NCCP Examination Study Guide with complete solutions

Contracts - ANSWER Define- An agreement or bargain struck between parties in which each party assumes a legal duty to the other party. Requirements- agreement (offer & acceptance), consideration, contractual capacity, a ...

Contracts - ANSWER Define- An agreement or bargain struck between parties in which each party assumes a legal duty to the other party. Requirements- agreement (offer & acceptance), consideration, contractual capacity, and legality. Wills - ANSWER Requirements- testamentary intent; legal capacity; free of fraud, duress, undue influence, or mistake; and execution (two witnesses + notary = self proving). Trust - ANSWER Requirements- intention, subject matter, object. Power of Attorney - ANSWER Define- The authority to act for another person in legal or financial matters or a legal document giving such authority to someone. Requirements- soundness of mind, witness, recording. Complaint - ANSWER Define- a pleading by a plaintiff alleging the wrongdoing by the defendant. Requirements- caption, parties, statement of facts, request for relief, request for jury trial. Affidavit - ANSWER Define- A written statement of facts confirmed by the oath or affirmation of the party making it. Requirements- Must be made before a person having authority to administer oaths. Answer - ANSWER Define- a defendant's response to a plaintiff's claim. Requirements- admit/deny allegations; raise defenses. Interrogatories - ANSWER Define- A series of formal written questions addressed to a party for discovery purposes to be answered under oath. Requirements- 50 individual interrogatories in total, answer w/in 30 days, sign verification. Discovery Requests - ANSWER Types- interrogatories, production of documents and things and entry upon land, request for admissions, depositions and request for physical and mental examination. Requirements- depositions, subpoenas, validity of documents/opinions. Motions - ANSWER Define- oral or written request made to a court to obtain a ruling or order. Types- Motion to Compel, Motion for Summary Judgment, Motion for Directed Verdict, Motion for Judgment Notwithstanding the Verdict, Motion for a New Trial, Motions in Limine. Requirements- Notice, Affidavit, Memorandum (if applicable), Service. Separation Agreement - ANSWER Define- A contract between two married parties who are living separate and apart and plan to divorce that deals with property, spousal support, and child custody Requirements- living apart for @least 1 year and 1 day. Addresses property, spousal support, and child custody (nonbonding). Custody Agreement - ANSWER Addresses legal and physical custody of a minor child using the best interests of the child legal standard. Legal Custody allows the parent(s) to authorize decisions regarding the child such as school, medical, and the overall welfare of the child; it can be sole or joint. Physical Custody is where the child spends their time; it can be shared/joint (less than 123 overnights for visiting parent) or primary/secondary (each parent has 123 overnights). Articles of Incorporation - ANSWER Define- The document filed with the appropriate state official, usually the Secretary of State, when a business is incorporated. Requirements- Corporate Name, Business Purpose, Registered Agent, Incorporator, # of authorized shares of stock, share per value, preferred shares, directors, officers, legal address of the co. By-Laws - ANSWER Define- A set of governing rules adopted by a corporation or other association. Requirements- Name & Purpose of the Organization, Membership, Officers, Decision Making, Meetings, Board of Directors. Deeds - ANSWER Requirements- Written, Legal Capacity, Identifies Grantor/Grantee. Includes clear legal description of the property, words of conveyance, signed by grantor and delivered to grantee. Partnership Agreements- Sole Proprietorship, - ANSWER Define- The owner is the business and has all the liability. Requirements- If conducting business under a name, other than your own, file a Certificate of Assumed Name @ the Register of Deeds office. Partnership Agreements- General Partnership - ANSWER Define- Two+ partners who are jointly and severally liable who own a business and share the management, profits, and losses of the partnership. Requirements- Certificate of Assumed Name and Partnership Agreement; if there is no Partnership Agreement, ownership is equal. Partnership Agreements- Limited Partnerships - ANSWER Define- Consists of one+ general partners and one+ limited partners. General partners are jointly and severally