Paralegal Certification Prep flashcards

The section of a legal complaint that specifies the remedies or damages the plaintiff is seeking from the court.

• Outlines requested remedies (e.g., money, injunction)
• Crucial for determining potential judgment
• Must be specific enough for the court to grant

Memory trick: Plaintiffs PRAY for proper PLACE and FACTS.

A comprehensive set of laws governing commercial transactions, adopted in whole or in part by all U.S. states.

• Governs sales of goods (Article 2), negotiable instruments, secured transactions, etc.
• Aims to harmonize state laws for commercial activities.
• Primary source of law for many business contracts.

Memory trick: For 'Commercial' 'Contracts', the 'UCC' is the 'Universal' 'Code'.

A provision in a contract that specifies which jurisdiction's laws will govern the interpretation and enforcement of the agreement, particularly when parties are from different jurisdictions.

• Avoids conflicts of law disputes.
• Parties can often choose the law of a state with little connection, if reasonable.
• Does not determine the forum (where a lawsuit is filed).

Memory trick: Choice of Law: Pick your legal playground.

A discovery tool used in litigation to compel an opposing party to produce specific documents, electronically stored information, or other tangible items relevant to the case.

• Targets documents, ESI, and tangible things
• Must be specific in description
• Opposing party must produce or state objections

Memory trick: DIP RARE documents and facts.

A scholarly, multi-volume work providing comprehensive, in-depth analysis of a specific legal subject.

• Offers detailed explanations and critical commentary.
• Written by legal experts and scholars.
• Highly persuasive, especially for novel or developing areas of law.

Memory trick: To 'Treat' a 'Novel' issue, you need a 'Treatise' that's 'Deep' and 'Wise'.

An action by an appellate court that overturns or voids the judgment of a lower court, finding that the lower court made a legal error.

• Performed by a higher court on a lower court's decision.
• Means the lower court's judgment is no longer valid.
• Distinguished from 'affirm' (uphold) and 'remand' (send back).
• Crucial for determining a case's precedential value.

Memory trick: Higher Courts: Affirm, Reverse, Remand, Vacate.

A concise and specific question posed at the beginning of a legal memorandum or brief that identifies the precise legal problem to be analyzed, incorporating key facts and legal concepts.

• Must be specific to the client's facts.
• Should include relevant legal rules/concepts.
• Often phrased to elicit a 'yes' or 'no' answer or a clear resolution.

Memory trick: Facts and law together, in a question, make it better.

A pre-trial motion filed by a criminal defendant requesting that certain evidence be excluded from consideration at trial because it was illegally obtained or is otherwise inadmissible.

• Challenges legality of evidence acquisition
• Often based on Fourth or Fifth Amendment violations
• Can lead to exclusion of crucial evidence

Memory trick: Suppress the bad, Sever the ties, Change the place, Particulars specify.

A concise, single-sentence statement in a legal memorandum that identifies the specific legal issue to be analyzed, incorporating key facts and the relevant area of law.

• Single sentence.
• Includes specific facts.
• Identifies the legal issue.
• References applicable law.

Memory trick: Fact-Filled, Law-Linked, Issue-Focused Query.

The number identifying the specific book (volume) within a series of legal reporters where a case is published.

• Precedes the reporter abbreviation (e.g., U.S., F.2d, P.3d).
• Indicates which physical book to retrieve.
• Essential for locating the case in a law library or database.

Memory trick: The 'Volume' is like the 'Vessel' holding the 'Verdict'.

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!

A legal principle in the United States criminal procedure that prevents evidence collected or analyzed in violation of the defendant's constitutional rights from being used in a court of law.

• Primary purpose is to deter unlawful police conduct.
• Applies to evidence obtained in violation of the Fourth, Fifth, and Sixth Amendments.
• Has several exceptions, such as the 'good faith' and 'inevitable discovery' doctrines.

Memory trick: Bad cops mean bad evidence.

A standard of appellate review where the appellate court reviews a lower court's decision on questions of law as if it were deciding the matter for the first time, without giving deference to the lower court's legal conclusions.

• Applied to questions of law (e.g., statutory interpretation).
• Means 'from the new' or 'afresh'.
• Allows the appellate court to substitute its own judgment for that of the trial court on legal issues.

