the original grantor or passes to a designated remainderman.

• The life tenant has rights of possession and use.
• Life tenant cannot commit 'waste' (damage the property).
• Not inheritable by the life tenant's heirs.

Memory trick: Freehold estates can be Fee Simple (full) or Life (limited by life).

A common law rule stating that an animal owner is not liable for injuries caused by their animal unless the owner had prior knowledge of the animal's dangerous propensities.

• Owner gets 'one free bite' if unaware of danger.
• Knowledge can be actual or constructive (should have known).
• Many states have replaced or supplemented this with strict liability statutes.

Memory trick: Animal liability depends on if it's One-Bite or Strict, and if the owner was negligent or quick.

A form of co-ownership where two or more individuals hold an undivided interest in property, and upon the death of one owner, their interest automatically passes to the surviving owner(s).

• Avoids probate for the joint tenancy asset.
• Requires the 'four unities': Possession, Interest, Time, Title.
• Can be severed by one joint tenant during their lifetime.

Memory trick: Concurrent ownership can be Joint or Common, but only Joint has a Right of Survivorship.

A right to use another's land acquired by open, notorious, continuous, and adverse use for a statutory period, without the owner's permission.

• Similar to adverse possession but for use, not ownership.
• Must meet specific legal criteria (e.g., statutory period).
• Can be extinguished if not used or if owner asserts rights.

Memory trick: Easements can be Granted, Implied, Necessary, or Prescribed by long use.

Failure to exercise the degree of care that a reasonably prudent person would have exercised under the same circumstances.

• Requires duty, breach, causation, and damages.
• No intent to harm is required.
• Most common type of tort.

Memory trick: Torts can be Intentional, Negligent, or Strictly Liable for the damage they cause.

An estate in land that automatically terminates and reverts to the grantor upon the occurrence of a specified event. It is characterized by 'so long as,' 'while,' 'during,' or 'until' language.

• Automatically terminates upon condition breach.
• Grantor retains a possibility of reverter.
• Words like 'so long as' indicate this estate.

Memory trick: Determinable Deeds Determine Reversion.

An exception to the fixture rule, allowing tenants to remove items installed for business purposes, even if attached, if they can be removed without substantial damage.

• Applies to items used in a trade or business.
• Must be removed before the lease expires or within a reasonable time after.
• If removal causes damage, the tenant must repair it.

Memory trick: Fixtures usually stay, but Trade fixtures can be taken away if they don't cause dismay.

The act of making false statements about another person that harms their reputation. It includes both libel (written defamation) and slander (spoken defamation).

• Requires a false statement of fact.
• Statement must be published to a third party.
• Causes harm to reputation.
• Requires fault (negligence or malice).

Memory trick: Assaulted Battery Defamed Falsely.

An unreasonable and substantial interference with another's use and enjoyment of their land.

• Interference must be substantial.
• Interference must be unreasonable.
• Can involve physical intrusions (e.g., noise, odors, vibrations) or non-physical ones (e.g., blocked light, views).

Memory trick: Real property problems often arise from neighbors' nuisances.

An intentional tort that occurs when an individual intentionally interferes with another's personal property without permission, causing harm or deprivation of use.

• Requires intentional interference.
• Applies to personal property (chattels).
• Harm can be deprivation of use or diminished value.

Memory trick: Chattels Get Converted or Trespassed upon.

An intentional tort against personal property involving the wrongful exercise of dominion and control over another's personal property, interfering with the owner's rights.

• More serious than trespass to chattels.
• Damages can be the full value of the property or its return (replevin).
• Intent required is to exercise control, not necessarily to harm the owner.

Memory trick: Intentional property torts either Trespass (low interference) or Convert (high interference) or harm real estate.

Legal responsibility for damages or injury, even if the person found strictly liable was not at fault or negligent. It often applies to activities that are inherently dangerous or ultrahazardous.

