Legal Survey vocab review for paralegal test 2
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| Abuse of process | Intentional tort of malicious use of the legal process
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| Accessory | Someone who assisted in the preparation of the crime but was not present during the crime
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| Accessory after the fact | Someone who aided the principal after the commission of the crime
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| Accomplice | Also known as a principal in the second degree; a person who assists the principal with the crime or with the preparation of the crime
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| Accord and satisfaction | Payment of money, or other thing of value, usually less than the amount demanded, in exchange for cancellation of a debt that is uncertain in amount.
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| Actual Cause | Cause in fact; "But for" the D's actions, the P would not have been injured
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| Actus reus | Bad act (for a crime, the bad act must be voluntary)
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| Advertisement | A solicitation of an offer to buy
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| Alibi defense | A defense requiring proof that the defendant could not have been at the scene of the crime
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| Appropriation | An intentional unauthorized exploitive use of another person's personality, name, or picture for the defendant's benefit
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| Arraignment | Criminal proceeding at which the court informs the D of the charges being brought against him or her and the D enters a plea
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| Arrest | Occurs when the police restrain a person's freedom and charge the person with a crime
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| Arson | Malicious burning of the house or property of another
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| Artisan’s lien | Rightfully retaining someone’s property. A defense to trespass to personal property and conversion
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| Assault | An intentional act that creates a reasonable apprehension of an immediate harmful or offensive physical contact
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| Assumption of the risk | Voluntarily and knowingly subjecting oneself to danger
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| Attractive Nuisance | Doctrine in which a danger that would attract children must be protected by more than just a sign (swimming pools)
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| Bail | Money or something of value held by the gov't to ensure the D's appearance in court
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| Battered woman/spouse syndrome | When self-defense is allowed even when the victim is not in immediate danger, but is a victim of a continuing pattern of violence
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| Battery | An intentional act that creates a harmful or offensive physical contact
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| Battery | A wrongful physical contact with a person that entails some injury or offensive touching
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| Beyond a reasonable doubt | Standard of proof in criminal trials
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| Bilateral Contract | A promise is exchanged for a promise
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| Booking | Process after arrest, taking D's information, read/sign Miranda card, use of telephone
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| Breach | Failure to do one's duty
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| Burglary | Breaking into and entering a building with the intent of committing a felony
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| Capital Crime | A crime for which the death sentence can be imposed.
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| Charging the jury | The judge informs the jurors of the law they need to know to make their decision
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| Comparative Negligence | A method for measuring the relative negligence of the P and D, with a commensurate sharing of the compensation for the injuries
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| Compensatory damages | aka Actual Damages; awarded to P for the harm done to him
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| Complete defense | A defense that relieves the defendant of all criminal responsibility
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| Consideration | Anything of value; it must be present for a valid contract to exist, and each side must give it
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| Conspiracy | An agreement to commit an unlawful act
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| Content neutrality | Laws may not limit free expression on the basis of whether the speech's content supports or opposes any particular position
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| Contract | An agreement that can be enforced by law
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| Contributory Negligence | P’s breach of duty to protect himself was the proximate cause of the injuries; complete bar to P’s recovery
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| Conversion | Taking someone else's property with the intent of permanently depriving the owner; civil side of theft
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| Crime | An activity that has been prohibited by the legislature as violating a duty owed to society and hence prosecutable, with the possibility of resulting incarceration or the payment of a fine.
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| Custodial interrogation | Questioning that occurs after a defendant has been deprived of his or her freedom in a significant way
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| Custody | Occurs when the D has been deprived of freedom in a significant way
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| Deadly force | A force that would cause serious bodily injury or death
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| Defamation | The publication of false statements that harm a person's reputation
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| Defamation per se | Remarks considered to be so harmful that they are automatically viewed as defamatory
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| Disclosure | The intentional publication of embarrassing private affairs
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| Double jeopardy | A constitutional protection against being tried twice for the same crime
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| Dram shop Laws | establish the liability of bars, etc. if an intoxicated patron negligently injures another
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| Drug Dealer Liability Act | Under this statute (adopted in 16 states), anyone who distributes an illegal drug in a particular geographic area during a particular time can be sued by anyone harmed by that type of drug.
