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Legal Terminology P1
Key Terms
| Term | Definition |
|---|---|
| Court | a body of government organized to administer justice |
| Two court systems | federal and state |
| Federal court system | established by Article III of U.S. Constitution. – U.S. district courts – U.S. courts of appeals – U.S. Supreme Court |
| Federal questions | matters involving U.S. Constitution, acts of Congress, or treason. |
| Diversity of citizenship | cases between persons from different states, U.S. citizens and a foreign government, or between U.S. and foreign citizens. |
| Admiralty or maritime | issues (pertaining to sea). |
| federal courts hear cases involving what | Federal questions, Diversity of citizenship,Admiralty or maritime issues,Bankruptcy, patent, and copyright. |
| U.S. district courts (also called federal district courts) | hear most federal cases originally (before appeal). – Each state and District of Columbia has at least one district court within its boundaries. |
| U.S. Courts of Appeals | hear cases that have been appealed from federal district courts. – Most cases decided by group of three judges. – Each U.S. judicial circuit has several district courts, but only one court of appeals |
| U.S. Supreme Court | highest court in the land. • Hears appeals from U.S. appellate courts and highest state courts when federal questions are involved. Four out of nine justices must agree to hear case. |
| Writ of certiorari | An order from a higher court to a lower court to deliver its records to the higher court for review. |
| cert. den. (certiorari denied) | When court refuses to hear a case, is marked on the record |
| State courts | each state has its own structure separate from executive and legislative branches. Three categories: – Trial courts – Intermediate appellate courts – Supreme Court |
| Superior courts, circuit courts, or courts of common pleas | In each county, courts hear major criminal and civil cases, both jury and non-jury, involving activity within the state. there are lesser courts district or municipal, juvenile, traffic, housing, and land) and special courts. |
| Courts of appeal or appellate courts | review decisions of lower courts |
| Appeal | request by either party for review of lower court’s decision) must be taken and heard by three-judge appellate panel before going to the state’s supreme court. |
| State supreme court | court of last resort that hear appeals of parties aggrieved by lower court decisions. State court cases cases raising a U.S. constitutional or federal question may be appealed to U.S. Supreme Court. |
| Jurisdiction | power or authority of court to hear a case. Its is is determined by type of lawsuit (who/what it is directed against) |
| Original jurisdiction | power to hear the case when it first goes to court. |
| Appellate jurisdiction | power to hear a case when it is appealed |
| Exclusive jurisdiction | power to hear case to the exclusion of all other courts. |
| Concurrent jurisdiction | two or more courts have power to hear case. |
| forum non conveniens | Doctrine of court with concurrent jurisdiction may refuse to hear case when it feels justice would be better served in a different court |
| In rem action | directed against property, usually a local action. |
| res | the property; the thing |
| local action | concerning title to real property. a lawsuit that can occur only in one place. |
| Quasi in rem action | defendant owns real property in one state and lives in another Court where property is located has jurisdiction over the property, not the person. – Recovery is limited to value of property in state if defendant fails to appear |
| In personam (personal) action | a lawsuit in which the court has jurisdiction over the person. |
| Long arm statutes | courts may obtain jurisdiction over defendants in another state where defendants do business. |
| Plenary jurisdiction | complete jurisdiction over plaintiff, defendant, and subject matter. |
| Transitory action | does not concern land and may be brought in more than one place as long as court has proper jurisdiction. |
| Venue | place where trial is held (geographic location where the action should be tried) |
| change of venue | Courts have power to order this, it is the (removal of suit to another court with jurisdiction) for the sake of justice. |
| Alternative Dispute Resolution | using means other than trial to resolve civil disputes. |
| Negotiation | two party process where sides bargain with each other until one side agrees to the other side’s offer. • No attorney is needed and written agreement terms often remain private. |
| Mediation (also called conciliation) | informal process where neutral third party (mediator or conciliator) listens to both sides and assists parties to compromise and settle. |
| mediator or conciliator | listens to both sides and assists parties to compromise and settle. |
| Caucus | each side’s private session where a mediator asks questions to learn what is behind each side’s demands. |
| Arbitration | neutral third party (arbitrator) makes a decision after hearing both sides. |
| arbitrator | neutral third party makes a decision after hearing both sides. |