• Applies to abnormally dangerous activities (e.g., handling explosives, wild animals).
• Liability is imposed regardless of fault or negligence.
• The activity must create a foreseeable and significant risk of harm even when reasonable care is exercised.

Memory trick: Strictly dangerous activities bring automatic duties.

A gift made during the donor's lifetime, which is irrevocable once completed. It requires donative intent, delivery of the gifted property, and acceptance by the donee.

• Made during the donor's lifetime.
• Irrevocable once complete.
• Requires intent, delivery, and acceptance.

Memory trick: Intent to give, deliver, and accept make a living gift.

Failure to exercise reasonable care in maintaining property or conducting activities, resulting in damage to another's property.

• Requires proof of duty, breach, causation, and damages.
• Standard is 'reasonable person' under similar circumstances.
• Common in premises liability cases.

Memory trick: When property is harmed, consider if it was intentional, careless, or inherently risky.

Any property that is not real property, typically movable. Also referred to as chattels.

• Movable and not permanently attached to land.
• Can be tangible (physical) or intangible (non-physical).
• Ownership is transferred by sale, gift, or inheritance.

Memory trick: Real Personal Intangible

An item of personal property that has become permanently attached to real property and is therefore considered part of it.

• Determined by intent, method of annexation, and adaptation.
• Removal can cause damage to the real property.
• Often a point of dispute in landlord-tenant or real estate transactions.

Memory trick: To fix a fixture, consider its Intent, Attachment, Adaptation, and Agreement.

A gift of a particular, identifiable item of personal property, or a specifically identified fund, made in a will.

• The item must be clearly described and distinguishable.
• If the item is not in the estate at death (ademption), the gift fails.
• Contrast with general bequests (e.g., a sum of money).

Memory trick: Wills give gifts: Specific, General, Demonstrative, or whatever's Residuary.

A legal principle where a person can acquire legal title to another's land by occupying it in a manner that is open, notorious, hostile, exclusive, and continuous for a statutory period.

• Requires specific elements to be met.
• Statutory period varies by state (e.g., 5 to 30 years).
• Purpose is to encourage productive use of land and settle boundary disputes.

Memory trick: Adverse Possession needs O.C.E.A.N. and Time to truly shine.

A common law principle regarding animal liability where an owner is not liable for injuries caused by their domestic animal unless they had prior knowledge of the animal's dangerous or vicious propensities.

• Applies to domestic animals (e.g., dogs, cats).
• Owner must have knowledge of prior vicious behavior.
• Many states have replaced this with strict liability statutes for dog bites.

Memory trick: One Bite Knows No Strict Negligence.

The failure of a specific bequest or devise in a will because the property is no longer in the testator's estate at the time of their death.

• Applies only to specific gifts.
• Gift is no longer owned by the testator.
• May be partial or total.

Memory trick: Adequate Abatement Lapses Disclaimed.

Land and anything permanently affixed to it, including structures, trees, and minerals below the surface.

• Immovable assets.
• Ownership transferred via deeds.
• Subject to specific laws like zoning and eminent domain.

Memory trick: Real property is fixed and firm, while personal property is free to roam and squirm.

Non-economic damages awarded in civil cases for subjective, non-monetary losses such as pain and suffering, emotional distress, and loss of enjoyment of life.

• Cannot be precisely calculated.
• Compensate for intangible harms.
• Often determined by a jury based on evidence.
• Distinct from special (economic) damages and punitive damages.

Memory trick: Damages: General for 'Gut-wrenching' pain, Special for 'Specific' bills.

An evidentiary rule requiring that the original document, recording, or photograph be produced to prove the content thereof, unless an exception applies.

• Applies when the content of a document is at issue.
• A reliable duplicate is often admissible.
• Exceptions exist for lost, destroyed, or inaccessible originals.

Memory trick: Evidence rules are like game rules, ensuring fairness and truth.

A fundamental principle of criminal law stating that a defendant is considered innocent until proven guilty beyond a reasonable doubt by the prosecution.