Memory trick: Different lenses for looking at lower court errors.

The official compilation and codification of the general and permanent federal statutes of the United States.

• Organized by subject matter into titles.
• Updated regularly to incorporate new laws.
• Primary source of federal statutory law.

Memory trick: Statutes are Coded, Regulations are Registered.

A legal doctrine in tort law where a plaintiff who is found to be even slightly at fault for their own injury is completely barred from recovering any damages from the defendant.

• Any degree of plaintiff fault (e.g., 1%) prevents recovery.
• A harsh rule, adopted by a minority of U.S. states.
• Contrast with comparative negligence, which reduces damages based on fault.

Memory trick: Fault determines how much, or if, you can get.

For complex or unfamiliar legal issues, the most effective starting point for legal research is typically secondary sources, which provide an overview and lead to primary authorities.

• Secondary sources explain legal concepts.
• They cite to relevant primary law (cases, statutes).
• Helps define scope and identify keywords.
• Efficient for gaining initial understanding.

Memory trick: Issue First, Secondary Next, Primary Last.

A clause in a statute that introduces an exception, condition, or limitation to the general rule stated previously.

• Often introduced by 'Provided, however, that' or similar language.
• Creates an exception to the main body of the section.
• Important for precise interpretation of statutory scope.

Memory trick: A 'Proviso' 'Provides' an 'Exception' to the 'Rule'.

A systematic approach to finding and analyzing legal authority to answer a legal question or support a legal argument.

• Starts with facts, ends with application.
• Moves from general to specific.
• Iterative process requiring critical analysis.

Memory trick: Facts and Issues first, then 'Secondary' for the 'Primary' hunt!

Scholarly publications by law students and professors, offering in-depth analysis and critique of legal topics, often influencing legal development.

• Highly persuasive, not binding, authority.
• Excellent for novel or complex legal issues.
• Provide extensive footnotes and citations to primary sources.

Memory trick: When the law is new, go to the 'Reviews' for deep thought!

A request to a judge that a prospective juror be dismissed for a specific reason, such as bias or prejudice, that would prevent them from being fair and impartial.

• Requires a stated reason
• Unlimited in number (if justified)
• Granted by the judge

Memory trick: Challenge for Cause: If the cause is clear bias, the juror is out.

A tort defense system where a plaintiff's recoverable damages are reduced by their percentage of fault, but only if their fault is below a certain threshold (typically 50% or 51%); if above, recovery is barred.

• Plaintiff's fault reduces damages proportionally
• Recovery barred if plaintiff's fault exceeds threshold (e.g., 50% or 51%)
• More common than pure comparative negligence or contributory negligence

Memory trick: PUREly reduce, MODIFIED threshold, CONTRIBUTORY nothing.

An unforeseeable intervening act or event that breaks the causal connection between a defendant's original negligent act and a plaintiff's injury, thereby relieving the defendant of liability.

• Must be unforeseeable
• Occurs after the defendant's act
• Breaks the chain of proximate causation
• Relieves original defendant of liability

Memory trick: Superseding Cause: It's the 'surprise detour' that makes the first driver not responsible for the final crash.

Legal writing intended to convince a court or opposing party of the correctness of one's legal position.

• Advocates for a specific outcome.
• Presents facts and law in a favorable light.
• Must remain truthful and ethically sound.

Memory trick: Tell the 'Facts' like a 'Story' that helps your side, but always 'True'!

A statement describing or explaining an event or condition made while or immediately after the declarant perceived it, admissible as an exception to the hearsay rule.

• Spontaneous utterance
• Describes event as it happens or immediately after
• Reliability comes from lack of time to fabricate

Memory trick: Hearsay is out, but 'Present Sense' lets in words spoken right in the moment.

A section in a legal brief listing all cited legal authorities, organized by type, with references to the page numbers where they appear in the brief.

• Mandatory in most appellate briefs.
• Organized by categories (e.g., cases, statutes, regulations).
• Helps the court quickly locate cited authorities.

Memory trick: The 'Table of Authorities' is the 'Tracker' of all 'Trusted' 'Texts'.

A pretrial motion asking the court to rule that certain evidence may or may not be introduced at trial.

• Filed before or during trial
• Seeks to exclude or admit specific evidence
• Prevents presentation of prejudicial or irrelevant evidence

Memory trick: In Limine means 'on the threshold,' stopping bad evidence at the door.