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| Due Process | 5th and 14th amendments guarantee that notice and a hearing must be provided before depriving someone of property or liberty
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| Duress | A defense that force or a threat of force was used to cause a person to commit a criminal act
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| Duty | Legal obligation
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| Eggshell skull | The rule that a wrongdoer must take his victim as he finds him
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| Elements of a binding contract | 1. Offer, 2. Acceptance, 3. Consideration
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| Entrapment | A defense that the D would not have committed the crime but for police trickery
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| Exclusionary rule | A rule that states that evidence obtained in violation of an indiv.'s constitutional rights cannot be used against that indiv. In a criminal trial
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| Exculpatory clause | A provision that purports to waive liability; such as a waiver
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| Exculpatory evidence | Evidence that suggests the D's innocence
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| Execute | To perform
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| Executed Contract | Contract in which all promises have been fully performed
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| Executory Contract | Contract in which promises have been made, but not yet fulfilled
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| Exigent circumstances | An emergency situation that allows a search to proceed without a warrant
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| Express Contract | Contract formed through words, either oral or written
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| False arrest | When a person is arrested (by either a law officer or citizen) without probable cause and when not covered by special privilege
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| False Imprisonment | When one person, through force or threat of force, unlawfully detains another person against his or her will
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| False Light | The intentional untrue portrayal of someone in a way that would be offensive to a reasonable person
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| Felony | A serious crime, usually carrying a prison sentence of one or more years
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| Fine | Money payment intended to make the defendant pay financially for the crime committed
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| Forfeiture | The loss of money or property as a result of committing a criminal act
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| Forgery | Alteration or falsification of documents with the intent to defraud
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| Formal Contract | Contract made under seal; a recognizance; negotiable instrument. A check or a real estate transfer are examples.
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| Fourth Amendment | Amendment requiring all searches and seizures be "reasonable"
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| Fraud | Involves the intent to induce reliance on the misrepresentation, knowledge that the misrepresentation is false or a reckless disregard for the truth, justifiable reliance, and harm
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| Fruits of the poisonous tree doctrine | Evidence that is derived from an illegal search or interrogation is inadmissible
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| General damages | Compensatory damages that you would naturally expect to occur given the type of harm suffered
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| General deterrence | Punishment so that other individuals will not commit this or other crimes
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| General intent | An intention to act without regard to the results of the act (common law)
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| Grand jury | A group of (usually 23) people whose function is to determine if probable cause exists to believe that a crime has been committed by D
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| Hate crime | Crime where the selection of the victim is based on that person's race, sex, orientation, etc.
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| Hate speech | Speech directed at a particular group of people that involves intimidation
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| Homicide | The killing of one human being by another
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| Implied-in-fact contract | Contract formed through conduct, not words
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| Incapacitation | The perpetrator of a crime is isolated in a prison so that this individual will not be able to commit any crimes during the length of the incarceration
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| Inchoate crimes | Attempted crimes
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| Inculpatory evidence | Evidence that suggests the D's guilt
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| Indictment | Grand jury's written accusation that a given individual has committed a crime
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| Inference | A conclusion reached by a judge or jury in a criminal trial based on the facts given
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| Informal Contract | Contract that does not have to meet a special formality to be followed
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| Information | A prosecutor's written accusation (after preliminary hearing) that a given individual has committed a crime
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| Injunction | An order that the D do a specific act or cease doing a specific act
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| Insanity defense | A defense requiring proof that the defendant was not mentally responsible
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| Intentional infliction of emotional distress | An intentional act that is extreme and outrageous and causes severe emotional distress
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| Intentional tort | Purposeful violation of a duty toward others; an intent to harm and a resulting harm
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| Interference with a Contractual Relationship | Prohibits one from inducing a party to breach a contract or interfering with the performance of a contract
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| Intervening cause | A factor that contributed to the plaintiff's injury
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| Intoxication defense | A defense that D was not able to form the mens rea due to being under the influence of alcohol/drugs
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| Intrusion | The intentional unjustified encroachment into another person's private activities
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| Invasion of privacy | An intentional tort that covers a variety of situations, including disclosure, intrusion, appropriation, and false light
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| Irresistible impulse test | Insanity test - if D could not control his or her actions
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| Kidnapping | Crime of unlawful confinement (usually asportation - movement of the victim, must occur)
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| Knowingly | Not intending to cause a specific harm, but being aware that such harm would be caused (MPC)
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| Last Clear Chance | The doctine that states that despite the P’s contributory negligence, the defendant should still be liable if the D had the final opportunity to avoid the accident
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| Lesser Included Offense | A crime whose elements are contained within a more serious crime.