| Binding arbitration | parties agree in advance to follow arbitrator’s decision. |
| Nonbinding arbitration | arbitrator’s decision is a recommendation. |
| Compulsory or mandatory arbitration | required by law or agreement. |
| Mini Trial | an informal trial run by a private organization where parties agree to be bound by decision. |
| In personam jurisdiction | jurisdiction over the person |
| code | a systematic collection of statutes, administrative regulations, and other laws. |
| appeal | a request to a higher court to review the decision of a lower court. |
| circuits | name given to the division of the federal court system. There are 13 circuits in the federal system. |
| justice | the title of an appellate court judge. |
| ordinance | law passed by a local or municipal legislative bodies, such as a city council. |
| Rules of Criminal Procedure | Procedures for criminal cases governed by federal and state rules. – Federal criminal court actions are governed by the Federal Rules of Criminal Procedure. – States have their own procedural rules. |
| Crime | offense against the public at large (all of society). |
| Plaintiff | (one who prosecutes, or brings the action) is the government (federal, state, or local). |
| prosecutes | brings the action to someone in criminally |
| defendant | One against whom action is brought is |
| malefactor or convict. | Person found guilty of a crime |
| Prosecution | a criminal action (lawsuit or court proceeding). |
| arrest warrant | written court order to arrest and bring suspect into court. |
| Arrest | to deprive a person of liberty. Arrest without a warrant is permitted with probable cause (reasonable grounds to believe offense was committed). |
| Rendition | return of fugitives by governor of state to which they have fled to state in which they are accused. |
| Miranda Warnings | The constitutional right of arrested individuals be informed of their right to remain silent, that their statements may be used against them, and that they have the right to an attorney—provided at no cost if they cannot afford one. |
| inadmissible | cannot be received) in court |
| Citation | (written order by judge or police officer for person to appear in court) – issued instead of arrest warrant for minor offenses (traffic violations, etc.). |
| criminal complaint | a written statement of facts making up the offense charged. |
| Preliminary hearing (probable cause hearing) | held before judge to determine if there is sufficient evidence to believe suspect committed the crime. |
| If probable cause is found | defendant is kept in jail, or released on bail (money or property posted to assure court appearance) or on personal recognizance (personal obligation to return). |
| bail | (money or property posted to assure court appearance) |
| personal recognizance | (personal obligation to return) |
| misdemeanor | if charge is a trial date is set |
| felony | next step is indictment (formal written charge made by grand jury) or information (formal written charge by a public official) |
| indictment | formal written charge made by grand jury) |
| information | (formal written charge by a public official). |
| Grand jury | jury of up to 23 people who listen to evidence and decide whether or not to charge person with a crime |
| Arraignment | person charged is called to court to answer indictment or information.Charge is read and defendant can plead: |
| Guilty | having committed the crime; |
| Not guilty | denial of committing the crime; |
| Nolo contendere | when permitted) – neither admitting or denying charges |
| Plea of guilty or nolo contendere | court sentences defendant. |
| Plea of not guilty | trial date is set. |
| Plea bargain | when both sides agree to a mutually agreeable disposition of the case (i.e., guilty plea to lesser offense in exchange for lighter sentence) |
| sentence | (judgment of the court imposing punishment). |
| victim’s impact statement | (report of impact of crime on victim and family). |
| Consecutive or cumulative sentences | two or more sentences to be served one after the other. |
| Concurrent sentences | two or more sentences to be served at the same time. |
| Suspended sentence | a sentence given formally but not actually served. |
| Mandatory sentence | fixed sentence with no discretion. |
| • Minimum sentence | smallest amount of time a prisoner must serve. |
| Parole board or parole commission | group of people authorized to grant parole (conditional release where remainder of sentence is served outside of prison). |
| parolee | Person released on parole |
| commutation of sentence | President (in federal cases) and governors (in state cases) have power to change sentences and make less severe |
| pardon | set aside punishment altogether. |
| Bifurcated trial | divided into two parts, with separate hearings for different issues of lawsuit. – Criminal cases often divided for determining guilt and sentencing. |
| Severance of actions | court separates lawsuits or prosecutions into separate, independent cases. |
| Civil action | non-criminal lawsuit (litigation) to settle a dispute between two or more people |
| Class action | a civil action brought, with court approval, by one or more persons on behalf of a large group of plaintiffs. |