liable and manage the day to day operations of the partnership. Limited partners are not involved in the management or operations of the partnership, therefore, their liability is limited to the amount in the capital account. Requirements- Certificate of Limited Partnership and Partnership Agreements. Partnership Agreements- Non-profit Corporations - ANSWER Define- trade associations, property owners associations, and charitable endeavors that has by-laws, directors, and officers. There are no shareholders and they may or may not have members. Requirements- File Articles of Incorporation w/ NC Secretary of State. Partnership Agreements- For-profit Corporations - ANSWER Define- an entity separate and apart from its owners or "shareholders", can be any size, can conduct basically and type of business. Liability is limited to shareholders contributions. Requirements- File Articles of Incorporation w/ NC Secretary of State. Partnership Agreements- Limited Liability Companies (LLC) - ANSWER Define- A hybrid entity which is cross between a corporation and a partnership. It provides the limited liability of a corporation with a pass-through entity for tax purposes, therefore, liability is limited to members capital contributions. Requirements- File Articles of Organization w/ NC Secretary of State. Calendar - ANSWER A list of cats that are awaiting trial or other settlement. A trial list or docket. Certificate of Service - ANSWER Authorized declaration that service of processes has been completed duly and in accordance with law; evidence that process server has successfully served a defendant or witness. Or the section of a pleading or motion that certifies that the party filing the document has sent a copy of the document to the opposing party or his attorney. Checklist/Inventory - ANSWER A list made by the executor or administrator of the estate of a deceased individual. Client Correspondence- Status Letter - ANSWER Correspondence sent to a client which provides an update on case status. Client Correspondence- Opinion Letter - ANSWER A letter from an attorney to a client containing a legal opinion on an issue raised by the client's question or legal claim. The opinion is based on a detailed analysis of the law. Client Correspondence- Demand Letter - ANSWER A letter in which one party explains its legal position in a dispute and requests that the recipient take some action (such as paying money owed). Default Judgment - ANSWER Define- A judgment entered by a clerk or court against a defendant who has failed to appear in court to answer or defend against a claim that has been brought against the defendant by another party. Requirements- Defendant fails to answer w/in 30 days of service, requires a total sum, if there is not a sum certain then it has to be calendared before a judge, verified Complaint or an Affidavit of Plaintiff's claims, mailed to Defendant at last address. Judgment - ANSWER Define- Final order of a court of law. Types- Compensatory Damages (money), Specific Performance (injunctive relief- to refrain), Punitive Damages (additional money to punish). Note- A judgment can be set aside if the debtor can show good cause. Leases - ANSWER Define- A contract by which one owner of a real property (the landlord) grants to a person (the tenant) an exclusive right to use and possess the property. Types- Estate for Years, Periodic Estate, Estate at Will, and Estate at Sufferance. Requirements- Usually for a specific period of time. The use and possession of the property is in return for some form of payment. Lease agreements for 1yr+ must be in writing. Order - ANSWER Mandate command, or direction authoritatively given; mandate of a court. Release - ANSWER Terminates liability Request for Admissions - ANSWER Define- Requests to the other side to admit certain aspects of the case. Requirements- The other side has 30 days to admit or deny the request, if they fail to answer, then the requests are deemed admitted. Must serve written responses to such a request. Request for Production of Documents - ANSWER Define- A written request for any other party to produce documents or things. Requirements- The request must specifically state either by individual item or by category the items that the requester is seeking and must state a reasonable time, place, and manner of making the insertion/production. The responding party has 30 days to serve written responses to the requests. Retainer - ANSWER An advance payment made by a client to a law firm to cover part of the legal fees and/or costs that will need to be incurred on that client's