Items at the end of a talk tend to be better remembered because they are recent in memory, and are perhaps still in the “working” portion of one’s memory. Additionally, listener interest is elevated at the conclusion because it is understood as the critical summing up of previous points made—and perhaps not listened to.
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How to misunderstand a contract
Unilateral mistake: One party is in error as to a contract’s terms or subject matter. The contract usually will be upheld by the court, except courts may void or revise a contract if the non-mistaken party was aware of and tried to take advantage of the mistake, or if enforcement would be unconscionable (e.g., a very one-sided contract).
Mutual mistake: Both parties are mistaken as to the meaning of a contract term. The mistakes may be different from each other (varying interpretations of a word), or they may be the same, such as a shared misunderstanding of an external fact (e.g., “to occur on February 29, 2015”). Some courts call the former a mutual mistake and the latter a common mistake. Courts usually will find the contract was never formed and therefore will not enforce it.
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The Peerless Case
Two businessmen, Raffles and Wichelhaus, entered into a contract for the sale of 125 bales of cotton. Shipment from India to England was scheduled to be made on the British ship Peerless. Unknown to both parties, there were two British ships of this name. Wichelhaus, the receiver, expected shipment on the Peerless arriving in October, but it was carried on the other Peerless, which arrived in December. Wichelhaus refused to accept delivery.
Raffles sued Wichelhaus for breach of contract, but the court was unable to ascertain which ship named Peerless was intended in the written agreement. As the parties did not agree to the same thing, there was no meeting of the minds, and therefore no binding contract. The court ruled that Wichelhaus did not have to purchase the cotton from Raffles.
The Peerless case, although from British law (Raffles v Wichelhaus [1864] EWHC Exch J19), is well-known in American law because it largely established the concept of the meeting of the minds—and likely also because of the great irony in there being two ships named Peerless.
Number of lawyers in U.S. per 100,000 citizens
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A lawyer may not practice law with a non-lawyer, unless the non-lawyer is in jail.
Anyone may give legal advice, but the recipient has to know if the advice is or is not coming from a lawyer. For this reason, a lawyer may not enter into a business enterprise with a non-lawyer if its activities include the practice of law. A client could become confused as to the source and reliability of advice, and whether communications with the firm are privileged. However, a lawyer is permitted to assist the legal efforts of a “jailhouse lawyer”—a prisoner who provides legal advice to other prisoners.
Some civil remedies
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One cannot simply sue, but must sue for something.
A plaintiff must request a specific remedy, such as a payment it wishes the defendant to make or an action it wants the defendant to take or stop taking. A plaintiff cannot ask the court to issue an advisory opinion, make a public statement on an issue, or edit a statute.
If waiting for a final decision from the court might prove ineffectual to a plaintiff, he or she may request an injunction—a court order that the opposing party do or stop doing an act—at any time. The court may grant the request before a trial is completed if: (1) It deems the plaintiff likely to succeed in the case; (2) the plaintiff is likely to suffer irreparable harm if it is not granted; (3) The plaintiff will likely endure greater harm from the absence of injunction than the other party will endure from it; and (4) the injunction is in the public interest.
Statutes of limitations on personal injury claims
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You can’t sleep on your rights.
The law limits how long after an injury has occurred, or has been discovered to have occurred, that a claim or charge can be brought. A statute of limitations serves to provide a sense of finality and predictability for the defendant, and to make sure a claim can be resolved while evidence is available, memories are fresh, and testimony may be considered reliable.
Common civil awards
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An injured party has a responsibility to minimize the damage.
In many jurisdictions, a party suffering a personal injury cannot recover for losses incurred for failing to seek reasonable medical care, unless the conduct that caused the injury was willful or done in bad faith.
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Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928)
A man carrying an ordinary looking package was hurrying to board a moving train. A Long Island Railroad employee helped pull the passenger into the rail car while another employee pushed. The package was dislodged and fell. Unfortunately, it contained fireworks and exploded, and the force knocked down a scale at the end of the platform, injuring a Mrs. Palsgraf.
Palsgraf sued the railroad, claiming her injury resulted from negligent acts by its employees. Palsgraf won in trial court, but on appeal by LIRR to the highest court in New York, Palsgraf’s complaint was dismissed in a 4-3 vote. The court held that LIRR’s conduct, if wrongful in regard to the man carrying the parcel, was not wrongful in regard to Palsgraf. Citizens have a duty of care and must refrain from acts that threaten the safety of others, but cannot be held liable for injurious acts if the consequences could not have been reasonably foreseen. Since the railroad was not given notice that the package contained dangerous fireworks, it could not foresee that Palsgraf was within a zone of danger.
