Paralegal (LIU)

Intro and Torts Notes

Posted in Uncategorized by joypeterson on October 19, 2009

 

Introduction to Law

 

Trial: trier of fact

Appellate: reviews all information, court papers, transcript, but there are no witnesses in person

Appellate briefs: a written argument why a side should win the case

Appellate             can AFFIRM à everything was done properly

                        Can REVERSE à can take away judgment from one side

                        Can REVERSE + REMAND à something wasn’t done right, order a new trial

                        Can MODIFY à reduce amount of damages

 

Jurisdiction: the power of the court to hear the case

1)    subject matter jurisdiction: the power of the court to hear of the case of this type, can never be waived, can always be brought up

2)    juris over the person or thing (res): in personam or in rem, this is waivable, has to be brought up immediately

 

Court System

 

Supreme court has the power to see almost any type of case: there is no dollar limit

Trial level court: the title is Justice

In Appeals: the title is Judge

Probate: a decedent and his or her estate, involve dead people and their estate, wills, share jurisdiction over adoptions

Divorce, Separation and Annulment is not tired in Family Court this is done in Supreme Court

Family Court: crimes under 16 years of age, childs abuse, persons in need of supervision

Court of Claims: doesn’t have branches is headquartered in Albany

Supreme Court: cannot hear federal court cases, i.e. patent, copyright and tort/contracts against state of NY

No county courts in New York City instead they have civil courts of the city of NY

Criminal cases are done in the Supreme Court if they are done in the five boroughs

Summary Proceedings: landlord/tenant actions can be heard in the civil court for any amount of money

 

TORTS

 

Legal Authority – cops and law officers to commit a tort in doing their job

 

Defenses

Consent- defendant will not be liable for conduct that would ordinarily be considered an intentional tort if the plantiff agreed to the tort

 

Actual- manifested by words (ability to give consent)

Express- based on actions instead of words getting on subway at rush hour

Implied- consent implied from circumstances (doctors and nurses in ER)

 

Self-defense: reasonable force to repel the attack once no longer in danger can’t use force, retaliation

 

Defense of others- you are not being attacked allowed to use reasonable force

 

Defense of property- cant use deadly force

 

Shopkeeper defense- limited right to search bags with reasonable grounds

 

Necessity- committing tort to save greater tort

 

Discipline – (Children) reasonable upon age, misbehavior

 

False imprisonment: an unlawful restraint, detention or confinement of the plaintive within a bounded area intentionally caused by the defendant. (Physical boundaries, force, threat of force) (indirect force, a failure to provide a means of escape)

-Freedom of movement must be restricted

-Anytime except damages in how long confined

 

Intentional infliction of emotional distress:

Extreme and outrageous conduct that is intended to and does serious mental and emotional distress even in the absence of physical impact (defendant’s conduct- limit recovery- all bounds of decency tolerated by society) business owe higher duty

 

Trespass to land- intentional entry w/o privilege upon land possessed by another (throw rocks, above/below surface- tunnel, stringing wire- intent to go where you are going-  innocent trespass)

 

Trespass to chattels/ covension- intentional act done without privilege that interferes with plantiffs possessory rights in a chattel (taking a car for a joy ride)

 

Conversion- the damage is serious enough

 

Tort: Any civil wrong except breach of contract

 

Intentional torts: intentional conduct on the part of the defendant

Evil motive is not a necessary element of a tort

Transfer intent – a goes to hit B, b ducts and hits c

 

Battery – an injurious or offensive touching of the plantiff’s person or of something closely associated with this person intentionally caused directly or indirectly by the defendant

 

Injurious or offensive touching- society’s standard not personal- intentional

 

Assault: an overt act intended to create in the minds of another a reasonable apprehension of an imminent or immediate injurious or offensive contact (expectation)

-Awareness is necessary to recover loss

Expectation must be reasonable

 

Torts

Husserl

9/22/09

 

III. Strict Liability: Liability without fault

A.    Distinguished from negligence: the plaintiff doesn’t have to prove that the defendant was negligent in order to recover

B.    Liability for animals: owner will be strictly liable for any damages caused by trespassing animals, the owner will only be liable if the owner has knowledge of the animals dangerous tendencies (one free bite rule)

C.    Ultra hazardous activities: activities that cannot be carried on in complete safety no matter how much care is exercised, inherently dangerous, participating in any of these activities make them strictly liable

 

IV. Product Liability

A.    Combination of theories of liability

1.     Negligence

2.     Strict liability

3.     Misrepresentation

4.     Express warranties

5.     Implied warranties of merchantability

B.    Bases of recovery

1.     Manufacturing defect

2.     Design defect: i.e. pintos would explode because the gas tank was too close to the engine, and ford didn’t do anything about it, three girls were killed as a result of a pinto being hit in the back, and the car exploded, the government thought it was so offensive that they charged the Ford’s executives with manslaughter

3.     Failure to warn: i.e. tags on the hairdryers, do not use in bathtub

 

V. Defamation: covers injury to a person’s good name and reputation.  A defamatory statement is a false statement that tends to adversely affect one’s reputation

Any living person may be defamed.  In a limited sense, a business can be defamed by remarks about its integrity, honesty, or financial stability. 

1.     There must be defamatory language on the part of the defendant.

Plaintiff must establish that a reasonable reader, listener, or viewer would understand that the statement related to the plaintiff or must be able to prove that it can be “perceived” that the defamatory statement was related to the plaintiff.

2.     The defamatory language must be “of or concerning the plaintiff”

When there are defamatory statements against a group, it is easier to sue with a smaller group than with a larger group.