| litigants | Parties to lawsuit |
| Plaintiff | – person who brings the suit. |
| Defendant | – person being sued |
| Ripeness doctrine | court will hear only an actual, present controversy. |
| Justiciable | case must be appropriate for court resolution. |
| Rules of civil procedure | rules of the presiding jurisdiction (federal or state court system) that govern civil cases. |
| legal issues | (questions of law) |
| standing to sue | tangible, legally protected interest at stake in lawsuit). |
| jurisdiction | (power or authority of court to hear a case) |
| Pleadings | written statements of claims and defenses used to begin and defend a civil suit. |
| petition | (written application for court order). |
| Complaint | Sets forth plaintiff’s cause of action (grounds for lawsuit), contains allegations (claims plaintiff expects to prove) and ad damnum (clause stating plaintiff’s damages). |
| gravamen | Gist of complaint |
| verification | plaintiff statement confirming truth of pleadings |
| docket | record of cases filed |
| docket number | Clerk of court keeps docket (record of cases filed) and assigns a docket number to each case |
| trial docket (trial list). | When case is ready for trial, it is placed on |
| Service of Process | method by which defendant is notified of suit and compelled to appear in court. |
| Summons | formal notice to defendant of lawsuit and time limit to answer or lose by default judgment (court decision against party who fails to plead or defend lawsuit). |
| Doe defendants | Unknown defendants are referred to as in summons and complaints. |
| service of process. | Summons and complaint are delivered to defendant |
| process server | Person carrying out process is a |
| Personal service | delivery of summons and complaint to defendant personally. |
| Constructive service | documents left at defendant’s last and usual place of abode. |
| Substituted service | delivered to defendant’s agent, mailed, or published in a newspaper. |
| answer | which is the defendant’s pleading – A written response to the plaintiff’s complaint, filed with the court. – Denies or admits allegations; can claim lack of knowledge of truthfulness of allegations. |
| counterclaim | is a suit filed against the plaintiff – which would require the plaintiff’s written response |
| Default judgment | is a court decision entered against a party who has failed to pleas or defend a lawsuit |
| Attachment | act of taking a person’s property and bringing it into custody of the law so it can be applied to defendant’s debt if plaintiff wins suit. |
| affidavit | Plaintiff files affidavit (written statement under oath) stating facts that would warrant a judgment. |
| affiant (or deponent) | Person signing affidavit is |
| Ex parte hearing | (attended by one party only) is held when plaintiff does not want defendant to have advance notice of attachment. |
| Writ of attachment | written order of court commanding sheriff to attach defendant’s real or personal property. |
| lien or encumbrance | (a claim against the property) |
| Trust process (or garnishment) | procedure for attachment if property of defendant is being held by another |
| trustee or garnishee | (one holding defendant’s property) |
| preponderance of evidence | A standard of proof that means more probable than not |
| Writ of execution | process used to enforce a money judgment; it orders sheriff to enforce the judgment. |
| Summary proceeding | short and simple trial, such as those of small-claims court. |
| defensive pleadings | Defendant must file one or more defensive pleadings upon service of the summons and complaint. • Must be filed within required number of days or defendant loses by default. |
| Demurrer | pleading used to attack plaintiff’s complaint by raising a point of law, so that even if plaintiff’s allegations are true, no cause of action exists |
| Grounds for Demurrer | • Failure to state facts sufficient to constitute a cause of action. • Lack of subject matter jurisdiction. • Plaintiff lacks capacity to sue. • Another action pending between the same parties for same cause. • Defect or misjoinder of parties. |
| Sustains | (upholds) |
| nonsuit | (termination of action without adjudication on the merits) |
| Overrules | (annuls, makes void) |
| Motion | A written or oral request made to the court seeking action to be taken. – Any party to a suit can make a motion. |
| Defensive motions | Some important defensive motions: – Motion to dismiss – Motion for a more definite statement – Motion to strike – Motion for judgment on pleadings – Motion for summary judgment |
| Motions to dismiss | seek an order disposing of the case without a trial. |
| Dismissal without prejudice: | laintiff may correct error and bring another action on the same claim. |
| Dismissal with prejudice | plaintiff barred from bringing another action. |
| Grounds for Motion to Dismiss | Lack of subject matter or personal jurisdiction; Improper venue; Insufficient process or service; Failure to state a claim; Failure to join party; Misnomer; Prior action pending in same state. |
| Motion for a more definite statement | Used when pleading is so vague that other party cannot respond to it. |
