Paralegal Certification Prep flashcards

The legal requirements to establish the authenticity and admissibility of a photograph in court.

• Witness must testify photo is a fair and accurate representation
• Witness does not need to be the photographer
• Relevance and lack of undue prejudice are also required

Memory trick: For photos, 'Accurate View' is key, not who pressed the button.

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'.

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.

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.

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.

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'.

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.

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!

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 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.

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 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.

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.

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 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!

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.

Words and symbols used in search queries to combine or exclude keywords, allowing for more focused and precise search results in legal databases.

• AND narrows search results by requiring all terms to be present.
• OR broadens search results by finding any of the specified terms.
• NOT excludes specific terms from the search results.

Memory trick: Precision with operators, not just words.

A legal entity separate from its owners, providing limited liability to shareholders and allowing for extensive capital raising through the sale of stock. Profits are taxed at the corporate level and again when distributed as dividends (double taxation).

• Limited liability for shareholders.
• Ability to raise capital through stock issuance.
• Formalities required (bylaws, board meetings).
• Subject to double taxation (corporate and shareholder level).

Memory trick: Growing your biz? 'C'hoose 'C'arefully for 'C'apital.

Confidential business information that gives a company a competitive advantage because it is not generally known or ascertainable by others, and for which reasonable steps are taken to maintain its secrecy.

• No registration required.
• Protection lasts indefinitely as long as secrecy is maintained.
• Examples include formulas, recipes, processes, customer lists.

Memory trick: IP is like a 'PACT' for your brain-children: Patent, Art, Company, Trade-secret.

A business structure that provides its owners with limited liability protection from business debts and lawsuits, while also offering flexible management and pass-through taxation similar to a partnership or sole proprietorship.

• Offers limited personal liability.
• Flexible management (member-managed or manager-managed).
• Pass-through taxation (avoids double taxation).
• Fewer formalities than a corporation.

Memory trick: Choosing a business is about balancing liability, taxation, and control.

The Uniform Commercial Code (UCC) provides guidance on interpreting quantity terms in contracts for the sale of goods, often allowing for flexibility with terms like 'approximately' or 'more or less.'

• UCC prioritizes upholding contracts where intent is clear.
• Terms like 'approximately' allow for reasonable deviation.
• Reasonable deviation is often around 10% but can depend on trade usage.

Memory trick: UCC: 'Understand' Contracts Clearly, 'Carefully' interpret terms.

A legal principle, present in most contracts, requiring parties to act honestly and not to do anything that would deprive the other party of their right to receive the benefits of the agreement.

• Applies to all contracts (common law and UCC).
• Prevents opportunistic behavior and evasion of the spirit of the contract.
• Often invoked when one party uses discretion to unfairly benefit themselves.

Memory trick: Contracts need 'H.O.N.E.S.T.' intentions for 'Good Faith'.

The voluntary and intentional relinquishment of a known right or privilege. In contract law, a party's conduct, such as accepting partial performance without protest, can imply a waiver of their right to enforce the original terms of the contract for that specific instance or period.

• Must be a voluntary act or clear conduct.
• The party must have knowledge of the right being waived.
• Can be express or implied by conduct.
• A waiver of one breach does not necessarily waive all future breaches.

Memory trick: Waiver: Your silence can give away your right.

A contract is discharged by breach when one party fails to perform their contractual obligations without a valid excuse, giving the non-breaching party the right to seek remedies and terminate the contract.

• Occurs when a party fails to perform.
• Can be minor or material breach.
• Material breach discharges the non-breaching party's duties.

Memory trick: Contracts can end in many ways, but a 'breach' is a broken promise.

A breach of contract occurs when one party fails to fulfill their obligations as specified in a legally binding agreement.

• Can be minor or material.
• Material breach often excuses the non-breaching party from further performance.
• Remedies include damages, specific performance, or rescission.

Memory trick: Contracts are like promises, a 'breach' is when a promise is broken.

A contractual clause that specifies which jurisdiction's laws will be used to interpret and govern the contract, typically in cases involving parties from different jurisdictions.

