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American Law (Subject) / Exam Review (Lesson)

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• legal limits of discovery 1) privileged conversations --> confidential conversations, e.g., between husband and wife, lawyer and client, doctor and patient, religious advisor and advisee) 2) right to privacy --> no clear definition, varies from state to state, information that is not obviously relevant and would not be discussed outside a small circle of family and friends e.g., information pertaining to health and body, sexuality, sexual partners, spiritual questions and relationships (stricter regarding 3rd parties then the parties participating themselves) If a document contains private and important information it has to be handed over but the relevant parts can be blacked out (redaction)
• client interview Client comes into the firm and provides account
• legal memorando product of legal research and client interview; meant to be a neutral evaluation --> if promising legal action is taken Structure: Issue - one sentence, what is the legal question? Short answer - direct sentence, brief 2-3 sentences Statement of facts - what the client has brought to you Analysis - applying the law, the main part of the legal memo Recommendations - determine whether the client will win or lose based on the analysis
• motion on notice The other party has to be informed that you made a notion after that the motion can be heard by a judge 1) notice of motion includes return date -  stating the time and date the motion will be heard 2) papers supporting the motion are common but not necessary 3) request for relief - explains what the party is asking the court for 4) grounds for relief - explains why the court should grant the relief  5) affirmation - explains the facts of the case 6) a brief may also be included  7) affidavit of service - swearing that party served the other side with the motion papers
• moving party The party that brings a motion; is in charge of serving the other party with paperwork
• appellate briefs legal arguments as to why the party should win or lose the appeal
• order to show cause ex parte motion --> other party is not notified; can be heard every time the court is convinced that it is an emergency, judge can include in the order to show a staying or stopping order meaning the necessity to maintain the status quo, very uncommon
• common stay temporary restraining order or temporary injunction to stop somebody from doing something 
• summons A defendant can be summoned to court, ie. it is an order to appear in front of a court, e.g. for a traffic ticket
• subpoena a witness is subpoenaed to a court; can be issued for a person or a document, is written by a clerk/lawyer or another official at the court, and is delivered or served to the appropriate person, often by an official person to guarantee that the subpoena is served; once the recipient has been served he or she must take certain actions or otherwise faces legal consequences. The goal of a subpoena is to get information that might not be obtained without a legal request
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• affidavits sworn written statements of fact that can be used as evidence, a central feature of court common law documentation Three essential elements:  1) written oath 2) signature of the affiant (the person making the oath) 3) notarization 
• affiant person making the affidavit
• notary public a person that is authorized by the state to witness and certify documents/contracts without legal training
• criminal law concerned with public, rather than private, wrong punishable by the state
• misdemeanors less serious crimes resulting in a fine or jail time
• felonies if convicted prison sentence or possibly death, lose right to vote and carry a gun
• deterrence prevent a person, and others, from doing crime in the future if they are punished for it
• incapacitation when in prison a person cannot commit a crime, example 3 strike rule
• rehabilitation reform while in prison
• retribution revenge, not seen as a legitimate reason by the experts but the people in the street put great faith in it
• crime 1) actus reus = guilty act  2) mens rea = guilty mind in addition, the attendant circumstances have to be considered, i.e., the facts surrounding an event 
• attendant circumstances Can lower or eliminate criminal liability for something that would otherwise be a crime, e.g. action performed as a police officer, mental retardation, intoxication)
• murder the killing with malice aforethought of one human being by another
• first-degree murder cold-blooded, malice aforethought, premeditated --> planned out in advance, sentence: capital punishment or life without parole
• second-degree murder Defendant knew what they were doing but did not plan it; sentence: life or 25 years to life
• manslaughter The killing of another without malice or deliberate intention
• voluntary manslaughter diminished capacity e.g. depression, post-traumatic stress disorder; sentence: 10 years
• involuntary manslaughter reckless disregard for human life, i.e. reckless driving; sentence typically 2-5 years
• vehicular homicide negligent killing with a car, misdemeanour, up to 364 days in jail
• justified homicide police shooting, self-defense
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• the burden of proof in criminal cases 1. Assumed not guilty  2. Burden of proof on the state 3. Beyond reasonable doubt standard = 98% to 99% sure the person did the crime  4. Jury can be six and need not be unanimous in some states 5. Constitutional protection: Miranda warning to the alleged criminal by the police when arrested
• proof standard civil action preponderance of evidence = over 50%
• larceny The unlawful taking and carrying away of another person's property. Divided up into grand and petit
• loitering The crime of remaining in any one place with no apparent purpose 
• burglary the crime of breaking and entering the house of another at night with intent to commit a felony in the house 1st degree burglary --> occupied house at night  2nd-degree burglary  3rd degree burglary --> unoccupied property at day
• robbery The crime of taking property from another against his or her will by means of force of intimidation
• breach of the peace a general phrase used in criminal law to describe the offense of disturbing the public peace by riotous or unlawful act
• malicious mischief the wilful destruction of property
• mayhem the crime of mutilating a human being and depriving him or her of a body part
• embezzlement the fraudulent appropriation of property by a person to whom it has been entrusted
• abduction the offence of taking away a person by violence or fraud
• arson the crime of burning a building 1st degree arson - occupied building at night 2nd-degree arson - unoccupied building at night  3rd degree arson - unoccupied building during the day
• extortion obtaining property illegally from another by the wrongful use of force or fear
• posting bail a 3rd party guarantees that the accused will appear in court at a specific time and place
• jump bail money is forfeited, new arrest warrant is issued
• criminal defenses 1) Ignorance of the facts may be a defense if a person accidentally takes another person's property or innocently receives stolen goods or counterfeit money 2) Duress, but the threat must be immediate, not a threat of future harm 3) Entrapment if the government induces a person into committing a crime not contemplated by them 4) Alibi proving that the defendant was somewhere else when the crime was committed = the perfect defense 5) Insanity 
• plea bargaining The accused and prosecutor work out a deal. The person then pleads guilty or not guilty, or nolo contender (no contest), around 95% are plea-bargained out --> gives time and resources for actually difficult cases to be tried
• nolo contendere No contest: implied confession of guilt but cannot later be used as an admission of guilt. Permits the denial of the alleged facts in other proceedings and cannot be used against that person in a civil case
• criminal punishments 1) fine 2) community service 3) incarceration (jail = under one year; prison = over one year) 4) capital punishment (death penalty)
• pokey/hoosegow/slammer a jail or prison

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