| Motion to strike | Used by either side to remove from a pleading insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. |
| motion for a judgment on the pleadings | can be made by either side after complaint and answer have been filed alleging either: – Plaintiff’s complaint does not state a claim on which relief can be granted; or – Defendant’s answer does not set forth a legally sufficient defense. |
| Motion for summary judgment | Used when papers filed show lack of genuine issue of fact and that motioning party will win as matter of law. |
| Summary judgment | An decision by the court, without a trial, based on papers filed and evidence presented (such as depositions), dismissing the case |
| Answer | Short/plain statement of defenses filed after service of process. Failure to answer results in default judgment (judgment entered on failure of party to appear or plead). |
| Affirmative defense | reasons that will stop plaintiff from winning case even if defendant has done the act for which he or she is being sued. – Called a confession and avoidance at common law |
| Counterclaim | a lawsuit the defendant brings suit against the plaintiff. |
| Reply | plaintiff responds to the counterclaim by filing a reply (an answer) to the counterclaim. |
| Cross claim | a claim brought by one defendant against another. |
| Cross complaint | pleading sometimes used in place of counterclaim and cross claim |
| Stipulations | are agreements between the parties in a lawsuit. – They regulate any matter relative to the proceedings. – They are entered into by parties throughout a lawsuit |
| Discovery | process used by parties to obtain information before trial. |
| Methods of Discovery | – Bill of particulars – Interrogatories – Depositions – Production of documents and things – Permission to enter on land – Physical and mental examinations – Requests for admission. |
| Demand for Bill of Particulars | Requires the plaintiff to provide written statement of particulars of complaint showing amount owed on contract for sale of goods. |
| Interrogatories | are written questions which may be asked by any party to a suit. – Must be answered in writing under penalty of perjury (giving materially false testimony under oath). |
| perjury | (giving materially false testimony under oath). |
| Deposition | testimony taken from a witness under oath, not in open court. – Any party may examine any person. – A witness giving testimony is called a deponent.Used in court to impeach (call into question) contrary testimony of a witness. |
| impeach | (call into question) |
| Subpoena (or subpoena ad testificandum | an order commanding a person to appear and give testimony. |
| Subpoena duces tecum | an order commanding a person to appear and bring pertinent papers or other materials. |
| Deposition on oral examination | lawyers verbally question a witness. Testimony is taken before a notary public or other person authorized to administer oaths. |
| verbatim | (word for word) |
| Depositions upon written questions | lawyers examine and cross-examine a witness who received written questions in advance |
| cross questions,redirect questions,recross questions | Deponent may respond with cross questions. – Party receiving cross questions may serve redirect questions in response to cross questions. – Party receiving redirect questions may respond with recross questions |
| Production of documents and things | any party may request to inspect, copy, test, or sample documents or tangible things. |
| a motion for order compelling discovery. | If party objects or fails to comply, the requesting party may make |
| e-discovery | discovery of electronic communications or other information stored electronically. This type of information is referred to as ESI (electronically stored information) |
| Metadata | are akin to an electronic fingerprint, and they are discoverable. |
| Discovery sanctions | court-ordered penalties for failing to produce evidence. |
| Safe harbor provision | he Federal Rules of Civil Procedure protects a party from discovery sanctions for good-faith loss of ESI. |
| Permission to enter on land | may be requested by any party for purpose of inspecting, measuring, surveying, photographing, testing, or sampling the property. |
| Physical and mental examinations | the court may order examination of a party whose mental or physical condition is in controversy. – Only made on a motion of good cause and after giving a notice to the person to be examined. |
| Requests for admission | a party may serve on any other party a written request for an admission of the truth on any relevant matter. – Receiving party must respond within prescribed number of days or court considers the matter admitted. |
| Pretrial hearings | are designed to help the trial judge timely manage the case. – Lawyers appear before judge to consider actions and make motions. – A report of the hearing becomes a part of the case record. |
| Pretrial Hearing - Considerations | Parties consider the possibility of the following: – Amending pleadings – Obtaining admissions of fact – Referring case to a master (lawyer appointed by court to hear testimony and report findings to court) – Settling case – Agreeing on damages |