• Defendant not required to prove innocence
• Burden of proof is on the prosecution
• Requires proof 'beyond a reasonable doubt'
• Cornerstone of fair trials

Memory trick: Criminal Rights are 'PHED': Presumption, Habeas, Ex Post Facto, Double Jeopardy.

Legal doctrine holding manufacturers or sellers liable for defective products that cause injury, regardless of fault or negligence.

• Plaintiff only needs to prove the product was defective and caused injury.
• Does not require proof of negligence or intent.
• Applies to inherently dangerous activities or defective products.
• Aims to protect consumers and encourage safer products.

Memory trick: Strict Liability: No fault, just facts of the defect.

The questioning of a witness by the party who did not call the witness to testify, typically aimed at challenging the witness's credibility, accuracy, or bias, or to elicit favorable information.

• Occurs after direct examination.
• Usually involves leading questions.
• Aims to clarify, challenge, or impeach testimony.

Memory trick: Questioning: The legal 'Q&A' session in court.

A form of subject-matter jurisdiction in federal courts, allowing them to hear cases when the parties are from different states and the amount in controversy exceeds a statutory minimum (currently $75,000).

• Parties from different states (or state vs. foreign state)
• Amount in controversy > $75,000
• Allows federal court to hear state law claims

Memory trick: Federal courts have 'FQD' - Federal Question or Diversity.

In negligence law, the link between the defendant's breach of duty and the plaintiff's injury, requiring both factual causation (but-for test) and proximate causation (foreseeability).

• Often the most challenging element to prove.
• Requires demonstrating 'but for' the defendant's actions, the injury would not have occurred.
• Also requires the injury to be a foreseeable result of the breach.

Memory trick: Duty Breached, Causing Damage, Easy to Remember.

A legal doctrine meaning 'a matter judged,' which prevents the same parties from re-litigating claims that have already been decided on the merits by a court of competent jurisdiction.

• Also known as claim preclusion.
• Requires a final judgment on the merits.
• Applies to the same parties and the same claims.

Memory trick: Preclusion stops repeat performances in court.

A law or regulation enacted by a local governmental body, such as a city council or county commission, to govern local matters within its jurisdiction.

• Applies locally (city, county).
• Governs issues like zoning, noise, public safety.
• Must not conflict with state or federal law.

Memory trick: Law comes from many 'sources' like a river's branches.

A situation in contract law where both parties to a contract have a fundamental misunderstanding or erroneous belief about a material fact at the time the contract was formed.

• Must be a mistake of fact, not judgment.
• The mistake must be material (essential to the contract).
• Can render a contract voidable by the adversely affected party.

Memory trick: Contract defenses are like shields against enforcement.

A fundamental ethical obligation requiring an attorney to act solely in the best interests of their client, free from conflicts of interest, and to prioritize the client's objectives above all others.

• Core ethical duty
• Avoids conflicts of interest
• Prioritizes client's interests
• Essential for trust and confidence

Memory trick: Attorneys have 'LCDC': Loyalty, Confidentiality, Diligence, Candor.

A legal principle by which courts are bound to follow precedents established by previous decisions when deciding new cases with similar facts or issues.

• Latin for 'to stand by things decided'
• Ensures consistency and predictability in law
• Lower courts must follow higher court precedents
• Foundation of common law systems

Memory trick: Stare Decisis: 'Stand by Decisions' – like a judge looking at old case books.

A tort that occurs when one's extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another.

• Requires extreme and outrageous conduct
• Requires intent or recklessness
• Causes severe emotional distress (physical harm not required)

Memory trick: Intentional Torts Intend to Hurt: IIED is 'Extreme Emotion Distress'.

The fundamental components that must be present for an agreement to be legally recognized and enforceable as a contract.

• Offer and Acceptance (mutual assent)
• Consideration (exchange of value)
• Capacity (parties are competent)
• Legality (purpose is lawful)

Memory trick: Contracts need 'OACLC': Offer, Acceptance, Consideration, Legality, Capacity.

