The Paralegal Professional

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Chapter One—The Paralegal Professional

True/False Questions

1. Generally, the terms “paralegal” and “legal assistant” are interchangeable. (T)

2. The principal function of paralegals and legal assistants is helping their attorney

supervisors prepare for hearings, trials, and other events, such as closings. (T)

3. The American Bar Association has expressed no opinions or viewpoints on legal assistants. (F)

4. The Department of Labor predicts strong growth for the paralegal occupation through the year 2010. (T)

5. The NFPA and NALA are two, prominent, national paralegal organizations. (T)

6. Paralegal and legal assistant education programs must be ABA approved. (F)

7. The American Association for Paralegal Education believes that academically qualified paralegals are those with bachelor’s degree in legal studies. (F)

8. As it concerns educational requirements, the U.S. Attorney’s Office requires that appropriate candidates for paralegal positions have a paralegal certificate. (F)

9. Paralegals who are members of either the NFPA or NALA may seek to earn certification titles (T)

10. Paralegals and legal assistants with certifications must maintain a schedule of continuing education credits. (F)

Multiple Choice Questions

1. The following organization is one that has no connection to paralegals and legal assistants:

A) The NFPA.

B)* The NBA.

C) The NALA.

D) The AAfPE.

2. All of the following qualification-options are generally included in a paralegal or legal assistant definition except:

A) Education.

B) Training.

C)* Personal Experience.

D) Work Experience.

3. Paralegals and legal assistants work in the following settings:

A) Law firms.

B) Corporations.

C) Government Agencies.

D)* All of the above.

4. According to the 2000 Occupational Outlook Handbook, the highest, median annual paralegal salary was for those who worked for:

A)* Federal government.

B) Local government.

C) Legal services.

D) State government.

5. According to a 1998 ABA survey on the use of legal assistants:

A) Lawyers in larger law firms gave greater responsibilities to their legal assistants.

B)* Lawyers in smaller law firms gave greater responsibilities to their legal assistants.

C) Lawyers in corporate law departments gave greater responsibilities to their legal

assistants.

D) Lawyers in government agencies gave greater responsibilities to their legal assistants.

6. According to the Occupational Outlook Handbook, from 1998-2008 the largest projected increase in jobs requiring a certain level of education will be those jobs requiring a(n):

A)* Associate degree.

B) Bachelor’s degree.

C) Master’s degree.

D) Doctoral degree.

7. All of the following are stated goals of the American Bar Association except:

A) To promote improvement of the American system of justice.

B) To achieve the highest standards of professionalism, competence, and ethical conduct.

C)* To promote the use of legal assistants throughout the delivery of legal services.

D) To preserve the independence of the legal profession and the judiciary as fundamental to a free society.

8. Paralegal or legal assistant programs that want to be ABA approved must have at least the following number of semester hours, which includes general education and legal specialty courses:

A) 18.

B) 45.

C)* 60.

D) 90.

9. The NFPA’s certification exam is known as:

A)* PACE.

B) PRO.

C) CERT.

D) CASH.

10. Those who pass the NALA national certification exam are given the following title:

A) ABC.

B) LAC.

C) NALAC.

D)* CLA.

Essay Questions

1. Why are paralegals and legal assistants considered valuable to the legal system?

It is certainly no surprise to realize that lawyers are quite expensive, yet also quite necessary. Many people either can’t afford the services of a lawyer, or believe they can’t. But, the use of paralegals and legal assistants has provided a win-win solution to the problem of the cost of legal services. Since the late 1960s, paralegals and legal assistants have been formally recognized as a distinct part of the legal team, separate from secretaries or other clerical personnel. And as the paralegal occupation has grown, its status—and occupational requirements—has increased. Paralegals and legal assistants, by virtue of their definition, engage in substantive legal work, the kind of work that lawyers do (with certain limitations and prohibitions). Because paralegals may engage in real legal work, provided they are appropriately supervised, the lawyers for whom they work are able to engage in other legal work. This allows the law firm to increase its revenue. However, clients will receive a smaller bill when legal assistants are used effectively because the work of legal assistants is billed at a lesser rate than that of lawyers. Therefore, the use of paralegals and legal assistants allows more members of society to be able to afford legal services, while at the same time allows employing lawyers at private law firms to increase their earnings.

2. Why is paralegal education an important component to being a paralegal or legal assistant, when having a paralegal education is almost never a prerequisite to being employed as a paralegal or legal assistant?

Nothing requires a paralegal or legal assistant to have a certain level of education, with the exception of California, which has educational prerequisites in its recent statutes on paralegals. However, even California’s statutes allow one to qualify as a paralegal without having any education beyond a high school diploma or GED, at least until 2004. Generally, one is a paralegal or legal assistant by virtue of being employed as one, which means doing substantive legal work. As to qualifications, most definitions of a paralegal or legal assistant describe a paralegal as one qualified by “education, training, or work experience.” That doesn’t mean that one should avoid a paralegal education. Increasingly, legal employers are looking for employees who have a post-high school education; in fact, the U.S. Attorney’s Office won’t hire a paralegal who lacks a bachelor’s degree. Practically speaking, new paralegals need to have some form of legal education, be it a certificate, an associate degree, a bachelor’s degree, or some combination of the aforementioned. Furthermore, college-level, legal education programs didn’t exist at the advent of paralegalism, which is not the case any longer. Now, those wanting to work in the legal profession can give themselves a great boost by obtaining a legal education, since there is so much to learn about the legal system, as well as substantive and procedural legal subjects and legal research and writing. Furthermore, having a paralegal degree will benefit those who want to seek certifications from the national paralegal organizations. And, the reputation of paralegals and legal assistants will continue to improve among lawyers and the public as more paralegals and legal assistants are formally educated for their careers.

Chapter 2—Ethics, Regulation, and Professional Responsibility

True/False Questions

1. The practice of law is regulated at a national level. (F)

2. Certified paralegals and legal assistants are allowed to give legal advice. (F)

3. The ABA believes there is no need to license paralegals. (T)

4. No state licenses paralegals and legal assistants. (T)

5. Some federal agencies, such as the Social Security Administration, allow nonlawyers, including paralegals, to represent others. (T)

6. Rather than adopting ethics rules coming from the ABA, most jurisdictions create their own ethics rules. (F)

7. Paralegals and legal assistants who are members of either NALA or NFPA and violate those organizations’ rules of conduct will lose their ability to work as paralegals and legal assistants. (F)

8. Conflicts of interest stem from the problem of divided loyalty. (T)

9. An ethical wall is a phrase that describes how a paralegal must separate his or her personal opinions about the client from professional obligations. (F)

10. The attorney-client privilege applies to paralegals. (T)

Multiple Choice Questions

1. The following activities would be considered the unauthorized practice of law when done by paralegals or legal assistants:

A) Helping a client determine which type of power of attorney is the right one.

B) Telling a client what statute applies to their situation.

C)* Both of the above.

D) None of the above.

2. The following state’s supreme court came very close to approving the licensing of its state’s paralegals and legal assistants:

A) New England.

B)* New Jersey.

C) New Mexico.

D) New York.

3. Which federal agency allows paralegals to represent others before it, without supervision?

A) None.

B) Immigration and Naturalization Service.

C) Internal Revenue Service.

D)* Social Security Administration.

4. The most important set of ethics rules that a paralegal needs to know is:

A)* Whatever set has been adopted by the jurisdiction where the paralegal works.

B) The ABA Model Rules of Professional Conduct.

C) The NFPA Code of Ethics and Professional Responsibility.

D) The NALA Code of Ethics and Professional Responsibility.

5. The following statement about the relationship between lawyer ethics rules and legal assistants is true:

A)* Legal assistants are bound to follow lawyer rules of conduct since legal assistants work for lawyers, who are bound to follow those rules.

B) Legal assistants are bound to follow only those rules that directly mention legal assistants.

C) Legal assistants are bound to follow the ABA Model Guidelines on the Utilization of Legal Assistant Services.

D) Legal assistants are not bound to follow any set of lawyer ethics rules.

6. If a lawyer represents both the husband and wife who are seeking a divorce, that representation would implicate the:

A) Playing with fire rule.

B) Ethical wall doctrine.

C)* Conflict of Interest rule.

D) Work Product Doctrine.

7. An ethical wall is needed to:

A) Isolate an attorney or paralegal from other members of the firm in order to protect the interests of that attorney or paralegal’s former clients.

B) Protect against a breach of confidentiality.

C) None of the above.

D)* Both of the above.

8. The attorney-client privilege is founded upon the doctrine of:

A) Fair billing practices.

B)* Open communication.

C) Fair advertising practices.

D) Conflicts of interest.

9. The most important ethical consideration for those who work as freelance paralegals is to watch out for:

A) Over billing.

B) Inappropriate solicitation of business.

C)* Conflicts of interest.

D) Lack of certification.

10. In order for the work product doctrine to apply, the written materials must:

A) Have been prepared by an attorney.

B)* Have been prepared in preparation for trial.

C) Be admissible as evidence at trial.

D) Be admissions of liability.

Essay Questions

1. Why could it be said that it is more difficult for paralegals and legal assistants to understand their ethical duties than it is for lawyers?

For lawyers, there is no misunderstanding about what rules of ethics need to be obeyed, since lawyers are obligated to follow the rules of ethics that are in operation in the jurisdiction where those lawyers are licensed. Law licensure is jurisdiction-specific, not national. So, even though the ABA has rules of ethics in place, those rules have no direct effect on lawyer conduct, although the set of ABA rules that have been adopted in the lawyer’s jurisdiction apply. Paralegals and legal assistants aren’t licensed, as lawyers are, but paralegals and legal assistants still need to follow rules of ethics. However, there is no national, uniform set of paralegal ethics; there are paralegal rules, or guidelines, created by the ABA, the NFPA, and the NALA. Which one needs to be followed? The answer could be, none of them, because paralegals are required to behave with the same professional obligations of the lawyers for whom they work. Because paralegals are regulated through their supervising attorneys, who are responsible for the professional missteps of their nonlawyer employees, then paralegals need to know the attorney rules of ethics of the jurisdiction in where they work. Beyond that, many jurisdictions have adopted paralegal or legal assistant guidelines, but these apply to lawyers who use paralegals, and not directly to paralegals. Furthermore, those legal assistants that belong to a national legal assistant organization will need to follow the ethics codes that are operative on the member. This can get quite confusing.

2. What is the general rule on a conflict of interest, and give an example of a clear conflict of interest.

The general rule on conflict of interest (ABA Model Rule 1.7) cautions a lawyer against representing a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes the representation, “will not adversely affect the relationship with the other client; and each client consents after consultation.” This rule is designed to protect a lawyer against divided loyalty—favoring one client over another, particularly when those clients’ interests are in opposition to each other. Independent, objective judgment is required of lawyers, and the risk of impaired judgment is at the heart of conflicts of interest rules.

An example of a clear conflict of interest would be if a lawyer were asked to represent a plaintiff and a defendant against each other in the same lawsuit. There is no way the lawyer could adequately represent one client’s interests, while at the same time adequately represent the other client’s interests, and if the lawyer were to do so, the lawyer would be disciplined.

Chapter 3—Careers in the Paralegal Profession

True/False Questions

1. A recent survey of legal assistant pay shows that for intermediate and senior level legal assistants, the Pacific southwest states had the highest rate of pay. (T)

2. According to the U.S. Department of Labor, paralegals are exempt from overtime pay requirements. (F)

3. Resumes need to be reviewed and updated periodically. (T)

4. Paralegals who work in solo practitioner’s offices are likely to have more client contact, and a wider variety of tasks. (T)

5. Legal assistants who work in large law firms are likely to have more client contact, and a wider variety of tasks. (F)

6. The general practice lawyer handles a wide range of cases. (T)

7. According to the ABA, a legal nurse consultant is not part of the paralegal profession. (F)

8. According to a survey by “The Affiliates,” a legal personnel staffing company, intellectual property was thought to be the fastest growth area of the law. (T)

9. Corporations usually do not hire paralegals or legal assistants because of the tradition of always staffing a corporate law department with lawyers. (F)

10. All states allow for paralegals to be screened when a possible conflict of interest arises due to a prior conflict client because the ABA is in favor of paralegal screening. (F)

Multiple Choice Questions

1. If a paralegal were to qualify as exempt under the federal overtime pay requirements, then the paralegal would be exempt under one of the following exemptions except:

A) The executive exemption.

B) The professional exemption.

C)* The legal exemption.

D) The administrative exemption.

2. All of the following are important tools in job searches except:

A) An electronic resume.

B) A portfolio.

C) A set of transcripts.

D)* They are all important tools in job searches.

3. As evidenced by the sample in the text, a paralegal resume should be:

A)* One page.

B) Two pages.

C) Three pages.

D) Four pages.

4. During a job interview, a paralegal should:

A) Never ask questions to the interviewer because it is too forward.

B)* Ask questions to the interviewer because it shows preparation.

C) Dress in a way that makes you the most comfortable, so that you are able to

do your best.

D) B and C.

5. In midsized to larger law firms, the one who has the most executive power is:

A) The senior partner.

B) The rainmaker.

C) The litigation department head.

D)* The managing partner.

6. The organization that is dedicated to meeting the needs of those who manage legal assistants is:

A)* The LAMA.

B) The NFPA.

C) The NALA.

D) The NFLA.

7. The term that describes the establishment of contacts or relationships for professional purposes is known as:

A) Schmoozing.

B)* Networking.

C) Smorgasbording.

D) Profiling.

8. Pro bono paralegals are those who:

A) Think U2 is the best rock band in the world.

B) Engage in legal work that is in favor of political change.

C)* Engage in legal work without compensation, or with reduced rates.

D) None of the above.

9. Two of the main administrative functions are:

A)* Timekeeping and conflict checking.

B) Timekeeping and legal research.

C) Conflict checking networking.

D) Legal research and discovery.

