ETMD EP Paralegals flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Unauthorized practice of law

A non-lawyer giving legal advice, selecting or drafting legal documents for another, or appearing in court for another; paralegals may act only under attorney supervision.

Client confidentiality duty

Under Model Rule 1.6 the lawyer and the lawyer's agents, including paralegals, must not reveal information relating to representation; the duty survives the end of the relationship.

Fee sharing prohibition

Model Rule 5.4 bars a lawyer from sharing legal fees with a non-lawyer; paralegals receive salary or wages, not a percentage of the fee, and cannot own the practice.

Imputed conflict of interest

Model Rule 1.10 imputes one lawyer's conflict to the whole firm; a paralegal's personal conflict must be disclosed and screened before work continues.

Diversity jurisdiction

Federal jurisdiction under 28 U.S.C. § 1332 over civil cases between citizens of different states where the amount in controversy exceeds $75,000; complete diversity is required.

Personal jurisdiction

A court's power over the parties, based on domicile, consent, or minimum contacts with the forum state consistent with due process.

Venue

The proper geographic district for a lawsuit under 28 U.S.C. § 1391; distinct from jurisdiction, and an improper venue may be waived if not timely raised.

Removal

A defendant's transfer of a state case to federal court under 28 U.S.C. § 1441 when the federal court would have had original jurisdiction; diversity removal requires no in-state defendant.

Bluebook case citation

Party names italicized, volume, reporter abbreviation, first page, court if not the highest, and year; for example, Brown v. Bd. of Educ., 347 U.S. 483 (1954).

Binding versus persuasive authority

Binding authority comes from a higher court in the same jurisdiction; persuasive authority, such as sister-state cases or law reviews, may inform but does not control.

IRAC structure

A legal writing format: Issue, Rule, Application, Conclusion; CREAC adds an early conclusion and is common in persuasive briefs.

Pinpoint citation

A citation directing the reader to a specific page or footnote within a source; use 'id.' for the immediately preceding authority and 'supra' for earlier sources.

Plausibility pleading

The federal standard from Twombly and Iqbal: a complaint must state facts plausibly suggesting liability, not merely conclusory allegations, under Fed. R. Civ. P. 8(a).

Proportional discovery scope

Rule 26(b)(1) permits discovery of any nonprivileged matter relevant to a claim or defense and proportional to the needs of the case, considering importance and burden.

Summary judgment standard

Rule 56 grants judgment when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law; the nonmovant gets reasonable inferences.

Initial disclosures

Rule 26(a)(1) requires disclosure without a request of witness names, relevant documents, a damages computation, and insurance agreements within the set deadline.

Miranda warnings

Before custodial interrogation, police must advise of the right to remain silent and to counsel; a suspect must invoke a right unambiguously for it to take effect.

Exclusionary rule

Evidence obtained through an unconstitutional search or seizure is generally inadmissible; exceptions include inevitable discovery, independent source, and attenuation.

Double jeopardy

The Fifth Amendment bars retrial after an acquittal or conviction; it does not bar retrial after a mistrial for manifest necessity or a hung jury.

Statute of Frauds

A writing is required for marriage, year, land, executor, suretyship, and goods over $500; the categories are remembered by the mnemonic MY LEGS.

Piercing the corporate veil

An equitable remedy imposing personal liability on owners who abused the corporate form through commingling, undercapitalization, or fraud; rarely granted.

Apparent authority

Authority arising when the principal's conduct leads a third party to reasonably believe the agent is authorized, even without actual authority.

Negligence elements

Duty, breach, actual and proximate causation, and damages; comparative negligence reduces recovery while contributory negligence bars it in a few jurisdictions.

Adverse possession

Acquiring title to another's land through possession that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period.

Will execution formalities

A valid will requires testamentary intent, capacity, the testator's signature, and typically two witnesses under the Uniform Probate Code; a codicil needs the same formalities.

UCCJEA home state

Custody jurisdiction goes to the child's home state, defined as residence with a parent for at least six months immediately before the proceeding.

Best interests of the child

The custody standard weighing stability, parental fitness, the child's mature preference, and domestic violence history to determine the child's welfare.

Community property

A marital property regime in nine states dividing property acquired during marriage; separate property such as premarital assets and inheritances is excluded.

Certificate of service

A document stating the date, method, and recipients of service of a filing; e-filers serve registered users through the court's electronic system.

Deadline computation

Under Fed. R. Civ. P. 6(a), exclude the triggering day, include the last day, and extend to the next business day if it falls on a weekend or holiday.

Verification

A sworn statement signed under penalty of perjury confirming that the facts in a document are true; only documents requiring it by rule or statute need one.

Client trust account

An IOLTA account holding client funds; commingling with firm funds is prohibited, records must be kept, and disputed funds remain in trust until resolved.