Federal Rule of Evidence 403 permits a court to exclude relevant evidence if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

• Applies even to relevant evidence.
• Requires a 'substantial' outweighing of probative value.
• Common grounds: unfair prejudice, confusion, delay.

Memory trick: FRE guides what's fair for the jury's ears.

Monetary awards in a civil lawsuit intended to compensate the injured party for their actual losses and to restore them to the position they were in before the injury or wrong occurred.

• Can include economic (special) and non-economic (general) damages.
• Aims to 'make the plaintiff whole'.
• Distinct from punitive damages.

Memory trick: Damages are the dollar signs of justice.

The highest and most rigorous standard of judicial review, applied when a government action infringes upon a fundamental constitutional right or involves a suspect classification.

• Government must show a 'compelling state interest'.
• The law must be 'narrowly tailored' to achieve that interest.
• The law must be the 'least restrictive means' available.

Memory trick: Scrutiny: How closely the court 'inspects' a law.

The body of law that governs the interpretation and implementation of the U.S. Constitution and state constitutions, defining governmental powers and individual rights.

• Defines government structure and powers
• Protects individual rights (e.g., due process, free speech)
• Supreme law of the land
• Cases often involve judicial review of laws/actions

Memory trick: Laws are 'CCCAT': Constitutional, Criminal, Civil, Administrative, Tort.

A civil wrong caused by a failure to act with the level of care that someone of ordinary prudence would have exercised under the same circumstances.

• Requires a duty of care, breach of duty, causation, and damages.
• Most common type of tort.
• Does not require intent to harm.

Memory trick: Torts are like a 'No-No' list for society – breaking them causes civil harm.

A court order compelling a government official, lower court, or public body to perform a specific, non-discretionary duty that they are legally obligated to carry out.

• Issued by a superior court.
• Forces performance of a public or statutory duty.
• Used when no other adequate legal remedy exists.

Memory trick: Writs are like the court's 'command letters' to make things happen.

A form of alternative dispute resolution (ADR) in which a dispute is submitted to one or more impartial third persons (arbitrators) for a decision, which is often legally binding.

• Often contractually agreed upon.
• Faster and less formal than litigation.
• Decision is typically binding and difficult to appeal.

Memory trick: ADR offers options to avoid court's long reports.

A standard of fault in defamation law, particularly for public figures, requiring proof that the defendant published a defamatory statement knowing it was false or with reckless disregard for its truth or falsity.

• Required for public figures/matters of public concern
• Higher standard than negligence
• Defendant knew statement was false
• OR acted with reckless disregard for truth

Memory trick: Defamation 'FPHAS': False, Published, Harm, Actual Malice (if public), Standard of Fault.

The boundaries defining what information can be requested during the discovery phase of litigation, which is generally broader than what is admissible at trial.

• Relevant to claims/defenses
• Proportional to case needs
• NOT privileged
• Need not be admissible if 'reasonably calculated to lead to admissible evidence'

Memory trick: Discovery's Scope: 'RAPP' - Relevant, Admissible-leading, Proportional, Not-Privileged.

A court that has the power to hear only certain kinds of cases, such as small claims, traffic violations, or family matters, often with monetary limits.

• Handles specific case types
• Often has monetary limits
• Examples: small claims, traffic, family courts

Memory trick: Jurisdiction Jumps: Limited is low, General is grand, Appellate ascends, Supreme is sovereign.

A legal instrument in writing that, when executed and delivered, conveys title to or an interest in real property from one party (grantor) to another (grantee).

• Must be in writing and signed by the grantor.
• Transfers legal title to real property.
• Recording provides public (constructive) notice of ownership.

Memory trick: Real estate docs are the 'paper trail' for property.

In criminal law, the 'guilty mind' or criminal intent; it refers to the mental state a defendant must have had at the time of committing a crime.

• A fundamental element of most crimes.
• Typically categorized as purpose, knowledge, recklessness, or negligence.
• Distinguished from 'actus reus' (the guilty act).

