blaw final review

• Lawyer


  One whose profession is to conduct lawsuits for clients or to advise as to legal rights and obligations in other matters
• Lawyer


  • Licensed professional who advises and represents others in legal matters
  • Can be young or old, male or female
  • Nearly one-third of all lawyers are under thirty-five years old
  • Almost half of the law students today are women, and women may ultimately be as numerous in the profession as men
• Path to becoming a lawyer

  1. College degree

  2. Law School Admission Test (LSAT)

  3. Law School (3 years)

  4. Bar Exam
• Attorney-client privilege


  A form of privilege that protects confidential communications between an attorney and a client that are made for the purpose of obtaining or providing legal advice from disclosure to third parties or from being admitted as evidence
• What the attorney-client privilege protects

  • Client's request for legal advice from a lawyer
  • Client's communication to a lawyer of facts on which the lawyer needs to give advice
  • Lawyer's legal advice
• Purpose of attorney-client privilege

  To encourage clients to provide all the necessary facts to their attorneys ("full and frank" disclosure), so that their attorneys will, in turn, guide clients' conduct in the right direction and resolve disputes
• The attorney-client privilege can protect virtually any mode of communication, including written and oral communications, electronic communications, physical gestures, such as nods, and a client's actions, such as transferring documents
• Who the attorney-client privilege belongs to


  The client, not the attorney or anyone else
• The attorney-client privilege lasts even once the attorney-client relationship ends
• Communication must be in connection with obtaining legal advice - an issue for in-house counsel can be distinguishing between legal advice and business advice
• Lawyer must be acting in the capacity as a lawyer - not as a businessperson, friend or family member
• In the case of a lawyer representing a corporation, who is the client for purposes of the attorney-client privilege?

  What are the implications of that answer?
• U.S. Constitution


  Supreme law of the land; creates the framework for our government and legal system
• Principles of the Constitution

  • Federalism - powers allocated among federal government and the states
  • Three branches of government
• Constitution drafted and signed

  1787
• Constitution became law after New Hampshire became the 9th state to ratify it


  1789
• Constitution consists of the Preamble, seven Articles, and 27 Amendments
• Dormant Commerce Clause


  Limits states' ability to regulate interstate commerce, even with regard to matters on which Congress has not acted
• The Commerce Clause does not invalidate all state actions that might have some effect on interstate commerce
• Undue burden


  States cannot impose an "undue burden" on interstate commerce
• Discriminate


  States cannot "discriminate" against interstate commerce
• How far states can go in regulating commerce is difficult to measure or predict
• Case-by-case decisions that are highly fact-driven
• States usually have wide latitude to address legitimate safety issues
• Balancing test


  A court must balance the state's interest in the regulation against the burden on interstate commerce
• Rights in the Bill of Rights

  • Freedom of religion, speech, press, assembly, protest; right to petition the government; prohibits the government from establishing or favoring a particular religion
  • Right to keep and bear arms
  • Soldiers cannot take or live in a person's house
  • Bars the government from unreasonable search and seizures of individuals or their property; no search or arrest without "probable cause"
  • The government must follow the law (due process) before punishing a person; protection against being charged twice for the same crime ("double jeopardy"); property cannot be taken without just compensation; right against self-incrimination
  • In criminal trials, individuals have a right to a fair and speedy public trial by an impartial jury and a right to be represented by a lawyer
  • A person has the right to a jury trial in federal civil cases
  • The government cannot impose excessive bail or fines or cruel and unusual punishment
• The Constitution does not include all of the rights of the people and the states
• Federalism


  Any powers that the Constitution does not give to the federal government belong to the states - balance between federal and state government is the essence of federalism
• Other Constitutional Amendments


  • Citizens cannot sue states in federal courts (some exceptions apply) (1798)
  • The President and Vice President are elected on a party ticket (1804)
  • Abolition of slavery (1865)
  • Equal protection clause (1868) - states must provide "due process" and "equal protection of the law" to all citizens; every person born in the US is a citizen; immigrants can become naturalized
  • All US male citizens have a right to vote (1870)
  • Federal government can tax incomes (1913)
  • The people can elect US Senators (1913)
  • Prohibition (1919)
  • All US female citizens have the right to vote (1920)
  • The President is inaugurated in January; Congressional sessions start in January (1933)
  • Repeal of prohibition; states can make their own laws about alcohol (1933)
  • The President cannot be elected for more than two terms (1951)
  • Citizens in the District of Columbia have the right to vote for President (1961)
  • No voting fees (1964)
  • Presidential succession - Vice President becomes President (1967)
  • Citizens 18 years of age and older have the right to vote (1971)
  • Congress must limit when and how much its members are paid (1992)
• Pleadings


  • Plaintiff files a "complaint" that lays out the basis of the lawsuit and "serves" a copy of the complaint (service of process) on the defendant
  • Defendant files an "answer" in which the defendant responds to the complaint
• What the defendant's answer might include

  • Affirmative defenses, such as expiration of the Statute of Limitations; non-compliance with the Statute of Frauds; etc.
  • Arguments about jurisdiction and/or venue
  • Counterclaim(s) - the defendant might argue that it did not breach the contract but rather the plaintiff did; the defendant effectively assumes the posture of plaintiff for purposes of its counterclaim(s)
• Notice pleadings


  Complaints and answers are called "notice" pleadings; they basically put the parties and the court on notice of the basic claims; they are simply drafted and do not include a lot of argument or evidence
• Pre-trial Matters


  1. Hearings will cover trial scheduling (a "scheduling order"), discovery and other procedural matters

  2. Discovery - the parties will provide information to each other about the facts of the case through document requests and production (importantly, this includes emails and texts), depositions (testimony under oath transcribed for the record by a court reporter) and serve interrogatories (written questions)
• Federal court jurisdiction


  Federal courts have limited jurisdiction, as spelled out in Article III of the Constitution; however, Article III gives federal courts exclusive jurisdiction over certain matters, including matters arising under the U.S. Constitution or a federal statute
• Diversity jurisdiction


  Federal jurisdiction also includes jurisdiction over matters involving citizens of different states - so-called "diversity of citizenship" jurisdiction - provided the amount in controversy is more than $75,000
• Diversity must be complete - no two opposite-side parties may be from the same state
• Erie Railroad v. Tompkins (1938)


  In diversity cases involving state law matters (like contract or tort), the federal court must decide the case based on applicable state law
• Corporate citizenship


  For diversity purposes, a corporation is a considered a resident of the state where it is incorporated and the state where it has its principal place of business - dual citizenship
• In terms of sheer volume, most lawsuits are brought in state court, and most of these are brought in small-claims court
• Powers of Administrative Agencies

  • Licensing (e.g., FCC)
  • Rate setting
  • Regulating business practices
  • Administering federal programs (e.g., Social Security, Medicare)
  • Enforcement
  • Dispute resolution