• Allows parties to select applicable law.
• Generally enforceable unless against public policy or no reasonable relationship.
• Important for predictability and consistency in multi-jurisdictional contracts.

Memory trick: For disputes, remember 'J.A.C.K.' (Jurisdiction, Arbitration, Choice of Law, K-terms).

A legal contract between at least two parties that outlines confidential material, knowledge, or information that the parties wish to share with one another for certain purposes, but wish to restrict access to or by third parties.

• Protects trade secrets and confidential information.
• Common in employment, business negotiations, and partnerships.
• Typically includes definitions of confidential information, obligations of the receiving party, and duration.

Memory trick: Don't 'NDA' anything you want the world to know!

The enforceability of a non-disclosure agreement's duration clause depends on its reasonableness, typically requiring a specific time limit. Perpetual clauses are often disfavored by courts unless the information constitutes a true trade secret.

• Courts prefer reasonable, finite durations.
• Perpetual clauses are often challenged.
• True trade secrets can have indefinite protection.
• Overly broad clauses may be deemed unenforceable or reformed.

Memory trick: An NDA needs clear boundaries for 'scope,' 'duration,' and 'definition' to hold up.

A business structure where two or more individuals agree to share in all assets, profits, and financial and legal liabilities of a business. Partners have unlimited personal liability.

• Easy to form (often by agreement, even verbal).
• Partners share management, profits, and losses.
• All partners have unlimited personal liability for business debts and obligations.

Memory trick: Starting a business? 'C'hoose 'P'roperly 'L'imiting 'S'haring.

A common law rule stating that an acceptance of an offer becomes effective (and thus a contract is formed) at the moment the acceptance is dispatched by the offeree, provided the offer did not specify otherwise and the dispatch was made in a proper manner.

• Applies primarily to non-instantaneous forms of communication (e.g., mail).
• Acceptance is effective upon dispatch, not receipt.
• Revocation is effective upon receipt.
• Does not apply if the offer specifies acceptance must be 'received'.

Memory trick: Mailbox rule: Send it, and it's done!

Contractual provisions used to ensure that intellectual property created by an independent contractor or employee becomes the property of the hiring party from its creation or is immediately assigned to them.

• Critical in contracts with creators (designers, writers, developers).
• Work-for-hire applies primarily to copyright, with specific statutory categories.
• Assignment clauses ensure transfer of all IP rights (copyright, patent, etc.).

Memory trick: To own IP, 'A.C.T.' (Assignment, Copyright, Transfer).

Under the UCC, if a seller breaches a contract for goods, the buyer can 'cover' by purchasing substitute goods and recover the difference between the cover price and the contract price, plus incidental and consequential damages.

• Cover must be made in good faith and without unreasonable delay.
• Damages = (Cover Price - Contract Price) + Incidental & Consequential Damages - Expenses Saved.
• Buyer is also entitled to recover any prepaid portion of the price.

Memory trick: When the seller 'Screws Up', the buyer can 'C.R.E.A.M.' (Cover, Recover, Expenses, All Money).

A legal right granted to the creator of an original work of authorship, such as literary, dramatic, musical, and certain other intellectual works, providing exclusive rights to reproduce, distribute, perform, display, and adapt the work.

• Protects original works fixed in a tangible medium.
• Automatic upon creation, but registration offers more legal benefits.
• Does not protect ideas, only the expression of ideas.
• Lasts for the life of the author plus 70 years (for individual works).

Memory trick: CREATE protects creations, not just brands or secrets.

An offeror can revoke an offer at any time before it has been accepted by the offeree. Revocation is generally effective when it is received by the offeree.

• Offeror controls the offer and can terminate it.
• Revocation must be communicated to the offeree.
• Revocation is effective upon receipt by the offeree.
• An offer stating a time limit is not irrevocable unless it's an option contract (supported by consideration).

Memory trick: Offers can vanish if the message arrives before the 'yes'.

Damages awarded in a breach of contract case that aim to place the non-breaching party in the position they would have been in had the contract been fully performed, giving them the 'benefit of the bargain'.