| Right to a Jury Trial | Guaranteed by U.S. Constitution, Article III, and Amendments Six and Seven. – For all criminal cases – For civil cases involving more than $20 • If no jury is requested or right is waived, a bench trial (trial before a judge) is held. |
| bench trial | trial before a judge |
| Jury | a group of people (called jurors) sworn to determine facts of a case |
| Petit jury | jury of twelve people used in criminal and civil cases. |
| Jury pool (venire, jury panel, or array ) | a large group of people from which juries are selected. |
| Selecting Jurors – Traditional Method | Cities/towns provide jurors each session. The court clerk issues a writ of venire facias, and jurors' names are drawn by city alderpeople or town selectpeople. Certain groups are exempt |
| alderpeople | (elected legislators) |
| selectpeople | (elected chief administrative authority). |
| • Modern method | the one day-one trial jury system. – Jurors are randomly selected by computer. – No groups are exempted. – Designed to guarantee community cross-section on juries and reduce burden on certain classes of citizens. |
| Impaneling the Jury | When a trial begins, twelve members of venire are brought into court and impaneled (enrolled) to hear the case |
| Alternates | additional jurors impaneled in case of sickness or removal of any of the 12 who are deliberating |
| talesmen and taleswomen | If not enough jurors are available from venire, judge sends sheriff to obtain from the county at large additional jurors called |
| Voir dire | (to speak the truth) is the process of examining jurors under oath to ensure they are indifferent (neutral). Any juror who is not neutral is replaced by another from the venire. |
| challenge | call or put into question) |
| Challenge to the array (motion to quash the array) | challenges entire jury because of some irregularity in selection process. |
| Challenge of Jurors | Either attorney may challenge (call or put into question) and seek to have jurors removed. • Challenge to the array (motion to quash the array) challenges entire jury because of some irregularity in selection process. |
| • Challenges for cause | to an individual juror who does not stand indifferent (impartial, unbiased, and disinterested). – No limit on number made. |
| Peremptory challenges | – no reason need to be given. – The number is limited by jurisdiction and seriousness of case |
| Steps in a Jury Trial | Plaintiff's opening statement Plaintiff’s case in chief Defendant’s opening statement Defendant’s case in chief Instruction requests Final arguments Jury instructions Verdict Judgment/Decree Appeal Execution or sentencing |
| Opening statement | Plaintiff‘s attorney tells the jury (or judge in a non- jury trial) what the evidence will prove. – Must set forth a prima facie case (be legally sufficient as proof of the case unless rebutted by contray evidence |
| prima facie case | (be legally sufficient as proof of the case unless rebutted by contrary evidence). |
| Case in chief | plaintiff’s attorney introduces evidence and arguments to prove allegations made in pleadings and in the opening statement. |
| Admissible evidence | pertinent and proper; |
| Relevant evidence | – evidence tending to prove or disprove an alleged fact |
| Hearsay | an out of court statement offered in court to prove the truth of the matter being asserted in court. – Generally, hearsay is NOT admissible. |
| Testimonial evidence | oral testimony of a witnesses made in open court under oath |
| Documentary evidence | – written contracts, business records, wills, etc. |
| Real evidence | actual objects having a bearing on the case |
| DNA sample | biologic evidence used for DNA analysis. |
| Exhibit | a tangible item introduced as evidence. |
| Direct evidence | testimony directly related to the fact in issue. |
| Circumstantial evidence | testimony that is indirectly related to a fact other than a fact in issue |
| Direct examination | uestioning of one’s own witness without asking leading questions (suggesting the desired answer) |
| leading questions | (suggesting the desired answer). |
| Cross-examination | then witness is questioned by the opposing party. |
| redirect examination and re-cross examination | Plaintiff’s attorney may conduct a redirect examination that may be followed by a re-cross examination from the opposing party. |
| rests the case | After all witnesses have been examined, plaintiff’s attorney |
| motion for a directed verdict ( | asking court to find in favor of defendant without giving the case to the jury). |
| insufficient as a matter of law | The motion will be allowed if the court finds that the plaintiff’s evidence is insufficient as a matter of law to support a verdict in the plaintiff’s favor. |
| Defendant’s opening statement | outlines the defendant’s side of the case and evidence that will be used to rebut the plaintiff’s case. |
| • Defendant’s case in chief | ntroduces evidence to support defensive claims made in answer and in opening statements. – Evidence are presented and witnesses are questioned in the same manner as for the plaintiff |
| Rebuttal | after defense rests, plaintiff may introduce the rebuttal case, (evidence that will cancel the effect of evidence introduced by defendant). |
