Chapter OneThe Basics of Paralegal Studies
Introduction
I. Sample Test Questions
Fill-ins
1.A suit for money is known as a suit for ______.
2.A suit for something other than money is normally filed in this kind of a court.
______.
3.A person who is charged in a criminal case is known as a ______.
4.Following previous case law is known as applying the doctrine of ______.
5.A ______is a criminal act with a penalty no greater than one year.
6.______is the geographical location where a case is heard.
7.The ______is the main trial court for the federal system.
8.______is the power of a court to hear a case for the first time.
9.______are legislative acts passed either by the federal or state legislatures.
10.The ______is the prosecutor in a state criminal case.
Short Answers/Essays
1.List any three primary sources of law.
2.Name the two appeals court levels in the federal system.
3.Name three kinds of cases that are heard in federal court.
4.What is the name of the state court in your state that has equity jurisdiction?
5.In what court would a federal criminal trial be initiated?
6.What is the lowest appeals court in your state?
7.In what court would one file a suit in excess of $75,000 where the suit is by a citizen of one state against a citizen of another?
8.In what state court in our state are misdemeanors heard?
9.What is the lowest appeals court in the federal court system?
10.What is the highest state appeals court in our state?
11.What court’s decisions must be followed by the U.S. Court of Appeals?
12.What are the four key elements in the definition of a paralegal?
13.Name two kinds of cases that are heard in equity court and define each one.
14.What is unusual about the Court of Appeals for the Federal Circuit? Be specific.
15.Give an example in which one could be both charged with a crime and sued civilly for committing the same act. Indicate what the cause of action would be for both the criminal action and the civil suit.
16.Define licensing and certification. Is either required for legal assistants?
II. Answers to the Sample Test Questions
Fill-ins
1.damages
2.equity
3.defendant
4.stare decisis
5.misdemeanor
6.venue
7.United States District Court
8.original jurisdiction
9.statutes
10.State Attorney or District Attorney
Short Answers/Essays
1.Answers will vary but may include:
a.statutes
b.constitutions
c.case law
d.administrative regulations
e.treaties
f.executive orders
2.United States Court of Appeals
United States Supreme Court
3.Possible answers could include (among others):
a.cases arising under the United States Constitution, federal laws, and treaties
b.cases affecting ambassadors, other public ministers, and consuls
c.controversies to which the United States shall be a party
d.controversies between two or more states; ...between citizens of different states; [or] between citizens of the same state claiming lands under grants of different states.
e.diversity of citizenship cases, which means that a citizen of one state is suing a citizen of another state, and the amount in controversy exceeds $75,000 exclusive of interest and costs.
4.Answers will vary by state.
5.U.S. District Court
6.Answers will vary by state.
7.U.S. District Court
8.Answers will vary by state.
9.U.S. Court of Appeals
10.Answers will vary by state.
11.U.S. Supreme Court
12.The four key elements in the definition of a paralegal are:
a.Qualified by Education, Training, or Work Experience
b.Employed or Retained by a Lawyer, Law Office, Corporation, Governmental Agency, or Other Entity
c.Specifically Delegated Substantive Legal Work Is to Be Performed.
d.The Attorney Bears Responsibility for the Legal Assistant’s Work
13.Two possible answers are:
a.A suit for an injunction. There are two types of injunctions. A prohibitoryinjunction is a court order preventing a party from doing a particular act, such as an order to enjoin a person from entering upon the land of another. A mandatory injunction is a court order requiring a party to do a particular act.
b.A suit for an order of specific performance. This is a court order specifically pertaining to contract and property law that requires a party to perform obligations under a contract. Orders of specific performance are normally only appropriate when the subject matter of the contract is unique. For these purposes, every piece of real estate is regarded as unique because of its location. An order of specific performance might be appropriate, for example, if the owner of a parcel of real estate refused to transfer title of the property to another party in accordance with the terms of a signed agreement between the parties.
14.The Court of Appeals for the Federal Circuit handles appeals from the United States Court of International Trade, the United States Patent and Trademark Office, the United States Court of Federal Claims, the United States Court of Veterans Appeals, the United States Court of Appeals for the Armed Forces, and many cases where the United States government is a defendant. The United States Court of International Trade considers rulings made with regard to the valuation of imported goods for the purposes of imposing customs duties.
15.Answers may vary, but one example would be an instance where an individual gets drunk in a bar and then gets in his car and runs over a pedestrian. The wrongdoer could be charged with the crime of driving while intoxicated, and, if the victim is killed, manslaughter. The same individual could be sued in civil court by the victim for negligence or, if the victim were killed, the family could sue for wrongful death.
16.Licensing refers to the procedure by which a governmental agency establishes minimal standards that must be met before an individual will be allowed to engage in a particular business. Certification refers to the process by which an organization acknowledges that an individual has met certain minimal qualifications and can therefore claim that he or she is certified by that group as having attained a certain level of competence. One can gain certification by passing the CLA examination, although neither licensing nor certification is required for legal assistants.