Palsgraf is often cited—incorrectly—for the role of proximate cause in injury cases, even though the decision by the court specifically stated this was not a consideration. When there is no duty of care, causation does not matter.
Good Samaritans can be liable for negligence.
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The Thin Skull Rule
When a tort results in harm to a person with a preexisting physical or mental condition, such that the harm is greater than what would have been experienced by a different victim, a defendant may be held liable for all such harm.
The 3 stages of a civil case
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Most of what happens in a civil trial happened before the trial.
In civil cases, litigants are required to exchange information before trial. Through the discovery process, each party may depose (question under oath) the opposition and any other individuals who may provide relevant information. Consequently, each side knows the other’s case well before the trial begins.
A judge is also involved well before trial. A judge reads pretrial pleadings and motions from the two sides, researches relevant legal issues, settles disputes that arise during discovery, issues warrants and summonses, and supervises jury selection. Most cases settle before trial, making pretrial work the court’s main work.
States not allowing an insanity defense
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The party that alleges bears the burden of proof.
Each party in a dispute bears the burden of proving its allegations. A party that denies an allegation, with few exceptions, has no obligation to disprove it. However, if a criminal defendant enters a plea of not guilty by reason of insanity, thereby conceding to the prosecution’s charge, it inherits a burden of proving insanity.
In a very few civil disputes, the defendant bears the burden of proof. For example, a customer sued by a utility provider for nonpayment may have to prove to the court that the bill was paid or provide a convincing justification for why it was not.
State civil court cases
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The party that alleges gets an extra chance to argue its case.
Opening statements: The plaintiff or prosecutor presents an initial summary of its case, and the opposing party follows.
Plaintiff/prosecutor’s case-in-chief: The plaintiff/prosecutor calls its witnesses for direct examination. After each examination, the defense may c
onduct a cross-examination. The plaintiff/prosecutor may then re-question each witness regarding matters that emerged from the cross-examination.
Defendant’s case-in-chief: The defense calls its witnesses for direct examination. After each examination, the plaintiff/prosecution may conduct a cross examination. The defense may re-question each witness to address matters that emerged from the cross-examination.
Rebuttal case: The plaintiff/prosecutor may request to proceed with rebuttal evidence in response to the defendant’s case-in-chief. The judge may allow the defendant to rebut the plaintiff/prosecutor’s rebuttal if it introduced new matters.
When either side completes its case-in-chief, defense, or rebuttal, it will indicate that it rests. Counsel may reopen a closed phase of the trial only with permission.
Closing arguments: Plaintiff/prosecutor; defendant; then plaintiff/prosecutor.
Deliberations and verdict.
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Keep it slightly above room temperature.
Rationality is cool; passion is warm. Rationality provides logical justification for a position, while passion provides a human connection to it. Both are needed to advance an argument; an abundance of one will not compensate for a dearth of the other. An argument may be extraordinarily rational, but its correctness alone is unlikely to compel others to care enough to right the wrongs behind it. An extremely passionate argument may initially attract sympathy, but unmitigated displays of emotion at the expense of rationality will wear thin and eventually prompt others to tune out your message.
Rationality makes an argument worthy. Passion makes it worthwhile.
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What’s in dispute—facts or law?
Law: A statute requires a paroled sex offender to live at least 2,000 feet from a school.
Facts: The parolee already owns a home less than 2,000 feet from a school, and nearly all other residences in the community are similarly sited.
Question for the court: Is a law constitutional if it promotes a parolee’s homelessness?
Law: The vehicle code requires motorists to stop at red lights.
Facts: A police officer cited the defendant for running a red light. The defendant says the light was red, but that he went through it to make way for a fire truck.
Question for the court: Was the defendant making way for an emergency vehicle, and does this mean he should be excused for running the red light?
Law: A contract requires both parties to have the same understanding of its critical terms.
Facts: Party A agreed to purchase all of Party B’s bats. Party B delivered a cage of live bats to the buyer, who was expecting sports equipment.
Question for the court: Did one party or the other conceal its awareness of the other’s misunderstanding at the time of contract?
Five categories of statutes in the state of North Carolina
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When meaning is contested, look to intent.
When the meaning of a statute is disputed, courts look to legislative intent (the policy and broader legislative scheme behind it); language (composition, structure, qualifying words, technical versus general meaning); and history (events leading to and following the legislation).