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| Libel | Written defamation
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| Loss of consortium | The loss by one spouse of the other spouse's companionship, services, or affection
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| Malice | Making a defamatory remark either knowing the material was false or acting with a "reckless disregard" for whether or not it was true
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| Malicious prosecution | Filing a lawsuit out of spite, with no legal or factual foundation
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| Market Share Theory | A legal theory that allows plaintiffs to recover proportionately from a group of manufacturers when the identity of the specific manufacturer responsible for the harm is unknown
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| Mens rea | Bad intent
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| Merchant’s firm offer | An offer made by a merchant in a signed writing that assures the buyer the offer will remain open for a specific period of time. It does not require consideration to be binding.
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| Miranda warnings | The requirement that D be notified of their rights to remain silent and to have an attorney present prior to questioning
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| Mirror Image Rule | The requirement that the acceptance is exactly the same as the offer, or the acceptance will be viewed as a counteroffer.
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| Misdemeanor | A minor crime not amounting to a felony, usually punishable by a fine or a jail sentence of less than a year
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| Misfeasance | Acting in an improper or wrongful way
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| Mistake | A defense of ignorance of the facts
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| Mixed Comparative Negligence | A method for awarding a % of damages if P’s contributory negligence is responsible for less than 50%
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| M'Naghten Test | Insanity test - if D suffered from a defect or disease of the mind as not to know the nature and quality of the act, or if he did know it, could not understand whether the act was right or wrong. Aka "right from wrong" test
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| Model Penal Code and Commentaries | The American Law Institute's proposal for a uniform set of criminal laws; not the law unless adopted by a state's legislature (1956)
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| Motion to require a finding of not guilty | The defense's request that the court find the prosecution failed to meet its burden and that it remove the case from the jury by finding the defendant not guilty
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| Motion to suppress | A request that the court prohibit the use of certain evidence at the trial
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| Necessity | A defense that the D was forced (by nature) to take an action to avoid a greater harm
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| Negligence | The failure to act reasonably under the circumstances; also, a unintentional tort
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| Negligence per se | This occurs when an actor's violation of a statute (or regulation) causes the kind of harm the statute was intending to prevent.
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| Negligent Infliction of Emotional Distress | underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual
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| No-knock warrant | A warrant that allows the police to enter without announcing their presence in advance
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| Nolo contendere | D's plea meaning that the D neither admits nor denies the charges
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| Nominal Damages | Damages awarded when a right has been violated, but the plaintiff cannot prove any monetary harm
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| Nonfeasance | Failing to act
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| Offer | A promise do to something that is conditioned on the other party’s promising to do something in return
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| Option contract | A contract in which the buyer gives the seller consideration to keep the offer open for a stated period of time
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| Output contract | A contract in which one party agrees to deliver its entire stock or production of a particular product to the other party
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| Overbreadth | A reason for invalidating a statute where it covers both protected and criminal activity
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| Partial defense | A defense that reduces a crime to a lesser included offense
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| Personal recognizance bond | A D's personal promise to appear in court
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| Plain view doctrine | Without the need for a warrant, the police may seize objects that are openly visible
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| Plea bargaining | When the prosecution and defense negotiate the D's punishment
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| Principal | The person who commits the crime
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| Probable cause | A belief based on specific facts that a crime has been or is about to be committed; more than a reasonable suspicion
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| Product Misuse | When the product was not being used for its intended purpose or was being used in a dangerous manner; it is a defense to a products liability claim so long as the misuse was not foreseeable
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| Products Liability | The theory holding manufacturers and sellers liable for defective products when the defects make the products unreasonably dangerous
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| Promissory estoppel | aka Detrimental Reliance; Occurs when the courts allow detrimental reliance to substitute for consideration
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| Proximate cause | When the act and resulting harm are foreseeably related as to justify a finding of liability
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| Punitive Damages | aka Exemplary Damages; Damages awarded with the purpose to punish and deter
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| Purposeful | Intending to cause a specific harm (MPC)
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| Quantum Meruit | When a person does something for another, without any agreement as to his compensation, the law implies a promise (quasi-contract) for “as much as it’s worth”
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| Quasi-contract | Although no contract was formed, the courts will fashion an equitable remedy to avoid unjust enrichment.