3.     There must be publication of the defamatory of the plaintiff to a third person: only has to be 1 other person that reads or hears the statement, there has to be a intent to publish not an intent to defame.  There doesn’t have to be evil motive but reasonably foreseen that the statement would be published by others. (i.e. a newspaper publishes that a woman has had her 10th child.  She is a nun. The newspaper didn’t intend to defame her, but they had the intent to publish)

4.     There must be injury to the plaintiff

5.     Public officials have to prove malice

 

 

VI.            Negligence

A.    Libel and slander distinguished

B.    Elements of the cause of action:

1.      Duty of care: reasonable care in driving (guest passengers can sue driver of vehicle), no duty to inspect for or repair defects for the benefit of the passenger, however if there is a defect that the driver knows of they are obligated to tell the passenger

2.     Breach of duty: the defendant didn’t act as an ordinary reasonably prudent person, the ordinary reasonable person is of average mental ability (insanity is not a defense in a civil action but mental retardation is compared on a case by case basis), the ordinary reasonable person is considered to have the same physical characteristics of a defendant, physical differences are taken into account but not mental, for example, blind people are compared with blind people.  A person with a special skill is required to possess and exercise the knowledge and skill of a member of his profession in good standing in the community.  Skill is compared to skill.  A child is only required to conform to the standard of care as another child the same in experience, maturity, training, and capacity.  However a child below the age of four does not have the capacity to be negligent.  When a child engages in an activity that is normally one that only adults engage in, the child is held to the same standard of care as an adult in an adult activity. 

 

Res ipsa loquitur:  roughly translates to thing itself speaks or thing speaks for itself, it allows the judge to infer negligence in a case,

      Circumstances:

a.     The event is one that would not occur without negligence

b.     It was caused by an instrument in the exclusive control of the defendant

c.     It was not caused by any contributory fault on the part of the plantiff

d.     The plaintiff must establish that there is a causal link between the breach of duty by the defendant and the harm suffered by the defendant (any break in the causal train where the defendant has incomplete control of the chain, s/he is not liable)

e.     Foreseeable harm

3. Factual Causation: proving that the defedant’s act is the cause of the plantiff’s injury, proving that the defendant’s conduct is a substantial factor in causing the plantiff’s injury

But for the causation test, for example, if it had not been for the conduct of the defendant would…

f.      substantial factor test- in multiple people libel

4.     legal or “proximate” causation: shown to be legally fair to hold the defendant responsible for the plaintiff’s injury

Palsgraf vs. LIRR (1928)

5.     damage to the plaintiff’s person or property: measure of damages for property is either the reasonable cost of repair or the difference in fair market value immediately before and immediately after the accident which ever is less.  There is a duty of the plaintiff to mitigate the damages. 

 

C.    Defenses:

1.     comparative negligence (compare with contributory)

Fault on part of the plaintiff: contributory negligence: has to prove 6th piece of evidence: the burden of proof lays on the plaintiff that they had no contributory part of the incident, many states opted to move away from this standard because it was to harsh to comparative negligence

Comparative negligence: the defendant has to raise as a defense that the plaintiff was partially or totally in fault for the incidence.  The burden of proof now lays on the defendant.  The trier of fact is asked to determine the percentage of fault for each party and the damages are reduced by the percentage of fault. 

In some states there is a Modified comparative negligence: if the plaintiff is more than

50% at fault for the incident than there is no reward.

In NY, there is no cut-off, even if the plaintiff is more at fault than anyone else. 

2.     assumption of the risk: the defendant has to prove that plaintiff knew about the risk and chose to proceed anyway: this will dismiss the case altogether rather than reduce the damages:

 

 

D.   Changes in joint tortfeasor liability rules (CPLR Art. 16)

E.    No-fault insurance

No fault: limits the plaintiff’s ability to sue in an automobile accident case

PIP insurance: personal injury protection, no matter what fault or lawsuit, each side would be covered for their personal injury (medical bills, loss wages), proposed in order to avoid the costs of litigation/lawsuits.  Any insurance company that offers car insurance has to offer PIP: the no fault benefits and every person is required to buy it equals $50,000: this covers the driver and the injured parties.  No fault does not pay you anything for non-economic losses.  Lawsuits still occur because often times PIP money amounts run out or someone wants to sue for pain and suffering.

You have to show that your medical bills and loss wages exceed $50,000. 

By establishing what the insurance agency defines as “serious injury” than a person is able to file a lawsuit. 

1.     history

2.     where applicable

3.     “basic economic loss” defined

4.     “serious injury” defined

F.    Worker’s Compensation: worker’s right to sue his employer if the worker sustains a job-related injury

1.     where applicable

2.     worker’s compensation board

 

Reading Review

 

Workers Compensation (p.47): An employee can sue his employer even if she or he is covered by worker’s compensation if employer bars the employee from suing a third-arty tortfeasor.   For example, a person fell off a ladder, the company disposed of the ladder, and the employer then sued the company.

 

Serious Injury (p.48): A judge, not only a jury, can make decisions regarding whether a person sustained a “serious injury.”

 

Assumption (p.58):  Assumption of risk implied and express. If it is express, then the plaintiff is not able to recover.  I.e.: donkey game

 

Defamation (p.59):  A public figure can not sue for defamation unless there is shown to be malice.

 

Res Ipsa Loquitor Application (p.70):  Fault is so obvious, that’s its not necessary to show evidence for example the elevator or leaving the scalpel in the patient.   It would not happen if not for the person, the plaintiff would not have made it happen, and it must have been caused by an “instrumentality” in exclusive control of the plaintiff.  It should be obvious to who the guilt is caused by and that it wouldn’t have been caused other than by the defendant. 

 

Implied Assumption (p.83): Implied assumption can be used as a defense.  A soccer player sued because he was injured playing a game when the field was muddy.  He was unable to prove that he was forced to play. 