A defense used in criminal cases where the defendant claims to have been elsewhere at the time the alleged crime was committed.

• Directly contradicts the prosecution's claim of the defendant's presence.
• Requires evidence to support the defendant's whereabouts.
• If successful, proves the defendant could not have committed the crime.

Memory trick: Criminals fight back with various legal shields.

An exception to the general rule against character evidence, allowing its admission when a person's character or character trait is a direct and essential element of a claim, defense, or charge.

• Rare exception to FRE 404
• Character itself is directly at issue, not merely to prove conduct
• Examples: defamation, negligent entrustment, child custody

Memory trick: Character's usually out, unless it's the 'very core' of the case itself.

A series of case reporters published by West Publishing that contains opinions from the U.S. Courts of Appeals.

• F.3d is the Third Series (preceded by F. and F.2d).
• Primary source for federal appellate court decisions.
• Essential for researching federal circuit court precedent.

Memory trick: The 'F' in 'F.3d' means 'Federal', for the 'Federal' 'Appeals' 'Courts'.

A written discovery device that asks the opposing party to admit or deny the truth of certain factual statements or the authenticity of documents.

• Helps to narrow down facts and issues in dispute.
• Responses are binding on the party for the current litigation.
• Failure to respond can result in the statements being deemed admitted.

Memory trick: Discovering truth, one question or fact at a time.

A series of case reporters published by West Publishing that contains decisions of the U.S. Courts of Appeals and, historically, some U.S. District Court cases.

• Primary source for federal appellate court opinions.
• Organized chronologically by volume.
• Uses 'F.', 'F.2d', and 'F.3d' for different series.

Memory trick: Federal cases use 'F' for Federal, 'S' for Supreme Court, and 'U.S.' for U.S. Reports.

A pre-trial motion filed by a defendant arguing that the plaintiff's complaint, even if all its factual allegations are accepted as true, fails to state a claim upon which relief can be granted under the law.

• Filed early in the litigation process.
• Focuses solely on the legal sufficiency of the complaint.
• Does not involve factual disputes or evidence beyond the complaint.

Memory trick: Dispositive motions try to 'Stop' the case before trial.

An exception to the hearsay rule allowing for the admission of records of a regularly conducted activity, made at or near the time by a person with knowledge, kept in the course of that activity.

• Record of a regularly conducted activity
• Made at or near the time
• By or from information by a person with knowledge
• Standard practice for that activity

Memory trick: Hearsay is out, but 'Business Records' are in for routine and reliable facts.

A pre-answer motion by a defendant arguing that, even if all the plaintiff's factual allegations are true, they do not state a claim upon which relief can be granted under the law.

• Filed before or with the answer
• Challenges legal sufficiency of the complaint
• Assumes plaintiff's facts are true for the motion's purpose
• If granted, may allow plaintiff to amend complaint

Memory trick: JURISDICTION (Subject/Personal) is first, then VENUE, PROCESS, PARTIES, and finally, the CLAIM.

A citation to the same case published in a different reporter, typically an official state reporter in addition to a regional reporter.

• Required when a case appears in both official and unofficial reporters.
• Official citation usually listed first.
• Some jurisdictions no longer require or publish official reporters.

Memory trick: No 'Official' means no 'Parallel' to look for!

A legal writ commanding a person to appear in court or at a deposition and to bring with them specific documents, records, or other tangible evidence relevant to the case.

• Compels both appearance and production of evidence.
• Often used in discovery and for trial witnesses.
• Must specify the documents to be produced with reasonable particularity.

Memory trick: Subpoenas: 'Ad Test' for talk, 'Duces Tecum' for documents and talk.

A constitutional amendment that protects people from unreasonable searches and seizures by the government, requiring warrants to be based on probable cause and to particularly describe the place to be searched and the persons or things to be seized.

• Applies to arrests, searches, and seizures of property.
• Requires probable cause for warrants and most arrests.
• Exclusionary rule is a remedy for violations.

Memory trick: Criminal Amendments: '4-Searches', '5-Silence', '6-Trial', '8-Punish'.

A legal standard, primarily used in federal courts, for determining the admissibility of expert scientific testimony, requiring the judge to act as a gatekeeper to ensure the testimony is both relevant and reliable.