10. As some courts have found, in order for a paralegal or legal assistant’s work to be billed as a separate part of the attorney’s fee:

A) The paralegal’s supervising attorney must request ahead of time that the paralegal’s work be specifically reimbursed.

B)* The paralegal’s work must be of the type the attorney would normally do.

C) The attorney must sign an affidavit stating the paralegal is qualified to do the work.

D) The paralegal must sign an affidavit stating the attorney supervised the work.

Essay Questions

1. Why is it a good idea for a paralegal or legal assistant to create a portfolio?

A portfolio is purposeful collection of student work that is accumulated over time, and the material reflected in it reveals the extent of student learning, achievement, and development. A portfolio should include things like a resume, college transcripts, legal research and writing projects, other work done in nonlegal classes, and a personal values statement, all of which are designed to be representative of the student’s professional development. It should be well organized, not too cumbersome, and with a table of contents. Not only is a portfolio a great way for a paralegal student to keep track of his or her knowledge base and skills, it can be quite helpful when searching for jobs. Ideally, they should bring the portfolio with them to an interview and then tactfully make reference to it during the interview, so the interviewer is given a chance to examine its contents. A well maintained and professional looking portfolio will show prospective employers not only the skills and grades of the interviewee, but it will also put the interviewer in a professional light from the outset.

2. What are the advantages and disadvantages of being a paralegal in a large law firm?

Paralegals and legal assistants who work in large law firms will, as a general rule, earn more money than paralegals and legal assistants who work in smaller law firms. In addition to paying a higher salary, large law firms are also likely to pay bonuses to their paralegals. Prestige might be higher for those who work in such law firms, since those law firms are in the more metropolitan areas of the country, and usually in the best professional offices in the city. Also, if the staff is large enough, some paralegals might be given supervisory roles over other paralegals or nonlawyer employees. And, certain paralegals in large firms might be doing traveling as part of their job, or working with international clients. But, large law firms do have disadvantages. Because of the organization and structure of large law firms, the range of work for those paralegals is likely to be more narrow: medical malpractice paralegals only doing med-mal work; securities paralegals only working with securities forms or doing treasury regulation research. Paralegals in smaller firms, or solo practitioner offices are more likely to have a diverse work day, and are likely to have more client contact than their large firm counterparts. And, the game of office politics is played more often and more viciously in large firms because of some of the listed plums of larger firms: higher pay and prestige. And when attorneys of large law firms get the short end of the proverbial stick, the repercussions are going to affect those lawyers’ paralegals.

Chapter 4—Paralegal Workplace Skills

True/False Questions

1. Paralegals can engage in client interviews. (T)

2. Paralegals need to be careful when conducting interviews for the lawyer, in preparation for trial, since those interviews are not covered by the attorney-client privilege. (F)

3. The types of legal specialties in which paralegals can work include environmental law, immigration law, and intellectual property. (T)

4. Analytical skills are problem-solving skills. (T)

5. Poor grammar or spelling is not that important when sending emails to other professionals. (F)

6. It is a good idea to tailor one’s communication to the gender of the audience, because men and women are likely to have some cultural background differences. (T)

7. According to the material presented in the text, those with Latino backgrounds tend to have a fatalistic view of the world. (T)

8. According to the material presented in the text, those from Asian cultures prefer those who are direct and to the point. (F)

9. According to the material presented in the text, those from African cultures tend to have a holistic worldview. (T)

10. According to the material presented in the text, if you are of European-American appearance, receivers of communication may be concerned that you will take advantage of them or hold them back. (T)

Multiple Choice Questions

1. When interviewing clients, paralegals and legal assistants need to be especially careful about the ethical problem of:

A) Bad breath.

B) Poor posture.

C)* The unauthorized practice of law.

D) Illegal solicitation.

2. A judge’s administrative assistant is also known as the:

A)* Clerk.

B) Bailiff.

C) Stenographer.

D) Court reporter.

3. All of the following are online legal research services except:

A) Loislaw.

B) Westlaw.

C) Lexis.

D)* Readlaw.

4. Those legal assistants who work in family law practices can do the following:

A)* Draft prenuptial agreements.

B) Settle custody disputes.

C) Execute wills.

D) Issue protection from abuse orders.

5. Those legal assistants who work in litigation practices can do the following:

A) Prepare written interrogatories.

B) Attend trial and assist in the handling of witnesses, exhibits, and evidence.

C)* Both of the above.

D) None of the above.

6. Commitment means:

A) Being good at what you do.

B)* Being diligent at what you’re doing.

C) Being proud of what you do.

D) Being put away for what you’ve done.

7. According to the text, all of the following are likely cultural differences between men and women except:

A) A man will not express his true feelings through facial expression.

B) A woman will take conflict personally.

C)* A man will hear your literal words and understand the underlying emotion.

D) A woman’s communication style will be indirect, except with other women of equal rank.

8. According to the text, if you are of European-American appearance, receivers of communication may be concerned that you will:

A) Reject their opinions.

B) Take advantage of them or hold them back.

C) Consider them different in a negative way.

D)* All of the above.

9. According to the text, the Latino-American population:

A)* Has come close to being the largest minority group in the United States.

B) Speak the same language: Spanish.

C) Has been declining in population.

D) Distrust lawyers, but respect paralegals.

10. According to the text, some of the core beliefs held by those with roots in the African culture include:

A)* A holistic worldview.

B) A fatalistic worldview.

C) A sense of loyalty to the family.

D) A belief that directness is rude.

Essay Questions

1. Describe some of the tasks that are part of a typical paralegal’s workload.

A paralegal’s day at work can involve a myriad of different tasks, but there are some job tasks that are more common than others. Included in those are client interviews, investigations, legal writing, and legal research. Paralegals may engage in initial client interviews, and other fact-gathering interviews with the firm’s clients. When conducting client interviews, paralegals need to be aware of the importance of building rapport with the interviewees, and also need to remember not to give legal advice or do anything else that could be construed as the unauthorized practice of law. Paralegals may help with the investigation process that takes place for pending cases. Preparing for settlement discussions or trial requires the marshalling of facts that support the client’s objectives, and paralegals can work with their attorneys and clients in the discovery process, such as helping to draft interrogatories or reviewing medical records. Legal writing is an important task that paralegals should be able to do. These documents would include correspondence to clients and attorneys, and legal memoranda. Paralegals may also draft pleadings and motions, but they may not sign them because those court documents must be signed by the attorney of record. And, paralegals should be capable of conducting legal research, both in traditional, law library methods, and in electronic legal research methods. Understanding how to navigate through the maze of regional case reporters, digests, annotated codes, administrative regulations, and citator services will distinguish the skilled paralegal.

2. Describe some of the skills that are important for an effective legal assistant to have.

Because legal assistants work with and for lawyers, good legal assistants need to possess the same types of skill that their attorney-counterparts possess, including resourcefulness, commitment, analytical skills, and interpersonal skills. Resourcefulness is the ability to solve problems, particularly when others would rather give up. Strong legal assistants are diligent and keep looking for open windows when the doors to progress are locked. Commitment is also an important skill. Commitment involves following through to the end, and starting well isn’t as important as finishing well. Legal assistants need to be dependable. Strong analytical skills are critical for legal assistants. In fact, law schools expressly train their students to “think like a lawyer.” Likewise, legal assistants need to sharpen their legal analysis skills, which largely involves comparing and contrasting facts and applying them to the correct legal principles or law. Interpersonal skills are extremely important for legal assistants. Knowing how to read nonverbal cues, build rapport, and work as a part of a team will help the firm succeed, which will help promote job security. Clients want to feel that their legal team cares about them, and legal assistants with strong interpersonal skills will help clients reach that conclusion.

Chapter 5—The Constitution and Sources of American Law

True/False Questions

1. Black’s Law Dictionary defines law as “that which must be obeyed….” (T)

2. Approximately 50% of all lawsuits are settled prior to trial. (F)

3. One of the disadvantages of American law is its lack of flexibility. (F)

4. Common law was developed by judges in England. (T)

5. The U. S. Constitution is equal in status to federal statutes. (F)

6. Ordinances are created by local government. (T)

7. Trial courts make precedent. (F)

8. Federalism means that federal powers are superior to state powers. (T)

9. The federal government may only regulate interstate commerce that crosses state borders. (F)

10. States are free to define what constitutes obscene speech. (T)

Multiple Choice Questions

1. All of the following are primary functions served by U.S. law except:

A) Keeping the peace.

B) Shaping moral standards.

C)* Promoting economic equality.

D) Maximizing individual freedom.

2. All of the following are constitutionally created branches of government except:

A)* Administrative branch.

B) Executive branch.

C) Judicial branch.

D) Legislative branch.

3. Stare Decisis is:

A)* The doctrine on which our common law system is based.

B) The phrase that is used in the Constitution to describe legislative authority.

C) The method of resolving disagreement between the federal branches of government.

D) Inappropriate, because staring is rude.

4. The U.S. Constitution serves which two major functions:

A) It creates the federal judiciary and the manner of electing the president.

B) It creates the manner of electing the president and protects individual rights.

C)* It protects individual rights and creates the three branches of the federal

government.

D) It creates the three branches of government and establishes the method of legislative authority.

5. The doctrine of separation of powers:

A) Requires the U.S. Supreme Court to take cases from the state courts.

B) Requires the federal government to remain separate from the state governments.

C) Divides the U.S. Congress into a House of Representatives and a Senate.

D)* Divides the federal government into three branches.

6. The supremacy clause:

A)* Makes federal law superior to state law when there is a conflict between them.

B) Makes state law superior to federal law when there is a conflict between them.

C) Makes the judiciary superior to the other branches of government.

D) Makes the executive branch of government superior to the legislative branch.

7. The Bill of Rights consists of:

A) The Magna Carta.

B)* The first 10 amendments of the Constitution.

C) The Due Process Clause and the Equal Protection Clause.

D) Articles I-III of the Constitution.

8. The following type of speech is generally considered unprotected by the First Amendment:

A) Political protests against the government.

B) Flag burning.

C) Atheistic speech.

D)* Defamation.

9. One type of fully protected speech is:

A) Commercial speech.

B) Advertising.

C)* Political speech.

D) None of the above.

10. Courts have come to recognize the following as two categories of due process:

A) Substantive and Ethical.

B)* Substantive and Procedural.

C) Procedural and Commercial.

D) Commercial and Religious.

Essay Questions

1. Describe some of the sources of law in the United States.

Constitutions are a foundational source of law in America. A constitution establishes a government and grants certain rights directly to the citizens. Ultimately, the U.S. Constitution is the preeminent source of law in the country, but state constitutions are also very important. Statutes are also a source of law. Legislatures have the primary duty to make law in our representative democracy, and that law making is carried out by proposing and enacting legislation, known as statutes. Local ordinances can be thought of as like statutes—in fact they are both known as codified law. Administrative agencies are a source of law, because the statutes that create the agencies give the agencies the authority to draft rules and regulations. An agency makes law that regulates the conduct of the parties whose conduct comes under the jurisdiction of that agency, such as the IRS that regulates the conduct of taxpayers. Chief executives, such as the President and state governors, may issue executive orders, and those orders have the effect of law. For instance, President Bush issued an executive order in October 2001 that established the Office of Homeland Security as part of the Executive Office of the President. And, appellate courts are a source of law, since they issue judicial decisions that serve as precedent in our common law system.

2. Explain the categories of protected speech under the Constitution.

The First Amendment guarantees freedom of speech; however, not all speech is as free as other speech. The most protected form of speech, that which the government may not prohibit or regulate, is political and religious speech. If the government were to create a law that prohibited criticism of Congress, for instance, that would be unconstitutional. Then there is limited protected speech. This type of speech, which includes business or commercial speech, can be regulated by the government. Advertising is a type of commercial speech, and the U.S. Supreme Court has ruled that commercial speech may be regulated, including restrictions on the time and place of commercial speech. Finally, there is unprotected speech. Unprotected speech is not protected by the First Amendment and may be forbidden by government. Some examples of commercial speech include child pornography, obscenity, defamation, and dangerous speech (such as falsely yelling “fire” in a crowded theatre).

Chapter 6—Judicial and Alternative Dispute Resolution

True/False Questions

1. A court of record is also known as a general-jurisdiction trial court. (T)

2. A typical state court system has two levels of appellate courts. (T)

3. Federal judges, once elected, serve for life. (F)

4. There are 11 circuits in the federal court system. (F)

5. The Court of Appeals for the Federal Circuit is located in Washington, D.C., and it hears appeals involving such cases as patent law, and claims against the federal government. (T)

6. If the U.S. Supreme Court decides to a request for an appeal, it will grant a petition for certiorari. (F)

7. If a justice disagrees with the decision in a case, the justice can write a concurring opinion. (F)

8. State and federal courts have concurrent jurisdiction in cases that involve federal questions, and those in which there is diversity of citizenship. (T)

9. A court must have both subject matter jurisdiction and personal jurisdiction in order to be able to hear and decide a case. (T)

10. Mediation is an ADR method that involves a disinterested third party hears each side’s position and then decides the outcome for the parties, thereby saving the costs of a trial. (F)

Multiple Choice Questions

1. An example of a limited-jurisdiction trial court is:

A) Juvenile court.

B) Probate court.

C)* Both of the above.

D) None of the above.

2. All of the following courts make precedent except:

A) Intermediate appellate courts.

B)* General-jurisdiction trial courts.

C) Circuit courts of appeals.

D) State supreme courts.

3. U.S. district courts, circuit courts of appeals, and special federal courts are created by:

A)* Federal legislation.

B) Presidential executive orders.

C) U.S. Supreme Court decisions.

D) The U.S. Constitution.

4. How many justices are on the U.S. Supreme Court?

A) 7.

B) 8.

C)* 9.

D) 10.

.

5. When a justice in the minority writes an opinion that shows his or her opposition to the majority’s decision, the opinion is known as a:

A) Plurality opinion.

B) Concurring opinion.