 

 

Torts Test

25 true and false (4 points each)

Material covered

Court system

Intro

Torts

Contracts Notes

Posted in Uncategorized by joypeterson on October 5, 2009

Contract: A voluntary agreement by competent parties supported by valid consideration to do or not to do a specific thing (really enforceable promises)

 

1)    Offer and Acceptance

2)    Consideration

3)    A legal Object

4)    Legal capacity of the parties

 

Mutual Assent: Both parties must know what they are getting into and to it (meeting of the minds)

 

Sources of Contract Law: Based on common law à case law

 

General Obligation Law

Uniform Commercial Code- UCC

Adopted by all 50 states

Article 2- sale of goods, modernize contracts for the sale of goods

 

Executory or Excuted

Contract whose terms have yet to be preformed

Contract whose terms have been fully preformed

 

Unilateral or Bilateral

Promise for an act or an act for a promise (Brooklyn bridge example à walk across the bridge, paid $50)

A Promise for a promise (if you promise to walk across the bridge, I promise to pay you $50)

 

Express or Implied

An agreement where the terms are expressed by the parties either orally or written

 

Implied in fact

The terms in which are implied circumstantially from what the parties say and do (received services from doctor, you have to pay)

 

Implied in law: Quasi Contract “as if” not really a contract, treated as if it were a contract in order unjust enrichment to one side or unfairness to one side (arrange for and pay elderly neighbor funeral)

 

Offer

A manifestation of willingness to enter into a bargain

Offeror: makes offer

Offeree: offer given

 

Advertisements- not considered to be offers, but an invitation to make an offer

 

Auctions: bidding situation where offers are made

Jokes: by case

 

Material terms: parities must be identified, price must be certain, quantity must be specified, subject matter must be specified, time for performance

 

Future plans are not binding

 

Termination of Offers

Lapse of Time: time runs out

Court can impose time that is reasonable

 

Death or Incapacity of Offeror- offeror dies terminates the offer.  Contract for personal offer dies with person

Revocation- can be revoked any time before being accepted

Mailbox Rule: an acceptance is deemed effective when dispatched, but a revocation is only effective when it is received

Rejection- an expressed rejection.

 

Supervening Illegality – prior to acceptance a change in law or regulation renders the proposed contract illegal, offeree dies or becomes incapacitated

 

What is acceptance

Who can accept? Only the offeree

Knowledge is needed for terms

 

Communication of Acceptance

By performing the act- unilateral

Promising- bilateral (mirror image rule- return promise has to mirror offer and not change it anyway)

Accepting by silence- not valid unless offerre takes offered services w/o reasonable opportunity to object to them and knows they are rendered with an expectation of payment this becomes in fact an implied contract

 

Contracts

Husserl

9/22/09

 

Under the common law rules

If the seller makes an offer to sell and ships the goods to the offeree and the offeree has dominion over the goods than he has deemed to have accepted the goods

 

If you are sent goods that are unsolicited these goods are deemed to be an unconditional gift to you unless the goods are sent to you by mistake

 

Mirror Rule:  The acceptance has to be exactly the same what is offered to you, because a variation of an offer suggests a rejection of an offer and a suggestion of a new offer.  But, if you make an inquiry along the lines of “would you consider” this doesn’t constitute a counteroffer but an inquiry.

 

V.  Consideration

A.    Elements of consideration: legal determent, what each party gives up to each other in the making of an agreement, each party gets something and gives something.  A contract is only binding if there is consideration.  For example: a promise to make a gift is not binding since there is nothing given on both sides.

1.     Money, Goods, Services, are all examples of consideration

2.     Forbearance: a person refrains from doing what he has a legal right to do (i.e. if you promise to give-up smoking, I will pay you $10)

3.     What is NOT an element of consideration is the adequacy or sensibility of the contract (whether it makes sense or not, i.e. parents paying a child 10,000 for not drinking)

B.    Sham consideration

C.    Past consideration: can determent incurred in the past be exchanged for a current promise? Usually no.  Since there is no consideration on one side.  (For example: if students take a test, and score well, and the teacher says, “since you all did so well, I’ll take you to Junior’s.”  This is not a binding contract, since the students lost or exchanged nothing.  But if offered before the students took the test, and the students studied harder for the test, then it would be a contract since there was consideration on both sides.)

A promise based on past consideration will be binding if certain conditions are met: 1. the promise must be in writing 2. the consideration is expressed in the writing 3. the consideration has been proven to be given 4. the writing is signed by what we call the party to be charged (the party that has not preformed yet)

D.   Pre-existing duty: doing or promising to do what one has a legal obligation to do is not legal determent and therefore even if bargained for does not constitute consideration (i.e. a police officer could not collect a reward for arresting a criminal because its their legal duty to capture criminals)

E.    Equivalents of consideration

1.     Seal: used to be valid but no longer is

2.     Moral Obligation

a.     Debt discharged in bankruptcy: if you promise to pay in writing after bankruptcy then you are obligated to pay anyways

b.     Effect on statute of limitations: even if the statute of limitations have runned out, if you promise the person that you are going to pay the person you owe in writing or acknowledge the debt you owe in writing it starts the clock over again or if you make a partial payment than you restart the contract again

3.     Promissory estoppel: treated as if there was consideration given even though there was not.  In order to ensure unjust enrichment like the quasi-contract. (i.e. a person moves into an apartment and there are no dogs allowed, the person asks the landlord if they can have a dog, and s/he says ok, later the landlord says that there is no consideration and that they can’t have a dog.  The landlord wouldn’t be allowed to kick the person out since there was an agreement.  The person incurred determent by taking care of the dog, and paying for the food.)  (i.e. a person promises to gift an university 1 million dollars, and doesn’t give it, the person would still be obligated, because the university can argue promissory estoppel.  The person that broke the promise would say that the university should have done Due Diligence, a background check that it was feasible for the person to pay 1 million dollars, and that it was Reasonably Implied, and that there was some determent on the part of the University.) Reasonable reliance to your determent has to be proven

VI.  Terms of Contract

A.    Conditions: An uncertain event to render performance

1.     Condition Precendent: a fact or an event that must concur before a duty to render a performance becomes an absolute (i.e. before buying a house, a condition is that you must be able to obtain financing for a house, or get a mortgage, buying the house is conditioned upon obtaining financing) (i.e. a contract is made with an adjunct professor to teach a class if there are enough students that are enrolled in the class)

a.     “Time is of the essence” : time itself can be a condition of a precedent

2.     Concurrent conditions: conditions that have to be met simultaneously (i.e. in real estate, check is handed over and the deed is given) (i.e. daughter wants tickets to concert, C.O.D. shipment through UPS, a person can mail something and then when the UPS driver delivers the other person pays on delivery) 

3.     Conditions subsequent: Fact or event that discharges a previously absolute duty of performance (in a car insurance policy, if you get involved in an accident, the insurance company is obligated to pay for the damages, however when a covered event occurs the person has the duty to notify the insurant agent that an accident occurred, if the person doesn’t notify the insurance company within a timely manner, than the insurance company isn’t obligated to pay, failure to perform your duty can negate an obligation) 

VII. Assignment and Delegation: you assign your rights and delegate your duties

A.    What can be assigned? Rights.  Assignments are a transfer of a right or benefit.  The assignor transfers his rights to an assignee so once a proper assignment has taken place the assignee has all the rights and benefits of the assignor but only the same rights not more.  Any words manifesting the intent to transfer are sufficient. 