• Established in Daubert v. Merrell Dow Pharmaceuticals, Inc.
• Applies to scientific, technical, or other specialized knowledge
• Judge acts as 'gatekeeper' for reliability and relevance
• Factors include testing, peer review, error rate, and general acceptance

Memory trick: DAUBERT's RELIABLE gate, FRYE's general ACCEPTANCE waits.

A legal document issued by a court that officially notifies a defendant of a lawsuit and compels them to appear in court or respond to the complaint within a specified period.

• Initiates court's jurisdiction over the defendant.
• Must be properly served on the defendant.
• Often accompanied by the complaint.

Memory trick: Summons starts the show, telling the defendant, 'You're in the know!'

A provision in a statute designed to preserve existing rights, remedies, or rules that would otherwise be abrogated by the new law, or to allow for other laws to supersede its provisions.

• Prevents unintended repeal or alteration of existing law.
• Often uses phrases like 'unless otherwise provided' or 'except as modified'.
• Aids in statutory interpretation by clarifying legislative intent.

Memory trick: To 'Save' existing law, look for 'unless otherwise'!

A rule of evidence that generally requires the original writing, recording, or photograph to prove its contents, unless exceptions apply.

• Applies when proving the content of a document
• Originals include electronic documents
• Duplicates generally admissible (FRE 1003)
• Exceptions for lost/destroyed originals (FRE 1004)

Memory trick: BEST evidence is the ORIGINAL; HEARsay is a NO-GO, PAROL is for CONTRACTS.

An exception to the hearsay rule for a statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

• Requires a startling event
• Statement must 'relate' to the event
• Made while under the 'stress of excitement'
• Declarant's availability is immaterial

Memory trick: PRESENT Sense, EXCITED Utterance, RECORDS, and then the REST.

The process of establishing that electronic evidence, such as emails, texts, or digital files, is what its proponent claims it to be.

• Requires sufficient evidence to support a finding of authenticity
• Methods include witness testimony, distinctive characteristics, expert comparison
• Distinct from the Best Evidence Rule

Memory trick: Authenticity confirms 'It's Real', Best Evidence confirms 'It's the Original'.

A defense in which the defendant introduces new evidence or arguments that, if found to be credible, will negate criminal or civil liability, even if the facts presented by the prosecution or plaintiff are true.

• Defendant bears the burden of proving it
• Introduces new facts/arguments
• Can defeat a claim even if plaintiff's allegations are true

Memory trick: Affirmative defenses affirm a reason to win, even if the plaintiff is right on the facts.

The core analytical section of a legal memorandum, presenting an objective application of law to facts, often using IRAC or CREAC.

• Objective and neutral tone.
• Applies legal rules to specific facts.
• Addresses strengths and weaknesses of client's case.

Memory trick: The 'Discussion' is where the 'Debate' happens, fairly and fully!

The first official publication of a federal statute, issued individually shortly after it has been enacted into law.

• Uncodified, presents the law exactly as passed.
• Identified by a public law number (e.g., Pub. L. No. 117-103).
• Precedes publication in the U.S. Statutes at Large and U.S. Code.

Memory trick: First, the 'Slip' is 'Passed,' then it's 'Collected,' then 'Coded'!

The prescribed order for listing multiple citations to the same case when it is published in more than one reporter, typically official reporter first, then unofficial reporters.

• Applies to state court cases published in official and regional reporters.
• Official reporter citation always precedes unofficial.
• Federal cases generally do not require parallel citations in the same way.
• Governed by Bluebook Rule 10.3.1.

Memory trick: Official First, Unofficial Next, Always Correct.

A specific type of motion in criminal law, based on the Supreme Court's ruling in Brady v. Maryland, that compels the prosecution to disclose any exculpatory evidence (evidence favorable to the defendant) to the defense.

• Mandated by the Fifth and Fourteenth Amendments.
• Applies to evidence that is material to guilt or punishment.
• Failure to disclose can lead to reversal of conviction.

Memory trick: Criminal defense motions: 'Sup'press, 'Brady' for truth, 'Limine' limits.

Federal Rule of Evidence 404(b) generally prohibits the use of evidence of a person's character or prior bad acts to prove that on a particular occasion the person acted in accordance with that character.