behalf. Settlement Package/Demand - ANSWER Part of the personal injury claim process that lays out the facts of the accident, the liability, the injuries you sustained, the medical records, future treatment and makes a monetary demand Subpoena - ANSWER A writ commanding the name person to appear at a specific time and place to give testimony. Summons - ANSWER Define-Document served upon a defendant to notify that suit has been filed and directing defendant to answer. Requirements- Proper Service under Rule 4 (Sheriff, Certified Mail, or Publication). Tickler - ANSWER A reminder that allows time-sensitive documents to be filed according ti the future date on which each document needs action. Trial Notebook - ANSWER A binder that contains copies of all the documents and information that an attorney will need to have at hand during the trial. Verification - ANSWER The declaration under oath or upon penalty of perjury that a statement or pleading is true, located at the end of a document Waiver - ANSWER The voluntary surrender of a known right; conduct supporting an interference that a particular right has been relinquished. Where are documents filed? - ANSWER The Clerk of Court How are documents filed? - ANSWER Documents are filed by an attorney with the Clerk of Court. Where are documents recorded? - ANSWER The Register of Deeds What government agencies require documents and document filings? - ANSWER NC Secretary of State What are filing fees? - ANSWER The court costs to file a document. What are recording fees? - ANSWER The fee charged for registering or recording an real estate purchase or sale. Are there documents that a paralegal cannot draft? - ANSWER A paralegal may perform any task which is properly delegated and supervised by an attorney, as long as the attorney is ultimately responsible to the client, maintains a direct relationship with the client, and assumes professional responsibility for the work product. Are there documents that a paralegal cannot sign? - ANSWER A paralegal may sign correspondence on a lawyer's or a law firm's letterhead, if it is indicated by a title. If warranted by exigent circumstances, a lawyer may allow a paralegal to sign his or her name to court documents as long as-- it does not violate any law, court order, local rule, or rule of civil procedure, the lawyer has provided the appropriate level of supervision, and the signature clearly discloses that another has signed on the lawyer's behalf. What needs to be in client correspondence? - ANSWER Status of the case, proceeding legal actions, attorney's opinion. How many copies of a document are needed? - ANSWER 3 + original Who receives a copy of a documents once it is prepared? Filed? Recorded? - ANSWER Prepared- Client Filed- Firm, Client, Opposing Party Recorded- Register of Deeds, Firm, Client What documents require special execution? - ANSWER Wills What invalidates an execution? - ANSWER Fraud, Duress, Undue Influence or Mistake, Capacity. How can a form document help in drafting assignments? - ANSWER Provides an outline of information to be included in the assignment. Where are form documents located? - ANSWER Administrative Office of the Courts/NC Court System. How are form documents updated and maintained? - ANSWER Form documents are updated and maintained by the state. What is a checklist? - ANSWER A reminder of a list of items required, things to be done, or points to be considered. What documents require a seal? - ANSWER Documents that require affirmation such as wills, complaints, answers, etc. What is a certified copy? - ANSWER A photocopy of a document, judgment, or record that is signed and attested to by a public official in whose custody the original has been placed for safekeeping as an accurate and a complete reproduction of the original document. Three Branches of Government - ANSWER All branches create law Legislative Branch (Congress)-federal law-USC Executive Branch (President)-executive orders Judicial Branch (Courts)-case law Primary Authorities - ANSWER Mandatory/Binding Authorities Constitutions Cases Statutes Administrative Regulations Executive Orders Treaties Secondary Authorities - ANSWER Not the laws themselves, but are persuasive writings. Legal Encyclopedias (CJS or Am Jur) Law Review Articles Legal Dictionaries (Black's Law Dictionary) Restatements Periodicals Treatises Textbooks Annotations Formbooks Law from another state/jurisdiction Practice Guides Attorney General Opinions Finding Tools - ANSWER Locates primary authorities and cases. Digest (North Carolina Digest or South Eastern Digest) Citators Indexes What is subject