1.     Contracts: (i.e. if you enter into a 1 year lease with your landlord, you can assign the lease to someone else)

2.     Stocks and Bonds

3.     Notes and Instruments: *notes and instruments are not contracts because it doesn’t contain consideration

4.     Security Interest: i.e. mortgages

5.     Wages: (typically an involuntary assignment such as a garnishment)

6.     Accounts receivable: (i.e. store credit, can be assigned to someone else)

7.     Clauses of action except for personal injury: the right to be able to sue for something, a contracts clause of action is assignable, i.e.: a person (A) holds a promissory note where B doesn’t pay 10,000 that is written in the promissory note, A can go to another person (C) and assign that clause of action to C and C can sue B.  The right to be paid can be assigned to someone else, i.e. in lottery winnings, a lump sum can be paid to the winner instead of getting installment amounts

B.    Delegation of duties: the opposite of assignment, the transfer of obligations or duties under the contract

Delegator: the original promisor

Delagatee: the new promisor, person whom the duties are delegated

i.e. when someone takes over your lease, not only are they assigned the rights to live in the apartment they are delegated the duties to pay the rent, usually assignments and delegations go hand in had

i.e. a company is contracted to build a building, and some of the work such as the electricity and the plumbing has to be delegated to other subcontractors, once the building is completed, they find that the electricity does not work, the original company is responsible for the electricity not the subcontractor that did the work 

VII. Judicial Process: Proving the existence of a contract in court

A.    Parol evidence rule: effects contracts based upon an assumption that parties that put their agreements in a document that has integrated all the terms in writing wants this document to be the final word on the meaning of their intent.

The rule disallows oral or written evidence prior of contemporaneous negotiations that add to, alter, vary or contradict the terms of the written agreement

Only applies when there is a writing between the parties “a full integrated writing” cannot change

Intergration clause: see outline page contract # 11

 

1.     Where applicable

2.     Subsequent agreements

B.    Lack of capacity to contract

1.     Infancy: child generally under the age of 18 in new york state: voidable at the option of the minor

-A minor cannot deal with an adult not the same life experience

-cannot get out of necessary contracts necessities- clothes, shelter, food

-cannot get out of student loans

-15 or older contract for life insurance

-court approved contracts

2.     Mental incompetency

1)    adjudicated: declared by court any contract entered into is void “void abinitio”

2)    Non-Adjudicated- court has not declared incompentant “voidable” must return any benefits received to get out of it

3)    Statute of Frauds: certain contracts in writing (English law 1677) otherwise unenforceable

 

Types required:

-promise to answer for the debt of another (surety agreement)

-A promise by an executor or administrator to personally satisfy a prior debt incurred by the decedant

-a promise made in consideration of marriage often times as a pre-opt agreement

-a promise of a transfer of interest in real estate

-a promise involving the sale of goods $500+ (ucc)

-a promise to leave money or property in a will or trust

– a promise involving the sale of securities- stocks and bonds

– a promise involving personal property which is neither a good or security in excess of $5 K “intangible” trademark, patent copyrights

– a promise which is incapable of performance within 1 year of its making (oral lease up to 1 yr) measured from when the agreement was made

– a promise which is incapable of performance before the end of a lifetime

– a promise to support you for life

– a promise to submit a controversy for arbitration (labor agreements)

 

Requirements of writing- can be informal that contains certain information

1) must contain the parties

2) must describe the subject matter of the agreement

3) detail in some degree the terms and conditions of the transaction such as price

4) the writing must be subscribed (signed) by the party to be charged

 

Statute of Fraud: is a waivable defense only applies to executory contracts, not executed contracts

 

Illegal Contracts: void because not legal the courts will not aid in an illegal contract

-committing a tort

-contrary to public policy

-made in bad faith/oppressive

 

Unconsionability and Adhesion contracts

Terms unfair or one sided to shock the conscious of an ordinary person that looks as it

-Unequal bargain power: the court may recind or cancel the contract

 

Adhesion: contract offered or a take it or leave it basis

Provisions might not be unfair

Lease agreement

Credit Card agreement

 

Mistake: state of mind not accord with the facts mutual mistake- bilateral.  Misconceoption is shared by both parties

 

Unilateral Mistake- one of the parties was mistaken. Not serve as a recision

 

Fraud and Misrepsentation must involve misrepensation or concealment that is reasonably relied upon by the other party to his determint, punitive damages- purposeful wrong doing no intent to deceive, similar to fraud

 

Duress: threats or acts that are sufficient degree to overcome the mind and freewill of the contracting party when entering into a contract “gun to the head” court will allow to cancel the contract

 

Undue influence: does not involve a threat of any sert (?).  Unfair use of the defendant relationship or position to excessively pressure the other into entering into a contract that is unjustly beneficial to the party exerting the influence

 

Remedies for breach of contract: legal remedy, equitable remedy

 

Legal

A)   money damages: make whole again, general damages: foreseeable, easy to measure, special or consequential damages: made foreseeable to the other side

 

Not recoverable: speculative damages: prove with reasonable certainty

 

Nominal Damages: breach of contract but the plaintive has suffered little if any damages

 

Punitive Damages (exemplary) punish the defendant and deter him from engaging in the conduct in the future

 

Exceptions: entered into an internal agreement/cost of doing business

 