C) Majority opinion.

D)* Dissenting opinion.

6. Standing to sue means:

A)* The plaintiff has some stake in the outcome of the lawsuit.

B) The defendant must have some stake in the outcome of the lawsuit.

C) The court must have some stake in the outcome of the lawsuit.

D) The plaintiff, defendant, and court must have some stake in the outcome of the lawsuit.

7. That which usually allows a court to have jurisdiction over persons and businesses located in another state is commonly known as:

A) Venue.

B)* A long-arm statute.

C) Personal jurisdiction.

D) Service of process.

8. All of the following are forms of alternative dispute resolution except:

A) Arbitration.

B) Mediation.

C) Minitrials.

D)* Litigation.

9. The ADR process whereby a neutral third-party hears the merits of and decides a legal dispute is known as:

A)* Arbitration.

B) Conciliation.

C) Facilitation.

D) Mediation.

10. The ADR process whereby a neutral third-party oversees a bargaining process between opposing parties, helping them identify issues of agreement that might lead to settlement, but does not decide the outcome is known as:

A) Arbitration.

B) Conciliation.

C) Facilitation.

D)* Mediation.

Essay Questions

1. Explain the structure of the federal court system.

The U.S. Constitution creates only one court: the U.S. Supreme Court. All other federal courts are created by acts of Congress. The structure of the federal court system is much like that of the state court systems, having a variety of trial-level courts and appellate courts. There are specialized federal courts that hear only certain types of cases, and those include the U.S. Tax Court, the U.S. Court of International Trade, and U.S. Bankruptcy Courts. Then there are 96, limited jurisdiction, federal trial courts, known as U.S. District Courts. These courts hear criminal and civil cases. There are two ways to getting a case into U.S. District Court: having a case that involves a question of federal law; and having a case that involves diversity of jurisdiction, which means a case in which the plaintiff and the defendant are from different jurisdictions. The federal system is divided into 13 circuits, 12 of which are geographical and 1 of which involves claims against the federal government, and each circuit has its own appellate court. For instance, appeals from U. S. District Courts located in Indiana take place in the 7th Circuit Court of Appeals, since those District Courts are part of the 7th Circuit. Circuit Courts of Appeals’ decisions are binding on that Circuit. Above the Circuit Courts of Appeals is the U.S. Supreme Court, whose authority is final everywhere in America, including the states.

2. Compare and contrast arbitration and mediation

Arbitration and mediation are both popular forms of Alternative Dispute Resolution (ADR), designed to allow litigants or soon-to-be litigants to resolve their disputes in a less costly and more timely manner. Both forms of ADR have their own sets of rules in most jurisdictions, and both forms involve having a neutral, third party get directly involved in the resolution process, as opposed to negotiation, which is a two-party process. But, there are differences between arbitration and mediation. The strongest difference between arbitration and mediation is that in arbitration, the third party (the arbitrator) actually decides the outcome for the parties, while in mediation, the third party (the mediator) never decides the outcome for the parties. Arbitration has similarities to a trial in that evidence and testimony may be introduced at the hearing. However, the rules of evidence are less strict at arbitration hearings. But, like a bench trial in which the judge renders a verdict, the arbitrator makes the decision and award. Although arbitration decisions can be appealed, very often contracts that call for arbitration make the arbitrator’s decision final. And when arbitration decisions are appealed, they are hard to overturn since legislation and court decisions give great deference to the arbitrator’s decision. Mediation is an ADR form of settlement negotiations in which the mediator makes no substantive decisions for the parties; the parties decide if they want to settle and under what conditions. The mediator’s job is to control the mediation process, which includes establishing the mediation schedule, meeting with the parties (both jointly and privately) at the mediation, conveying information between the parties, and attempting to help the parties find ways to reach an agreement or settlement. If the parties can’t reach a settlement, the mediator does not make one for them. However, if a settlement is reached, the mediator can help the parties with the language in the settlement agreement.

Chapter 7—Administrative Law and Government Regulation

True/False Questions

1. Administrative rules and regulations enforce and interpret statutory law. (T)

2. All federal agencies are part of the executive branch of government. (F)

3. Agencies only have the powers that are delegated to them by the legislative or executive branches of government. (T)

4. Federal agencies may not make their own substantive rules because only legislatures have the power to make substantive law. (F)

5. Part of the process of making administrative law involves giving the public an opportunity to respond to the proposed rules. (T)

6. One of the dangers of the extent of federal administrative power is that inspections conducted by agencies are not subject to the 4th Amendment’s search and seizure clause. (F)

7. One of the powers of administrative agencies is the power to adjudicate cases, which is a type of judicial authority. (T)

8. Administrative law judges are very much like trial court judges, but administrative law judges may not make any decisions involving the outcome of their proceedings. (F)

9. One of the prerequisites for appealing an action of an administrative agency is that the one seeking an appeal must first have exhausted all their administrative remedies. (T)

10. The Freedom of Information Act allows the public to have access to all documents in the possession of federal agencies. (F)

Multiple Choice Questions

1. Administrative agencies are created with the primary goal of:

A)* Creating a body of professionals who are experts in a specific field.

B) Alleviating the tax burden on the public.

C) Creating distinct sets of law with a unique perspective.

D) Alleviating the time constraints on the legislature.

2. The delegation doctrine means that:

A) A state agency only has the power that its counterpart federal agency has delegated to it.

B) Employees of federal agencies only have the power that their agency supervisors have delegated to them.

C)* Federal and state agencies only have the power that has been delegated to them by their authorizing legislation or executive orders.

D) A federal agency only has the power that has been delegated to it by the director of the agency.

3. A federal agency has all of the following delegated legislative powers except:

A) Statements of Policy.

B) Substantive Rule Making.

C) Interpretive Rule Making.

D)* Adjudicate determinations.

4. When an agency conducts an inspection, the inspection is usually considered to be reasonable under the 4th Amendment when:

A) The party voluntarily agrees to the search.

B) The business being searched is part of a hazardous industry for which statutes authorize nonarbitrary warrantless searches.

C)* All of the above.

D) None of the above.

5. When an agency serves a complaint on someone the agency believes has violated a statute or administrative rule, the person is called the:

A) The defendant.

B)* The respondent.

C) The complainant.

D) The appellee.

6. All of the following are conditions that must be satisfied before a petitioner can appeal an action of an administrative agency to a reviewing court except:

A) The case must be ripe for review.

B)* The administrative law judge’s decision must be written.

C) The petitioner must have exhausted all administrative remedies.

D) The agency’s decision must be final.

7. A court may suspend the requirement that the administrative decision be final before it can be reviewed if:

A) The petitioner would suffer irreparable injury.

B) The petitioner would suffer economic hardship.

C)* Either of the above.

D) None of the above.

8. The law that allows the public to request access to most documents in the possession of federal agencies is known as the:

A)* Freedom of Information Act.

B) Government in the Sunshine Act.

C) Equal Access to Justice Act.

D) Privacy Act.

9. The agency that regulates food, drugs, and cosmetics is the:

A) FBI.

B) FTC.

C) FEC.

D)* FDA.

10. The statute that stipulates that federal administrative agencies can maintain only information about an individual that is relevant and necessary to accomplish a legitimate agency purpose is the:

A) Equal Access to Justice Act.

B) Government in Sunshine Act.

C) Freedom of Information Act.

D)* Privacy Act.

Essay Questions

1. Explain why there are administrative agencies, if they are not mentioned in the U.S. Constitution.

At the time of the Constitution’s drafting and ratification, administrative agencies weren’t in the minds of the founding fathers. They were concerned primarily with empowering a legislature, creating an executive branch and judicial branch, and protecting citizens’ rights through the Bill of Rights. But, it’s possible to now think of administrative agencies as a fourth branch of government, which isn’t altogether accurate since agencies get their power from actual branches of government. Agencies, however, have become an integral cog in the wheel of government. They are needed to help regulate and oversee the ever-increasing complex society in which we live. Governmental agencies are created with the overall goal of creating a body of professionals who are experts in a specified field—technocracy, as opposed to democracy. For example, the Federal Aviation Administration is created with the purpose of having experts in the field of air travel design and manage the structure of America’s “friendly skies.” Agencies have a wide range of powers, but all powers that an agency possesses flow from the powers delegated to it by the branch—be it legislative or executive—that creates the agency.

2. Explain the legislative powers of federal administrative agencies.

Administrative agencies have delegated powers, which include legislative, executive, and judicial powers. The legislative powers of federal agencies involve rule making and licensing. As is it concerns rule making, agencies make substantive rules and interpretive rules. Substantive rules are quite similar to statutes: they regulate conduct and have the force of law. Substantive rules are first proposed, then public comment is invited—sometimes with attendant public hearings–-and then if the proposed rule becomes law, it is published in the Code of Federal Regulations. Agencies also make interpretive rules, which explain existing statutory language, but do not establish new laws. As such, neither public notice nor public participation is required. Agencies can also issue statements of policy. These statements announce a proposed course of action that an agency intends to follow in the future, but these statements do not have the force of law. And, the legislative power of agencies includes the granting and revoking of licenses. For example, television and radio stations must seek, and renew, their licenses to operate from the Federal Communications Commission.

Chapter 8—Civil Litigation

True/False Questions

1. Civil litigation is begun by the filing of an answer. (F)

2. The burden of proof in a civil action is the preponderance of the evidence. (T)

3. If a defendant does not respond to the plaintiff’s complaint and summons, a default judgment can be issued. (T)

4. The summons is the document the defendant files when replying to the plaintiff’s complaint if the defendant has a claim against the plaintiff. (F)

5. Statute of limitations are designed to require the defendant to respond to the plaintiff’s complaint within a certain period of time. (F)

6. Discovery is a pretrial procedure. (T)

7. Interrogatories are written questions submitted by one party to a lawsuit to another party.

(T)

8. Only parties may be deposed. (F)

9. A motion for summary judgment is a pretrial motion designed to end the lawsuit before a trial by arguing there are no material questions of fact. (T)

10. Plaintiffs always bear the burden of proof in a trial. (T)

Multiple Choice Questions

1. The most significant difference between a civil action and a criminal action is the:

A) Courts where the types of cases are tried.

B) Statute of limitations.

C)* Burden of proof required.

D) The type of evidence admitted.

2. All of the following are the major pleadings except:

A) The complaint.

B) The cross-complaint.

C) The answer.

D)* The summons.

3. If the defendant does not answer the complaint, the result will be:

A) Summary judgment.

B) Judgment on the pleadings.

C)* Default judgment.

D) Affirmative judgment.

4. Who should be concerned about the statute of limitations?

A) The judge.

B) The defendant.

C) The sheriff.

D)* The plaintiff.

5. All of the following are forms of discovery except:

A)* Requests for settlement.

B) Depositions.

C) Production of Documents.

D) Interrogatories.

6. A deposition is most like the following:

A) An interrogatory.

B)* Court testimony.

C) Both of the above.

D) None of the above.

7. A motion for summary judgment is:

A)* Based on the pleadings and evidence in addition to the pleadings.

B) Based on the pleadings only.

C) Filed before the answer.

D) Filed after the trial starts.

8. Who bears the burden of proof?

A)* The plaintiff.

B) The defendant.

C) The court.

D) The jury.

9. The process of choosing the members for the jury is known as:

A) Redirect examination.

B)* Voir dire.

C) Cross examination.

D) Dire voir.

10. If a court overturns the verdict of the jury that is known as a:

A) Judgment.

B) Redirected verdict.

C)* Judgment n.o.v.

D) Verdict n.o.j.

Essay Questions

1. Explain the different types of pleadings.

Pleadings are the initial documents filed with the court that initiate and respond to a lawsuit. The first document filed, the complaint, is the one that formally starts a lawsuit and is filed by the plaintiff. The complaint states the jurisdiction of the court overseeing the case, the allegations made by the plaintiff against the defendant, how the plaintiff was injured or harmed by the defendant’s conduct, and states the remedy desired. Once a copy of the complaint and a summons is served on the defendant, the defendant must file an answer, usually within 20 days. The answer responds to the complaint by denying the complaint’s allegations, or admitting (at least some of) the allegations. Additionally, the answer can make affirmative defenses, such as claiming that the plaintiff has missed the statute of limitations. If the defendant believes that plaintiff is at fault and wants to sue the plaintiff, the defendant can file a cross-claim, or counter petition as it is called in some jurisdictions. If the defendant serves a cross-claim on the plaintiff, then the plaintiff must answer that claim by filing a reply, which can assert affirmative defenses against the defendant.

2. Explain the different types of discovery.

Discovery is the process in litigation that follows the pleadings and is completed before the trial, assuming there is a trial. During discovery, both parties engage in various activities to learn facts of the case from the other party and witnesses. The primary purposes of discovery are to narrow the focus of the case in preparation of a trial, and to promote settlement. The types of discovery include depositions, interrogatories, requests for production of documents, and physical and mental examinations. A deposition is the oral testimony given, under oath, by a party or witness; it is similar to one giving testimony at a trial. Depositions are used to preserve evidence and to impeach testimony given by witnesses at trial. Most depositions take place at the office of one of the parties’ attorneys, and are recorded by a court reporter, or it can be videotaped. Interrogatories are written questions submitted by one party to a lawsuit to another party.

Interrogatories are designed to gather evidence, and the receiving party is required to answer them under oath, usually with the help of an attorney of paralegal. If a substantial portion of the lawsuit is based on information contained in documents, a party may request the information in those documents, which is called production of documents. If the documents sought are too large to be moved or are in permanent storage, or if moving the documents would disrupt the ongoing business of the party who is to produce them, the requesting party may be required to examine the documents at the other party’s premises. A party may also request a physical and mental examination of the other party, in cases that concern the physical or mental condition of a party. For example, if the plaintiff claims to have suffered certain head or brain injuries, the defendant could request the plaintiff to submit to a medical examination to determine the existence or extent of those injuries.