III. Answers to the Review Questions in the Text
1.a.The President's primary option is to veto the legislation. This is the President’s way of checking the power of the legislative branch. While it is possible that the Congress may override the veto, it requires a two-thirds vote rather than a simple majority of both houses of Congress to do so.
b.Congress can override the presidential veto if each house can muster the necessary two-thirds vote. (See Article I, Section 7, of the United States Constitution)
c.Smith could always argue that the statute denies him his First Amendment right of freedom of speech under the U.S. Constitution. If the courts do rule that Smith's actions are constitutionally protected, the statute would then be unenforceable and Smith would not be guilty of the offense. The Supreme Court has held that freedom of speech is broad enough to include conduct as well as words.
The First Amendment to the U.S. Constitution states that: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
d.The President can intervene by issuing a presidential pardon for criminal acts. Article II, Section 2, of the U.S. Constitution states that “the President shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
2.a.The three main levels of courts in the federal system are, from the lowest to the
highest, the U.S. District Courts, the U.S. Courts of Appeal, and the U.S. Supreme Court.
b.The 12th Court of Appeals has been established solely for the purpose of handling appeals from the District of Columbia’s judicial system.
c.The Court of Appeals for the Federal Circuit handles special kinds of appellate matters including appeals from the United States Court of International Trade, the United States Patent and Trademark Office, the United States Court of Federal Claims, the United States Court of Veterans Appeals, the United States Court of Appeals for the Armed Forces, and many cases where the United States government is a defendant. (The United States Court of International Trade considers rulings made with regard to the valuation of imported goods for the purposes of imposing customs duties.)
d.All federal judges on all levels are appointed by the President of the United States, but their appointments must be approved by the Senate.
3.a.(The answer to this question depends upon the state in which this book is being used.)
b.(The answer to this question depends upon the state in which this book is being used.)
c.(The answer to this question depends upon the state in which this book is being used.)
d.(The answer to the first part of this question depends upon the state in which this book is being used.)
As to the second part, equity is a system of jurisprudence based upon rules of fairness and justice applied by courts in cases where remedies other than damages may be sought. Historically, the equity courts focused on the moral perspectives in the case. They therefore had greater latitude and more discretion than law courts and were historically less inclined to defer to court precedent than the law courts.
4.Licensing refers to the procedure by which a governmental agency establishes minimal standards that must be met before an individual will be allowed to engage in a particular business. For example, medical doctors have to prove that they have fulfilled certain educational requirements and have passed state examinations before they are allowed to practice within the state. A license is not required in any state in order to work as a paralegal.
Certification refers to the process by which an organization acknowledges that an individual has met certain minimal qualifications and can therefore claim that he or she is certified by the group as having attained a certain level of competence. Certification is not required in any state in order to work as a paralegal. Those who wish to gain the knowledge and recognition that come with certification in the paralegal field can do so by voluntarily taking the test given by the National Association of Legal Assistants.
5.Mandatory precedent is court precedent that must be followed in a particular case. For example, when a given state court is bound by the decision of a higher state court, the decision of the higher state court is referred to as mandatory precedent. Similarly, a federal court in a particular state is bound by the decisions of higher federal courts within the same circuit. Federal courts interpreting state constitutional or statutory provisions must reflect the prior decisions of the state's courts.
Persuasive precedent is court precedent that a court may choose to consider even though it is not required to do so. For example, the decision of the Indiana Supreme Court may be considered by the Florida Supreme Court when the latter court considers a case similar to the one ruled upon in Indiana, but the Florida Supreme Court is under no obligation to do so.
6.The legislators could study the language in the United States Supreme Court decision to see if the language of the statute could be rewritten in a way that would be more acceptable to the U.S. Supreme Court. If so, new legislation could be drafted in accordance with the court decision and resubmitted to the House of Representatives and Senate for passage.
Even if the language of the statute is rewritten, however, Penrod could not be retried for conduct that took place prior to the redrafting of the legislation. As to Penrod, this would be an ex post facto law, which is a law that attempts to hold the perpetrator responsible for violating a law that was not in force at the time of the purported violation. Article I, Section 9, of the U.S. Constitution specifically states that “No ex post facto law shall be passed.” On the other hand, if Penrod commits an act after the
passage of the new legislation that violates the new statute, he can be charged with the violation.
7.a.Barnes has four drinks at a local bar and runs over a pedestrian on the way home. The pedestrian is severely injured. Barnes could be sued civilly by the victim for negligence. He could also be charged with the crime of driving while intoxicated or driving under the influence.
b.Dinah comes up from behind Harry and hits him in the head with a board. Dinah could be sued civilly by Harry for the civil wrong known as battery. She could also be charged with the crime that is also known by the same name of battery.
c.Smith carelessly shoots and kills Wesson while Smith is cleaning his gun. Smith could be sued civilly by Wesson's family for the tort of wrongful death. He could be also be charged with the crime of manslaughter.