Liquidated: amount of money that is an estimate made by the parties at the time of contracting as to the extent of damages that would probably be sustained if a breach of the contract occurs “pre-determine”

-the court will enforce if reasonable at the time of contracting

-the court will not enforce if it believes it to be a penalty clause designed to punish the defendant for breaching the contract

 

Mitigating- plaintive is always under a duty to make his damages as little as possible

 

Equitable damages: prefer legal remedy, must show that legal remedy is inadequate

 

Recission- termination or avoidance of the contract (cancel contract) à mutual mistake, fraud, misrepresentation, duress

 

Reformation: used w/a written contract does not clearly state the agreement of the parties in which case the court will reform or correct the writing to reflect the orginal intent of the parties

 

Specific performance: an agreed party seeks to compel the other party to perform the acts called for under the contract “not break of contract” à land or real estate

 

Test Format:

50 questions

20 true and false

17 multiple choice- difference between, void/voidable, executed/exectory, unilateral/bilateral, implied in fact (actions), implied in law (quasi)

13 fill in: list basic ingredients of a contract: offer + acceptance, consideration, legal object, legal capacity

elements of an offer (4): parties, price, quantity, subject, time

5 identify 5 types of contracts that have to be in writing (don’t abbreviate)

 

 

II. Contracts

    7. Bilateral v. Unilateral Contracts:                       

                  Commitment: Two types;

                            1. Bilateral– a bilateral contract is a “promise for a promise.” No performance, such as a payment of money or the delivery of goods, need take place for the bilateral contract to be formed. The contract comes into existence at the moment the promises are exchanged. For example, Mike wants to sell his car and Joe offered to buy it after payday if Mike agrees to hold onto the car until payday.

                            2. Unilateral– In contrast to bilateral, unilateral is a “promise for an act” the offer is phrased so the offeree can accept the offer only by completing the contract performance. For example, Mary offers Dan $20 after he goes to the liquor store for her and brings back two cases of low carb beer.

 

    8. The 4 elements of Contract:                      

                        (1). Agreement– A agreement to form a contract includes an offer and an acceptance. One party must offer to enter into a legal agreement, and another party must accept the terms of the offer.

                        (2). Consideration– Consideration is any promises made by the parties to the contract must be supported by legally sufficient and bargained-for consideration, something of value received or promised.

                         (3). Contractual capacity– Both parties entering into the contract must have the contractual capacity to do so; the law must recognize them as possessing characteristics that qualify them as competent parties.

                          (4). Legality– The contract’s purpose must be to accomplish some goal that is legal and not against public policy.

 

   9. Implied Contract: Implied-in-fact-Unspoken understanding between parties through the conduct rather than words. For an implied-in-fact contract to arise, certain requirements must be met: 1.) The plaintiff furnished some service or property; 2). the plaintiff expected to be paid for that service or property, and the defendant knew or should have known that payment was expected; 3). the defendant had the chance to reject the services or property and did not. For example, Joe drives into Jiffy Lube, asks for the advertised oil change special, and leaves to go across the street before the completion of the service. Joe expects his oil changed and the store manager expects to be paid for the service.

 

   10. Quasi-Contract: Fictional contracts created by the courts and imposed on parties to avoid the unjust enrichment of one party without a contract, for the interests of fairness and justice. Under the doctrine of quasi-contract, a plaintiff may recover monetary compensation owed under a contract implied by law in quantum meruit, Latin for “as much as he deserves.” For example, George watches Bill all winter long for the snow removal service intended for the next-door neighbors. The court can rule for the payment because George benefited from the service.

 

 

11.  Void v. Voidable Contract:

                   Void contract– element missing; therefore, no contract at all. For example, the contract is illegal because the party was underage.

 

                   Voidable contract- the party or parties has a right to cancel or ratify (make valid) the contract. For example, fraud and duress, and a minor child at his/her option.

 

12. Acceptance/Rejection/Revocation:

      Acceptance: A voluntary manifestation of assent by the offeree to the terms of the offer in a manner invited or required by the offer.

 

       Rejection: The offeree can reject an offer by words or conduct evidencing intent not to accept.

 

        Revocation: the offeror can revoke the offer, as long as the revocation is communicated to the offeree before the offeree accepts.

 

13. Consideration: The thing of 1) legal value that is 2) bargained for and given in exchange for the act or promise.

       Legal sufficiency of consideration involves the requirement that consideration be something of legally sufficient value in the eyes of the law. In extreme cases, a court may consider the adequacy of consideration in terms of its amount or worth because inadequate consideration may indicate fraud, duress, or undue influences was involved that the element of bargained-for exchange was lacking.

        Past consideration is no consideration. Promises made in return for actions or events that have already taken place are unenforceable. In short, you can bargain for something now or in the future but not for something that has already taken place.

 

 

 14. Statute of Frauds: The Statute of Frauds is a rule of law that requires certain kinds of contracts to be evidenced in writing and must be signed by the person seeking the enforcement of the contract. The Statute of Frauds is a defense to a breach of contract cause of action. There are six following types of contracts are said to fall “within” or “under” the Statute of Frauds and therefore, are required to be in writing or evidenced by writing.

  • A contract by its own terms cannot be performed within one year.
  • Any contract that is possible to complete of less than 1 year is not a Statute of Frauds contract and it is not needed to be in writing. If the contract is probable for completion in less than 1 year, than it is a Statute of Frauds contract and it is required to be in writing.
  • The Statute of Frauds requires legal sufficiency of the writing in either a written contract or a written memorandum evidencing an oral contract signed by the party against whom enforcement is sought, except when there is a legally recognized exception, such as partial performance.
  • For the contract to be legally sufficient, the writing must contain all of the material terms of the agreement. The court must be able to ascertain the material terms to be certain and definite, and signed by the person whom the contract is enforced.
  • There are exceptions to the legal sufficiency when the contract is oral and not in writing. First, the party admits on public record in court that there is an existence of a contract. Second, is there the Doctrine of partial performance? The Doctrine of partial performance is when the oral contract supposed to be in writing will be enforced to the extent that the contract is to be performed. Third, promissory estoppel is the enforcement of an oral contract that otherwise would be unenforceable, based on detrimental reliance was foreseeable to the person making the promise and if injustice can be avoided only by enforcing the promise.