matter jurisdiction? - ANSWER The power of a court to adjudicate a particular type of matter and provide the remedy demanded. State Courts- domestic, juvenile, real estate, will, worker's compensation, crimes and traffic matters. Federal Courts- bankruptcy, admiralty, maritime, prize cases; and all suits brought against the US, its agencies or officers; patent, copyright, trademark, and unfair competition suits; actions involving civil rights; actions affecting ambassadors, public ministers, and consuls; and federal crimes. What is personal jurisdiction? - ANSWER The constitutional requirement that a defendant have certain minimum contacts with the forum in which the court sits so that said court may exercise power over the defendant. What is the venue? - ANSWER The geographical area in which a court with proper jurisdiction can hear the matter/ What are the types of civil litigation cases? - ANSWER Personal Injury/Tort Breach of Contract Divorce/Family Law Property Disputes Landlord/Tenant Disputes How is filing an action conducted? - ANSWER A lawsuit is filed with the Clerk of Court's office in the state that has proper jurisdiction and venue/ How is service of process completed? - ANSWER Delivery of the paperwork to the person named therein-- N.C.R. Civ. P. 4- A summons is served with a copy of the complaint by the Sheriff, Certified Mail Return Receipt Requested, or publication. What are the various pleadings and documents involved in every case? (complaint, answer, motion, interrogatories, requests, orders, etc.) - ANSWER Pleadings- Complaint & Summons, Answers & Motions to Dismiss Orders- Entry of Default Judgment, Order Designating Exempt Property, Execution Discovery- Interrogatories, Requests for Production of Documents, Request for Admission, Depositions. Motions- Motions for Summary Judgment, Motion for Directed Verdict, Motion for Judgment Notwithstanding the Verdict, Motion for a New Trial, Motion to Compel What are counting rules? - ANSWER N.C. R. Civ. P. 6-- Count the last day, unless it is a Saturday, Sunday or a legal holiday when the courthouse is closed, in this event, the period runs until the end of the next day which is not a Saturday, Sunday, or a legal holiday when the courthouse is closed for transactions. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday. What tasks are commonly performed by a paralegal? - ANSWER Interviewing clients/witnesses Opening the client file, recording/tickling all deadlines Gathering evidence Organizing all documents into a settlement brochure Drafting a complaint and answer Completing a summons, subpoena, and a cover sheet Filing a complaint at the proper courthouse Effecting service of process on all proper parties Monitoring a matter to ensure deadlines are met Preparing default judgments Drafting interrogatories, requests for production of documents, and other discovery requests Assisting with depositions Reviewing, organizing, and summarizing discovery documents Organizing/Preparing Trail Notebook Assisting with other trial preparations- organizing exhibits; issuing subpoenas; travel arrangements, deliver documents; arrange for special equipment; investigate all potential jurors; assist with voir dire; coordinate attendance of clients and witnesses; prepare clients/witness for testifying; handle all documents and exhibits; take notes/observe; maintain contact with office/court personnel/witnesses; and reviewing case and presentations for opening/closing statements. What are some common statues of limitation? (negligence, wrongful death, breach of contract, etc.) - ANSWER Negligence (medical malpractice, personal injury, product liability)- Three years for everything except libel and slander = 1 year. Wrongful Death = 2 years Breach of Contract = 3, 4, 10 (writing only) years Assault and Battery = 3 years What are the court structures for both federal and state courts? - ANSWER District- divorce, custody, child support, and civil cases $10,000 or less, misdemeanor criminal cases and infractions. Criminal Trials in District Courts are w/o a jury aka bench trial. Small Claims- magistrate presides over, hearing civil matters involving $5,000 or less, recovery of personal property, or summary ejectment/eviction. Court of Appeals- hears from the trial courts, top appellate court is the NC Supreme Court Federal- trial level, US District Court, followed by the intermediate court, the US Court of Appeals and the US Supreme Court (highest). What are the common rules and the numbers from the North Carolina Rules of Civil Procedure? (Service of Process, Rule 4, etc.) - ANSWER Rule 