Chapter 9—Criminal Law and Process

True/False Questions

1. Most states have adopted penal codes, which are the primary source of criminal law. (T)

2. If a criminal defendant cannot afford a lawyer, the defendant is appointed a public district attorney. (F)

3. Misdemeanors are more serious offenses. (F)

4. All crimes require intent, or mens rea. (F)

5. Convictions require unanimous vote. (T)

6. An arraignment is the formal proceeding where the defendant is informed of the charges against him or her, and is asked to enter a plea. (T)

7. When a defendant is tried without a jury, the trial is known as a bench trial. (T)

8. A burglary is committed when someone wrongfully breaks into, or without authorization enters into, another’s property. (F)

9. Bribery is a form of a white-collar crime. (T)

10. The Fourth Amendment protects defendants against being forced to testify against themselves. (F)

Multiple Choice Questions

1. All of the following are categories of crime except:

A)* Torts.

B) Violations.

C) Felonies.

D) Misdemeanors.

2. The standard of proof in a criminal trial is:

A) The preponderance of the evidence.

B)* Beyond a reasonable doubt.

C) Clear and convincing evidence.

D) De novo.

3. If a grand jury believes there is sufficient evidence to hold the accused for trial, it issues a(n):

A) Plea bargain.

B) Arraignment.

C)* Indictment.

D) Guilty verdict.

4. Wrongfully taking someone else’s property by force or threat of force is a:

A) Burglary.

B) Theft.

C) Larceny.

D)* Robbery.

5. The process by which criminals convert tainted proceeds into apparently legitimate funds or property is known as:

A)* Money laundering.

B) Credit card conversion.

C) Bad check writing.

D) Extortion.

6. To prove a pattern of racketeering, the government must show that the defendant committed how many acts within how much time?

A) Two acts within a 5-year period.

B)* Two acts within a 10-year period.

C) Three acts within a 5-year period.

D) Three acts within a 10-year period.

7. The following is an exception to the 4th Amendment’s requirement of a search warrant.

A) Evidence in plain view.

B) Evidence likely to be destroyed.

C)* Both of the above.

D) None of the above.

8. The following can exert their 5th Amendment right against self-incrimination:

A)* Humans.

B) Corporations.

C) Both of the above.

D) None of the above.

9. The reading of Miranda rights protects a defendant from:

A) Unlawful searches.

B) Unlawful seizures.

C) Double jeopardy.

D)* Self-incrimination.

10. The prohibition against cruel and unusual punishment is found in the:

A) Fifth Amendment.

B)* Eighth Amendment.

C) Fourth Amendment.

D) First Amendment.

Essay Questions

1. Explain the following crimes: robbery, larceny, and burglary.

Robbery, larceny, and burglary are all crimes that interfere with someone else’s property rights, and they are generally classified as felonies. They aren’t identical crimes, however. Robbery is the taking of property from another person by the use of force or threat of force. A mugging would be an example of a robbery. Force or threat of force is the factor that makes a robbery different from larceny. Larceny is the wrongful taking of someone else’s property with the intent to permanently deprive the possessor of possession. Stealing or theft are common terms associated with larceny. Shoplifting is an example of larceny. Under the common law, taking something by deception wasn’t considered larceny, but modern statutes on larceny tend not to distinguish between whether someone’s property was wrongfully taken by fraud or simply just taken. Burglary was a crime that under the common law could only happen at night. Burglary had strict elements, which included breaking and entering at night, someone’s dwelling place, with the intent to commit a felony once inside. But, modern statutes on burglary don’t limit the crime to when it occurs, where it occurs, or even how it occurs. Now, burglary can include entering a place (not just a home) without authorization (which rids the crime of its “breaking” element), or even staying in a place too long without authorization (which rids the crime of its “entering” element). But, the distinction between burglary and trespassing, a lesser crime, is that burglary involves the defendant’s intent—at the time of the breaking and entering—to commit a felony once inside. This fact makes burglary a specific intent crime.

2. Explain the exclusionary rule, and how it affects criminal prosecutions.

There are some constitutional safeguards, whose source is the Bill of Rights, that protect defendants’ rights, and the exclusionary rule is one of those safeguards. The exclusionary rule owes its existence in part to the Supreme Court’s interpretation of the 4th Amendment’s prohibition against unreasonable searches and seizures. This means that searches and arrests must be made pursuant to valid warrants, unless some warrantless exception applies, such as the allowance of a police to seize evidence without a warrant that is discovered in plain view where the police already are allowed to be. The 5th Amendment’s protection against self-incrimination is also an underpinning of the exclusionary rule. The self-incrimination protection includes the requirement that police read a criminal suspect his or her Miranda rights (the right to remain silent, the right to have a lawyer, the admonishment that anything that is said may be used against the suspect). The exclusionary rule is premised on the belief that evidence that is obtained in violation of a defendant’s constitutional rights is tainted. As such, that tainted evidence is deemed excluded from the prosecution’s case against the defendant, which is a dire penalty against unreasonable searches and seizures. There are, however, some exceptions to the exclusionary rule, and one, the “good-faith exception,” allows evidence otherwise obtained illegally to be introduced as evidence against the accused if the police who conducted the unreasonable search reasonably believed they were acting pursuant to a lawful search warrant.

Chapter 10—The Appellate Process

True/False Questions

1. Only the party who lost can bring an appeal. (F)

2. The party bringing the appeal is often referred to as the appellee. (F)

3. An appellate court’s job is to make findings of law. (T)

4. Rules of court, such as the Federal Rules of Appellate Procedure, are rarely amended. (F)

5. Appeals from the decisions of the U.S. district courts are made to the U.S. courts of appeals. (T)

6. Generally, an appeal in a federal civil case must be filed with the district clerk within 30 days after entry of the judgment or order appealed from. (T)

7. The U.S. Supreme Court does not have to accept a petition for certiorari, but may use its discretion in granting review. (T)

8. In order for the U.S. Supreme Court to grant an appeal, at least a majority of the justices must vote to take the case. (F)

9. An appeal de novo means the appeal is heard as if the lower case has not been heard. (T)

10. If an appellate court finds that the lower court has made an error that can be corrected, by sending the case back to the lower court, the appellate court will reverse the case. (F)

Multiple Choice Questions

1. The person who takes down the proceedings and prepares a written transcript of what has occurred in a hearing or trial is known as the:

A) Court clerk.

B)* Court reporter.

C) Court bailiff.

D) Court assistant.

2. The following set of rules govern appeals in the federal appellate court system:

A) Federal Rules of Civil Procedure.

B)* Federal Rules of Appellate Procedure.

C) Federal Rules of Criminal Procedure.

D) Federal Rules of Judicial Procedure.

3. In criminal cases, a defendant’s notice of appeal must be filed in the district court within the following days after entry of judgment:

A) 40 days.

B) 30 days.

C) 20 days.

D)* 10 days.

4. In recent years, out of the 7000 annual petitions for review to the U.S. Supreme Court, the Court accepts the following number of cases each year:

A)* 100.

B) 250.

C) 500.

D) 1000.

5. The U.S. Supreme Court tends to grant review of petitions for review under the following circumstances:

A) When there is a major constitutional question at issue.

B) When there is a split opinion among the circuit courts of appeals on a particular legal issue.

C)* Both of the above.

D) None of the above.

6. Forwarding the record means:

A)* Ordering from the court reporter the transcript of the proceedings not already on file.

B) Summarizing the trial transcript to look for errors of procedure.

C) Giving the appellee the required copies of appellant briefs.

D) Highlighting the allegations of error that were committed by the trial court.

7. Many states have:

A) One level of appellate courts.

B)* Two levels of appellate courts.

C) Three levels of appellate courts.

D) No appellate courts, since there are federal appellate courts.

8. A paralegal who works in the appellate process can do the following:

A) Attend trials to observe the proceedings, and taking note of procedural decisions.

B) Summarize trial transcripts, looking for errors committed by the court.

C)* Both of the above.

D) None of the above may be done by paralegals because the tasks are only lawfully done by attorneys.

9. If an appellate court believes there were no errors in application of the procedural law or the substantive law, it will:

A)* Affirm the lower court’s decision.

B) Reverse the lower court’s decision.

C) Remand the lower court’s decision.

D) Vacate the lower court’s decision.

10. If an appellate court rules that the lower court has made a substantial procedural or substantive error of law, it will:

A) Affirm the lower court’s decision.

B)* Reverse the lower court’s decision.

C) Remand the lower court’s decision.

D) Vacate the lower court’s decision.

Essay Questions

1. Explain the function of the appellate court system.

Trial courts and appellate courts, while being part of the same legal system, have distinct functions. Trial courts are fact finding courts. Litigation is aimed at resolving a fact dispute between litigants, and if a case gets to a trial, the trial court’s function is to find the facts, i.e. render a verdict. If there isn’t a jury for a trial, then the trial judge acts as the fact finder and the arbiter of the trial procedure. Appellate courts, on the other hand, make findings of law; they rule on the allegations of errors that the appellant argues occurred at the trial court (or other lower court). During the trial, issues may arise requiring rulings from the court on matters of procedure, which concerns the way the trial is conducted, what questions may be asked, what evidence may be presented to the jury, and what the trial attorneys may say in presenting and arguing their case. Appellate courts are asked to rule on the propriety of the rulings of the lower court on these matters of procedural law. Appellate courts may also resolve questions of substantive law, in addition to procedural law. An example of this would be if an appellate court is asked to determine whether a cap on punitive damages is constitutional. Appellate courts make their decisions based upon the written and oral arguments of the petitioners and respondents, as well as the legal research conducted by the judges or justices.

2. Explain the role of the paralegal in the appellate process.

The paralegal’s role in the appellate process varies according to the nature of the case, the internal structure of the law firm, and the skill of the paralegal. If a paralegal is fortunate enough to sit through a trial, then he or she may be in the best position to analyze the trial transcript for errors in application of the procedural rules during the trial that may give rise to an appeal. By keeping track of these rulings, and reviewing the transcript, the paralegal is more capable of helping the attorney determine what matters should be appealed. The paralegal could also summarize the transcript of the trial, to help the attorney save time in spotting procedural errors and determine what legal issues need to be appealed (or responded to on appeal). Appellate-practice paralegals can also conduct legal research, since legal research and factual arguments need to be married to each other in an appellate brief. Researching rules of court, statutes, and the always-important case laws are tasks that a skilled paralegal may do as part of the appellate process. Finally, a highly skilled paralegal may write rough drafts of appellate briefs, if the attorney is so inclined.

Chapter 11—Torts and Strict Liability

True/False Questions

1. Tort law is about private wrongs. (T)

2. Assault is the unauthorized and harmful or offensive physical contact with someone else. (F)

3. False imprisonment is a type of intentional tort. (T)

4. Defamation does not occur if the defendant makes a true statement about the plaintiff that results in damage to the plaintiff’s reputation. (T)

5. Slander occurs when the defendant prints the defamatory statement. (F)

6. Truth is not a defense to the tort of invasion of privacy. (T)

7. Unauthorized use of someone else’s land is a trespass even if the owner is not using the land at the time. (T)

8. Plaintiffs who sue for negligence must prove that defendants intended to cause harm or injury. (F)

9. Brain surgeons who are sued for negligence are held to the reasonable person standard. (F)

10. Proximate cause is generally thought of in terms whether the plaintiff’s injuries were foreseeable in light of the defendant’s conduct. (T)

Multiple Choice Questions

1. Assault would not be committed if:

A) The plaintiff wasn’t hurt.

B)* The plaintiff wasn’t aware.

C) The defendant couldn’t accomplish the act.

D) The defendant apologizes immediately.

2. Merchant protection statutes protect:

A)* Shopkeepers.

B) Customers.

C) Both.

D) Neither.

3. One cannot defame:

A) A dead person.

B) A live person when there has been nothing untrue stated.

C) Without publication.

D)* All of the above.

4. The following is not an element of negligence:

A) A duty of care.

B) Unreasonable action.

C)* Punitive damages.

D) Injury to the plaintiff.

5. In order to win a negligence case, the plaintiff must prove that the defendant was:

A) The proximate cause of the plaintiff’s injuries.

B) The actual cause of the plaintiff’s injuries.

C) Neither.

D)* Both.

6. When one violates a statute that is designed to prevent the type of injury that is caused by violating the statute, that is known as:

A) Res ipsa loquitur.

B)* Negligence per se

C) Good Samaritan law.

D) Negligent infliction of emotional distress.

7. A statute that makes a tavern and bartender liable for injuries caused to or by patrons who are served too much alcohol is known as a:

A)* Dram shop act.

B) Guest statute.

C) Fireman’s rule.

D) Social host statute.

8. The defense that involves arguing that the plaintiff’s harm was an unforeseen event is known as:

A) Assumption of risk.

B) Comparative negligence.

C) Strict liability.

D)* Superseding event.

9. The doctrine that makes a defendant liable even if the defendant is without fault is called:

A) Assumption of risk.

B) Comparative negligence.

C)* Strict liability.

D) Contributory negligence.

10. Which of the following parties can be held strictly liable for the injuries caused by a defective product?

A) Manufacturers.

B) Wholesalers.

C)* Both of the above.

D) None of the above.