                         

Statute of Frauds under Article 2. Under this provision, oral sales contracts for goods priced at $5,000 or more will be enforceable despite the absence of writing in the circumstances. Merchants can satisfy the sufficiency of the writing requirements if one of the merchants sends a written confirmation to the other merchant. The communication must show the terms of the agreement to the identity and quantity of the goods, and the merchant getting the confirmation must have reason to know of its contents. Unless the merchant who gets the confirmation repudiates the letter within ten days of receipt, he or she is bound by the contract regardless of a signature.   

 Special exceptions under the UCC– oral contracts for the sale of goods and confirmed in writing between merchants may be enforced in certain circumstances to include the quantity of items agreed in the oral contracts.     

 

15. Discharge: There are four ways to discharge a contract by agreement: Discharge by recission, discharge by novation, discharge by substituted agreement, and discharge by accord and satisfaction.

 

     Discharge by recission is the process by which a contract is canceled or terminated and the parties are returned to the positions they occupied prior to forming it. In sum, contracts that which neither party has performed can be rescinded by agreement. However, contracts on which one party has performed can be rescinded only if the party who has performed receives consideration for the promise to call off the deal. 

 

     Discharge by impossibility of performance is when it is not objectively possible to perform the terms of the contract by the destruction of the subject matter of the contract or, death or disability in a personal service contract or, subsequent illegality.

 

16. Consequential Damages: Special damages that compensate for a loss that is indirect or immediate relating to a business, profession, or property that is easily calculable in monetary terms. The special damages must have been reasonably foreseeable at the time of the breach or injury occurred for the Plaintiff to collect.

 

17. Compensatory Damages: Monetary damages deemed to compensate the harmed party for the actual direct losses and costs sustained and provable as a direct result of the injury or damages suffered.

 

 (I.e. sale of goods-amount equal to the difference between the contract price and the market price.

 

Sale of landmajority rule, (seller’s breach awards the property. Unavailable remedy or Buyer’s breach is awarded the difference between the contract price and the market price of the land); minority rule, (seller’s breach is not deliberate, allows the purchaser to recover any down payment plus any expenses occurred, title fees, attorneys, etc…).

 

 Construction contracts-the owner can breach three different ways: Before performance begins, (awards the contract cost less the materials and labor); During performance (recover the profits plus costs in partial construction), and After performance has been completed (recover the entire contract price plus interest).

                          The builder can breach two different ways: Failing to perform or partial performance before quitting, (damages is the cost of completion, which includes reasonable compensation for any delays in performance). Finishing late, (damages are the loss of use. If the contractor substantially performs, the courts will calculate the cost-of-completion formula if the continuation of the project does not produce substantial economic waste for the completion)).

 

 18. Incidental Damages: 1). Losses reasonably associated with or related to actual damages. 2). A seller’s commercially reasonable expenses incurred in stopping delivery or in transporting and caring for goods after a buyer’s breach. UCC§ 2-710. 3). A buyer’s expenses reasonably incurred in caring for goods after a seller’s breach. UCC § 2-715(1).

   19. Specific Performance: An equitable remedy that requires the breaching party to fulfill the exact terms of a contract, promise, obligation, or decree mandating a remedy and that is used when legal remedies; as monetary damages, are inadequate and the subject matter of the contract is unique. When specific performance is unavailable, then monetary damages be awarded instead. This remedy is quite attractive to the nonbreaching party for three reasons. First, the nonbreaching party need not worry about collecting damages awarded by the court. Second, the nonbreaching party need not spend time looking for an alternative contract. Third, the performance is more valuable than the money damages.

Criminal Law Notes

Posted in Uncategorized by joypeterson on October 5, 2009

Criminal Law

Husserl

September 21, 2009

II. Preliminary Hearings (cont.)

C. Preliminary Hearing

1.     When available: had to be held 120 hrs on time of the arrest or 144 if Saturday or Sunday or legal holiday

2.     How determined: 

3.     Time Limits

4.     Waiver:  It is possible to waive or give-up your right to have a preliminary hearing and the case goes directly to Grand Jury in Superior Court. 

Why would you waive your right to a preliminary hearing?

(1)  It may create excessive adverse publicity. 

(2)  If a major prosecution witness may become unavailable between the time of the preliminary hearing and the trial

(3)  If the prosecution has a very strong case, the hearing may result in higher bail and more hostile prosecution witnesses

(4)  The defendant has been undercharged

5.     Determination of hearing: 

(1) If reasonable cause is found to believe that the accused committed any felony, the accused must be held for Grand Jury action, The judge believe that there is sufficient evidence to move the case forward. It is far lesser standard than a guilty verdict

(2) If reasonable cause is found to believe that the accused committed both a felony and a misdemeanor the charge may be reduced in the interest of justice with the D.A.’s consent. 

(3) If reasonable cause is found to believe that the accused only committed a misdemeanor, the court may reduce the charge. 

(4) If there is no reasonable cause to believe that any offense was committed, the court must dismiss the charges.

6.     Function:  A preliminary hearing is a screening device designed to avoid undue lengthy detention. To make sure within a short period of time that the accused is brought before a neutral party.   As an unintended function it also acts as a way for the defense to see how strong of a case the prosecution has.

D. Grand Jury: A felony may only be charged by a grand jury indictment unless waived by the defendants.   The case must be presented to the grand jury within 45 days after arrest or the defendant must be given a ROR release (release on own recognizance).   The burden of proof is to show a reasonable cause.  Only the DA, the accused, witness that is testifying, the court clerk and other court personnel, and stenographer are allowed in the courtroom.   There is no judge present and there is no defense attorney present unless the defendant is testifying.

1.     Powers

a.     To indict

b.     Investigative powers

2.     16-23 members, 12 must concur in order to act and a min. of 16 person serving

3.     Role of DA: The DA presents the evidence and is obligated to act fairly and properly and also instruct the jury on the law.  Only non-hearsay evidence is allowed.   The DA can present any witness to testify other than the defendant; but also the defendant has the right to testify and can make a statement and be cross-examined at will by the DA.  The defense attorney can’t say anything in the trial and can only say something when the defendant is witnessing.