• Most common type of damages for breach.
• Calculated to cover lost profits and costs.
• Must be foreseeable and proven with reasonable certainty.

Memory trick: When a contract breaks, damages aim to mend the financial harm.

A common law principle that holds that parties to a contract must act in good faith and deal fairly with each other, even if specific terms are not explicitly stated.

• Applies to most contracts.
• Prevents parties from acting arbitrarily or unreasonably.
• Requires cooperation and adherence to the spirit of the agreement.

Memory trick: Good faith and fair dealing: 'Good' for both, 'Fair' for all.

Rules governing ownership of inventions created by employees, often determined by the scope of employment, use of company resources, and specific contractual agreements (e.g., assignment clauses, shop rights).

• Employer owns inventions made within scope of employment or using company resources.
• Employee generally owns inventions made on personal time/resources, outside scope of employment.
• Assignment clauses or 'shop rights' can alter default rules but are often strictly interpreted.

Memory trick: Who owns the 'IDEA'? Look at the 'R.A.D.S.' (Resources, Agreement, Duties, Scope).

A clear and unequivocal indication by one party to a contract, made before the time for performance, that they will not perform their contractual obligations. This gives the non-breaching party the option to treat the contract as immediately breached and sue for damages.

• Must be a clear, unequivocal statement or action.
• Occurs before the performance is due.
• Allows the non-breaching party to sue immediately for damages.
• The non-breaching party may also choose to wait for the performance date or urge performance.

Memory trick: Anticipate the 'no,' then sue for the 'show.'

A legal right granted to an inventor by the government that allows the inventor to exclude others from making, using, or selling their invention for a limited period, typically 20 years for utility patents.

• Protects new, useful, and non-obvious inventions.
• Requires a formal application process with the government.
• Grants exclusive rights for a limited time (e.g., 20 years for utility patents).
• There are utility, design, and plant patents.

Memory trick: Patents protect inventions, making them yours.

The Statute of Frauds requires certain contracts, including those for the sale of goods over $500, to be in writing to be enforceable. However, under the Uniform Commercial Code (UCC), partial performance (e.g., payment or acceptance of goods) can make an oral contract enforceable to the extent of that performance.

• Applies to contracts for the sale of goods $500 or more.
• Requires a writing signed by the party against whom enforcement is sought.
• Partial performance (payment or delivery/acceptance of goods) is an exception, making the contract enforceable to the extent of the performance.

Memory trick: Written words or partial deeds make contracts real.

For breach of a construction contract, damages are typically measured by the cost of completion or replacement to bring the work into conformity with the contract, unless this would result in unreasonable economic waste.

• Cost of completion is preferred unless it's disproportionate.
• Diminution in value (difference between value of promised and delivered) is used if cost of completion is wasteful.
• Goal is to put the non-breaching party in the position they would have been in.

Memory trick: Remedies: 'S.P.E.C.S.' (Specific performance, Punitive, Expectation, Consequential, Statutory).

A legal process by which all parties to a contract agree to substitute a new party for one of the original parties, or to substitute a new agreement for an old one, thereby discharging the obligations of the original contract.

• Requires agreement by all original parties and the new party.
• Substitutes a new party or a new obligation.
• Completely discharges the original contract and its parties.
• Distinct from assignment, where original party remains liable.

Memory trick: Novation: New people, new deal, old one is done.

The unauthorized use of a trademark or a confusingly similar mark in connection with goods or services in a manner that is likely to cause confusion, deception, or mistake among consumers.

• Protects brand names, logos, slogans.
• Focuses on likelihood of consumer confusion.
• Can be registered or unregistered (common law trademark).
• Remedies include injunctions, damages, and sometimes destruction of infringing goods.

Memory trick: Trademarks stop brand confusion, clearly.

A request made to the court by one party in a lawsuit to force the opposing party to produce documents, answer interrogatories, or provide other information that has been requested during discovery but withheld.

• Used when a party refuses to comply with discovery requests.
• Asks the court to order compliance.
• Requires a showing that the requested discovery is relevant and not privileged.
• Often a prerequisite for seeking discovery sanctions.