4- Deals w/ summons and service-- served w/in 60 days of issuance by Sheriff, Publication, or Certified Mail Return Receipt Requested Rule 12(b)- Motion to dismiss for lack of 1) jurisdiction over subject matter 2) personal jurisdiction 3) improper venue 4) insufficiency of process 5)insufficiency of service of process 6) failure to state a claim 7) failure to include a party Rule 56- Motion for Summary Judgment when there is no dispute of the facts, but questions of law remain. What types of cases are heard in federal court and what cases are heard in state court? - ANSWER Federal- US is a party, amount involves more than $75,000, diversity of citizenship, and cases involving violations of the US Constitution or Federal Laws. State- divorce, custody, child support, criminal, infractions, real property issues, estate issues, etc. Contracts Required by the Statute of Frauds to be in Writing - ANSWER Contracts Involving Interests in Land Collateral Contracts Contracts for the Sale of Goods over $500.00 Contracts that cannot be performed w/in a year Prenuptial Agreements What is criminal law? - ANSWER The branch of law that governs and defines those actions that are crimes and that subjects persons convicted of crimes to punishment imposed by the government (a fine or jail time). Why do we punish criminals? - ANSWER Due to the standards that society considers socially acceptable. It removes the threat from society, punishes the one who committed the immoral act, and rehabilitates the one who is punished by preventing future harm due to the fear of punishment. What are the theories of punishment? - ANSWER Incapacitation- can't commit a crime if you are in jail Deterrence- putting this person in jail will keep others from commuting the same bad acts Retribution- the defendant must be made to paid society for their bad acts Rehabilitation- by providing education and treatment this defendant will not commit another crime How does criminal procedure differ from criminal law? - ANSWER Criminal procedure is the process and criminal law is the statutes that set out the laws and punishment. What is a felony? What is a misdemeanor? - ANSWER A felony is a crime such as murder, rape, or robbery-- that carries the most severe sanctions, such as 1 year in a state or federal prison to life imprisonment or (in some states) the death penalty. However, misdemeanor is a less serious crime, punishable by fine or incarceration for up to one year in jail (not a state or federal penitentiary). Are thoughts crimes? - ANSWER No, bad act only. What is mens rea? Actus reus? Do all crimes require this? - ANSWER Mens rea is a wrongful mental state or intent, crime does not require this, but it is a requirement for criminal liability. Actus reus is a guilty (prohibited act), all crime requires this element. What is corpus delicti? - ANSWER Body of the crime; a confession alone is not enough, the state must have evidence to support it (body, murder weapon, etc). What is the year and a day rule? - ANSWER A common law rule, that eliminates the defendant's responsibility of homicide if the victim lives for more than one year and one day after the alleged acts that caused the death. What defenses can be argued? When can the following defenses be argued? Entrapment, Duress, Consent, Insanity, Alibi, and Necessity - ANSWER Self Defense- Necessary to protect myself, property, or others. Entrapment- State actor caused me to commit the crime. Duress- I had to commit this crime or they were going to hurt or kill me. Insanity- Requires mens rea. Necessity- If I do not have it, I die. Unconsciousness/Automatism- sleep walking Negating Defenses- voluntary intoxicatingly and diminished capscity What crimes are prosecuted in federal court? - ANSWER Violations of federal statute, bankruptcy, copyright, or patent issues. Cases involving guns or drugs that carry aggravating factors. Diversity of citizenship and maritime law cases. What crimes are prosecuted in state court? - ANSWER Felonies and Misdemeanors. What are the requirements for getting married? - ANSWER Formalities include ceremony in presence of ordained minister w/ 2 witnesses and the presence of both parties and a marriage license. Other requirements are that there is consent to marry, competency, age (18+, 16-18= written parental consent, 14-16= pregnancy and court approval), cannot marry multiple people at once, cannot marry blood relatives nearer than first cousin, cannot frailly induce the marriage. What should be contained in a prenuptial agreement? - ANSWER Can address equitable distribution, setting aside separate