4.     Sufficiency of evidence:  The Grand Jury may also ask for witnesses to be presented. 

5.     Witness immunity: Any witness that testifies has transactional immunity that means that they cannot be convicted of any offense of which they gave evidence, even if there is evidence outside of their testimony.  There are three exceptions that the witness will not receive immunity:

A. When the witness effectively waives immunity, this may happen when they are given a plea bargain. 

B. When the evidence is not responsive to any inquiry and is freely given and volunteered by the witness with knowledge that is not responsive

C.    Where the evidence given by the witness consist of only books, records, or other physical evidence.  The production of which was required by a subpoena.  If they refuse to give evidence, they can be convicted of contempt.  If they lie, they can be convicted of perjury.

6.     Actions that can be taken

a.     If reasonable cause is found to believe that the defendant committed the offense, the Grand Jury can return what is called a True Bill: an accusatory instrument charging the defendant with the crime, an indictment. They met the elements of the crime. 

b.     If reasonable cause is found to believe that the defendant only committed a misdemeanor, the Grand Jury may direct the prosecutor to file what is called a Prosecutor’s Information in a local court.  The Information will be used in a lower court such as a local district court charging a non-felony offense. 

c.     If there is no reasonable cause to justify any of the charges presented, the Grand Jury can return what is called a No Bill, and the charges will be dismissed. 

 

E. Other Prosecutorial Methods

1. Information:

2.Complaint: A felony complaint: is an initial accusation in a local criminal court, accused of a crime

without being yet indicted by a Grand Jury

 

F. Motions

            Defense

1.  Omnibus Motion: a defensive motion

2.     Bill of Particulars: designed to amplify the allegation of the charges, a written statement by the prosecutor that recites the substance of the defendants conduct, encompassed by the charge, designed to define and limit the accusatory instrument.  The defendant cannot adequately prepare or conduct his defense without the information requested.

3.     Preclusion order:  They cannot introduce anything in the trial that they didn’t turn over in the Bill of Particulars

4.     The motion for discovery: asking for statements and other documents and for results of scientific tests that are necessary to prepare the defense case for trial or to determine the best possible plea offer- must specifically ask for items

5.     Defense is entitled to get a copy of the defendant’s Grand Jury’s testimony

6.     Copy of any statements made by the defendant to any law enforcement agents

7.     Brady material: (Brady vs. Marylyn) requires that the prosecution must turn over any exculpatory evidence, Any evidence that shows that the defendant did not commit the crime. 

8.     Rosario material: (People vs. Rosario) the court held that the prosecution must disclose previous statements made by witnesses who will be called to the trial

9.     Judical discretion, any other specifically designated non-exempt property if it is material to preparing a criminal defense and the request is reasonable

Prosecution

1.  Requiring the defendant to participate in a line-up, to speak for identification purposes, to pose for

photos that do not involve the reenactment for the crime, taking blood, hair, or other materials from his/her body, providing handwriting samples, and submitting to a medical inspection

If the defense claims insanity, then the prosecutor can request that the defendant goes through psychiatric examination by the prosecutor’s doctor

If the defense claims an alibi defense, then the prosecutor can request names and addresses of alibi witnesses

3.     Severance.  Motion of severance where one or more defendant are being tried together and one or more defendants may ask to be tried separately from the others

This would happen if:

a.     Prejudice may occur against the defendant if tried jointly with the others

b.     A co-defender’s statement implicates another defendant

c.     There is a reasonable need to call a co-defendant as a witness and the co-defendant refuses to testify at a joint trial

d.     Undue pre-trial publicity

e.     To afford a speedy trial

4.     Dismissal of the Indictment

a.     The indictment or count is defective- for example the indictment is unconstitutional, lack of jurisdiction, no offense has been properly charged

b.     The evidence before the grand jury was legally inefficient to establish the defense charge or an established lesser offense- a motion to inspect the grand jury minutes, usually the judge will inspect and make a ruling

c.     Affirmative defense

d.     The defendant has immunity with respect to the offense charged

e.     Double-jeopardy

f.      Statute of Limitations: not indicted within a certain time period

If it’s an A felony there is no statute of limitations

For B-E felonies there is a five-year statute of limitations

For misdemeanors there is a two-year statute of limitations

For violations there is a one-year statute of limitations

In 2006, legislation was changed eliminates the statute of limitations for certain sex crimes under the reasoning that DNA evidence stays the same over a long period of time whereas a witnesses statement may change due to memory loss.  Certain sex crimes are given five years statute of limitations.

g.     Defendant was denied his right to a speedy trial

h.     There exists some other jurisdictional or legal impediment to conviction of the defendant of the offense charged (the defendant has diplomatic immunity)

i.      The dismissal is required in the interest of justice

 

5.     Change of Venue

Motion to change the venue – motion to change the case to a different county

In Criminal cases:

a.  Excessive pre-trial publicity

b.  Religious or racial prejudice

c.  Public official being prosecuting in the community, which he holds office

d.     Convenience of witnesses

 

7.     Suppression of Evidence

a.     Identification testimony: unduly suggestion

1.     Wade Hearing (United States vs. Wade) identification of the accused is not usable in the trial if the police suggested to the witness who the culprit may be

2.     Line-up: look similar to the defendant, there should be no suggestion who the person should be

3.     Show-up: a confrontation of the defendant alone, for example if the police grab a person and ask a witness, is this the person that did it

4.     Identification procedure resulted from a photo identification, the photo array is a line-up of pictures, the pictures of the people should look someone what alike

5.     If a person can go through mug shots, and identify the accused, then that is a good identification

6.     Wade hearings are not necessary if the witness already knew the accused prior to the crime

b.     Admissions and confessions

1.     Admissions: Acknowledgment of incriminating facts or partial acknowledgement of guilt

2.     Confession: a complete acknowledgement of guilt

Prosecution must prove that the statements were knowingly and voluntarily made.  The defense will try to show that the statement was taken in violation of the defendant’s constitutional rights or the statement was made in the state of physical or mental coercion. 