Essay Questions

1. Explain the concepts of actual and proximate causation

A negligence lawsuit requires a plaintiff to prove that: 1) the defendant owed the plaintiff a duty of care; 2) the defendant breached the duty of care; 3) the plaintiff suffered injury; and 4) the defendant’s act caused the plaintiff’s injury. To say that the defendant caused the plaintiff’s harm actually means two things: that the defendant was the actual cause; and that the defendant was the proximate cause. Actual cause, which is sometimes called factual causation or “but for” causation, means that the plaintiff’s injury can be traced to the defendant’s conduct. Actual causation is akin to saying that the first domino that fell is the actual cause of the one millionth domino falling—but for the first domino falling, the last one would not have fallen. Proximate cause, however, is the key to liability. To say that the defendant is the proximate cause of the plaintiff’s injury is to make a legal judgment call, and determine that the defendant should be held liable for the plaintiff’s injury. One of the ways of looking at the doctrine of proximate cause is to examine it in light of “foreseeability.” Defendants are liable for the injuries that are foreseeable from their negligent actions. Foreseeability is a difficult concept to grasp, but juries are asked to decide on a case-by-case basis whether a plaintiff’s injuries were foreseeable from the defendant’s conduct. The most famous case on foreseeability is Palsgraf v. Long island Railroad Company (1928), and involves analyzing whether the railroad company was liable for injuries sustained by a customer that were so random and remote as to be unpreventable. Another way of looking at proximate cause is to analyze whether something completely out of the ordinary has dramatically interfered with the chain of event the defendant’s negligent conduct put into motion. Suppose the defendant negligently injures someone in a car accident, and then the injured person is being taken to the hospital in the ambulance. While on the way to the hospital, the ambulance is struck by a meteor falling to earth. Would the defendant be liable for the meteor-related injuries? No, because the meteor would be known as a superseding event, or superseding cause.

2. Explain the concept of strict tort liability.

Generally, tort liability is predicated on fault—the defendant did something wrong. The key exception to fault-based liability is the doctrine of strict liability, which applies to product liability. Strict liability does not require the injured person to prove that the defendant breached a duty of care. According to the Restatement (Second) of Torts, strict liability applies to those who sell any product in a defective condition unreasonably dangerous to the user or consumer or to his property, when the product causes injury, the seller is engaged in the business of selling such a product, and it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold. Strict liability applies only to products, not services, and all parties in the chain of distribution of a defective product are strictly liable for the injuries caused by that product. This would include all manufacturers, distributors, wholesalers, retailers, lessors, and subcomponent manufacturers. Under strict liability, sellers and lessors are liable to the ultimate user or consumer, which could include the purchaser or renter, family members, guests, employees, customers, persons who enjoy the benefits of the product but don’t use it (such as automobile passengers), and even bystanders. Damages, including punitive damages, are recoverable in strict liability cases, but some jurisdictions do not allow for economic loss damages.

Chapter 12—Contracts and Commercial Transactions

True/False Questions

1. The one who accepts the contractual offer is known as the offeror. (F)

2. Every contract involves at least two parties. (T)

3. A valid offer has three requirements, which include that the offer must be definite. (T)

4. A counteroffer is made by the offeror and ends the negotiations. (F)

5. An option is actually a contract. (T)

6. A contract must have consideration. (T)

7. Minors can disaffirm any contracts they make. (F)

8. Contracts to perform an illegal act are voidable. (F)

9. Contracts that need to be in writing in order to be enforceable also must have the signatures of both parties. (F)

10. Liquidated damages are what the parties agree in advance to pay in the event of breach of contract. (T)

Multiple Choice Questions

1. All of the following are requirements of a valid contract except:

A)* It must be in writing.

B) It must be supported by consideration.

C) It must be made by parties with contractual capacity.

D) It must involve the performance of something that is lawful.

2. A promise to make a gift is unenforceable because:

A)* It lacks consideration.

B) It isn’t in writing.

C) It isn’t covered by the statute of limitations.

D) It isn’t an agreement.

3. The age of majority in most jurisdictions, which entitles one to make a binding contract, is:

A) 16.

B)* 18.

C) 20.

D) 21.

4. The statute of frauds requires certain contracts to be in writing in order to be:

A) Valid.

B)* Enforceable.

C) Executed.

D) Executory.

5. All of the following contracts need to be in writing except:

A) Real estate contracts.

B) Contracts for the sale of goods where the price is at least $500.

C)* Personal services contracts.

D) Contracts that, by their terms, cannot be performed within one year.

6. A covenant is:

A) A condition precedent.

B) A condition subsequent.

C)* An unconditional promise to pay.

D) An uncompleted performance.

7. An unconscionable contract is also known as:

A) A contract of unfavorability.

B) An executed contract.

C) A statute of frauds contract.

D)* A contract of adhesion.

8. When a contract has been breached, the nonbreaching party may:

A) Rescind the contract and seek restitution.

B) Sue the breaching party for damages.

C)* A or B.

D) A and B.

9. Damages that arise from circumstances outside the contract but are foreseeable from the breaching party’s breach are:

A)* Consequential damages.

B) Liquidated damages.

C) Compensatory damages.

D) Punitive damages.

10. What of the following qualifies as goods under Article 2 of the Uniform Commercial Code?

A)* A watch.

B) A share of a company’s stock.

C) A patent.

D) A piece of land.

Essay Questions

1. Explain the purpose of the statute of frauds, and give an example of a contract that would be covered by it.

Contracts are based upon mutually obligating promises that capable parties make to each other, the breach of which leads to liability. Although it is nice to think that parties would always remember what they agreed to do, it doesn’t always work that way. In fact, not only do parties forget what they agreed to do, but sometimes they lie about what the terms of a contract were. One way to protect against these problems is by putting contracts in writing. The statute of frauds is designed to do just that, although nothing prohibits parties from putting all their contracts in writing—a good but not always feasible idea. Originating in England, the statute of frauds requires that certain contracts be in writing in order for them to be enforceable. The common types of contracts that most jurisdictions require to be in writing include real estate contracts, contracts whose terms prevent the completion of the contract in less than a year, prenuptial agreements, promises to pay the debts of someone else, and contracts for the sale of goods where the purchase price is at least $500 dollars. Enforceable is different from valid. For instance, a two-year contract that isn’t in writing but is complete (executed) can’t be undone. But, a real estate contract that isn’t in writing according to the statute of frauds allows a party to get out of the contract before it is performed, since this type of oral contract is unenforceable. And in order for a contract to be enforceable under the statute of frauds, the contract must be signed “by the party against whom the enforcement is sought.” Since at the time of contracting, neither party knows who would end up being the defendant, both signatures would be obtained as a matter of course.

2. Explain the following: compensatory damages; consequential damages; and liquidated damages.

Nonbreaching parties may sue for breach of contract, and the most common remedy is an award of money damages, although there are occasions where equitable remedies, such as specific performance, can be sought. Monetary damages are of three types: compensatory, consequential, and liquidated. Compensatory damages are intended to compensate a nonbreaching for the loss of the bargain. They place the nonbreaching party in the same position as if the contract had been fully performed. This is commonly known as the “benefit of the bargain.” Consequential damages are those that are foreseeable damages that arise from circumstances outside the contract. In order to be liable for consequential damages, the breaching party must know or have reason to know that the breach will cause special damages to the other party. For example, if a wholesaler fails to deliver widgets on time to the retailer, and the retailer loses business by being unable to resell the widgets, the wholesaler will be liable for the lost profits of the retailer. Liquidated damages refer to cash, or that which is “liquid.” Under certain circumstances, the parties to a contract may agree in advance to the amount of damages payable upon a breach of contract. To be lawful, the actual damages must be difficult or impracticable to determine, and the liquidated amount must be reasonable under the circumstances. An enforceable liquidated damage clause is an exclusive remedy even if actual damages are later determined to be different (i.e. more). But, if a liquidated damages provision is considered to be a penalty, rather than a reasonable measure of the damages, the liquidated damages provision is unenforceable, and the nonbreaching party may then recover actual damages.

Chapter 13—Property and the Environment

True/False Questions

1. There are two kinds of property: personal; and real. (T)

2. A stock certificate is an example of tangible personal property. (F)

3. A bailment is a transfer of possession but not title. (T)

4. Furniture is a type of fixture. (F)

5. A fee simple is the highest form of ownership of real property. (T)

6. A remainder is a future interest in which the property returns to the grantor after the expiration of a limited estate. (F)

7. Married couples are the only persons who can own real estate in the form of tenancy by the entireties. (T)

8. Condominium owners do not get title to their individual units since they own the common areas as tenants in common. (F)

9. An easement is an interest in property where the holder of the easement has the right to limited use of someone else’s property, such as a right-of-way. (T)

10. A tenancy for years must be terminated by the landlord or tenant before the term has run, or else the tenancy will continue for the same term. (F)

Multiple Choice Questions

1. All of the following are considered types of real estate except:

A) Minerals.

B)* Chattels.

C) Buildings.

D) Crops.

2. All of the following are considered types of intangible property except:

A)* Fixtures.

B) Copyrights.

C) Certificates of deposit.

D) Shares of stock.

3. When a person takes his or her watch to the jeweler for repair, that transaction is known as a:

A) Fixture.

B) Joint tenancy.

C) Future interest.

D)* Bailment.

4. The type of real estate ownership that allows the present owner to lose the property if a specified condition isn’t maintained is known as:

A)* Fee simple defeasible.

B) Fee simple absolute.

C) Remainder.

D) Life estate.

5. When property goes to a third person at the end of a life estate term, that form of future interest is known as a:

A) Fee simple defeasible.

B) Fee simple absolute.

C)* Remainder.

D) Life estate.

6. All of the following are a type of co-ownership except:

A) Joint tenancy.

B) Tenancy in common.

C) Tenancy by the Entirety.

D)* Tenancy by the reversion.

7. Community property states require that upon the death of one spouse, the co-spouse is entitled to:

A) Half of all the property of the dead spouse.

B) None of the property of the dead spouse.

C)* Half of all the marital property of the dead spouse.

D) None of all the marital property of the dead spouse.

8. Taking title to someone else’s real estate by treating as your own for the required period of time and under the other required statutory requirements is known as:

A)* Adverse possession.

B) Quiet title.

C) Quitclaim deed.

D) Squatter’s rights.

9. The following type of tenancy that is created when a tenant retains possession of the property after the expiration of the term without the owner’s consent is called:

A) Periodic tenancy.

B)* Tenancy at sufferance.

C) Tenancy at will.

D) Tenancy for years.

10. An owner who want to use his or her property in a way that isn’t allowed by the current property use laws needs to seek a:

A) Zoning ordinance.

B) Easement.

C)* Variance.

D) Warranty of habitability.

Essay Questions

1. Explain the four categories of real property.

Property can be classified in two classes—real estate and personal property. Personal property includes tangible property, such as clothing, and intangible property, such as a copyright. Real property includes the following categories: land and buildings; subsurface rights; plant life and vegetation; and, fixtures. Land is the most common form of real property. In a addition to the land, the landowner usually purchases the surface rights to the land, which means the right to occupy the land. And, buildings are real property. Things such as radio towers and bridges are considered real property. Subsurface rights, which might be called mineral rights, includes that which is located beneath the surface of the owner’s land. These can be valuable rights, and such subsurface rights may be sold separately from the surface rights. Examples of subsurface rights include gold, uranium, and oil or natural gas. Plant life and vegetation is that which is growing on the surface of land. This includes natural plant life (e.g., trees) and cultivated plant life (e.g., crops). When land is sold, any plant life growing on the land is included unless the parties agree otherwise. Plant life that is severed from the land is considered personal property, such as when crops are cultivated to be turned into commodity products. Fixtures are certain personal property associated so closely with real property that it becomes part of the realty. Kitchen cabinets, carpeting, and doorknobs are examples of fixtures. But, items such as throw rugs and furniture are personal property, and not fixtures. Unless otherwise provided, fixtures are included when a building is sold. One of the characteristics of fixtures is their permanent attachment to the land or building.

2. Explain the following types of concurrent ownership: joint tenancy; tenancy in common; tenancy by the entirety; and community property.

Two or more persons may own a piece of real estate. This is concurrent ownership. Joint tenancy is a type of concurrent ownership where the co-owner has rights of survivorship, which means that upon the death of one of the co-owners (or joint tenants), the deceased person’s interest in the property automatically passes to the surviving joint tenant(s). Any contrary provision in the decedent’s will is void. To create a joint tenancy, words that clearly show a person’s interest to create a joint tenancy must be used. In a tenancy in common, the interests of a surviving tenant in common pass to the deceased tenant’s estate, and not to the co-tenants. A tenancy in common may be created by express words, such as “A and B, as tenants in common.” If A dies before B, A’s share of the property becomes part of A’s estate and passes to A’s heirs; B has no rights to A’s share because of A’s death. Tenancy by the entirety is a form of co-ownership of real property that can be used only by married couples. This type of tenancy must be created by express words, such as “ A Jones and B Jones, husband and wife, as tenants by the entireties.” A surviving spouse has the right of survivorship. Tenancy by the entirety is distinguished from a joint tenancy in that neither spouse may sell or transfer his or interest in the property without the other spouse’s consent. Community property is a method of co-ownership that is created by statute, and only nine states recognize this form of marital ownership of property. Community property is based on the notion that a husband and wife should share equally in the fruits of the marital partnership. Under these laws, each spouse owns an equal one-half share of the income of both spouses and the assets acquired during the marriage regardless of who earns the income. When a spouse dies, the surviving spouse automatically receives one-half of the community property. Property that is acquired through gift or inheritance either before or during marriage remains separate property. During the marriage, neither spouse can sell, transfer, or gift community property without the consent of the other spouse.

Chapter 14—Agency and Employment Law

True/False Questions

1. The agent hires the principal to transact business with third persons. (F)

2. An employee is not an agent of the employer unless the employee has the power to enter into contracts on behalf of the employer. (T)

3. An employee is a type of independent contractor. (F)

4. The most common form of agency is agency by estoppel. (F)

5. Agency by ratification occurs when the principal accepts the unauthorized act of the agent. (T)

6. An agent is liable to a third party in a partially disclosed agency. (T)

7. An owner of a car who hires a car salesman to sell the car is liable to a buyer to whom the seller intentionally misrepresents the facts about the car. (T)

8. Generally, principals are liable for the torts of their independent contractors. (F)

9. Workers’ compensation is an exclusive remedy, which means workers cannot sue their employers for damages due to employment injuries. (T)

10. Title VII of the Civil Rights Act of 1964 prohibits job discrimination based on one’s sexuality (F)

Multiple Choice Questions

1. All of the following are kinds of employment relationships except:

A) Employer-employee.