When the meaning of a contract term is disputed, courts generally look to what the parties intended when they entered into the contract. If a specific word is in dispute, courts usually presume the generally accepted meaning unless one party can prove that a narrower or more specialized meaning is its proper interpretation.
Ethics for lawyers
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A lawyer may not reveal that a client intends to commit a crime.
A client’s communications to his attorney are protected by rules of confidentiality and the attorney-client privilege, except when the attorney believes the crime will result in death, severe bodily harm, or (in some jurisdictions) substantial financial injury. However, a lawyer must make a good faith effort to dissuade a client from committing a crime and has no responsibility to maintain confidentiality if the client hired the lawyer specifically for assistance in committing it.
Noncoincident political and cultural boundaries
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4 types of boundaries
Political boundaries define sovereign or locally sovereign entities such as cities, counties, states, and nations. They result from numerous, often competing factors, such as geography, culture, long-term settlement patterns, conquest, and negotiation.
Electoral boundaries establish voting areas for legislative bodies. They are generally coincident with political boundaries, but may change with relative frequency to coordinate elective representation with population shifts.
Jurisdictional boundaries define regions administered by court systems and law enforcement agencies. They typically coincide with political boundaries.
Cultural boundaries demarcate regions in which the inhabitants’ language, customs, and other social practices differ from those of surrounding areas. Cultural boundaries are often independent of other types of boundaries.
Navajo Nation is larger than ten states.
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There are more than 300 nations within the United States.
The U.S. Constitution grants local sovereignty to over 300 American Indian reservations. They cannot enter into treaties with foreign entities, but Indian nations have their own court systems, which adjudicate matters involving Indian affairs on tribal land. They cannot adjudicate matters involving non-Indians.
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Felonies, misdemeanors, and wobblers
Felony: a serious crime, usually punishable by imprisonment for more than one year. Includes arson, assault, battery, burglary, grand larceny, grand theft, multiple offense DUI, murder, rape, robbery, serious drug offenses, unauthorized possession of a deadly weapon, and vandalism of federal property.
Misdemeanor: a crime less serious than a felony, usually punishable by a fine, forfeiture, or less than a year in prison or jail. Typically includes disorderly conduct, first offense DUI, possession of small amounts of some drugs, petty theft, prostitution, public intoxication, reckless driving, simple assault, trespassing, and vandalism.
Wobbler: a crime that can be charged as a felony or misdemeanor depending on circumstance; for example, if there is an aggravating factor. Some felonies may be reduced to misdemeanors during sentencing or even after conviction.
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If you’re going to spray graffiti, don’t do it on the Post Office.
Crimes typically prosecuted in state court Crimes typically prosecuted in federal court
Assault and battery Bank robbery/bank fraud
Domestic violence Bribery of public officials/public corruption
Embezzlement
Fraud Child pornography
Murder Crimes committed on federal property
Most misdemeanors Crimes involving state to state flight
Operating under the influence Export crimes
Possession of controlled substances Mail and wire fraud/theft
Money laundering
Rape/sex crimes/child molestation Securities fraud
Robbery/theft Tax crimes
Trafficking in controlled substances not crossing state lines Trafficking in controlled substances across state or federal lines
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“The more laws and order are made prominent, the more thieves and robbers there will be.”
—LAO-TZU
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You’re allowed to puff.
If you are selling something and you fudge a little, it’s ok. You’re allowed to exaggerate how good something is in an effort to make a sale, as long as you are expressing an opinion and not misrepresenting a fact. Some puffing is expected of any salesperson.
Involuntary manslaughter Voluntary manslaughter Second degree murder First degree murder
Did killer intend to kill? No Sometimes Usually Yes
Did killing result from negligence? Yes No No No
Was killing premeditated? No No No Yes
>
Was killing result of “heat of passion”? N.A. Sometimes Sometimes N.A.
Common homicide standards
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Intent can be essential; motive rarely is.
Motive is the reason someone has for committing a crime. It can help the prosecution identify and indict a defendant, but it doesn’t provide direct evidence of guilt. Personal financial difficulty, for example, could suggest an individual had a motive to commit a robbery, but it provides, at best, only circumstantial evidence that he did so.
Intent is the resolution to commit a crime. A defendant’s possession of tools for breaking a safe suggests an intent to commit burglary and theft, and may serve as direct evidence of his guilt.
Motive is not essential to the court when guilt is clearly established by the evidence. But if the prosecution’s case is based largely on circumstantial evidence, motive might be a persuasive consideration—for either guilt or innocence.
101 Things I Learned in Law School Page 3