3.     Huntley hearing.  (People vs. Huntley) In order for the prosecution to use the statement against the accused in trial it must be knowingly and voluntarily made.

4.     Miranda warnings: Miranda rights must be read only if the person is in custody and the person is giving a statement.

c.     Search warrant

1) if it’s a search warrant for drugs, they can look anywhere

Plain view: anything that is plain view is permissible

Search that goes beyond the scope of the warrant is no good

A coessential search: no warrant is needed

If they are in hot pursuit of a criminal: no warrant is needed

If the arrest is not lawful, the evidence can be suppressed.

Dunaway Hearing (Dunaway vs. New York).  In order for an accused to be arrested there must be probably cause that he/she committed the crime. 

Fruit of the Poisonous Tree: is impermissible

 

G. Plea Bargaining

94% of cases are plea-bargained 

Pros: saves court time and money

Cons: it puts the entire criminal justice in disrepute, criminals get away with crimes, it has a coercive effect and convinces truly innocent people of accepting the plea-bargain because they believe they are going to be convicted for a greater charge, it causes the DA to charge them with more than they should anticipating that there will be a plea-bargain that will lessen the charge

1.     ACOD: adjournment contemplation of dismissal: the prosecution agrees to adjourn the case for 6 months and if the case is not restored to the calendar within that time it is automatically in furtherance of justice, the only way it would be restored if the defendant gets in trouble again for 6 months, if the charges are dismissed and the defendant has not previously been convicted of a crime the court will order that the records be sealed

2.     Youthful offender status: (YO status) available for a person at least 16 years of age but less than 19 years of age who has not previously been convicted and sentenced for a felony in order to avoid being tried as an adult.  They may be sent to a special state institution instead of a jail.  The accusatory instrument must be sealed.  There is no trial by jury.  The court may conduct all proceedings in private.  It does not carry the disabilities of a criminal conviction.  Post judgment motions and appeals may be made after the judgment.  

H.  Trial: the prosecutor must prove the allegations of the defendant’s guilt beyond a reasonable doubt. The defendant in all felony cases and class are entitled to a trial by jury.  Appellate jury consists of 12 people for a felony case and 6 people for a misdemeanor case.  The decision must be unanimous or it is a hung jury.

1.     Jury Selection: voirdire: to see and say: the process which prospective jurors are questioned to ascertain their suitability for service on the jury. 

A.    Challenge to the array: a challenge to the panel based on the claim that there has been a departure from the rules of the judiciary law concerning the drawing of jury panels.  (i.e. all men are in the jury panel, it has to be a representative sample) This challenge is only available to the defendant. 

B.    Challenge for cause: a challenge that a prospective juror is not suitable based on some reason that can be articulated, there is no limit to the number of challenges for cause, could be based on claim that a person is not qualified to serve on a jury.  Base qualifications: over 18, US citizen, literate, and possession of all your faculties not convicted of a felony.

C.    Peremptory Challenge: an objection to a particular juror for no particular reason: “a hunch”, based on the way they look, their occupation

D.   Batson Challenge: a challenge to peremptory challenges: peremptory challenges cannot be used to systematically eliminate a race or gender

E.    Number of Challenges: 

For class A felonies each side gets 20

B or C feloniesà15

D or E felonies à10

Misdemeanors à 3

                        For an alternative jurors, 2 extra peremptory challenges for each alternate

2.     Case Presentation

A.    Order

1)    Jury has to be sworn in

2)    Judge delivers preliminary instruction to the jury

3)    Prosecution must deliver opening statement to the jury

4)    Defense lawyer may deliver a defense statement

5)    Prosecutor offers evidence in support of the charges against the defendant

6)    Defense lawyer may offer evidence in the defense

7)    Prosecutor may offer evidence in rebuttal to the defense evidence and the defense may offer evidence in rebuttal to the prosecutor’s rebuttal evidence

8)    At the conclusion of the evidence the defense lawyer may deliver a summation (closing argument) to the jury

9)    Prosecutor may deliver a summation (closing argument) to the jury

10) Judge must deliver a charge to the jury, gives them legal instructions

11) Jury must retire to consider the evidence and if possible render a verdict

3.     Post-trial motions

If the jury finds the defendant guilty, the defense can make a motion for the judgment not withstanding the verdict (motion N.O.V.) Asking the judge to ignore what the jury found and judge in favor of the defendant. 

4.     Sentencing

The defendant makes his final appearance in court.  If the person is convicted or pleads guilty of a misdemeanor, he can be sentenced immediately. All felony convictions require a pre-sentence report prepared by the office of probation.  The judge is not under any obligation to follow the recommendations of the office of probation but must wait to receive the pre-sentencing report.

1)    Unconditional discharge: no fine, no jail

2)    Conditional discharge: no fine, no jail, conditions on release

3)    Fine

4)    Conditional discharge plus fine

5)    Probation: released but have to report to a probation officer

6)    Fine plus probation

7)    Drug program

8)    Imprisonment

9)    Imprisonment plus fine

10) Imprisonment for 60 days or less plus probation

11) Imprisonment for 60 days or less plus conditional discharge

 

5.     Appeals

            If the defendant is found guilty, but the judge overturns that finding then the prosecution may appeal and try to reinstate the jury’s verdict.  If the defendant is found guilty, the defense may appeal the decision.        

 

 

Criminal Law Test

20 true and false (3 points each)

20 Fill in the blank (2 points each)  List four or better. 

Topics:

1)    List four or extra of the bail factors before granting bail, (family ties, characters, reputation, habits, history of responding to court)

2)    List four or extra of the court proceedings of a felony case

3)    List four or extra of the different pre-trail motions that can be made (motion for bill of particulars, discovery, change of venue, severance, suppression of evidence),

4)    List grounds for the motions to dismiss an indictment (statute of limitations, denied the rights to a speedy trial, double jeopardy)

5)    List Possible sentences that may be proposed

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