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| Reasonable suspicion | A suspicion based on specific facts; less than probable cause
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| Recklessness | Disregarding a substantial and unjustifiable risk that harm will result
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| Recklessness | Disregarding a substantial and unjustifiable risk that harm will result
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| Rehabilitation | The perpetrator of a crime is given treatment so that this individual will have no need or desire to commit crimes in the future
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| Requirements contract | A contract in which one party agrees to buy all it needs of a particular product from another party
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| Res Ipsa Loquitur | "The thing speaks for itself"; the doctrine that suggests negligence can be presumed if an event happens that would not ordinarily happen unless someone was negligence
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| Restatement of the Law of Torts, Second | An authoritative, secondary source, written by a group of legal scholars, summarizing the existing common law, as well as suggesting what the law should be.
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| Retreat exception | The rule that in order to claim self-defense there must have been no possibility of get away
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| Retribution | The perpetrator of a crime is punished to exact revenge on behalf of the victim or the victim's family
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| RICO | The federal Racketeer Influenced and Corrupt Organizations Act
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| Robbery | Theft of personal property in circumstances that involve either the infliction of serious bodily injury or the threat of such injury
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| Rules of criminal procedure | Federal and state rules that regulate how criminal proceedings are conducted
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| Scienter | Element of intent in fraud
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| Self-defense | Justified use of force to protect oneself or others
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| Slander | Spoken defamation
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| Social Host Liability | Similar to dramshop laws, but regarding private parties, not bars
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| Solicitation | Encouraging someone to commit a crime
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| Sovereign Immunity | Prohibits suits against the government without the gov’t consent
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| Special Damages | aka Consequential Damages; Compensatory damages that vary depending on the specific situation
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| Specific deterrence | Punishment so that this individual will not commit other crimes
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| Specific intent | An intention to act and to cause a particular result (common law)
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| Stalking | The crime of intentionally or knowingly engaging in conduct that causes a reasonable person to fear the imminent physical injury or death of himself or herself or of a member of that person's family
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| Stop and Frisk | Right of the police to detain someone for brief period of time and to search the outside of clothing if the police have a reasonable suspicion that the person has committed or is about to commit a crime
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| Strict Liability tort | Liability without having to prove fault; one is held responsible for injuries that resulted from actions that were not unreasonable and that did not violate a standard of care
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| Substantial capacity test | MPC insanity test - if D lacked either the ability to understand that the act was wrong or the ability to control the behavior
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| Superseding cause | An event which occurs after the initial act leading to an accident and substantially causes the injury; D's negligence no longer makes him liable
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| Theft/Larceny | Crime of stealing
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| Tort | A private wrong (other than breach of contract) in which a person or property is harmed because of another's failure to carry out a legal duty
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| Tortfeasor | The person who commits the tort
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| Transferred intent | A legal fiction that if a person directs a tortuous action toward A but instead harms B, the intent to act against A is applied to B
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| Trespass | Unauthorized intrusion or invasion of the premises of land of another
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| Trespass to Land | When someone enters or causes something to enter or remain on the land of another without permission
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| Trespass to Personal Property | When someone harms or interferes with the owner's exclusive possession of the property but has no intention of keeping the property
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| Ultrahazardous Activities | Those activities that have an inherent risk of injury and therefore may result in strict liability
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| Unenforceable Contract | A valid contract that cannot be imposed because of a procedural error, such as the passage of the statute of limitations
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| Uniform Commercial Code (UCC) | Model code governing commercial transactions
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| Unilateral Contract | A promise is exchanged for an act
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| Valid Contract | Contract which has all essential elements needed for a binding contract
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| Void Contract | Contract that is found to be for an illegal purpose
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| Void for vagueness | A reason for invalidating a statute where a reasonable person could not determine a statute's meaning
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| Voidable Contract | A contract that can be set aside at the option of one party; such as a contract with a minor; minor can void contract
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| Warrant | A court's prior permission for the police to search and seize
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| Writ of habeas corpus | A request that the court release the D because of the illegality of the incarceration
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| Wrongful birth | A medical malpractice claim brought by the parents of a child born with birth defects, alleging that negligent treatment or advice deprived them of the opportunity to avoid conception or terminate the pregnancy.
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| Wrongful life | A type of medical malpractice claim brought on behalf of a child born with birth defects, alleging that the child would not have been born but for negligent advice to, or treatment of, the parents
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