Memory trick: Crime needs a mind and an act.

A request by a party in a jury trial to a judge to remove a potential juror who is demonstrably biased, prejudiced, or incapable of being impartial due to a specific reason.

• Requires a stated reason, approved by the judge.
• Unlimited in number, unlike peremptory challenges.
• Aims to ensure a fair and impartial jury.

Memory trick: Voir Dire: The 'truth-telling' session for jurors.

A legal obligation imposed on an individual to adhere to a standard of reasonable care while performing any acts that could foreseeably harm others.

• First element of negligence
• Determines the 'standard of care' owed
• Based on what a 'reasonable person' would do
• Breach of duty leads to liability

Memory trick: Negligence Needs 'DBCD': Duty, Breach, Causation, Damages.

A Fifth Amendment protection allowing an individual to refuse to answer questions or provide information that might incriminate them in a criminal proceeding.

• Often referred to as 'pleading the Fifth'.
• Applies to testimonial evidence, not physical evidence.
• Protects against compelled testimony in criminal cases.
• Can be asserted by witnesses as well as defendants.

Memory trick: Fifth Amendment: Don't 'F'orget your fundamental protections.

A U.S. Constitutional amendment that guarantees certain rights to criminal defendants, including the right to a speedy and public trial, an impartial jury, to be informed of the accusation, to confront witnesses, to have compulsory process for obtaining witnesses, and to have assistance of counsel.

• Applies to criminal prosecutions.
• Ensures fairness in the trial process.
• Right to counsel is a crucial component.

Memory trick: Criminal rights are numbered for easy recall.

A clause in Article VI of the U.S. Constitution stating that the Constitution, federal laws, and treaties are the 'supreme law of the land,' meaning they take precedence over conflicting state laws.

• Found in Article VI of the U.S. Constitution.
• Ensures uniformity in application of federal law.
• Foundation for federal preemption of state law.

Memory trick: The Constitution: The blueprint for America's legal house.

A tort that occurs when a third party intentionally induces a breach of a valid contract between two other parties, causing damages.

• Requires a valid contract.
• Defendant must know about the contract.
• Interference must be intentional and unjustified.
• Plaintiff must suffer damages.

Memory trick: Business torts protect fair play in the market.

A situation in which an attorney's personal interests or duties to another client or third party may materially limit the attorney's ability to represent a client loyally and diligently.

• Requires informed consent from affected clients, often in writing.
• Some conflicts are non-consentable (e.g., direct adversity between current clients).
• Rules aim to preserve loyalty and confidentiality.

Memory trick: Ethics are the pillars of trust in law.

The power of a court to hear a case for the first time, as opposed to appellate jurisdiction, which is the power to review a lower court's decision.

• Trial courts typically have original jurisdiction.
• Federal courts have original jurisdiction over federal questions.
• State courts have original jurisdiction over state law matters.

Memory trick: Original stories start at the beginning, appeals review the middle.

A legal principle that protects confidential communications between an attorney and their client from compelled disclosure in legal proceedings, provided the communication is for the purpose of seeking or rendering legal advice.

• Protects client-attorney communications
• Must be confidential
• Must be for legal advice
• Client holds the privilege

Memory trick: Privileges are 'ASPW': Attorney, Spousal, Physician, Work-Product.

The amendment to the U.S. Constitution that reserves powers not delegated to the federal government to the states or the people.

• Part of the Bill of Rights.
• Establishes the principle of federalism.
• Limits the powers of the federal government.
• Provides a constitutional basis for states' rights.

Memory trick: Remember the Tenth for 'The Powers that Remain' for states.

A formal document analyzing a legal question based on specific facts and legal authority, typically advising a supervising attorney.

• Objective analysis of law and facts.
• Standardized format for clarity and efficiency.
• Used for internal legal advice.

Memory trick: Remember, 'IRAC' helps with the Discussion, but the memo starts with facts!