| Closing arguments (summation) | he attorneys for each side summarize the evidence (and its significance to their own side) that has been introduced in their party’s favor. |
| (jury charge | ) – The judge informs the jury of laws or legal standards that must be applied in reaching a verdict. Instructions to the jury ( |
| deliberates | i.e., slowly and carefully considers) on the facts and law of the case. |
| sequestered | isolated from society during deliberations). |
| Verdict | the decision of the jury. |
| Criminal cases | in federal cases, unanimous verdicts are required or a mistrial (invalid trial) is called and new trial may be held. |
| mistrial | (invalid trial) |
| Civil cases | not all verdicts must be unanimous, and supermajority verdicts (5/6 of jurors must agree) are permitted in some states. |
| Polling the jury | asking individual jurors whether they agree with the verdict given by the jury foreperson. |
| Hung jury | the jury is unable to agree on the verdict (deadlocked). |
| Judgment (adjudication | decision issued by the court following the jury’s verdict. |
| adjudicating | (determining) the rights and liabilities of the parties |
| ripe for judgment | A case is when it is complete except for the court’s decision |
| Judgment on the merits | court decision based on evidence and facts introduced. |
| Judgment on the pleadings | rendered without evidence if pleadings show that one party is entitled to win the case as a matter of law |
| Judgment notwithstanding the verdict (judgment n.o.v.) | issued if the court believes the jury’s verdict is contrary to law. |
| Decree | decision of a court of equity (court administering justice according to a system of equity or fairness) that grants relief where no adequate remedy at law exists. |
| court of equity | (court administering justice according to a system of equity or fairness) |
| Injunction | orders someone to do or refrain from doing a particular act. |
| Preliminary injunction | issued before hearing of the case to prevent injustice. |
| Consent decree | by consent of parties without admitting guilt or wrongdoing. This type of decree cannot be appealed because the parties have agreed to it |
| Appeal – | request filed with a higher court to review the decision of a lower court. |
| courts of appeal (appellate courts). | Cases are reviewed by |
| Appellant | – party bringing an appeal. |
| – Appellee (respondent or defendant in error) | party against whom an appeal is brought. |
| Criminal cases | in federal cases, unanimous verdicts are required or a mistrial (invalid trial) is called and new trial may be held. |
| questions of law | relating to application or interpretation of the law |
| Appeals | can raise only questions of law – relating to application or interpretation of the law. – Must be filed within prescribed time after the judgment |
| Appeal bond | an appellant is often required to post it to guarantee the payment of damages and the cost of an appeal. |
| Affirm | (approve) the decision |
| Reverse or set aside | make void) the decision |
| Vacate | (annul) the decision |
| Remand | send back) the case to lower courts for further proceedings |
| Legal ethics | was originally a tradition of do’s and don’ts informally applied in the legal profession. 1887 – Alabama was the first jurisdiction to adopt rules of legal ethics. |
| American Bar Association (ABA) | (largest voluntary bar association in America) created its first set of ethics rules, the Canons of Professional Ethics. |
| Ethics opinions | formal answers by the ABA to questions about the interpretation or application of the ethics rules. |
| bar exam | Lawyers are licensed in the jurisdiction where they have passed |
| Multistate Professional Responsibility Exam (MPRE) | a national ethics exam must be passed to get licensure. |
| Multistate Bar Exam | 200-multiple choice exam covering seven subject areas. |
| Multistate Performance Test (MPT) | intended to evaluate an examinee’s fundamental lawyering skills, rather than measuring substantive legal knowledge. |
| Uniform Bar Exam (UBE) | uniformly tests knowledge and skills required to practice law. |
| The highest appellate court in a state: | – Regulates lawyer conduct; – Adopts or creates a set of legal ethics rules; – Investigates accusations of lawyer misconduct; – Has adopted the ABA Model Rules as the operative conduct rules in all states (except California). |
| Guidelines | are adopted by states for the use of paralegals or legal assistants. – Guidelines are directed toward lawyers. – Guidelines address how lawyers can ethically use their employees to support clients’ needs. |
| National Federation of Paralegal Association (NFPA). – National Association of Legal Assistants (NALA). | The two largest paralegal and legal assistant organizations are. These organizations have their own set of ethics rules that apply to their members. |
| Model Rule 1.1 | it is a mandatory duty that lawyers provide competent representation. – Lawyers may not take a case or engage in litigation where the area of law is beyond the lawyer’s knowledge base or skill. |
| Diligence Model Rule 1.3). | is an important component of competence (Model Rule 1.3). – It requires a lawyer to act with reasonable diligence and promptness. |