B) Principal-agent.

C) Principal-independent contractor.

D)* Partnership-partner.

2. One of the significant factors that helps distinguish the independent contractor from the employee is:

A)* The control over the independent contractor.

B) The pay of the independent contractor.

C) The education of the independent contractor.

D) The skill of the independent contractor.

3. The type of agency that occurs when the principal and agent clearly agree to enter into an agency agreement with each other is an:

A) Apparent agency.

B) Implied agency.

C) Agency by ratification.

D)* Express agency.

4. An agent is not liable to a third party on a contract the third party makes with the agent when the agency is a(n):

A) Partially disclosed agency.

B) Undisclosed agency.

C) Fully disclosed agency.

D) Estoppel agency.

5. The following are factors to determine whether an agent’s conduct occurred within the scope of his or her employment:

A) Whether the act was requested or authorized by the principal.

B) Whether the agent was advancing the principal’s purpose when the act occurred.

C)* Both of the above.

D) None of the above.

6. All of the following are exceptions to the general rule that principals are not liable for the torts of its independent contractors:

A) Nondelegable duties exception.

B) Special risks exception.

C) Negligence in the selection of an independent contractor exception.

D)* All of the above.

7. In a workers’ compensation state, an employee who is injured by the negligent conduct of a coworker who was ineffectively trained by management may sue:

A) The employer.

B)* The coworker.

C) Both of the above.

D) None of the above.

8. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based upon:

A) Sex.

B) Religion.

C)* Both of the above.

D) None of the above.

9. Allowing only women to be locker-room attendants in a women’s gym would be:

A)* Discriminatory but allowed.

B) Discriminatory but not allowed.

C) Not discriminatory.

D) Good for business.

10. Under the Americans with Disabilities Act, employers are required to make:

A)* Reasonable accommodations to disabled employees.

B) Complete accommodations to disabled employees.

C) Noticeable accommodations to disabled employees.

D) Minimal accommodations to disabled employees.

Essay Questions

1. Explain how the scope of employment doctrine affects employer liability.

The principal is not liable for all the wrongdoings of its employees, but the principle of employer liability does cast a broad net, making the employer liable for the negligent conduct of the employee that is within the scope of employment. This type of liability is based on the common law doctrine of “respondeat superior,” which means “let the master answer,” as well as the doctrine of vicarious liability. Under these doctrines, the employer is liable because of his or her employment relationship with the negligent employee, not because the employer was personally at fault. What is within the scope of employment is decided on a case-by-case basis, but there are some general tests that help determine employer liability. The frolic and detour principle recognizes that employees don’t always stay on the straight and narrow path of their employment—sometimes they detour, and sometimes they frolic. Employees are still within the scope of employment if they detour, but if the employee’s frolic and detour is substantial, then the principal won’t be liable. For example, a UPS driver who stops to see an afternoon movie at the cinemaplex, and then hits a pedestrian in the theatre parking lot is likely to be considered outside the scope of employment. The “coming and going” rule relates to the common law idea that a principal is generally not liable for injuries caused by its agents and employees while they are on their way to or from work. This rule applies even if the principal supplies the agent’s automobile or pays for the gasoline or operating expenses. Other factors that affect the scope of employment include whether the act was requested or authorized by the principal, whether the act was the kind the agent was employed to perform, whether the act occurred substantially within the time period of employment, and whether the agent was advancing the principal’s purpose when the act occurred.

2. Compare and contrast an employee from an independent contractor.

Employees and independent contractors are similar in that both are appointed by a principal to work for the principal. Both are paid by the principal, and their work is subject the approval or endorsement of the principal. But, employees and independent contractors are not alike. Perhaps the most important distinction between an employee and an independent contractor is the control the principal exercises over them. The employer controls both the process and outcome of the employee’s work, but such is not the case with the independent contractor. An independent contractor is hired for an outcome, but the process of reaching that outcome is generally left to the independent contractor’s expertise. Examples of independent contractors would include lawyers, doctors, dentists, accountants, plumbers, and construction contractors. Because an independent contractor is liable for his or her own employment taxes, and because principals are usually not liable for the torts of its independent contractors, some employers try to classify their employees as independent contractors. Some of the factors that determine whether one is an independent contractor include the following: whether the worker is engaged in a distinct occupation or an independently established business; the length of time the agent has been employed by the principal; whether the principal supplies the tools and equipment used in the work; the method of payment, whether by time or by the job; whether the worker hires employees to assist him or her; and whether the employer has the right to control the manner and means of accomplishing the desired result.

Chapter 15—Business Organizations

True/False Questions

1. Access to capital is not a disadvantage of a sole proprietorship. (F)

2. Liability is a disadvantage of a sole proprietorship. (T)

3. It is a requirement of partnerships that a partnership agreement be drafted and signed by the partners. (F)

4. Partners have unlimited liability for the torts of the other partners carrying on partnership business. (T)

5. Limited partners give up profits in exchange for limited liability. (F)

6. A limited partner’s liability is limited to the extent of that partner’s investment. (T)

7. Owners of a limited liability company are called members. (T)

8. A corporation is a separate entity from the shareholders. (T)

9. The articles of incorporation express the company’s bylaws. (F)

10. The board members own the corporation. (F)

Multiple Choice Questions

1. All of the following are advantages of a sole proprietorship except:

A) Ease and low cost of formation.

B) Autonomy.

C)* Liability.

D) Transferability.

2. The following is not included in the definition of a general partnership:

A) An association of two or more persons.

B)* carrying on a business or charity.

C) As co-owners.

D) For profit.

3. One of the following is prima facia evidence of a partnership:

A)* Sharing of profits.

B) Sharing of management.

C) Sharing of authority.

D) Sharing of the partnership checkbook.

4. Partners have the following liability when another partner, or employee, commits a tort while acting in furtherance of the partnership:

A) Joint liability.

B) Several liability.

C)* Joint and several liability.

D) None of the above.

5. A limited partnership must have at least one:

A) General partner.

B) Limited partner.

C)* Both of the above.

D) None of the above.

6. A limited liability partnership does not have to have a:

A)* General partner.

B) Limited partner.

C) Both of the above.

D) None of the above.

7. A limited liability company is a(n):

A) Incorporated partnership.

B) Unincorporated partnership.

C) Incorporated business entity.

D)* Unincorporated business entity.

8. All of the following are unique characteristics of a corporation except:

A)* Individualized management.

B) Limited liability of shareholders.

C) Free transferability of shares.

D) Perpetual existence.

9. Shareholders have the right to vote on:

A) Dividends.

B)* The board of directors.

C) The bylaws.

D) The corporate officers.

10. An outside director on a corporate board is one:

A) Who works outside the company’s headquarters.

B)* Who isn’t an employee of the company.

C) Who isn’t allowed into the board meetings.

D) Who doesn’t own any shares of the company’s stock.

Essay Questions

1. Explain the advantages and disadvantages of a partnership.

General, or ordinary, partnerships have been recognized since ancient times. A partnership is a voluntary association of two or more persons for carrying on a business as co-owners for profit. The formation of a partnership creates certain rights and duties among partners and with third parties. A partnership has some advantages over sole proprietorships and corporations. For instance, a partnership provides credence to the maxim that “two heads are better than one.” Unlike a proprietorship, a partnership can rely upon the expertise of more than one owner, and those owners help defray the cost of doing business since partners share the costs and liabilities of a partnership. And unlike a corporation, a partnership is subject to federal taxation only once. Partnership profits are passed through to the partners, who then report their share of profits on their personal income taxes. This single taxation is a strong advantage that partners have over corporations because corporate income is subject to federal taxation twice. First, the corporation pays taxes on its income at the corporate income tax rate. Then, if the corporation takes any of what is left over and distributes it to the shareholders as dividends, those dividends are taxable to the shareholders as ordinary income.

Partnerships do, however, have some disadvantages, particularly to that of corporations. Corporations can live forever, theoretically, since the corporation is an entity that is legally distinct from its owners—the shareholders. Unlike corporations, partnerships generally do not survive the death of an owner, and must be dissolved, unless the partnership agreement provides otherwise. More critically, however, is the partnership’s disadvantage as it concerns liability. Shareholders in a corporation are only liable to the extent of their investment (capital contribution), which is known as limited liability. Partners have unlimited liability, which means that all that a partner has—invested in the partnership or otherwise—can be taken to satisfy a debt or judgment. When it comes to tort liability, partners have joint and several liability, which means that a partner can be found liable for the full amount, even if another partner committed the tort, and even if all the other partners have left the country and can’t be included in the lawsuit.

2. Explain the unique characteristics of a business corporation.

Corporations are the dominant form of business organization in the U.S., generating over 85% of the country’s gross business receipts. A corporation is a separate legal entity (or legal person) for most purposes. Corporations are treated as artificial persons created by the state who can sue or be sued in their own names, enter into and enforce contracts, hold title to and transfer property, and be found civilly and criminally liable for violations of law. Corporations have certain unique characteristics, including limited liability of shareholders, free transferability of shares, perpetual existence, and centralized management. As separate legal entities, corporations are liable for their own contracts and debts. Generally, shareholders have only limited liability. They are liable only to the extent of their capital. Corporate shares are freely transferable by the shareholder, by sale, assignment, pledge, or gift, unless they are issued pursuant to certain exemptions from securities registration. Corporations may exist in perpetuity unless a specific duration is stated in the corporation’s articles of incorporation. This is because the shares, which represent ownership, are intangible and distinct from the owners. The death, insanity, or bankruptcy of a shareholder, a director, or an officer of the corporation does not affect its existence. The board of directors makes policy decision concerning the operation of the corporation. Members of the board of directors are elected by the shareholders. The directors, in turn, appoint corporate officers to run the corporation’s day-to-day operations. Together, the directors and the officers form the corporate management.

Chapter 16—Intellectual Property and Internet Law

True/False Questions

1. A competitor can be liable for misappropriation of a trade secret for doing something like taking apart a product to determine what it consists of. (F)

2. In the United States, the first one to file the patent takes priority over the first one to invent the subject matter. (F)

3. For an invention to be granted a patent, the invention must be nonobvious. (T)

4. Generally, copyright protection lasts for the life of the author. (F)

5. The fair-use doctrine permits a student to reproduce someone else’s protected work in order to illustrate a lesson. (T)

6. Books and plays may be copyrighted, but jewelry and sermons may not be copyrighted. (F)

7. Unlike copyrights, trademarks can only be registered if the mark is actually in use in commerce, or the mark will be in use within six months of the registration. (T)

8. Coca-cola can be trademarked, but cola cannot. (T)

9. Once registered, a trademark never loses its federal protection, as long as the trademark is renewed. (F)

10. Internet website names can be registered and given exclusive rights. (T)

Multiple Choice Questions

1. If a competitor were to unfairly take Colonel Sanders recipe for Kentucky Fried Chicken, that competitor would be stealing a:

A) Patent.

B) Copyright.

C)* Trade secret.

D) Trademark.

2. To be patented, the invention must be all of the following except:

A) Novel.

B)* Credible.

C) Useful.

D) Nonobvious.

3. The following could not be patented:

A)* Scientific formulas.

B) Compositions of matter.

C) Improvements to existing machines.

D) All of the above could not be patented.

4. Copyright protection lasts:

A) The life of the author.

B) The life of the author plus a 10-year renewal period.

C) The life of the author plus 50 years.

D)* The life of the author plus 70 years.

5. Copyright protection does not apply to:

A) Artistic ideas.

B) Mechanical ideas.

C)* Both of the above.

D) None of the above.

6. The fair-use doctrine permits the following:

A) Limited use of someone else’s patented invention.

B) Limited use of someone else’s trademarked logo.

C)* Limited use of someone else’s copyrighted material.

D) Limited use of someone else’s trade secret.

7. Trademark protection lasts:

A) 10 years.

B) 10 years plus one 10-year renewal.

C)* 10 years plus an unlimited number of 10-year renewals.

D) Forever.

8. A mark that has acquired a secondary meaning is one that:

A) Has lost its initial value.

B)* Has a dual meaning, one of which is distinctive.

C) Has lost trademark protection.

D) Has been patented and trademarked.

9. All of the following are Internet domain names except:

A)* .

B) .edu.

C) .net.

D) .org.

10. The Internet was initiated by:

A)* The Department of Defense.

B) The Federal Communications Commission.

C) The computer department at MIT.

D) Al Gore.

Essay Questions

1. Describe a patent, a copyright, and a trademark.

Patents, copyrights, and trademarks are known as intellectual property, meaning they are types of property that are created through the ingenuity and creativity of the intellect. These types of property are intangible; it is rights over the work, mark, or invention that are owned, rather than simply a particular book, logo, or machine. All three types of intellectual property are granted exclusive ownership rights due to federal (and in some instances, international) law. A patent is a registration of an invention that is novel, useful, and nonobvious. Patentable subject matter includes 1) machines, 2) processes, 3) composition of matter, 4) improvements to existing machines, processes, or compositions of matter, 5) designs for an article of manufacture, 6) asexually reproduced plants, and 7) living material invented by a person. Abstractions and scientific principles can’t be patented. Patent applicants must file a patent application containing a written description of the invention with the U.S. Patent and Trademark Office. Patent holders own exclusive rights to use and exploit their patent, which includes suing someone for the unauthorized use of another’s patent.

A copyright is the exclusive legal right to reproduce, publish, and sell a literary, musical, or artistic work. Federal copyright law protects the work of authors and other creative persons from the unauthorized use of their copyrighted materials. Only tangible writings are subject to copyright registration and protection. This means that artistic or creative ideas are not protected, but rather the tangible expression of those ideas is protected. Works that are subject to copyright protection include books and periodicals, lectures, sermons, addresses, musical compositions, plays and motion pictures, radio and television productions, maps, works of art, and jewelry. To be protected under federal copyright law, the work must be the original work of the author. Copyright registration itself does not create the copyright. Copyright protection lasts the life of the author plus 70 years, and corporate copyrights lasts either 95 or 120 years. A copyright owner who successfully sues one who is guilty of copyright infringement can recover profits made by the infringer, damages suffered by the plaintiff, and an injunction preventing the infringer from doing so in the future. But the fair-use doctrine allows for limited unauthorized use of copyrighted work under certain conditions, including that which is used for teaching purposes.