• Cannot be used to show propensity to commit the act.
• May be admissible for other purposes, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
• Aims to prevent unfair prejudice against the defendant.

Memory trick: Evidence must pass tests to enter the courtroom.

A concise, direct answer to the 'Question Presented' in a legal memorandum, usually followed by a brief summary of the key reasons for that answer.

• Directly answers the 'Question Presented'.
• Typically one to two sentences.
• Provides a brief summary of the conclusion's reasoning.
• Appears early in the memo, after the facts and question presented.

Memory trick: Answer Briefly, Explain Quickly.

An objection raised when a question, typically on cross-examination, incorporates a factual assertion that has not been established through prior testimony or admitted evidence in the trial.

• Prevents attorneys from subtly introducing unproven facts.
• Forces the attorney to lay a proper foundation for the assumed fact.
• Ensures that questions are based on the evidence presented in court.

Memory trick: Stop improper questions in their tracks.

A request made by a plaintiff to a court for a judgment against a defendant who has failed to appear in court or file an answer to the plaintiff's complaint.

• Filed when defendant fails to respond to complaint
• Can result in judgment without trial
• Requires proof of proper service

Memory trick: Don't Respond, Default's On!

Online tools (like KeyCite and Shepard's) used to verify the precedential value of legal authorities and find all citing references.

• Tracks judicial history (affirmed, reversed, overruled).
• Identifies all cases, statutes, and secondary sources that have cited a particular authority.
• Essential for 'Shepardizing' or 'KeyCiting' to ensure authority is still good law.

Memory trick: To 'Shepard' the 'Sheep' (cases), use a 'Citator' to 'See' who 'Cited' them.

The core analytical section of a legal memorandum where legal principles are applied to the facts.

• Analyzes how law applies to specific facts.
• Discusses strengths and weaknesses of arguments.
• Predicts the probable legal outcome.

Memory trick: Remember, the 'Memo Discussion' is where you 'Discuss' the 'Details' of the 'Decision'.

The procedural mechanism by which multiple parties are brought together in a single lawsuit, either as plaintiffs or defendants, to resolve related claims and avoid fragmented litigation.

• Can be permissive (parties may be joined) or compulsory (parties must be joined).
• Aims to promote judicial efficiency and prevent inconsistent judgments.
• Governed by rules of civil procedure (e.g., FRCP 19 and 20).

Memory trick: Efficiency in court avoids future headaches.

A clause in a statute that introduces an exception, limitation, or condition to the general rule stated in the preceding text, often introduced by phrases like 'provided that' or 'provided, however, that'.

• Creates an exception to a general rule.
• Limits the scope of the main provision.
• Often signaled by specific phrasing ('provided that', 'except that').
• Crucial for precise interpretation of statutory intent.

Memory trick: Proviso Provides Exceptions, Savings Saves Rights.

A motion made during a jury trial, typically after the opposing party has presented its case, asking the judge to rule in favor of the moving party because no reasonable jury could find for the opposing party based on the evidence presented.

• Also known as 'judgment as a matter of law' in federal courts (FRCP Rule 50(a)).
• Made before the case goes to the jury.
• Tests the legal sufficiency of the evidence presented.

Memory trick: Trial motions: 'Directed' to the judge, 'JNOV' after the jury is heard.

A type of subject matter jurisdiction in federal courts that allows them to hear cases based on state law if the parties are citizens of different states and the amount in controversy exceeds a statutory minimum (currently $75,000).

• Parties must be from different states (complete diversity).
• Amount in controversy must exceed $75,000.
• Allows federal courts to hear state law claims.

Memory trick: Federal courts care about 'Fed-Q' or 'Diversity' to get involved.

Fundamental rules guiding the production of effective and understandable legal documents.

• Emphasizes clarity, conciseness, and precision.
• Requires objective and logical presentation of facts.
• Aims to persuade through reason, not emotion.

Memory trick: To write 'Effectively', be 'Clear', 'Concise', and 'Compelling'.

The official record of the proceedings and debates of the U.S. Congress, published daily when Congress is in session.

• Contains floor debates, votes, and other Congressional actions.
• Primary source for legislative history research.
• Includes remarks from House and Senate members.

Memory trick: To hear the 'Record' of 'Congress,' check the 'Congressional Record'!