| Truthfulness | towards clients, the court, and third parties is required by various ABA Model Rules. |
| Prohibitions: | Dishonesty includes failing to disclose one’s status as attorney or paralegal and engaging in ex parte communication. – Lawyers are also prohibited from bringing frivolous suits and frivolous appeals. |
| ABA Model Rule 5.1 | prohibits a lawyer from assisting a nonlawyer in the unauthorized practice of law. |
| ABA Model Rule 5.3 | governs a lawyer’s supervision of his or her employees. – Lawyers are responsible for ethical misconduct of their employees and for failing to adequately supervise them. |
| Paralegal | a nonlegal employee trained and educated to engage in substantive legal work under the supervision of her or his employing attorney. |
| Legal Assistant | often synonymous with “paralegal,” but some attorneys consider them to be less educated than a paralegal. |
| Under Model Rule 1.6 | lawyers must protect their clients’ information: – Statements given to lawyers – Documents given to lawyers – Other information lawyers learns about clients, whatever the source |
| duty of confidentiality | applies to lawyers’ employees also |
| Model Rule 1.18, | lawyers are prohibited from using information they learn from those whose cases they do not take |
| Exceptions to the duty of confidentiality | Implied authorizations necessary for client needs. Preventing crimes involving serious or dangerous acts. Lawyer's defense against charges made by the client. |
| Attorney-client privilege | is an evidence-based rule protecting lawyers from testifying against clients, even under subpoena. It applies specifically to requests for divulging confidential communications. |
| Confidential communication | conversation (or writing) expressing personal or private information that a client had with his or her attorney. |
| conflict of interest | is a situation in which the lawyer is torn between loyalty between two or more clients, or loyalty between the client and the lawyer |
| Model Rules 1.7 – 1.13 | prohibits lawyers from: – Representing two clients against each other; – Representing one client against a former client; – Being involved romantically with a current client. |
| Exceptions | to a conflict of interests are made when the client gives informed consent and waves the conflict of interest problem |
| Informed consent: | having knowledge of the likely consequences for taking a course of action. |
| Waiver: | the voluntary relinquishment of a known privilege or right. |
| legal fees and costs. | Lawyers are required to charge reasonable |
| Reasonableness (Model Rule 1.5) | is a function of the lawyer’s experience, the difficulty of the case, and the chance that the lawyer will be prevented from taking other similar cases due to the conflicts of interest rules. |
| Legal fees | the charges for the lawyer’s time and efforts |
| Costs | expenses associated with a legal matter, such as filing fees. |
| Hourly billing | lawyers using hourly billing may not charge two clients for the same amount of time. – Lawyers may bill separately for the use of their paralegals if clients are aware and approve |
| Nonbillables | overhead expenses that lawyers may not charge for directly. |
| Flat fee | a sum-certain cost of the lawyer’s services, not based on the lawyer’s hourly rate times the lawyer’s billable hours. |
| Contingency (contingent) fee | agreement must be in writing and signed by the client. – Commonly charged for personal injury and other tort cases. – If the plaintiff wins, the contingency fee is a percentage of the plaintiff’s damages. |
| Model Rule 1.5 | contingency fees are not allowed in criminal and divorce cases. |
| Model Rule 5.4 | prohibits lawyers from sharing a percentage of their legal fees with their paralegals and legal assistants |
| Model Rule 7.1 | prohibits all lawyer communication about a lawyer’s services from being misleading |
| Model Rule 7.2 | allows lawyers to advertise their services in print, on radio and TV, and on the Internet. • Jurisdictions decide what may be presented in an advertisement. – Usually, lawyers’ past successes and the use of actors are prohibited. |
| Model Rule 7.3 | prohibits lawyers and their employees from soliciting a prospective client through live contact (includes online contact). – Exceptions: the prospective client is a lawyer, a family member, or a close friend. |
| Written solicitations | must say “advertising material” on envelopes and letters written to potential clients |
| Disciplinary Commission | empowered by a jurisdiction’s supreme court to investigate and bring ethics charges against an attorney, if necessary. |
| Grievance | a written accusation of a lawyer’s misconduct against a client filed to the jurisdiction’s disciplinary commission. |
| a disciplinary sanction | If a lawyer is found to have violated jurisdiction’s rules of professional conduct, |
| Private reprimand | lawyer’s name is not included with the official censure; |
| Public reprimand | lawyer’s name is included with the official censure; |
| License suspension – | lawyer can practice law at the suspension’s conclusion, after seeking reinstatement; |
| Disbarment | permanent loss of a law license. |
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