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American Law (Fach) / Exam Review (Lektion)

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• intentional harm / intentional wrong Doing something within the control of yourself that harmed someone. Does not mean that there must be bad or evil intent there just has to be a desire to bring about an immediate result
• negligence the failure to take reasonable care to avoid causing injury or loss to another person 1) duty in the circumstance to take care 2) behavior/inaction of the defendant did not meet standard of care of a reasonable person (breach of duty) 3) foreseeable injury or loss suffered (damage)
• ordinary negligence einfache Fahrlässigkeit
• gross negligence The intentional failure to perform a duty with reckless disregard for the consequences; might even cause punitive damage; cannot be contracted away, e.g., not fixing the saddle even though noticed
• material breach of contract immediately stop and pay expectation damages, put harmed party in the financial situation they would be in if not for the breach
• minor breach of contract damages but continuation of the contract
• duty to mitigate damages The party that did not reach the contract has the legal obligation to keep the damages as low as possible, if they do not do so the court can deny damages
• remedy in contract law usually money but sometimes specific performance (very seldom) or repudiation (Rücktritt)
• red tape excessive bureaucracy, important dossiers are marked by red tape to signal that they need to be discussed right away
• kangaroo court A biased court which results in an unfair punishment comes from the image of itinerant judges who were paid on the basis of how many trials they tried and sometimes even by the damages paid by the convicted party, used by the Supreme Court in re Gault, Justice Douglas in United States v Williams also used the term
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• summons Document given to the other party when serving process
• service of process by publication a notice of the pending lawsuit is printed in the local newspaper
• taking a deposition Taking an oral statement from potential witnesses before the trial
• motion It is filed to ask the court to do something for the lawyer, e.g. make a decision on a contested legal issues before during or after trial; usually written but can be done orally during the trial
• hearing Like a mini-trial following a motion on notice: both sides argue their position in front of a judge, it follows all the rules of a trial, but the judge only decides on small legal issues. After the hearing, the judge will rule on the motion and either grant or deny it. The judge can make the ruling immediately or reserve decision. If the motion is granted, the judge issues an order. The lawyer must serve the other side with the order for that order to go into a fact
• take it on the papers the judge decides that the parties to not need to appear in court
• litigants parties involved in a trial
• assault in tort Intent to inflict harm on another person and put them in fear of injury, e.g., chasing someone with a baseball bat. It is a verbal threat of harm or a non-contact physical threat, personal hostility is not necessary 
• battery in tort Intentional, harmful, unprivileged contact with another person e.g. one is hitting another with the intent to kill a bee
• intentional desire to bring about an immediate result
• harmful a person is physically or mentally injured
• unprivileged no legal or personal permission
• right of self-defense of person Not liable if  1) another person intended to harm, or the person has a reasonable fear of such a threat 2) Defensive act not likely to cause death 3) Prevention of harm is only possible by fighting back 4) Can only use reasonable means to stop the attack
• self-defense of property 1. Can use reasonable means to expel the intruder 2. Can use non-deadly mechanical devices to protect property
• libel publication in written or printed form which ridicules, scorns or lowers the respect and confidence of other people
• publication intentionally or carelessly showing an item to 3rd party (can be a hand written note, does not need to be an official printed publication like a newspaper), can be TV/radio if read from a script
• slander Spoken words; more narrow cause of action  slander per se: 1. suggest someone is guilty of a criminal offense 2. X has a loathsome disease (sexually transmittable disease) 3. X engages in improper business/professional activity  4. the unchastity of a woman If not one of the above the plaintiff must prove special damages = financial or material loss One who repeats slander is also liable
• defenses to libel / slander 1. Truth = the perfect defense 2. Consent 3. Privilege (public officials - performing the public function; husband and wife - what is said between them is not considered a statement to a 3rd person, fair comment - opinion as long as no other motive), e.g., newspaper trying to be accurate
• fair comment defense expressing an opinion without another motive 
• normal negligence Failure to do something which a reasonable person guided by the usual factors which regulate human affairs would do or not do (can be contracted away), e.g. nit fixing the saddle right
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• willful and intentional wrong To perform or not perform an action that is known to cause injury, e.g. breaking the saddle on purpose
• foreseeability only responsible for what naturally results from the negligent act
• trespassers no duty to protect even if unsafe conditions  exceptions: 1) discovery of trespasser (e.g. telling trespasser that he is in the middle of a minefield) 2) frequent trespass (e.g., kids regularly walking towards something) 3) attractive nuisance (children, renovating a house)
• licensees A person who comes onto the property for their own purposes but with the owner's consent e.g. dinner guests  reasonable care duty by the owner only if the owner is aware of the dangerous conditions that put guest in danger. Then the duty is to warn of known dangers. 
• invitees A person who enters the property by invitation (express or implied), entry is connected with the owner's business, and there is mutual benefit to both or benefit to the owner --> affirmative (active) duty to protect: not just known dangers, but also those discoverable with reasonable care, once a building is open to the public there is a duty to anyone with a legitimate reason for entering (in other words business visitor), no duty if just loitering or to get out of the rain
• requirements for tort damages - injured party 1) out of pocket expenses 2) pain and suffering  3) permanent injury or disability
• punitive damages Awarded for willful, wanton, or malicious conduct. The majority of states require clear and convincing evidence. Some states prohibit the award of punitive damages
• eligibility for damages - 3rd party 1. Loss of consortium --> husband could recover against 3rd party for loss of services and companionship, loss of love, sexual relations, and affection 2. Emotional pain and suffering, e.g., relative witnesses the death of a loved one (only if physically seeing it happen) 3. Wrongful death --> loss of support
• contingency fee The lawyer is not paid for any of his or her work in or out of the court if his or her client does not win but if they do win the case or reach a settlement they take a percentage (usually around 1/3) 
• laying out your cards being forced to disclose evidence to the other party during the discovery process
• demand for particulars UK discovery process outside the courtroom
• interrogatories (rogs) written questions presented to opposing counsel that must be answered under oath
• request for production of documents (RPD) request for opposing counsel to hand over emails or documents
• request for production of evidence (RPE) requested to opposing counsel to produce physical evidence
• request for admissions (RFA) attempt to get a party to admit to wrongdoing with the aim to narrow down the trial
• deposition in-person meeting of the parties. Questions are answered under oath, and a transcript is made. 
• deponent a person who is questioned in a deposition. If the deponent cannot testify at trial the transcript may be read to the jury as evidence
• property inspection inspection of property with the objective of producing physical evidence
• medical examinations Can relate to both the mental and physical state
• information that can be collected during the discovery 1) The main rule: any information pertaining to the lawsuit, as long as the information is not privileged or otherwise legally protected 2) Anything a witness or party saw/heard / or did in connection with a dispute 3) Anything anyone said at a particular time and place 4) Identifying more witnesses 5) Detailed information on how a company is run 6) documents leading to the dispute 7) personal and educational background information on the witnesses

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