Memory trick: Compel: make them comply; Protect: keep it private.

A hearsay exception allowing admission of a record of an act, event, condition, opinion, or diagnosis if it was made at or near the time by — or from information transmitted by — someone with knowledge, kept in the course of a regularly conducted business activity, and making the record was a regular practice of that activity.

• Record of regularly conducted activity.
• Made at or near the time by someone with knowledge.
• Kept in the ordinary course of business.
• Regular practice of that activity.

Memory trick: Hearsay exceptions: when the story is old, but the purpose is bold.

The process of proving that a photograph is what its proponent claims it to be, typically by testimony from a witness with personal knowledge.

• Requires testimony from a witness with personal knowledge.
• Witness must state it is a 'fair and accurate representation'.
• Does not need to be the photographer.
• Establishes a foundation for admissibility.

Memory trick: Authenticity: a witness confirms, 'Yes, that's really it!'

In a criminal case, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

• Applies in criminal cases.
• Allows defense to introduce victim's character trait (e.g., violence).
• Often used to support self-defense claims.
• Opens the door for the prosecution to rebut.

Memory trick: Character evidence: not for general use, but exceptions prove the rule.

A legal doctrine where a plaintiff's damages are reduced by their percentage of fault, but they are completely barred from recovery if their fault is found to be 51% or greater.

• Plaintiff's fault reduces damages proportionally.
• If plaintiff is 51% or more at fault, they recover nothing.
• Commonly referred to as the '51% rule' or 'not as great as' rule.
• Differs from pure comparative negligence where recovery is always possible unless 100% at fault.

Memory trick: Fault lines: where your recovery fortune lies.

A revocable, personal privilege to enter or use another's land for a specific purpose, without conveying any interest in the land.

• Personal and not transferable.
• Revocable at will by the landowner.
• Does not create an interest in real property.

Memory trick: A license is like a library card: temporary, personal, and can be revoked.

A testamentary gift of a specified amount or quantity to be paid from a designated fund or property. If the fund/property is insufficient or ceases to exist, it becomes a general legacy, payable from the general assets of the estate.

• Combines aspects of specific and general legacies.
• Designates a source but offers a fallback.
• Not subject to ademption if the source fails.

Memory trick: Demonstrative gifts DEMOnstrate a source, but have a backup plan.

A contractual provision that mandates that any disputes arising under the contract will be resolved through binding arbitration rather than litigation in court.

• Favored by law (e.g., Federal Arbitration Act).
• Generally enforceable unless found unconscionable or invalid.
• Results in an award that is typically binding and difficult to overturn.

Memory trick: Arbitration = Always Resolve Before Trial.

An equitable remedy that compels a breaching party to fulfill the terms of a contract, rather than paying monetary damages. It is typically ordered when the subject matter of the contract is unique and monetary damages would not adequately compensate the non-breaching party.

• Available when goods are unique or land contracts.
• Not available for personal service contracts.
• Discretionary remedy, not granted automatically.

Memory trick: Specific Performance = Perform Exactly as Promised.

A buyer's remedy under the Uniform Commercial Code (UCC) that allows the buyer to purchase substitute goods from another source after a seller's breach and recover the difference between the contract price and the cost of the substitute goods.

• Applies when a seller breaches a contract for the sale of goods.
• Buyer must act in good faith and without unreasonable delay.
• Buyer can recover the difference between the cost of cover and the contract price, plus incidental and consequential damages, less expenses saved.

Memory trick: When the seller's goods don't show, the buyer can 'Cover' their flow.

A type of corporation that meets specific IRS requirements to be taxed under Subchapter S of the Internal Revenue Code. It provides limited liability to owners while avoiding corporate-level taxation, as profits and losses are passed through directly to the owners' personal income.

• Limited liability for owners.
• Pass-through taxation (avoids double taxation).
• Subject to certain restrictions (e.g., number and type of shareholders).

Memory trick: S Corp = Smart for Small, Single-Tax.