assets, protection of property. What invalidates a prenuptial agreement? - ANSWER Duress, only valid if entered into before marriage. Where would domestic actions need to be filed? - ANSWER One party must be a resident of the state of NC for the past six months and then in the county in which one person resides, unless it is a domestic violence action. What must be contained in a divorce complaint? - ANSWER -Names of parties -Resident of the State of North Carolina for @least six months -Date of Marriage, Date of Separation- Separated for 1 year + 1 day -Name and age of any minor children -Facts -Verification -N.C.G.S. 50-8 What are the requirements for obtaining a divorce? - ANSWER -6 months residency -Separation for 1 year + 1 day -Intent -No resumption of marital relationship What are the effects of a divorce? - ANSWER Terminates the bond of marriage. What are the difference between an absolute divorce and a divorce from bed and board? - ANSWER An absolute divorce terminates the bonds of marriage. A divorce from bed and board is a "legal" separation that requires fault and is the only way to force a separation. What are the difference between child support and spousal support? - ANSWER Child support is the necessary financial support that provides for a child's needs. Spousal support is in the form of post separation support or alimony and it is to provide support and maintenance to a former spouse by a lump sum or periodically for a temporary or indefinite term. How can a custody order be modified? - ANSWER A substantial change in circumstances. How is child support calculated? - ANSWER Number of overnights. -Primary=234 overnights (Worksheet A-visiting parent pays) -Shared=123 overnights (Worksheet B) -Split-each parent has primary custody of one child (Worksheet C) What are the difference between joint custody and legal custody? - ANSWER Joint custody is the physical custody of a child that is shared by the parents (123 overnights. Legal custody is the parent's right to make major decisions about the child's life without consulting the other parent, can be primary or joint. How is property divided? - ANSWER Equal is equitable, party arguing against this has burden to prove. How does the court determine what is separate property and what is marital property? - ANSWER Separate property is property that was acquired by gift or inheritance or that was obtained before the marriage. However, separate property that is conveyed into joint names is considered a gift to the marriage. What are the grounds for obtaining alimony? Terminating alimony? - ANSWER For a court to find an alimony award there must be a supporting spouse, dependent spouse, and all relevant factors (N.C.G.S. 50-16.3A(b). Orders can be modified or terminated at any time if there is a substantial change in circumstances and it shall terminate when the dependent spouse remarries; dependent spouse cohabitants; death of either party; or a terminating date that was established in the order. When can a parents right's be terminated? - ANSWER Parties must consent to TPR. Common grounds include-- -Step parent adoption -Abuse or neglected juvenile -The parent has willfully abandoned the juvenile for @least 12 consecutive months w/o justification -Parent has willfully failed to provide support w/o justification for @12 consecutive months -Murder another child -Raped that resulted in birth of a child where TPR is @ issue Who can be adopted? What are the steps in the adoption process? - ANSWER Children or adults may be adopted. The steps in the adoption process include-- petition for adoption; attachments to petition- affidavit of parentage, consent, relinquishment, etc.; proof of service; notice of adoption; order/report; affidavit accounting; final decree. How is a restraining order obtained? - ANSWER -File @ courthouse, fill out forms etc. -Ex parte order, but return hearing w/in 10 days -Can be entered by consent & w/o findings -In effect for 12 months, can be renewed for up to 24 months for "good cause", if motion is made before order expires. Wha is an ex parte proceeding? - ANSWER 10 day return hearing How can a woman resume the use of her maiden name? - ANSWER Can resume maiden name in action for divorce; however, she must still change her name w/ the clerk. What is estate planning? - ANSWER Making arrangements, during a person's lifetime, for the transfer of that person's property or obligations to others on the person's death. What role does a paralegal serve in estate planning? - ANSWER Communication, Interviewing, Drafting Documents, and Assisting in the Execution of a will.