A trademark is exclusive ownership in a distinctive mark, symbol, name, word, motto, or device that identifies the goods of a particular business. A trademark is registered with the U.S. Patent and Trademark Office, and the original registration of a mark is valid for 10 years and can be renewed for an unlimited number of 10-year periods. An applicant can register a mark if 1) it was in use in commerce or 2) the applicant verifies a bona fide intention to use the mark in commerce and actually does so within six months of its registration. The types of marks that can be trademarked include trademarks, service marks, certification marks, and collective marks.

2. What has been done to deal with intellectual property issues that arise in connection with the Internet?

The growth of the Internet has led to extending intellectual property rights to aspects of the World Wide Web. Information provided on websites can be protected under copyright law, assuming that the material meets the qualifications of copyright eligibility. Domain names can be owned and sold, such that “” can be registered for a few dollars, and then used as a website name or sold to the highest bidder. However, the curious registering of Internet domain names has become more difficult by the passage of the Anticybersquatting Consumer Protection Act, passed in 1999. The Act was specifically aimed at cybersquatters who register Internet domain names of famous companies and people and hold them “hostage” by demanding “ransom payments” from the famous company or person. Prior to the Act, trademark law was of little help. The Act has two fundamental requirements: 1) the name must be famous, and 2) the domain name must have been registered in bad faith. Thus, the law prohibits the act of cybersquatting itself it if is done in bad faith. The Act provides for the issuance of cease-and-desist orders and injunctions by the court. In addition, the law adds monetary penalties: a plaintiff has the option of seeking statutory damages of between $1,000 and $300,000 in lieu of proving damages.

Chapter 17—Family Law, Wills, and Estates

True/False Questions

1. Marriage is regulated at the state level. (T)

2. Common law marriage is no longer recognized in the United States. (F)

3. A no-fault divorce can be obtained without having to go to court. (F)

4. In a community property state, all property obtained during the marriage is split evenly during a divorce, regardless of which spouse earned the property during the marriage. (T)

5. Child support guidelines are usually based upon the paying parent’s income. (T)

6. A person who makes a will is called a beneficiary. (F)

7. All wills, including holographic wills, must be attested by mentally competent witnesses. (F)

8. A testator’s signature must generally be at the beginning of a will. (F)

9. If a testator’s estate is not large enough to pay all of the devises and bequests, the doctrine of abatement applies, and at least some of the gifts will be proportionately reduced. (T)

10. Trusts may be created expressly, but they also may be imposed by law, or even by the conduct of the parties. (T)

Multiple Choice Questions

1. A common-law marriage is one:

A) That is not recognized in all states.

B) That does not involve a marriage license.

C)* Both of the above.

D) None of the above.

2. Residency requirements:

A)* Are generally required for all divorces.

B) Are generally required for no-fault divorces.

C) Are generally not required for all divorces.

D) Are generally not required for no-fault divorces.

3. All of the following are requirements for a valid will except:

A) The testator must have testamentary capacity.

B) The will must be in writing.

C) The testator must sign the will.

D)* The will must be prepared by an attorney.

4. That which changes a will is a(n):

A) Abatement.

B)* Codicil.

C) Attestation.

D) Revocation.

5. If a testator were to leave a BMW for someone in the will, but by the time the testator dies, the BMW has been sold, the doctrine of ademption requires that:

A)* The beneficiary gets nothing.

B) The beneficiary gets the cash equivalent.

C) The beneficiary gets a car, if one is in the residuary clause.

D) None of the above.

6. If two or more testators execute the same instrument as their will, the will is called a:

A) Holographic will.

B) Nuncupative will.

C) Mutual will.

D)* Joint will.

7. Is someone dies without a will, the person is said to have died:

A) Escheat.

B)* Intestate.

C) Nuncupative.

D) Nonprobate.

8. The type of document that stipulates a person’s desires to not have life-prolonging medical treatment under certain conditions is a:

A) Nuncupative will.

B) Holographic will.

C)* Living will.

D) Living trust.

9. The person who transfers his or her property into a trust is the:

A)* Settlor.

B) Trustee.

C) Beneficiary.

D) Remainderman.

10. The type of trust that is created while the person creating the trust is still alive is known as a(n):

A) Testamentary trust.

B) Implied trust.

C) Totten trust.

D)* Inter vivos trust.

Essay Questions

1. Explain the process how one creates a will and changes his or her will.

A will is a declaration of how a person wants his or her property to be distributed upon his or her death. The person making the will is called the testator (or testatrix, if a female), and the persons designated in the will to receive the testator’s property are called beneficiaries. Every state has a statute of wills establishing the requirements for making a valid will in that state. Those requirements include the following: A testator must have testamentary capacity, which means that the testator must have been of legal age and “sound mind” when the will was made. Sound mind generally means one understands he or she is making a will, and understands the plan of the will. Also, wills must be in writing to be valid, except for certain oral wills (nuncupative) that the law allows under limited circumstances. However, the will doesn’t have to be drafted in a certain way, or even typed, for that matter. Wills also must be signed by the testator—usually at the end of the will—and must be attested. Attestation is the process where mentally competent and disinterested witnesses (usually two or three) witness the testator signing the will, and then the witnesses sign the will, in the presence of each other. Wills can be changed up until the death of the testator. The most complete way to change a will is to revoke the will and then draft and attest a new will. Revocation may be done by obliterating the will, but a subsequent will can also serve to revoke a prior will. Wills can also be changed by the use of a codicil, which is a separate document that must be executed with the same formalities as a will. Additionally, it must incorporate by reference the will it is amending.

2. Explain what a trust is, and then define a charitable trust, a spendthrift trust, and a totten trust.

A trust is a legal arrangement under which one person—the settlor or trustor—delivers and transfers legal title to property to another person, the trustee, to be held and used for the benefit of a third person, the beneficiary. The property held in trust is called the trust corpus. The trustee has legal title to the corpus, and the beneficiary has equitable title. Unlike wills, trusts are not public documents, so property can be transferred in privacy. Trusts often provide that any trust income is to be paid to a person called the income beneficiary. The person to receive the trust corpus upon termination of the trust is called the Remainderman. The income beneficiary and Remainderman can be the same person or different persons. A trustee can allow the trust to invade or use the corpus for certain purposes that can be specifically named in the trust document, such as to pay off a mortgage of a person after a number of years. Generally, the trustee has broad management powers over the trust property. In addition to being expressly created, trusts can be imposed by law, and those are known as implied trusts. A constructive trust is an example of an equitable implied trust, and it is designed to prevent someone from keeping what he or she shouldn’t have taken or gotten in the first place. A charitable trust is created for the benefit of a segment of society or society in general. An example is a trust created for the benefit of a church organization. A spendthrift trust is designed to prevent a beneficiary’s personal creditors from reaching his or her trust interest. All control over the trust is removed from the beneficiary. Personal creditors still can go after trust income that is paid to the beneficiary, however. A totten trust is created when a person deposits money in a bank account in his or her own name and holds it as a trustee for the benefit of another person. A totten trust is a tentative trust because (1) the trustee can add to or withdraw funds from the account, and (2) the trust can be revoked at any time prior to the trustee’s death or prior to completing delivery of the funds to the beneficiary. A totten trust is also known as a “poor person’s trust” because even a small bank account can be a totten trust.

Chapter 18—Interviewing and Investigation Skills

True/False Questions

1. Most incidents giving rise to litigation have associated official reports. (T)

2. Photographs may not be entered as evidence at trial, but they are still important fact-gathering devices in litigation. (F)

3. The starting point for following a timeline is the time of the alleged injury. (T)

4. The physical surroundings of an interview location does not have an effect on the tone for the interview. (F)

5. Paralegals and legal assistants generally may not interview clients because of the problems associated with the attorney-client privilege and the unauthorized practice of law. (T)

6. Leading questions are those that suggest the answer to be given. (T)

7. Open-ended questions are very good to ask nervous or introverted clients who have a hard time responding. (F)

8. The attorney-client privilege cannot be waived. (F)

9. An expert retained by a law firm to serve as a consultant has greater attorney-client privilege protection than an expert retained to testify at trial. (T)

10. The Freedom of Information Act allows private citizens or law firms to obtain any document that the federal government has in its possession. (F)

Multiple Choice Questions

1. The investigation of a case includes obtaining the following:

A) Diagrams.

B) Photographs.

C) Witness statements.

D)* All of the above.

2. In order to determine the proper penalty for spoliation of evidence, courts are most likely to consider all of the following factors except:

A)* The extent to which the evidence has been spoiled.

B) The degree of fault of the party who altered or destroyed the evidence.

C) The degree of prejudice suffered by the opposing party.

D) The availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct..

3. The first step in preparing for an interview or conducting an investigation is:

A) Dress appropriately.

B)* Understand the desired outcome.

C) Understand the nonverbal cues.

D) None of the above.

4. “You were driving under the speed limit, right?” is a(n):

A) Open-ended question.

B) Narrative question.

C)* Leading question.

D) Double-barrel question.

5. “Tell me what happened at the Home Depot after you walked into the forklift?” is a(n):

A)* Open-ended question.

B) Stupid question.

C) Leading question.

D) Double-barrel question.

6. All of the following are a form of privileged communication except:

A) Doctor-patient communication.

B) Husband-wife communication.

C)* Parent-child communication.

D) Priest-penitent.

7. The paralegal or legal assistant is covered by the attorney-client privilege:

A) If the paralegal or legal assistant is also the client.

B) If the paralegal or legal assistant is acting on behalf of the attorney.

C)* Both of the above.

D) None of the above.

8. A party may depose an expert:

A) Under all circumstances.

B)* If the expert is listed as an intended witness.

C) Under no circumstances.

D) If the expert consents to the subpoena.

9. The Freedom of Information Act, which allows the public to obtain information the federal government possesses, has certain exceptions, including all of the following:

A) Classified documents.

B) Law-enforcement investigatory files.

C)* Both of the above.

D) None of the above.

10. Martindale-Hubbell is:

A)* A legal directory.

B) A law firm.

C) A space shuttle.

D) A martini.

Essay Questions

1. Explain key aspects to a successful interview, including different types of questions.

Paralegals and legal assistants may conduct interviews of prospective clients, clients, and witnesses. The first step in preparing for an interview is to understand the outcome desired. One of the desired outcomes in an initial interview with a new client is to instill the client with confidence in the firm and its personnel. A checklist can be a valuable tool to be certain that all the information required for a certain type of case or other legal matter is obtained during the initial interview. Setting a client at ease is also a key component to conducting an effective interview, and that can be accomplished through body language, building rapport, and explaining how the interview is protected by confidentiality and the attorney-client privilege. While conducting interviews, certain factors need to be kept in mind. In the first meeting, the paralegal must make clear that he or she is a paralegal and not an attorney. During the first few minutes of the interview, paralegals must build a relationship with the interview subjects, let them understand the purpose of the interview, and eliminate any barriers that would prevent obtaining the necessary information. Effective interviewers learn the verbal and nonverbal cues that help them understand the reasons for interviewees’ reluctance to answer questions.

Leading and open-ended questions include the types of questions that can be asked in an interview. Leading questions are those that suggest the desired answer, and are generally asked by lawyers when conducting cross-examination. “You filed your taxes by April 15, didn’t you?” is a form of a leading question. Generally, leading questions should be avoided when conducting witness or client interviews since the answers seem to be drawn out of the respondent in the way the interviewer wants them. Open-ended questions are designed to give interviewees an opportunity to tell their story without the limitation of yes-or-no answers. Open-ended questions create a narrative opportunity for the witness. For example, “How has your health been since the accident?” is an open-ended question. In fact interviews, the witness should receive the opportunity for open-ended, narrative answers. Asking a question to solicit an answer that the interviewer desires may cut off information essential to the case.

2. Explain the Freedom of Information Act, and how it might affect litigation.

The federal government is a good source of all kinds of information, some of which may be relevant or helpful in litigation. The Freedom of Information act is a federal statute designed to open to the public the information possessed by the federal government and its agencies. Many of the documents required to be filed are available through the government, and frequently online, such as corporate filings with the Securities and Exchange Commission. Other information may be available by request, under the provisions of the Freedom of Information Act, 5 U.S.C. § 552. Some limitations apply to the information available. The general exceptions, as found in the statute, include: 1) classified documents concerning national defense and foreign policy; 2) internal personnel rules and practices; 3) exemptions under other laws that require information to be withheld, such as income-tax returns; 4) confidential business information and trade secrets; 5) intra-agency and inter-agency internal communications; 6) protection of privacy of personnel and medical files and private lives of individuals; 7) law-enforcement investigatory files; 8) documents of agencies responsible for the regulation and supervision of financial institutions; and, 9) geological and geophysical information and data. For example, in a lawsuit where the plaintiff alleges that the U.S. government has been targeting members of civil rights groups, and harassing them, the plaintiffs could use the Freedom of Information Act to request documents from specific agencies (the FBI, for instance) that might show if the government was investigating certain groups, and for what stated reasons.

Chapter 19—Traditional and Computer Legal Research

True/False Questions

1. Online legal research services have made law libraries irrelevant. (F)

2. Researchers must first understand the law that applies to the research project on which they are working. (F)

3. A primary source is the actual law itself. (T)

4. The Code of Federal Regulations is a primary source. (T)

5. A legal encyclopedia is a primary source. (F)

6. A digest is a secondary source. (F)

7. Most legal references have an introduction that explains how to use the materials. (T)

8. Case law has pocket parts. (F)

9. Lexis, Loislaw, Westlaw, and VersusLaw provide full-service online legal research services. (F)

10. Connectors are instructions to the search engine to look for documents containing combinations of words. (T)

Multiple Choice Questions

1. Before starting your research, it is important to obtain a copy of the current:

A) Federal Rules of Civil Procedure.

B) Corpus Juris Secundum.

C)* Local Rules of Court.

D) Black’s Law Dictionary.

2. Traditional law libraries are:

A)* Still relevant, even though electronic legal research is quicker.

B) Not relevant because electronic legal research source are available.

C ) More relevant than electronic legal research sources.

D) Beautiful buildings.

3. The West Digest System has the following number of Digest Topics:

A) 50.

B) 300.

C)* 450.

D) 500.

4. The law itself is known as a:

A)* Primary source.

B) Secondary source.

C) Finding Tool.

D) None of the above.

5. A rule of court is a:

A)* Primary source.

B) Secondary source.

C) Finding tool.

D) None of the above.

6. A restatement of the law is a:

A) Primary source.

B)* Secondary source.

C) Finding tool.

D) None of the above.

7. A citator, such as Shepard’s Citations, is a:

A) Primary source.

B) Secondary source.

C)* Finding tool.

D) None of the above.

8. One should check on the current status of their research by:

A) Checking the pocket part.

B) Shepardizing.

C)* Both of the above.

D) None of the above.

9. All of the following electronic legal research services are full-service except:

A) Westlaw.

B) Loislaw.

C) Lexis.

D)* VersusLaw.

10. One checks on updates to their legal research on Westlaw by using:

A) GlobalCite.

B) Shepardizing.

C) ParallelCite.

D)* KeyCite.

Essay Questions

1. Explain primary authority, secondary authority, and finding tools. Give examples of each.

The world of legal research can be divided into three parts: primary authority; secondary authority; and, finding tools. All three parts can be found in a traditional law library, and also on the Internet, using the electronic legal research sources that are available. Primary authority (also known as primary sources) is the law itself. That is to say, primary authority is law made by government. Law is made by private citizens all the time, and a contract for the lease of a car is an example of that type of law. But, the term, primary authority, refers to public law, that made by the branches of government. Congress makes statutes, which are located in statutory codes. Administrative agencies—usually part of the executive branch of government—make rules and regulations, which are located in administrative codes. The judiciary makes case law, which is located in reporters. The judiciary also adopts court rules, which are located in federal, state, and local rules of court. Constitutions, are also types of primary authority, as are executive orders and opinions of attorneys general. Secondary authority is not the law itself, but instead are writings about the law. Secondary authority can be cited in legal writing, but it shouldn’t be cited in place of applicable primary authority. Types of secondary authority include legal dictionaries (Black’s), legal encyclopedias (C.J.S.), treatises (Wigmore on Evidence), Law Reviews (Yale Law Review), Textbooks (Legal Ethics, by Kauffman), and legal periodicals (ABA Journal). Finding tools are really important, but don’t qualify as primary or secondary authority. Finding tools allow a researcher to locate the law, or to update the status of the law that’s been found. A digest (West’s Indiana Digest) is an example of a finding tool, allowing one to find case summaries, organized by West’s 450 digest topics. Shepard’s Citations is another type of a finding tool. Shepard’s books allow a researcher to check to see if the law that has been found is still “good law.”

2. Explain how one checks on the current status of the legal research that has been found.

Finding what you’re looking for is a wonderful feeling, but that doesn’t mean the job is done. In fact, the job is only half-done, since one should never use, or give to a boss, any primary authority without making sure it is still “good law,” which means that it hasn’t been negatively changed since the publication of the primary authority that was found. The doctrine of stare decisis provides that we use prior case law as precendent, but precedent can be changed or overruled occasionally. Thus, an essential part of legal research for paralegals is to verify that they have the latest case or statute. Verifying that through the law library method does work, but it is not as current as doing it electronically. The first and easiest method to check on the current status of the law is a pocket part. A pocket part is a printed update on the law that is has a cardboard backing, so that it can be placed in the slit in the back, inside cover of the volume being researched. Pocket parts can be found in statutory codes, legal encyclopedias, professional practice series, and digests. For instance, when looking up a statute, one shouldn’t put the volume back in the stacks until after checking the pocket part in the back of the volume. In addition to pocket parts, annual (or cumulative supplements) are available, but are not included as a pocket part. Long a standard tool of legal research in law libraries has been “Shepard’s Citations,” a multivolume set of books listing cases and statutes by their respective citations and giving the citation of every other case in which the listed case was mentioned. Although one can Shepardize a statute, Shepardizing is most often thought of in relation to case law. Shepard’s Citations volumes are in law libraries, but one can Shepardize electronically on the Lexis legal research service. Other companies provide citation-checking services, similar to Shepard’s: one can use Westlaw’s KeyCite service; and one can use Loislaw’s GlobalCite service.

Chapter 20—Critical Legal Thinking and Writing

True/False Questions

1. Critical legal thinking is the process of identifying legal issues, determining the relevant facts, and applying the applicable law. (T)

2 A memorandum is a working document for the legal team to be used by delivering it to a court. (F)

3. A brief is an advocacy document (T)

4. The duty of candor is the duty to do thorough legal research. (F)

5. The starting point for the legal researcher is to understand the specific assignment. (T)

6. A memorandum needs to present the strongest side of the issue. (F)

7. The most commonly used guide to citation form is The Bluebook. (T)

8. The Universal Citation Guide was created by the Association of Legal Writing Directors. (F)

9. Sometimes, states adopt the citation format of the West Publishing Company as the states’ official citation format. (T)

10. The Bluebook and the ALWD have identical citation rules. (F)

Multiple Choice Questions

1. A memorandum is traditionally a(n):

A) External document.

B)* Internal document.

C) Both of above.

D) None of above.

2. A brief is traditionally:

A) Written for other lawyers.

B) Written for clients.

C)* Written for judges.

D) Written for all three.

3. The key to starting any legal research problem is to:

A)* Understand what is being asked.

B) Shepardize the case law.

C) Check the pocket part.

D) Index the file.

4. The reference to the source of the information that allows someone else to find the case or other material mentioned in a document is the:

A) Argument.

B) Issue.

C) Analysis.

D)* Citation.

5. The most commonly used guide to citation form is the publication:

A)* The Bluebook.

B) The Purplebook.

C) The Universal Citation Guide.

D) The ALWD Citation Manual.

6. In a case citation, the middle information is the:

A) Volume.

B)* Book or series.

C) Page.

D) Publisher.

7. The Universal Citation Format is designed to:

A) Provide the correct citation format in any jurisdiction.

B) Allow citations to be used internationally.

C)* Allow one to find the cited material regardless of the research tool being used.

D) Provide the researcher with the parallel citation.

8. The Bluebook and The ALWD Manual are:

A) Identical.

B) The same.

C) Very different.

D)* Slightly different.

9. In a research and writing context, “U.S.” means:

A) United States.

B) United States Constitution.

C) United States Congress.

D)* United States Supreme Court.

10. Cases in a case reporter and cases on an electronic legal research service appear:

A) Identically.

B)* Differently.

C) Both of the above.

D) None of the above.

Essay Questions

1. Explain what is needed to be done to write an effective memorandum.

In doing research and preparing the memorandum of law, the legal assistant must be careful to include all the relevant applicable statutes and case law. The starting point for the legal assistant is to understand the specific assignment. Any questions should be resolved by asking the person for whom the memorandum is being prepared. Paralegals, of course, must have a clear statement of the facts from which to work. The facts relied upon in writing the memo must be part of the ultimate final memorandum, since other people will read the memorandum and will need to understand the specific facts upon which the analysis is based. A memorandum must present both sides of the issue, and in that respect, be a neutral, unbiased, objective presentation of applicable laws as they apply to the facts of the case. Issues that the opposing attorney or the judge may raise should be considered and presented. A good analysis will include a discussion of how the fact pattern may differ in cases that are not on point but may be used by opposing counsel. The memorandum should be written in stages, with a rough draft being altered upon reflection. The memorandum’s final version should be a consequence of careful editing and rewriting, and should be focused towards the intended audience. The citation style used should accurately reflect the law being cited, so the reader can “check the citations” if desired.

2. Explain the Universal Citation Guide format.

Although the most common guide used for legal citations is the Bluebook, published by the Harvard Law School, another citation guide with a new citation format, written by the Association of Legal Writing Directors (ALWD), is provided in the ALWD Citation Manual. One of the attributes of the ALWD is that it is “a set of rules that reflects a consensus in the legal profession about how citations should function.” The Universal Citation Guide represents an attempt by the American Association of Law Libraries (AALL), Committee on Citation Formats, to create a set of universal citation rules for American law that are publisher-neutral and medium-neutral. The various formats of electronic distribution require a system of citations that can be applied consistently to allow researchers to find the referenced authority regardless of the research tool used. Whereas the traditional, paper or book-based, citation uses information based on internal page numbers, the Universal Citation Format relies upon the courts to use number paragraphs in their opinions. Any publisher of the case law then can preserve the information provided by the court, including the citation references to the case and paragraph. The Universal Citation Format is an attempt to solve the problem that the page size and display of a case in a book are different than the same case online.

Chapter 21—The Internet, the Computer, and the Paralegal

True/False Questions

1. The paralegal is the member of the legal team who is most likely to spend time in the office using the Web and the Internet for more than just pure legal research. (T)

2. The Internet is almost nothing more than a group of computers linked together with the added ability to search all the connections for information. (T)

3. The LAN is the search tool that allows one to search the Internet, such as the web browsers, Netscape or Internet Explorer. (F)

4. There are few Internet Service Providers. (F)

5. Modems modulate and demodulate electrical signals (T)

6. All web browsers basically provide two main screens – one to display email, and one to display content and Internet search results. (T)

7. The URL is made up of three parts: protocol; computer; and the ISP. (F)

8. The most popular format for the federal government to use in making its forms available on the Internet is PCL. (F)

9. Norton and McAfee are two companies that sell programs that combat Internet viruses. (T)

10. Encryption technology permits a computer user to basically put a lock around its computer information to protect if from being discovered by others. (T)

Multiple Choice Questions

1. The main control computer that controls the connections and how the requests from each computer are handled and directed on the network is referred to as the:

A) Workstation.

B)* File server.

C) Firewall.

D) Intranet computer.

2. An Internet service provider:

A) Manages the files on the computer.

B)* Allows computers to get connected to the World Wide Web.

C) Provides Internet content.

D) Provides the Protocol.

3. At the receiving end of the signal the modem sends is:

A) A protocol.

B) An Internet service provider.

C)* Another modem.

D) A gremlin.

4. Google is a(n):

A) Internet service provider.

B) Internet modem provider.

C)* Internet search engine.

D) Internet web site.

5. The URL is made up of three parts:

A)* Protocol; computer; path.

B) Computer; path; ISP.

C) Path; ISP; protocol.

D) ISP; protocol; GPS.

6. The extension of a domain name for a nonprofit group is:

A)* .org.

B) .edu.

C) .com.

D) .mil.

7. The extension of a domain name for an administrative agency, such as the IRS is:

A) .bus.

B) .org.

C) .edu.

D)* .gov.

8. The types of program files that are downloaded in a compressed form have the following extension:

A) .edu.

B) .gif.

C) .exe.

D)* .zip.

9. A very popular file format, which allows an Internet user to download forms or other paginated documents, is:

A)* PDF.

B) PCL.

C) PS.

D) SGML.

10. A computer program that attacks and destroys computer programs, internal computer-operating systems, and even hard disk drives is known as a:

A) Hacker.

B)* Virus.

C) Burglar.

D) Worm.

Essay Questions

1. Explain how the Internet works.

In its most basic form, the Internet or the World Wide Web may be thought of as nothing more than a group of computers linked together with the added ability to search all the connections for information. If you think of your office network as being connected to other similar office networks, and all the other offices together with many other companies and government agencies around the world on some connecting line, you have the World Wide Web. The connection is by some form of telephone line or wireless connection using radio signals. The connection is usually to an Internet service provider (ISP). ISPs provide local or tool-free access numbers that most people use to connect to their service. A modem is the device used to translate the electrical signals for transmission over these connections so the computers can “talk” to each other. One accesses the Internet through a Web browser, which is a software program. Popular Web browsers are Netscape and Internet Explorer. Once on the Internet, one can find information by using an Internet search engine, which is a program designed to take a word or set of words and search websites on the Internet. Some of the more popular search engines are Google, Excite, Yahoo!, and Alta Vista.

2. Explain how a paralegal or legal assistant would use the Internet in a law office.

The Internet has become such a powerful tool in the law office in the last decade, and paralegals and legal assistant use the Internet more than any other member in the law firm. Paralegals communicate by using email, which is quicker and cheaper to send than regular mail. Although there are legitimate concerns over the privacy (or lack thereof) associated with email messages, they can be encrypted. Encryption technology permits a computer user to basically put a lock around its computer information to protect it from being discovered by others. Encryption software lets computer users scramble information so only those who have the encryption code can enter the database and discover the information. In addition to sending messages by email, documents can be attached as files to email. Legal documents can be filed electronically. A number of courts have established procedures for the electronic filing of pleadings. Each court is free to set up its own rules and procedures and must be consulted before attempting to use this service. The IRS and some states have combined in a joint effort to allow electronic filing of both the federal and state individual income tax returns in one step. Legal research can be done on the Internet, using services such as Westlaw or Lexis (which are subscription services), or Findlaw (which is a free, legal search engine). Other types of research that is needed to be done in a law office can be done through the Internet. Governmental information and files can be accessed and downloaded, using Adobe Acrobat Reader, for instance. As well, all kinds of information that might be helpful to a client’s case might be available on the World Wide Web, using search engines, such as Google, Alta Vista, Yahoo!. In fact, one can access Internet versions of the yellow pages and white pages, or reverse phone directories.

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